Opinion
21-CV-9138 (GHW) (JLC)
02-22-2023
DARIUS WADE, Petitioner, v. SUPERINTENDANT MELECIO, Respondent.
Honorable Gregory H. Woods, United States District Judge
REPORT AND RECOMMENDATION
JAMES L. COTT, UNITED STATES MAGISTRATE JUDGE
Darius Wade (“Wade”), proceeding pro se, brings this petition for a writ of habeas corpus under 28 U.S.C. § 2254, challenging his December 15, 2017, conviction in the Supreme Court of the State of New York, New York County, following a jury trial, of Criminal Possession of a Weapon in the Second Degree, pursuant to N.Y. Penal L. § 265.03(1)(b) (possession of a loaded firearm with intent to use unlawfully against another), and Criminal Possession of a Weapon in the Second Degree, pursuant to N.Y. Penal L. § 265.03(3)(possession of a loaded firearm outside the home or place of business). Wade was sentenced to eight years' imprisonment and five years' post-release supervision.
Wade's co-defendant, Clarence Houston (“Houston”), with whom he was jointly tried, was convicted of the same charges, and sentenced, as a second violent felony offender, to 10 years in prison. This petition solely addresses Wade's conviction.
Because Wade's claims are procedurally barred, do not merit habeas corpus relief, or both, I recommend that his petition be denied.
I. BACKGROUND
A. Overview
The following facts are drawn from the record of proceedings before the state trial court. In view of Wade's conviction, the Court summarizes the evidence presented at trial in the light most favorable to the verdict. See Garbutt v. Conway, 668 F.3d 79, 80 (2d Cir. 2012) (citation omitted).
The state court record, including the transcript of Wade's trial (“TR.”), People's Exhibits (“PX.”) and the post-conviction litigation record (“SR.”), is docketed on the Electronic Case Filing System (“ECF”) as docket entry number 17, Exhibits 1-6. Pinpoint citations refer to the pagination that runs throughout the transcripts and record. If there is no state court record citation available, the Court cites to the docket number (“Dkt. No.”) and pagination of the document on ECF.
At approximately 5:16 a.m. on April 2, 2016, on West 133rd Street (“West 133rd”) near Lenox Avenue (“Lenox”) in Harlem, an individual named Jeff Michel was shot once in the abdomen. Two witnesses heard gunshots, one of whom also saw two people running on Lenox, and shell casings from two semi-automatic weapons were found on West 133rd. No eyewitnesses to the shooting came forward, but the police obtained video footage that showed the movements of Wade, Houston, and Michel minutes before and after the shooting, but did not capture the shooting itself.
The defense challenged the admissibility of some of that video evidence, including the footage showing: (1) Wade and Houston brandishing what appear to be guns inside an illegal, makeshift casino on Lenox, where a number of people, including Michel, were gambling; (2) Michel and others quickly exiting the casino, followed close in time by Wade and Houston; (3) Michel, Wade, and Houston running; and (4) Wade and Houston hiding and retrieving objects from inside the wheel wells of two cars.
Wade and Houston were indicted for attempted murder in the second degree, assault in the first degree, and criminal possession of a weapon in the second degree, in connection with the shooting of Michel. The grand jury voted a true bill on November 2, 2016. On October 31, 2017, Wade and Houston began a joint trial in New York State Supreme Court, New York County, before the Honorable Michael Obus. On November 9, 2017, the jury deadlocked on the attempted murder and assault counts, but it convicted Wade and Houston on the weapons possession counts. Justice Obus declared a mistrial on the deadlocked counts, and those charges were dismissed. Wade was sentenced on December 15, 2017, to eight years in prison and five years of post-release supervision.
B. The Trial
1. The State's Case
Two witnesses testified to hearing multiple gunshots in the early morning hours of April 2, 2016, in Harlem. Daniel J. Walsh, who was inside F.D.N.Y. Ladder Co. 59, at 30 West 133rd between Lenox and Seventh Avenue (“Seventh”), testified that he heard five to seven and “possibly even more” gunshots at approximately 5:16 a.m., and that they sounded like they came from right outside the firehouse. Dkt. No. 17-5, TR. 36-38. Walsh recalled the time because it was around the same time that a firetruck returned to the firehouse. TR. 44-45.
The gunfire woke up Geraldine Kenny, who lived on an upper floor apartment on the east side of Lenox at West 133rd. Dkt. No. 17-5, TR. 195-97. Kenny reported to 911 that she heard six to ten gunshots, and saw two men on Lenox, one wearing dark clothing, the other wearing light or “white” clothing. TR. 197-99; 911 call transcript, PX. 14A. The man in white ran south on Lenox, stopped, then turned around and ran north, joining the man in dark clothing, after which together they ran north on Lenox, turning left onto West 134th, past a corner bodega. TR. 197.
Shermell Miller, a tape technician with the NYPD, testified that Michel called 911 from the corner of West 133rd and Seventh to report that he had been shot. Dkt. No. 17-5, TR. 82-83; 911 call transcript, PX.13A. By 5:20 a.m., Michel had arrived at Harlem Hospital seeking treatment for a gunshot wound. TR. 115- 18, 131 (Police Officer (“P.O.”) Whitney Martin's testimony); TR. 185-87 (Dr. Raga Sabbagh's testimony). Jeanette Scott Rowe, a Police Laboratory Criminalist, gave expert testimony that the lack of gunshot residue on Michel's clothing suggested that he was not shot at close range. TR. 167-74. Michel declined to cooperate with the police investigation, and he did not testify at trial. Dkt. No. 17-6, TR. 297 (Detective (“Det.”) William Acevedo (“Acevedo”)).
Police immediately responded to the shooting, and within an hour discovered 15 shell casings on West 133rd. Dkt. No. 17-5, TR. 97-98, 102 (P.O. Michael Carolan's testimony); TR. 56-57, 60-61 (P.O. Samuel Vasquez's testimony); TR. 215 (Kenny's testimony). Five of the shell casings came from bullets fired by a .45 caliber semi-automatic firearm, clustered on the north side of West 133rd, and 10 of the casings were from bullets fired from a .9 millimeter firearm, clustered on the south side of West 133rd. TR. 56, 69-74 (P.O. Vasquez); Dkt. No. 17-6, TR. 270, 283-85. Testifying as an expert, Detective James Valenti told the jury that the ballistics evidence suggested that the casings had been fired by one .45 caliber gun and one .9 millimeter gun. TR. 283-88.
ShotSpotter, an acoustical technology capable of detecting gunfire and pinpointing its point of origin, recorded 18 gunshots in rapid succession at 5:16 a.m., and indicated that the shots were fired in the vicinity of 106 West 133rd, between Lenox and Seventh, near the fire station. Dkt. No. 17-5, TR. 219-24 (ShotSpotter technical engineer Walter Collier testimony); ShotSpotter Report, PX. 12. Police witnesses testified that they believed the bullet casings were related to the Michel shooting because they were recovered close in time and proximity to the incident; on cross-examination, Wade's trial counsel, William Alford, elicited that gunfire was not an uncommon occurrence in the area. Dkt. No. 17-6, TR. 400 (Det. Killen).
(a) Video Evidence
Canvassing the area hours after the shooting, the police did not locate any eyewitnesses to the shooting. Dkt. No. 17-5, TR. 96-104 (P.O. Carolan). Det. Acevedo did, however, discover relevant video footage from cameras from: (1) an illegal casino in a second-floor apartment at 451 Lenox between West 132nd and West 133rd (“casino video”), PX. 4; (2) a bodega at 477 Lenox at the corner of West 134th (“bodega video”), PX. 5; (3) a barbershop at 100 West 134th between Lenox and Seventh (“barbershop video”), PX. 6; (4) a church at 118 West 133rd, across from the firehouse (“church video”), PX. 7D at 3:33; and (5) Harlem Hospital, located at Lenox and West 135th (“hospital video”), PX. 7D at 5:38. Dkt. No. 17-6, TR. 296-351.
The Court has reviewed the videos, still photographs, and other prosecution exhibits entered into evidence at trial, which Respondent provided by CD. These exhibits were also provided to Wade. See Dkt. No. 28.
The prosecution showed the jury video footage from the different cameras, PX. 4-6, and also created a chronological compilation of video clips from the different cameras showing images of Michel, Wade, and Houston before and after the shooting. The total length of the compilation video is about 5 minutes. PX. 7. The jury was also shown still photographs of images from the videos and from the area generally. PX. 4-6. Det. Christopher Killen recognized Wade and Houston in the videos from his years of working in the 32nd Precinct, and he identified them to the jury. Dkt. No. 17-6, TR. 382-83.
