Opinion
18-cv-2849 (LJL) (VF)
12-07-2022
BRANDIN SANTIAGO, Petitioner, v. D. UHLER, Respondent.
REPORT AND RECOMMENDATION
VALERIE FIGUEREDO, UNITED STATES MAGISTRATE JUDGE
TO: THE HONORABLE LEWIS J. LIMAN, United States District Judge
On July 27, 2011, Petitioner Brandin Santiago was convicted in the New York Supreme Court, Bronx County, of Murder in the Second Degree (Penal Law § 125.25[1]), two counts of Attempted Murder in the Second Degree (Penal Law §§ 110.00/125.25[1]), and Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03). The court sentenced Petitioner to a term of imprisonment of 25 years to life for the murder conviction, to run consecutively to the terms of imprisonment of 25 years for each of the attempted-murder convictions. Petitioner appealed his conviction, which was unanimously affirmed by the Appellate Division, First Department, on December 8, 2015. Petitioner subsequently sought leave to appeal to the New York Court of Appeals, which was denied on April 6, 2016. On March 29, 2018, Petitioner, proceeding pro se, filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See ECF Nos. 1, 27.
Petitioner was also sentenced to 15 years' imprisonment for the weapon-possession count, which was to run concurrently to the terms of imprisonment for the murder and attempted murder convictions. The court also imposed a term of supervised release of five years.
Petitioner asserts three grounds for habeas relief: (1) the trial court violated his Sixth Amendment right to confrontation because it permitted the admission into evidence of a witness's audiotaped statement at trial; (2) his right to a fair trial was violated by the denial of the defense's motion for a mistrial after a witness for the prosecution provided bolstering identification testimony; and (3) the evidence at trial was legally insufficient to support his convictions for second-degree murder and attempted second-degree murder. See Amended Petition (“Am. Pet.”) at 6-23, ECF No. 27.
For the reasons set forth below, I respectfully recommend that the amended habeas petition be DENIED.
Citations to testimony from Petitioner's trial are designated by the witnesses' last name and the page number. Citations to other portions of the trial transcript are denoted by “T.” Citations to portions of the Voir Dire are denoted by “VD.” Citations to portions of Petitioner's Sentencing are denoted by “S.” The transcripts for these proceedings are at ECF Nos. 34, 37.
A. The Underlying Offense
On November 15, 2008, 17-year-old Nadairee Walters and her friends-Bernadette Hollingon, Lorreta Marin, and Quanell Lopez-attended a party in an apartment located at 1495 Morris Avenue in the Bronx (Walters: 12-13; Marin: 184-85; Hollington: 390; Lopez: 487-88). When Walters and her friends arrived at the party, there were only a few people there, so they left to see if there was a different party nearby (Marin: 185; Hollington: 391). As Walters and her friends were walking through a park, Marin saw Petitioner and his friends-all of whom Marin identified as being members of the 280s, a gang from 167th Street and College Avenue in the Bronx (Marin: 183, 185-86; Lopez: 488). Petitioner and his friends tried to engage Walters and her group in conversation, but Walters and her friends continued walking (Marin: 186).
Around 10:30 p.m., Walters and her friends returned to Morris Avenue party; this time, there were more people there, including Petitioner and other members of the 280s (Marin: 187, 249; James: 156; Hollington: 392, 394-95; Lopez: 487-89, 491; Jones: 876, 878). At the party, Jessie Jones, a friend of Petitioner, observed an argument that “seemed like it was going to lead to a fight” between Theodore Edwards (also a friend of Petitioner), Petitioner, and “the people . . . throwing the party,” including Anthony McNeal (Jones: 869, 879-80, 912-13). Specifically, Jones observed McNeal “screaming” at Petitioner-asking Petitioner why he was acting like he was “tough” (Jones: 912-13).
Walters and her friends, along with others from the party, walked out of the apartment around 2:00 a.m. and waited in the hallway of the apartment building for a few minutes (Marin: 190, 255; Hollington: 393). Shortly thereafter, others also started to leave the party and a group of partygoers eventually gathered outside of the building (Marin: 190, 258). Meanwhile, inside the apartment, Jones observed a man pass a “book bag” to Petitioner, after Petitioner's argument with McNeal ended (Jones: 881, 915).
Eventually, Petitioner and his friends also left the apartment and stood outside, in front of the apartment building (Jones: 882). Outside, Jones heard Petitioner saying that he wanted to fight McNeal (Jones: 883). Marin heard Petitioner telling McNeal that he “want[ed] to get the one on,” meaning that he wanted to fight (Marin: 190, 206, 258, 262). Hollington and Lopez, both Walters' friends, observed McNeal and Petitioner “arguing back and forth” (Hollington: 395-96, 410-11, 423; Lopez: 492-94). Hollington also heard Melvin Osborne, a friend of McNeal, interject in the argument and ask Petitioner why he wanted to fight McNeal (Hollington: 395-36, 410-11, 423). And Lopez heard Petitioner commanding McNeal to “come outside the building” to fight “one on one” (Lopez: 492-93).
McNeal returned to the apartment to get the rest of his friends (Marin: 191, 208). Petitioner and other members of the 280s were standing in the street in front of the apartment building (Marin: 191-92). McNeal walked out of the apartment building and stood on the sidewalk “in front of the building,” near the building's entrance (Marin: 191-92, 200, 209-10, 230; Hollington: 493-94; Jones: 884). At that time, Walters was standing outside of the apartment building, by the entrance, along with Hollington; McNeal was standing near Walters, and Osborne was also standing nearby (Marin: 210-12; Hollington: 396-97, 475).
At around 2:05 a.m. on November 16, 2008, Hollington saw Petitioner “pull out the gun” from around his waist and shoot in her direction, where Walters, McNeal, and Osborne were also standing (Hollington: 397-98, 411, 426-27, 439-41, 475). Marin also saw Petitioner, who was still standing in the street in front of the apartment building, “start shooting” towards the front of the building (Marin: 192, 213, 220, 274-76). Hollington ran back into the building after hearing the first shot and heard about “five or six” more shots followed by a break, and then more gun shots (Hollington: 398). After hearing two shots, Jones turned around, saw Petitioner holding a gun, and saw Petitioner fire the gun twice (Jones: 884-85, 897, 927-28). Petitioner, Jones, and others then ran away (Jones: 885, 926). As Petitioner and his group ran away, another individual shot at them (Mangan: 594).
After the shooting ended, Hollington saw that McNeal, Walters, and Osborne had been shot (Hollington: 398-99). Within a few minutes, several police officers, including Officer Vincent Trozzi, arrived at 1495 Morris Avenue (Trozzi: 18-20). Officer Trozzi found Walters unresponsive; McNeal had a graze wound on his left foot and Osborne was shot in his lower left leg (Trozzi: 20, 25; Marin: 194; Malhado: 526-27; Ortiz: 539-41; Mack: 311-12). Walters was taken to the hospital, where she was pronounced dead from a gunshot wound to her torso (Ortiz: 541; Landi: 725).
B. The Investigation
A “couple of hours” after the shooting, on November 16, Petitioner, Jones, Edwards, and other members of the 280s gathered at Jones' apartment in the Bronx (Jones: 886-87). There, Petitioner and others discussed the shooting and ordered pizza (Jones: 887-88). Meanwhile, Marin had provided a description of the shooter to Detective James Mangan (Marin: 222; Mangan: 586-87). Marin did not know the shooter's name, but she had seen him before. (Marin: 222-23, 244). Marin described the shooter as a “light-skinned,” Hispanic man with light-colored eyes, around 18-to-20 years old. (Marin: 222-24; Mangan: 587). Marin told Detective Mangan that she believed the shooter resided near 167th and 170th Streets and College Avenue in the Bronx (Mangan: 587).
Using that description, and knowing that the shooter was affiliated with the 280s, Detective Mangan went to Petitioner's home on November 16, 2008; Petitioner was not there (Mangan: 585-588). Detective Mangan, through “computer workups,” determined that Petitioner was associated with Jones (Mangan: 588). Detective Mangan went to Jones' apartment and found Petitioner, Jones, and Edwards (Mangan: 589-90; Jones: 888-89). Detective Mangan took all three men to the precinct stationhouse (Mangan: 590). After Jones was brought to the precinct, he told police that he had heard four shots being fired and had seen Petitioner “shooting towards the building” (Jones: 929, 976).
On November 17, 2008, Marin viewed a lineup and identified Petitioner as the shooter (Marin: 223-25; Mangan: 593). Petitioner was subsequently arrested (Mangan: 593). That same day, Assistant District Attorney (“ADA”) Michelle Stalzer interviewed Edwards; the interview was audio-recorded (Stalzer: 795-96). Edwards told ADA Stalzer that he had seen Petitioner with a gun in his hand (Stalzer: 829).
C. Petitioner's Trial
On December 19, 2008, a grand jury charged Petitioner with two counts of Murder in the Second Degree (Penal Law § 125.25[1])-for the killing of Walters-two counts of Attempted Murder in the Second Degree (Penal Law §§ 110.00/125.25[1])-for the shooting of McNeal and Osborne-and Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03). ECF No. 32-6 at 3. Petitioner's trial began on June 6, 2011.
In the indictment, Petitioner was charged under two different theories of second-degree murder-both intentional and depraved-indifference murder-for killing Walters. See ECF Nos. 32 at 2; 32-6 at 12; 32-15 at 1, 16.
1. The Prosecution's Case
At trial, Marin, Hollington, and Jones all identified Petitioner as the shooter and testified to having seen him fire multiple shots in the direction of McNeal, Osborne, and Walters (Marin: 219-220; Hollington: 397-98; Jones: 897). Additionally, Hollington testified that McNeal and Osborne were unarmed (Hollington: 424).
