Stapleton v. Graham
Filing
25
ORDER ADOPTING REPORT AND RECOMMENDATIONS, ORDER ADOPTING REPORT AND RECOMMENDATIONS, For the foregoing reasons, upon de novo review, the Court finds that USMJ Bloom's R&R to be correct, well-reasonsed, and free of any clear error. The Court, th erefore, adopts the R&R in its entirety, as supplemented by this Memorandum and Order, as the opinion of the Court. Additionally, re: the new claims raised by petitioner in his objections to Judge Bloom's R&R, the Court finds that they are witho ut merit. Stapleton's petition for a writ of habeas corpus is, accordingly, dismissed with prejudice and the writ is denied. Since Stapleton has not made a substantial showing of the denial of a constitutional right, a Certificate of Appealabil ity shall not issue. In this light, the Court certifies pursuant to 28 USC sec. 1915(a) that any appeal from this Memorandum and Order would not be taken in good faith and therefore in forma pauperis is denied for the purpose of any appeal. The Clerk of the Court is directed to enter judgment and to close this case. Certificate of Appealability Denied re: 1 Petition for Writ of Habeas Corpus. (Ordered by Judge Eric N. Vitaliano on 5/6/2011) c/m Fwd. for Judgment. (Galeano, Sonia)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------)(
THEIL T. STAPLETON,
Petitioner,
BROOKL Yt\1
, ..
""T ' -"C
•
'_'1
MEMORANDUM AND ORDER
- against -
09-CV-0382 (ENV) (LB)
HAROLD D. GRAHAM,
Respondent.
--------------------------------------------------------------)(
VITALIANO, D.J.
Pro se petitioner Theil T. Stapleton seeks a writ of habeas corpus pursuant to 28 U.S.C. §
2254. His petition was referred to Magistrate Judge Lois Bloom for a Report and
Recommendation ("R&R") in accordance with 28 U.S.C. § 636(b). Stapleton timely filed his
objections to the R&R on November 4, 2010. Respondent has not filed a response. After careful
consideration of Stapleton's objections, and for the reasons that follow, this Court adopts Judge
Bloom's R&R in its entirety as the opinion of the Court.
I.
BACKGROUND
On August 13,2002, three men entered the Queens County apartment of Miguel Lopez,
where Lopez lived with his "common-law wife" Ligia Munoz and daughter Kemberly Lopez.
One of the men struck Miguel Lopez several times in the head with a gun, bound his feet and
hands, covered his mouth with tape, wrapped a cord around his neck, and demanded money and
drugs. The three men then bound the two females in separate rooms and returned a naked
Munoz to the room where Lopez was being held. They ransacked the apartment, and, after about
an hour, they left with some of Lopez's clothing, jewelry, and his Mazda Millennium
automobile. When Lopez eventually freed himself and his family, he went downstairs where his
landlady's daughter, Vanessa Castaneda, called the police.
A week later, Castaneda told Lopez that she had seen someone driving his car around the
neighborhood. Lopez informed the police, and, in response, Detective Toro and his partner
canvassed the area with Lopez looking for the vehicle. Lopez eventually spotted his car being
driven by petitioner. When Stapleton exited the vehicle, Lopez identified him as one of the
assailants, noting that petitioner was wearing a pair of Lopez's pants stolen during the robbery.
Stapleton was arrested and made written and oral statements to Toro claiming that Castaneda had
set up the robbery along with her boyfriend, Carlos Rivera. A lineup was held at which Munoz
identified petitioner. Ten days after Stapleton's arrest, Castaneda was also arrested, and she
admitted to setting up the robbery with Rivera. Toro showed Castaneda a photo of petitioner,
and she identified him as one of the participants in the robbery.
Prior to trial, petitioner and the third robber, Daniel Alvarez, moved to suppress the
pretrial and prospective in-court identifications by Lopez, Munoz, and Castaneda. Petitioner also
sought to suppress, on unlawful search and seizure grounds, the seizure of the pants and car, and
the statements he made to the police at the time of his arrest. Following a suppression hearing,
Supreme Court, Queens County ruled that there was no basis to suppress the pants, car, or the
statements made to police. The court, however, found that Castaneda's photo identification of
petitioner was unduly suggestive, and it ordered an independent source hearing to determine
whether Castaneda's prospective in-court identification should be suppressed. Following the
hearing, the court denied petitioner's motion to suppress Castaneda's in-court identification,
determining that Castaneda would have been able to identifY petitioner had she never been
shown the suggestive photo array.
2
Stapleton proceeded to trial and near the end of jury selection, petitioner's counsel
apprised the court that petitioner had overheard one of the prospective jurors make a statement to
two other jurors indicating his prejudice against him. The court questioned the three jurors and
all three denied hearing or speaking such remarks. As such, the court denied petitioner's request
to excuse the allegedly biased juror from the panel for cause. In the end, petitioner was
convicted of two counts of robbery in the first degree, two counts of robbery in the second
degree, two counts of burglary in the first degree, three counts of unlawful imprisonment in the
first degree, endangering the welfare of a child, criminal possession of stolen property in the
fourth degree, and unauthorized use of a vehicle in the third degree. He was acquitted on the
charge of criminal possession of stolen property in the fifth degree, which concerned the alleged
theft of Lopez's pants. On March 11,2004, Stapleton was sentenced as a persistent felony
offender. He received a concurrent indefinite term of imprisonment of 25 years to life for the
first degree robbery convictions and one of the burglary in the first degree convictions, a
consecutive indefinite term of imprisonment of 20 years to life on the other count of burglary in
the first degree, a concurrent indefinite term of 16 years to life on each second degree robbery
count, a determinate concurrent one-year term of imprisonment for the child endangerment and
unauthorized use convictions, and two to four years for the unlawful imprisonment and stolen
property charges.
