Opinion
17-CV-2257 (RA)(SN)
07-20-2020
LILLIAN RIVERA, Petitioner, v. SABRINA KAPLAN, Respondent.
THE HONORABLE RONNIE ABRAMS
REPORT AND RECOMMENDATION
SARAH NETBURN, UNITED STATES MAGISTRATE JUDGE.
Petitioner Lillian Rivera, proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 2 (the “Petition”). Rivera is serving an aggregate sentence of twenty-five years after being convicted of conspiracy in the second degree, criminal possession of a controlled substance in the first and third degrees, and criminal sale of a controlled substance in the third degree. In support of the Petition, Rivera raises numerous arguments concerning purported violations of her constitutional rights. On April 10, 2018, the Honorable Ronnie Abrams referred the Petition to me for a report and recommendation. ECF No. 15. Because I find that each of Rivera's arguments is either procedurally barred, non-cognizable, or without merit, I recommend the Court dismiss the Petition in its entirety.
BACKGROUND
I. Investigation and Pretrial Proceedings
Beginning in June 2007, the New York City Police Department investigated a large-scale cocaine dealing operation led by Rivera. See ECF No. 21-7 at 88-89, 95-99. On July 11, 2008, a New York County grand jury charged Rivera, along with co-defendants Mario Bracero, William Rivera, Candido Gonzalez, Aaron Gonder, Joseph Ramirez, and Benny Garay, with Conspiracy in the Second Degree (N.Y. Penal Law § 105.15) based on conduct from August 29, 2007, through March 7, 2008. See ECF No. 21-2 at 29-40. Rivera was also charged, either alone or with one or more co-defendants, with one count of Criminal Possession of a Controlled Substance in the First Degree (N.Y. Penal Law § 220.21(1)); five counts of Criminal Sale of a Controlled Substance in the Third Degree (id. § 220.39(1)); six counts of Criminal Possession of a Controlled Substance in the Third Degree (id. § 220.16(1)); two counts of Criminal Possession of a Controlled Substance in the Fourth Degree (id. § 220.09(1)); and two counts of Criminal Possession of a Controlled Substance in the Fifth Degree (id. § 220.06(5)). ECF No. 21-2 at 52-60.
In May 2009, before trial, Rivera moved to suppress any testimony or physical evidence obtained through video surveillance, pen registers, or recordings of telephone conversations obtained through wiretaps. See ECF No. 21-2 at 88. Rivera also moved to suppress any evidence of physical property-including testimony about such property-allegedly seized from her upon arrest. Id. On August 5, 2009, New York County Supreme Court Justice Gregory Carro denied Rivera's suppression motions without a hearing. Id. at 74-87. Briefly, in denying the motion to suppress evidence obtained through video surveillance, Justice Carro held that because the investigative surveillance cameras used were focused exclusively on public areas, Rivera could not make the required showing of a legitimate expectation of privacy. Id. at 77. With respect to evidence obtained by wiretapping, Justice Carro held, among other things, that the warrant authorizing the wiretapping met the exhaustion standard set forth under C.P.L. § 700.15(4) based on the affidavits of New York Police Department Detectives David Salvador and John McSherry. Id. at 78-79. Justice Carro also held that the warrant authorizing the use of a pen register and the collection of cell site location data was constitutional because the authorization was of reasonable duration and described with particularity and also because Rivera did not allege a reasonable expectation of privacy in her cell site location data. Id. at 83. Finally, with regard to the motion to suppress physical evidence, Justice Carro held that Rivera's application presented only a “general claim” attacking the “underlying basis” of the search warrants leading to the seizure of the physical evidence and that such an unsupported objection was grounds for denial of the motion. Id. at 84-87.
II. Trial
The trial of Rivera, Benny Garay, and Mario Bracero began on April 6, 2010, before Justice Carro in the Supreme Court of the State of New York, New York County. See ECF No. 21-6 at 96. On the second day of voir dire, Bracero pleaded guilty. Id. at 257-61, 269-276.
The relevant facts are presented in the light most favorable to the verdict. See Garbutt v. Conway, 668 F.3d 79, 80 (2d Cir. 2012). The Defense provided no testimony at trial. Additional facts are presented throughout this Report and Recommendation where relevant.
In 2007, the New York City Police Department (“NYPD”) initiated an investigation into a possible cocaine dealing operation based in the Dyckman Housing Project on the Upper West Side of Manhattan. See Tr. at 95-100, 1365-69, 1426 - 30, 1715-19. The investigation consisted of undercover purchases of crack cocaine, surveillance, wiretapping, and analysis of cell site location information. For example, Undercover Officer 0096 (“UC 96”) carried out several purchases of crack cocaine from Rivera: on November 14, 2007, UC 96 purchased ten “twists” of crack from Rivera for $100; on November 19, 2007, UC 96 purchased 16 “clips” from Rivera for $160; on December 3, 2007, UC 96 exchanged $20 for 20 twists of crack from Rivera; and, on December 10, 2007, UC 96 purchased ten clear bags of powdered cocaine from Rivera for $200. Tr. at 546-52, 558-77, 583-87, 614.
The citations in this section are to the pages of the trial transcript (“Tr.”), which Respondent filed as multiple exhibits to the Response. See ECF Nos. 21-7, 21-8, 21-9.
In February 2008, the NYPD obtained eavesdropping warrants for a cell phone belonging to Julian Silva, whom the investigation revealed supplied cocaine to Rivera. ECF No. 21-3 at 164 n.7; ECF No. 21-4 at 93. On March 7, 2008, surveillance and intercepted telephone calls revealed that Rivera planned to procure a kilogram of cocaine from Silva that afternoon. Tr. at 1833-44. After additional surveillance and communication between officers, Detective Salvador, along with other NYPD detectives, concluded that Rivera and Silva's cousin were consummating the cocaine sale at a location near the Dyckman Houses. Tr. at 1868, 1873-76, 1878, 1999. Detectives followed Rivera and Garay as they traveled together in one car from Rivera's apartment building at 2181 Wallace Avenue to the nearby transaction location and back. Id.
Upon returning to her apartment building, Rivera exited a car driven by Garay and entered the building, at which time detectives observed her holding a “white and blue bag” in the shape of a rectangle. Tr. at 1751-55, 1769-71. Garay parked and followed Rivera into the building. Tr. at 1755. About thirty minutes later, Garay emerged from the building, got back in the car, and drove a short distance before Detectives Salvador and Hourican stopped him, arrested him, frisked him, and placed him in the detectives' car. Tr. at 1448-53, 1887-90. Detective Hourican later searched Garay and recovered a quantity of cocaine wrapped in a dollar bill, as well as $2,478 in cash. Tr. at 1456-59, 1485-87, 1615-17. At about the same time, Detective McLoughlin observed Rivera leave the building, walking her dog. Tr. at 1755-56. He immediately notified Detective Salvador, who drove around the block, saw Rivera with her dog, and arrested her. Tr. at 1453-54, 1476, 1891-93. Detectives immediately searched Rivera and recovered cash, a set of keys, a wallet, and “personal papers.” Tr. at 1477-79, 1487-90, 149596, 1898-99, 1912-17.
Shortly thereafter, Detective Salvador and other officers executed a search warrant at Apartment 1L at 2181 Wallace Avenue (the “Apartment”), where they found Rivera's brother, William Rivera, whom they also arrested. Tr. at 1758, 1903-04, 1923-27, 1934-37, 2065-66. The officers determined that one of the keys recovered from Rivera upon arrest opened a padlock to a bedroom in the Apartment. See Tr. at 1905, 1911, 1922. Officers searched the bedroom and found a brick of cocaine wrapped in plastic and concealed in a shoebox, as well as drug-packaging materials and multiple items associated with Rivera including her clothing, personal papers, and photographs. Tr. at 1467-68 1904-05, 1908-10, 1922, 2039-40. The same day, Detective Salvador also arrested three other individuals whom the investigaion linked to the Apartment, including one individual from whom undercover officers had made cocaine purchases. Tr. at 91-92.
B. The Jury Verdict and Sentence
On May 13, 2010, the jury returned a verdict convicting Rivera of conspiracy in the second degree, criminal possession of a controlled substance in the first and third degrees, and five counts of criminal sale of a controlled substance in the third degree. See ECF No. 21-2 at 28; ECF No. 21-9 at 743-49. On June 23, 2010, Justice Carro sentenced Rivera to an indeterminate term of imprisonment of 5 to 15 years on the conspiracy count, to run consecutively to a determinate prison term of 20 years and 5 years of post-release supervision on the first-degree drug possession count, along with lesser concurrent terms on the remaining drug counts, for an aggregate sentence of 25 years. ECF No. 21-9 at 787-88.
V. Post-Conviction Proceedings
A. Direct Appeal
Rivera, by counsel, timely appealed her conviction to the Appellate Division, First Department on the following grounds: (1) the evidence presented at trial was insufficient to support Rivera's possession conviction, which was against the weight of the evidence; (2) the trial court erroneously denied Rivera a pretrial hearing to determine whether there was probable cause for her arrest and whether the physical evidence from her apartment was lawfully obtained; (3) her sentence of twenty-five years was unduly harsh and excessive; (4) the state court erroneously denied Rivera's motion for a severance, based on statements made during Rivera's co-defendant's summation; (5) the state court improperly admitted evidence including testimony and physical evidence portraying Rivera, and her co-conspirators, as violent; (6) the trial court erred by admitting evidence obtained by wiretapping; (7) the prosecution improperly withheld from the defense and only belatedly produced certain documents; and (8) the trial court erred by closing the courtroom to the public during the testimony of certain undercover officers, violating Rivera's right to a public trial. See ECF No. 21-3 at 134 through ECF No. 21-4 at 71.
The Appellate Division unanimously affirmed Rivera's judgment of conviction. People v. Rivera, 128 A.D.3d 473 (1st Dep't 2015), lv. denied, 27 N.Y.3d 1005 (2016). The Appellate Division held that the verdict was based on legally sufficient evidence and was not against the weight of the evidence, as “[t]he evidence, including intercepted communications and circumstantial proof, amply demonstrate[d] that [petitioner], the leader of a large-scale drug trafficking operation, personally acquired a kilogram of cocaine.” Id. at 473. The Appellate Division also found that the trial court had properly denied, without a hearing, the suppression motion in connection with Rivera's arrest and the search of her apartment, as well as the suppression motion as to the wiretap warrants. Id. at 473-74.
The Appellate Division also held that the trial court properly exercised its discretion in denying Rivera's end-of-trial severance motion based on Garay's allegedly antagonistic defenses presented on summation. Id. The Appellate Division found that Rivera's motion was untimely, that she had failed to show good cause for her failure to make a timely motion, and that she had failed to demonstrate that her and Garay's defenses had become so antagonistic as to require separate trials. Id. at 474. Regarding Rivera's arguments related to the improper admission of certain evidence, the Appellate Division held that the trial court “properly exercised its discretion in receiving the various items of evidence challenged by [Rivera], and none of [the] evidence deprived her of a fair trial.” Id. The Appellate Division further found that Rivera had “not established that she was prejudiced by any late disclosure of discovery material.” Id. Finally, the Appellate Division “perceive[d] no basis for reducing [Rivera's] sentence.” Id. at 475.