The apartment building where the shooting occurred had security cameras which captured the shooting from multiple angles (Diskin: 165-67; Mangan: 594-599). The video footage from those cameras was introduced at trial and shown to the jury (Marin: 194-220). Hollington and Marin identified Petitioner in the video footage (Hollington: 401-10; Marin: 215220). Detective Mangan also viewed the video footage and identified Petitioner (Mangan: 599). The video showed Petitioner “extending his arm” outward, followed by a flash of light (Mangan: 599).
At trial the prosecution also introduced letters recovered from Petitioner's jail cell, some of which were written by Petitioner (Ellis: 337-38, 840). Captain Robert Ellis searched Petitioner's cell on April 23, 2010, and June 24, 2011 (Ellis: 338, 846). Both times, Ellis “confiscated” letters and papers, some signed by Petitioner, and some sent to him (Ellis: 337-39). The prosecution introduced at 19 letters at trial recovered from the April 2010 search, and five letters from the June 2011 search (Ellis: 341-358, 840).
Some of the letters written by Petitioner contained threats against Theodore Edwards, referred to in the letters as “Theo.” For example, one letter signed by Petitioner and addressed to “Steve” stated: “Andy gone smacc Theo in the head with a bat 4 me. None of yall jump out the window 4 Theo, that's my call. He got to get dealt with. I just can't have [him] walkin in the hood without a worry in the world. Andy said they [sic] he gonna do it. I'm just thinkin of a perfect time. Andy said he def-def with it” (Ellis: 343). Another letter signed by Petitioner and addressed to “Steve” stated: “As 4 Theo . . . He a dead man walking so I ain't worry about him” (Ellis: 350-51). One unsigned and unaddressed paper recovered from Petitioner's cell stated: “[M]y man's telling on me. I have 2 beg 4 visits, and snitching still walking around. What part of the game is that” (Ellis: 345). An envelope was also recovered from Petitioner's cell. The envelope was addressed to “Patmore Proctor” and had a return address of “Theodore Edwards,” “187 Max Payne Rd” (Ellis: 358). See also ECF No. 32-7 at 17-18. Captain Ellis testified that “187” is the number of the California homicide statute (Ellis: 358). “Max Payne” is a video game in which characters exact revenge by shooting their targets (Mangan: 600-01).
The letter was signed “Crandin.” As Captain Ellis testified, Petitioner refers to himself as “Crandin” because he is a Crip and substitutes the “B” in his first name, Brandin, for a “C” (Ellis: 341, 343).
Some letters recovered from Petitioner's cell described Edwards as a “snitch.” For instance, one unsigned letter, beginning “Yo star, what Crippin?” stated: “[Theo] just really violated me ya heard. He let the cops gas him and he snitch on me. . . But since the cops know Theo was my friend, they look at it as why would my own friend lie on me. Please don't show Theo this letter. He might take it from you and bring it to the DA. . . [A]nd that's like extra time . . . [something] called scaring the witness” (Ellis: 356). Another letter written by Petitioner to “Nana” stated: “[H]e snitched on me. He let the cops gas him and I'm facing a lot of time . . . So with no Theo it's no strong case so Theo gotta go” (Ellis: 358).
Additionally, one letter recovered from Petitioner's cell contained a reference to the party. That letter stated: “I was great in that party but they violated [someone] from the hood, so I reacted” (Ellis: 345). Captain Ellis also recovered from Petitioner's cell an “affidavit,” purportedly signed by Loretta Marin, which recanted her identification of Petitioner as the shooter (Ellis: 845-46).
Lastly, letters that appeared to be responses to Petitioner's own letters were also found in his cell. One letter stated: “nobody knows your case better than you. But right now you need to holla at the hood because they can't use no witness statements if they don't show up for court” (Ellis: 843). Another letter said: “[W]hat you think about your man whose talking . . . That's why I'm asking what do you want to do. You let him walk or drip him” (Ellis: 844-45). The author of this letter offered to “call [his] son” and “give you his number for you [to tell] him how this [man] look or give him a pic” and “where he chill at” (Ellis: 844-45).
Captain Ellis testified that “drip him” means an “act of violence” that involves “bleeding” (Ellis: 845).
2. The Sirois Hearing
Edwards, who had given a statement to police identifying Petitioner as the shooter, refused to testify at trial (T: 636, 705). The prosecution informed the court that it had subpoenaed Edwards, but Edwards had refused to comply with the subpoena (T: 636). On June 27 and June 28, 2022, mid-trial, the court held a Sirois hearing outside of the presence of the jury, to determine whether Edwards was unavailable to testify at trial (T: 633). At the Sirois Hearing, Edwards acknowledged that he had ignored the prosecution's subpoenas and understood that he could be held in contempt and imprisoned until he agreed to testify (T: 701-02).
At the hearing, Edwards told the court that he did not want to be “involved” with the case and did not want to testify because he feared for his “safety” and the safety of his “family,” including his seven-month-old baby (T: 673, 696-97, 701, 703). Edwards did not feel it would be “safe” for him to testify about the shooting because he knew what could happen to him, including that “somebody in the neighborhood might do something to” him or his family because “nobody like[s] somebody that snitches” (T: 684, 687, 703). Edwards added that it is a “rough neighborhood,” with “a lot” of “crews,” and he did not want anyone to get hurt over his statement to police (T: 681-82, 684, 687, 703). Edwards stated that he is no longer affiliated with the 280s (T: 680-81).
Edwards explained that he felt pressure from police, specifically Detective Mangan, to testify at Petitioner's trial, and that Detective Mangan had told him that he could go to jail if he refused to testify (T: 697-98). Edwards described incidents where he was arrested or brought to the precinct, only to be asked about Petitioner's case or told by officers that he had to testify at Petitioner's trial (T: 698-700).
Edwards testified that, on June 22, 2011, a few days before the Sirois hearing, he had been shot while on his way to a store in an area of the Bronx where the 280s “hang out” (T: 68283). See also ECF No. 32-7 at 15. Just before he was shot, Edwards, who was accompanied by someone named “Patmore,” saw “a couple of guys” running towards him, and Edwards knew that “they were trying to come . . . do something wrong” to him (T: 682, 684, 686). While trying to run away, Edwards was shot in the arm (T: 682). Edwards testified that the shooting happened at night, around 9:00 p.m. or 10:00 p.m., and, because it was foggy, he could not identify the shooter (T: 684).
Edwards further testified that he was “jumped” and beaten early in the summer of 2009, several months after the November 2008 shooting that killed Walters (T: 674-76). Edwards remembered that about seven men came up to him and started beating him, eventually knocking him unconscious after the fourth or fifth hit (T: 676). Edwards testified that the men attacked him because “word got around [he] was telling,” about the shooting at 1495 Morris Avenue (T: 67677). Edwards testified that he knew the men who had assaulted him, but he denied that they were friends of Petitioner. (T: 676, 690). According to Edwards, the men were not members of the 280s (T: 678).
After the assault in the summer of 2009, Edwards “knew that people didn't want [him] around” because, before the assault, he would see the men that had assaulted him “all the time and they never did” anything to him (T: 677). Edwards also acknowledged that “word was that [he] was talking about the shooting” and that “people” were “out to get” him for having talked to the police (T: 678). After he was assaulted, Edwards feared for his safety and consequently moved away from the neighborhood and returned only occasionally (T: 679-80, 692, 694-97, 702).
Through Detective Mangan, Edwards also learned of threats made against him. Detective Mangan had shown Edwards a letter, written by Petitioner to “Patmore,” in which Petitioner expressed the desire to shoot Edwards (T: 685-86). Edwards explained that he was shown this letter in the summer of 2010, with the name of recipient of the letter “crossed out” (T: 689-90). Later, Edwards learned that the letter was addressed to “Patmore” (T: 689-90). “Patmore” was one of the individuals who was with Edwards when Edwards was shot in the arm a few days before the Sirois hearing (T: 683). Patmore is also a member of the 280s (T: 683).
Detective Investigator Peter Moro, a senior investigator with the Bronx District Attorney's office, also testified at the hearing about his conversations with Edwards (T: 733741). According to Detective Moro, Edwards' demeanor during those conversations showed that he was “afraid” (T: 747-48). Edwards told Detective Moro that “it was known in the past” that Edwards “had spoken to the police” about the November 16th shooting at Morris Avenue (T: 735-36). Edwards also told Detective Moro that he was afraid to testify because of his safety and his family's safety (T: 736). According to Detective Moro, Edwards became afraid to testify after he was assaulted by “several people” in 2009 (T: 736). As a result of the assault, Edwards suffered injuries to his face and head, and received stitches on his chin (T: 736). Detective Moro also testified that Edwards had told him that a brick had been thrown through the front window of his uncle's house, where Edwards used to live, “about three to four months” prior to Petitioner's trial (T: 736-38, 746). According to Detective Moro, Edwards believed that there was a possibility that all of the incidents-the assault, the brick, and the shooting-occurred because he had spoken to police about Petitioner (T: 736, 738-39, 744-48).
At the conclusion of the hearing, the court issued an oral ruling, which it followed with a written decision. The court found that the prosecution had met its “burden of proving by clear and convincing evidence that” Edwards was “unavailable,” and that Petitioner had “caused this unavailability” (T: 759). See also ECF No. 32-1 at 7-8. Accordingly, the court concluded that Edwards' audiotaped statement, made to the prosecution shortly after the shooting, was admissible as direct evidence against Petitioner at trial. ECF No. 32-1 at 8.