The compilation video identifies Michel with an orange arrow, Wade with a blue arrow, and Houston with a green arrow. Dkt. No. 17-5, TR. 229-34 (Jervaun Higgs, New York County District Attorney's Office Video Unit); PX. 7.
Witness testimony described the following images seen in the video compilation: (1) Wade and Houston arrive at the front door of the casino on Lenox between West 132nd and West 133rd at about 5:14 a.m., both wearing baseball caps, Wade in dark clothing and Houston in light-colored clothing; (2) Wade and Houston walk up the stairs to the second floor; (3) approximately 15 to 20 patrons, including Michel, are inside the casino, mostly standing around a craps table; (4) Wade and Houston enter the room, a man grabs Wade, and Wade and Houston gesture, seemingly angry, and brandish what appear to be guns; (5) the patrons duck or walk quickly into a small back room, and about 8 people, including Michel, leave the casino at approximately 5:15 a.m.; (6) Michel walks slowly south on Lenox, talking on a cell phone, and the other patrons walk in different directions; (7) still inside the casino, Wade walks into a smaller back room as if looking for someone, and he and Houston leave the casino approximately 20 seconds after Michel; (8) Wade, Houston, and Michel are on Lenox at the same time; Michel walks north toward West 133rd; (9) Wade and Houston try unsuccessfully to reenter the casino building, then they also walk away on Lenox; (10) gunshots audible on the church video are fired 12 seconds later, PX.7D at 3:33; (11) Michel runs west on West 133rd towards Seventh, past the firehouse, at 5:16:16. a.m., and a firetruck can be seen returning to the firehouse; (12) Houston runs south on Lenox between 132nd and 133rd, stops, and then runs north, at 5:16:36 a.m.; (13) Wade and Houston run past the bodega and turn left onto West 134th; and (14) Wade and Houston hide objects in the wheel wells of cars on West 134th, and Wade retrieves the objects about 30 seconds later. PX. 7; Dkt. No. 17-5, TR. 44-45 (Walsh); Dkt. No. 17-6, TR. 251, 258 (Jenkins); TR. 386-87 (Det. Killen); TR. 306-07, 327-28, 337, 361 (Det. Acevedo).
Det. Killen testified that it looked to him like Wade and Houston were holding semiautomatic weapons because they appeared to have slides “on the top.” Dkt. 17-6, TR. 387, 390-91.
Another patron named Gregory Harris can be seen with a firearm, but he remained in the casino until after the shooting occurred. Dkt. No. 17-6, TR. 353-54 (Det. Acevedo); PX.4.
Wade's appeal brief mistakenly says that Houston recovered the objects from the cars. Dkt. No. 17-3, SR.019.
Wade can be seen on video holding the object that appeared to be a gun while on the stairs leaving the casino, PX. 4, PX. 7 at 5:15.33-36, and while running by the bodega. Dkt. No. 17-6, TR. 303 (Det. Acevedo); PX. 5. The church video showed police officers canvassing the area with flashlights less than 10 minutes after the shooting. Dkt. No. 17-5, TR.100-02 (P.O. Carolan).
(b) Defense Objections to Video Evidence
The parties stipulated to the accuracy of the church and hospital videos. Dkt. No. 17-5, TR. 142-43.
(i) Bodega and Barbershop Videos
Det. Acevedo gave the following testimony about retrieving the footage from the bodega and barbershop. He examined the cameras outside the bodega and the barbershop and determined that they were working and capturing events in real time. Dkt. No. 17-6, TR. 301. The time and date stamp on the bodega video was accurate, and Det. Acevedo scrolled back to find the footage from approximately 5:17 a.m., which showed Wade and Houston run past the bodega on the corner of Lenox and 134th and turn left. TR. 302-03. The time and date stamp on the barbershop video was fast by 10 days and 13 hours. TR. 308-09. With this knowledge, Det. Acevedo scrolled back to find images of Wade and Houston hiding objects in the wheel wells of parked cars. TR. 314-15.
In other words, it showed the date and time as April 12, 2016, at 6:17 p.m. TR. 308-09, 314-15 (Det. Acevedo); PX. 5.
Det. Acevedo's usual practice was to copy video footage onto a thumb drive, but he could not do so here because the bodega video system was embedded in the ceiling, and no one at the barbershop had sufficient familiarity with the system to assist with the extraction process. TR. 298-308. Instead, Det. Acevedo recorded the bodega and barbershop footage on his police department cell phone. TR. 302, 310. The cell phone recording of the bodega video did not show the time and date stamp, but Det. Acevedo testified that the recording was an exact copy of the video from the bodega camera. TR. 303.
On cross-examination, Wade's trial attorney elicited from Det. Acevedo that he was not the custodian of the bodega or barbershop videos, had not installed those systems, and could not speak to whether those systems were ever maintained or checked for accuracy. TR. 304. Trial counsel objected to admission of both videos, arguing that the prosecution had not laid a proper foundation for their authentication. TR. 305, 312-13. Justice Obus overruled the objection, and instructed the jury that to “the extent that the questions that counsel has raised [about the bodega video] bear on the significance of [the video's] content, that's for you to decide.” TR. 305. As to the inaccurate time and date stamp on the barbershop video, the judge further instructed the jury that it needed to “consider all of this in terms of the significance, but the “foundation is sufficient.” TR. 314.
(ii) Casino Videos
Wade's trial counsel also objected to the admission of the casino footage, which was introduced into evidence through Leroy Jenkins, the casino operator, who testified after being arrested on a material witness warrant. Dkt. No. 17-6, TR. 250-51, 259. Several years before the morning of the shooting, Jenkins had installed eight cameras that showed activity inside the casino, on the staircase, and on Lenox. TR. 251. The date and time stamp was accurate, and the footage showed at trial was “an exact copy” of the footage from the morning of the shooting. Although Jenkins was not present when the relevant events occurred, he had previously seen the cameras recording what was happening in real time. TR. 253.
On cross-examination, trial counsel elicited from Jenkins that he had “never” checked the accuracy of any footage since installing the cameras, because it is “supposed to be correct.” TR. 266. Trial counsel objected to the admission of the casino videos on the ground that Jenkins could not properly authenticate them. TR.256-58, 262. The judge allowed them into evidence, with the caveat that, “[t]o the extent there's a fact question about its accuracy, that will be for you [the jury] to evaluate, but I believe at least the testimony we have is sufficient to permit” the casino videos to be introduced. TR. 257. Trial counsel later renewed his objection to the admission of the casino videos, and the judge again overruled the objection. TR. 267-68. In addition, Jenkins acknowledged that in the past, other patrons had brought guns into the casino. TR. 264.
2. Defense Case
After the prosecution rested, Wade's trial counsel moved for a trial order of dismissal, “based on the fact that the People have not established a prima facie” case. Dkt. No. 17-6, TR. 410. The judge denied that motion with the following explanation:
I realize there are factual questions for a jury to decide, but I do believe that viewing the evidence in a light most favorable to the People, as the Court is required to do in this procedural posture, that the evidence would be sufficient to support verdicts of guilty, so I will deny the motion to dismiss and I will be submitting the factual questions, of course, to the jury.TR. 411.
Wade did not testify at trial, introduce any evidence, or call any witnesses after the prosecution rested. Rather, trial counsel challenged the State's evidence and argued to the jury that the State had failed to prove Wade's guilt beyond a reasonable doubt. Dkt. No. 17-6, TR. 420-21. Through cross-examination, trial counsel prompted testimony indicating that no witness saw the shooting or could identify Wade as the shooter, that there was no direct evidence that the weapons were loaded or operable, and that prior violent disputes over money at illegal gambling sites had occurred. TR. 66 (P.O. Vasquez); TR. 103 (P.O. Carolan); TR. 121 (P.O. Martin); TR. 200 (Kenny); TR. 226 (Collier); Dkt. No. 17-6, TR. 262-64 (Jenkins); TR. 346 (Det. Acevedo); TR. 397 (Det. Killen); TR. 287 (Det. Valenti).
3. Summations, Charge, Verdict, and Sentencing
On summation, trial counsel argued, among other things, that it was the State's burden to prove every element of the charged crimes beyond a reasonable doubt, and that the State had not met that burden with respect to whether the weapons were even real, much less loaded and operable. TR. 428-29. Trial counsel further pointed out that the footage did not show that Wade and Houston were targeting Michel. Dkt. No 17-6, TR. 439-40. The prosecutor argued in closing that the defense conceded the identification of Wade and Houston in the footage, and that the reaction of the casino patrons strongly suggested that they were holding real guns. TR. 476, 482, 495, 505.