Rivera filed an application for leave to appeal her conviction to the New York Court of Appeals. ECF No. 21-4 at 246-55. On April 5, 2016, the Court of Appeals denied leave. People v. Rivera, 27 N.Y.3d 1005 (2016) (table decision).
B. Motion to Vacate Under CPL § 441.10
Rivera, acting pro se, filed a motion to vacate her conviction under CPL § 440.10 on April 5, 2017 (the “440 Motion”). ECF No. 21-4 at 266. Rivera raised numerous arguments in support of her motion, specifically: (1) the trial court improperly denied her severance motion; (2) the trial court violated her right to confront witnesses by admitting various evidence consisting of hearsay; (3) the trial court and the prosecutor acted as “unsworn witnesses” against her, in violation of her “right to a fair trial”; (4) certain testimony violated the presumption of innocence; (5) multiple exhibits were admitted in violation of various evidentiary rules; (6) her trial counsel was ineffective for various reasons; (7) the trial court and the prosecutor engaged in misconduct in connection with the criminal complaint and search warrants; (8) the trial court improperly denied a hearing regarding her motion to suppress the search warrants; (9) the trial court improperly composed the jury by using an alternate juror; (10) the admission of wiretaps violated her Fourth Amendment rights; (11) the prosecutor violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose evidence of Garay's proffer session with the prosecution; (12) the prosecutor improperly employed evidence of criminal charges that had terminated in Rivera's favor; and (13) the trial court failed to act on Rivera's mid-trial complaints about her counsel.
On October 4, 2017, Justice Carro issued a decision denying Rivera's motion in its entirety. In sum, the 440 Court found that most of Rivera's claims were record-based and barred under CPL § 440.10(2)(c) because Rivera did not raise them on direct appeal. See ECF No. 21-5 at 148-51. In the alternative, the 440 Court also found that all of the claims were meritless, describing in some detail the deficiencies in the claims.
C. Habeas Corpus Petition Under 28 U.S.C. § 2254
Rivera filed the Petition on March 27, 2017. See ECF No. 2. In July 2017, this Court granted Rivera's request for a stay of the proceedings to allow her to file the 440 Motion. ECF No. 8. When the 440 Motion was denied, this Court lifted the stay and entered a briefing schedule for Respondent's opposition and Rivera's reply. ECF No. 12. In June 2018, the Court granted another motion to stay this habeas proceeding pending resolution of Rivera's request for leave to appeal the denial of her 440 Motion. ECF No. 25. The Appellate Division denied that application and on November 7, 2018, this Court lifted the stay on this proceeding. ECF Nos. 26-27. Respondent filed an amended opposition to Rivera's petition on January 22, 2019 (ECF No. 32, “Resp. Mem.”), and Rivera filed an amended reply on March 25, 2019 (ECF Nos. 40-41).
In support of the Petition, Rivera submits a Memorandum of Law (ECF No. 2 at 11-60, ECF No. 2-1 at 1-7, cited herein as “Pet. Mem.”). Citations to both the Petition and to Rivera's Memorandum of Law are to the original page numbers.
DISCUSSION
Pro se submissions, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). In the context of a petition for a writ of habeas corpus, “[i]f a Pro se litigant pleads facts that would entitle [her] to relief, that petition should not be dismissed because the litigant did not correctly identify the statute or rule of law that provides the relief [s]he seeks.” Thompson v. Choinski, 525 F.3d 205, 209 (2d Cir. 2008). In adhering to this standard, I interpret Rivera's Petition “to raise the strongest arguments that [it] suggest[s].” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (emphasis omitted). Rivera's Pro se status, however, “does not exempt [her] from compliance with relevant rules of procedural and substantive law.” Id. at 477 (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
Rivera's argument in support of the Petition is nearly word for word the argument she presented in the brief supporting her 440 Motion. Compare ECF No. 2, with ECF No 21-4 at 270-300, ECF No. 25-1 at 1-22. First, Rivera claims that the trial court improperly declined to hold an evidentiary hearing on a motion to suppress her arrest (lacking probable cause) and the search of her apartment. Second, Rivera claims that the trial court improperly denied her motion to suppress wiretap evidence. Third, Rivera argues that the trial court improperly denied the severance motion she made at the close of Garay's summation. Fourth, Rivera argues that the People failed to timely disclose certain information in violation of Brady. Fifth, Rivera argues that trial court's admission of hearsay evidence on multiple occasions violated her right to confront witnesses against her. Sixth, Rivera argues that certain testimony and exhibits were impermissibly admitted at trial. Seventh, Rivera claims ineffective assistance of counsel for her lawyer's failure to object to the admission of certain evidence and for failing to adopt her pro se severance motion. Finally, Rivera contests her sentence.
I. Legal Standards
A. Timeliness
A state prisoner must seek habeas relief within one year after her conviction becomes final. 28 U.S.C. § 2244(d)(1)(A). This period is tolled during the time when “a properly filed application for State post-conviction or other collateral review . . . is pending.” 28 U.S.C. § 2244(d)(2). “The time that an application for state post-conviction review is ‘pending' includes the period between (1) a lower court's adverse determination, and (2) the prisoner's filing of a notice of appeal, provided that the filing of the notice of appeal is timely under state law.” Evans v. Chavis, 546 U.S. 189, 191 (2006) (alterations omitted).
On April 5, 2017, New York Court of Appeals denied Rivera's motion seeking leave to appeal the denial of her direct appeal, and her conviction became final on July 4, 2017, when her time for filing a petition for certiorari with the U.S. Supreme Court expired. See Clay v. United States, 537 U.S. 522, 532 (2003) (interpreting timeliness under § 2255); see also Supreme Court Rule 13(1) (providing a defendant 90 days following the affirmance of a conviction by the New York Court of Appeals, or the denial of a certificate for permission to appeal, to seek a writ of certiorari). Thus, Rivera's November 15, 2017 Petition was timely filed.
B. Exhaustion and Procedural Default
As a state prisoner seeking federal habeas relief pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Rivera must show that she has exhausted her Petition's claims by presenting both the factual and legal premises of her claims to the state court. Baldwin v. Reese, 541 U.S. 27, 29 (2004); see also Daye v. Attorney Gen., 696 F.2d 186, 191 (2d Cir. 1982) (en banc). The Court of Appeals has set forth a two-part inquiry to determine exhaustion. See Galdamez v. Keane, 394 F.3d 68, 73 (2d Cir. 2005). “First, a federal court must examine whether applicable state court remedies remain available to the petitioner.” Id. “Second, . . . the federal court must assess whether the petitioner ‘properly exhausted those [state] remedies, i.e., whether [petitioner] has fairly presented his [or her] claims to the state courts,' such that the state court had a fair opportunity to act.” Id. (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)).
To satisfy the exhaustion requirement applicable to habeas actions in New York, a petitioner must have articulated the federal nature of her claims in an appeal to the Appellate Division and then in an application seeking leave to appeal filed with the New York Court of Appeals. See Galdamez, 394 F.3d at 74. In doing, a petitioner may not rely solely on general principles of fairness, but instead must refer to specific constitutional provisions or concepts, even if minimally. See Reid v. Senkowski, 961 F.2d 374, 376 (2d Cir. 1992) (per curiam). “A [petitioner] may, however, fairly present the substance of a federal constitutional claim to the state court without citing book and verse on the federal constitution.” Daye, 696 F.2d at 192 (internal quotation marks omitted). Exhaustion simply requires that “the nature or presentation of the claim must have been likely to alert the court to the claim's federal nature.” Id.
“The procedural default doctrine protects the integrity of the exhaustion rule, ensuring that state courts receive a legitimate opportunity to pass on a petitioner's federal claims and that federal courts respect the state courts' ability to correct their own mistakes.” Id. at 73. Under the doctrine of procedural default, a petitioner cannot claim to have exhausted her remedies “by dint of no longer possessing ‘the right under the law of the State to raise, by any available procedure, the question presented,' if at some point the petitioner had that right but failed to exercise it.” Id. at 74 (quoting 28 U.S.C. § 2254(c)).
Where a petition contains both exhausted and unexhausted claims, the Court may (1) dismiss the entire petition without prejudice; (2) deny the entire petition on the merits; (3) allow the petitioner to proceed only with any exhausted claims; or (4) in limited circumstances, stay the petition to permit the petitioner to exhaust the unexhausted claims. See 28 U.S.C. § 2254(b)(2); Rhines v. Weber, 544 U.S. 269, 277-278 (2005). A stay “is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court.” Id. at 277.
C. Adequate and Independent State Grounds
“Federal courts considering habeas corpus petitions are generally barred from reviewing the decisions of state courts insofar as those decisions are predicated on adequate and independent state procedural grounds.” Messiah v. Duncan, 435 F.3d 186, 195 (2d Cir. 2006). Under New York Criminal Procedure Law § 470.05(2), a defendant must make a contemporaneous objection to an alleged error to preserve that error for appellate review. People v. Jackson, 29 N.Y.3d 18, 22 (2017). Further, “the preservation requirement compels that the argument be ‘specifically directed' at the alleged error.” People v. Gray, 86 N.Y.2d 10, 19 (1995) (quoting People v. Cona, 49 N.Y.2d 26, 33 n.2 (1979)). Failure to preserve a claim through a contemporaneous objection constitutes an independent and adequate state procedural ground for denying a claim. Downs v. Lape, 657 F.3d 97, 103-04 (2d Cir. 2011). Where a state has rendered a decision pursuant to an adequate and independent state law ground, a federal court will refrain from reviewing the judgment unless the prisoner can demonstrate (1) cause for her default and actual prejudice as a result of the alleged violation of federal law, or (2) that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
D. Merits Review
Under the AEDPA, where a state court has adjudicated a claim on the merits, a federal court may grant a writ of habeas corpus to a state prisoner only where the state court's adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d).
A state court's decision is contrary to clearly established federal law when the state court “applies a rule that contradicts the governing law set forth in” a Supreme Court opinion or “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.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Federal law is “clearly established” when it is expressed in “the holdings, as opposed to the dicta, of [the Supreme] Court's decisions.” Howes v. Fields, 565 U.S. 499, 505 (2012) (internal quotation marks omitted). When a petitioner raises an issue that the Supreme Court has not “squarely address[ed]” or “clear[ly] answer[ed],” habeas relief is unavailable. Wright v. Van Patten, 552 U.S. 120, 125-26 (2008).
A state court's decision is “unreasonable” when the decision is “more than incorrect or erroneous” and is “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003). A petitioner must demonstrate that “the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). Notwithstanding this deferential standard, federal courts must independently evaluate whether a constitutional violation has occurred. See Wright v. West, 505 U.S. 277, 305 (1992) (O'Connor, J., concurring) (“We have always held that federal courts, even on habeas, have an independent obligation to say what the law is.”).