The court began by noting that Edwards was “initially cooperative with the police in terms of providing a statement” (T: 758). Edwards had “signed a written statement describing the defendant's role in the shooting” and had given a sworn oral statement to the prosecutor. ECF No. 32-1 at 7. But, “[d]espite his initial cooperation with the police, Edwards refused to testify at the trial, citing fear for himself and for his family.” ECF No. 32-1 at 6. Citing to Edwards demeanor at the hearing, the court stated that “Edwards was visibly shaken, difficult to hear, and his testimony was marked by long pauses.” ECF No. 32-1 at 6-7.
Next, the court determined that Petitioner had “either caused Edwards to be unavailable, or [had] acquiesced in the successful efforts to intimidate him.” ECF No. 32-1 at 7. As the court explained, “in the years between providing information to the police and leading up to today,” the prosecution had shown that Edwards had “been subject to threats and outright physical attacks” (T: 759) and “efforts to kill him,” ECF No. 32-1 at 7. First, Edwards was “attacked, stabbed and beaten into unconsciousness by a group” of several men. ECF No. 32-1 at 7. Second, “[s]everal months before the trial, an unknown person threw a brick through the window of his uncle's house, where Edwards was staying.” ECF No. 32-1 at 7. And lastly, “during the trial itself, on June 22, 2011, Edwards was shot while in the company of one of the defendant's friends,” Patmore. ECF No. 32-1 at 7; see also T: 759.
Moreover, the court found that “overwhelming proof” demonstrated Petitioner's “role in assuring Edwards' unavailability.” ECF No. 32-1 at 7. As the court reasoned, Petitioner was “the only person who [stood] to benefit from not having [Edwards] testify.” (T: 759); see also ECF No. 32-1 at 7. Specifically addressing the letters recovered from Petitioner's cell, the court noted that Petitioner's “own writings and letters to various people” included “repeated references to ‘snitches' and ‘rats,' and specific directions to either kill or silence Theodore Edwards.” ECF No. 32-1 at 7; see also T: 759. For example, the court cited to one letter that stated, “[w]ith no Theo, it's no strong case. So Theo got to go,” and another letter that said, “As 4 Theo . . . He a dead man walkin.'” ECF No. 32-1 at 7. The court further noted that “one of the addressees of these directives to eliminate [Edwards] was” Patmore, the “same person who was with Edwards when he was shot on June 22, 2011.” ECF No. 32-1 at 7.
Additionally, the court reasoned that Petitioner's “fixation on influencing or eliminating witnesses continued during the trial.” ECF No. 32-1 at 5. Specifically, the court cited to the “false affidavit” recovered from Petitioner's cell which bore the name of one of the witnesses at trial, Marin. Id. Finally, the court noted that two of Petitioner's relatives had been banned from attending the trial after court officers had seen them “displaying ‘gang signs'” during a witness's testimony. Id.
3. Introduction of Edwards' Testimony at Trial and Petitioner's Mistrial Motion
ADA Michelle Stalzer interviewed Edwards on November 17, 2008, the day after the shooting; the interview was audio-recorded (Stalzer: 795-96). At trial, the prosecution introduced the audio recording of the interview into evidence through Stalzer. Stalzer testified that Edwards named Petitioner as the shooter (Stalzer: 804). Stalzer also testified that Edwards had told her that he saw Petitioner “reach for something” and “pull the gun,” but did not see Petitioner fire the gun (Stalzer: 803-04, 828-29).
Although the audio recording was played for the jury at trial, the recording was not transcribed by the court reporter.
Portions of the audio recording were inaudible. For those portions, Stalzer testified as to her recollection of what Edwards had said during the interview.
Stalzer was asked if “anybody was under arrest for the shooting of Nadairee Walters prior to . . . [her] taking the statement from Theodore Edwards” (Stalzer: 818). Stalzer responded that she was “aware” that Petitioner “had been identified as the shooter” (Stalzer: 818). Defense counsel objected and moved for a mistrial outside the presence of the jury (T: 819). Counsel argued that Stalzer's testimony was “a blatant attempt to prejudice” Petitioner by saying that he had been identified as the shooter and not simply arrested (T: 819). Counsel further argued that no curative instruction could remedy the prejudice (T: 819).
The court denied the mistrial motion. The court explained that there was “already evidence of identification” before the jury (T: 820). Moreover, the court reasoned that it would not have “meant a whole lot to the jury whether somebody is under arrest or whether somebody is identified” (T: 820). Defense counsel argued that striking Stalzer's answer and providing a curative instruction was insufficient because Petitioner had not been identified as the shooter when Edwards' statement was taken by Stalzer (Stalzer: 820-21). The court struck Stalzer's answer (T: 821). During the jury charge, the court instructed the jury that it could not “consider anything outside of the evidence” and that it had to “disregard anything that was stricken from the record” (T: 1072).
4. The Defense's Case
The defense did not present any evidence at trial.
5. Verdict and Sentence
On July 8, 2011, the jury convicted Petitioner of one count of second-degree murder, two counts of attempted second-degree murder, and one count of second-degree criminal possession of a weapon (T: 1116). On July 27, 2011, the court sentenced Petitioner to 25 years to life for the second-degree murder conviction, to run consecutively to a determinate term of 25 years for each of the attempted second-degree murder convictions (S: 15). Additionally, the court sentenced Petitioner to a determinate sentence of 15 years for the weapon-possession count, to run concurrently with the terms of imprisonment for the second-degree murder and attempted second-degree murder convictions (S: 15). The court also imposed a five-year term of postrelease supervision (S: 15).
D. Petitioner's Direct Appeal
Petitioner, represented by counsel, appealed his conviction to the Appellate Division of the New York Supreme Court, First Department. In his counseled brief, Petitioner raised three claims: (1) the verdict was against the weight of the evidence because the prosecution had failed to prove that he acted with the intent to kill; (2) the trial court violated his due process right to a fair trial by refusing to grant a mistrial after a prosecutor bolstered Petitioner's identification by saying that Petitioner had been identified as the shooter; and (3) his sentence was excessive. See ECF Nos. 32-3 at 23, 31; 32-4 at 2. In addition, Petitioner submitted a pro se supplemental brief. See ECF No. 32-5. In his pro se brief, Petitioner raised two claims: (1) the evidence was legally insufficient to support his second-degree murder and attempted second-degree murder convictions; and (2) the trial court violated his constitutional right to confrontation by permitting admission of Edwards' audio-recorded statement. Id. at 15, 21. The First Department unanimously affirmed Petitioner's conviction. See People v. Santiago, 134 A.D.3d 472, 473 (1st Dep't 2015).
Addressing Petitioner's weight-of-the-evidence claim, the First Department concluded that the “evidence, including the number of shots fired and the surrounding circumstances, support[ed] an inference that defendant intended to kill two men with whom he had been involved in a dispute.” Id. at 472. The court further concluded that Petitioner “was also liable for the death of a third victim under a transferred intent theory.” Id. Moreover, the court reasoned that the “inference of homicidal intent was not undermined by the fact that [Petitioner] hit the two surviving victims in the lower extremities, because [t]he location of the wounds does not establish the direction of defendant's aim.” Id. at 472-73 (citation and quotation marks omitted; second alteration in original). Turning to Petitioner's legal sufficiency argument raised in his pro se supplemental brief, the First Department concluded that the argument was unpreserved but, alternatively, the court rejected it on the merits. Id. at 473.
As to Petitioner's claim concerning the denial of a fair trial based on the ADA's testimony, the First Department concluded that the trial court had “properly exercised its discretion in denying defendant's mistrial motion.” Id. at 473. Noting that the trial court had sustained the defense's objection and had “struck the testimony,” the First Department concluded that the “drastic remedy of a mistrial was not warranted, because the offending phrase was not particularly harmful, and because the court's curative actions were sufficient to prevent any prejudice.” Id. Finally, the First Department rejected Petitioner's excessive sentence claim. Id.
Petitioner filed an application for leave to appeal to the New York Court of Appeals, asking the court to review a single claim: that a mistrial was required to cure the prejudice from the bolstering identification testimony of an ADA. ECF No. 32-11 at 1-3. Petitioner did not raise any other claims in his leave application. Id. On April 6, 2016, the Court of Appeals denied leave to appeal. People v. Santiago, 27 N.Y.3d 1006, 1006 (N.Y. 2016).
Petitioner also filed a CPL 440.10 motion, dated May 25, 2017, arguing that his conviction should be vacated due to ineffective assistance from trial counsel. ECF Nos. 32-13 and 32-14. Petitioner's 440.10 motion was denied on January 2, 2018. ECF No. 32-17 at 7.
E. Petitioner's Habeas Petition
By papers dated March 14, 2018, and received by the Court on March 29, 2018, Petitioner filed the instant petition for a writ of habeas corpus. ECF No. 1. Petitioner raised three grounds for habeas relief: (1) that his Sixth Amendment right to confrontation was violated by the trial court's introduction of the audiotaped recording of Edwards' statement; (2) that he was denied his Due Process Right to a fair trial when the court denied his motion for a mistrial after an ADA testified that he had been identified as the shooter, bolstering Petitioner's identification as the shooter; and (3) that his defense counsel was ineffective. See ECF No. 1 at 6-19. After filing his petition, Petitioner requested leave to file a supporting memorandum and to amend his petition, and also requested a stay to allow him to exhaust certain claims in state court. See ECF Nos. 9, 15-16, 18. The Court denied Petitioner's request for a stay and granted Petitioner's request to file an amended petition or memorandum of law in support of his petition. ECF Nos. 19, 22.
