Sullivan v. Lee

Filing 31

MEMORANDUM AND ORDER: For the foregoing reasons, the petition for a writ of habeas corpus is denied. Because Sullivan has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253. The Clerk of Court is directed to close this case. Ordered by Judge Carol Bagley Amon on 8/22/2017. (fwd for judgment) (Fernandez, Erica)

W CUERt^

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

V

U.S. CMSTBiCt CCM.«T E.O.N.Y.

* AUS 2 2 2017 ^

ADRIAN SULLIVAN,

BROOKLYN OFFICE
NOT FOR PUBLICATION

Petitioner,

MEMORANDUM & ORDER

-against-

lO-CV-425(CBA)
WILLIAM LEE,

Respondent.

AMON,United States District Judge:

Petitioner Adrisin Sullivan, proceeding pro se. has petitioned the Court for a writ of habeas

corpus pursuant to 28 U.S.C.§ 2254. Sullivan was convicted,following ajury trial in the Supreme
Court of New York, Kings County, of sodomy in the first degree, two counts of sexual abuse in

the first degree, and robbery in the third degree. For the reasons stated below, Sullivan's petition
is denied.
BACKGROUND
I.

Incident and Arrest

On February 5,2001, complainant"ET" was walking home alone when Sullivan pulled up
alongside her in a car and attempted to start a conversation. (D.E. # 25 ("Resp. Aff") at H 4-5.)
Sullivan continued to follow complainant as she ignored his advances, but he appeared to drive

away once she reached her building. (Id. at H 5-6.) However, after complainant entered the
elevator in her building, Sullivan entered the elevator behind her. (Id at 6.) Sullivan forced

complainant to turn around, upon which he forcibly touched her breasts and genitals and removed
$15 from her pocket. (Id at ^ 7.) Sullivan held a hard object to complainant's head, threatened to
"blast her," and pulled her into a stairwell where he forced her to perform oral sex on him. (Id at

f 8-9.) Sullivan ejaculated in complainant's mouth and in the stairwell, and complainant
1

additionally spit some ejaculate on the floor of the stairwell. (Id. at H 9.) Sullivan then fled the
building. (Id)

Immediately following the assault, complainant's family called the police, who responded

to the scene. (Id at ^ 9-10.) Crime scene technicians collected samples ofthe semen found in the
stairwell, which were later used to develop a DNA profile that was entered into the DNA Indexing

System database. (Id at ^ 11.) Complainant described her attacker to police as a dark-skinned
male with a West Indian accent, unshaven with thick dreadlocks,approximately five feet six inches

to five feet seven inches, weighing between 160 and 165 pounds. (Id at ^ 10.)

Two years later, on October 10,2003, police learned that Sullivan's DNA profile matched
the profile generated from the semen samples collected at the crime scene. (Id at H 12.) On
November 25,2003,complainant identified Sullivan in a line-up. (Id at H 13.) On April 29,2004,

detectives took another DNA sample from Sullivan, which was a match to the DNA collected from
the crime scene. (Id at ^ 14.)

IL Charges and Pre-Trial Adjournments

Sullivan was charged with two counts of sodomy in the first degree, four counts of sexual
abuse in the first degree, one count ofrobbery in the first degree, one count ofrobbery in the third

degree, one count of grand larceny in the fourth degree, and one count of petit larceny. (Id at
1115.)

On June 2, 2004, prior to trial, the prosecutor informed the court that Sullivan's DNA

matched the semen samples recovered from the crime scene. (Resp. Ex,A.,3/7/05 Tr. at 2:8-13.)'
Over the course of the following nine months, the trial court adjourned the case numerous times

'Respondent's Exhibit A contains pre-trial transcripts from March 7, 2005; March 17, 2005; and April 14, 2005 as
well as the full trial transcript (excluding voir dire') and sentencing transcript. Respondent's exhibits have been filed

in hard copy only due to their sensitive nature, consistent with the Court's Rule 1(F). (See Resp. Aff. at ^ 52.) As
Exhibit A does not contain global pagination,each transcript is cited according to its date and its individual pagination.

to permit the defense time to conduct its own DNA testing. (Id. at 2:8-3:21.) On March 7,2005,
the court granted the defense one more adjournment to March 17, 2005, stating that any DNA
results not ready by that date would be precluded from evidence unless the defense provided
affidavits to explain the delay. (Id. at 4:18-5:11; 13:20-14:7.) At the hearing on March 17, the

defense presented neither DNA results nor affidavits that sufficiently accounted for the continued
delay. (3/17/05 Tr. at 2:5-3:22.) The court granted the defense an adjournment to April 14, 2005
and ordered counsel to follow up with the DNA lab and to inform the court ifthe results would not
be available in time. (Id at 4:2-14; 5:14-6:1.) On April 14, 2005, the defense still did not have

the results and requested another continuance. The court denied an additional adjournment and
precluded the defense from introducing the results ofits testing at trial. (4/14/05 Tr. at 15:18-21.)
At this same hearing, the prosecution informed the court that DNA testing had been

performed on thejeans that complainant was wearing at the time ofthe assault, and that the profile
generated matched Sullivan's DNA.(Id at 5:5-19.) The court stated that the defense was entitled
to perform its own DNA testing on the jeans, and that the prosecution would only be permitted to
introduce this evidence at trial if it consented to Sullivan's release from jail while the defense

conducted its own testing. (Id at 12:1-13:5.) The prosecution did not consent to Sullivan's release

and was precluded from introducing the DNA test performed on thejeans as part ofeither its direct
or rebuttal case. (Id at 14:17-15:22.)
III. Trial and Sentencing