II. Rivera's Claims
A. Denial of Rivera's Motion to Suppress
Rivera claims that the trial court violated her constitutional rights by denying-without a hearing-her motion to suppress evidence obtained from her arrest, a subsequent search of apartment 1L at 2181 Wallace Avenue in the Bronx, NY (the “Apartment”), and the wiretaps.
The search warrant correctly described the target apartment address as “1L” where the felony complaint mistakenly described the target apartment address as “1M.” Compare ECF No. 21-5 at 774-75, with ECF No. 21-2 at 67.
1. Background
On March 7, 2008, police executed a search warrant on the Apartment based on Detective Salvador's affidavit and found $5,000 and one kilogram of cocaine. Earlier that day, Detective Salvador and Detective Torres had arrested Rivera, suspecting she had acquired a kilogram of cocaine. ECF No. 21-8 at 646-47. Before trial, on May 13, 2009, Rivera moved to suppress, among other things, the items recovered from the Apartment and from her person upon arrest. Justice Carro denied the motion without a hearing. In his written opinion, Justice Carro stated that the probable cause for Rivera's arrest had been established based on her alleged involvement in a conspiracy to sell and possess cocaine. Justice Carro also held that because the Detective Salvador's allegations established that Rivera's connection to the apartment was rooted solely in activities related to the cocaine-dealing enterprise, Rivera's expectation of privacy in the premises was not objectively reasonable for purposes of the Fourth Amendment. The Appellate Division, denying Rivera's motion on direct appeal, stated:
The court properly denied [Rivera's] suppression motion without granting a hearing. With regard to the search of [Rivera's] person, the issues are similar to those raised on the co-defendant's unsuccessful appeal to this Court, and we similarly reject [Rivera's] arguments. With respect to the execution of a search warrant at the apartment where the kilogram of cocaine was found, the motion court correctly determined that [Rivera] did not establish standing, and alternatively did not establish any legal basis for challenging the validity of the warrant.Rivera, 128 A.D.3d at 473-74 (citing People v. Garay, 107 A.D.3d 580, 581 (1st Dep't 2013), aff'd, 25 N.Y.3d 62 (2015)). The Court of Appeals denied Rivera's application for leave to appeal. People v. Rivera, 27 N.Y.3d 1005 (2016) (table decision). Rivera later challenged the trial court's decision in her § 440.10 motion, which the 440 Court denied, finding that the claim had already been addressed on direct appeal. See ECF No. 21-5 at 149.
1. Arrest and Search Warrant
In this Petition, Rivera claims-as she did on direct appeal-that the trial court violated her constitutional rights by denying, without a hearing, her motions to suppress: (1) evidence recovered from her person following her arrest and (2) evidence recovered from the search of the Apartment. Rivera argues her arrest lacked probable cause and the search warrant both lacked probable cause and was based on false information. In addition, the Petition asserts (as does Rivera's § 440.10 motion) that the search warrant application for the Apartment relied in part “upon Petitioner's prior bad acts that had actually terminated in her favor,” in violation of the sealing requirements of CPL § 160.50.
First, these claims are barred from habeas review under Stone v. Powell, 428 U.S. 465, (1976). “[W]here the State has provided an opportunity for full and fair litigation of the Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” Id. at 481-82. Stone applies to all Fourth Amendment claims-such as challenges to arrests or searches based on less than probable cause-and applies regardless of the nature of the evidence a defendant seeks to suppress. See Cardwell v. Taylor, 461 U.S. 571, 572-73 (1983) (per curiam). This is so even where a petitioner frames her grounds for relief without explicitly referring to the Fourth Amendment. See Salcedo v. Smith, 05-cv-3497 (JGK), 2006 WL 1644700, at *3 n.1 (S.D.N.Y. June 13, 2006) (“If the substance of the claim is a Fourth Amendment claim, Stone applies even if the claim is also characterized as a due process claim.”); Ferron v. Goord, 255 F.Supp.2d 127, 132-33 (W.D.N.Y. 2003) (“[Petitioner] cannot avoid the outcome required by Stone by phrasing his Fourth Amendment claim in terms of a due process violation”).
The Court of Appeals has developed a standard to determine when a state prisoner has been denied the opportunity to litigate required under Stone. See Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992). Under this standard, collateral review of Fourth Amendment claims in habeas petitions is appropriate only in two instances: (1) if the state provides no corrective procedures at all to redress Fourth Amendment violations; or (2) where the state provides the process but in fact the defendant is precluded from using it by reason of an unconscionable breakdown in that process. Id.
Courts in this Circuit have expressly approved New York's procedure permitting a criminal defendant to file a pre-trial motion under N.Y. Crim. Pro. Law § 710.10 to suppress evidence unlawfully seized as an “opportunity” to litigate Fourth Amendment claims. Id. at 70 n.1 (quoting Holmes v. Scully, 706 F.Supp. 195, 201 (E.D.N.Y. 1989)). The denial of a motion for an evidentiary hearing does not, by itself, negate the fact that adequate state law procedures exist. See Amin v. Hulihan, 10-cv-2293 (PKC), 2016 WL 6068128, at *8 (E.D.N.Y. Oct. 13, 2016).
Rivera was provided a full opportunity to litigate her challenges under the Fourth Amendment to her arrest and the searches of her person and the Apartment. Rivera does not challenge that she was not given an “opportunity” to litigate her claims- nor could she: she filed a pretrial motion to suppress (raising all but one of these claims) pursuant to Section 710.60, which was adjudicated on the merits. Rivera has also not established that there was an “unconscionable breakdown in the underlying process.” Capellan, 975 F.2d at 70. “The focus of [that] inquiry . . . is on ‘the existence and application of the corrective procedures themselves' rather than on the ‘outcome resulting from the application of adequate state court corrective procedures.'” Singh v. Miller, 104 Fed.Appx. 770, 772 (2d Cir. 2004) (quoting Capellan, 975 F.2d at 71). Such a breakdown may be found only if there is a sufficiently egregious “disruption or obstruction of a state proceeding.” Capellan, 975 F.2d at 70. Rivera's claim should therefore be denied as non-cognizable under Stone v. Powell.
Rivera's sole argument raised in this Petition and not at the pretrial stage-that the search warrant applications relied in part “upon Petitioner's prior bad acts that had actually terminated in her favor” in violation of CPL § 160.50-is also non-cognizable on habeas review because it alleges a violation of state law only, as explained herein.
Second, the Petition may be interpreted to assert arguments not presented in Rivera's Appellate Division brief, including the argument that the search warrant applications relied in part “upon [Rivera's] prior bad acts that had actually terminated in her favor” in violation of CPL § 160.50. Pet. Mem. at 40-43. The 440 Court held that the claims were procedurally barred under CPL § 440.10(2)(c). See ECF No. 21-5 at 149-50. These claims-which Rivera raised for the first time in her 440 Motion-should be denied to the extent Rivera bases her arguments on alleged violations of state law only. See, e.g., Hodge v. Griffin, 13-cv-1977 (LTS) (JCF), 2014 WL 2453333, at *11 n.4 (S.D.N.Y. June 2, 2014); Afrika v. Conway, 06-cv-0280T (MAT), 2011 WL 582618, at *8 (W.D.N.Y. Feb. 9, 2011).
2. Wiretap Evidence
As in her direct appeal, Rivera's Petition argues that police wiretaps authorized during the course of the investigation were invalid on constitutional, as well as state and federal statutory, grounds because the warrant applications failed to establish that wiretaps were necessary to the investigation. Pet. Mem. at 50-52; ECF No. 21-4 at 44-55. Therefore, according to Rivera, admission of the evidence obtained by wiretapping violated her “right to a fair trial and due process” under the “4th, 6th, and 14th” Amendments. Id. at 50. Both the Appellate Division and the 440 Court denied these claims on procedural grounds and on the merits.
By applications dated December 11 and 13, 2007, the People applied for and received eavesdropping warrants for two of Rivera's cell phones. ECF No. 21-3 at 1, 158-61; ECF No. 21-4 at 149-51. In the months following, the People applied for and received a number of additional eavesdropping warrants for the same cell phones. The successful applications for the subsequent warrants incorporated by reference the two initial applications. See Resp. Mem. at n.22.
On May 13, 2009, Rivera filed a motion to suppress evidence obtained as the result of wiretaps and the fruits thereof, arguing, among other things, that the warrant applications failed to establish the wiretaps' necessity under CPL § 700.15(4). See ECF No. 21-2 at 95-106. The trial court denied the motion, finding that Detectives Salvador and McSherry's affidavits supporting the applications had established that “conventional investigative methods had yielded limited information and reasonably appeared to be unlikely to produce the evidence necessary to accomplish the investigation's goals, or were too dangerous to employ.” ECF No. 21-2 at 78. Indeed, Detective Salvador's affidavit thoroughly detailed the nature of Rivera's alleged criminal conduct, the objectives of the police's investigation and the investigative steps the police had taken prior to applying for a wiretap warrant, and the reasons the investigation's goals could not be reached without the requested wiretaps. See id. at 81-82, 118-57. Detective McSherry's application stated in part that Rivera had possessed a firearm and been suspected of threatening, shooting, or robbing several people who later refused to testify against her. See id. at 160-63.
Rivera appealed the trial court's denial of her motion to suppress. The Appellate Division denied Rivera's claim, holding that the wiretap applications “established that normal investigative procedures had been tried and had failed, or reasonably appeared to be unlikely to succeed or too dangerous to employ.” Rivera, 128 A.D.3d at 474 (citations omitted). Rivera raised nearly the same claim in her 440 Motion, which Justice Carro denied because the claim had been raised and denied on direct appeal. See ECF No. 21-5 at 149-51 (citing CPL § 440.10(2)(a)).
Rivera argues that the wiretaps were invalid under the Fourth, Sixth, and Fourteenth Amendments because the police did not satisfy the “necessity” or “exhaustion” requirement under CPL § 700.15(4). Rivera's claim should be denied. First, Rivera had a full and fair opportunity to litigate her claims regarding the eavesdrop warrants. Rivera presented her claims to the trial court, where Justice Gregory Carro rejected the claims in a reasoned and well-supported written opinion. Rivera appealed the decision and the Appellate Division also denied her claims. Rivera does not argue that she received no opportunity to litigate her claims. Rather, she seeks to re-litigate the issue through this Petition. Rivera is, however, barred under Stone from obtaining further review of this claim in a federal habeas proceeding. See Capellan, 975 F.2d at 70; McPhail, 707 F.2d at 69-70; see also Hickey v. Conway, 03-cv-350, 2005 WL 1660115, at *5-6 (N.D.N.Y. July 6, 2005) (barring a petitioner's “Fourth Amendment claim based upon the authorities' alleged failure to comply with the ‘necessity' requirement of [CPL] § 700.15” from review on federal habeas proceeding); Highsmith v. Donnelly, 99-cv-495A (RJA) (VEB), 2004 WL 1071246, at *8 (W.D.N.Y. Mar. 30, 352004). Second, Rivera's claim that the warrants did not comport with the requirements set forth by CPL § 700.15(4) is not cognizable on federal habeas review because it asserts a violation of state law. See, e.g., Swarthout v. Cooke, 562 U.S. 216, 219 (2011); Highsmith, 2004 WL 1071246, at *9 (denying wiretapping claim brought under CPL § 700.15(4)).
