Blount v. Napoli

Filing 5

ORDER re 1 Petition for Writ of Habeas Corpus filed by Mark Blount. For the reasons set forth in the within Memorandum and Order, the application for writ of habeas corpus 1 is denied in its entirety and the petition is dismissed. The clerk of court is respectfully ordered to close this case. Respondent shall serve pro se petitioner with a copy of this Memorandum and Order and file a declaration of service via ECF by October 9, 2012. Ordered by Judge Kiyo A. Matsumoto on 10/5/2012. (Kelley, Jamuna)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------- X
MARK BLOUNT, pro se,
Plaintiff,
NOT FOR PUBLICATION
-againstMEMORANDUM & ORDER
DAVID F. NAPOLI, SUPERINTENDENT OF
GREAT MEADOW CORRECTIONAL
FACILITY,

09-CV-4526 (KAM)

Defendant.
X
---------------------------------MATSUMOTO, United States District Judge:
Pro se petitioner Mark Blount (“petitioner”) seeks a
writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging
his conviction on four counts of Robbery in the First Degree,
one count of Attempted Robbery in the First Degree, and Criminal
Possession of a Weapon in the Second Degree, for which he was
sentenced to eighty years.

Petitioner is currently incarcerated

pursuant to his sentence.
FACTS
I.

Background Facts 1
On January 17, 2004, at 1:00 a.m., petitioner was

sleeping at the home of a friend, Yodee, when petitioner’s co1

The following facts are derived from the evidence introduced at petitioner’s
state court trial. “Trial Tr.” refers to the transcript from the jury trial,
as submitted in Exhibit A to the Respondent’s opposition papers, which are
divided into volumes (“Vol.”) numbered 4 through 12. (See ECF No. 4,
Affirmation of Maria Park, Esq. in Opposition to Petition for Writ of Habeas
Corpus (“Park Affirm.”) ¶ 17.) For brevity, only the page numbers of trial
transcript references are cited herein.

1

defendant, Antonio Farrell (“Farrell”), woke petitioner and told
him that Yodee and a Bloods gang member named “Black” wanted
petitioner to rob someone at a dance club.
644-45.)

(Trial Tr. at 100,

Petitioner obtained a gun from Yodee’s house, and

petitioner and Farrell were driven by another acquaintance to
the club.

(Id. at 644-45.)

Petitioner testified that he spoke

directly with Black at the club, who told petitioner that if he
did not commit the robberies, Black would kill petitioner and
his family.

(Id. at 648.)

Petitioner and Farrell then waited

outside for Black’s intended victim to exit the club.

(Id. at

650.)
Around 4:00 a.m., when the victim did not appear,
petitioner received a message from Black to drive to the corner
of Fulton Street and Franklin Avenue in Brooklyn, New York.
at 650.)

(Id.

Once they arrived, Black called petitioner, asking him

to rob Ramel Henriques (“Henriques”), a man who had been at the
club earlier that night.

(Id. at 650.)

Petitioner and Farrell

approached Henriques, who was sitting in the rear seat of a
livery cab parked nearby.

(Id. at 332-33.)

Farrell opened the

rear passenger door, demanded Henriques’ property, and shot
Henriques in the leg and groin two times as the cab drove away.
(Id. at 338-36, 378, 652.)
After the Henriques shooting, petitioner and Farrell
returned to the car they had driven to the club. (Id. at 100,

2

652-53.)

Petitioner, who was sitting in the passenger seat,

then received a call from Black instructing petitioner and
Farrell to go to the Galaxy Diner at 805 Pennsylvania Avenue,
Brooklyn.

(Id. at 73, 653-54.)

On direct examination,

petitioner testified that he did not think he would be asked to
rob the diner, but that they were just “going to get something
to eat.”

(Trial Tr. at 654.)
An hour later, at approximately 5:00 a.m., petitioner

and Farrell arrived at the Galaxy Diner.

(Id. at 100.)

Prior

to exiting the car, petitioner and Farrell both spoke to Black
on the phone, and Black asked them to rob the diner.
656.)

(Id. at

Although petitioner initially refused to perform the

robbery, petitioner eventually agreed because he was “under the
impression Black was going to harm me and my family.”
656-57, 702.)

(Id. at

On direct examination, petitioner explained that

he performed the robbery because “I ain’t gonna let [Farrell] go
by [himself] because I don’t want Black to do nothing to me.”
(Id. at 657.)
diner.

Petitioner and Ferrell then entered the Galaxy

Petitioner was armed with a loaded nine-millimeter gun,

and Farrell was armed with two loaded firearms.

(Id. at 684,

702.)
After initially entering the diner, petitioner and
Farrell briefly walked out of the diner, returned to the car,
and spoke to Black on the cell phone again.

3

(Id. at 465, 657-

58.)

Petitioner told Black that there were too many people in

the diner to perform a successful robbery.

(Id. at 657-58.)

Black responded that there was already someone inside the diner
who would help with the robbery, and repeated his instruction to
petitioner and Farrell to rob the diner.

(Id. at 658.)

Petitioner and Farrell then reentered the diner.

(Id.)

At that

time, diner security guard Mike Kennedy (“Kennedy”) asked
petitioner and Farrell if they needed help, and walked outside
the diner with petitioner and Ferrell.

(Id. at 464-65.)

Kennedy then stayed outside with Marcus Butler (“Butler”),
another security guard, while petitioner and Farrell reentered
the diner for a third time.

(Id. at 466-67.)

Upon reentering the diner for the third time, Farrell
fired two shots in the air, and both Farrell and petitioner
announced a robbery.

(Id. at 39-40, 467, 487-88, 658-659.)

Next, either Farrell or petitioner instructed people in the
diner to put their money on the table.

(Id. at 224.)

Petitioner, holding his gun, ordered the person at the cash
register to hand over the money.

(Id. at 703.)

The cashier

fumbled with the key, and petitioner never accessed the money in
the register.

(Id. at 43, 703.)

Former diner security guard Vernon Alexander
(“Alexander”) then ran toward the exit, and petitioner took his
belongings and shot at him, grazing his leg.

4

(Id. at 47-48, 71,

441.)

Petitioner shot customer Jaytee Spurgeon (“Spurgeon”) in

the rear, as Spurgeon was taking his jacket off.
507.)

(Id. at 441,

Spurgeon also put his money on a table and never saw his

money again.

(Id. at 507.)

According to petitioner’s testimony, at some point
during the robbery, petitioner ran out of the diner and saw
Black.

(Id. at 659-60.)

Black shot at petitioner, sending a

bullet past petitioner’s head.
the diner.

Petitioner then ran back inside

(Id. at 659-60.)
Meanwhile, Farrell, who did most of the shooting,

fired his guns at anyone who moved, including employee Juan
Teutle and customer Kawan Tyler, who were both shot in the head.
(Id. at 42-43, 146, 148, 186, 446, 469).

Farrell also hit

customer Matthew Daniels (“Daniels”) in the head with the butt
of a gun and took his belongings.

(Id. at 444-46.)

Additionally, customers Melissa Boban and Patrick Mullings were
shot during the robbery in the torso and finger, respectively.
(Id. at 210, 231.)

By the end of the robbery, customer Clifton

Jordan (“Jordan”) had also been shot in his finger and his money
had been taken.

(Id. at 489-90.)

After receiving a call from petitioner’s cousin, on
January 20, 2004, police identified petitioner in connection
with the robbery and went to a residential building 966 Utica
Avenue, Brooklyn.

(Id. at 87, 283-84, 669.)

5

At the residential

building, police approached petitioner, who was drinking from an
open container of alcohol, and asked for petitioner’s
identification.

(Id. at 284-85.)

After petitioner identified

himself, police brought him into custody, where, after being
provided with Miranda warnings, he provided a written statement
admitting his participation in the livery cab and Galaxy diner
robberies.
II.

(Id. at 88, 99-101.)