At trial, the prosecution called complainant, who testified that Sullivan had followed her

into her building and sexually assaulted her in a stairwell after she did not respond to his initial
advances on the street. (Trial Tr. at 25:21-124:9.) Beverly Brown,complainant's mother,testified
to the broken lock on the front door of the building, which allowed non-residents to enter the

building without keys. (Id. at 206:20—207:25.) Brown additionally testified that her daughter

entered their apartment screaming immediately following the attack, told her what had happened,
and described her attacker. (Id at 210:4-213:4.)

The prosecution called several police officers and detectives who were involved in the
investigation of complainant's assault. Officers Philip Sellitto and Nicholas Coppolla testified to

their investigation ofthe crime scene and interview with the complainant on the night ofthe attack.
(Id, at 220:25-226:24; 247:17-259:22.) Detective Thomas White testified about the evidence
collected from the crime scene, including DNA samples from the semen left in the stairwell. (Id

at 312:8-326:13.) Detective Phyllis Johnson-Wright testified to various steps taken in the

investigation, including the canvas conducted by police and the fact that she took complainant to
see a sketch artist at police headquarters. (Id at 140:4—19.) Detective Steven Litwin testified

about the lineup at which complainant identified Sullivan as her attacker as well as Sullivan's
arrest and subsequent DNA swabbing. (Id at 263:13—278:23.) Noelle Umback,a criminalist with
the Office of the Chief Medical Examiner, testified to the testing of the DNA samples taken from
the crime scene and their match to swabs taken from Petitioner following his arrest. (Id at 355:23386:14.)

The defense called only one witness, Sullivan himself, who testified that he had never

approached complainant and that she had misidentified her attacker. (Id at 418:20-434:24.)

On April 29,2005,thejury found Sullivan guilty offirst-degree sodomy,two counts offirst-degree
sexual abuse, and third-degree robbery. (Id at 559:20-560:18.) On May 20,2005,Petitioner was

sentenced to twenty-five years on the sodomy count, seven years on each sexual abuse count, and
two-and-one-third to seven years on the robbery count,to run consecutively. (Sentencing Tr. 10:321.)

IV. Direct Appeal

Sullivan appealed from his judgment of conviction to the Appellate Division, raising the
following four claims:(1)the trial court erred in denying the defense an additional adjournment to

complete its own DNA testing;(2)the prosecutor improperly bolstered the testimony of witnesses,

elicited hearsay testimony, and appealed to the sympathy of the jury during summation;(3) trial
counsel was ineffective in failing to preserve claims of prosecutorial misconduct for appeal; and

(4)the sentence imposed by the court was excessive. (Resp. Ex. B.("Pet. App. Br.") at 18-46.)
The Appellate Division affirmed Sullivan's conviction. People v. Sullivan. 863 N.Y.S 2d

381, 381 (App. Div. 2008). The court held that trial counsel was not ineffective for failing to
object to the alleged instances of bolstering, certain remarks made by the prosecutor during
summation, and the prosecutor's elicitation of hearsay testimony and found that Sullivan's

remaining claims were unpreserved for appellate review. Id. The court held that Sullivan's
sentence was excessive and directed that the terms ofimprisonment run concurrently. Id.

Sullivan moved for leave to appeal to the Court of Appeals, which denied his application.
People V. Sullivan. 11 N.Y.3d 901 (2008).
V. Habeas Corpus Petition and Stay

On January 19, 2010, Sullivan filed a petition for habeas corpus before this Court. (D.E.

# 1 ("Pet.").) On February 24,2010, Sullivan filed a motion to hold his petition in abeyance while
he exhausted his unexhausted claims in state court. (D.E. # 2.) On May 14, 2010, the Court
granted this motion. (D.E.# 6.)
VI. Post-Conviction Collateral Relief

On May 28, 2010, Sullivan, proceeding pro se. moved for post-conviction DNA testing of
the semen samples recovered from the crime scene and from complainant'sjeans, pursuant to New

York Criminal Procedure Law ("C.P.L.") Section 440.30. (D.E.# 15, Ex. 1 ("Pet. § 440 Br.") at

1-27.) Sullivan alleged that such testing had potential to establish his innocence. (Id)
Simultaneously, Sullivan moved to vacate his conviction pursuant to C.P.L. § 440.10, claiming

that: (1) there was fraud on behalf of the prosecutor; (2) the trial court improperly shifted the

burden of proof in denying the defense an adjournment to perform DNA testing;(3)counsel was
"made ineffective" by the court's denial of an adjournment; and (4) the court erred in failing to

dismiss a juror who revealed bias during voir dire. (Resp. Br. 12; D.E. # 15, Ex. 2("Pet. § 440
Aff.") at 1-2.)