On direct appeal, petitioner's appellate counsel argued that: (I) the trial court erred in its
Sandoval I ruling, depriving petitioner of his due process rights; (2) the trial court's erroneous
admission of evidence relating to Lopez's out-of-court identification of petitioner violated
A hearing is held pursuant to People v. Sandoval, 34 N.Y.2d 371,357 N.Y.S.2d 849 (1974), to
determine the extent to which the accused, should he decide to testify, could be cross-examined
regarding prior convictions and bad acts bearing on his credibility, veracity, or honesty.
I
3
petitioner's due process rights; and (3) the sentencing court wrongfully imposed consecutive
sentences for the two first degree burglary offenses. Petitioner then filed a pro se supplemental
brief in which he argued that: (I) the lower court erred when it ruled that the police had probable
cause to arrest him; (2) the identification procedures surrounding Lopez's out-of-court
identification and Castaneda's photo identification were unduly suggestive; (3) an evidentiary
hearing should have been held in light of Castaneda's false testimony and because the trial court
failed to inform the jury that Castaneda was an accomplice; (4) the trial court should have
excused a biased juror; and (5) the prosecutor failed to establish petitioner's guilt beyond a
reasonable doubt. On June 19,2007, the Appellate Division, Second Department issued its
decision affirming petitioner's conviction. People v. Stapleton, 41 A.D.3d 744, 840 N.Y.S.2d
606 (2d Dept. 2007). The court expressly affirmed the trial court's findings pertaining to its
Sandoval ruling, its admission of the Toro's third-party testimony confirming Lopez's
identification of petitioner, and its finding that Castaneda's identification using the single photo
was merely confirmatory. Id. at 744-45. The Court did, however, modify petitioner's sentence
by directing that the consecutive sentences run concurrently. Id. at 745. Petitioner's remaining
claims were found to be "without merit." Id. By order dated September 17,2007, petitioner's
application for leave to appeal to the Court of Appeals was denied, and, on November 20,2007,
petitioner's motion for reconsideration was denied.
On May 7, 2008, proceeding pro se, petitioner filed his first writ of error coram nobis
motion, arguing that appellate counsel provided ineffective assistance by failing to argue that
petitioner was denied effective assistance of trial counsel because: (I) trial counsel failed to
challenge the constitutionality of petitioner's prior convictions, and (2) trial counsel failed to
argue that petitioner's sentencing as a persistent violent felony offender violated Apprendi v.
4
New Jersey, 530 U.S. 466 (2000) and its progeny. On September 9, 2008, the Appellate
Division denied petitioner coram nobis relief, finding that petitioner had "failed to establish that
he was denied the effective assistance of appellate counsel." Petitioner did not appeal this
decision.
On January 27, 2009, petitioner filed the instant pro se habeas petition claiming that: (1)
the lower court erred when it ruled that the police had probable cause to arrest him; (2) the
identification procedures were unduly suggestive; (3) an evidentiary hearing should be held in
light of Castaneda's false testimony and because the trial court failed to inform the jury that
Castaneda was an accomplice; (4) the trial court should have excused a biased juror; and (5) the
prosecutor failed to establish petitioner's guilt beyond a reasonable doubt. Petitioner also filed a
letter requesting a stay to return to state court to exhaust unidentified state law claims.
After the case was referred to Judge Bloom, petitioner filed a second motion for a writ of
error coram nobis on March 19,2009. Stapleton argued that appellate counsel provided
ineffective assistance for failing to argue that trial counsel was ineffective for a host of reasons,
including that trial counsel did not: (1) seek to sever petitioner's trial from that of co-defendant
Rivera; (2) object to the admission of statements Castaneda made to the police; (3) object to the
trial court's administration of an incomplete oath to jurors during voir dire; and (4) object to the
jury charge on the issue ofrecent and exclusive possession of stolen property. On August 11,
2009, the Appellate Division denied this writ, finding again that petitioner "failed to establish
that he was denied effective assistance of appellate counsel." Petitioner's appeal was denied.
On September 22, 2010, Judge Bloom issued her R&R, recommending that the petition
be dismissed. On November 4, 2010, petitioner filed timely objections.
5
II.
DISCUSSION
A. Standard of Review
In reviewing the Report and Recommendation of a magistrate judge, a district judge
"may accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge." 28 U.S.c. § 636(b)(1). A district judge is required to "determine de novo any
part of the magistrate judge's disposition that has been properly objected to." Fed. R. Civ. P.
72(b)(3).
B. The Antiterrorism and Death Penalty Act of 1996 ("AEDPA")
The Supreme Court has made it clear that "[a]s amended by AEDPA, § 2254(d) stops
short of imposing a complete bar on federal court relitigation of claims already rejected in state
proceedings." Harrington v. Richter, 562 U.S. _,131 S. Ct. 770, 786 (2011). "Section
2254( d) reflects the view that habeas corpus is a 'guard against extreme malfunctions in the state
criminal justice systems,' not a substitute for ordinary error correction through appeal. Id.
(quoting Jackson v. Virginia, 443 U.S. 307, 332, n.5, 99 S. Ct. 2781 (1979) (Stevens, J.,
concurring in judgment». Pursuant to AEDPA, a federal court is not free to issue a writ of
habeas corpus under the independent "contrary to" clause of28 U.S.C. § 2254(d)(1) unless "the
state court arrive[d] at a conclusion opposite to that reached by [the Supreme] Court on a
question ofJaw or if the state court decide[d] a case differently than [the Supreme] Court has on
a set ofmateriaJly indistinguishable facts." Williams v. Taylor, 529 U.S. 362,412-13,120 S. Ct.
1495,1523 (2000) (O'Connor, J., for the Court, Part II) (internal citation omitted). Similarly, a
federal court is not free to issue a writ of habeas corpus under the independent "unreasonable
application" clause unless "the state court identifierd] the correct governing legal principle from
[the Supreme] Court's decisions but unreasonably applie[d] that principle to the facts of the
6
prisoner's case." Id. at 413. A state court's "unreasonable application" oflaw must have been
more than "incorrect or erroneous": it must have been "'objectively unreasonable.'" Sellan v.