By papers dated December 17, 2018, and received by the Court on December 21, 2018, Petitioner filed an Amended Petition, asserting three grounds for relief, only one of which was not previously raised by Petitioner in his original petition: (1) that his Sixth Amendment right to confrontation was violated when the trial court introduced an audiotaped recording of Edwards' statement; (2) that he was denied his Due Process Right to a fair trial when the court denied his motion for a mistrial after an ADA testified that he had been identified as the shooter, allegedly bolstering the evidence of his identification; and (3) the evidence at trial was legally insufficient to support verdicts of second-degree murder and attempted second-degree murder. Amended Petition (“Am. Pet.”) at 6-20, ECF No. 27. On May 13, 2019, Respondent opposed the amended petition. See Resp't Br. at 9-47, ECF No. 33. Petitioner filed a reply on July 2, 2019. ECF No. 35.
LEGAL STANDARDS FOR HABEAS RELIEF UNDER 28 U.S.C. § 2254
“The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).” Harrington v. Richter, 562 U.S. 86, 97 (2011). A state prisoner seeking habeas relief under § 2254 must show by a preponderance of the evidence that he or she is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); see Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997).
A. Timeliness
AEDPA imposes a one-year statute of limitations on habeas corpus petitions. As relevant here, a state prisoner has one year to file his petition after “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). A judgment becomes final “upon the completion of direct appellate review in state court and by the United States Supreme Court- either when certiorari proceedings are completed or when the time for seeking direct review by the United States Supreme Court expires, i.e., ninety (90) days after the last decision by the highest state court to which a direct appeal can be taken.” Wynerman v. Colvin, 2017 WL 3503402, at *2 (S.D.N.Y. June 13, 2017) (citing Clay v. United States, 537 U.S. 522, 531-32 (2003)); accord Williams v. Artuz, 237 F.3d 147, 150-51 (2d Cir. 2001).
B. Exhaustion
A federal court may not consider a petition for a writ of habeas corpus, even if timely filed, unless the petitioner has exhausted available remedies in the state courts. 28 U.S.C. § 2254(b)(1)(A); see also Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014) (“To provide the state with the first opportunity to consider and correct alleged violations of its prisoners' constitutional rights, a state prisoner is required to exhaust all of his available state remedies before a federal court can consider his habeas application.”). In other words, the petitioner “must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). In New York, a petitioner invokes “one complete round” of review by appealing an issue to the Appellate Division, then seeking leave to appeal to the New York Court of Appeals. Galdamez v. Keane, 394 F.3d 68, 74 (2d Cir. 2005).
To satisfy the exhaustion requirement, a petitioner must “fairly present” each of his habeas claims, in “each appropriate state court (including a state supreme court with powers of discretionary review),” in a manner that “alert[s] that court to the federal nature of the claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotation marks and citations omitted); Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014) (“While ‘a state prisoner is not required to cite chapter and verse of the Constitution in order to satisfy this requirement,' he must tender his claim ‘in terms that are likely to alert the state courts to the claim's federal nature.'”) (quoting Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011)).
A petitioner can “fairly present” his claims in several ways, including by citing to the applicable provisions of the federal Constitution in his state-court briefs, see Davis v. Strack, 270 F.3d 111, 122-23 (2d Cir. 2001), or by citing “pertinent federal cases employing constitutional analysis,” Rustici v. Phillips, 308 Fed.Appx. 467, 469 (2d Cir. 2009) (citation and internal quotation marks omitted). However, a claim is generally not “fairly presented” to a state court “if that court must read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so.” Baldwin, 541 U.S. at 32. Moreover, the federal claim must be presented with some specificity: “a general appeal to a constitutional guarantee as broad as due process” is insufficient “to present the ‘substance' of such a claim to a state court.” Gray v. Netherland, 518 U.S. 152, 163 (1996) (citing Anderson v. Harless, 459 U.S. 4, 7 (1982)).
C. Procedural Default
If a habeas petition presents unexhausted claims, the federal court must determine whether the petitioner would be able to return to state court to exhaust those claims. Jackson, 763 F.3d at 133. An unexhausted claim for which the petitioner cannot obtain further review in state court is procedurally defaulted and must be dismissed. Id. (“[I]f the state prisoner fails to exhaust his state remedies in a manner in which, were he to return to the state courts with his unexhausted claim, those courts would find the claim barred by the application of a state procedural rule, we must deem the claim procedurally defaulted.”) (internal quotation marks and citations omitted). The exception to this rule is if the petitioner establishes either “cause and actual prejudice or that he is actually innocent.” Bousley v. United States, 523 U.S. 614, 615 (1998) (internal quotation marks and citations omitted); see also Coleman v. Thompson, 501 U.S. 722, 748-50 (1991).
A petitioner can show “cause” for a procedural default when (1) “the factual or legal basis for a claim was not reasonably available,” (2) “some interference by state officials made compliance [with the procedural rule] impracticable,” or (3) “the procedural default is the result of ineffective assistance of counsel.” Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994) (internal quotation marks and citation omitted). Although the Supreme Court has not given “precise content” to the term “prejudice,” see Wainwright v. Sykes, 433 U.S. 72, 91 (1977), the prejudice must be sufficient “to overcome society's justified interests in the finality of criminal judgments,” United States v. Frady, 456 U.S. 152, 175 (1982). “The petitioner's burden in making a gateway showing of actual innocence is deliberately ‘demanding.'” Hyman v. Brown, 927 F.3d 639, 656 (2d Cir. 2019) (quoting House v. Bell, 547 U.S. 518, 538 (2006)). The standard of innocence in this context “references ‘factual innocence, not mere legal insufficiency.'” Id. at 657 (citing Bousley, 523 U.S. at 623).
D. Merits
AEDPA “imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt.” Jones v. Murphy, 694 F.3d 225, 234 (2d Cir. 2012) (quoting Hardy v. Cross, 565 U.S. 65, 66 (2011)). Under AEDPA, courts may only grant a habeas petition if the challenged state-court decision was (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” at the time of the state-court decision, or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2).
“Clearly established” federal law means “the holdings, as opposed to the dicta,” of the decisions of the United States Supreme Court “as of the time of the relevant state-court decision,” and does not include opinions of lower federal appellate courts. Green v. Travis, 414 F.3d 288, 296 (2d Cir. 2005) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)); see also Parker v. Matthews, 567 U.S. 37, 48-49 (2012) (circuit precedent, even if “merely reflecting]” Supreme Court precedent, does not constitute “clearly established federal law” for purposes of § 2254(d)(1)).
Under the first prong, section 2254(d)(1)'s “‘contrary to' and ‘unreasonable application of clauses have independent meaning.” Carmichael v. Chappius, 848 F.3d 536, 544 (2d Cir. 2017) (citing Williams v. Taylor, 529 U.S. 362, 404-05 (2000)). A state-court decision is “contrary to” clearly established federal law if the state court “arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 413. A state court makes an unreasonable application of clearly established federal law if the state court “correctly identifies the governing legal rule but applies that rule unreasonably to the facts of a particular prisoner's case.” White v. Woodall, 572 U.S. 415, 419 (2014). Such application of federal law must be “‘objectively unreasonable,' not merely wrong; even ‘clear error' will not suffice.” Id. (quoting Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003)). “The state court decision must be ‘so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair minded disagreement.'” Woods v. Etherton, 578 U.S. 113, 117 (2016) (quoting White, 572 U.S. at 420).
Under the second prong, a state-court decision constitutes an “unreasonable application” of the Supreme Court's precedent if the state court applied the Supreme Court's “precedents to the facts in an objectively unreasonable manner.” Brown v. Payton, 544 U.S. 133, 141 (2005) (citations omitted). A state court's factual determination may not be deemed unreasonable “merely because [a reviewing court] would have reached a different conclusion in the first instance.” Brumfield v. Cain, 576 U.S. 305, 313-14 (2015) (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)). Instead, § 2254(d)(2) requires a reviewing court to “accord the state trial court substantial deference.” Brumfield, 576 U.S. at 314. If ‘[Reasonable minds reviewing the record might disagree' about the finding in question, ‘on habeas review that does not suffice to supersede the trial court's . . . determination.'” Id. (alterations in original) (citation omitted). For federal habeas review, factual determinations made by a state court are presumed correct, and a petitioner bears the burden of rebutting this presumption “by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
E. Pro Se Filings
Courts liberally construe pleadings prepared by pro se litigants and hold them “to less stringent standards than formal pleadings drafted by lawyers.” Erickson, 551 U.S. at 94 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). It is appropriate to interpret pro se submissions to raise the strongest arguments that they suggest. Gomez v. Brown, 655 F.Supp.2d 332, 342 (S.D.N.Y. 2009) (explaining that because of the right of self-representation, the court is obligated to make reasonable allowances to protect pro se litigants from “inadvertent forfeiture of important rights because of their lack of legal training”) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
DISCUSSION
A. The Timeliness of Petitioner's Habeas Petition
Petitioner's conviction became final on July 5, 2016-90 days after the New York Court of Appeals denied his leave application on April 6, 2016. Wynerman, 2017 WL 3503402, at *2. Consequently, the one-year statute of limitations under AEDPA expired on July 5, 2017. Petitioner's habeas petition was dated-and deemed to be filed on-March 14, 2018. See Noble v. Kelly, 246 F.3d 93, 97-98 (2d Cir. 2001) (under the “prison mailbox rule,” an incarcerated petitioner's pleading is deemed filed on the date it is given to correctional authorities to mail to the courthouse). However, even though Petitioner filed his habeas petition more than one year after his conviction became final, he filed a post-conviction motion before the expiration of the one-year statute of limitations period, which tolled the deadline.
When postconviction motions are filed in state court before the expiration of the statute of limitations, as was the case here, those motions and related state-court proceedings may toll the statute of limitations. See 28 U.S.C. § 2244(d)(2). Specifically, AEDPA provides that “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” Id. As the Second Circuit has explained, “proper calculation of Section 2244(d)(2)'s tolling provision excludes time during which properly filed state relief applications are pending.” Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000); see also Sterling v. Howard, No. 22-CV-4344 (LTS), 2022 WL 3030684, at *1 (S.D.N.Y. Aug. 1, 2022).