The Supreme Court denied the motion for additional DNA testing, holding that there was
no reasonable probability that such testing would establish Sullivan's innocence and that

§ 440.30(1)(a) does not provide for retesting of DNA material. (Resp. Ex. H at 1.) The court also
denied Sullivan's motion to vacate his conviction, holding that the claims asserted were

procedurally barred because he could have raised them as part of his direct appeal but
"unjustifiably" failed to do so.^ (Id) Sullivan moved for reconsideration of his motion, which the
court denied. (Resp. Ex. L at 1.) The Appellate Division denied his subsequent motion for leave
to appeal. (Resp. Ex. I.)
VII. Reopening of Habeas Petition

On November 8,2012, Sullivan informed the Court that he had exhausted all of his claims

and requested that this habeas proceeding be reopened.^ (D.E.# 12.) On May 21,2013,the Court

2 New York Criminal Procedure Law Section 440.10(2)(c) precludes courts from considering post-conviction claims

where:"[a]lthough sufficient facts appear on the record ofthe proceedings underlying the Judgment to have permitted,
upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate
review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the
prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by
him[.]" N.Y. Grim. Proc. L. § 440.10(2)(c).
^ After this Court informed Petitioner that the inconsistent verdict claim raised in his initial petition remained
unexhausted. Petitioner withdrew that claim. (See D.E.# 17.)

reopened the habeas proceeding to consider all claims raised and exhausted "either in the initial
petition or [Sullivan's] recent state court proceedings." (D.E.# 18 at 2.)
STANDARD OF REVIEW

Under 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty

Act of 1996("AEDPA"),an application for a writ of habeas corpus by a person in custody pursuant

to a state courtjudgment may only be brought on the grounds that his or her custody is"in violation
of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A petitioner is

required to show that the state court decision, having been adjudicated on the merits, is either
"contrary to, or involved an unreasonable application of, clearly established Federal law" or is
"based on an unreasonable determination ofthe facts in light ofthe evidence presented in the State

court proceeding." 28 U.S.C. § 2254(d); Johnson v. Williams, 133 S. Ct. 1088, 1091 (2013);
Lafler v. Cooper. 566 U.S. 156, 172-73 (2012). This is a "highly deferential standard for

evaluating state-court rulings, which demands that state-court decisions be given the benefit ofthe
doubt." Cullen v. Pinholster. 563 U.S. 170,181 (2011)(quoting Woodford v. Visciotti, 537 U.S.

19, 24 (2002) (per curiam)). As the Supreme Court recently stated: "When reviewing state
criminal convictions on collateral review, federal judges are required to afford state courts due

respect by overturning their decisions only when there could be no reasonable dispute that they
were wrong." Woods v. Donald. 135 S. Ct. 1372, 1376(2015)(per curiam).

For the purposes of federal habeas review, "clearly established law" is defined as "the
holdings, as opposed to dicta, of[the Supreme] Court's decisions as of the time of the relevant
state-court decision." Williams v. Tavlor, 529 U.S. 362,412(2000); Woods, 135 S. Ct. at 1376.

A state court decision is "contrary to," or an "unreasonable application of," clearly established law
if the decision (1)is contrary to Supreme Court precedent on a question of law;(2)arrives at a

conclusion different than that reached by the Supreme Court on "materially indistinguishable"

facts; or (3)identifies the correct governing legal rule but unreasonably applies it to the facts of
the petitioner's case. Williams. 529 U.S. at 412-13. The state court decision at issue must be
"more than incorrect or erroneous," it must be "objectively unreasonable." Lockver v. Andrade.
538 U.S. 63, 75 (2003).

Federal habeas review is limited to determining whether a petitioner's custody violates

federal law,s^28 U.S.C.§ 2254(a),and "does not lie for errors ofstate law." Swarthout v. Cooke.

562 U.S. 216, 219 (2011) (internal citations and quotations omitted). In addition, factual
determinations made by the state court are presumed to be correct, and the petitioner bears the

burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C.
§ 2254(e)(1).

An application for a writ of habeas corpus on behalf of a person in state custody shall not
be granted "unless it appears that—(A)the applicant has exhausted the remedies available in the
courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii)
circumstances exist that render such process ineffective to protect the rights of the applicant." 28

U.S.C. § 2254(b)(1). "State remedies are deemed exhausted when a petitioner has 'presented the
federal constitutional claim asserted in the petition to the highest state court...and informed that

court(and lower courts) about both the factual and legal bases for the federal claim." See King v.
Demarco. No. ll-CV-2000 (JS), 2011 WL 3471548, at *2 (E.D.N.Y. Aug. 3, 2011)(quoting
Ramirez v. Att'v Gen, of N.Y.. 280 F.3d 87,94(2d Cir. 2001)).

DISCUSSION

I.