The Trial
Petitioner was charged by Kings County Indictment

Number 565/2004 with ten counts of Attempted Murder in the
Second Degree (N.Y. Penal Law §§ 110.00/125.25(1)); four counts
of Robbery in the First Degree (N.Y. Penal Law §160.15(2)); ten
counts of Robbery in the Second Degree (N.Y. Penal Law
§ 160.10(1), (2)(a)); five counts of Robbery in the Third Degree
(N.Y. Penal Law § 160.05); one count of Attempted Robbery in the
First Degree (N.Y. Penal Law §§ 110.00/160.15(2)); two counts of
Attempted Robbery in the Second Degree (N.Y. Penal Law
§§ 110.00/160.10(1), (2)(a)); one count of Attempted Robbery in
the Third Degree (N.Y. Penal Law §§ 110.00/160.05); two counts
of Assault in the First Degree (N.Y. Penal Law § 120.10(1));
nine counts of Assault in the Second Degree (N.Y. Penal Law
§ 120.05(2)); nine counts of Assault in the Third Degree (N.Y.
Penal Law § 120.00(1)); five counts of Criminal Possession of a
Weapon in the Second Degree (N.Y. Penal Law § 265.03(2)); five

6

counts of Criminal Possession of a Weapon in the Third Degree
(N.Y. Penal Law § 265.02(4)); five counts of Criminal Possession
of a Weapon in the Fourth Degree (N.Y. Penal Law § 265.01(1));
and Reckless Endangerment in the First Degree (N.Y. Penal Law
§ 120.25).

(Park Affirm. ¶ 6.)

Petitioner’s jury trial was

held between October 18, 2004 and October 28, 2004, before
Justice Anne G. Feldman in the Kings County Supreme Court.

(See

generally Trial Tr.)
A.

Sandoval Hearing

Prior to the commencement of the jury trial,
petitioner requested a Sandoval hearing, seeking to prevent the
prosecutor from impeaching him with his criminal record if he
testified.

(ECF No. 4, Ex. A, Vol. 1, Sandoval Hearing

Transcript (“SH Tr.”), at 92-94.)

Specifically, petitioner

sought to prevent the prosecutor from referring to the fact that
in December 1995, petitioner pleaded guilty to Robbery in the
Second Degree, and served eight years in prison until October
2003, when he was released on parole.

(SH Tr. at 92-94.)

At the Sandoval hearing held on October 13, 2004, the
prosecutor asked the court to permit her to ask petitioner about
his prior conviction and parole release date, if he testified at
trial.

(Id. at 94-95.)

In response, defense counsel asked the

court to limit the prosecutor’s inquiry and prevent her from
bringing up the fact that petitioner had been released on parole

7

just three months before the incidents occurred.

(Id.)

Defense

counsel asserted that “the time frame of [petitioner] having
been out three months before being arrested on this case [was]
irrelevant,” and asked the court not to allow the prosecutor to
raise the fact of petitioner’s parole.

(Id. at 95.)

The court

ruled that the prosecutor could cross-examine petitioner
regarding both his past felony conviction and the release date.
(Id. at 96.)

The court reasoned:

[I]f he is convicted in this case the fact
that he’d just gotten out of . . . prison
three months earlier will certainly be very
influential in determining the appropriate
sentence in this case . . . since he
obviously is not living as a law-abiding
citizen and has no intention of doing so.
(Id.)
B.

Trial Testimony Regarding Petitioner’s Duress
Defense

Petitioner presented a duress defense at trial,
arguing that he committed the robberies only because he feared
that, otherwise, Black would kill him and his family.
at 648-50.)

(Trial Tr.

Petitioner also testified on direct examination

that he had taken a gun to the club (where he had been prior to
the livery car robbery), knowing that Black had asked him to rob
someone at the club, but before Black had made any threats.
at 643-45.)

During cross-examination, however, petitioner

testified that he did not know he had been asked to commit a

8

(Id.

robbery prior to arriving at the club.

(Id. at 692.)

Petitioner also claimed that although he did not want to rob
anyone, he “had to appear he was doing something” because he
thought Black would kill him and his family.

(Id. at 702.)

He

did not, however, tell the police or the assistant district
attorney that he felt coerced by Black to commit the robberies.
(Id. at 722-24.)

Additionally, on cross examination, petitioner

identified himself in a still photograph taken from the diner
surveillance video, which showed petitioner holding a gun in the
Galaxy diner during the robbery.

(Id. at 704, 708-10.)

Moreover, defense counsel was the first to introduce
petitioner’s 1995 conviction and October 2003 release date,
questioning petitioner as follows:
Q: Now you got out of jail in October of
2003; is that correct?
A: Yes.
Q: Did you make any efforts to find work at
that time?
A: No, I haven’t.
Q: Why not?
A: Because my parole officer told me to get
in school.
Q: And what efforts have you made to get in
school?
A: I went to a vocational trade in Manhattan
and I signed up and they told me that the

9

first class would be starting in February
2004.
Q: That would put it at the point that you
got arrested in January of 2004?
A: Yes.
. . .
Q: How long have you known Yodee?
A: I knew him when we was younger before I
got locked up in 1995.
(Id. at 636-37, 639.)
C.

Summations

During summation, defense counsel referred to
petitioner’s testimony that Black had shot at him as petitioner
tried to escape the diner, thus scaring him back inside.
at 762-63.)

(Id.

Defense counsel argued that Butler and Kennedy, the

two security guards who had been standing outside at the
beginning of the robbery, must have walked away from the diner
before Black had shot at petitioner, because neither of them
testified at trial.

Specifically, defense counsel stated:

Now, those two individuals did not testify.
If they’re outside, they should have seen
what took place. They should have . . . seen
the shot into the diner, should have seen
Black. . . . I think that what took place
is that after Mr. Kennedy and Mr. Butler
were outside, that they left and went
somewhere else.
(Id. at 763.)

10

During her summation, the prosecutor addressed defense
counsel’s comment regarding Kennedy and Butler’s non-appearance
at the trial as follows:
If [Marcus Butler] was outside and [he] saw
someone shooting, that [sic] you could bet
he would be here. . . . Out of the 40
witnesses he would have been here, but that
didn’t happen. [The defendant is] working
everything to fit it all in for his little
duress defense.
(Id. at 810.)

The prosecutor also referred to petitioner’s

prior conviction to discredit his duress defense, stating:
We are dealing with a man who just spent
eight years of his life in jail, out for
three months, not even, when this crime is
committed. . . . [I]s this a man of
reasonable firmness that could have resisted
any threats of coercion assuming that you
believe there might even be one?
(Id. at 806.)
D. The Verdict
The jury convicted petitioner of four counts of
Robbery in the First Degree (N.Y. Penal Law §160.15(2)), one
count of Attempted Robbery in the First Degree (N.Y. Penal Law
§§ 110.00/160.15(2)), and one count of Criminal Possession of a
Weapon in the Second Degree (N.Y. Penal Law § 265.03(2)).
(Trial Tr. at 907-09.)

On December 7, 2004, petitioner was

sentenced to four consecutive twenty-year prison terms for each
of the robbery counts, to run concurrently with ten years each

11

for the attempted robbery and weapon possession counts. (ECF No.
4, Ex. A, Vol. 12, Sentencing Hearing Transcript, at 9-10.)
III. Post-Trial Proceedings in State Court
A. Direct Appeal
In February 2007, petitioner filed a brief in the
Appellate Division, Second Department.
Ex. B (“Def.-Appellant Br.”).)

(See generally ECF No. 4,

On direct appeal, petitioner

challenged (i) the trial court’s Sandoval ruling, (ii) the
prosecutor’s summation, and (iii) the consecutive twenty-year
prison sentences.

(Def.-Appellant Br. at 31, 35, 39.)

Regarding the Sandoval ruling, petitioner argued that
the prosecutor’s impeachment using the facts of his prior
conviction and parole release date was unduly prejudicial, and
that his parole status and prior conviction were irrelevant to
any issue in controversy at trial.

(Id. at 31.)

Petitioner

also claimed that the prosecutor made herself an “unsworn
witness” by commenting in her summation that if Black had shot
at petitioner when he tried to escape the diner, Butler would
have testified on the People’s behalf.

(Id. at 35.)

Petitioner further argued that his robbery sentences
should not run consecutively with each other because the robbery
was predicated on a single act and, thus, under New York Penal
Law § 70.25(2), the robbery sentences must run concurrently.
(Id. at 39.)

Petitioner also maintained that the consecutive

12

sentences violated Apprendi v. New Jersey, 530 U.S. 466, 490
(2000), in which the Supreme Court held that any fact that
increases the penalty for a crime must be submitted to a jury
and proved beyond a reasonable doubt.

(Id. at 44.)

Alternatively, petitioner argued that the Appellate Division
should reduce his 80-year sentence because it was excessive.
(Id. at 46.)
The New York Appellate Division affirmed petitioner’s
conviction in People v. Blount, 849 N.Y.S.2d 640 (App. Div.
2008).

First, the Appellate Division held that the Sandoval

ruling was “a provident exercise of the court’s discretion.”
at 641.

Id.