Reading the Petition liberally in light of Rivera's Pro se status, the Court also interprets it to raise a federal statutory claim that the wiretaps were unnecessary. Pet. Mem. at 52-53. Rivera's Petition appears to refer to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 18 U.S.C. §§ 2510 etseq. (“Title III”), to support her “necessity” claim. Id. at 53. Rivera's Title III claim should also be denied because (1) Rivera did not exhaust the federal statutory claim in state court; and (2) it fails on the merits.
First, Rivera did not refer to Title III in her 440 Motion and did not raise a claim under Title III on direct appeal. In her direct appeal, Rivera cited Title III in support of her state statutory claim, arguing that CPL § 700.15(4) conformed to Title III's “necessity” requirement. See ECF No. 21-4 at 46-47. Rivera's application for leave to appeal to the Court of Appeals correspondingly omitted any reference to Title III, phrasing the appellate question as: “Whether the prosecution establish[ed] that an eavesdropping warrant was necessary to meet the goals of the investigation? U.S. Const. amends. IV, XIV; N.Y. Const. art. I, § 12.” ECF No. 21-4 at 255. Therefore, Rivera did not present her Title III claim fairly to the Court of Appeals. See Jordan v. Lefevre, 206 F.3d 196, 199 (2d Cir. 2000) (“We conclude . . . that arguing one claim in [petitioner's] letter while attaching an appellate brief without explicitly alerting the state court to each claim raised does not fairly present such claims for purposes of the exhaustion requirement underlying federal habeas jurisdiction.”).
Rivera's Title III claim is unexhausted and defaulted in state court because she no longer has a venue in which to raise it. See Grey v. Hoke, 933 F.2d 117, 120-21 (2d Cir. 1991); CPL § 440.10(2)(c). A procedural default such a failure to exhaust will “bar federal habeas review of the federal claim, unless the . . . petitioner can 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.'” Coleman v. Thompson, 501 U.S. 722, 749-50 (1991). Here, Rivera has not argued cause for the default or shown prejudice attributable thereto. Rivera has also failed to demonstrate that declining to consider the Title III claim will result in a “fundamental miscarriage of justice.”
Second, Rivera's claim that the wiretap evidence was admitted in violation of Title III should, in any case, be denied on the merits. In order for a federal court to review a violation of a federal statute on a habeas claim, a petitioner must establish that the “claimed error of law was ‘a fundamental defect which inherently results in a complete miscarriage of justice,'” and that the error “‘present(s) exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.'” Davis v. United States, 417 U.S. 333, 346 (1974) (quoting Hill v. United States, 368 U.S. 424, 428 (1979)). A violation of Title III is a federal claim subject to this standard. See Gjelaj v. Ercole, 09-cv-3126 (KMW)(PED), 2012 WL 4450983, at *15 (S.D.N.Y. Feb. 9, 2012), report and rec. adopted, 2012 WL 4435299 (S.D.N.Y. Sept. 26, 2012); Lord v. Lambert, 347 F.3d 1091, 1094 (9th Cir. 2003); accord Reed v. Farley, 512 U.S. 339, 353-54 (1994).
Title III requires that wiretap applications include a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous. See United States v. Lambus, 897 F.3d 368, 394 (2d Cir. 2018) (citing 18 U.S.C. §§2518(1)(c)). The requirement that there be disclosure as to the use, success, and potential success of other investigative techniques, however, does not mean “that any particular investigative procedures [must] be exhausted before a wiretap may be authorized.” United States v. Miller, 116 F.3d 641, 663 (2d Cir. 1997).
Rivera has not established that the police violated Title III by failing to establish that the wiretaps were appropriate under the statute, or that any such violation caused a “complete miscarriage of justice.” The warrant applications relied on two thorough affidavits: one from Detective Salvador, describing in detail the investigative methods that the police had already undertaken and the reasons the wiretaps were necessary (see ECF No. 21-2 at 118-57), and one from Detective McSherry, describing how the investigation could make only limited use of confidential informants because they feared retribution by Rivera, based on prior instances in which she had used force or threats of force to control the alleged drug organization (see Id. at 159-63). There is no basis to conclude that the Appellate Division's rejection of Rivera's claim was either contrary to, or an unreasonable application of, federal law. Rivera has also failed to suggest that the procedural violations she alleges-that the wiretaps were impermissibly authorized-“undermined the reliability of her conviction.” See Gjelaj, 2012 WL 4450983, at *16. Rivera's wiretap claims therefore do not present “exceptional circumstances where the need for the remedy afforded by habeas corpus is apparent.” Id. at 15 (internal quotation marks omitted).
Finally, Rivera claims that the wiretaps were “illegally obtained being that the affidavits in support thereof relied upon charges that had terminated in her favor pursuant to CPL § 160.50.” Rivera argues her trial was fundamentally unfair in violation of the 6th and 14thAmendments as a result. See Pet. at ¶ 12(D); Pet. Mem. at 48. This claim should also be denied. Even if the trial court's ruling violated CPL § 160.50, Rivera's claim would not warrant federal habeas review because that statute “does not implicate a defendant's federal or state constitutional rights.” Afrika, 2011 WL 582618, at *8; see also Hodge, 2014 WL 2453333, at *11 n.4. Accordingly, I conclude that Rivera is not entitled to habeas relief on this claim.
B. Denial of Rivera's Severance Motions
Rivera claims she raised a Pro se pretrial motion under CPL § 200.40 to sever her trial from that of co-defendant Garay, despite the “antagonism in their defenses,” which counsel raised again upon Garay's summation. Rivera argues that the trial court violated her 6thAmendment right to a fair trial by declining to address or denying these motions, respectively. See Pet. Mem. at 2-6. The Appellate Division, considering the severance motion Rivera raised during summations, denied the claim as untimely because Rivera did not raise the motion to sever until after Garay's summation. Rivera, 128 A.D.3d at 474. In the alternative, the Appellate Division denied the claim on the merits. Id.
1. Rivera's Pretrial Pro Se Motion
Rivera filed a Pro se motion dated August 29, 2008, requesting severance under CPL § 200.40(1) “to avoid a lengthy adjournment process - in that [Rivera's] co-defendants could incriminate [Rivera] further.” ECF No. 21-3 at 113. Respondent represents that it found no record of the trial court deciding Rivera's Pro se motion. Resp. Mem. at 42. In an omnibus motion prepared by counsel and filed May 13, 2009, Rivera moved to sever her trial on the ground that she might be prejudiced if out-of-court statements by unnamed co-defendants were introduced at trial. ECF No. 21-2 at 109-10. On August 5, 2009, the court denied the omnibus motion, finding that the only statements to the police that the People intended to introduce at trial did not implicate Rivera. Id. at 87.
I find that the trial court implicitly denied the Pro se motion when it ruled on Rivera's omnibus motion. See People v. Boodrow, 42 A.D.3d 582, 583 (3d Dep't 2007) (finding a trial court “implicitly” ruled on a defendant's standalone motion to dismiss by ruling on the motion only when made as part of an omnibus motion). Regardless, Rivera cannot establish that she was prejudiced by the trial court's alleged failure to address the motion. No statements of the type referenced by Rivera's Petition-out-of-court statements by unnamed co-defendants that implicated Rivera-were introduced at trial. Accordingly, I recommend the Court deny Rivera's claim that the trial court improperly declined to rule on her Pro se pretrial severance motion.
2. Rivera's Post-Summation Motion
Throughout the course of the trial, Rivera's counsel raised multiple suggestions that a severance motion may have been appropriate. See ECF No. 21-7 at 121-25, 131-35, 376. Rivera did not formally move for severance during the trial until after Garay's summation, however. During Garay's summation, counsel directed the jurors to focus on the “lack of evidence” implicating Garay, which was “so much more powerful” than the evidence that had been presented. ECF 21-9 at 576. Garay's counsel argued that the case was “all about” Rivera and the drug organization, with which Garay-who was merely “dragged into [the] case” because of his “association” with Rivera-had no ties. Id. Over Rivera's objection, Garay's counsel also argued on summation that other defendants answered to Rivera, who was the “boss of them.” Id. at 585. Garay's counsel pointed out, by contrast, that Rivera did not “boss” or order Garay around. Id. at 585-86, 589. Additionally, Garay's counsel drew the jury's attention to the lack of surveillance evidence against Garay, who, in contrast to his co-defendants, appeared in no “surveillance video committing crimes,” and could be heard in only five out of thousands of recorded conversations. Id. at 582-83.
After Garay's summation, Rivera moved for severance because Garay's “entire summation” was that Rivera was “guilty” whereas Garay was not. Id. at 617-18. The trial court responded that the severance application was “[w]ay to[o] late now.” Id. at 617. Rivera's counsel argued that Garay's summation prompted the motion, id. at 617-19, but the trial court nonetheless denied it, finding that Garay's “counsel's arguments were basically this is what the People are going to allege is proof against” Rivera, which differed from the proof against Garay. Id. at 619. The trial court also denied Rivera's request for a mistrial based on its denial of the severance motion. ECF No. 21-9 at 733-36. The trial court held that Garay's argument to the jury-that he “had no knowledge and was not part of an organization, if [the jury] find[s] one”-was not inconsistent with Rivera's position. Id. Rivera renewed her severance motion at sentencing and the trial court denied it once again. Id. at 755-57.
On direct appeal, the Appellate Division held that the trial court properly exercised its discretion in denying Rivera's end-of-trial severance motion based on allegedly antagonistic defenses. First, the Appellate Division held that the motion was untimely, and Rivera “failed to show good cause for her failure to make a timely motion, or good cause for the trial court to nevertheless entertain the motion in the exercise of its discretion.” Rivera, 128 A.D.3d at 474. Second, the Appellate Division held that Rivera failed to demonstrate that her defense and that of Garay “had become so antagonistic as to require separate trials,” and that “the references to [Rivera] in [Garay's] summation were not so prejudicial as to deny [Rivera] a fair trial, and any error in denying the severance motion was harmless.” Id. (citing People v. Cardwell, 78 N.Y.2d 996 (1991); People v. Mahboubian, 74 N.Y.2d 174, 183 (1989)).