Failure of Trial Court to Grant Adjournment for Additional DNA Testing

Sullivan contends that he was denied the right to a fair trial when the trial court failed to

grant the defense an additional adjournment to permit the completion of DNA testing. (Pet. at 4.)
This claim is procedurally barred and without merit.
A. Procedural Bar

Federal courts are generally not permitted to "review questions offederal law presented in

a habeas petition when the state court's decision rests upon a state-law ground that Ms independent
of the federal question and adequate to support the judgment.'" Cone v. Bell 556 U.S. 449,465

(2009)^quoting Coleman v. Thompson. 501 U.S. 722,729(1991)). A state law ground is deemed
"adequate" if the rule "is firmly established and regularly followed by the state in question."
Whitlevv.Ercole.642 F.3d 278,286(2d Cir. 2011)(quoting Garcia v. Lewis. 188 F.3d 71,77(2d
Cir. 1999)).

The Appellate Division rejected this claim on the grounds that it was "unpreserved for

appellate review." Sullivan. 863 N.Y.S.2d at 381. Under New York's preservation rule, defense
counsel must contemporaneously object to any alleged legal error at a criminal trial in order to

preserve the claim for later appeal. See N.Y. Crim. Proc. L. § 470.05(2). The Second Circuit has
found New York's contemporaneous objection rule to be firmly established and regularly followed

by New York courts. ^Garcia. 188 F.3d at 78-79. The Appellate Division's finding is thus an
independent and adequate state ground that bars this court from granting habeas relief. Butler v.
Cunningham. 313 F. App'x 400,400(2d Cir. 2009).

B. Cause and Prejudice

Although a federal court may review a procedurally barred claim under certain
circumstances, Sullivan has not alleged circumstances justifying such review.

A federal court may review a claim that is procedurally barred by an independent and

adequate state ground if"the prisoner can demonstrate cause for the default and actual prejudice
as a result ofthe alleged violation offederal law, or demonstrate that failure to consider the claims
will result in a fundamental miscarriage ofjustice." Coleman, 501 U.S. at 750; see also House v.
Bell. 547 U.S. 518, 536(2006)("As a general rule, claims forfeited under state law may support

federal habeas relief only ifthe prisoner demonstrates cause for the default and prejudice from the
asserted error.... The bar is not, however, unqualified . . .. [T]he Court has recognized a
miscarriage-of-justice exception.'"(citations omitted)).

Although Sullivan's claim is defaulted because counsel failed to object at trial, default
resulting from inadvertence or negligence is not considered "cause" under the Coleman
framework. "[T]he existence ofcause for a procedural default must ordinarily turn on whether the

prisoner can show that some objective factor external to the defense impeded counsel's efforts to
comply with the State's procedural rule."

Amadeo v. Zant. 486 U.S. 214, 222

(1988)(quoting Murrav v. Carrier. 477 U.S. 478,488 (1986)). No such external factor is alleged
here, nor has Sullivan asserted any actual prejudice. Finally, Sullivan is unable to overcome the
default by claiming a fundamental miscarriage ofjustice because he has failed to put forward any
new evidence suggesting that he is innocent of the underlying crimes. S^ Coleman. 501 U.S. at
748.

In any event, Sullivan's claim is without merit.

10

C. Merits

The decision to grant or deny an adjournment or continuance is within the discretion ofthe
trial court. ^Averv v. Alabama. 308 U.S. 444, 446 (1940). Such decisions are reviewed for
abuse of discretion, and to rise to the level of a constitutional deprivation must amount to "an

unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for
delay." Morris v. Slappv, 461 U.S. 1,11-12(1983)(internal quotation marks omitted).
The trial court's decision not to grant an additional adjournment was well within its

discretion. The court adjourned the case numerous times over the course of nine months to permit
the defense time to conduct its own DNA testing, and gave the defense multiple opportunities to

present affidavits from the DNA testing company to explain the delay.

3/7/05 Tr. at 2:8-

3:21.) Given this set ofcircumstances,the Court cannot say that the trial court abused its discretion
in failing to grant an additional adjournment.
This claim is therefore denied.
II. Ineffective Assistance of Counsel

Sullivan claims that he was denied the effective assistance of counsel when trial counsel

failed to object to the denial of an additional adjournment. (Pet. at 4.) This claim is procedurally
barred and without merit.
A. Procedural Bar

Sullivan presented this claim to the Supreme Court as part of his combined § 440.10 and
§ 440.30 motion. (Pet. § 440 Aff. at 1-2.) The court held that the claim was procedurally barred
under § 440.10(2)(c), as an appellant cannot use a § 440.10 motion to pursue a record-based claim

that could have been included in a direct appeal from the judgment of conviction.'^ (Resp. Ex. H.)

^ Petitioner was assigned new counsel for his direct appeal. (See Pet. App. Br. at 2.)
11

Criminal Procedure Law § 440.10, under which Sullivan moved to vacate his conviction,

provides that the court must deny a motion to vacate ajudgment when:
[a]lthough sufficient facts appear on the record ofthe proceedings underlying the judgment
to have permitted upon appeal from such judgment,adequate review ofthe ground or issue
raised upon the motion, no such appellate review or determination occurred owing to the
defendant's unjustifiable failure to take or perfect an appeal during the prescribed period
or to his unjustifiable failure to raise such ground or issue upon £in appeal actually perfected
by him[.]
N.Y. Grim. Proc. L. § 440.10(2)(c).