Second, it held that petitioner’s challenge to the

prosecution’s summation comments was procedurally barred under
New York Criminal Procedure Law § 470.05(2) because defense
counsel failed to object to the comments at trial.

Id.

The

court also noted that the prosecutor’s comments were either a
“fair response to the [defense counsel’s] summation or, if
improper, did not deprive petitioner of a fair trial.”

Id.

Third, the Appellate Division concluded that petitioner
accomplished his four first degree robberies through “separate
and distinct acts committed against four different individuals,”
and, thus, consecutive sentences were permitted, even though the
robberies were part of a “single extended criminal transaction.”
Id. at 642.

The New York Court of Appeals denied petitioner

13

leave to appeal the Appellate Division’s decision.

See People v.

Blount, 10 N.Y.3d 808 (N.Y. 2008).
B. Petitioner’s Motion to Vacate His Conviction under
New York Criminal Procedure Law Section 440.10
On February 24, 2009, petitioner filed in New York
Supreme Court a pro se motion to vacate the judgment of
conviction against him pursuant to New York Criminal Procedure
Law § 440.10, citing two grounds.
D (“Mot. to Vacate”).)

(See generally ECF No. 4, Ex.

First, he claimed that Justice Feldman,

who presided over his trial, did not have jurisdiction to
preside over his case because she had never been sworn in as a
Justice of the Supreme Court.

(Mot. to Vacate at 4-6.)

Second,

petitioner alleged that he was arrested under false pretenses.
(Id. at 7-9.)
On May 12, 2009, the New York State Supreme Court
denied petitioner’s § 440.10 motion.

(See generally ECF No. 4,

Ex. F, Justice Ingram’s Decision and Order dated 5/12/09.)

The

New York Supreme Court rejected petitioner’s claim pertaining to
Justice Feldman because documents established that in 1977
Justice Feldman had taken the requisite oath and signed the oath
book.

(Id. at 2-3.)

The court further held that, under

§ 440.10(2)(c), petitioner was procedurally barred from raising
a false arrest claim in his post-conviction motion because
sufficient facts appeared on the record to have allowed

14

petitioner to raise the claim on direct appeal, but petitioner
unjustifiably failed to do so.

(Id. at 3.)

On September 10, 2009, the Appellate Division denied
petitioner’s application for leave to appeal the Supreme Court’s
decision on the motion to vacate.

(See generally ECF No. 4, Ex.

G, Justice Florio’s Decision and Order dated 9/10/09.)
IV.

Habeas Corpus Proceedings in Federal Court
On October 9, 2009, petitioner filed the instant

application seeking a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. (See generally ECF No. 1, Petitioner’s Petition for Writ
of Habeas Corpus (“Pet.”). 2)

Petitioner raises the same claims

here regarding the Sandoval ruling, prosecutorial misconduct
during summation, and consecutive sentencing that he raised on
direct appeal to the Appellate Division, and also raises the
same claims relating to Justice Feldman and false arrest that he
raised in his § 440.10 Motion to Vacate before the New York
Supreme Court.

(Pet. at 6-8.)

On December 10, 2009, the

respondent submitted its brief in opposition to the habeas
petition.

(See generally ECF No. 4, Respondent’s Memorandum of

Law in Opposition to Petition for Writ of Habeas Corpus (“Resp’t
Br.”).)

2

Because petitioner’s Petition is not consecutively paginated, the court will
refer to the page numbers imposed by the ECF filing system.

15

STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (1996),
established a deferential standard that federal courts must
apply in reviewing state court decisions on habeas petitions.
Under AEDPA, a federal court may grant habeas relief with
respect to a federal claim adjudicated on the merits in state
court only if the adjudication of the claim resulted in a
decision that was either: (1) “contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” or (2)
“based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.”
§ 2254(d).

28 U.S.C.

In addition, “a determination of a factual issue

made by a State court shall be presumed to be correct,” and the
habeas petitioner has the burden of “rebutting the presumption
of correctness by clear and convincing evidence.”

28 U.S.C.

§ 2254(e)(1).
In reviewing the petition, the Court is mindful that a
“document filed pro se is to be liberally construed, and a pro
se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.”
Erikson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation
marks and citations omitted); see also Williams v. Kullman, 722

16

F.2d 1048 (2d Cir. 1983) (noting that habeas petitions filed pro
se must be liberally construed).

Accordingly, the Court is

obliged to interpret petitioner’s pleadings as raising the
strongest arguments they suggest.

Harris v. Mills, 572 F.3d 66,

72 (2d Cir. 2009).
DISCUSSION
I. Petitioner’s Sandoval Claim
Petitioner argues that he was deprived of a fair trial
when the trial court’s Sandoval ruling permitted the prosecutor
to elicit the fact that petitioner was released from prison on
parole less than three months before the Galaxy diner and livery
cab robberies.

(Pet. at 6.)

Respondent asserts that the

Sandoval ruling is not cognizable on federal habeas review
because the ruling did not deny petitioner a fundamentally fair
trial.

(Resp’t Br. at 6.)
A.

Applicable Legal Standards

“Federal review of a state court conviction is limited
to errors of constitutional magnitude which denied a criminal
defendant the right to a fundamentally fair trial.”

Jenkins v.

Bara, 663 F. Supp. 891, 899 (E.D.N.Y. 1987) (citing Cupp v.
Naughten, 414 U.S. 141, 146 (1973)).

Generally, however,

“erroneous evidentiary rulings of a state trial court do not
rise to the level of a constitutional deprivation upon which a

17

writ of habeas corpus may be issued.”

Id. (citing Lipinski v.

People of New York, 557 F.2d 289, 292 (2d Cir. 1977)).
Additionally, a trial court’s Sandoval decision is treated as an
evidentiary ruling.

Ayala v. Ercole, 06-CV-1747, 2007 U.S. Dist.

LEXIS 28341, at *43 (E.D.N.Y. Apr. 17, 2007); Miller v.
Portuondo, 151 F. Supp. 2d 245, 247 (E.D.N.Y. 2001).

Thus,

erroneous Sandoval rulings do not usually provide grounds for
granting a habeas petition unless the ruling denied the
defendant a fair trial or violated “‘fundamental conceptions of
justice.’”

Gouvatsos v. Ercole, No. 08-CV-2049, 2010 U.S. Dist.

LEXIS 131985, at *41-42 (E.D.N.Y. Dec. 13, 2010) (quoting
Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998)); see also
Ayala, 2007 U.S. Dist. LEXIS 28341, at *38.

Therefore,

regardless of whether the trial judge erred in admitting
evidence of the petitioner’s prior conviction and imprisonment,
petitioner’s Sandoval claim is only cognizable under federal
habeas review if the admission of the evidence denied petitioner
a fundamentally fair trial.
In order for erroneously admitted evidence to have
denied a defendant a fundamentally fair trial, the evidence must
be “sufficiently material to provide the basis for conviction or
to remove a reasonable doubt that would have existed on the
record without it.”

Collins v. Scully, 755 F.2d 16, 19 (2d Cir.

1985); see also Allan v. Conway, No. 08-CV-4894, 2012 U.S. Dist.

18

LEXIS 2922, at *50 (E.D.N.Y. Jan. 10, 2012).

The presence of

other “overwhelming evidence” of defendant’s guilt at trial is a
factor that weighs against finding that erroneously admitted
evidence was sufficiently material to provide the basis for
conviction.

Allan, 2012 U.S. Dist. LEXIS 2922, at *53.

Furthermore, the petitioner bears the “heavy burden” of proving
the erroneously admitted evidence was sufficiently material to
provide the basis for conviction.

Roldan v. Artuz, 78 F. Supp.

2d 260, 276 (S.D.N.Y. 2000).
B.

Discussion

The trial court’s admission of the Sandoval evidence –
i.e., petitioner’s prior convictions, prison term, and recent
parole date – did not deprive petitioner of a fundamentally fair
trial.

Erroneously admitted Sandoval evidence 3 only denies a

defendant a fair trial if the evidence was “sufficiently
material to provide the basis for conviction.”
F.2d at 19.

Collins, 755

Here, for the reasons discussed below, even

assuming the Sandoval evidence was erroneously admitted, the
evidence did not provide the basis for conviction, and, thus,
did not render petitioner’s trial fundamentally unfair.

3

As noted infra section II, there is no indication that the trial court’s
admission of the Sandoval material was erroneous under New York law. To the
contrary, the New York Appellate Division has held that a prosecutor can
introduce evidence of a defendant’s prior convictions to impeach the
defendant’s testimony where, as here, the defendant raises a duress defense.