Kuhlman, 261 F.3d 303, 315 (2d CiT. 2001) (citing Williams, 529 U.S. at 409 (O'Connor, J., for
the Court, Part II». Finally, only claims adjudicated on the merits in state court are subject to
AEDPA's deferential standard. See Cone v. Bell, 129 S. Ct. 1769, 1784 (2009) (citing 28 U.S.c.
§ 2254(d».2
C. Motion to Stay
Before proceeding to the merits of Stapleton's objections, the Court will first address
petitioner's motion to stay. Shortly after the second writ of error coram nobis was filed,
petitioner moved to stay the instant habeas petition so that he could return to state court and
exhaust new ineffective assistance of appellate counsel claims advanced in his second
application for a writ of error coram nobis that was then pending before the Appellate Division.
As noted above, the Appellate Division denied that second writ application. Accordingly, since
petitioner has now exhausted the additional claims, his request to stay the instant petition is
denied as moot.
D. Petitioner's Objections
Stapleton's objections-which are to be liberally construed since he is proceeding pro
se----challenge Judge Bloom's recommendations to deny each of his claims for habeas relief.
2 "Although state prisoners may sometimes submit new evidence in federal court, AEDPA's
statutory scheme is designed to strongly discourage them from doing so. Cullen v. Pinholster,
131 S. Ct. 1388, 1401 (2011). Under AEDPA's deferential standard of review, '''[fjederal courts
sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made
insufficient effort to pursue in state proceedings.'" Id. (quoting Williams, 529 U.S.at 437).
"Determination of factual issues made by a state court 'shall be presumed to be correct,' and the
applicant 'shall have the burden of rebutting the presumption of correctness by clear and
convincing evidence.'" Smith v. Herbert, 275 F. Supp. 2d 361, 365-66 (E.D.N.Y. 2003) (quoting
28 U.S.C. § 2254(e)(I».
7
I. Fourth Amendment Claim
Petitioner argues that his Fourth Amendment rights were violated when he was arrested
without probable cause. He alleges that he "was arrested seven days [after1and eight miles from
the scene of the alleged incident," and that "there was no criminality present and ... no
reasonable suspicion for just cause." Judge Bloom rejected this claim, noting that petitioner had
a full and fair opportunity to litigate this Fourth Amendment claim in state court. A federal
court's authority to review a Fourth Amendment claim in a § 2254 application is severely
limited. In Stone v. Powell, 428 U.S. 465, 482, 96 S. Ct. 3037, 3046 (1976), the Supreme Court
held that "where the State has provided an opportunity for full and fair litigation of a Fourth
Amendment claim, the Constitution does not require that a state prisoner be granted federal
habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure
was introduced at his trial." See Palacios v. Burge, 589 F.3d 556, 561 (2d Cir. 2009) (noting that
Stone "bars us from considering Fourth Amendment challenges raised in a petitioner's petition
for habeas relief'); Graham v. Costello, 299 FJd 129, 134 (2d Cir. 2002) (explaining that
Stone's "bar to federal habeas review of Fourth Amendment claims is permanent and incurable"
unless the state fails to provide "a full and fair opportunity to litigate the claim"). To
demonstrate the requisite lack of opportunity, a petitioner must show that the state either (a) "has
provided no corrective procedures at all to redress the alleged Fourth Amendment violations", or
(b) "has provided a corrective mechanism, but [he1was precluded from using that mechanism
because of an unconscionable breakdown in the underlying process." Capellan v. Riley, 975
F.2d 67,70 (2d Cir. 1992); see Grayson v. Artus, 08-CV-0493, 2010 U.S. Dist. LEXIS 7870, at
·*17-18 (E.D.N.Y. Feb. 1,2010); Daniels v. New York, 07-CV-0448, 2009 U.S. Dist. LEXIS
74889, at *34 (E.D.N.Y. Aug. 21, 2009).
8
Neither situation exists here. As an initial matter, "federal courts have approved New
York's procedure for litigating Fourth Amendment claims, embodied in N.Y. Crim. Proc. Law §
710.10 et seq .... as being facially adequate." Capellan, 975 F.2d at 70 n.1 (internal quotation
marks and citations omitted); see Brewster v. New York, 08-CV-4480, 2010 U.S. Dist. LEXIS
4660, at *31 (E.D.N.Y. Jan. 21, 2010); Goodwin v. Duncan, 03-CV-0031, 2009 U.S. Dist.
LEXIS 102964, at *15 (W.D.N.Y. Aug. 11,2009). So, Stapleton fails on the first prong. Nor
does he fare better on the next. Petitioner cannot demonstrate an "unconscionable breakdown",
such as "the hearing judge fail[ing] to make a reasoned inquiry," Angeles v. Greiner, 267 F.
Supp. 2d 410,417 (E.D.N.Y. 2003), "yield[ing] to mob intimidation of the jury" or "not
provid[ing] rational conditions for inquiry into federal-law ... questions." Capellan, 975 F.2d at
70. On the contrary, petitioner took full advantage of the New York procedures, participating in
a pre-trial Mapp/Huntley/Wade/Dunaway evidentiary hearing which included witness testimony
and cross-examination. Petitioner also argued in his supplemental brief to the Second
Department that the lower court erred when it ruled that the police had probable cause to arrest
him. Those contentions were rejected when that court affirmed his conviction. Petitioner's
"mere dissatisfaction or disagreement with the outcome of [his] suppression motion is not
sufficient to establish that an 'unconscionable breakdown' occurred" in violation of his Fourth
Amendment rights. Goodwin, 2009 U.S. Dist. LEXIS 102964, at *°16-17 (citing Capellan, 975
F.2d at 71; Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977».