Justice Obus repeatedly instructed the jury that it was the State's burden to prove Wade's guilt of the element of each charge beyond a reasonable doubt; he specifically stated that the jury had to find, beyond a reasonable doubt, that Wade possessed firearms that were “loaded and operable,” meaning the firearms needed to be “capable of discharging ammunition.” TR. 523, 531-32, 536-38, 546-51.
On November 9, 2017, the jury deadlocked on the attempted murder and assault counts but convicted Wade and Houston on the weapons possession counts. Justice Obus declared a mistrial on the attempted murder and assault counts, and those charges were dismissed.
At Wade's December 15, 2017 sentencing hearing, trial counsel renewed the motion to dismiss, this time specifically arguing that the State had failed to present evidence that the weapon Wade possessed in the footage was loaded and operable. Dkt. No. 17-6, TR. 7-8. Justice Obus denied the motion, and sentenced Wade to eight years in prison and five years of post-release supervision. TR. 18.
C. Postconviction Proceedings
1. Direct Appeal
Wade appealed the conviction, and assigned counsel from the Center for 1Appellate Litigation and pro bono counsel from Arnold & Porter perfected the appeal. Dkt. No. 17-3, 5-42. Appellate counsel raised three arguments: (1) the People failed to prove that Wade possessed a loaded and operable firearm; (2) the video footage was not properly authenticated and therefore was improperly admitted into evidence; and (3) the eight-year sentence imposed on Wade, a first-time felony offender with strong family ties, was excessive. Appellate counsel filed a reply brief in response to the State's brief defending the conviction, in which it reiterated that the evidence was insufficient to sustain the conviction and that the footage had not been properly authenticated. Dkt. 17-3, SR. 097-111.
Wade conceded in his appellate brief that he was “captured on video holding an object resembling a gun shortly before the shooting,” but argued that: (1) it was “impossible to tell” whether the gun was “real, loaded, or operable based on a mere photograph”; and (2) the “evidence . . . that [Wade] may have displayed a gun at one point, and that someone, among a large group of people, fired a gun at another point . . . is not enough to prove that [he] possessed a loaded and operable firearm.” Dkt. No. 17-3, SR. 026.
On March 12, 2020, the Appellate Division, First Department, unanimously affirmed Wade's conviction. People v. Wade, 181 A.D.3d 477 (1st Dep't 2020). As to the legal sufficiency claim, that court: (1) deemed it unpreserved for appellate review; (2) declined to review it in the interest of justice; and (3) issued an “alternative holding” that rejected it on the merits:
The evidence established that defendants possessed two loaded and operable pistols. Although these weapons were not recovered, there
was overwhelming circumstantial evidence that defendants shot the victim, who did not cooperate with the authorities. Defendants were both seen holding pistols on surveillance videotapes, shortly before the nearby shooting of the victim, in which 18 shots were fired. The recovery of cartridge cases showed that two different types of pistols were used. An eyewitness saw defendants running from the scene, and the evidence also included video evidence that they not only fled, but sought to hide their pistols in car wheels. There was also video evidence from before the shooting supporting an inference that defendants were about to engage in coordinated violent behavior. Under the circumstances of this case, defendants' speculation that another person or persons might have fired the shots is unavailing.1Id.; SR.112-14.
With respect to the challenge to the admission of the footage, the court held that:
The totality of the evidence, including the relationship of the videotapes at issue to other videotapes that were undisputedly authenticated, supported the inference that the videotapes at issue depicted the relevant events, and any alleged uncertainty went to the weight to be accorded the evidence rather than its admissibility [citations omitted]. By a variety of methods, testifying officers were able to verify the accuracy of the videos at issue and the times at which they were recorded. Accordingly, the foundation was established by “reasonable inferential linkages” that were far from being “tenuous and amorphous” [citations omitted].Id. 114-15.
As to the third claim, the Court “perceive[d] no basis for reducing the sentences.” Id. Wade sought leave to appeal, and on May 12, 2021, the New York Court of Appeals summarily denied his request, People v. Wade, 35 N.Y.3d 1030 (June 30, 2021); Dkt. No. 17-3, SR. 121.
Wade does not raise the excessive sentence claim in his petition, and thus this report and recommendation does not address it. In any event, a challenge to the term of a sentence is not a violation of the Eighth Amendment if the sentence falls within the statutory range. See White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (“No federal constitutional issue is presented where . . . the sentence is within the range prescribed by state law.”).
Wade's leave letter is not part of the state court record.
2. Coram Nobis Petition
One month after the Court of Appeals denied leave to appeal, Wade filed in the Appellate Division a pro se motion for a writ of error coram nobis, arguing that appellate counsel had been ineffective. First, Wade claimed that appellate counsel should have argued that trial counsel was ineffective because they (1) failed to preserve the legal sufficiency claim; and (2) used the “wrong standard” in the motion to dismiss. Second, Wade claimed that appellate counsel should have challenged the constitutionality of the weapons possession statute, because it permitted conviction without proof that all the elements of the crime had been satisfied. Dkt. No. 17-3, SR. 122-46. The Appellate Division summarily denied Wade's motion. People v Wade, 2020 N.Y. Slip Op. 74952 (2020); SR. 158. On June 15, 2021, the Court of Appeals denied Wade leave to appeal. SR. 165.
3. The Present Petition
On October 25, 2021, Wade filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (the “Section 2254 petition”). See Petition for Writ of Habeas Corpus dated October 25, 2021, Dkt. No. 1. Wade paid the filing fee on December 8, 2021, and two days later, the matter was assigned to District Judge Gregory H. Woods. On December 10, 2021, Judge Woods directed Respondent to answer the petition, Dkt. No. 4, and referred the petition to me for a report and recommendation. Dkt. No. 5.
In his Section 2254 petition, Wade asserts three grounds for relief: (1) the People failed to prove that he possessed a loaded and operable firearm, because “there was no evidence that [he] ever fired a gun and no gun was ever recovered from the scene of the shooting” (the “legal sufficiency claim”); (2) the surveillance videos were not properly authenticated and the trial court abused its discretion in admitting them into evidence (the “authentication claim”), and (3) appellate counsel was ineffective, for the same reasons set forth in the coram nobis petition (the “ineffective assistance of appellate counsel claim”). Dkt. No. 1 ¶ 12.
Respondent opposed the petition on April 12, 2022, by filing an answer, memorandum of law, and the state court record. Dkt. No. 17. Respondent argued that the legal sufficiency claim is procedurally barred on independent and adequate state law grounds; the authentication claim is unexhausted and procedurally defaulted; and none of the three claims merits habeas relief. Dkt. No. 17-2.
In a memorandum of law in support of the Section 2254 petition, Wade incorporates the arguments by reference made in his state court appellate brief. Dkt. Nos. 29, SR. 5-41. Wade argues that the Appellate Division's affirmance was unreasonable because: (1) there was no evidence presented showing that he possessed a loaded and operable gun; (2) the footage showed only that he “had an object that appeared to be a gun,” and that the State “misstated” the state court record by claiming that he “h[e]ld a firearm in his right hand”; and (3) that it would have been “stronger” if appellate counsel had presented the legal sufficiency claim in the context of an ineffective assistance of trial counsel claim, rather than seeking interest of justice review. Dkt. No. 29 at 4, 8.
II. DISCUSSION
A. Legal Standards for Habeas Relief Under Section 2254
1. Exhaustion Doctrine
Under 28 U.S.C. § 2254, a federal court may not grant habeas relief unless the petitioner has first exhausted his claims in state court. See 28 U.S.C. § 2254(b)(1) (“An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that-(A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant.”); Section 2254(c) (“An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.”); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) (“[T]he state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition.”).
2. Procedural Bar to Claims Deemed Exhausted
Under “the doctrine of procedural default, . . . a federal court will not review the merits of claims, including constitutional claims, that a state court declined to hear because the prisoner failed to abide by a state procedural rule.” Martinez v. Ryan, 566 U.S. 1, 9 (2012) (citing Coleman v. Thompson, 501 U.S. 722, 747-48 (1991)). If a petitioner has failed to raise a particular claim in state court and would be precluded from doing so now because of a state procedural rule, the federal court “‘must deem the claim procedurally defaulted.'” Jones v. Murphy, 694 F.3d 225, 247 (2d Cir. 2012) (quoting Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011). Under these circumstances, the claim meets the technical requirements for exhaustion because state remedies are no longer “available” to the petitioner. Coleman, 501 U.S. at 732 (citing 28 U.S.C. § 2254(b)).
a. Independent and Adequate State Grounds for Procedural Bar
When a petitioner “fails to raise his federal claims in compliance with relevant state procedural rules, the state court's refusal to adjudicate the claim ordinarily qualifies as an independent and adequate state ground for denying federal review.” Cone v. Bell, 556 U.S. 449, 465 (2009) (citing Coleman, 501 U.S. at 731). A state court's reliance on the state procedural rule must be “clear from the face of the opinion” in order for it to qualify as an independent state law ground that would foreclose federal habeas review. Coleman, 501 U.S. at 735 (citation omitted). A state law ground is “only adequate to support the judgment and foreclose review of a federal claim if it is ‘firmly established and regularly followed' in the state.” Garvey v. Duncan, 485 F.3d 709, 713 (2d Cir. 2007) (quoting Lee v. Kemna, 534 U.S. 362, 376 (2002)).