Since it was plain from the trial record that counsel failed to object to the denial of an
additional adjournment, Sullivan's claim of ineffective assistance is procedurally barred.
Sweet V. Bennett. 353 F.3d 135, 139-40(2d Cir. 2003); La Touche v. Graham, No. lO-CV-1388

(VB),2013 WL 5323499, at *12(S.D.N.Y. Sept. 23,2013)("Where a claim is sufficiently based
in the record, a state court's reliance on § 440.10(2)(c) constitutes an adequate and independent

state law ground that ordinarily precludes a federal court from further habeas review.").
Furthermore,he is unable to overcome this procedural default as he has demonstrated neither cause

and prejudice nor a fundamental miscarriage ofjustice.
In any event, this claim is without merit.
B. Merits

A claim of ineffective assistance ofcounsel is evaluated under the two-pronged test set out

in Strickland v. Washington. 466 U.S. 668 (1984). In order to prove ineffective assistance of

counsel, a defendant must show first that counsel's performance "fell below an objective standard
of reasonableness" and second that "there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different." Strickland v.
Washington. 466 U.S. at 688, 693-94. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Id at 694.

12

As discussed above, the trial court's decision not to grant an additional adjournment was
well within its discretion, and the court had already adjourned the case numerous times over the

course of nine months to permit the defense time to conduct its own DNA testing. (See 3/7/05 Tr.
at 2:8-3:21.) Given this, and given the court's clear statement that defense counsel would be given

one more chance to provide its own DNA testing results or an explanation for the delay, counsel
was not ineffective for failing to object to the final denial. See, e.g.. United States v. Abad. 514

F.3d 271,276(2d Cir. 2008)(holding that counsel could not have been ineffective "for failing to
make a motion that would have been futile"); Bramble v. Griffin. No. 12-CV-1697(BMC),2012

WL 2930146, at *6 (E.D.N.Y. July 18, 2012), affd. 543 F. App'x 1 (2d Cir. 2013)("A defense

lawyer need not make futile objections, nor does effective assistance ofcounsel require objections
simply because there is nothing to lose.")

Even if counsel's decision not to object was unreasonable, Sullivan has failed to

demonstrate actual prejudice. He has presented no evidence that an objection would have changed
the court's decision or that a further adjournment and additional DNA testing would have cast
doubt on the prosecution's evidence.
This claim is therefore denied.
III. Prosecutorial Error

Sullivan claims that he was denied his right to a fair trial and his right to confrontation

when the prosecutor used DNA evidence to bolster complainant's identification, elicited hearsay
testimony, and made an improper emotional appeal to the jury during summation. (Pet. at 4.)
These claims are procedurally barred, as the Appellate Division held that they were unpreserved

for appellate review,and Sullivan has not asserted the cause and prejudice or miscarriage ofjustice
necessary to overcome this default. See Sullivan. 863 N.Y.S.2d at 381

13

In any event, Sullivan's claims of prosecutorial misconduct are without merit.
A. Bolstering

Petitioner claims that the prosecutor improperly used DNA evidence to bolster the
witness's identification of him as her assailant. (Pet at 4.) Offering corroborative evidence does

not constitute bolstering. Even ifit did,a claim of"bolstering" is not cognizable on habeas review.
Courts in this circuit have repeatedly recognized that "bolstering" is a state law issue that

is not cognizable on federal habeas review. See, e.g.. Warren v. Conwav. No. 07-CV-4117,2008
WL 4960454, at *21 (E.D.N.Y. Nov. 18, 2008)("While New York law prohibits bolstering, it is

not forbidden by the Federal Rules of Evidence and is not sufficiently prejudicial to deprive a
defendant of his due process rights to a fair trial."(internal citation and quotation marks omitted));
Fernandez v. Artus. No. 07-CV-2532(RJS)(AJP), 2009 WL 1586271, at *15 (S.D.N.Y. June 8,

2009)(report and recommendation issued) (allegation of improper bolstering did not establish
cognizable claim on habeas review where petitioner claimed that fingerprint evidence improperly
bolstered witness identification of petitioner).

Accordingly, this claim is rejected.
B. Inadmissible Hearsay

"Generally, state court rulings on evidentiary matters are a matter of state law and do not
raise constitutional issues...[evidentiary] rulings are not reviewable by a habeas court unless the

errors alleged are so prejudicial as to constitute fundamental unfairness." Warren v. Miller, 78 F.
Supp. 2d 120, 135 (E.D.N.Y. 2000)(citing Rosario v. Kuhlman. 839 F.2d 918, 924-25 (2d Cir.
1988)). The Court must first determine whether the state court violated a state evidentiary rule

"because the proper application of a presumptively constitutional state evidentiary rule could not
be unconstitutional." Roman v. Fillion. No. 04-CV-8022(KMW)
(AJP), 2005 WL 1383167, at

14

*26(S.D.N.Y. June 10, 2005)(report and recommendation issued). A petitioner bringing such a
claim bears a heavy burden because "[e]ven an incorrect state court evidentiary ruling does not
rise to the level ofconstitutional error necessary to warrant habeas relief, unless the error deprived

Petitioner ofa fundamentally fair trial." Alfmi v. Lord.245 F. Supp.2d 493,499(E.D.N.Y.2003).