Judge Bloom's recommendation to reject petitioner's Fourth Amendment claim is
therefore adopted. There can be no doubt that Stapleton had a full and fair opportunity to litigate
his suppression claim in the New York courts; this Court is without authority to relitigate the
issue on habeas review. See, e.g., Ramdeo v. Phillips, 04-CV-1157, 2007 U.S. Dist. LEXIS
9
49483, at **71-74 (E.D.N.Y. July 9, 2007) (denying habeas relieffor alleged Dunaway violation
since petitioner "failed to show a lack of State corrective procedures or a breakdown in the
underlying process"); Simpson v. West, 05-CV-2279, 2006 U.S. Dis!. LEXIS 31133, at **15-16
(E.D.N. Y. May 18, 2006) (denying habeas relief on Stone v. Powell grounds because
"[p ]etitioner had a full and fair opportunity to litigate this claim in the state court
Dunaway/HuntleylMapp hearing").
2. Lopez's Out-of-Court Identification
Stapleton next argues that the trial court should not have admitted Lopez's out-of-court
identification of him. In his objection to Judge Bloom's R&R, Stapleton raises certain "new"
facts that he did not include in his petition, but his claim is in fact exactly the same. There is
nothing in the record to suggest that Lopez's identification of petitioner was impermissibly
suggestive in light of the Supreme Court's analysis in Neil v. Biggers, 409 U.S. 188,93 S. Ct.
375 (1972). "It is the likelihood of misidentification," the Court held, "which violates a
defendant's right to due process," making an identification procedure that leads to a very
substantial likelihood of misidentification the "primary evil to be avoided." Biggers, 409 U.S. at
198,93 S. Ct. at 381-82 (citing Simmons v. United States, 390 U.S. 377, 384, 88 S. C!. 967, 971
(1968». "Suggestive confrontations are disapproved because they increase the likelihood of
misidentification, and unnecessarily suggestive ones are condemned for the further reason that
the increased chance of misidentification is gratuitous." Id.
Yet, as Judge Bloom points out in her R&R, even if Lopez's identification of Stapleton
was somehow impermissibly suggestive, the next step is not suppression of the identification; it
is to determine whether, "under the 'totality of the circumstances[,], the identification was
reliable even though the confrontation procedure was suggestive." Id. at 199,93 S. Ct. at 382;
10
see also Abdur Raheem v. Kelly, 257 F.3d 122, 133 (2d. Cir. 2001) ("In sum, the identification
evidence will be admissible if(a) the procedures were not suggestive or (b) the identification has
independent reliability." (citations omitted)). As the Supreme Court has established, the factors
to be considered in determining reliability "include the opportunity of the witness to view the
criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness'
prior description of the criminal, the level of certainty demonstrated by the witness at the
confrontation, and the length of time between the crime and the confrontation." Biggers, 409
U.S. at 199-200, 93 S. Ct. at 382.
Lopez testified that he had the opportunity to view Stapleton during the one hour-long
robbery. In his objections, petitioner responds that Lopez could not have clearly seen his face
during the robbery because Lopez was choked into unconsciousness. He further argues that
Lopez's only reason for identifying him was the stolen pair of pants he was wearing during the
initial identification. The objection is rooted in fantasy. Acknowledging the attack on him,
Lopez testified that he had sufficient time to view Stapleton at close range and in good light. His
degree of awareness as to what was happening, it is more than reasonable to infer, would
certainly have been high, especially since his wife and young daughter were also in the
apartment. Following the attack, he was also able to free himself to seek help. In short, even
though Lopez may have lost consciousness at some point during the robbery, the record reveals
no basis to find that it affected his opportunity to observe his attackers and identify them.
Furthermore, only seven days had elapsed between the time of the robbery and the identification,
thus bolstering its reliability.
But even if Lopez's identification was somehow constitutionally infirm, as Judge Bloom
correctly noted, the Court must next evaluate whether such an error had a substantial and
1I
injurious effect on the outcome of the trial. See Fry v. Pliler, 551 U.S. 112,121-22,127 S. Ct.
2321, 2328 (2007). The Court agrees that in light of the overwhelming evidence against
petitioner, even if the admission of Lopez's testimony was an error-which, to be clear, is not
the case-it would be harmless at best. And, needless to say, the state court's conclusion to the
same effect would be entitled to AEDPA deference, closing the door on this claim. Judge
Bloom's R&R is therefore adopted on this issue as well.
3. Castaneda's Testimony
Stapleton's petition contends that the trial court's failure to instruct the jury that
Castaneda was an accomplice and had a cooperation agreement with the prosecution violated his
due process rights. In his objections to Judge Bloom's R&R, Stapleton also raises a number of
new but related arguments. He first contends that Castaneda was coerced by the police into
testifying, hence her "testimony was made against penal interest .... " He next claims that
Castaneda should not have been allowed to testify because she received "a substantial reduction
in [prison] time" in exchange for her cooperation. Finally, Stapleton argues that Castaneda's tip
to the police-given through Lopez-should have been corroborated. He asserts that the
combination of these "errors" during his trial violated his constitutional rights. But, claims of
error in the state court evidentiary rulings regarding Castaneda's testimony are not cognizable on
federal habeas review as "[i]t is not the province of a federal habeas court to reexamine statecourt determinations on state-law questions. Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct.
475,480 (1991). Therefore, the Court may only determine whether the trial court's rulings
deprived Stapleton of the fair trial guaranteed to him under the Sixth Amendment, and, only if he
presented and exhausted those federal claims in state court. As Judge Bloom concluded,
petitioner's argument fails.
12
To begin, the majority of petitioner's allegations find no support in the record. Stapleton
argues that his due process rights were violated because the trial court failed to determine
whether Castaneda was an accomplice as a matter of law and to instruct the jury that she was an
accomplice. However, in its charge, the court explicitly instructed the jury that Castaneda was
an accomplice as a matter oflaw. Petitioner also claims that Castaneda's cooperation agreement
was not disclosed to the jury. Yet, again, during direct examination, the prosecutor questioned
Castaneda about her cooperation agreement and its implications regarding leniency. With or
without further instruction from the court, this challenge is not colorable.
