Chin v. Graham

Filing 13

MEMORANDUM AND ORDER: For the reasons set forth in the attached memorandum and order, the Court denies Petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Because Petitioner has not made a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue. See 28 U.S.C. § 2253(c)(2). Additionally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith, and, therefore, in forma pauperis status is denied for purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is respectfully requested to close this case. Ordered by Judge Pamela K. Chen on 8/29/2017. (Chivers, Jeffrey)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------x
LUCIEN CHIN,
Petitioner,
MEMORANDUM & ORDER
11-CV-5149 (PKC)

- against HAROLD GRAHAM, SUPERINTENDENT,
Defendant.
-------------------------------------------------------x
PAMELA K. CHEN, United States District Judge:

Petitioner Lucien Chin (“Petitioner”), appearing pro se, seeks a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, challenging his conviction and sentence entered on July 14, 2006,
in the Supreme Court of the State of New York, Nassau County. Following a jury trial, Petitioner
was convicted of one count of manslaughter in the first degree, one count of criminal possession
of a weapon in the second degree, and one count of criminal possession of a weapon in the third
degree.

He was sentenced to concurrent terms in prison amounting to twenty-five years’

imprisonment with five years of post-release supervision.
Petitioner challenges his conviction on several grounds. For the reasons stated below, the
petition for writ of habeas corpus is denied.
BACKGROUND
I.

FACTS
Viewing the facts presented at Petitioner’s trial in the light most favorable to the

prosecution, United States v. Riggi, 541 F.3d 94, 96 (2d Cir. 2008), a reasonable jury could have
found the following.
In the spring of 2005, Petitioner and his friends, one of whom was William Sheppard, had
a series of altercations with another group of young men who lived in their neighborhood,

including Christopher Grant and Matthew Cunningham. (Trial Tr. (“T.”) 407-29, 521-33, 540-60,
703-05, 734-36, 822-24, 845-46, 849-50, 885-96, 910-11, 923-36.) These altercations escalated
to threats of violence, violence, and destruction of property, which generated animosity between
Sheppard and Petitioner, on the one hand, and Grant and Cunningham, on the other. (Ibid.) On at
least two occasions, Petitioner expressed an interest in fighting Grant or Cunningham, and, in that
context, attempted to obtain a gun from a friend. (T. 407-29, 540-60.)
On July 5, 2005, around 7:00 p.m., Grant, Cunningham, and two of their friends, David
Croal and Michael Hamilton, were standing in the front yard of Hamilton’s house in Uniondale,
New York. (T. 445-50, 613-21.) Sheppard and Petitioner drove by in Sheppard’s car, and
Petitioner, recognizing Grant and Cunningham, told Sheppard that he wanted to fight Cunningham.
(T. 436-45, 476-77, 597-611.)1 Sheppard and Petitioner then drove to the home of one of their
friends, where Petitioner obtained a revolver. (T. 448-49.) Sheppard and Petitioner drove back to
Hamilton’s house, and Petitioner, from the passenger seat of the vehicle, fired a single shot from
the revolver, which struck Hamilton in the chest. (T. 450-53.) Sheppard and Croal both witnessed
Petitioner fire the shot. (T. 450-53, 838-39.) Hamilton died from the gunshot wound later that
evening in the hospital. (T. 685-86.)
After the shooting, Sheppard and Petitioner fled to Delaware, where they remained in
hiding for several days before returning to New York the following week. (T. 457-60, 517-21,
645-52, 1026-38.) During that time, Petitioner told Sheppard’s girlfriend, Ashley Armstrong, and
one of Sheppard’s friends, Roland Knight, that he had shot someone. (T. 993-1025, 1036.)
Petitioner was arrested on July 11, 2005, and was indicted for two counts of murder in the second

1

At Petitioner’s trial, Sheppard testified on behalf of the government pursuant to a plea
deal under which Sheppard received a sentence of three years’ imprisonment. (T. 477-677.)
2

degree, one count of criminal possession of a weapon in the second degree, and one count of
criminal possession of a weapon in the third degree.
II.