A petitioner must show that the evidence admitted was "so extremely unfair that its admission
violates 'fundamental conceptions of justice.'" Dowling v. United States, 493 U.S. 342, 352
(1990) rquoting United States v. Lovasco.431 U.S. 783,790(1977)).

Sullivan claims that the prosecutor improperly elicited hearsay testimony, namely that: a

sketch was generated based on complainant's description of the subject; the police received
information from different agencies during the course of the investigation; and complainant had

provided a description of Petitioner two years after the assault and subsequently made a pretrial
identification. (See Pet. App. Br. at 25-36.) Viewed in the context of the entire trial, this Court

cannot say that the evidentiary rulings at issue were incorrect, let alone that the evidence admitted
was so prejudicial as to deprive Petitioner of a fundamentally fair trial.

Complainant and Detective Johnson-Wright each made a brieftestimonial reference to the
fact that complainant assisted the police artist in creating a composite sketch. (Resp. App. Br. at
31-33; Trial Tr. at 60:1-24, 140:17-19.) However, the trial court followed New York state law

in denying the prosecutor's request to call the artist for the purpose of admitting the sketch itself.^
(Trial Tr. at 194:12-197:16; 261:11-262:2.) The sketch itself was never admitted,and as such the

^ New York courts have determined that a composite sketch is admissible only as a prior consistent statement when
the testimony of a witness "is assailed as a recent fabrication." People v. Maldonado. 97 N.Y.2d 522, 529 (2002).
The trial court here held that the composite sketch was inadmissible, as the defense was showing a prior inconsistent
statement and not alleging a recent fabrication. (See Trial Tr. at 261:11-262:2.)

15

prejudice that courts have been concerned with was not a risk. The briefreferences to the fact that
a sketch was made were simply part ofthe narrative of how the investigation unfolded.

Such testimony is "properly admitted to complete the narrative" ofan investigation. Matos
V. Ercole. 08-CV-8814 (LBS), 2010 WL 2720001, at *8 (S.D.N.Y. June 28, 2010)(detective's

testimony that he received a picture ofthe defendant from defendant's brother and then generated
a wanted poster"was properly admitted"to explain why detectives began pursuing petitioner); soc
also Moore v. Ercole. No,09-CV-1003(CBA), 2012 WL 407084 at *8 (E.D.N.Y. Feb. 8, 2012)

(detective's testimony that police targeted defendant as a result of interviews they conducted was
admissible "to provide context for or explain a police investigation"); Newland v. Lape. 05-CV-

2686(JFK),2008 WL 2485404 at *2,*5(S.D.N.Y. June 19,2008)("[Sjtatements admitted merely
to complete a narrative or explain the actions ofa police officer are admissible.").
Here, complainant's case had been closed for two years. (See Trial Tr. at 264:3-6.)
Detective Litwin, who specialized in cases that were reopened due to DNA evidence, explained
how the case was reopened, how he came to be on board, and how the investigation proceeded
from that point. (Id. at 263:12-264:10.)

Litwin testified to the following: that he was notified of a DNA match in the then-closed

case from the Special Victims Unit,the Office ofthe Chief Medical Examiner("OCME"),and the
New York State Division of Criminal Justice Services; that he subsequently reviewed

complainant's case with her, during which conversation she again described her assailant; that a
lineup was conducted; and that he took "official police action" after complainant viewed the
lineup. (Id. at 263:25-264:16; 264:20-265:11; 269:1-8; 275:20-24; 278:17-23.) All of this
testimony was admitted to complete the narrative of the investigation and to explain the actions
taken by the police.

16

Sullivan has not demonstrated that the state court in this case erred in admitting the

challenged testimony, let alone that the admissions were "an error of constitutional magnitude."
Alfini. 245 F. Supp. at 499. Furthermore, even if any of this testimony was admitted in error, it
cannot be said to have prejudiced Sullivan given the overwhelming evidence of guilt present in
this case. See, e.g.. Thompson v. Artus. No. lO-CV-1443 (CBA), 2013 WL 6408354, at *12

(E.D.N.Y. Dec. 6, 2013)(holding that elicitation of hearsay testimony did not violate due process
"given the overwhelming evidence of[petitioner's] guilt").
This claim is therefore denied.