However, even when the state law ground is firmly established and regularly followed, there are “exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question.” Lee, 534 U.S. at 376. The Supreme Court has outlined three factors that courts must consider in determining whether a state court's application of a firmly established and regularly followed state procedural rule is “exorbitant.” Id. at 381. These considerations, though not dispositive for determining adequacy, serve as guidelines in evaluating “‘the state interest in a procedural rule against the circumstances of a particular case.'” Garvey, 485 F.3d at 714 (quoting Lee, 534 U.S. at 381). As adopted and summarized by the Second Circuit, the factors a court must consider include:
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had “substantially complied” with the rule given “the realities of trial,” and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (quoting Lee, 534 U.S. at 381-85).
(b) Exceptions to Procedural Bar
When a federal habeas court deems such claims exhausted by virtue of the procedural default, the court cannot reach the merits of the claims “unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750.
To establish cause, a petitioner must demonstrate that “some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986); see also Gutierrez v. Smith, 702 F.3d 103, 111-12 (2d Cir. 2012). “A petitioner suffers actual prejudice if the outcome of the case would likely have been different absent the alleged constitutional violation.” Collins v. Artus, No. 08-CV-1936 (PKC) (JCF), 2009 WL 2633636, at *8 (S.D.N.Y. Aug. 26, 2009) (citing Reed v. Ross, 468 U.S. 1, 12 (1984)).
Absent a demonstration of cause and prejudice, a petitioner is entitled to habeas review only if he can demonstrate that denying review would result in a “fundamental miscarriage of justice.” Murray, 477 U.S. at 495-96. A court may only grant such relief in an “extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Id. at 496. To be credible, a claim of actual innocence must be supported by “new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). Actual innocence “‘means factual innocence, not mere legal insufficiency.'” Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (quoting Bousley v. United States, 523 U.S. 614, 623 (1998)).
3. Standards of Review Under the Antiterrorism and Effective Death Penalty Act
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) applies to claims that overcome the exhaustion and procedural hurdles and warrant substantive review; 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, 694 F.3d at 234 (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).
Under the first prong, the “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, as determined by the Supreme Court' when ‘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.'” Id. at 544 (quoting Williams, 529 U.S. at 412-13); see also Parker v. Matthews, 567 U.S. 37, 48-49 (2012) (circuit precedent, even if “merely reflect[ing]” Supreme Court precedent, does not constitute “clearly established federal law” for purposes of § 2254(d)(1)).
A state court makes an unreasonable application of federal law if it “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, 426 (2014). Such application of federal law must be “‘objectively unreasonable,' not merely wrong; even ‘clear error' will not suffice.” Id. at 419 (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). The standard “is difficult to meet,” and it was intended to be. Metrish v. Lancaster, 569 U.S. 351, 357-58 (2013) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011)).
Under the second prong, a state court's determination of fact “may not [be] characterize[d] . . . as 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. If ‘[r]easonable 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.
4. Pro Se Status
A petitioner bears the burden to establish, by a preponderance of the evidence, that his constitutional rights have been violated. See, e.g., Cardoza v. Rock, 731 F.3d 169, 178 (2d Cir. 2013). However, the submissions of a pro se petitioner are held to less stringent standards than formal pleadings drafted by lawyers. See, e.g., Davis v. Walsh, No. 08-CV-4659 (PKC), 2015 WL 1809048, at *1 n.1 (E.D.N.Y. Apr. 21, 2015) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)). Courts must liberally construe a “pro se petition ‘to raise the strongest arguments' it suggests.” Id. (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 472 (2d Cir. 2006)). Pro se status, however, “does not exempt a party from compliance with relevant rules of procedural and substantive law.” Triestman, 470 F.3d at 477 (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
B. Analysis
1. Sufficiency of the Evidence
(a) Procedural Bar
On direct appeal, Wade claimed that his conviction for criminal possession of a weapon in the second degree should be reversed and dismissed because the evidence adduced at trial was legally insufficient to establish that he possessed a loaded and operable firearm. The Appellate Division denied Wade's claim on the ground that he “did not preserve” the legal sufficiency claim at trial, and that his “postverdict arguments had no preservation effect.” Wade, 181 A.D.3d at 477, Dkt. No. 17-3, SR. 112-14. In an alternative holding, that court rejected the legal sufficiency claim on the merits. Wade sought leave to appeal to the New York Court of Appeals, and the application was denied. People v. Wade, 35 N.Y.3d 1030 (June 30, 2021); Dkt. No. 17-3, SR. 121.
The procedural bar for independent and adequate state law grounds applies even when, as here, the state court addressed the merits in reaching an alternative holding. See, e.g., Whitley, 642 F.3d at 286, n.8; see also Harris v. Reed, 489 U.S. 255, 264, n.10 (1989) (“[A] state court need not fear reaching the merits of a federal claim in an alternative holding); Green 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”).
(b) Independent and Adequate State Law Ground
The Appellate Division relied on an independent and adequate state law ground for its refusal to adjudicate the legal sufficiency claim. The New York contemporaneous objection law, codified at Section 470 of the New York Criminal Procedure law, is “purely a matter of state law.” Watkins v. Artus, No. 08-CV-5891 (RJH) (MHD), 2010 WL 5060861, at *11 (S.D.N.Y. July 22, 2010), adopted by 2010 WL 5060883 (Dec. 8, 2010); N.Y. C.P.L. § 470.05(2). The rule “‘has been interpreted by New York courts to require, at the very least, that any matter which a party wishes to preserve for appellate review be brought to the attention of the trial court at a time and in a way that gave [it] the opportunity to remedy the problem and thereby avert reversible error.'” Downs v. Lape, 657 F.3d 97, 103 (2d Cir. 2011) (quoting Whitley v. Ercole, 642 F.3d 278, 286 (2d Cir. 2011)) (internal quotation marks omitted).
Although it declined to review the sufficiency based on lack of preservation, the Appellate Division did not cite Section 470.05(2). Still, a habeas court may determine that the state appellate court relied on the contemporaneous objection rule even though the statute was not specifically invoked. See, e.g., Frazier v. Lilley, No. 18-CV-7240 (NSR) (JCM), 2020 WL 13561689, at *9 (S.D.N.Y. Nov. 12, 2020), adopted by 2022 WL 4661999 (S.D.N.Y. Sept. 30, 2022); Burwell v. Lafflin, No. 14-CV-3070 (GHW), 2016 WL 8677292, at *6 (S.D.N.Y. Aug. 5, 2016) (“although the ‘Appellate Division did not expressly state that its decision . . . rested on [N.Y. C.P.L. § 470.05(2) as] a state procedural bar,” the state court's statement that the defendant's “remaining claims are unpreserved and we decline to review them in the interest of justice” was sufficient to establish that it was relying on the contemporaneous objection rule) (quoting Baptiste v. Ercole, No. 08-CV-8026 (DAB), 2011 WL 611821, at *2-3 (S.D.N.Y. Feb. 16, 2011)); Holguin v. Lee, No. 13-CV-1492, (LGS) (JLC), 2014 WL 5508331, at *8 (S.D.N.Y. Oct. 31, 2014), adopted by 2016 WL 1030129 (Mar. 10, 2016); Gonzalez v. Cunningham, 670 F.Supp.2d 254, 261 (S.D.N.Y. 2009) (collecting cases).
It is thus “clear from the face of the opinion” that the state court relied on an independent state law ground that would foreclose federal habeas review. Coleman, 501 U.S. at 735. The Appellate Division, in holding that Wade “failed to preserve” his constitutional claim, Wade, 181 A.D.3d at 477, clearly indicated that the lack of a specific and contemporaneous objection was an independent ground for its judgment. See, e.g., Scott v. Graham, No. 16-CV-2372 (KPF) (JLC), 2017 WL 2820061, at *9 (S.D.N.Y., 2017) (“As the Appellate Division's reliance on the state-law preservation requirement was evident from the face of the court's decision [while not citing the statute], that decision demonstrates that the court relied on an ‘independent' state-law ground for rejecting Petitioner's claim.”) (citing Person v. Ercole, No. 08-CV-7532 (LAP) (DF), 2015 WL 4393070, at *18 (S.D.N.Y. July 16, 2015)).