19

First, there was overwhelming evidence of petitioner’s
guilt at trial, even putting aside the Sandoval evidence.

For

example, a surveillance video showed petitioner holding a gun in
the diner during the robbery, and petitioner even identified
himself in a still photograph taken from the surveillance video
during his cross examination.

(Trial Tr. at 704, 751.)

Petitioner testified that he accompanied his co-defendant
Farrell into the diner and was there when Farrell opened fire on
diners.

(Id. at 657-59.)

Petitioner also admitted to demanding

money from the diner’s cashier while holding a gun.
659.)

(Id. at

Additionally, two eyewitnesses testified to seeing

petitioner fire his gun, and one eyewitness testified to seeing
petitioner shoot two people in the diner.
07.)

(Id. at 41, 441, 506-

Further, petitioner submitted a written statement while in

police custody admitting to going to the club after he was asked
to rob someone, accompanying his co-defendant during the livery
cab assault and robbery, and accompanying his co-defendant into
the Galaxy diner.

(Id. at 99-101.)

As other courts in this district have observed, the
existence of overwhelming evidence of petitioner’s guilt weighs
against a finding of fundamental unfairness.

See, e.g., Allan,

2012 U.S. Dist. LEXIS 2922, at *52-53 (erroneously admitted
hearsay evidence was not sufficiently material, in light of
overwhelming evidence of petitioner’s guilt).

20

Thus, even

without the Sandoval material, the overwhelming evidence of
petitioner’s guilt elicited at trial weighs against a finding of
fundamental unfairness.
Second, even if the court assumes that the trial
judge’s decision to admit the Sandoval evidence injured
petitioner’s credibility with respect to his duress defense, the
Sandoval evidence was not “sufficiently material” to provide the
basis for conviction because petitioner’s testimony was
insufficient to establish a successful duress defense even if it
had been fully credited by the jury.

Collins, 755 F.2d at 19.

Under New York law, a duress defense “is not available
when a person intentionally or recklessly places himself in a
situation in which it is probable that he will be subjected to
duress.”

N.Y. Penal Law § 40.00(2).

Additionally, a duress

defense will not succeed if the defendant has opportunities to
escape and does not take them.
441, 443 (App. Div. 1984).

People v. Amato, 470 N.Y.S.2d

Moreover, although generally the

threatened harm must be capable of immediate realization, see
People v. Moreno, 871 N.Y.S.2d 126, 129 (App. Div. 2009), prior
threats and assaults may support a claim of duress at the time
of the crime only when combined with a present and immediate
ability to act and a threat of harm is imminent, People v.
Staffieri, 674 N.Y.S.2d 885, 886 (App. Div. 1998).

21

Here, petitioner testified on direct examination that
he went to the dance club armed with a gun, knowing that Black
had asked him to rob someone at the club.
44.)

(Trial Tr. at 643-

When defense counsel asked why he had taken a gun to the

club, petitioner responded, “because they told us to bring the
guns to the club, that we was [sic] to rob somebody.”
644.)

(Id. at

Therefore, according to petitioner’s own testimony,

petitioner went to the club with a gun before Black had made any
threats.

(See id. at 643-44.)

Additionally, petitioner

testified that, prior to leaving for the club, he knew Black was
a member of the Bloods gang and a dangerous person who shot
people and had participated in many robberies.

(Id. at 641,

643.)
Under these circumstances, petitioner’s duress defense
was insufficient wholly apart from the Sandoval material because
petitioner testified that he voluntarily went to the club after
being asked by Black, a known dangerous person, to commit a
robbery there, thereby recklessly placing himself in a situation
in which he was likely to be subjected to duress.

See, e.g.,

People v. Campos, 484 N.Y.S.2d 907, 908 (App. Div. 1985) (no
duress defense where defendant voluntarily put himself in
position to be subjected to duress).

Further, petitioner had

opportunities to escape from Black – for example, after
petitioner and Farrell waited for the intended victim outside

22

the club for a few hours but did not find him, or after the
Henriques shooting, when petitioner and Farrell were asked by
Black via a cell phone call to rob the diner.

Petitioner,

however, did not avail himself of the multiple opportunities to
escape.

(See Trial Tr. at 332-33, 650, 656-57.)

fatal to a putative duress defense.

This is also

See Amato, 470 N.Y.S.2d at

443 (duress defense was not established where defendant had
opportunities to escape when left alone by his coercer).
Similarly, petitioner did not establish that Black’s
threat was capable of immediate realization, or that Black’s
prior threat to him was combined with any present immediate
compulsion to carry it out at the time he and Farrell attacked
Henriques, as would be required to constitute a duress defense
based on prior threats.

See Moreno, 871 N.Y.S.2d at 129;

Staffieri, 674 N.Y.S.2d at 886 (duress defense unsuccessful
where prior threats were not capable of being realized at the
time defendant committed supposedly coerced crime).

Regarding

the Galaxy diner robbery, even if Black posed an immediate
threat to petitioner by shooting at him when petitioner tried to
escape the diner, petitioner had an opportunity to avoid putting
himself under foreseeable immediate compulsion when Black first
asked him via cell phone to rob the diner, because at that point
in time petitioner was outside the diner and Black had not yet
arrived.

(Trial Tr. at 658.)

See Amato, 470 N.Y.S.2d at 443.

23

Thus, petitioner’s duress defense was insufficient in several
independent respects under New York law, and, therefore, the
Sandoval material can hardly be viewed as the pivotal reason why
petitioner’s duress claim failed.

Consequently, the admission

of the Sandoval material was not the basis of petitioner’s
conviction, and, thus, did not render the trial fundamentally
unfair.
Moreover, petitioner’s overall credibility was already
placed in doubt with respect to the duress defense because of
his own inconsistent testimony, notwithstanding the Sandoval
material.

Specifically, while petitioner testified during his

direct examination that he had left for the club knowing that he
was asked to commit a robbery, petitioner testified on crossexamination that he did not know he had been asked to commit a
robbery prior to arriving at the club.
643-44 with 692.)

(Compare Trial Tr. at

Juries are entitled to discredit a

defendant’s self-serving statements regarding a duress defense
that is otherwise against the weight of the evidence.

See

People v. Hammond, 922 N.Y.S.2d 706, 707 (App. Div. 2011).
Petitioner’s duress defense had credibility issues apart from
any implications derived from the Sandoval material, and, hence,
the Sandoval material cannot be deemed “sufficiently material”
to have been the basis for petitioner’s conviction.
755 F.2d at 19.

24

Collins,

Therefore, for all the reasons discussed above, even
if the trial court erroneously admitted evidence of petitioner’s
prior conviction, petitioner’s Sandoval claim is not cognizable
on federal habeas review because the ruling did not deprive
petitioner of a fundamentally fair trial.
II.

Prosecutorial Misconduct Claim Based on the Prosecutor’s
Summation Comments Concerning Petitioner’s Previous
Conviction and Release Date
Petitioner contends that he was deprived of his due

process right to a fair trial when the prosecutor mentioned in
her summation that petitioner had spent eight years in prison
and had only been released for less than three months before the
livery cab and diner robberies.

(Pet. at 6.)

Respondent argues

that the prosecutor’s comments did not violate petitioner’s due
process right to a fair trial.

(Resp’t Br. at 16-18.)

For the

reasons discussed below, petitioner’s prosecutorial misconduct
claim based on these remarks must be denied because the
prosecutor was permitted to make the challenged remarks under
applicable New York law and because those remarks did not
constitute substantial prejudice to the petitioner.
A.

Applicable Legal Standards

In order to assert a successful prosecutorial
misconduct claim, the petitioner bears the “heavy burden” of
showing that the alleged misconduct was “so severe and
significant as to result in the denial of [his] right to a fair

25

trial.”
1993).

United States v. Locascio, 6 F.3d 924, 945 (2d Cir.
Specifically, petitioner must establish that the

prosecutor’s alleged misconduct resulted in “substantial
prejudice.”

Floyd v. Meachum, 907 F.2d 347, 355 (2d. Cir. 1990).

The Second Circuit considers three factors in determining the
existence of substantial prejudice: “the severity of the
misconduct; the measures adopted to cure the misconduct; and the
certainty of conviction absent the improper statements.”

Id.

(internal quotation marks omitted).
Additionally, courts in this district have held that a
prosecutor’s comments do not constitute prosecutorial misconduct
where they merely discuss evidence that is “admissible for an
appropriate purpose under state law.”