C. Improper Appeal to the Jury
In order to reach the level of a constitutional violation, a prosecutor's remarks in

summation must,"taken in the context ofthe entire trial, result[]in substantial prejudice... or so

infect[ ]the trial with unfairness as to make the resulting conviction a denial of due process."
United States v. Flahartv. 295 F.3d 182, 202(2d Cir. 2002)(internal citation omitted). Although

a "prosecutor should not use arguments calculated to inflame the passions or prejudices of the

jury," it is "impossible to expect that a criminal trial shall be conducted without some showing of
feeling; the stakes are high, and the participants are inevitably charged with emotion." United
States V. Young. 470 U.S. 1, fii. 7-8 (1985). Prosecutors may not repeatedly insert prejudicial

comments not supported by the evidence. See, e.g.. Lee v. Bennett. 927 F. Supp. 97, 105-06
(S.D.N.Y.),

104 F.3d 349(2d Cir. 1996).

Sullivan cites the following remarks as evidence of improper conduct during summation:
that complainant "wanted to wash off the filth" of the assault afterward; that complainant "was
scar[red]" forever; and that the jury needed to "bring justice" to complainant. (Pet. App. Br. at

17

37-39; Trial Tr. at 497:9-17,498:17-21.) Although some ofthe prosecutor's statements may have
been better left unsaid, they do not rise to the level of a constitutional violation.
This claim is therefore denied.

IV. Failure of the Court to Dismiss an Allegedly Biased Juror
A. Procedural Bar

Sullivan claims that he was denied a fair trial when the court failed to dismiss an allegedly

biased juror. (Pet. § 440.10 Aff. at 1-2.) The state court rejected this claim as procedurally barred
under § 440.10(2)(b), as Sullivan could have brought this claim as part of his direct appeal, yet
failed to do so. This claim is therefore procedurally barred, and Sullivan has not alleged the facts
necessary to overcome the default.

In any event, this claim is without merit.
B. Merits

The Sixth Amendment to the United States Constitution provides that criminal defendants

"shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed." U.S. Const. Amend. VI. The Supreme Court has

repeatedly held that an impartial jury is a "touchstone of a fair trial." McDonough Power Equip.,
Inc. V. Greenwood. 464 U.S. 548, 554(1984). If a defendant is denied an impartial jury, his due

process rights and his Sixth Amendment rights have been violated.

Irvin v. Dowd. 366 U.S.

717,721-23(1961).

A criminal defendant claiming that biased jurors were seated on his jury has the burden of

proving prejudice, namely "the actual existence of such an opinion of the juror as will raise the
presumption of partiality." Irvin, 366 U.S. at 723 (internal citation and quotation omitted).

18

A trial judge's determination of juror impartiality is entitled to a presumption of
correctness, and a habeas court may overturn such a determination only for "manifest error."
Pattonv. Yount.467 U.S. 1025,1031 ri984^: see also Skilline v. United States. 561 U.S. 358,386

(2010)(deference due to the trial judge's determinations of partiality "is at its pinnacle"); Fama v.
Comm'r of Corr. Servs.. 235 F.3d 804, 813-814(2d Cir. 2000)("The handling of possible juror

partiality is entrusted to the sound discretion of the trial court."). A habeas court must determine
"whether there is fair support in the record for the state court's conclusion that thejurors [in a trial]
would be impartial." Patton. 467 U.S. at 1038.

After his testimony. Detective Litwin notified the court that he had recognized Juror Five
as an old friend of his son. (Trial Tr. at 306:7-20.) When questioned by the court, the juror in

question explained that he was unaware Litwin was going to testify and that he wasn't sure during
the testimony that the witness was in fact his friend's father. (Id at 306:25-307:13.) He stated
that he had known the witness years ago,and hadn't seen the son or spoken to the witness in years.

(Id at 307:14-18.) In response to questioning by the court and by defense counsel, he testified
that this prior acquaintance would not affect his view of the case or the witness's credibility. (Id
at 307:19-308:6.)

Given the assurances made by this juror, as well as the tenuous nature of the connection
with the witness at issue, there is fair support in the record for the trial court's conclusion that the
juror would be impartial.
This claim is therefore denied.

V. Sufficiency of the Evidence

A petitioner seeking habeas relief from a state conviction based on insufficiency of the
evidence "bears a very heavy burden." Einaueler v. Supreme Court of N.Y., 109 F.3d 836, 840

19

(2d Cir. 1997)(citation and internal quotation marks omitted), A criminal conviction in state court
will not be reversed if, "after viewing the evidence in the light most favorable to the prosecution,

any rational trier offact could have found the essential elements ofthe crime beyond a reasonable
doubt." Jackson v. Virginia.443 U.S. 307,319(1979): see also Policano v. Herbert. 507 F.3d 111,

115-16(2d Cir. 2007)(stating that "[i]n a challenge to a state criminal conviction brought under
28 U.S.C. § 2254 ... the applicant is entitled to habeas corpus relief if it is found that upon the
record evidence adduced at the trial no rational trier offact could have found proofof guilt beyond

a reasonable doubt"(quoting Jacfeow,443 U.S. at 324)).

Sullivan claims that newly discovered evidence has come to light that renders the state's

evidence at trial insufficient to prove guilt beyond a reasonable doubt. (D.E. # 30 ("Pet. Supp.