Here, Petitioner signed his 440.10 motion on May 5, 2017, well within the one-year limitation period imposed by AEDPA. ECF No. 32-13 at 7. As such, the statute of limitations was tolled for a total of 242 days, from May 5, 2017, to January 2, 2018, the date the state court decided the motion. See ECF No. 32-17 at 7. With the tolling, the statute of limitations was effectively extended from July 5, 2017, to March 4, 2018. Petitioner's habeas petition was dated March 14, 2018-ten days after the expiration of the limitations period.
Although Petitioner filed his petition ten days late, Respondent does not challenge the petition's timeliness. The statute of limitations under AEDPA is an affirmative defense, which a court may raise sua sponte, but only after providing the petitioner with prior notice and an opportunity to be heard. Acosta v. Artuz, 221 F.3d 117, 124-25 (2d Cir. 2000); Singletary v. Bell, No. 21-CV-02366 (HG), 2022 WL 3682224, at *3 (E.D.N.Y. Aug. 25, 2022). A district court has the discretion to determine that “‘the interests of justice would be better served'” by addressing the merits of the petition rather than dismissing the petition as time barred. Day v. McDonough, 547 U.S. 198, 210 (2006) (quoting Granberry v. Greer, 481 U.S. 129, 136 (1987)).
Here, the interests of justice are better served by addressing the merits of the petition. Petitioner, who is pro se, missed the limitations period by only ten days. Cf, Caban v. United States, No. 16-CR-656 (GHW), 2022 WL 1539582, at *3 (S.D.N.Y. May 14, 2022) (barring habeas claim as untimely where petition was more than six months late); Charles v. Capra, No. 21-CIV-1669 (VB) (PED), 2022 WL 3587884, at *4 (S.D.N.Y. Feb. 7, 2022), report and recommendation adopted, 2022 WL 3587859 (S.D.N.Y. Aug. 22, 2022) (same where petition was more than three years late). Further, the petition has been fully briefed and pending since July 2019. Given this delay, the interests of justice are best served by considering Petitioner's claims on the merits rather seeking further briefing on the issue of timeliness. See Singletary, 2022 WL 3682224, at *3 (declining to invoke discretionary authority to raise timeliness because case had been pending for 16 months). As such, I proceed below as if the petition is timely and address the merits of the Petitioner's claims.
B. Petitioner's Sixth Amendment Confrontation Clause Claim
Petitioner's first claim in his Amended Petition is that his right to confrontation under the Sixth Amendment was violated by the introduction at trial of Edwards' audiotaped statement based on a finding that Petitioner had procured Edwards' unavailability. Am. Pet. at 6. Specifically, Petitioner contends that the trial court erred in finding that Petitioner had pressured Edwards not to testify, arguing that the court's finding relied on speculation and that it was the prosecution, and not Petitioner, who had pressured Edwards. Id. at 7-8. Respondent counters that the trial court's factual determination that Petitioner had caused Edwards' unavailability was reasonable. Resp't Br. at 9-10. Respondent also argues that the court's determination, permitting the introduction of Edwards' audio-recorded testimony based on clear and convincing evidence that Petitioner had procured Edwards' unavailability, was not an unreasonable application of clearly established federal law. See Resp't Br. at 9-20. For the reasons that follow, Petitioner's claim is both unexhausted and meritless.
1. Petitioner's Confrontation Clause claim is unexhausted and procedurally defaulted.
In the Appellate Division, Petitioner raised his Confrontation Clause claim in his pro se supplemental brief. See ECF No. 32-5 at 21-23. In affirming his conviction, the Appellate Division noted that it had “considered and rejected [Petitioner's pro se arguments.” Santiago, 134 A.D.3d at 473. In his application for leave to appeal to the Court of Appeals, however, Petitioner did not raise a Confrontation Clause claim. Instead, Petitioner's leave application focused on an entirely different claim: that his right to a fair trial had been violated when the trial court denied him a mistrial after a prosecutor gave bolstering identification testimony at trial. ECF No. 32-11 at 1-3. Nowhere in his leave application did Petitioner mention his Confrontation Clause claim. Id. Because Petitioner failed to raise the claim in his leave application on direct appeal, the claim is abandoned and unexhausted. See Smith v. Duncan, 411 F.3d 340, 345 (2d Cir. 2005) (“Generally ‘we assume that the [New York] Court of Appeals would construe a petitioner's leave application as abandoning claims that the petitioner had pressed to the Appellate Division below' where those claims were not presented to the New York high court for review.”); Akassy v. Kirkpatrick, No. 16-CV-7201 (LAP) (KHP), 2018 WL 11291663, at *13 (S.D.N.Y. Dec. 7, 2018), report and recommendation adopted, 2020 WL 8678080 (S.D.N.Y. July 16, 2020) (“If a state prisoner seeks leave to appeal the denial of a direct appeal and abandons any claims initially raised, a federal court must deem those unexhausted for habeas purposes.”).
An unexhausted claim will nonetheless be deemed exhausted if the petitioner no longer has an available remedy in state court. See Castille v. Peoples, 489 U.S. 346, 351 (1989); Bossett v. Walker, 41 F.3d 825, 828-29 (2d Cir. 1994). Petitioner has no available state-court remedies to exhaust his Confrontation Clause claim. New York procedural rules permit only one application by an appellant for leave to appeal to the Court of Appeals. See CPL § 460.10(5)(a) (requiring that leave to appeal be sought by an appellant within 30 days after service upon the appellant of a copy of the order sought to be appealed); see also Colon v. Connell, 07-CV-7169 (BSJ) (JCF). 2009 WL 2002036, at *6 n.4 (S.D.N.Y. July 9, 2009) (discussing New York's requirement limiting an appellant to one leave application to the Court of Appeals). Petitioner has already sought leave to appeal to the Court of Appeals and has gone through one round of direct appellate review.
Moreover, Petitioner cannot raise his Confrontation Clause claim collaterally in a 440.10 motion because it is based on facts apparent from the record and thus could have (and, indeed, was) raised on direct appeal. See N.Y. Crim. Pro. § 440.10(2)(c) (barring collateral review of claims that could have been raised on direct appeal); see also Martinez v. Graham, No. 13-CV-8914 (AJN) (HBP), 2018 WL 10128083, at *14 (S.D.N.Y. Jan. 23, 2018), report and recommendation adopted, 2019 WL 3729461 (S.D.N.Y. Aug. 8, 2019) (finding that because record-based claims were not “raised as federal claims on direct appeal, they cannot now be raised by way of a motion pursuant to Section 440.10” and are “procedurally barred”). Petitioner also cannot seek state review of his claim pursuant to either a writ of error coram nobis or a state writ of habeas corpus. See People v. Gordon, 183 A.D.2d 915, 915 (2d Dep't 1992) (coram nobis relief only available for claims of ineffective assistance of appellate counsel); People ex rel. Allah v. Leonardo, 170 A.D.2d 730, 731 (3d Dep't 1991) (state writ of habeas corpus unavailable where claim could have been raised on direct appeal).
Because Petitioner has no procedural mechanism in state court for raising his Confrontation Clause claim, the claim is deemed exhausted and procedurally defaulted. See Bossett, 41 F.3d at 825. When a claim is deemed exhausted because of a procedural bar, “the procedural bar that gives rise to exhaustion provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas corpus review of the defaulted claim.” Gray v. Netherland, 518 U.S. 152, 162 (1996); see also Carmona v. United States Bureau of Prisons, 243 F.3d 629, 633 (2d Cir. 2001). And Petitioner does not present any basis to overcome that procedural bar. See Carvajal, 633 F.3d at 104 (noting that a petitioner may overcome the procedural bar by demonstrating “cause for the default and prejudice or by showing that he is actually innocent of the crime for which he was convicted”) (internal quotation marks omitted). As to his actual innocence, Petitioner does not dispute that he was the shooter. Rather, he argues that the facts do not support that he had the intent to kill. Am. Pet. at 23. Further, Petitioner raised his Confrontation Clause claim on direct appeal to the Appellate Division, demonstrating that he was plainly aware of the claim. Petitioner thus has not provided any cause for failing to raise the claim again in his leave application to the Court of Appeals.
In any case, as discussed below, even if Petitioner's procedurally defaulted claim were reviewed on the merits, it would fail. The court's factual finding that Petitioner procured Edwards' unavailability was not unreasonable and the court's ruling permitting admission of the audio-recorded statement was not contrary to, or an unreasonable application of, clearly established federal law.
2. Petitioner's Confrontation Clause claim fails on the merits.
The Sixth Amendment's Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. The right to confrontation is not absolute. The United States Supreme Court has held that a defendant's intentional misconduct may result in the waiver of his rights under the Confrontation Clause. See Illinois v. Allen, 397 U.S. 337, 342-43 (1970); see also Crawford v. Washington, 541 U.S. 36, 62 (2004) (“[T]he rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds . . .”); Davis v. Washington, 547 U.S. 813, 833 (2006) (“We reiterate what we said in Crawford . . . That is, one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation.”).