When the state court's decision rests on an independent procedural bar, “a federal court must still determine whether that state procedural ground is adequate to support the judgment.” Jimenez v. Walker 458 F.3d 130, 138 (2d Cir. 2006). The Second Circuit has “held repeatedly” that New York's preservation requirement is a “firmly established and regularly followed” state procedural rule. Downs, 657 F.3d at 104 (citing Whitley, 642 F.3d at 286-87); Richardson v. Greene, 497 F.3d 212, 219 (2d Cir. 2007); Garvey, 485 F.3d at 718; Taylor v. Harris, 640 F.2d 1, 2 (2d Cir. 1981) (per curiam)).
The Court must next consider whether this is an “exceptional” case in which the “exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question.” Lee, 534 U.S. at 376. Under an analysis of the Cotto factors, the Court finds the Appellate Division's application of the rule was not exorbitant.
The first consideration under Cotto is whether the trial court “actually relied on” the procedural default. Here, it is “meaningless to ask whether the alleged procedural violation was actually relied on in the trial court-the violation only first occurred when defendant raised an argument on appeal that he had not raised earlier.” See Garvey, 485 F.3d at 719. Indeed, had the contemporaneous objection rule been complied with, the trial court would have had the opportunity to directly address the legal sufficiency claim that Wade raises here. This factor is thus “less applicable in this case because the lack of a contemporaneous objection would not, almost by definition, be mentioned by the trial court.” Cotto, 331 F.3d at 242; see, e.g., Kozlowski v. Hulihan, 511 Fed.Appx. 21, 26 (2d Cir. 2013) (“[W]e are not now in a position to opine on what that court might have done in the hypothetical circumstance that petitioners had advanced their constitutional argument.”).
The second Cotto factor-whether New York law requires compliance with the rule in the circumstances presented-weighs in favor of finding the state court's decision adequate. New York courts have long held that to preserve a challenge to the legal sufficiency of a conviction under Section 470.05(2), a defendant must move for a trial order of dismissal, and “specifically direct[]” the trial court's attention to the error being urged. See, e.g., People v. Hawkins, 11 N.Y.3d 484, 492 (2008) (citing People v Hines, 97 N.Y.2d 56, 62 (2001)), People v Gray, 86 N.Y.2d 10, 19 (1995)); see also Bowman v. Racette, No. 12-CV-4153 (LTS) (SN), 2015 WL 1787130, at *30 (S.D.N.Y. Apr. 20, 2015) (finding challenge to sufficiency of the evidence barred from habeas review because the Appellate Division found it unpreserved, and noting that the “failure to object at trial when required by New York's contemporaneous objection rule, C.P.L. § 470.05(2), is an adequate and independent state ground”).
Finally, the third factor under Cotto-whether Wade sufficiently complied with the rule in light of the realities of trial-also weighs in favor of finding the state law adequate to foreclose federal review. At the close of the People's case, trial counsel moved to dismiss “based on the fact that the People have not established a prima facie” case, but he did not specifically argue that what was lacking was proof that the weapon was loaded or operable. Dkt. No. 17-6, TR. 410. General objections like these do not provide a basis for the trial court to “rule on and possibly rectify any alleged legal error.” Garvey, 485 F.3d at 720. Wade did not simply violate the “formal requirements” of Section 470.05(2), but rather “the very essence” of the rule. See id.; see also Whitley, 642 F.3d at 290 (noting that compliance with the rule serves the legitimate purpose that, “[a]t a bare minimum, the trial court could have developed a factual record supporting its decision[s] that could then properly be reviewed on appeal”)
Trial counsel made the specific “loaded and operability” objection at the sentencing phase of the proceedings, but, as the Appellate Division held, 181 A.D.3d at 478, post-verdict motions do not preserve sufficiency issues for appeal. See Hines, 97 N.Y.2d at 61 (in a post-verdict motion, “an insufficiency argument may not be addressed unless it has been properly reserved for review during the trial”); see also Papas v. Chappius, No. 15-CV-1082, 2018 WL 1033247, at *6 n.2 (E.D.N.Y. Feb. 22, 2018) (New York law is “clear” that a post-verdict motion does not preserve issues for appeal) (quoting People v. Padro, 75 N.Y.2d 820, 821 (1990)); Fernandez v. Smith, 558 F.Supp.2d 480, 491 (S.D.N.Y. 2008) (“Under New York state law, neither a general motion to dismiss nor a post-verdict motion is sufficient to preserve an issue for appeal.”).
For these reasons the Appellate Division's application of the rule was not exorbitant in this case.
(c) No Cause and Prejudice or Fundamental Miscarriage of Justice
Wade argues that trial counsel failed to preserve the legal sufficiency issue for appeal. Although Wade does not assert an independent ineffective assistance of trial counsel claim, in certain circumstances, ineffective assistance of counsel may constitute cause for a procedural default. See, e.g., Murray, 477 U.S. at 488-89; Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000). However, “the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default.” Murray, 477 U.S. at 486. In other words, a defense counsel's ineffectiveness in failing to properly preserve a claim for review in state court can suffice to establish cause for a procedural default only when counsel's “ineptitude rises to the level of a violation of a defendant's Sixth Amendment right to counsel.” Aparicio v. Artuz, 269 F.3d 78, 91 (2d Cir. 2001) (citing Edwards v. Carpenter, 529 U.S. 446, 451 (2000)).
Trial counsel's failure to preserve the legal sufficiency issue for appellate review, standing alone, does not rise to the level of ineffective assistance, and thus is insufficient to establish cause for the procedural default. Murray, 477 U.S. at 486. In any event, even if Wade had asserted a separate ineffective assistance of counsel claim, the legal sufficiency claim does not merit habeas relief, and thus he cannot show the requisite prejudice.
As discussed in Section 3, infra at 47 n.21, the record does not support a finding that trial counsel was ineffective.
Additionally, Wade's submissions do not establish that a failure to consider this claim would result in a fundamental miscarriage of justice resulting in the conviction of one who is actually innocent. See Murray, 477 U.S. at 496. Wade argues that the evidence against him was legally insufficient, but at no point does he claim to be actually innocent. Dunham, 313 F.3d at 730 (noting that actual innocence “means factual innocence, not mere legal insufficiency”) (citation omitted). Moreover, Wade does not provide any new or reliable exculpatory evidence that was not presented at trial, instead relying entirely on arguments that were made to the state courts. Schlup, 513 U.S. at 324 (credible claim requires new reliable evidence that was not presented at trial.)
Despite the procedural deficiencies discussed above, for completeness, the Court will address the merits of Wade's legal sufficiency claim as well.
(d) Standard for Legal Sufficiency Claim
When a court reviews a legal sufficiency claim, it must evaluate the trial evidence “in the light most favorable to the prosecution” and uphold the conviction so long as “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original) (citation omitted). Legal sufficiency claims “face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference.” Coleman v. Johnson, 566 U.S. 650, 651 (2012); accord Parker v. Matthews, 567 U.S. 37, 43 (2012). “First, on direct appeal, ‘it is the responsibility of the jury-not the court-to decide what conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury.'” Coleman, 566 U.S. at 651 (quoting Cavazos v. Smith, 565 U.S. 1, 2 (2011)).
“[S]econd, 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. The federal court instead may do so only if the state court decision was ‘objectively unreasonable.'” Id. (quoting Cavazos, 565 U.S. at 2) (some internal quotation marks omitted). Thus, a petition will be denied if it is “possible” that a fair-minded jurist could agree with the state court's decision. Richter, 562 U.S. at 102.
“[F]ederal courts must look to state law for ‘the substantive elements of the criminal offense'” when evaluating legal sufficiency claims. Coleman, 566 U.S. at 655 (quoting Jackson, 443 U.S. at 324 n.16). However, “the minimum amount of evidence that the Due Process Clause requires to prove the offense is purely a matter of federal law.” Id. And federal law “leaves juries broad discretion in deciding what inferences to draw from the evidence presented at trial, requiring only that jurors ‘draw reasonable inferences from basic facts to ultimate facts.'” Id. (quoting Jackson, 443 U.S. at 319); Layne v. Capra, No. 17-CV-6736 (AT) (GWG), 2018 WL 5258584, at *9 (S.D.N.Y. Sept. 17, 2018), adopted by 2018 WL 5255171, at *1 (Oct. 22, 2018).