Goines v. Walker, No. 97-

CV-3512, 2000 U.S. Dist. LEXIS 9798, at * 19-20 (E.D.N.Y. Jul.
12, 2000) (citing Spencer v. Texas, 385 U.S. 554, 560 (1967);
Bossett v. Walker, 41 F.3d 825, 828-830 (2d Cir. 1994)); see
also Lombard v. Mazzuca, No. 00 CV 7622, 2003 U.S. Dist. LEXIS
22085, at *36 (E.D.N.Y. Dec. 8, 2003) (holding that the fact
that the prosecutor’s remark is a “reasonable inference” based
on properly admitted evidence is a factor that weighs against a
finding of prosecutorial misconduct).
B.

Discussion

Petitioner’s prosecutorial misconduct claim arising
from the prosecutor’s comments regarding petitioner’s previous

26

conviction and incarceration fails because the prosecutor was
permitted to make those comments under applicable New York law.
Additionally, there are no record facts in this case indicating
that the prosecutor’s comments resulted in substantial prejudice
to petitioner, as the relevant precedent requires.
The prosecutor’s comments during summation concerning
petitioner’s recent parole date and prior conviction did not
constitute misconduct because they merely made arguments based
on evidence that was “admissible for an appropriate purpose
under state law.”

Goines, 2000 U.S. Dist. LEXIS 9798, at *19-20.

The New York Appellate Division has explicitly held that the
prosecutor can introduce evidence of the defendant’s prior
convictions to impeach the defendant’s testimony where, as here,
the defendant raises a duress defense.

See People v. Stranton,

685 N.Y.S.2d 250, 250 (App. Div. 1999); People v. Rosado, 666
N.Y.S.2d 227, 231 (App. Div. 1997).

The rationale for allowing

impeachment through this avenue is that, by virtue of
introducing a duress defense, the defendant “place[s] his intent
squarely in issue.”

Rosado, 666 N.Y.S.2d at 231.

Therefore,

evidence of prior convictions is relevant to establishing “a
disposition to commit acts of a similar nature,” in order to
“rebut the implicit denial of criminal intent raised by [a
duress] defense.”

Id.

27

In this case, petitioner raised a duress defense
during his trial, thereby putting his intent squarely at issue.
(Trial Tr. at 648-50, 657, 661, 702.)

Under New York law, then,

the evidence of petitioner’s prior conviction and release date
was relevant to establishing petitioner’s disposition to commit
similar acts at trial.

Rosado, 666 N.Y.S.2d at 231.

Thus, in

light of petitioner’s duress defense, the prosecutor’s use of
petitioner’s prior conviction and parole status to impeach
petitioner’s testimony during her summation was proper under New
York law.

See Stranton, 685 N.Y.S.2d at 250 (admission of

evidence regarding defendant’s prior robbery conviction was
proper in light of defendant’s duress defense); Rosado, 666
N.Y.S.2d at 231 (trial court properly admitted evidence of a
prior youthful offender adjudication for robbery to establish a
criminal disposition because defendant “placed his intent
squarely in issue” by arguing duress).

Additionally, petitioner

himself admitted during direct examination that he was “locked
up” in 1995 and released in 2003 (Trial. Tr. at 636-37, 639),
and thus, the prosecutor’s remarks were legitimate inferences
from properly admitted evidence and testimony presented by
petitioner during his direct examination, which also weighs
against a finding of prosecutorial misconduct.

See Lombard,

2003 U.S. Dist. LEXIS 22085, at *36; Goines, 2000 U.S. Dist.
LEXIS 9798, at *19-20.

28

Furthermore, even if the court assumed, arguendo, that
the prosecutor’s comments regarding petitioner’s previous
conviction and parole date did constitute misconduct, the court
would still have to evaluate the degree of certainty with which
petitioner would have been convicted in the absence of the
challenged remarks to determine if the challenged remarks were
substantially prejudicial.

See Floyd, 907 F.2d at 355.

Here,

it appears certain that the jury would have convicted petitioner
notwithstanding the prosecutor’s remarks.

This is because, as

discussed supra Section I.B, (i) there was overwhelming evidence
of petitioner’s guilt at trial; (ii) petitioner’s inconsistent
testimony undermined his own credibility; and (iii) petitioner’s
testimony was insufficient to establish a successful duress
defense, even if it had been fully credited by the jury.

Under

these circumstances, there is no basis to conclude that the
prosecutor’s comments during summation substantially prejudiced
the petitioner.

Petitioner’s misconduct claim based on the

prosecutor’s remarks concerning his prior conviction and parole
date must also be denied because the prosecutor’s remarks did
not result in “‘substantial prejudice’” that violated
petitioner’s due process.

Floyd, 907 F.2d at 355.

29

III. Petitioner’s Prosecutorial Misconduct Claim Based on the
Summation Comments Regarding Butler and False Arrest Claim.
Respondent argues that two of petitioner’s claims his prosecutorial misconduct claim based on the prosecutor’s
summation comments concerning Marcus Butler and his false arrest
claim - are procedurally barred from federal habeas review
because they were denied by state courts on “independent and
adequate” state grounds.

(Resp’t Br. at 14, 26.)

These two

claims are thus addressed together, as follows.
A.

Applicable Legal Standards

The Supreme Court has held that federal habeas review
of a state prisoner’s claim is prohibited if a state court
judgment denying the claim is based on an “independent and
adequate state law ground.”

Garvey v. Duncan, 485 F.3d 709, 713

(2d Cir. 2007) (citing Lee v. Kemna, 534 U.S. 362, 375 (2002)).
This rule applies whether the independent state law ground is
substantive or procedural.

Garvey, 485 F.3d at 713.

A state court judgment is “independent” if it rests on
grounds independent of the merits of a federal claim.
Reed, 489 U.S. 255, 260 (1989).

Harris v.

Moreover, a procedural default

in state court qualifies as an independent ground, regardless of
whether the state court addresses the merits of the petitioner’s
claim in the alternative.

See Velasquez v. Leonardo, 898 F.2d

7, 9 (2d Cir. 1990) (per curiam).

30

A state court judgment is only “adequate” to foreclose
federal habeas review if the state law ground is “‘firmly
established and regularly followed.’”

Garvey, 485 F.3d at 713.

In certain “limited circumstances,” however, even firmly
established and regularly followed state rules will not satisfy
the adequacy requirement if application of the rule in a
particular case was “‘exorbitant.’”
534 U.S. at 376).

Id. at 713-14 (quoting Lee,

In order to evaluate whether the state

court’s application of a rule was exorbitant, courts consider
the three factors set forth in the Supreme Court’s decision in
Lee v. Kemna:
(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 381-83).
Alternatively, a claim that has been denied review in
state court due to a procedural default could be considered on
federal habeas review upon a showing of (1) cause for the

31

default and (2) prejudice.

See Coleman v. Thompson, 501 U.S.

722, 750 (1991), superseded by statute on other grounds, 28
U.S.C. § 2254(b)(2); Richardson v. Superintendent of Mid-Orange
Corr. Facility, 621 F.3d 196, 201-02 (2d Cir. 2010).

To

establish cause for the default, a petitioner may show “‘that
the factual or legal basis for a claim was not reasonably
available to counsel,’” or that “‘interference by officials . . .
made compliance impracticable.’”

Logan v. Ercole, No. 08-CV-407,

2008 U.S. Dist. LEXIS 40518, at *9 (E.D.N.Y. May 20, 2008)
(quoting Coleman, 501 U.S. at 753).

To satisfy the prejudice

requirement, the alleged error must have worked to the
petitioner’s “actual and substantial disadvantage, infecting his
entire trial with error of constitutional dimensions.”

Torres v.

Senkowski, 316 F.3d 147, 152 (2d Cir. 2003) (internal quotation
marks omitted).
A habeas petitioner may also circumvent the
independent-and-adequate bar even if he fails to show cause for
a procedural default and prejudice from the alleged error, if he
can “demonstrat[e] a constitutional violation that resulted in a
fundamental miscarriage of justice, i.e., that he is actually
innocent of the crime for which he has been convicted.”

Dunham

v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (citing Schlup v.
Delo, 513 U.S. 298, 321 (1995)).

In order to meet the “actual

innocence” requirement of this test, the petitioner must

32

“support his allegations of constitutional error with new
reliable evidence.”
A.

Schlup, 513 U.S. 298 at 327.

Prosecutorial Misconduct Claim Based on the
Prosecutor’s Summation Comments Concerning Marcus
Butler

Petitioner contends that he was deprived of a fair
trial when the prosecutor remarked in her summation that if
Marcus Butler had seen Black shoot at petitioner, Butler would
have been called to testify.