The Supreme Court has taken “no position on the standards necessary to demonstrate” forfeiture of a defendant's Confrontation Clause right, but has noted that “federal courts using Federal Rule of Evidence 804(b)(6), which codifies the forfeiture doctrine, have generally held the Government to the preponderance-of-the-evidence standard.” Davis, 547 U.S. at 833 (2006). But the Court has clarified that the forfeiture by wrongdoing exception applies only “when the defendant engaged in conduct designed to prevent the witness from testifying.” Giles v. California, 554 U.S. 353, 359 (2008) (emphasis omitted). Recognizing that the Supreme Court has not definitively established the standard of proof applicable for finding forfeiture, federal courts have adopted a preponderance-of-the-evidence standard. See Tatum v. Lempke, 481 Fed.Appx. 659, 660-61 (2d Cir. 2012) (noting that the Second Circuit has “held that the confrontation clause merely requires the prosecution to establish by a preponderance of the evidence that a defendant procured a witness's unavailability”); McClarin v. Smith, No. 05-CV-2478 (DLI), 2007 WL 2323592, at *12 (E.D.N.Y. Aug. 10, 2007) (“[A]s noted by the Second Circuit, ‘there is no Supreme Court caselaw definitively establishing the circumstances sufficient, or the standard of proof applicable, in analyzing waiver cases under the Confrontation Clause.”); Washington v. Graham, No. 10-CV-0449T, 2011 WL 3610107, at *5 (W.D.N.Y. Aug. 16, 2011) (“Although it is clear that a defendant may waive his right to confront witnesses, the Supreme Court has yet to establish the boundaries of the waiver rule.”)
Here, following an evidentiary hearing, the trial court found that Petitioner had caused Edwards' unavailability (T: 759). Under AEDPA, that factual determination is “presumed to be correct,” 28 U.S.C. § 2254(e)(1), and Petitioner has the burden of rebutting the presumption of “correctness by clear and convincing evidence.” Harris v. Kuhlmann, 346 F.3d 330, 350 (2d Cir. 2003) (citations omitted). “This presumption of correctness is particularly important when reviewing the trial court's assessment of witness credibility.” Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003); Shabazz v. Artuz, 336 F.3d 154, 161 (2d Cir. 2003). To be granted relief, Petitioner must demonstrate that the adjudication “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the [s]tate court proceeding.” 28 U.S.C. § 2254(d)(2). A state court's factual determination is not unreasonable “‘merely because the federal habeas court would have reached a different conclusion in the first instance.'” Cardoza v. Rock, 731 F.3d 169, 177-78 (2d Cir. 2013) (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)). For a factual determination to be unreasonable, “reasonable minds could not disagree that the trial court misapprehended or misstated material aspects of the record in making its finding, or where the court ignored highly probative and material evidence.” Cardoza, 731 F.3d at 178 (citations omitted).
Viewing the totality of the evidence presented at the Sirois hearing, the trial court's determination that Petitioner procured Edwards' unavailability was reasonable. First, the court heard testimony about multiple incidents of intimidation or violence directed at Edwards. Edwards described being shot on June 22, 2011, the week prior to the Sirois hearing, while he was accompanied by Patmore, a member of the 280s and the person to whom Petitioner had addressed a letter indicating that Edwards had to be eliminated (T: 683, 686-87). Edwards also described being assaulted, beaten, and cut by a group of men in the summer of 2009, after he had already identified Petitioner as the shooter to police (T: 674, 676). And Detective Investigator Moro testified that a brick had been thrown through the window of the house of Edwards' uncle, where Edwards used to live (T: 738).
In addition to those incidents, the court also heard about letters recovered from Petitioner's jail cell that contained threats of violence by Petitioner directed at Edwards, because Edwards was a witness against Petitioner. For example, one letter indicated that Edwards, also referred to as Theo, was “a dead man walkin',” and another letter stated, “with no Theo, it's no strong case. So Theo got to go.” See ECF No. 32-1 at 7. Additionally, an envelope recovered from Petitioner's cell had Edwards' name and the text “187 Max Payne Rd,” which Detective Mangan explained was a reference to a video game in which the characters exact revenge by shooting their targets (Ellis: 358; Mangan: 600-01).
Petitioner's argument that there is no evidence that the letters found in his cell were ever sent out (Am. Pet. at 7) is undermined by the record. Indeed, one of the individuals to whom Petitioner had written about the need to silence Edwards-Patmore-was a member of the same gang as Petitioner and was with Edwards on the night Edwards was shot in June 2011. Moreover, communications that were plainly responsive to Petitioner's letters were also recovered from Petitioner's cell, demonstrating that Petitioner was communicating with individuals outside of the prison (Ellis: 843-45). Petitioner's writings provided a reasonable basis for the trial court to infer that Petitioner had succeeded in spreading word of his desire to stop Edwards from testifying against him at trial.
The trial court also heard from Edwards firsthand at the Sirois hearing. Edwards testified that he did not believe it was “safe” for him to testify (T: 673, 687, 701). Edwards also testified that he believed the attacks against him were retaliation for his having spoken to police about the shooting (T: 676-77). Moreover, Edwards' demeanor at the hearing, which the trial court observed firsthand, was consistent with that of a person who was afraid for his safety. As the court noted, during the hearing, Edwards “was visibly shaken, difficult to hear, and his testimony was marked by long pauses.” ECF No. 32-1 at 6-7.
Given Edwards' concerns over his safety, it was reasonable for the trial court to conclude that Edwards' refusal to attest to the truth of his prior statement to police was due to his fear and not, as Petitioner seemingly contends (Am. Pet. at 8), because the prior statement was false.
In short, the evidence adduced at the Sirois hearing amply supported the trial court's factual finding that Petitioner had participated in procuring Edwards' unavailability. Put differently, Petitioner has not shown that the trial court's finding was an unreasonable determination of the facts in light of the record as a whole. See e.g., Jernigan v. Brown, No. 08-CV-9289 (JGK) (DF), 2012 WL 2377082, at *10 (S.D.N.Y. May 1, 2012), report and recommendation adopted, 2012 WL 2394405 (S.D.N.Y. June 25, 2012) (denying habeas claim where trial court determined that evidence of telephone messages and history of violence toward witness showed that petitioner had procured witness' unavailability); Drummond v. Cunningham, No. 08-CV-4290 (KAM) (RLM), 2010 WL 5583116, at *9 (E.D.N.Y. Dec. 13, 2010) (“The Sirois hearing provided ample evidence of attempts to intimidate [the witness]; the timing of those threats, coupled with the role of petitioner's family and friend in attempting to influence [the witness], is sufficient to justify the trial and appellate courts' inference that petitioner likely knew of and acquiesced in those attempts.”), report and recommendation adopted, 2011 WL 132379 (E.D.N.Y. Jan. 17, 2011); Cotto v. Herbert, 331 F.3d 217, 234-35 (2d Cir. 2003) (upholding determination of witness's unavailability, which was based on witness's concern for his family and that the defendant was the only person who stood to benefit if witness refused to testify).
Nor has Petitioner shown that the state court's determination was contrary to, or involved an unreasonable application of, clearly established federal law. As discussed, under federal law, a defendant's right to confrontation is not violated by the admission of an out-of-court statement, where a defendant has participated in procuring the witness' unavailability. Davis, 547 U.S. at 833. Although the Second Circuit requires that a court find by a preponderance of the evidence that a defendant was responsible for a witness's unavailability, Cotto, 331 F.3d at 235, New York law sets an even higher standard. Under New York law, the prosecution must show, by clear and convincing evidence, that the defendant was responsible for the witness's unavailability. See Brown v. Smith, No. 06-CV-1429 (PKC), 2008 WL 4922014, at *9 (S.D.N.Y. Nov. 12, 2008) (noting that the prosecution bears the burden at a Sirois hearing of “present[ing] clear and convincing evidence that the defendant's misconduct caused the witness's refusal to testify”).
Here, the trial court found, by clear and convincing evidence, that Petitioner had procured Edwards' unavailability. See ECF No. 32-1 at 8. And as discussed, that finding is amply supported by the record. As such, the Appellate Division's rejection of Petitioner's Confrontation Clause claim was not contrary to, or an unreasonable application of, clearly established federal law. See Tatum, 481 Fed.Appx. at 660-61 (explaining that “a court's finding of admissibility under New York's higher standard, if correct, also satisfies the constitutional standard”); see also Cotto, 331 F.3d at 235 (noting that the federal standard “is actually less stringent than the New York standard.”).
In sum, Petitioner's Confrontation Clause claim is unexhausted, procedurally defaulted, and, in any event, meritless.
C. Petitioner's Fourteenth Amendment Claim that He was Denied a Fair Trial
Because the court concluded that Edwards was unavailable to testify, his audio-recorded statement was admitted into evidence at Petitioner's trial (Stalzer: 798-99). The recording was authenticated by Stalzer, the ADA who had taken Edwards' statement (Stalzer: 798-99). Stalzer was asked if she knew “if anybody was under arrest for the shooting” of Walters before she took Edwards' statement. Stalzer responded that she was “aware” that Petitioner “had been identified as the shooter” (Stalzer: 818) (emphasis added). In the trial court, the defense sought a mistrial, arguing that Stalzer's testimony was a blatant attempt to prejudice Petitioner (Stalzer: 819). The trial court denied defense counsel's motion, striking Stalzer's answer and offering a curative instruction (Stalzer: 821). The Appellate Division affirmed, concluding that the “drastic remedy of a mistrial was not warranted because the offending [answer] was not particularly harmful, and because the court's curative actions were sufficient to prevent any prejudice.” Santiago, 134 A.D.3d at 473.
Pointing to Stalzer's testimony, Petitioner argues that he was denied a fair trial because the jury heard testimony that a prosecutor, prior to taking Edwards' statement, knew that Petitioner had been identified as the shooter. Am. Pet. at 10-18. Petitioner claims that the ADA's testimony implicitly bolstered the evidence identifying him as the shooter and that the prejudice could not be remedied by a curative instruction. Am. Pet. at 15-18. Respondent counters that Petitioner has not stated a cognizable claim, but even if it were cognizable, the claim would fail on the merits. Resp't Br. at 21-28.