Wade was convicted of two counts of Criminal Possession of a Weapon in the Second Degree. N.Y. Penal L. § 265.03. New York law provides that a person is guilty of violating Section 265.03(1)(b) when he possesses a loaded, operable firearm “with intent to use the same unlawfully against another,” and guilty of violating Section 265.03(3) when he “possesses any loaded firearm” outside of his home or business. Aparicio, 269 F.3d at 97; Layne, 2018 WL 5258584, at *10. “Although the definition of firearm in Section 265.03(3) does not include the requirement that it be operable, courts have held that a person cannot be convicted of criminal possession of a weapon . . . unless the People prove that the firearm possessed by the defendant is operable.” People v. Wesley, 168 A.D.2d 940, 941 (4th Dep't 1990); People v. Longshore, 86 N.Y.2d 851, 852 (1995) (“Although the statute is silent on the point, it is now accepted that to establish criminal possession of a handgun the People must prove that the weapon is operable”); People v. Cavines, 70 N.Y.2d 882, 883 (1987) (evidence that gun and ammunition were operable was sufficient to support conviction under Section 265.03(2)); People v. Aponte, 249 A.D.2d 553 (2d Dep't 1998) (reversing conviction under Section 265.03(2) because trial court did not charge the jury on the element of operability).
(d) Application
Viewing the evidence in the light most favorable to the prosecution and drawing all inferences in the prosecution's favor, as the Court must do, a rational juror could have drawn the inference that, although the weapon was not recovered, Wade possessed a loaded and operable weapon. The footage showed that minutes before and after the shooting, Wade and Houston brandished weapons in the same room where Michel stood; were within a short distance of Michel on Lenox; ran while still holding the weapons; and hid and subsequently retrieved the weapons from cars. Further, witness testimony and ballistics evidence suggested the involvement of two shooters using two different weapons, and that the shooting happened from a distance.
The jury was admonished that the State needed to prove Wade's guilt beyond a reasonable doubt with respect to every element of the crimes charged, including that the weapon was loaded and operable. Dkt. No. 17-6, TR. 523, 531-32, 536-38, 546-51. The jury was entitled to credit the evidence presented to conclude that Wade possessed a loaded and operable weapon, even in the absence of any direct evidence.
Wade claims that Respondent “misstated” the state court record by asserting that there was evidence that he possessed a loaded and operable weapon. Respondent may permissibly argue what it believes the evidence demonstrated.
To be sure, Wade's argument focuses on the lack of direct evidence. The Appellate Division, however, deemed “overwhelming” the circumstantial evidence of Wade's involvement in the shooting. Id. Federal courts have long recognized that “circumstantial evidence is not inherently weaker than direct evidence.” LaTorres v. Walker, 216 F.Supp.2d 157, 168 (S.D.N.Y. 2000) (citing United States v. Brown, 236 F.2d 403, 405 (2d Cir. 1956) (“This Circuit . . . has unequivocally rejected the view that circumstantial evidence is probatively inferior to direct evidence and that its sufficiency is, therefore, to be determined by a different, more stringent test, than is applied to direct proof.”) A conviction may be based upon circumstantial evidence and inferences based upon the evidence . . . .” Bossett v. Walker, 41 F.3d 825, 830 (2d Cir. 1994) (quoting United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993)); see also Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996) (noting that the Jackson standard may be satisfied “entirely by circumstantial evidence”); Browder v. Kirkpatrick, No. 16-CV-4047, 2020 WL 5577708, at *6 (E.D.N.Y. Sept. 17, 2020) (“The fact that the prosecution did not tie the bullet and shell casings at the scene to a particular gun or recover a gun from the shooting does not undermine the sufficiency of the evidence.”).
In sum, the jury could have rationally relied on the evidence introduced at trial, which created a reasonable chain of inferences of Wade's guilt on the weapons charges.
On direct appeal, Wade also argued that the verdict was against the weight of the evidence. Dkt. No. 17-3, SR.025. The Appellate Division held that the verdict was “not against the weight of the evidence.” Wade, 181 A.D.3d at 477. A weight of the evidence claim is exclusively a matter of state law, and therefore presents no federal question reviewable by a federal habeas court. See, e.g., McKinnon v. Superintendent, Great Meadow Corr. Facility, 422 Fed.Appx. 69, 75 (2d Cir. 2011) (summary order) (“[T]he argument that a verdict is against the weight of the evidence states a claim under state law, which is not cognizable on habeas corpus.”); Scott, 2017 WL 2820061, at *19 (state court's review of weight claim “necessarily subsumed review of [petitioner's] sufficiency claim”) (quoting Parker v. Ercole, 666 F.3d 830, 835 (2d Cir. 2012)), adopted by 2018 WL 5257613 (Oct. 22, 2018). For this reason, the Court does not address this claim.
2. Authentication Claim
(a) Procedural Bar
Respondent argues that Wade's authentication claim is unexhausted because he failed to raise it in the state court in federal constitutional terms, and therefore is procedurally barred. Dkt. No. 17 at 3. Wade does not address the exhaustion issue.
Exhaustion “requires that the prisoner ‘fairly present' his constitutional claim to the state courts, which he accomplishes ‘by presenting the essential factual and legal premises of his federal constitutional claim to the highest state court capable of reviewing it.'” Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014) (quoting Rosa v. McCray, 396 F.3d 210, 217 (2d Cir. 2005)). “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.'” Id. (quoting Carvajal, 633 F.3d at 104).
A petitioner may fairly present his claim to a state court by:
(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, [or] (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.Carvajal, 633 F.3d at 104 (quoting Daye v. Att'y Gen. of New York, 696 F.2d 186, 194 (2d Cir. 1982) (en banc)).
(b) Application
It is not clear from the record before the Court that the authentication claim is exhausted. In the appeal and reply briefs submitted to the Appellate Division, Wade asserted that the challenged videos were not properly authenticated under state evidentiary practices, but he did not cite to federal cases or the United States Constitution. At least two of the cited state cases, however, refer to federal cases. See People v. Price, 29 N.Y.3d 472, 476 (2017) (“In order for a piece of evidence to be of probative value, there must be proof that it is what its proponent says it is. The requirement of authentication is thus a condition precedent to admitting evidence.”) (citing United States v. Sliker, 751 F.2d 477, 497 (2d Cir. 1984)); People v McGee, 49 N.Y.2d 48, 59 (1979) (“In determining whether a proper foundation has been laid for the introduction of real evidence, the accuracy of the object itself is the focus of inquiry, which must be demonstrated by clear and convincing evidence.”) (citing United States v Fuentes, 563 F.2d 527, 532 (2d Cir. 1977)). Dkt. No. 17-3, SR.030.
Whether the citation to these cases was likely to alert the Appellate Division to a constitutional claim is unclear. The referenced cases do not “employ[] constitutional analysis” or necessarily call to mind a specific constitutional right. Daye, 696 F.2d at 194; Williams v. Lee, No. 14-CV-597 (NSR) (JCM), 2017 WL 10873716, at *17 (S.D.N.Y. Dec. 4, 2017) (appellate submissions focusing “solely on the trial court's application of” state evidentiary rules and that “fail[ed] to reference the Constitution, federal cases applying constitutional analysis, or state cases applying a constitutional analysis in like fact situations” did not fairly present federal habeas claim), adopted by 2019 WL 935958 (Feb. 26, 2019).
Notably, Wade's appellate brief cited the Fourteenth Amendment to the United States Constitution in connection with the legal sufficiency claim, SR. 021- 22, which suggests that the omission of any reference to federal constitutional principles with respect to the authentication claim may have been deliberate. Moreover, Wade's leave letter to the New York Court of Appeals is not available, and thus it is unknown whether the federal nature of the authentication claim was fairly presented to that court. The State's letter opposing leave, which is part of the record, did not address any federal or constitutional claims, which suggests that Wade's leave letter did not either. SR. 116-20.
Under these circumstances, in light of Wade's pro se status, and for completeness, the Court will address the merits of the authentication claim.
Accordingly, the Court need not make a determination as to cause and prejudice or a fundamental miscarriage of justice. Wade makes no arguments with respect to either issue, and, suffice it to say, the Court sees no basis for any such finding.
(c) Standard for Challenge to Evidentiary Rulings
Challenges to a state court's evidentiary rulings, even if erroneous, concern matters of state law and, as such, are not generally cognizable on habeas review. See 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[l]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”). A federal court cannot grant habeas relief as a result of an allegedly incorrect evidentiary ruling “unless the alleged errors are so prejudicial as to constitute fundamental unfairness,” in violation of the petitioner's constitutional right to due process. Nunez v. Conway, 923 F.Supp.2d 557, 568 (S.D.N.Y. 2013); see also Vega v. Walsh, 669 F.3d 123, 126 (2d Cir. 2012).