The rest of petitioner's arguments are simply not cognizable federal claims. Stapleton's
assertion that Castaneda's testimony was not corroborated is based entirely on state law. In New
York, "a defendant may not be convicted of any offense upon the testimony of an accomplice
unsupported by corroborative evidence tending to connect the defendant with the commission of
such offense." N.Y. Crim. Proc. Law, § 60.22(1) (McKinney 2003). However, there is no
comparable protection in federal law. In fact, under federal law "[a] conviction may be sustained
on the basis of the testimony of a single accomplice, so long as that testimony is not incredible
on its face and is capable of establishing guilt beyond a reasonable doubt." United States v.
Gordon, 987 F.2d 902, 906 (2d Cir. \993). Then, of course, there is the sheer silliness of the
argument since Lopez gave an eye-witness account corroborating the essence of Castaneda's
testimony.3 In sum, there is absolutely nothing in the record to support a finding that Stapleton
was denied a fair trial. Judge Bloom's R&R on this point is therefore also adopted and
Stapleton's arguments are rejected.
Stapleton's related arguments in his objections that Castaneda was coerced by the police into
testifying, that she should not have been permitted to testify because of her beneficial
cooperation agreement, and that her tip should have been corroborated, all similarly do not
present cognizable federal claims.
3
13
4. Sufficiency of the Evidence
Petitioner also argues that the evidence at trial was legally insufficient to support the
verdict. Again, though, Stapleton has failed to show that the challenged state court
detenninations were contrary to, or an unreasonable application of, Supreme Court precedent,
and specifically, the standard for insufficiency of evidence announced in Jackson v. Virginia,
443 U.S. 307, 99 S. Ct. 2781 (1979). In assessing a claim regarding the sufficiency of trial
evidence, a habeas court must view all "evidence in the light most favorable to the prosecution,"
and the applicant is entitled to habeas relief only if "'no rational trier of fact could have found
proof of guilt beyond a reasonable doubt'" based on the evidence adduced at trial. Flowers v.
Fisher, 296 F. App'x 208, 210 (2d Cir. 2008) (citing Jackson, 443 U.S. at 326, 99 S. Ct. at 279193). Given that a reviewing court may not substitute its judgment for that of a rational jury, a
petitioner "bears a very heavy burden" in challenging the sufficiency of evidence upon which he
was convicted. Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997) (internal
quotation marks and citation omitted). Additionally, "[w]hen considering the sufficiency of the
evidence of a state conviction, a federal court must look to state law to detennine the elements of
the crime." Ponnapula v. Spitzer, 297 FJd 172, 179 (2d Cir. 2002) (internal quotations and
citations omitted). As discussed at length in Judge Bloom's well-reasoned R&R, a rational jury
could have found beyond a reasonable doubt that Stapleton was guilty of first degree robbery,
first degree burglary, and first degree unlawful imprisonment.
In his objections, Stapleton points out that he was never convicted of a charge for
possession ofa shot-gun and that such a finding was an essential element of the crimes for which
he was charged and convicted. He argues that since the shot-gun used in the robbery was never
recovered, the People failed to prove that he used a dangerous weapon, which specifically is an
14
element of the crimes of first degree robbery and burglary. Judge Bloom's R&R explicitly, and
correctly, addressed this argument, finding that the cord that was used to strangle Lopez was
considered a dangerous weapon, making the gun irrelevant to the crimes charged. Since
Stapleton's objections to the R&R merely restate arguments made in his initial habeas papers,
the Court has nothing material to add to Judge Bloom's analysis on this issue. The objection is
ovveruled.
Regarding the conviction for unlawful imprisonment and endangering the welfare of a
child, petitioner argues that, "with the identification of petitioner being problematic, [the court]
was required to hear testimony from the other alleged victims in the crime," and a missing
witness charge should have been given. Again, this issue was raised in identical fashion in
Stapleton's petition and addressed in detail by Judge Bloom. New York Penal Law § 135.10
states that "[a] person is guilty of unlawful imprisonment in the first degree when he restrains
another person under circumstances which expose the latter to a risk of serious physical injury."
New York Penal Law § 260.10 further states that "[a] person is guilty of endangering the welfare
ofa child when ... [he] knowingly acts in a manner likely to be injurious to the physical, mental
or moral welfare of a child less than seventeen years old .... " Lopez testified that petitioner and
his accomplices bound Munoz's hands and feet and threw her on the bed. He also testified that
they similarly restrained Kemberly, who was II years old. Munoz and Kemberly were therefore
not required to testify at trial in order to sustain a conviction. Relatedly, regarding Stapleton's
claim that a missing witness charge should have been given, the Court finds that one was simply
not warranted. Moreover, nothing in the record suggests that such a charge was requested at any
point during trial, as the Appellate Division found on direct appeal. See Stapleton, 41 A.D.3d at
745. Whether or not exhausted, either under state or federal constitutional law, the argument is
15
meritiess.
Petitioner also objects that Judge Bloom ignored the fact that he was acquitted of the
charge of possession of stolen property (regarding Lopez's pants). The crux of his argument is
that a finding that he had stolen the pants was essential to the verdict on all the other counts. He
is flat wrong. There are, of course, distinct elements to each of the crimes charged, but none of
the others were reliant on a finding that Stapleton was guilty of the charge of possession of stolen
property. That he was acquitted on that count is irrelevant to the verdict on the other counts.
There being no evidence of Stapleton's actual innocence, this legal sufficiency claim is empty
and Judge Bloom's recommendation with respect to the sufficiency of the evidence is adopted.