PRE-TRIAL RULINGS
The trial court held a Wade-Dunaway hearing on March 23, 2006, to determine the

admissibility of photo and lineup identifications made by Grant, Croal, and Cunningham, and to
determine whether the police had probable cause to arrest Petitioner based on those identifications.
(Hr’g Tr. (“H.”) 51-53.) The court denied Petitioner’s motion to suppress the identifications and
ruled that the witnesses could make in-court identifications of Petitioner at trial and that evidence
regarding the lineup identifications would be admissible as well. (H. 53.)
The trial court also considered Petitioner’s pre-trial motion to exclude evidence of
Petitioner’s prior altercations with Grant and Cunningham in the months leading up to the
shooting. (T. 3.) The trial court ruled that certain evidence of particular events was barred from
admission as improper propensity evidence, but allowed most of the prior-acts evidence into the
trial as evidence of Petitioner’s motive and to complete the narrative surrounding the shooting.
(T. 6-28.) Specifically, with respect to the prior acts evidence, the trial court ruled that:
(i) the prosecution could not introduce evidence of a purported fistfight involving
Petitioner and Grant that allegedly occurred four months before the shooting, but
instead could elicit testimony that Petitioner, Grant, and their respective groups of
friends were acquainted with one another and had been in altercations in the past
(T. 6-8);
(ii) the prosecution could introduce partial evidence of an altercation between
Petitioner and Grant outside a convenience store on May 8, 2005, including the
testimony that Petitioner, after the altercation, placed a phone call to another friend
and asked for a “ratchet,” which is slang for a gun (T. 14-16); and
(iii) the prosecution could introduce evidence that, three days before the shooting,
Sheppard, Petitioner, Grant, and Cunningham had an altercation outside a fast-food
restaurant in Uniondale, during which Sheppard attempted to hit Grant with his car,
Grant smashed Sheppard’s car window with a hammer, Petitioner smashed a
3

window of Grant’s family’s car, and Petitioner placed a phone call to ask another
friend for a gun (T. 18-28).
III.

TRIAL, VERDICT, AND SENTENCING
Petitioner was tried before a jury in an eight-day trial that began on June 28, 2006 and

ended on July 12, 2006. (T. 1, 1319.) With respect to identifying Petitioner as the shooter, the
prosecution’s primary witnesses were Sheppard, Grant, Cunningham, and Croal. (T. 322-26.) The
prosecution also called Ashley Armstrong and Roland Knight to testify about Petitioner’s
admissions of guilt in the days after the shooting. (T. 993, 1026.) Petitioner did not take the stand
and did not introduce any evidence in his defense, other than through cross-examination of
prosecution witnesses. (T. 1162, 1168.)
The principal witness against Petitioner was William Sheppard, Petitioner’s friend and the
driver of the vehicle from which Petitioner purportedly fired the shot that killed Hamilton. (T. 407682.)2 Sheppard testified extensively concerning the altercations between himself and Petitioner,
on one the hand, and Grant and his friends, on the other hand, in the months leading up to the
shooting. (T. 414-30.) Sheppard also testified about Petitioner’s attempts to obtain a gun before
the shooting, the shooting itself, and Petitioner’s admissions of guilt after the shooting. (T. 460678.) Sheppard unambiguously identified Petitioner as the person who shot Hamilton from the
passenger side of Sheppard’s vehicle on July 5, 2006. (T. 450-453.) In a lengthy crossexamination, Petitioner’s counsel impeached Sheppard’s testimony on numerous grounds,
including by emphasizing inconsistencies in Sheppard’s account of the events on different
occasions, his record of lying to police officers, his interest in shifting blame for the shooting away

2

As Petitioner’s counsel emphasized in cross-examination, Sheppard testified pursuant to
a cooperation agreement with the prosecution, under which Sheppard had the opportunity to obtain
a lenient sentence of three years’ imprisonment for his involvement in Hamilton’s death. (T. 477677.)
4