(Pet. at 6.)

Respondent argues

that petitioner’s claim is procedurally barred from federal
habeas review because the Appellate Division denied petitioner’s
claim on an “independent and adequate” state ground. (Resp’t Br.
at 14.)

For the reasons discussed below, petitioner’s

misconduct claim based on the prosecutor’s summation comments
about Marcus Butler is precluded by the independent-and-adequate
state law procedural bar, and he has not established any of the
circumstances necessary to justify overcoming it.
1. Discussion
Petitioner’s prosecutorial misconduct claim based on
the prosecutor’s summation comments regarding Marcus Butler is
procedurally barred from federal habeas review.

This claim was

originally denied by the Appellate Division because petitioner
had failed to object to the remarks at trial and thus had failed
to preserve the claim for appellate review under New York
Criminal Procedure Law § 470.05(2), which qualifies as an

33

“independent” state ground under applicable Second Circuit
precedent.
9.

See Garvey, 485 F.3d at 720; Velasquez, 898 F.2d at

The Appellate Division’s denial of petitioner’s claim was

also adequate because it is a “firmly established and regularly
followed” state law ground that was not applied exorbitantly.
Garvey, 485 F.3d at 713.

Finally, petitioner cannot overcome

the independent-and-adequate procedural bar because he has not
shown cause or prejudice for his failure to object to the
prosecutor’s summation at trial, and he has not submitted new
evidence to prove his actual innocence.

See Coleman, 501 U.S.

at 750.
The Appellate Division’s decision regarding
petitioner’s prosecutorial misconduct claim was independent
because it rested on state law grounds separate from the merits
of any federal claim.

The relevant state law ground is New York

Criminal Procedure Law § 470.05(2), which requires a defendant
to “[make] his position with respect to the ruling or
instruction known to the court” in time for the trial court to
correct the error in order to preserve an issue for appellate
review. Garvey, 485 F.3d at 715-16 (construing N.Y. Crim. Proc.
Law § 470.05(2)).

In the case sub judice, the Appellate

Division applied § 470.05(2) and held that petitioner’s
misconduct claim regarding the prosecutor’s comments about
Butler was “unpreserved for appellate review” because defense

34

counsel failed to object to them at trial.
849 N.Y.S.2d at 641.

People v. Blount,

Thus, under Garvey, the Appellate

Division’s application of § 470.05(2) to resolve this
prosecutorial misconduct claim is deemed “independent” of the
merits of a federal claim.

See Garvey, 485 F.3d at 720. 4

Second, the Appellate Division’s denial of
petitioner’s prosecutorial misconduct claim under § 470.05(2)
was adequate to foreclose federal habeas review because
§ 470.05(2), as applied in petitioner’s case, is “firmly
established and regularly followed.”
715-16.

See Garvey, 485 F.3d at

The Second Circuit has held that § 470.05(2) is a

“firmly established and regularly followed” state law ground
when it is used to enforce the requirement “that a defendant
specify the grounds of alleged error in sufficient detail so
that the trial court may have a fair opportunity to rectify any
error.”

Id.

Here, petitioner failed to object to the

prosecutor’s comments about Butler before the trial court, and,
hence, he did not give the trial court a fair opportunity to
consider the legal issue of whether the prosecutor’s comments
were improper, let alone to rectify any error.

See Garvey, 485

F.3d at 715-16 (affirming state court’s ruling regarding
4
Although the Appellate Division also mentioned that the prosecutor’s
comments during summation were a fair response to the defendant’s summation
and did not deny petitioner a fair trial, the court’s discussion of the
merits does not preclude the fact that petitioner’s claim was decided on an
“independent” state procedural default. See Blount, 849 N.Y.S.2d at 641;
Velasquez, 898 F.2d at 9.

35

procedural default based on § 470.05(2) where the petitioner’s
motion at trial to suppress evidence lacked specific grounds,
thus preventing trial court from fair opportunity to rectify
error).

The Appellate Division’s dismissal of petitioner’s

claim under § 470.05(2) was, thus, in accord with the “firmly
established and regularly followed” application of § 470.05(2)
in New York state courts.

Therefore, the Appellate Division’s

ruling on this claim is “adequate” to foreclose federal habeas
review.

See Garvey, 485 F.3d at 720.
Moreover, there is no basis to conclude that the

Appellate Division’s application of § 470.05(2) in this case was
exorbitant.

See Garvey, 485 F.3d at 713-14 (even “firmly

established and regularly followed” state rules will not satisfy
the adequacy requirement if application of the rule in a
particular case was exorbitant).

As noted above, courts

consider the three factors set forth by the Supreme Court in Lee
to evaluate whether a state court’s application of a rule was
exorbitant in a particular case.
The first Lee factor concerns “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.”

Cotto, 331 F.3d at 240.

Where, however, as here, the alleged procedural violation is a
failure to raise an issue at trial, the Second Circuit has found

36

it “meaningless” to ask whether that failure can be a procedural
violation that is “actually relied on” in court, because the
alleged violation only occurred when a defendant raised the
issue on appeal for the first time.

Garvey, 485 F.3d at 719.

Thus, in this case, as in Garvey, the trial court could not have
relied on petitioner’s alleged procedural violation, because the
violation was not presented until petitioner’s direct appeal.
Additionally, perfect compliance with § 470.05(2) would have
affected the trial court’s decision in this case, because the
court would at least have had a chance to consider petitioner’s
latent objection to the prosecutor’s comments regarding Butler.
Therefore, the first Lee factor weighs against a finding of
exorbitance in this case.

See Garvey, 485 F.3d at 719 (finding

perfect compliance with § 470.05(2) would have affected trial
court’s decision because it would have had an opportunity to
consider suppression issue had petitioner raised it at trial,
and, therefore, that first Lee factor weighed against
exorbitance).
The second factor to consider under Lee is whether
“state caselaw indicated that compliance with the rule was
demanded in the specific circumstances presented.”
F.3d at 240.

Cotto, 331

Where there was “no sudden or unanticipated event”

that prevented a defendant from complying with § 470.05(2), the
Second Circuit has ruled that this second Lee factor weighs

37

against a finding of exorbitance.

Garvey, 485 F.3d at 719.

In

this case, petitioner has alleged no “sudden or unanticipated
event” that prevented petitioner or his counsel from making the
objection at trial.

(See Pet. at 6-8.)

Consequently, the

second Lee factor weighs against petitioner as well.
The final Lee factor concerns whether petitioner
“‘substantially complied’ with the rule in question given ‘the
realities of trial,’ and therefore whether demanding perfect
compliance with the rule would serve a legitimate governmental
interest.”

Cotto, 331 F.3d at 240.

In Garvey, the Second

Circuit held that the defendant’s failure to raise an issue at
trial “violated the very substance” of § 470.05(2) because the
defendant did not give the trial court “a fair opportunity to
rule on an issue of law before it can be raised on appeal.”
F.3d at 720.

485

Demanding compliance with § 470.05(2) was thus

held to serve the legitimate government interest of “allowing
the trial court to have the first opportunity to rule on and
possibly rectify any alleged legal error.”

Id.

Here, likewise,

in failing to give the trial court a fair opportunity to
consider the objection, petitioner did not substantially comply
with § 470.05(2), which serves the legitimate government
interest of allowing the trial court to have the first
opportunity to rule on and rectify any alleged legal error.

38

Thus, the third Lee factor also weighs against a finding of
exorbitance in this case.
The Appellate Division’s denial of petitioner’s claim
is, therefore, foreclosed from federal review by the
independent-and-adequate state ground bar.

Moreover, as

discussed below, petitioner fares no better under the two
alternative routes for overcoming the bar recognized in this
Circuit.
With respect to the first of these routes, a claim
that has been denied review in state court due to a procedural
default could be considered on federal habeas review upon a
showing of (1) cause for the default and (2) prejudice.
Richardson, 621 F.3d at 201-02.

Cause for the procedural

default must be based on newly discovered legal or factual
claims, and the prejudice must be severe enough to infect
petitioner’s entire trial with “error of constitutional
dimensions.”
omitted).

Torres, 316 F.3d at 152 (internal quotation marks

Here, petitioner has shown neither cause for the

procedural default nor that the prosecutor’s comments were
prejudicial.