Federal habeas review of a state conviction is prohibited if a state court judgment is based on an “adequate and independent state ground,” such as a state procedural bar rule governing the timeliness of motions. Chappero v. West, 04-cv-8018 (KMW)(DCF), 2009 WL 2058534, at *2 (S.D.N.Y. July 15, 2009). A federal court will therefore refrain from reviewing the judgment unless the prisoner can demonstrate (1) cause for her default and actual prejudice as a result of the alleged violation of federal law, or (2) that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750. Federal habeas review is foreclosed “even where . . . the state court, although expressly relying on procedural default, has ruled in the alternative on the merits of the federal claim.” Matthews v. Artuz, 97-cv-3334 (DC), 1999 WL 349694, at *3 (S.D.N.Y. May 27, 1999) (declining to review habeas claim where severance motion was raised on direct appeal and disposed of on the ground of untimeliness under CPL § 255.20(1)).
The Appellate Division rejected Rivera's motion for severance on the ground that her motion was not filed within forty-five days of arraignment, as is required under state procedural rules, and that Rivera did not establish good cause for the belated motion raised formally only at the close of Garay's summation. Rivera, 128 A.D.3d at 474. When the Appellate Division denied the untimely motion, it decided the motion on an adequate and independent state law ground. See Chappero, 2009 WL 2058534, at *3; Artuz, 1999 WL 349694, at *3. This claim is therefore not a proper basis for habeas relief unless Rivera can demonstrate (1) cause for the default and (2) actual prejudice suffered as a result of the alleged violation of federal law. See Coleman, 501 U.S. at 750. Here, the Appellate Division found:
[Rivera] was in a position to ascertain the codefendant's planned defense long before trial. At the very least, [Rivera] could have made the motion after hearing [Garay's] opening statement. However, she made no such motion, and merely suggested to the court that a severance might hypothetically prove to be necessary. After [Garay's] summation, [Rivera] finally moved for a severance that would have necessitated a mistrial at the end of a five-week trial. There is no merit to [the] claim that she was surprised by [Garay's] summation.Rivera, 128 A.D.3d at 474 (citation omitted). Having failed to establish cause for the default,and having made no showing of prejudice resulting therefrom, this Court cannot review the claim on a federal habeas proceeding. Accordingly, I recommend denying Rivera's claim the she was deprived of a fair trial as the result of the denial of her severance motion.
During opening statements, Garay's counsel told the jury that Garay belonged to a group of people who had “absolutely nothing to do with” the alleged drug organization at the heart of the People's case against Rivera. ECF No. 21-7 at 61-64.
Rivera also suggests that her trial counsel's ineffectiveness was the “cause” for her failure to timely file a severance motion. See ECF No. 2 at 4. This claim is addressed in Section H, infra, and should be denied for reasons explained therein.
In the alternative, Rivera's claims stemming from the denial of any motions for severance should be denied on the merits. Under New York law, severance of criminal trials is required “where the core of each defense is in irreconcilable conflict with the other and where there is a significant danger, as both defenses are portrayed to the trial court, that the conflict alone would lead the jury to infer defendant's guilt.” People v. Cardwell, 78 N.Y.2d 996, 997-98 (1991) (internal quotation marks omitted). Severance is compelled only when defenses are “not only antagonistic but also mutually exclusive and irreconcilable,” such that “[t]he jury could not have credited both defenses.” People v. Mahboubian, 74 N.Y.2d 174, 185 (1989)). Otherwise, an application for severance is left to the discretion of the trial judge. See CPL § 200.40(1).
Rivera argues that the trial court violated her rights under the 6th and 14th Amendments by denying her post-summation motion to sever her case from Garay's, despite the “antagonism in their defenses.” The Appellate Division denied the claim on the merits in the alternative, holding that Rivera “failed to demonstrate that her defense and that of [Garay] had become so antagonistic as to require separate trials,” and that “the references to [Rivera] in [Garay's] summation were not so prejudicial as to deny [Rivera] a fair trial, and any error in denying the severance motion was harmless.” Rivera, 128 A.D.3d at 474 (citations omitted). I agree with the Appellate Division's assessment.
Rivera and Garay's defenses were not fundamentally “irreconcilable” or “mutually exclusive.” On summation, Rivera argued that the People had failed to establish the existence of a drug-dealing conspiracy. For his part, Garay argued that even if the People had proven that such a conspiracy existed, he was not part of it. The jury could have “credited both defenses,” for example, by finding that a drug-dealing conspiracy did not exist-thereby acquitting both defendants as to that count. See Mahboubian, 74 N.Y.2d at 184. To the extent that Garay's summation referenced the People's evidence, and accepted for the sake of argument that Rivera was the boss of a drug-dealing organization, such comments did not render the two defenses mutually exclusive. Given that Rivera's severance claim should be denied on the merits under New York law, her habeas claim must also fail, as Rivera has not established that the Appellate Division's decision unreasonably applied clearly established Supreme Court law. See Zarvela v. Artuz, 364 F.3d 415, 417 (2d Cir. 2004) (“When a claim is adjudicated on the merits by the state courts, a federal court's habeas review considers whether the state court ruling ‘was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.'” (quoting 28 U.S.C. § 2254(d)(1)).
Some courts in this Circuit have also held that claims based on the denial of severance motions are subject to the more demanding “fundamental fairness” standard upon federal habeas review. Under that standard, a petitioner seeking habeas relief based upon the denial of a severance motion must, “at a minimum, demonstrate ‘that [she] was so severely prejudiced by the joinder as to have been denied a fair trial.'” Anderson v. Lempke, 11-cv-8240 (NSR)(PED), 2015 WL 4104605, at *13 (S.D.N.Y. July 6, 2015) (quoting Grant v. Hoke, 921 F.2d 28, 31 (2d Cir. 1990)); see also Shodunke v. County of Queens, 07-cv-329 (RJD), 2009 WL 5172895, at *2 (E.D.N.Y. Dec. 30, 2009). Under either the fundamental fairness standard or the generally applicable standard of the AEDPA, I find Rivera's claim should be denied.
Accordingly, I recommend the Court deny Rivera's claims based on any denials of her motions for severance.
C. Alleged Brady Violation
Construing Rivera's Pro se Petition to raise the strongest claims it suggests, I interpret it to allege that the People violated their discovery obligations under Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose the substance of Garay's “proffer session” and by failing to disclose a typographical error in Rivera's criminal complaint. See Pet. Mem. at 36-38, 44, 53-54.
First, the claim is unexhausted but procedurally defaulted because Rivera did not raise it in her leave application to the Court of Appeals. Although Rivera argued in her leave application that the People had withheld certain documents, she omitted any reference to Garay's proffer statement. Instead, Rivera framed the question presented for appeal as: “Whether Ms. Rivera [was] prejudiced by the late disclosure of vital police tactical reports and evidence vouchers? U.S. Const. amends. V, XIV; N.Y. Const. art. I, § 6.” ECF No. 21-4 at 255. Arguing one claim in a leave application letter while attaching an appellate brief without explicitly alerting the New York Court of Appeals to each claim raised does not necessarily fairly present such claims. See, e.g., Jordan v. Lefevre, 206 F.3d 196, 198-99 (2d Cir. 2000). However, even if the Court were to deem the Petition exhausted, the claim should be denied on the merits.
A habeas petitioner has the burden of establishing that the state appellate court's denial of a Brady claim was contrary to, or an unreasonable application of, clearly established Supreme Court law. See 28 U.S.C. § 2254(d)(1). To establish a violation under Brady, a defendant must show that: (1) the evidence at issue is favorable to her because it is either exculpatory or impeaching; (2) the government suppressed that evidence; and (3) the defendant was thereby prejudiced. See Strickler v. Greene, 527 U.S. 263, 281-82 (1999). In accordance with the first prong, a habeas claim alleging a Brady violation should be denied on the merits where a petitioner is unable to demonstrate the exculpatory nature of the evidence at issue. See Jones v. Conway, 442 F.Supp.2d 113, 128 (S.D.N.Y. 2006). Additionally, under the third prong of a Brady analysis, a petitioner must show that the undisclosed evidence was material and favorable to her. Boyette v. Lefevre, 246 F.3d 76, 90 (2d Cir. 2001) (citing United States v. Bagley, 473 U.S. 667, 682 (1985)). “Undisclosed ‘evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'” United States v. Payne, 63 F.3d 1200, 1209 (2d Cir. 1995) (quoting Bagley, 473 U.S. at 682)).
1. The Substance of Garay's Proffer Session
Rivera argues that if the prosecutor had turned over the contents of Garay's proffer statement, she could have submitted it to the court, which then “would have realized that the defenses were, in fact, antagonistic requiring severance pursuant to CPL §200.40.” Pet. Mem. at 53-54. On direct appeal, Rivera raised the claim and the Appellate Division denied it, finding that Rivera “[had] not established that she was prejudiced by any late disclosure of discovery material.” Rivera, 128 A.D.3d at 474.
At trial, the prosecutor complained that Garay's counsel exploited the cross-examination of Detective Salvador by eliciting testimony implying that Garay had no connection to certain individuals, when in fact, Detective Salvador had been instructed not to testify to the contents of Garay's proffer statement, which would not be admitted. See ECF No. 21-7 at 372. The prosecutor argued that in doing, Garay had opened the door to admission of his proffer statement. Id. The trial court stated that while it assumed that Garay's proffer agreement said that “nothing [in it] [could] be used against” Garay, it would be admissible if Garay's counsel opened the door by-for example-asking questions about the contents of the proffer statement and then withdrawing them. Id. at 375-76. At the time, Rivera's counsel stated that if “any part of [Garay's] proffer” were admitted into evidence, severance would be warranted; however, Rivera's counsel did not indicate it had been previously unaware of the proffer or that the proffer had been improperly withheld. Id. at 372-76.
As to the first Brady prong, Rivera has not established that Garay's proffer statement was favorable to her, let alone how Garay's proffer statement could have been “exculpatory or impeaching.” Further, there is nothing in the record to support Rivera's assessment that disclosure of the Garay's proffer statement would have exonerated her. At trial, the court noted that, at most, what would have “come out” on the two questions previously flagged by the prosecutor was that “this defendant [Garay] knew other defendants.” Id. at 376. This statement does not establish that the proffer contained evidence exculpating Rivera. Rivera similarly has not established the third prong: prejudice. In order to establish prejudice, Rivera needed to show that the undisclosed proffer statement was material-i.e., that had the prosecutor disclosed the proffer statement, the result of the proceeding would have been different.
2. Error in the Criminal Complaint
Rivera alleges that the criminal complaint, prepared based on information provided by Detective Salvador, erroneously described her Wallace Avenue apartment as unit 1M rather than 1L. Rivera contends that the People violated Brady by failing to alert Rivera to this mistake prior to trial. First, the claim is not cognizable. “Habeas review is not available for purported defects in a felony complaint that have been rendered harmless by a sound superseding indictment and conviction.” Thompson v. Artus, 10-cv-1443, 2013 WL 6408354, at *12 (E.D.N.Y. Dec. 6, 2013). Second, this claim is without merit. Rivera does not allege that the complaint was not timely produced. Moreover, there is no obligation under Brady to highlight information contained in documents produced to the defendant. Finally, evidence is not “suppressed” under Brady if a defendant “either knew, or should have known, of the essential facts permitting him to take advantage of any exculpatory evidence.” DiSimone v. Phillips, 461 F.3d 181, 197 (2d Cir. 2006) (internal quotation marks omitted). Because Rivera knew the unit number of the Apartment, the prosecutor could not have suppressed evidence of the same. Accordingly, I recommend the Court deny this claim.