5. Fair and Impartial Jury
Stapleton claims that during voir dire, he overheard three potential jurors discussing his
guilt and one of those jurors was ultimately selected for the trial. He contends that permitting
this biased juror to serve was a violation of his Sixth Amendment right to an impartial jury. The
Sixth Amendment "guarantees to the criminally accused a fair trial by a panel of impartial,
'indifferent' jurors." Irvin v. Dowd, 366 U.S. 717,722,81 S. Ct. 1639, 1642 (1961).
Nonetheless, "due process does not require a new trial every time a juror has been placed in a
potentially compromising situation .... [It] means a jury capable and willing to decide the case
solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial
occurrences and to determine the effect of such occurrences when they happen." Smith v.
Phillips, 455 U.S. 209, 217,102 S. Ct. 940, 946 (1982). Moreover, "in each case a broad
discretion and duty reside in the [trial] court to see that the jury as finally selected is subject to no
solid basis of objection on the score of impartiality .... " Frazier v. United States, 335 U.S. 497,
511,69 S. Ct. 201,209 (1948). A habeas court may only overturn a finding of impartiality in
16
extreme cases of "manifest error." Patton v. Yount, 467 U.S. 1025, 1031, 104 S. Ct. 2885, 2889
(1984) (internal citations omitted).
Judge Bloom explained well in her R&R that after the issue was raised, the trial judge
questioned the jurors and court officers who were present during voir dire, and had the officers
ask potential jurors if they had heard the comments that Stapleton complained of. The officers
and the jurors all denied hearing any such comments. Surely, this does not come close to
constituting "manifest error." His objection points to nothing Judge Bloom overlooked, nor can
the Court find any basis for relief upon its de novo review. Consequently, the Court adopts
Judge Bloom's finding on this issue. There is no basis whatsoever to support Stapleton's claim
that he did not receive a fair trial by impartial jury as guaranteed by the Sixth Amendment.
E. New Claims and Arguments
Stapleton raises new matters in his objections to Judge Bloom's R&R that were not raised
in his original petition. As a preliminary matter, "a petitioner is not permitted to raise an
objection to a magistrate judge's report that was not raised in his original petition." Edwards v.
Fischer, 414 F. Supp. 2d 342, 352 (S.D.N.Y. Feb. 7,2006) (internal citations omitted).
Nonetheless, courts in this circuit typically review such objections on the merits, and the Court
will therefore follow that practice regarding petitioner's new claims. See Edwards, 414 F. Supp.
2d at 352; Hoover v. Senkowski, OO-CV -2662,2003 U.S. Dist. LEXIS 26744, at **6-9
(E.D.N.Y. May 27, 2003).4
I. Castaneda's Identification
Stapleton attacks Castaneda's in-court identification as tainted in light of her prior
suggestive photo identification. This claim was not raised in his original habeas petition, but it
4 This, obviously, does not absolve noncompliance with AEDPA. New claims that were not
exhausted in state proceedings at least are still forfeited.
17
was raised in petitioner's pro se supplemental brief to the Appellate Division. Courts look to the
"totality of the circumstances" to determine whether an identification was impermissibly
suggestive and deprived a petitioner of his right to a fair trial. Manson v. Brathwaite, 432 U.S.
98,97 S. Ct. 2243 (1977). This claim is akin to petitioner's assault on Lopez's identification of
him. Expanding on those earlier considerations, when the admissibility of a witness's pre-trial
identification is questioned, it calls for "one-step or two-step inquiry." United States v.
Maldonado-Rivera, 922 F.2d 934, 973 (2d Cir. 1990). "The first question is whether the pretrial
identification procedures were unduly suggestive of the suspect's guilt. If they were not, the trial
identification testimony is generally admissible without further inquiry into the reliability of the
pretrial identification." Id. If the procedures were impermissibly suggestive, "the court must
then weigh the suggestiveness of the pretrial process against factors suggesting that an in-court
identification may be independently reliable rather than the product of the earlier suggestive
procedures." Id.
After Castaneda was arrested, she was shown a single photograph of Stapleton, which she
identified as that of an accomplice. However, during a pre-trial suppression hearing, the trial
court found that this photo identification was unduly suggestive, thereby satisfying the first
prong of a constitutional challenge. The court then ordered an independent source hearing to
determine whether her prospective in-court identification should also be suppressed. Following
the independent source hearing, the trial court concluded that "Castaneda would have been able
to identifY [petitioner] had the questioned photographic identification never taken place, and that
the photo identification did not and [would] not influence any subsequent identification
testimony." On appeal, the Appellate Division affirmed this decision, holding that "[t]he hearing
court's finding that a witness was sufficiently familiar with the defendant's face to render a
18
suggestive photographic procedure employed by the police merely confirmatory was supported
by the evidence." Based on that record evidence, there is no basis for the Court to find that the
Appellate Division's rejection of this claim, was contrary to, or an unreasonable application of,
the Sixth Amendment and federal law. The hearing court correctly explored Castaneda's prior
relationship with petitioner and determined that it provided an adequate basis for her in-court
identification that was independent of the suggestive photo identification. Powerfully, the
Supreme Court recently emphasized that AEDPA "preserves authority to issue the writ [of
habeas corpus1in cases where there is no possibility fairminded jurists could disagree that the
state court's decision conflicts with this Court's precedents. It goes no farther." Harrington, 562
U.S. at _ , 131 S. Ct. at 786. Here, there is ample evidence supporting the state court's
decision, and, as such, a writ may not issue on this ground.
2. Ineffective Assistance of Trial Counsel
In his objections, Stapleton also claims now but did not argue before Judge Bloom, that
he was denied effective assistance of trial counsel. Petitioner alleges that his trial counsel
committed a number of errors at trial: (I) that counsel failed to argue that the police lacked
probable cause when they arrested him resulting in the unlawful admission of the evidence that
flowed from the arrest; (2) that counsel failed to question the truthfulness of Detective Toro's
testimony and such a tactic would have bolstered the defense by impeaching an important
witness for the prosecution; and (3) that counsel failed to object to the admission of Lopez's outof-court identification and Toro's related testimony.