In assessing whether a state court's allegedly erroneous admission of evidence deprived a petitioner of his right to a fair trial, federal habeas courts consider “(1) whether the trial court's evidentiary ruling was erroneous under state law, and (2) whether the error amounted to the denial of the constitutional right to a fundamentally fair trial” under clearly established Supreme Court precedent. Taylor v. Connelly, 18 F.Supp.3d 242, 257 (E.D.N.Y. 2014) (citing Wade v. Mantello, 333 F.3d 51, 59-60, n.7 (2d Cir. 2003)); see also Evans v. Fischer, 712 F.3d 125, 133 (2d Cir. 2013).
Such claims are a “doubly difficult challenge” because “[t]he combination of the Supreme Court's ‘fundamental fairness' cases and the limited habeas jurisdiction granted by AEDPA” means that Wade must (1) establish that the effect of the admission of the surveillance video was so prejudicial to his defense that he was deprived of due process and (2) identify a Supreme Court case that clearly establishes that the admission of the evidence constitutes a violation of the Fourteenth Amendment. Evans, 712 F.3d at 133.
(d) Application
Under these standards, the Court cannot find that the admission of the contested video footage deprived Wade of a fundamentally fair trial. With respect to the first prong of the analysis-whether the admission of the footage was erroneous under New York law-the “decision to admit or exclude videotaped evidence that is relevant to prove or disprove a material issue rests “within a trial court's founded discretion.” People v. Patterson, 93 N.Y.2d 80, 84 (1999). For a piece of evidence to be relevant, there “must be proof that it is what its proponent says it is. The requirement of authentication is thus a condition precedent to admitting evidence.” People v. Price, 29 N.Y.3d 472, 476 (2017). “Accuracy or authenticity is established by proof that the offered evidence is genuine and that there has been no tampering with it.” People v McGee, 49 N.Y.2d 48, 59 (1979).
New York state law provides that “a videotape may be authenticated by the testimony of a witness to the recorded events or of an operator or installer or maintainer of the equipment that the videotape accurately represents the subject matter depicted.” Patterson, 93 N.Y.2d at 84. The testimony of such a person lays a proper foundation for its admission into evidence and a court does not abuse its discretion by admitting it. See, e.g., Id. Authentication may also be accomplished through other means, however, including through direct or circumstantial evidence, and “reasonable inferential linkages can ordinarily supply foundational prerequisites” so long as the “tie-in effort” is not “too tenuous and amorphous.” Price, 29 N.Y.3d at 481 (citing Patterson, 93 N.Y.2d at 85). The test for authentication “is flexible and responds to the factual nuances of each case.” Price, 29 N.Y.3d at 482.
The portion of the Appellate Division's decision addressing the footage, quoted in full at Sec. C.1, supra at 14, found that the relationship between the stipulated video clips and those subject to challenge, in addition to testimony verifying the accuracy of the footage, established a foundation for admission based upon “reasonable inferential linkages” that were far from being “tenuous and amorphous.” That court further held that the “totality of the evidence” established a foundation for the admission of the footage, and that “any alleged uncertainty went to the weight to be accorded the evidence rather than its admissibility.” Wade, 181 A.D.3d at 477.
This Court agrees with the Appellate Division's conclusion that the trial court did not abuse its discretion in admitting the footage into evidence. The State presented evidence strongly suggesting that the contested videos were reliable and accurate. Gwendolyn Kenny testified to seeing two men running on Lenox on the morning at issue, in the same manner Wade and Houston can be seen on the casino and bodega videos. In the videos, Wade and Houston are wearing the same clothing and baseball caps, and the color of their clothing matches Kenny's description. The hospital and church videos, the accuracy of which were not in dispute, showed Michel looking as he did in the casino videos. In the church video, the firetruck can be seen returning to the firehouse in a manner consistent with Walsh's testimony. Police are seen in the videos canvassing the area with flashlights shortly after the shooting. The consistency of the images in the video clips from several local sources strongly support the events in question. In fact, Wade makes no specific arguments about the manner in which any of the images in the footage were either inaccurate or indicated tampering.
On direct appeal, Wade argued that Det. Acevedo made copies of the bodega and barbershop videos on his cell phone, that his copy of the bodega video did not show the time and date stamp, and that the time and date stamp on the barbershop video was wrong. These factors alone would not render the footage inadmissible, as long as other indicia of reliability existed. See, e.g., People v Alston, 92 N.Y.S.3d 18, 20 (1st Dep't 2019) (trial court “providently exercised its discretion in admitting a video recording of a restaurant's surveillance videotape, made by a police officer on her cell phone,” and comported with Patterson, “because an eyewitness authenticated it to the extent it depicted the relevant events.”), appeal withdrawn, 35 N.Y.3d 1110 (Oct. 1, 2020); People v. Carter, 131 A.D.3d 717, 721-22 (3d Dep't 2015) (edited video depicting only relevant portions of footage deemed admissible); Josey v. Rock, No. 11-CV-3502, 2012 WL 1569615, at *12-14 (E.D.N.Y. May 3, 2012) (rejecting challenge to authentication of video evidence and denying habeas relief, noting that equipment was “properly working despite the time print recording being off by twelve minutes” and that a hard drive could not be physically removed from the location, and therefore, could not be provided to the police).
Although the State did not present testimony from operators or maintainers of the bodega and barbershop videos, Det. Acevedo testified about the steps he took to ensure that those video systems were operating properly and showing events occurring in real time, and how he scrolled back to find the footage relevant to this case. His testimony established the requisite “reasonable inferential linkages” for admission of this evidence. See Price, 29 N.Y.3d at 481 (citing Patterson, 93 N.Y.2d at 85).
The testimony of Leroy Jenkins provided a foundation for the admission of the casino videos because he was responsible for the installation and operation of the equipment. Newman v. Lempke, No. 13-CV-531, 2016 WL 5478512, at *9 (W.D.N.Y. Aug. 9, 2016) (citing Price, 29 N.Y.3d at 472, holding that testimony from an “operator or installer or maintainer of the equipment that the videotape accurately represents the subject matter depicted” is “more than adequate” to authenticate footage), adopted by 2016 WL 5468062 (Sept. 29, 2016).
Jenkins testified that the equipment was working properly, that he downloaded the footage, and that what was shown in court was an exact copy from his system. As the trial judge instructed the jury, any conflicting statements Jenkins made about whether or not he regularly checked the system for accuracy would go to the weight of the evidence, not its admissibility. See Cabrera v. People of the State of New York, No. 16-CV-7938 (KPF), 2018 WL 5276425, at *14 (S.D.N.Y. Oct. 13, 2018) (discrepancies with time stamps in a video “may make the evidence less credible to the jury, but it does not make it inadmissible”) (quoting United States v. Whittingham, 346 Fed.Appx. 683, 685 (2d Cir. 2009)). Federal habeas courts must defer to a jury's resolution of conflicting inferences. See, e.g., Wheel v. Robinson, 34 F.3d 60, 66 (2d Cir. 1994); Wicks v. Miller, No. 05-CV-5341 (JGK), 2007 WL 1434992, at *4-5 (S.D.N.Y. May 15, 2007).
Under the second prong of the two-part analysis, even assuming that the trial court's decision to admit the footage into evidence was erroneous under state law, in light of the entire record, there is no basis for the Court to conclude that its admission deprived Wade of his constitutional right to a fair trial. See, e.g., Freeman v. Kadien, 684 F.3d 30, 35 (2d Cir. 2012). Where the purportedly prejudicial evidence is “probative of [an] essential element in the case, its admission does not violate the defendant's right to due process.” Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (internal quotations and citation omitted), abrogated on other grounds by, Perry v. New Hampshire, 565 U.S. 228 (2012). The videos at issue in this case, which showed Wade's movements before and after the shooting, apparently holding a weapon, were highly probative of the elements of second-degree criminal possession of a weapon in the second degree. N.Y. Penal L. § 265.03.
Based on the record as a whole, the state court's evidentiary rulings regarding the videotape footage do not provide a basis for habeas relief.
3. Ineffective Assistance of Appellate Counsel Claim
As is discussed below, Wade's ineffective assistance of appellate counsel claim is exhausted and not procedurally barred, but without merit.