D. Admission of Evidence Allegedly Violating Rivera's Confrontation Clause Rights
Rivera asserts, as she did in her CPL § 440.10 motion, that her “right to confrontation was violated by way of inadmissible hearsay on numerous occasions.” Pet. ¶ 12(B); Pet. Mem. at 6-19, 34-36. As in Rivera's 440 Motion, the claim should be denied.
First, to the extent Rivera's claim rests on the inadmissibility of evidence as hearsay, the claim is barred from habeas review. The hearsay rule is a product solely of state law as applied in state court proceedings, and habeas review is limited to claims of federal law. 28 U.S.C. § 2254(a); see also Parson v. People of the State of New York, 13-cv-5745 (WHP)(MHD), 2014 WL 11201527, at *6 (S.D.N.Y. Dec. 30, 2014), report and rec. adopted, 2016 WL 1248962 (S.D.N.Y. Mar. 24, 2016). Even if the statements were improperly admitted, “[e]rroneous evidentiary rulings do not automatically rise to the level of constitutional error sufficient to warrant issuance of a writ of habeas corpus.” Rosario v. Kuhlman, 839 F.2d 918, 925 (2d Cir. 1988) (citing Taylor v. Curry, 708 F.2d 886, 891 (2d Cir. 1983)). Rather, courts will issue a writ of habeas corpus only where “[t]he petitioner can show that the error deprived [her] of a fundamentally fair trial.” Id. Rivera has not met that burden here.
Second, the claim is barred from habeas review because the 440 Court found that the claim was procedurally barred, as the purported errors were contained in the trial record but Rivera did not raise the claim on direct appeal as required. See ECF No. 21-5 at 150. This constitutes an adequate and independent state bar to habeas review. See Sweet v. Bennett, 353 F.3d 135, 141 (2d Cir. 2003). Habeas review is therefore inappropriate because Rivera has not demonstrated cause for the default, prejudice attributable thereto, or a fundamental miscarriage of justice. Coleman, 501 U.S. at 749-50. While Rivera argued in her 440 leave application that her trial counsel's failure to object was “cause” to excuse her default on direct appeal, Rivera could still have raised them on her (counseled) direct appeal by urging the Appellate Division to exercise its discretion to address the claims on the merits in the interest of justice. See CPL § 470.15(6)(a). Furthermore, as explained below, Rivera's ineffective counsel claims are meritless, and a meritless claim of ineffective counsel claim cannot serve as the “cause” to excuse a procedural default. See McCleskey v. Zant, 499 U.S. 467, 494 (1991). Finally, as described below, the claim should be rejected on its merits, meaning that Rivera cannot show “prejudice” permitting habeas review.
Third, the claim should be denied on the merits. The Confrontation Clause provides that the rights of an accused include the right “to be confronted with the witnesses against him.” U.S. Const. amend. VI. The Clause reflects a preference for face-to-face confrontation at trial, see Maryland v. Craig, 497 U.S. 836, 843-47 (1990), and was designed to guard against the admission of “testimonial statements against the accused” that do not give the accused an opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 56 (2004). In particular, the Confrontation Clause bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination.” Id. at 53-54. The Confrontation Clause's prohibition consists of two elements. First, it bars the use at trial only of “testimonial statements” by out-ofcourt declarants, a term that is limited to statements made by declarants with “an[ ] awareness or expectation that their statements might later be used at trial.” United States v. Goldstein, 442 F.3d 777, 785 (2d. Cir. 2006). Second, the Confrontation Clause “does not bar the use of testimonial statements for the purposes other than establishing the truth of the matter asserted.” Crawford, 541 U.S. at 59 n.9 (2004) (citing Tennessee v. Street, 471 U.S. 409, (1985)).
Rivera claims that Undercover 0043 (“UC 43”) and Detective Salvador's testimony about observations and conversations during the investigation, and the People's introduction of transcripts of wiretaps as well as narcotics purchased during the investigation, violated the Confrontation Clause because Rivera did not have the opportunity to cross-examine certain individuals. See Pet. Mem. at 6-19, 34-36. The Confrontation Clause, however, only bars the use at trial of “testimonial statements” by out-of-court declarants, meaning “a declarant's knowing responses to structured questioning in an investigative environment or a courtroom setting where the declarant would reasonably expect that his or her responses might be used in future judicial proceedings.” United States v. Saget, 377 F.3d 223, 228 (2d Cir. 2004). The determinative factor for whether a declarant's statements are “testimonial statements” for purposes of the Confrontation Clause is the declarant's awareness or expectation that his or her statements may later be used at a trial; therefore, there is no Confrontation Clause violation when a defendant cannot cross-examine a declarant whose statements were unknowingly made to an undercover informant or secretly captured by a wiretap. See id. at 229 (“[A] declarant's statements to a confidential informant, whose true status is unknown to the declarant, do not constitute testimony within the meaning of Crawford . . ..”); United States v. Farhane, 634 F.3d 127, 162-63 (2d Cir. 2011); United States v. Burden, 600 F.3d 204, 225 (2d Cir. 2010). Furthermore, statements by co-conspirators made in furtherance of a conspiracy are admissible as co-conspirator declarations and do not implicate the Confrontation Clause. See Crawford, 541 U.S. at 56 (“statements [made] in furtherance of a conspiracy” are “by their nature . . . not testimonial,” and thus do not implicate the Confrontation Clause). Therefore, the Court should deny Rivera's claims about Confrontation Clause violations to the extent they contest the introduction of wiretapped recordings of statements made by Rivera or her co-defendants, or testimony by UC 43 regarding conversations with Rivera or her co-defendants. Because physical evidence such as narcotics purchased by an undercover officer is not a “declaration” subject to procedural limitations imposed by the Confrontation Clause, Rivera's claim as to the admission of that evidence should also be denied on the merits.
Rivera also claims that the People violated the Confrontation Clause by eliciting Detective Salvador's testimony that he observed Rivera and Rivera's co-defendant, Mario Bracero, shopping (Pet. Mem. at 8-10); his testimony that the undercover officer showed Salvador narcotics (without testifying about what the undercover said) (Pet. Mem. at 10- 12); his testimony that he saw a woman give Bracero what appeared to be narcotics (Pet. Mem. at 11); and his testimony describing a particular photograph (Pet. Mem. at 22-23). The Confrontation Clause only applies to out-of-court “statements,” not to trial testimony describing out-of-court conduct not intended as an assertion. See Fed.R.Evid. 801(a) (“‘Statement' means a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.”). Therefore, Rivera's Confrontation Clause claims challenging the admission of this various evidence should be denied.
Finally, Rivera claims violations of the Confrontation Clause where Detective Salvador refreshed his recollection of the arrests based on police reports (Pet. Mem. at 45) and where he testified that Detective McLoughlin informed him of Garay's location just before the arrest (Pet. Mem. at 16-17). The Confrontation Clause “does not bar the use of testimonial statements for the purposes other than establishing the truth of the matter asserted.” Crawford, 541 U.S. at 59 n.9. There is no violation where the testimony simply completes a narrative or is offered to explain a police officer's actions. See, e.g., Burgess v. Sheahan, 16-cv-1461 (AJN), 2018 WL 2186409, at *3 (S.D.N.Y. May 11, 2018). Therefore, Rivera's claim as to these alleged Confrontation Clause violations should be denied because the challenged evidence merely explained Detective Salvador's actions.
E. Juror Replacement
Next, Rivera asserts, as she did in her CPL § 440.10 motion, that the trial court violated her right to the jury of her choice by using an alternate juror after the original juror called in sick. Pet. Mem. at 45-46. The claim should be denied because it does not present a federal claim cognizable on habeas review. See Forino v. Lee, 10-cv-5980 (MKB), 2016 WL 7350583, at *9 (E.D.N.Y. Dec. 19, 2016) (“Courts in this Circuit have held that a trial court's dismissal of an unavailable juror involves only an application of state law and alone does not present a federal constitutional question cognizable on habeas review.”); accord, e.g., Green v. Kirkpatrick, 16-cv-1407 (FJS), 2017 WL 4174794, at *3 (N.D.N.Y. Sept. 19, 2017).
In the alternative, the claim should be denied as procedurally barred. The 440 Court found that the claim was barred under CPL § 440.10(2)(c) because it was record-based and “could have been raised on appeal.” ECF No. 21-5 at 150. CPL § 440.10(2)(c) constitutes an adequate and independent state ground barring habeas review. See, e.g., Sweet, 353 F.3d at 141. Rivera has not alleged either cause to excuse her default or prejudice arising therefrom. Coleman, 501 U.S. at 749-50. The claim should accordingly be barred from habeas review on adequate and independent state law grounds.
F. Admission of Prior-Crimes Evidence
Rivera argues that “[t]he trial court abused its discretion by allowing certain portions of testimony, which had been objected to, suggesting that Petitioner had a prior criminal history, in violation of CPL §160.50.” Pet. Mem. at 34-35. On direct appeal, Rivera raised a nearly identical claim, arguing that the trial court violated her Fifth and Fourteenth Amendment rights by admitting a recorded conversation in which Rivera used terms such as “get it popping” and “earning your stripes,” and by allowing the People's witnesses to explain to the jury the meanings of those terms. See ECF No. 21-4 at 31-33. Specifically, the People introduced recorded conversations from a different 2007 federal investigation in which Rivera could be heard making statements about another individual, including references to “cutting throat,” Rivera's “stripes” or “earning your stripes,” and Rivera's readiness to “get it popping.” See, e.g., ECF No. 21-4 at 175. Two witnesses for the People also essentially explained that “cutting throat” referred to stealing customers, earning your stripes referred to an individual's reputation, and “get it popping” meant to shoot someone or something. Id. at 176-77. Given this, Rivera argues that, although she was not charged with a violent crime, the prosecution had attempted “to portray her as [a] violent individual with a criminal predisposition.” Id. at 32-33.
The Appellate Division denied the claim, finding that “[t]he [trial] court properly exercised its discretion in receiving the various items of evidence challenged by [Rivera], and none of this evidence deprived her of a fair trial.” Rivera, 128 A.D.3d at 474. Rivera also asserted the claim in her 440 Motion, which the 440 Court denied, finding the claim was procedurally barred because it had already been denied on direct appeal and that the testimony had not “deprived [petitioner] of a fair trial.” ECF No. 21-5 at 150.