As a threshold matter, the issue of ineffective assistance of trial counsel was not raised on
direct appeal to the Appellate Division. In neither the brief filed by appellate counsel nor the
supplemental pro se brief filed by Stapleton himself, was the issue presented to the Appellate
19
Division. Because it had not been so alerted by petitioner, the Appellate Division had neither
reason nor "fair opportunity" to consider the claim. See, e.g., O'Sullivan v. Boerckel, 526 U.S.
838, 844-45, 119 S. Ct. 1728, 1732 (1999); see also Picard v. Connor, 404 U.S. 270, 275, 92 S.
Ct. 509, 512 (1971) (noting the policy offederal-state comity, which is "an accommodation of
our federal system designed to give the State the initial opportunity to pass upon and correct
alleged violations of its prisoners' federal rights" (internal quotation marks and citations
omitted)); Smith v. Duncan, 411 F.3d 340, 349 (2d Cir. 2005) (stating, in a case concerning how
raising a state evidentiary claim was insufficient to raise a federal due process claim, that, in
determining whether a federal claim has been fairly presented, the focus should be on the degree
of similarity between claims before the state court and before the federal court (citation
omitted)). Because the Appellate Division did not have a fair opportunity to consider Stapleton's
claim for ineffective assistance oftrial counsel, this claim is, indeed, unexhausted at the state
appellate level. See Baldwin, 541 U.S. at 33, 124 S. Ct. at 1351-52; Duncan v. Henry, 513 U.S.
364,365-66,115 S. Ct. 887, 888 (1995) (per curiam); Anderson v. Harless, 459 U.S. 4, 6-8,103
S. Ct. 276, 277-78 (1982) (per curiam); Petrucelli v. Coombe, 735 F.2d 684, 690 (2d Cir. 1984);
see also 28 U.S.c. § 2254(b). As such, Stapleton's arguments in his objections to Judge Bloom's
R&R are unsupportable since they present issues not amenable to federal habeas review.
Assuming, arguendo, that petitioner's ineffective assistance oftrial counsel claim was
fairly presented and ripe for habeas determination on the merits, it fails nonetheless. The
Supreme Court announced the constitutional standard for evaluating ineffective assistance of
counsel claims in Strickland v. Washington, where it held that "the proper standard for attorney
performance is that of reasonably effective assistance." 466 U.S. 668, 687,104 S. Ct. 2052,
2064 (1984). Under Strickland, to establish ineffective assistance of counsel, a habeas petitioner
20
must "(1) demonstrate that his counsel's performance fell below an objective standard of
reasonableness in light of prevailing professional norms; and (2) affirmatively prove prejudice
arising from counsel's allegedly deficient representation," Carrion v. Smith, 549 F.3d 583, 588
(2d Cir. 2008) (quoting United States v. Cohen, 427 F.3d 164, 167 (2d Cir. 2005) (internal
quotation marks omitted)).
To establish the first prong, a habeas petitioner must overcome "a strong presumption
that counsel's conduct falls within the wide range of reasonable professional assistance," Brown
v. Greene, 577 FJd 107, 110 (2d Cir. 2009) (internal quotation marks omitted), with a showing
that "counsel made errors so serious that counsel was not functioning as the' counsel' guaranteed
the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. Here,
Stapleton makes no such showing. His first argument that counsel failed to argue that the police
lacked probable cause when they arrested him is actually contradicted in the record. As
discussed above, a pre-trial suppression hearing was in fact held and certain evidence
suppressed.
His third argument is similarly at odds with the record. Stapleton contends that counsel
should have, but did not, object to the admission of the out-of-court identification by Lopez.
Again, trial counsel moved to suppress Lopez's identification.
Continuing on to Stapleton's remaining contention, the Court addresses his argument that
counsel failed to adequately question the truthfulness of Detective Toro's testimony, which
would have impeached an important prosecution witness. On this path, Stapleton attacks trial
counsel's decisions regarding cross-examination ofa witness, which are strategic decisions
entitled to a high level of deference. See United States v. Nersesian. 824 F .2d 1294, 1321 (2d
Cir.1983) ("The decision whether to call any witnesses on behalf of the defendant, and if so
21
which witnesses to call, is a tactical decision of the sort engaged in by defense attorneys in
almost every trial .... Decisions whether to engage in cross-examination, and if so to what
extent and in what manner, are similarly strategic in nature.") The Court will not second guess
such decisions, particularly when nothing suggests that they were imprudent or would have
changed the outcome of the case.
Even if petitioner's claims survived the first prong of Strickland, they would fail under
the prejudice prong. To establish the second prong, a petitioner must demonstrate that "there is a
reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different." Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Because the
evidence is so heavily weighed against petitioner, he is unable to make the showing required
under Strickland. Consequently, a writ may not issue on this ground either.
3. Ineffective Assistance of Appellate Counsel
Stapleton also claims that he was denied effective assistance of appellate counsel. In two
motions for writs of coram nobis, petitioner argued that he received ineffective assistance of
appellate counsel, and, on both occasions, the Appellate Division denied relief. Petitioner's
current averment identifies specific instances where he claims appellate counsel failed to argue a
cognizable claim for ineffective assistance of trial counsel. First, Stapleton contends that, on
direct appeal, appellate counsel should have raised an ineffective assistance of trial counsel claim
because trial counsel failed to request a jury trial regarding his persistent violent felony offender
status. Second, he notes that appellate counsel failed to raise a meritorious issue of ineffective
assistance for trial counsel's failure to argue at sentencing that he was entitled to a hearing to
challenge his 1989 conviction for criminal possession of a weapon in the third degree. Third, he
22
contends that appellate counsel erred by not arguing on direct appeal that trial counsel should
have moved for a separate trial under New York Criminal Procedure Law §200.40.