1. Petitioner's claim is exhausted.
Petitioner raised this precise claim in his direct appeal to the Appellate Division. ECF Nos. 32-3 at 31-35, 32-4 at 1-2. There, Petitioner argued that the trial court's refusal to “grant defense counsel's motion for a mistrial based on the hearsay identification testimony by [Stalzer] prejudiced [him] and deprived him of his due process right to a fair trial.” ECF No. 32-4 at 2. Moreover, in making that claim, Petitioner cited to the Fourteenth Amendment of the United States Constitution. Id. Petitioner then raised the same claim in his leave application to the New York Court of Appeals. See ECF No. 32-11 at 1- 3. Accordingly, Petitioner fairly presented his federal law claim to the state courts and the claim is therefore exhausted. See, e.g., Herron v. Fields, No. 17-CV-07221 (VEC) (DF), 2021 WL 706334, at *11 (S.D.N.Y. Jan. 7, 2021), report and recommendation adopted, 2021 WL 695111 (S.D.N.Y. Feb. 19, 2021) (finding petitioner exhausted his claim by raising it in constitutional terms before the Appellate Division as well as in his application for leave to appeal to the Court of Appeals).
2. Petitioner's claim is not cognizable on habeas review.
Petitioner claims that Stalzer's testimony amounted to improper bolstering of the evidence identifying him as the shooter. That claim, however, does not raise an issue cognizable on habeas review. The concept of “bolstering” is “at most a New York State rule or policy, derived from People v. Trowbridge, 305 N.Y. 471 (1953), which holds that it is error to permit an identification made by one witness to be corroborated by the testimony of another witness who merely testifies that the identification did occur.” Snow v. Reid, 619 F.Supp. 579, 582 (S.D.N.Y. 1985). “Although bolstering is a practice prohibited in various states, including New York, the practice is not forbidden by the Federal Rules of Evidence and is not sufficiently prejudicial to deprive a defendant of his due process right to a fair trial.” Vega v. Berry, No. 90 CV-7044 (LBS), 1991 WL 73847, at *2 (S.D.N.Y. Apr. 29, 1991). Because bolstering is at most a violation of state evidentiary rules, it does not present a basis for habeas relief. See Glover v. Burge, 652 F.Supp.2d 373, 377 (W.D.N.Y. 2009) (“An error of state evidentiary law is not a sufficient predicate for habeas relief, and the overwhelming weight of federal authority in this Circuit holds that ‘bolstering' of a prosecution witness' testimony does not state a constitutional claim redressable on federal habeas review.”); see also Ennis v. Artus, No. 09-CV-10157 (DAB) (GWG), 2011 WL 3585954, at *19 (S.D.N.Y. Aug. 12, 2011), report and recommendation adopted, 2012 WL 3957046 (S.D.N.Y. Sept. 10, 2012) (rejecting petitioner's bolstering claim because it “is an error of state law which is not available for habeas corpus review”); Lebron v. Sanders, No. 02-CV-6327 (RPP), 2008 WL 793590, at *20 (S.D.N.Y. Mar. 25, 2008) (holding that a violation of New York's “bolstering” rule is not cognizable on habeas review); Nieves v. Fischer, No. 03-CV-9803 (DC), 2004 WL 2997860, at *7 (S.D.N.Y. Dec. 28, 2004) (same); Smith v. Walsh, No. 00-CV-5672 (JG), 2003 WL 22670885, at *6 (E.D.N.Y. Oct. 20, 2003) (same); Benitez v. Senkowski, No. 97-CV-7819 (DLC), 1998 WL 668079, at *5 (S.D.N.Y. Sept. 17, 1998) (same). Consequently, Petitioner's claim, although exhausted, does not present a federal constitutional claim cognizable on habeas review.
D. Petitioner's Legal Sufficiency Claim
Petitioner's final claim is that the evidence at trial was legally insufficient to sustain his convictions of second-degree murder and attempted second-degree murder. Specifically, Petitioner contends that the prosecution failed to prove that he possessed the requisite intent to kill. Am. Pet. at 19-23. Respondent counters that Petitioner's legal sufficiency claim was rejected by the Appellate Division as unpreserved-an independent and adequate state procedural ground which precludes habeas review. Alternatively, Respondent argues that the Appellate Division's denial of the claim was not contrary to, nor an unreasonable application of, clearly established federal law. Resp't Br. at 29-30, 39. Respondent is correct.
1. Petitioner's legal sufficiency claim is unexhausted and procedurally defaulted.
At the close of the prosecution's case, Petitioner did not raise a legal sufficiency objection or seek a trial order of dismissal. See CPL § 290.10. On direct appeal, Petitioner raised a legal sufficiency claim in his supplemental pro se brief to the Appellate Division. See ECF No. 32-5 at 15-20. There, Petitioner argued that his conviction was based on legally insufficient evidence because the People did not prove that he had acted with the intent to kill. Id. at 15-16. In denying his appeal, the Appellate Division concluded that Petitioner's legal sufficiency claim was “unpreserved” and, alternatively, the court “considered and rejected” the claim. Santiago, 134 A.D.3d at 473. Petitioner did not raise a legal sufficiency claim in his leave application to the New York Court of Appeals. ECF No. 32-11 at 1-3.
Because Petitioner failed to present the claim in his leave application to the New York Court of Appeals, the claim is not exhausted. Smith, 411 F.3d at 345. As discussed, an unexhausted claim will nonetheless be deemed exhausted if the petitioner no longer has an available remedy in state court. See Bossett, 41 F.3d at 828-29. Petitioner has no available statecourt remedies to exhaust his legal sufficiency claim. Petitioner could have raised it in his leave application to the New York Court of Appeals, but failed to do so, and because the claim is record-based, Petitioner could not now raise the claim in a 440.10 motion. See Martinez, 2018 WL 10128083, at *14.
Petitioner's claim is thus deemed exhausted and procedurally defaulted. See Bossett, 41 F.3d at 825. Additionally, Petitioner does not present any basis to overcome that procedural bar. See Carvajal, 633 F.3d at 104. In any case, as discussed below, even if Petitioner's procedurally defaulted claim were reviewed on the merits, it would fail.
2. The Appellate Division's denial of Petitioner's legal sufficiency claim as unpreserved presents an independent and adequate state procedural bar to habeas review.
At trial, Petitioner never moved for a trial order of dismissal based on an argument that the prosecution had not introduced sufficient evidence of his intent to kill. Instead, Petitioner first raised a challenge to the legal insufficiency of the People's evidence on appeal. Consequently, the Appellate Division concluded that Petitioner's claim was unpreserved. Santiago, 134 A.D.3d at 473.
New York's contemporaneous objection rule (codified at section 470.05(2) of New York's Criminal Procedure Law) “provides that, with a few exceptions . . . New York appellate courts will review only those errors of law that are presented at a time and in a manner that reasonably prompted a judge to correct them during criminal proceedings.” Downs v. Lape, 657 F.3d 97, 103 (2d Cir. 2011). To preserve for appellate review “a challenge to the legal sufficiency of a conviction, a defendant must move for a trial order of dismissal, and the argument must be ‘specifically directed' at the error being urged,” because “a specific motion brings the claim to the trial court's attention, alerting all parties in a timely fashion to any alleged deficiency in the evidence, thereby advancing both the truth-seeking purpose of the trial and the goal of swift and final determination of guilt or nonguilt of a defendant.” People v. Hawkins, 11 N.Y.3d 484, 492 (N.Y. 2008)
The Second Circuit has consistently recognized New York's contemporaneous objection rule as an independent and adequate state procedural rule barring habeas review. See, e.g., Whitley v. Ercole, 642 F.3d 278, 292 (2d Cir. 2011); Brown v. Ercole, 353 Fed.Appx. 518, 520 (2d Cir. 2009); Garcia v. Lewis, 188 F.3d 71, 79 (2d Cir. 1999) (Federal courts “have observed and deferred to New York's consistent application of its contemporaneous objection rules.”); see also Velez v. Cunningham, No. 09-CV-6506 (NSR) (LMS), 2013 WL 5272953 (S.D.N.Y. Sept 17, 2013) (reasoning that habeas review of legal sufficiency claim was foreclosed where, “the appellate court determined that [p]etitioner procedurally defaulted this claim because he did not preserve [it] for appellate review by moving for a trial order of dismissal”) (citation omitted).
Here, the Appellate Division's determination that Petitioner's legal sufficiency claim was unpreserved presents an independent and adequate state procedural ground upon which to deny habeas relief. And because the Appellate Division explicitly invoked New York's contemporaneous objection rule as a basis for its decision, “federal habeas review is foreclosed even if the state court” also addressed the merits of the claim, as it did here. See Brown v. Fisher, No. 13-CV-2071 (NSR) (PED), 2015 WL 3619628, at *11 (S.D.N.Y. June 9, 2015); see also Geren v. Travis, 414 F.3d 288, 294 (2d Cir. 2005) (federal habeas review barred where state court held claim “not preserved for appellate review” but then ruled on the merits of the claim “in any event”) (citation omitted).
3. The Appellate Division's denial of Petitioner's legal sufficiency claim was not contrary to, or an unreasonable application of, federal law.
Even if reviewed on the merits, Petitioner's claim fails because the prosecution presented legally sufficient evidence demonstrating that Petitioner acted with the intent to kill. “[E]vidence is sufficient to support a conviction whenever, ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'” Parker v. Matthews, 567 U.S. 37, 43 (2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis omitted)). Triers of fact have “broad discretion in deciding what inferences to draw from the evidence presented at trial, requiring only that [they] draw reasonable inferences from basic facts to ultimate facts.” Santone v. Fischer, 689 F.3d 138, 148 (2d Cir. 2012) (citations, quotation marks, and italics omitted).