First, insofar as Rivera claims a violation of CPL § 160.50 (that the People referenced criminal proceedings that had terminated in Rivera's favor), such claim is non-cognizable on the ground that it is based solely on state law. See, e.g., Hodge v. Griffin, 13-cv-1977, 2014 WL 2453333 (LTS) (JLC), at *11 n.4 (S.D.N.Y. June 2, 2014); Afrika v. Conway, 06-CV-0280T (MAT), 2011 WL 582618, at *7-8 (W.D.N.Y. Feb. 9, 2011). Similarly, Rivera's claim, to the extent it challenges the admission, under state evidentiary rules, of testimony regarding uncharged “bad acts,” is non-cognizable because it does not implicate clearly established federal law. See Arena v. Kaplan, 952 F.Supp.2d 468, 483 (E.D.N.Y. 2013).
Second, the claim should be denied because Rivera cannot show that the Appellate Division's decision was contrary to, or an unreasonable application of, “clearly established Federal law[] as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). The Supreme Court has expressly declined to decide whether admitting evidence of uncharged crimes violates a defendant's due process rights. See Estelle v. McGuire, 502 U.S. 62, 75 n.5 (1991). The Court therefore cannot grant Rivera relief on this claim. See Vargas v. Walsh, 10-cv-7604 (DAB)(GWG), 2011 WL 1900115, at *5 (S.D.N.Y. Apr. 14, 2011) (“Courts have routinely held that federal habeas corpus relief is unavailable to challenge the admission of propensity or ‘prior bad acts' evidence because there is no clearly established Supreme Court law barring the practice. For this reason alone, the petition fails.”), report and rec. adopted, Vargas v. Walsh, 2011 WL 1900148 (S.D.N.Y. May 18, 2011). Accordingly, the Court should deny Rivera's claim regarding the admission of prior bad acts.
G. Admission of Evidence from Unsworn Witnesses
Rivera also claims several constitutional violations based on the trial court's admission of various evidence offered by the People. Specifically, she challenges the: (1) use of unsworn witnesses, such as the presiding trial judge and the prosecutor (Pet. Mem. at 17-19); (2) “prejudicial testimony which was contrary to the presumption of innocence” (Pet. at ¶ 12(C); Pet. Mem. at 6-7, 10-12, 19-21); and (3) the “improper submission of prejudicial evidence,” in the form of various trial exhibits (Pet. Mem. at 22-27). These claims should be denied.
First, the claims should be denied as procedurally barred on adequate and independent state law grounds. See Carvajal v. Artus, 633 F.3d 95, 107 n.6 (2d Cir. 2011). Rivera raised these claims in her 440 Motion, which the 440 Court denied as procedurally barred because the claimed errors appeared on the record but were not raised on direct appeal. See ECF No. 21-5 at 150. There is no dispute that the claimed errors are record-based or that CPL § 440.10(2)(c) constitutes an adequate and independent state ground barring habeas review. See, e.g., Sweet, 353 F.3d at 141.
A procedural default will “bar federal habeas review of the federal claim, unless the . . . petitioner can 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.'” Coleman, 501 U.S. at 749-50. The only “cause” Rivera asserts for her procedural default is her trial counsel's ineffectiveness for, among other things, failing to object to certain errors complained of here. Rivera's claim of ineffective assistance of counsel is meritless (as described in Section H, infra), and therefore cannot serve as the cause to excuse a procedural default. See McClesky v. Zant, 499 U.S. 467, 494 (1991). Absent a demonstration of cause, the Court need not evaluate the “prejudice attributable thereto” or whether “failure to consider the federal claim will result in a ‘fundamental miscarriage of justice'”. Coleman, 501 U.S. at 749-50. In any event, as explained below, Rivera's claims that the trial court violated her right to a fair trial by admitting various evidence is meritless under both state and federal law such that they are barred from habeas review on adequate and independent state law grounds.
Alternatively, the claims should be denied on the merits. I address Rivera's three claims in turn.
First, Rivera describes instances in which the prosecutor or the court asked prosecution witnesses leading questions or questions that purportedly mischaracterized prior testimony and argues that this use of the prosecutor as “an unsworn witness” amounts to a violation of her right to confront witnesses against her. See Pet. Mem. at 17-19. In particular, Rivera argues that the prosecutor acted as a witness on two occasions: (1) when she framed a question by, in part, summarizing Detective Salvador's prior testimony; and (2) when, after Detective Salvador testified that “11006 calls in a period of 12 days” were made on target cell phone 8, the prosecutor asked, "You mean 1,106 calls?”; and (3) when, in response to defense counsel's objection, the trial judge rephrased a direct examination question of Detective Salvador. See Pet. Mem. at 18.
“An attorney acts as an unsworn witness when” she has “first-hand knowledge of the events presented at trial ....Moreover, [her] role as advocate may give [her] client an unfair advantage, because the attorney can subtly impart to the jury [her] first-hand knowledge of the events without having to swear an oath or be subject to cross examination.” United States v. Locascio, 6 F.3d 924, 933 (2d Cir. 1993).
Here, however, the jury was not led to believe that, based on their questions to Detective Salvador, the prosecutor or the Court had “first-hand knowledge” of the facts. The questions themselves did not suggest any facts not otherwise in evidence. As such, I do not find the trial court inappropriately admitted evidence in violation of the rule prohibiting the use of unsworn witnesses. Furthermore, Rivera offers no basis upon which I conclude that these questions affected the verdict of the lengthy trial. As the 440 Court held, “none of the testimony alleged to be prejudicial deprived the defendant of a fair trial.” ECF No. 21-5 at 150. Therefore, I find that the evidentiary rulings singled out by Rivera do not merit habeas relief, as they were not “so extremely unfair” that they “violate[d] fundamental conceptions of justice.” Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (quoting Dowling v. United States, 493 U.S. 342, 352 (1990)); accord McKinnon v. Superintendent, Great Meadow Corr. Fac., 422 Fed.Appx. 69, 73 (2d Cir. 2011).
Second, Rivera argues, as in her CPL § 440.10 motion, that her “right to a fair trial was violated by way of prejudicial testimony which was contrary to the presumption of innocence.” Pet. ¶ 12(C); Pet. Mem. at 6-7, 10-12, 19-21. The prejudicial testimony in question refers to: (1) Detective Salvador's testimony that the narcotics allegedly purchased from Rivera was cocaine; and (2) that the People's witnesses referred to Rivera as the “boss” of an organization it had not established existed.
When evidence is apparently irrelevant or lacks a foundation, the trial court has discretion to admit the evidence conditionally upon counsel's representation that a necessary connection to other evidence in the record will be made. See United States v. Coplan, 703 F.3d 46, 81 (2d Cir. 2012). If the connection is not made, the opponent may later move to strike the evidence. Id. Here, Rivera's counsel objected to testimony referring to Rivera's “organization,” arguing that the testimony improperly assumed facts not in evidence. Justice Carro overruled the objection, stating that he assumed that the prosecutor would “connect it up,” and ruling that, “if there is never any proof of that, I will strike it from the record.” ECF No. 21-7 at 129-30. There is no dispute that the People eventually established a prima facie case that the co-conspirators were part of a drug-dealing organization, and that the drugs found in the Apartment and purchased during the investigation were cocaine, as the jury convicted Rivera of the conspiracy and drug counts. Moreover, the Appellate Court affirmed, finding that “[t]he evidence, including intercepted communications and circumstantial proof, amply demonstrate[d] that [Rivera], the leader of a large-scale drug trafficking operation, personally acquired a kilogram of cocaine.” Rivera, 128 A.D.3d at 473. Therefore, Rivera has not established that the questions were improper or prejudicial.
Finally, Rivera asserts, as she did in her CPL § 440.10 motion, that her right to a fair trial was violated by the introduction of certain “prejudicial” exhibits. See Pet. Mem. at 22-27. In support of this claim, Rivera asserts a variety of grounds including that the exhibits lacked the proper foundation, were irrelevant, were introduced for improper purposes, or consisted of demonstrative exhibits that mischaracterized the record. These are, however, all state-law evidentiary issues that are not properly reviewed by a federal habeas proceeding. See Estelle, 502 U.S. at 67-681. To the extent that petitioner asserts that the exhibits somehow violated her right to confront witnesses, those claims are addressed in Section D, supra. In any case, Rivera has also not established that the admission of any of the exhibits was “so extremely unfair” that it “violate[d] fundamental conceptions of justice.” Dunnigan, 137 F.3d at 125. This claim should therefore be denied in its entirety. See Ortiz, 2013 WL 5775695, at *4 n.1.
H. Ineffective Assistance of Counsel
Rivera claims that her trial counsel was ineffective for numerous reasons. See Pet. at ¶ 12(A); Pet. Mem. at 2, 4-5, 11-13, 25, 27-35. The 440 Court denied Rivera's ineffectiveness of counsel claim in its entirety, finding that Rivera's “experienced” attorney “ably” provided her meaningful representation at trial. ECF No. 21-5 at 150. The 440 Court's decision was not an unreasonable application of clearly established Supreme Court law. Rivera's claim for ineffective assistance of counsel should therefore be denied.
To establish a federal claim of ineffective assistance of trial counsel, a petitioner must demonstrate that counsel's representation fell below an objective standard of reasonableness, and that 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, 694 (1984). The first prong of the Strickland test “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id. at 687. Under the second prong of the test, the petitioner must show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. See also Gueits v. Kirkpatrick, 612 F.3d 118, 122-23 (2d Cir. 2010). An ineffective assistance claim asserted in a habeas petition is analyzed under the “unreasonable application” clause of AEDPA because it is “past question that the rule set forth in Strickland qualifies as clearly established Federal law, as determined by the Supreme Court of the United States.” Lynn v. Bliden, 443 F.3d 238, 247 (2d Cir. 2006), as amended (May 19, 2006). A habeas petitioner asserting ineffective assistance of counsel must therefore show both that counsel's performance was unreasonable under the two-pronged Strickland test and that the state court's decision to the contrary was unreasonable. 28 U.S.C. § 2254(d)(1); Knowles v. Mirzayance, 556 U.S. 111, 123, 129 (2009).
Rivera bases her ineffective assistance of counsel claim on several alleged faults of her trial lawyer, Robert Jaffe. I address the two most substantial claims of counsel's alleged ineffectiveness individually and then proceed to analyze the remainder of the various claims asserted.
1. Severance Motion
Rivera argues ineffective assistance of counsel based on counsel's failure to “adopt” Rivera's Pro se pretrial severance motion and for failing to request a severance “until the bitter end of summation.” See Pet. at ¶ 12(A); Pet. Mem. at 2-6, 28. However, Rivera's counsel asserted substantially the same severance claim in the omnibus pretrial motion, which, as explained above, the trial court denied. Compare ECF No. 21-3 at 112-13 with ECF No. 21-2 at 109-10; see ECF No. 21-2 at 87. Furthermore, the Appellate Division denied Rivera's severance claim on the merits. See Rivera, 128 A.D.3d at 474 (Rivera “failed to demonstrate that her defense and that of her codefendant had become so antagonistic as to require separate trials”). Accordingly, the 440 Court, in ruling on Rivera's claim of ineffective assistance of counsel, explained in light of the Appellate Division's denial of the severance motion, “[i]t also follows that defense counsel's failure to adopt [Rivera's] earlier Pro se motion for severance cannot be considered ineffective.” ECF No. 21-5 at 149. Even so, because Rivera's Pro se severance motion would have had little chance of success (given the denial of the omnibus motion, asserting the same claim), “trial counsel cannot have provided ineffective assistance for failing to make such a motion.” Santana v. Capra, 284 F.Supp.3d 525, 543 (S.D.N.Y. 2018) (citing United States v. Kirsh, 54 F.3d 1062, 1071 (2d Cir. 1995)). For the same reason, Rivera cannot establish a reasonable probability that counsel's decision to assert the motion as part of the omnibus motion, as opposed to adopting the Pro se motion, affected the verdict. Accordingly, I recommend the Court deny habeas relief as to this claim.