As a threshold matter, not all of these new claims are properly before the Court. The first
two arguments were raised in petitioner's first writ of coram nobis motion, which was denied on
September 9, 2008 by the Appellate Division, when it found that Stapleton "failed to establish
that he was denied the effective assistance of appellate counsel." People v. Stapleton, 54 A.D.3d
782; 862 N.Y.S.2d 914 (2d Dept. 2008). But Stapleton did not appeal this decision. It is wellsettled that "[a]n application for a writ of habeas corpus on behalfofa person in custody
pursuant to the judgment of a State court shall not be granted unless it appears that ... the
applicant has exhausted the remedies available in the courts of the State." 28 U .S.c. § 2254(b).
"To achieve exhaustion, the factual and legal predicate for each claim must be fairly presented to
the highest available state court." Quintana v. McCoy, 03 Civ. 5747, 2004 U.S. Dist. LEXIS
24684, at *24 (S.D.N.Y. Nov. 18,2004) (citing Daye v. Attorney General of the State of New
York, 696 F.2d 186, 191 (2d Cir. 1982)). After the Appellate Division ruled on his coram nobis
application, Stapleton should have applied for leave to appeal the adverse ruling to the Court of
Appeals. Having failed to do so-and since any attempt to do so now would be procedurally
barred 5-his claim for ineffective assistance of appellate counsel on these grounds is
unexhausted. His third claim, however, that appellate counsel erred by not arguing on direct
appeal that trial counsel should have moved to sever his trial from that of co-defendant Carlos
Rivera, was exhausted. This argument was raised in Stapleton's second motion for a writ of
coram nobis, which was denied by the Appellate Division on August 11,2009. People v.
Stapleton, 65 A.D. 3d 597, 883 N.Y.S.2d 713 (2d Dept. 2009). But this time, Stapleton did
In New York, a party seeking leave to appeal to the Court of Appeals must do so within 30
days of having been served with the lower court's ruling. CPL § 460.10(5).
5
23
appeal the denial; the Court of Appeals denied leave on November 12,2009. People v. Stapleton,
13 N. Y.3d 863 (2009).
Setting aside the fact of claim forfeiture and assuming exhaustion of all three claims, his
ineffective assistance of appellate counsel argument still fails. Ineffective assistance of appellate
counsel claims are similarly evaluated under the Strickland framework. Mayo v. Henderson, 13
F.3d 528, 533 (2d. Cir. 1994) ("Although the Strickland test was formulated in the context of
evaluating a claim of ineffective assistance of trial counsel, the same test is used with respect to
appellate counsel."). The Supreme Court has made it clear that "judicial scrutiny of counsel's
performance must be highly deferential." Strickland, 466 U.S. at 689,104 S. Ct. at 2065.
Moreover, "[i]n attempting to demonstrate that appellate counsel's failure to raise a state claim
constitutes deficient performance, it 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." Mayo, 13 F.3d at 533. Instead, in order to prevail
on such claims, a petitioner must show that appellate counsel "omitted significant and obvious
issues while pursuing issues that were clearly and significantly weaker." Id. "This process of
'winnowing out weaker arguments on appeal and focusing on' those more likely to prevail, far
from being evidence of incompetence, is the hallmark of effective appellate advocacy." Smith v.
Murray, 477 U.S. 527, 536,106 S. Ct. 2661 (1986) (quoting Jones v. Barnes, 463 U.S. 745, 75152,103 S. Ct. 3308, 3313 (1983)).
All three of Stapleton's claims of deficient performance of trial counsel fall into the
category of "weaker" issues that appellate counsel was well within his discretion to omit on
appeal. First, trial counsel's decision not to request ajury trial regarding Stapleton's persistent
violent felony offender status was strategically sound. Where an enhanced sentence is based
24
solely on a defendant's recidivism, he is not entitled to ajury trial on that issue. See Apprendi v.
New Jersey. 530 U.S. 466, 490 (2000). Second, the record reveals that at sentencing, trial
counsel in fact argued that Stapleton's 1989 conviction was not entered into knowingly or
voluntarily and requested a hearing to challenge the constitutionality of the conviction. The
court denied the relief sought. Consequently, there was no basis for appellate counsel to
challenge trial counsel's performance on this point. Finally, there is absolutely nothing in the
record to support a finding that petitioner was entitled to a separate trial or that there was any
prejudice inherent in the joint trial that was ordered. In sum, these claims, to the extent they
were non-frivolous, were surely long-shot claims that appellate counsel was not required to raise
on appeal. The Court, therefore, declines to "second-guess [the1reasonable professional
judgments" of appellate counsel, Jones, 463 U.S. at 754, and a writ may not issue on this ground
even if the Court were permitted to consider all of them de novo on its habeas review.
III.
CONCLUSION
For the foregoing reasons, upon de novo review, the Court finds Magistrate Judge
Bloom's R&R to be correct, well-reasoned, and free of any clear error. The Court, therefore,
adopts the R&R in its entirety, as supplemented by this Memorandum and Order, as the opinion
of the Court. Additionally, regarding the new claims raised by petitioner in his objections to
Judge Bloom's R&R, the Court finds that they are without merit. Stapleton's petition for a writ
of habeas corpus is, accordingly, dismissed with prejudice and the writ is denied. Since
Stapleton has not made a substantial showing of the denial of a constitutional right, a certificate
of appealability shall not issue. 28 U.S.c. § 2253(c)(2). In this light, the Court certifies pursuant
to 28 U.S.C. § 1915(a) that any appeal from this Memorandum and Order would not be taken in
25
good faith and therefore in forma pauperis is denied for the purpose of any appeal. See Coppedge
v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 920-21 (1962).
The Clerk of the Court is directed to enter judgment and to close this case.
SO ORDERED.
Dated: Brooklyn, New York
May 5, 2011
ERIC~. VhALI~NO
United States District Judge
26
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?