Compl.")at 1-3.) To support this claim, Sullivan has attached a news article from 2014 reporting
on the ruling in People v. Collins. 15 N.Y.S.3d 564 (Sup. Ct. 2015) that OCME's Low Copy

Number("LCN")DNA testing and use of the Forensic Statistical Tool ("FST") do not meet the

Frve standard necessary for scientific evidence.^ (Pet. Supp. Compl., Ex. A.) Petitioner alleges
that this ruling necessarily casts doubt on the DNA evidence presented in his case.
The decision in Collins appears to be an "outlier among the forensic DNA software

program cases in New York." People v. Bullard-Danieh 42 N.Y.S.3d 714, 724 (Cty. Ct. 2016).
At the time Collins was decided, other trial courts had already ruled that the techniques at issue

were generally accepted within the forensic DNA community. Id; see also People v. Garcia, 963
N.Y.S.2d 517, 523 (Sup. Ct. 2013)(holding that OCME's use of LCN and FST were not novel

^ The Frve test for the admissibility ofexpert scientific testimony asks whether the accepted techniques, when properly
performed, generate results accepted as reliable within the scientific community generally. See Frve v. United States.
293 F. 1013, 1014(D.C. Cir. 1923). The Supreme Court held that the Frve test was displaced by the Federal Rules of
Evidence, see Daubert v. Merrell Dow Pharm.. Inc.. 509 U.S. 579, 589(1993), but it is still followed by New York
state court, see People v. Bullard-Daniel. 42 N.Y.S.3d 714, 719(Cty. Ct. 2016).
20

techniques requiring a Frve hearing and that both were generally accepted in the scientific

community); People v. Megnath. 898 N.Y.S.2d 408,415(Sup. Ct. 2010)(same).^
The Collins decision has since been criticized by at least two other trial courts.

People

V. Carter.50 Misc.Sd 1210(A)
(N.Y. Sup. Ct. 2016)(finding"a possible lack ofobjectivity guiding

the testimony of several ofthe defense experts in Collins" and holding that the Collins court gave
insufficient weight to the recommendation of the DNA Subcommittee of the New York State
Commission on Forensic Science approving FST); see also Bullard-DanieL 42 N.Y.S.3d at 724

(noting that the court's role "is simply to determine whether the scientific principles behind [a
technique] are accepted generally in the relevant scientific community ...[it] does not mean that
there must be unanimity within the scientific community").

In any event,the decision in Collins does not constitute newly discovered evidence relevant

to Suliivan's case. The DNA evidence at issue was available prior to Sullivan's trial, and the
defense was granted numerous adjournments to conduct its own testing. Sullivan has not
demonstrated that such testing would have resulted in a different outcome, nor that the testing by
OCME was so flawed as to cast constitutional doubt on the fairness of the trial or the sufficiency

of the prosecution's evidence. Additionally, as noted,the case Sullivan cites is^outlier that has
been criticized by other trial courts, while the testing methods at issue have repeatedly been
recognized as meeting the Frve standard for admissibility in New York courts.
Furthermore, even if the DNA evidence were to be excluded on this basis, there was

sufficient evidence outside of the DNA samples to permit a rational trier of fact to find Sullivan
guilty beyond a reasonable doubt. S^ Policano, 507 F.3d at 115-16.

' Frve hearing is necessary only if expert testimony involves "novel or experimental matters." People v. Bvrd. 855
A
N.Y.S.2d 505, 510 (App. Div. 2008). The application of a generally accepted technique does not require a Frve
hearing. Id
21

This claim is therefore denied.

VI. Post-Conviction DNA Testing^

Finally, Sullivan challenges the state court's denial of his § 440.30 motion for postconviction DNA testing. (Pet.§ 440 Br. at 1-20.) The state court held that there was no reasonable

probability that such testing would establish his innocence and that § 440.30(1)(a)does not provide
for retesting of DNA material.

The Supreme Court has held that there is no right of post-conviction access to biological
evidence for DNA testing. S^ District Attomev's Office v. Osbome.557 U.S. 52,68-70(2009).

A petitioner challenging the denial of post-conviction relief must demonstrate that the state's

procedures for such relief "are fundamentally inadequate to vindicate the substantive rights
provided." Id. at 69. In order to prove a constitutional violation, a petitioner must show "a
substantial probability that the requested testing might have produced exculpatory evidence."
Charriez v. Greiner. 265 F.R.D. 70, 88(E.D.N.Y. 2010).

Sullivan has not met either burden. There is no basis for the Court to question the state

court's conclusion that there was no reasonable probability that post-conviction testing would have
established Sullivan's innocence.

This claim is therefore denied.

® It is not entirely clear from Sullivan's additional submissions to the Court whether he is challenging the denial of his
motion for post-conviction DNA testing. However, as Petitioner is proceeding pro se. we construe his pleadings
liberally. Sw Graham v. Henderson. 89 F.3d 75,79(2d Cir. 1996).
22

CONCLUSION

For the foregoing reasons, the petition for a writ of habeas corpus is denied. Because
Sullivan has not made a substantial showing of the denial of a constitutional right, a certificate of

appealability will not issue. ^28 U.S.C. § 2253. The Clerk of Court is directed to close this
case.

SO ORDERED.

Dated: August 22,2017

s/Carol Bagley Amon

Brooklyn, New York

Carol Bagley Apon
United States District Judge

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