2. Objection to Discovery Violations and Motion for Sanctions
Rivera further claims that counsel: (1) “failed, until the middle of trial, to object to the People's failure to turn over” certain police tactical reports; (2) failed to move for sanctions or to request a curative charge based on that failure; and (3) failed to preserve the discovery claim by specifically citing CPL §§ 240.20 and 240.45. See Pet. Mem. at 33-34. The Appellate Division denied the underlying discovery claim, finding that Rivera had “not established that she was prejudiced by any late disclosure of discovery material.” Rivera, 128 A.D.3d at 474. Accordingly, as the 440 Court explained, in light of the Appellate Division's decision, “[i]t therefore follows that defense counsel could not be found ineffective for failing to object to the . . . late disclosure.” See ECF No. 21-5 at 150 (citing Rivera, 128 A.D.3d at 474)). It follows that Rivera's habeas claim should be denied for the same reason. See Santana, 284 F.Supp.3d at 543 (“Trial counsel's failure to make an unmeritorious objection does not constitute defective performance.”). Similarly, a motion for sanctions against the People for failing to disclose the evidence would have failed because the underlying claim was without merit. Finally, there is no basis to Rivera's complaint that counsel failed to preserve the discovery claim for appeal because the Appellate Division did not find the claim unpreserved, and instead ruled on its merits. Rivera, 128 A.D.3d at 474. The ineffectiveness claim based on certain discovery objections and the failure to move for sanctions should therefore be denied.
3. Remaining Ineffectiveness Claims
Rivera's remaining arguments are based on counsel's purported failures to object to certain evidence. Specifically, Rivera alleges that counsel failed to object to: testimony or other evidence that purportedly violated the presumption of innocence or the Confrontation Clause, exhibits that were unauthenticated or otherwise lacked foundation, and testimony suggesting that Rivera had a criminal history. To the extent these underlying complaints are themselves meritless for reasons described elsewhere in this Report and Recommendation, counsel cannot be faulted for choosing not to object on those grounds. See, e.g., Aparicio v. Artuz, 269 F.3d 78, 99 n.10 (2d Cir. 2001). Furthermore, contrary to Rivera's claims, her trial counsel did make contemporaneous objections on several of the grounds asserted here. See, e.g., ECF No. 21- 7 at 399-401 (Rivera's objection to Salvador's testimony about wiretaps on presumably hearsay grounds); ECF No. 21-9 at 264 (Rivera's objection to phone calls between Julian Silva his associate). For these reasons, Rivera's claim of ineffective assistance of counsel should be denied.
In any case, Rivera has not established a reasonable probability that any of counsel's alleged errors affected the verdict. As the Appellate Division observed, “[t]he evidence, including intercepted communications and circumstantial proof, amply demonstrate[d] that [Rivera], the leader of a large-scale drug trafficking operation, personally acquired a kilogram of cocaine.” Rivera, 128 A.D.3d at 473. And as the 440 Court recognized, the Appellate Division expressly ruled that Rivera was not denied a fair trial by the admission of evidence Rivera deemed “prejudicial.” ECF No. 21-5 at 150. Therefore, I find that Rivera has not established either prong of the Strickland test and the 440 Court's denial of the ineffective counsel claim did not unreasonably apply the Strickland test. Accordingly, the claim should be denied.
J. Substitution-of-Counsel
Rivera also claims that the trial court improperly failed to acknowledge the ineffectiveness of counsel claim she raised during trial. This, Rivera argues, deprived her of- among other things-the opportunity to call certain witnesses, in violation of her Sixth and Fourteenth Amendment rights. Pet. Mem. at 54-57.
Whether Rivera specifically requested new counsel is not apparent, but in light of Rivera's status as a pro se litigant, I interpret the Petition to raise the argument suggested.
First, the claim should be denied as procedurally barred. The 440 Court held that the claim was procedurally barred under CPL § 440.10(2)(c) because “the . . . colloquy” in which Rivera's voiced complaints about her counsel was on the record, so the claim should have been raised on direct appeal. See ECF No. 21-5 at 151. CPL § 440.10(2)(c) constitutes an adequate and independent state law ground barring federal habeas relief. See Sweet, 353 F.3d at 141. Rivera has offered no “cause” for not raising the claim on direct appeal. See Coleman, 501 U.S. at 749-50. Moreover, as explained below, because the claim should be denied on the merits, Rivera cannot establish either prejudice or a fundamental miscarriage of justice if the Court declines to review the claim. Accordingly, the claim should be denied as procedurally barred.
The claim should also be denied on the merits. During trial, a defendant may only substitute counsel upon a showing of “unusual circumstances,” such as a complete breakdown of communication or an irreconcilable conflict. United States v. Schmidt, 105 F.3d 82, 89 (2d Cir. 1997). “Where a defendant voices a seemingly substantial complaint about counsel, the court should inquire into the reasons for dissatisfaction.” Norde v. Keane, 294 F.3d 401, 412 (2d Cir. 2002). However, while the Sixth Amendment affords a right to competent appointed counsel in criminal cases, “a trial court may require a defendant to proceed to trial with counsel not of defendant's choosing.” United States v. Oberoi, 547 F.3d 436, 458 (2d Cir. 2008) (internal citation and quotation marks omitted). If the reasons for a defendant's request to substitute counsel are known to the court, “the court may rule without more.” United States v. Simeonov, 252 F.3d 238, 241 (2d Cir. 2001) (citation and internal quotation marks omitted; emphasis omitted).
Towards the close of the five-week trial, Rivera raised numerous complaints about her representation. For example, Rivera interrupted proceedings to state that her lawyer was “refusing to help” her; “not listening” to her; not filing motions at her direction; and “not telling [her] story.” See ECF No. 21-9 at 176-80. The court excused the jury and responded that Rivera's counsel was “doing a fine job,” at which time Rivera submitted her own written motion, apparently for a change of venue. Id. at 178. The court later denied that motion as untimely. Id. at 245. Rivera also stated that the entire case against her was based in retaliation for a lawsuit she had previously won against the District Attorney. See id. at 177-78. During a break later that day, the court gave Rivera an opportunity to be heard on her substitution of counsel claims, at which time Rivera reiterated that her lawyer was “refusing to help” her, and that the case against her was nothing more than an effort by the prosecutor to “retaliate” against her. Id. at 244-47. Rivera also requested the court appoint an “independent federal prosecutor” and allow her to call additional witnesses. Id. The court advised Rivera that she could take the stand if she wished, and informed her that counsel was in the best position to determine whether to call certain witnesses. Id. at 246.
Rivera has not established, based on this record, that there was an irreconcilable difference or breakdown in communication justifying the substitution of counsel during the fifth week of trial. As the 440 Court found, the trial court's “responses to [Rivera's] complaints were proper, and [Rivera] received ‘ample opportunity' to be heard both orally and in writing.” ECF No. 21-5 at 151. The claim should be denied accordingly.
K. Excessive Sentence
Rivera argues that her aggregate sentence of 25 years' imprisonment: (1) was “unduly harsh and excessive” under state law because she had no prior felony convictions; and (2) violated the Eighth Amendment, because it “shocks the conscience.” Pet. Mem. at 57.
1. State Law Claim
In her direct appeal, Rivera did not raise an Eighth Amendment claim, but rather asserted a state law claim that the Appellate Division should exercise its discretionary power under CPL § 470.15 to reduce her sentence “in the interest of justice.” See ECF No. 21-4 at 18-24, ECF No. 21-4 at 222-25. The Appellate Division denied the claim, finding no basis to reduce Rivera's sentence. Rivera, 128 A.D.3d at 475. Even interpreting the Petition to raise the same claim, the claim should be denied as non-cognizable, as “[n]o federal constitutional issue is presented where . . . the sentence is within the range prescribed by state law.” White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992). Rivera does not claim that the sentence falls outside the range prescribed by state law. Indeed, Rivera's sentence falls within the permissible range authorized by state statute. See, e.g., N.Y. Penal Law § 70.00. Accordingly, her state-law sentencing claim is not cognizable and should be denied.
2. Eighth Amendment Claim
Rivera's Eighth Amendment claim is unexhausted but not defaulted because although she raised only a state law excessive sentence claim on direct appeal, she could still raise an Eighth Amendment claim in a 440.20 motion. See Koso v. Attorney Gen. of New York, 12-cv-1723 (JMA), 2015 WL 1286014, at *4 (E.D.N.Y. Mar. 20, 2015); cf. Thomas v. Greiner, 111 F.Supp.2d 271, 276 (S.D.N.Y. 2000) (Eighth Amendment claim for an excessive sentence was unexhausted where petitioner raised only state statutory claim on 440.10 motion because 440.20 motion was still available). However, “[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(2). Dismissal on the merits is only appropriate where the claim is “plainly meritless” or “patently frivolous.” See Williams v. Artus, 691 F.Supp.2d 515, 526 (S.D.N.Y. 2010) (“If the unexhausted claims are ‘plainly meritless,' the district court can dismiss these claims on the merits.”) (citation omitted).
Rivera contests her sentence under the Eighth Amendment's prohibition against cruel and unusual punishment, which forbids sentences that are “grossly disproportionate” to the crime. See Lockyer v. Andrade, 538 U.S. 63, 71-73 (2003). For purposes of habeas review, there is no precise definition of “gross disproportionality;” however, in non-capital cases, successful challenges to the proportionality of particular sentences are “exceedingly rare.” Id. at 73 (citation omitted). Rivera was sentenced to an aggregate sentence of 25 years for, among other things, running a large cocaine-dealing operation. Rivera has not demonstrated that this sentence is grossly disproportionate such that it is an “unreasonable application of clearly established Federal law.” White v. Woodall, 572 U.S. 415, 419 (2014). Accordingly, Rivera's claims regarding sentencing should be denied.
CONCLUSION
Because Rivera's claims do not warrant habeas relief, I recommend DENYING the Petition. I further recommend that the Court decline to issue a certificate of appealability because Rivera has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c), and appellate review is therefore not warranted. Love v. McCray, 413 F.3d 192, 195 (2d Cir. 2005).
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections shall be addressed to the Honorable Ronnie Abrams and filed with the Clerk of the Court, with courtesy copies mailed 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 Abrams. 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).