Regarding cause, petitioner provides no

explanation at all for defense counsel’s failure to object. 5

5

Any ineffective assistance of counsel argument raised by petitioner in
connection with this claim would be unsuccessful because petitioner failed to
raise it on direct appeal. See Reyes v. Keane, 118 F.3d 136, 139-40 (2d Cir.
1997). In Reyes, the Second Circuit held that an ineffective assistance of
counsel claim is procedurally barred from federal habeas review if it was

39

(Pet. at 6-8.)

Additionally, the prosecutor’s summation

comments concerning Butler did not prejudice petitioner so as to
infect the trial with error of constitutional dimensions – given
that petitioner’s own attorney first opined that Kennedy and
Butler were not present outside of the diner at the time
defendant allegedly ran outside and was shot at by Black, the
prosecutor’s contested statements could actually be construed as
consistent with the defendant’s own theory.
763, 810.)

(See Trial Tr. at

In any event, petitioner’s duress defense was not

significantly weakened by the prosecutor’s comments about Butler,
as discussed supra Section I.B.

Thus, it is doubtful that the

prosecutor’s comments caused “actual and substantial
disadvantage, infecting [the] entire trial with error of
constitutional dimensions” so as to overcome the independentand-adequate state ground procedural bar.

Torres, 316 F.3d at

152 (internal quotation marks omitted).
With respect to the second potential means for
overcoming the procedural bar, petitioner cannot cure his
failure to show cause and prejudice because he has not
established “a constitutional violation that resulted in a
fundamental miscarriage of justice, i.e., that he is actually

brought for the first time in a habeas petition as “cause” for another
procedural default. Id. at 139-40. Under Reyes, petitioner would not be
able to raise on federal habeas an ineffective assistance of counsel as the
reason for why objections were not made at trial to the prosecutor’s
summation comments regarding Butler.

40

innocent of the crime for which he has been convicted.”
313 F.3d at 730.

Dunham,

Here, as noted previously, there was

overwhelming evidence of petitioner’s guilt presented at trial.
See supra Section I.B.

Petitioner has not provided any basis

for finding a fundamental miscarriage of justice, nor has he
submitted new evidence proving his actual innocence.
at 6-8.)

(See Pet.

Thus, petitioner cannot overcome the independent and

adequate state ground bar through this method either.

See, e.g.,

Burgos-Santos v. Greene, No. 05 Civ. 3736, 2009 U.S. Dist. LEXIS
55879, at *5-6 (S.D.N.Y. July 1, 2009) (finding that the
petitioner had not presented any new, reliable evidence or
otherwise established his factual innocence).
In sum, the Appellate Division denied the claim on an
adequate and independent state ground based on a state law rule
that was not exorbitantly applied, and petitioner has shown
neither cause nor prejudice to overcome the procedural default.
The court is therefore foreclosed from reviewing petitioner’s
prosecutorial misconduct claim based on the prosecutor’s
summation comments regarding Butler.
C. Petitioner’s False Arrest Claim
Petitioner also argues that he was arrested under
false pretenses.

(Pet. at 8.)

Respondent asserts that

petitioner’s challenge to his arrest is procedurally barred
because the New York Supreme Court denied this claim under New

41

York Criminal Procedure Law § 440.10(2)(c) as procedurally
defaulted.

(Resp’t Br. at 26.)

For the reasons set forth below,

petitioner’s false arrest claim is also precluded by the
independent-and-adequate state ground bar.
1.

Discussion

Petitioner’s false arrest claim is barred from federal
habeas review because the New York Supreme Court denied this
claim on an independent and adequate state law ground.
Specifically, the New York Supreme Court ruled that, pursuant to
§ 440.10(2)(c), petitioner’s false arrest claim was procedurally
barred because petitioner unjustifiably failed to raise it on
direct appeal.

(ECF No. 4, Ex. F, Justice Ingram’s Decision and

Order dated 5/12/09 at 3.)

The Second Circuit has held that a

state court’s refusal to review a claim based on § 440.10(2)(c)
is a procedural default, which qualifies as a judgment on an
“independent” state ground, Sweet v. Bennett, 353 F.3d 135, 141
(2d Cir. 2003), and is considered to be an “adequate” and
“firmly established and regularly followed” state procedural
rule, Clark v. Perez, 510 F.3d 382, 391, 393 (2d Cir. 2008).
Petitioner’s false arrest claim is thus procedurally barred.
Under these circumstances, the court considers whether the state
court’s application of § 440.10(2)(c) to the false arrest claim
was exorbitant under the Lee factors so as to fall short of the
adequacy requirement.

42

As the Second Circuit observed in Clark, only the
second Lee factor (“whether state caselaw indicated that
compliance with the rule was demanded in the specific
circumstances presented,” Cotto, 331 F.3d at 240) is “germane to
a state court’s denial of collateral review on the basis that a
petitioner failed to file any direct appeal whatsoever.”
510 F.3d at 391.

Clark,

In Clark, the circuit court determined that a

state court’s finding of procedural default pursuant to
§ 440.10(2)(c) was not exorbitant under the second Lee factor,
because the petitioner’s claim was based on facts available in
the trial record and petitioner did not aver that he
misunderstood his right to appeal or that legal advisors were
unavailable to him.

Id. at 390, 392.

In this case, as in Clark,

petitioner did not argue that he misunderstood his right to
appeal, that legal advisors were unavailable to him, or that the
facts of his arrest were unavailable at the time of his trial.
(See Pet. at 8.)

Accordingly, the New York Supreme Court’s

refusal to review petitioner’s false arrest claim was not an
“exorbitant” application of § 440.10(2)(c) under the only
relevant Lee factor.

See Clark, 510 F.3d at 392.

The court next considers whether petitioner has
demonstrated grounds for overcoming the procedural bar by
establishing (1) cause for his failure to raise the false arrest
claim on direct appeal and prejudice to his trial therefrom; or

43

(2) a fundamental miscarriage of justice, based on new and
reliable evidence of his actual innocence.

See Cotto, 331 F.3d

at 240; Coleman, 501 U.S. at 749-50; Dunham, 313 F.3d at 730;
Burgos-Santos, 2009 U.S. Dist. LEXIS 55879, at *5-6.
Here, petitioner has not alleged facts to support an
inference of cause for his failure to raise his false arrest
claim on direct appeal 6 and prejudice resulting therefrom.
Pet. at 6-8).

(See

Petitioner cannot, therefore, overcome the

procedural bar through this route.

See Richardson, 621 F.3d at

201-02 (holding that petitioner’s challenge of a station-house
identification was procedurally barred from habeas review where
petitioner failed to show cause for his default and prejudice
from the identification).
Additionally, petitioner’s trial did not result in the
kind of “fundamental miscarriage of justice” that would be
required to overcome the procedural bar by the second
alternative means.

Again, there was more than ample evidence

presented at trial establishing petitioner’s guilt.
Section I.B.)

(See supra

Moreover, petitioner has not submitted new and

reliable evidence of his actual innocence that would indicate a

6

As with petitioner’s misconduct claim based on the prosecutor’s summation
comments about Marcus Butler, petitioner would not now be permitted to cite
ineffective legal assistance as the “cause” for his failure to raise the
false arrest claim on direct appeal. See Reyes, 118 F.3d 136, 139-40
(holding that ineffective assistance of counsel claim was procedurally barred
from federal habeas review when brought for the first time in a habeas
petition as “cause” for another procedural default).

44

miscarriage of justice.

(See Pet. at 6-8.)

Consequently, there

is no basis to set aside the procedural bar on “fundamental
miscarriage of justice” grounds resulting from the jury’s guilty
verdict.

See Dunham, 313 F.3d at 730; Burgos-Santos, 2009 U.S.

Dist. LEXIS 55879, at *5-6.

Therefore, the court’s review of

petitioner’s false arrest claim is prohibited because the New
York Supreme Court denied the claim on an independent and
adequate state ground, and because petitioner has not satisfied
any of the requirements for overcoming the procedural default. 7
IV.