“A federal habeas court reviewing an insufficient evidence claim must look to state law to determine the elements” of the offense. Dzebolo v. Perez, No. 07-CV-3421 (ER) (GAY), 2012 WL 4763090, at *6 (S.D.N.Y. Jan. 12, 2012) (citing Quartararo v. Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999)), report and recommendation adopted, 2013 WL 81335 (S.D.N.Y. Jan. 7, 2013). In New York, a person is guilty of second-degree murder if “[w]ith intent to cause the death of another person, he causes the death of such person . . .” N.Y. Penal Law § 125.25(1); see also Negrin v. Keyser, No. 17-CV-3930 (ARR), 2019 WL 11626173, at *3 (E.D.N.Y. May 20, 2019) (discussing Penal Law § 125.25(1)). And “[t]he crime of attempted second degree murder is committed when, with the intent to cause the death of another person, one engages in conduct which tends to effect commission of that crime.” People v. Fernandez, 88 N.Y.2d 777, 783 (N.Y. 1996) (citing Penal Law §§ 110.00, 125.25(1)). “A person acts intentionally . . . when his conscious objective is to cause such result.” Penal Law § 15.05(2). Moreover, under the transferred-intent doctrine, “where the resulting death is of a third person who was not the defendant's intended victim, the defendant may nonetheless be held to the same level of criminal liability as if the intended victim were killed.” Fernandez, 88 N.Y.2d at 781. This doctrine serves to “ensure that a person will be prosecuted for the crime he or she intended to commit even when, because of bad aim or some ‘lucky mistake,' the intended target was not the actual victim.” Id. (citation omitted).
Finally, on habeas review, “a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court.” Coleman v. Johnson, 566 U.S. 650, 651 (2012). Instead, a federal court on habeas review may overturn a state court decision rejecting a sufficiency challenge “only if the state court decision was ‘objectively unreasonable.'” Id. (quoting Cavazos v. Smith, 565 U.S. 1, 2 (2011)). To succeed on a legal sufficiency claim on habeas review, a petitioner “bears a very heavy burden” to show that no rational jury could have found the substantive elements of the offense beyond a reasonable doubt. Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 811 (2d Cir. 2000).
Here, the Appellate Division rejected Petitioner's legal sufficiency challenge and that determination was not objectively unreasonable. The evidence at trial proved, beyond a reasonable doubt, that Petitioner acted with the requisite intent to cause the death of McNeal. At trial, three witnesses identified Petitioner as the shooter-Marin, Hollington, and Jones. Marin saw Petitioner “pull out a gun” from his jacket and shoot once “towards the front of the building,” where a crowd of people had gathered (Marin: 192, 274-76). Similarly, Hollington observed Petitioner holding a gun and shooting in her direction, where she was standing in front of the apartment building (Hollington: 397-98). Jones also testified that he saw Petitioner fire two shots (Jones: 884-85). Additionally, the testimony of Marin, Hollington, and Jones was corroborated by video footage of the shooting, which captured Petitioner, standing only a short distance from where McNeal, Osborne, and others were standing in front of the apartment building, extending his arm outward in their direction, followed by a flash of “light” (Mangan: 598-99).
Although the Appellate Division found the claim to be unpreserved, it also stated that it had “considered and rejected” it, indicating that the court had reached the merits of the claim. Santiago, 134 A.D.3d at 473. In any case, Petitioner also raised a weight-of-the-evidence claim in his direct appeal and the Appellate Division rejected that claim as well. Id. at 472. In rejecting Petitioner's weight-of-the-evidence claim, the Appellate Division necessarily assessed the sufficiency of the evidence underlying Petitioner's conviction. See Parker v. Ercole, 666 F.3d 830, 834-35 (2d Cir. 2012) (explaining that “to the extent the Appellate Division decided that [the] conviction was not against the weight of the evidence, it necessarily decided that there was sufficient evidence to support the verdict”).
Moreover, Marin and Jones both testified to having observed an argument between Petitioner and McNeal (Marin: 188-90; Jones: 880-83). By the time Petitioner was outside of the apartment building, multiple witnesses testified that they saw Petitioner and McNeal “arguing back and forth” and at least four witnesses heard Petitioner tell McNeal that he wanted to fight him (Marin: 190, 206; Hollington: 395-36, 410-11; Lopez: 492-93; Jones: 883). And Hollington observed Osborne interjecting into the fight (Hollington: 396, 410). Hollington also testified that McNeal and Osborne were unarmed (Hollington: 424). Additionally, the People introduced a letter recovered from Petitioner's jail cell, where Petitioner had written that at the party “they violated [someone] from the hood, so I reacted” (Ellis: 345).
Collectively, this evidence showed that Petitioner wanted to fight McNeal and Osborne, felt “violated” by both men, and “reacted” by deliberately firing repeated shots from a close distance at McNeal and Osborne, both of whom were unarmed. As the Appellate Division found, those actions, “including the number of shots fired and the surrounding circumstances, supported an inference that [Petitioner] intended to kill two men with whom he had been involved in a dispute.” Santiago, 134 A.D.3d at 472. Based on the evidence, any rational trier of fact could have found that Petitioner demonstrated an intent to cause death. See People v. Brown, 46 A.D.3d 949, 950-51 (3d Dep't 2007) (evidence legally sufficient to support intentional murder conviction where defendant entered “crowded nightclub,” a “fight ensued during which defendant drew a handgun and shot” his intended victim and also fatally shot a bystander); People v. Jamison, 301 A.D.2d 539, 539 (2d Dep't 2003) (evidence legally sufficient to show intent to kill where defendant “fired one gunshot as complainant walked down street, and then fired another four gunshots as complainant fled down street,” killing an innocent bystander).
Petitioner was charged with attempted second-degree murder as to Osborne. Having shot Osborne in the ankle (Marin: 194), Petitioner came “dangerously near” the commission of a specifically intended crime-all that was required for the charge of attempted second-degree murder. People v. Naradzay, 11 N.Y.3d 460, 466 (N.Y. 2008) (explaining that an attempted crime requires that the defendant have come dangerously near the commission of his intended crime); see also People v. Fernandez, 88 N.Y.2d 777, 783 (N.Y. 1996) (explaining that attempted murder can be established even when the defendant fails to kill or even injure his intended victim).
That Petitioner hit an unintended target, Walters, does not undermine the jury's finding that Petitioner acted with the requisite intent. Under the transferred intent doctrine, “a defendant who intends to cause the death of one individual but instead causes the death of another, unintended victim bears the same criminal liability as that which would have resulted if the intended target had been killed.” People v. Hamilton, 127 A.D.3d 1243, 1245 (3d Dep't 2015); People v. Casseus, 120 A.D.3d 828, 829 (2d Dep't 2014) (finding evidence legally sufficient to support murder conviction, based on transferred intent theory, where defendant “fired several gunshots in the direction” of intended victims but struck and killed his friend); People v. Cruz, 154 A.D.3d 429, 429 (1st Dep't 2017) (rejecting legal sufficiency claim where “defendant fired shots with the intent to kill one or more of his enemies, whom he mistakenly believed to be present, and instead killed a bystander”).
Nor is it significant that McNeal's and Osborne's injuries were in their lower extremities and not life threatening, as Petitioner contends. Am. Pet. at 22. As an initial matter, the fact that Petitioner actually struck McNeal only further supports the inference that he intended to cause McNeal's death. Further, New York courts have found that the “inference of homicidal intent is not negated” even if the defendant “did not hit a more vital area such as the head or heart.” People v. Galarza, 127 A.D.3d 407, 408 (1st Dep't 2015) (upholding second-degree murder conviction where defendant fired shot and hit victim's groin); see also People v. Blue, 55 A.D.3d 391, 391 (1st Dep't 2008) (intent to kill established where defendant shot victim in groin and thigh). Indeed, the “location of [a victim's] wounds does not establish the direction of defendant's aim, and thus does not imply that defendant sought to avoid striking the victim in the head or upper body.” Blue, 55 A.D.3d at 391 (emphasis omitted). Consequently, the location of McNeal's and Osborne's wounds does not negate Petitioner's intent to cause death.
Lastly, Petitioner cites People v. Marrero, 67 A.D.2d 951, 951 (2d Dep't 1979), for the proposition that intent to cause death may not be inferred from the “mere fact” of killing. Am. Pet. at 22. In Marrero, the prosecution relied solely on the “defendant's confession” to prove his intent to cause death. 67 A.D.2d at 951. There, the defendant had confessed that “in the midst of a dispute with his wife, he lost control of himself and strangled her.” Id. The Appellate Division concluded that the “language of defendant's confession” did not prove his intent to cause death. Id. By contrast, here, the People's evidence showed more than a defendant merely losing control of himself. As discussed, the People showed that Petitioner intentionally pulled out a loaded gun and fired multiple shots in the direction of McNeal and Osborne, both of whom were standing by Walters and others. See e.g., Brown, 46 A.D.3d at 951 (2007) (concluding that defendant possessed intent to cause death where he entered crowded nightclub, got into a fight, drew a handgun, and shot).
In sum, Petitioner's legal sufficiency claim is unpreserved. Additionally, the state court's application of New York's contemporaneous objection rule is an independent and adequate procedural bar that precludes habeas review. Regardless, even if reviewed on the merits, a rational trier of fact could have found, based on the evidence at trial, that Petitioner acted with the intent required to support a conviction of second-degree murder under New York law. As such, the Appellate Division's decision was not objectively unreasonable and nor was it contrary to, or an unreasonable application of, clearly established federal law.
CONCLUSION
For the foregoing reasons, I respectfully recommend that the Amended Petition be DENIED.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to the Honorable Lewis J. Liman. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).