(a) No Procedural Bar to Review
Wade presented his ineffective assistance of appellate counsel claim at every relevant level in state court, and the claim was denied on its merits rather than because of a state procedural rule. “In New York, a common law writ of error coram nobis is the proper vehicle for bringing a claim of ineffective assistance of appellate counsel[.]” Boynton v. Hicks, No. 02-CV-1439 (DC), 2003 WL 22087634, at *3 (S.D.N.Y. Sept. 9, 2003). Wade raised this claim in both his coram nobis petition and in his leave application to the Court of Appeals. The Appellate Division denied the coram nobis petition in a summary decision. People v Wade, 2020 N.Y. Slip Op. 74952 (2020). Dkt. No. 17-3, SR.158. The Appellate Division's summary denial constitutes an adjudication “on the merits” for purposes of Section 2254. Johnson v. Williams, 568 U.S. 289, 301 (2013) (“When a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits.”). The Court of Appeals denied Wade leave to appeal on June 15, 2021. Wade's claim of ineffective assistance of appellate counsel claim is thus exhausted, and it is not subject to any state procedural bar. Therefore, the Court will review the merits of the ineffective assistance of counsel claims under AEDPA's standard of review.
Respondent does not argue to the contrary.
(b) Standard for Claim of Ineffective Assistance of Appellate Counsel
To prevail on a claim of ineffective assistance of counsel, a petitioner must satisfy the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). To do so, a petitioner must “(1) show that his counsel's representation fell below an objective standard of reasonableness and (2) affirmatively prove prejudice.” United States v. Rosa, 666 Fed.Appx. 42, 44 (2d Cir. 2016). “Strickland's two-prong test applies equally to claims of ineffective assistance of appellate counsel on a defendant's first appeal as of right.” Aparicio, 269 F.3d at 95.
Under Strickland's first prong, the reviewing court “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. In evaluating counsel's effectiveness, courts must assess the case from the viewpoint of the attorney at the time of the challenged conduct or omission. See Lockhart v. Fretwell, 506 U.S. 364, 371-72 (1993). Rather than strictly scrutinizing an attorney's every decision, courts must focus on whether counsel's behavior was so unreasonable as to represent a “breakdown in the adversarial process that our system counts on to produce just results.” Strickland, 466 U.S. at 696. “[T]he record must demonstrate that ‘counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.'” Wilson v. Mazzuca, 570 F.3d 490, 502 (2d Cir. 2009) (quoting Strickland, 466 U.S. at 687).
Under Strickland's second prong, a petitioner must establish that he was prejudiced as a result of counsel's performance. To establish prejudice, a 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694; Lynch v. Dolce, 789 F.3d 303, 311 (2d Cir. 2015) (to demonstrate prejudice resulting from the allegedly deficient representation, “a petitioner must show that, had his claim been raised on appeal, there is a reasonable probability that it would have succeeded before the state's highest court”).
In the context of AEDPA, “[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard.” Richter, 562 U.S. at 101. Given that the “standards created by Strickland and § 2254(d) are both ‘highly deferential,' . . . when the two apply in tandem, review is ‘doubly' so.” Id. at 105 (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). Put differently, this Court must “take a ‘highly deferential' look at counsel's performance, through the ‘deferential lens of § 2254(d).'” Matthews v. Raymond, 562 Fed.Appx. 43, 44 (2d Cir. 2014) (quoting Cullen v. Pinholster, 563 U.S. 170, 181 (2011)).
(c) Application
Wade asserts that appellate counsel was ineffective for not raising claims on direct appeal that he believes would have been stronger than the ones that counsel raised.
Respondent did not address Wade's specific claims, instead arguing that appellate counsel's overall performance was effective. Dkt. No. 17-2 at 21-22.
Appellate counsel “need not (and should not) raise every nonfrivolous [or colorable] claim, but rather may select from among them in order to maximize the likelihood of success on appeal.” Smith v. Robbins, 528 U.S. 259, 288 (2000) (citing Jones, 463 U.S. at 751-54; Clark v. Stinson, 214 F.3d 315, 322 (2d Cir. 2000) (“‘[I]t is not sufficient for the habeas petitioner to show merely that counsel omitted a nonfrivolous argument, for counsel does not have a duty to advance every nonfrivolous argument that could be made.'”) (citing Jones, 463 U.S. at 754). “A brief that raises every colorable issue runs the risk of burying good arguments - those that . . . go for the jugular.” Jones, 463 U.S. at 753 (citations omitted). A reviewing court should not second guess the reasonable professional judgments of appellate counsel as to the most promising appeal issues, and thus “may not use hindsight to second-guess [counsel's] strategy choices.” Id. Counsel's performance may be constitutionally inadequate if a defendant shows that counsel “omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker.” Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994).
Wade first claims that appellate counsel should have raised an ineffective assistance of trial counsel claim. Wade argues that: (1) had trial counsel moved to dismiss on the ground of insufficient evidence that he possessed a loaded and operable weapon, the weapons possession counts would have been dismissed; (2) had trial counsel argued the proper standard and preserved the issue, Wade would have prevailed on the issue on appeal; and (3) raising these matters in the context of ineffective assistance of trial counsel would have been stronger than raising it directly as a legal sufficiency claim and seeking interest of justice review.
The record, however, does not support Wade's speculation. After finding the legal sufficiency claim procedurally barred, the Appellate Division reached the merits, and found that there was sufficient evidence to support the conviction. The Appellate Division then denied Wade's claim of ineffective assistance of appellate counsel in the coram nobis proceedings. Wade thus cannot establish that his appellate counsel was ineffective for not asserting ineffective assistance of trial counsel-because the Appellate Division rejected the legal sufficiency claim. The decision not to allege ineffective assistance of trial counsel on this basis was an exercise of appellate counsel's reasonable professional judgment. Holmes v. Bartlett, 810 F.Supp. 550, 561 (S.D.N.Y. 1993) (appellate counsel “reasonably decided to omit a claim of ineffective assistance of trial counsel based on the purported failure to preserve the claim that the prosecution had not proven at trial all of the elements of” the charged crime) (citing Jones, 463 U.S. at 753).
Wade does not plead an independent ineffective assistance of trial counsel claim. Even if he had, the record does not support such a claim. See LeGrand v. Lee, No. 13-CV-5282 (PKC) (KHP), 2016 WL 7468195, at *11 (S.D.N.Y. Dec. 28, 2016) (“There can be no claim of ineffective assistance of appellate counsel where the underlying claims of ineffective assistance of trial counsel are themselves meritless.”) (internal quotation marks and citation omitted), adopted by, 2017 WL 837683 (Mar. 2, 2017). A review of the record shows that trial counsel effectively represented Wade. He moved to have evidence excluded, challenged the State's witnesses on cross-examination, elicited testimony that emphasized weaknesses in the State's case, and made sound arguments on summation. Notably, the jury deadlocked on the second-degree attempted murder and first-degree assault charges, and as a result, the most serious charges Wade was facing were dismissed.
Wade further asserts that appellate counsel should have challenged the constitutionality of N.Y. Penal L. § 265.03. This claim merits only brief discussion. As discussed in Sec. B.1(d), supra at 31, state courts have held, and the jury here was so instructed, that a person cannot be convicted of criminal possession of a weapon under Section 265.03(3) “unless the People prove that the firearm possessed by the defendant is operable.” Wesley, 168 A.D.2d at 941; Longshore, 86 N.Y.2d at 852. Because courts have construed the statute as containing an operability element, and because the jury was instructed that operability was an essential element of the crime, Wade's claim that appellate counsel should have challenged the constitutionality of the weapons statute is not a meritorious ground for an ineffective assistance of appellate counsel claim.
The Court is of the view that Wade's appellate counsel advanced well-reasoned and promising arguments on appeal. A review of the briefs filed on Wade's behalf show that appellate counsel cogently argued the legal sufficiency and authentication claims. Wade himself made reference to appellate counsel's submissions in his petition (and, inter alia, incorporated counsel's appellate brief regarding the authentication issue in his memorandum in support of his petition, see Dkt. No. 29, at 10). In short, the record demonstrates that Wade's appellate counsel was effective, and her decision not to advance the claims now raised by Wade fell within her reasonable professional judgment.
III. CONCLUSION
For the foregoing reasons, I recommend that Wade's petition be denied.
PROCEDURE FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Order and Report and Recommendation to file written objections. See also Fed. R. Civ. P. 6. Such objections, and any responses to such objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Gregory H. Woods, United States Courthouse, 500 Pearl Street, New York, New York 10007, and to the chambers of the undersigned, United States Courthouse, 500 Pearl Street, New York, New York, 10007.
Any requests for an extension of time for filing objections must be directed to Judge Woods. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. 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).