Petitioner’s Concurrent Sentencing Claim
Petitioner also argues that his consecutive robbery

sentences for the crimes committed inside the Galaxy Diner must
be modified to run concurrently because the Galaxy Diner robbery
was predicated on a single act, not on separate and distinct
7
Substantive review of petitioner’s false arrest claim is further foreclosed
by the Second Circuit’s decision in United States ex rel. Pella v. Reid, 527
F.2d 380 (2d Cir. 1975), which is still controlling law in this Circuit,
albeit infrequently applied. In Pella v. Reid, the Second Circuit refused to
grant habeas relief based on false arrest even where there was no probable
cause for the arrest, holding that “after a defendant has been indicted and
convicted, an illegal arrest, without more, is ordinarily insufficient to
sustain a federal writ of habeas corpus.” 527 F.2d at 382. Some of our
sister courts have reached the same result, declining to address these types
of claims where the petitioner has already been afforded a full and fair
opportunity to present them. See, e.g., Ford v. Hood, No. 85 Civ. 6088, 1989
U.S. Dist. LEXIS 10011, at *7 (S.D.N.Y. Aug. 24, 1989) (relying on Pella and
declining to address false arrest claim on habeas review where there was no
evidence that “state deprived [petitioner] of a full and fair opportunity to
present that claim”); Brathwaite v. Jones, No. 84–CV–4733, 1987 WL 6223 at *3
(E.D.N.Y. Jan. 9, 1987) (same). In this case, petitioner has not alleged
that the state deprived him of a full and fair opportunity to present his
false arrest claim (see Pet. at 8), and petitioner did previously raise this
issue before the New York Supreme Court. Thus, regardless of whether the
police had probable cause to arrest petitioner, petitioner’s false arrest
claim is not cognizable on federal habeas review given that he has now been
indicted and convicted and was already afforded a full and fair opportunity
to present the claim. See Pella, 527 F.2d at 382.

45

acts.

(Pet. at 7.)

Respondent asserts that petitioner fails to

raise a federal question for review because the consecutive
sentencing was within the range prescribed by state law.
(Resp’t Br. at 20-21.)

As explained below, petitioner’s

sentencing claim cannot be granted because the imposition of
consecutive sentences was permitted by state law, and, hence,
there is no federal constitutional issue presented.
A.

Applicable Legal Standards

The Second Circuit has held with respect to habeas
sentencing claims that “[n]o federal constitutional issue is
presented where . . . the sentence is within the range
prescribed by state law.”

White v. Keane, 969 F.2d 1381, 1383

(2d Cir. 1992) (per curiam).

Accordingly, “[i]ssues regarding

sentencing under state statutes are not federal claims, and thus
are not cognizable under federal habeas review.”

Freeman v.

Burge, 05-CV-1585, 2009 U.S. Dist. LEXIS 45854, at *50-52
(E.D.N.Y. May 22, 2009) (internal citations omitted) (denying
petitioner’s challenge to imposition of consecutive sentences).
Specifically, “[w]hether the sentence could be consecutive [is]
a matter of state law and raises no Constitutional issue.”
Davis v. Herbert, 02-CV-4908, 2003 U.S. Dist. LEXIS 24121, at
*45 (E.D.N.Y. Nov. 13, 2003).

Therefore, the only sentencing

issue cognizable on federal habeas review is whether the
petitioner’s consecutive sentences were within the sentencing

46

range prescribed by New York state law.

See, e.g., Moreno v.

Smith, 06-CV-4602, 2010 U.S. Dist. LEXIS 75476, at *42 (E.D.N.Y.
July 26, 2010) (holding that petitioner’s consecutive sentencing
claim was not cognizable under federal habeas review where
petitioner’s sentence for each count fell within New York’s
sentencing range).
Under New York law, a court may sentence a defendant
convicted of Robbery in the First Degree (a class B felony) to a
maximum term of imprisonment of 25 years.
§ 70.00(2)(b).

N.Y. Pen. Law

Sentences for multiple offenses must run

concurrently when they are “committed through a single act or
omission, or through an act or omission which in itself
constituted one of the offenses and also was a material element
of the other.”

N.Y. Pen. Law § 70.25(2).

When the offenses

were accomplished by separate and distinct acts, however, the
sentencing court has the discretion to impose consecutive
sentences.

People v. Laureano, 87 N.Y.2d 640, 643 (N.Y. 1996)

(construing N.Y. Penal Law § 70.25(2)); see also People v.
Brathwaite, 63 N.Y.2d 839, 843 (N.Y. 1984) (affirming
consecutive sentences for two counts of felony murder, because
“although the two deaths may be said to have occurred in the
course of a single extended transaction -- the robbery -- it was
separate ‘acts’ which caused the deaths of the owner and the
clerk (i.e., there is no contention that it was the firing of

47

the same shot that killed both the owner and the clerk),” and
neither was a material element of the other).
New York courts have thus imposed consecutive
sentences for robberies of separate victims that were
accomplished by “separate and distinct acts,” even when the
robberies are committed “‘in the course of a single extended
transaction.’”

People v. Ramirez, 89 N.Y.2d 444, 451-52, 457

(N.Y. 1996) (key to determining if consecutive sentences are
proper is whether defendant committed “separate and distinct”
acts in robbing separate victims); see People v. Yong Yun Lee,
92 N.Y.2d 987, 988-89 (N.Y. 1998); People v. Stewartson, IND No.
2979/99, 2009 N.Y. Misc. LEXIS 6395, at *1-2, *7 (N.Y. Sup. Ct.,
Nov. 24, 2009); see also Oyague v. Artuz, 393 F.3d 99, 105 (2d
Cir. 2004) (“Numerous Appellate Division decisions have . . .
upheld consecutive sentences for robberies of separate victims
‘within a single extended transaction.’”) (citations omitted).
B.

Discussion

As noted above, the only issue to decide with respect
to petitioner’s sentencing claim is whether the imposition of
consecutive robbery sentences for the robberies committed at the
Galaxy Diner is within the range of sentences permitted by New
York state law.

See White, 969 F.2d at 1383; Moreno, 2010 U.S.

Dist. LEXIS 75476, at *42.

That inquiry turns on whether the

48

four robberies were accomplished by separate and distinct acts.
See N.Y. Pen. Law § 70.25(2); Ramirez, 89 N.Y.2d at 452-55.
Although the four robbery victims (Alexander, Daniels,
Jordan, and Spurgeon) were present during what the petitioner
argues was a “single extended transaction” at the Galaxy Diner,
there is no real doubt that petitioner and his accomplice
engaged in separate acts to accomplish the respective robberies.
For instance, there is no contention that the firing of the same
gunshot was used to deprive two victims of their property, and
there is no allegation that an act comprising any one robbery
“was a material element of the other.”

Brathwaite, 63 N.Y.2d at

843.
Indeed, the trial testimony demonstrates that each of
the four robbery victims was subject to distinct acts of
violence: (1) Alexander was shot and robbed as he ran for the
door; (2) Spurgeon was shot as he took off his jacket and was
robbed of the money he placed on a table; (3) Jordan was shot in
the finger and also deprived of his money; and (4) Daniels was
pistol-whipped and robbed by petitioner.
71, 441, 444-46, 489-90, 507.)

(Trial Tr. at 43, 47,

Under these circumstances, the

trial court’s imposition of consecutive sentences for the four
robberies was within the range of permitted sentences under New
York law.

See, e.g., Yong Yun Lee, 92 N.Y.2d at 988-89

(upholding consecutive robbery sentences where defendant robbed

49

a doctor and his wife in the doctor’s office); Ramirez, 89
N.Y.2d at 451-53 (upholding consecutive robbery sentences where
the defendant forcibly took the belongings of two security
guards in a hotel parking lot); People v. Stewartson, 2009 N.Y.
Misc. LEXIS 6395808, at *1-2, *7 (upholding consecutive robbery
sentences where defendant robbed two people in the same
apartment at the same time); Oyague, 393 F.3d at 105 (upholding
consecutive sentences where petitioner forcibly took money from
two separate bank tellers).

Therefore, petitioner’s consecutive

sentencing claim does not raise a federal constitutional
question that is properly addressed by this court on habeas
review.
V.

Petitioner’s Claim That Trial Judge Lacked Jurisdiction
Over the Trial
Petitioner’s final ground for habeas relief is his

assertion that the trial judge did not have jurisdiction to
preside over his trial because she had not been sworn in as a
justice of the Supreme Court as required by New York state law.
(Pet. at 7-8.)

The respondent, however, has submitted the

affidavit of Eric M. Kornblau, Counsel to the Kings County
Clerk's Office, verifying that Justice Feldman took an oath of
office and signed the oath book in 1977.

(ECF No. 4, Ex. E, Ex.

1, Affidavit of Eric M. Kornblau, Esq., at 4.)
petitioner’s claim is meritless.

50

Thus,

Conclusion
For the foregoing reasons, the application for writ of
habeas corpus is denied in its entirety.
dismissed.

The petition is

Respondent shall serve pro se petitioner with a copy

of this Memorandum and Order and file a declaration of service
via ECF by October 9, 2012.

SO ORDERED.
Dated:

October 5, 2012
Brooklyn, New York
/s/
________
Kiyo A. Matsumoto
United States District Judge

51