from himself, and his interest in obtaining leniency in exchange for his testimony. (T. 477-677.)
In response, Sheppard maintained that, although he had lied previously to police officers in an
effort to minimize his own culpability for the shooting, he was giving truthful trial testimony that
was not influenced by his prospective plea bargain with the prosecution. (E.g., T. 670-75.)
Testimony from Cunningham, Croal, and Grant also contributed to the case against
Petitioner. (T. 322-26.) Cunningham and Grant gave testimony that corroborated, albeit with
some discrepancies, Sheppard’s description of the escalating tensions in the spring of 2005
between Sheppard and Petitioner, on one side, and Grant and his friends, on the other. (T. 708,
892.) All three men also gave testimony that placed Petitioner in the vehicle from which Hamilton
was shot around the time of the shooting. (T. 730, 770, 837-38, 897, 910.) Specifically, although
he did not claim to have seen the shooting itself, Cunningham testified that he saw Petitioner in
the passenger seat of Sheppard’s vehicle ten or fifteen minutes before the shooting, and again just
moments before the shooting. (T. 730, 770.) Similarly, Grant testified that, although he did not
see the shooting itself, he saw Petitioner in the passenger seat of Sheppard’s vehicle around the
time of the shooting. (T. 897, 910.) Finally, Croal testified that he was standing near the victim
during the shooting, and personally saw Petitioner use a revolver to fire the shot that killed
Hamilton from the passenger side of Sheppard’s vehicle. (T. 837-38.)
As he had done with Sheppard, Petitioner’s counsel impeached the testimony of Grant,
Cunningham, and Croal on several grounds, including by pointing to discrepancies in their
description of events, prior inconsistent statements, and their failure to identify Petitioner as the
shooter in their initial interviews with the police. (T. 733-820, 844-84, 910-64.) In response,
Grant, Cunningham, and Croal explained, among other things, that they were initially reluctant to
cooperate with the police but ultimately agreed to testify because their friend had died.

5

(T. 733-820, 844-84, 910-64.) With respect to Croal in particular, Petitioner’s counsel emphasized
that Croal was standing about ninety feet away from Petitioner when Croal supposedly recognized
Petitioner as the shooter. (T. 864, 1205.)
The prosecution also presented the testimony of Sheppard’s girlfriend, Ashley Armstrong,
and one of Sheppard’s friends, Roland Knight. (T. 993, 1026.) Armstrong testified that, in the
days after the shooting, Sheppard and Petitioner fled New York and stayed with her in Delaware,
where, according to Armstrong, Petitioner admitted to having shot someone but “wished he didn’t
hit the wrong person.” (T. 1036.) Knight testified that, while he was giving Petitioner a ride in
his car several days after the shooting, Petitioner told Knight that he had “caught a body,” which
Knight understood to be slang for killing someone. (T. 1003.) On cross-examination, Petitioner’s
counsel impeached Armstrong’s credibility based on a cooperation deal she purportedly received
in exchange for her testimony, and impeached both Armstrong and Knight based on their ties to
Sheppard, whose plea deal could have been affected by the outcome of the trial against Petitioner.
(T. 1008, 1046.)
After the close of the prosecution’s case in chief on Tuesday, July 11, 2006, Petitioner
chose not to present any evidence. (T. 1162, 1168.) The jury was charged and began its
deliberations during the afternoon of Wednesday, July 12, 2006. (T. 1284-1318.) The next day,
July 13, 2006, the jury sent a note to the trial judge, asking for “a measurement of ninety feet”.
(T. 1323-24.)3 In response to that request, the trial court, with the prior agreement of both sides’
counsel, told the jury that the length of the courtroom was 60 feet, and that they could “calculate
another half of [the] room, add it on and that’s 90 feet.” (T. 1324.)

3

The only reference to ninety feet in the trial was in connection with Croal’s identification
of Petitioner as the shooter. (T. 864, 1205 (Croal identified Petitioner as the shooter from a
distance of approximately ninety feet).)
6

The jury did not reach a verdict on Thursday, July 13. (T. 1325.) According to Petitioner,
after being released for the day, several members of the jury independently measured the distance
of ninety feet in an attempt to assess the plausibility of Croal’s identification of Petitioner from
that distance. (Dkt. 7 (4/18/12 Mem.) at 34-46.) According to Petitioner, during the evening of
July 13, 2006, these jurors conducted “tests” of their abilities to identify a person from a distance
of 90 feet and then reported their findings to the rest of the jury when deliberations resumed the
next morning. (Id.) The next day, July 14, 2006, the jury returned a verdict convicting Petitioner
of one count of manslaughter in the first degree, one count of criminal possession of a weapon in
the second degree, and one count of criminal possession of a weapon in the third degree.
(T. 1337-42.)
After the trial, a number of the jurors spoke with both sides’ counsel. (Dkt. 7 at 4.) In those
conversations, Petitioner’s counsel learned about the home experiments conducted by the jury.
(Id.) Petitioner thereafter filed a motion to set aside the verdict pursuant to N.Y. Crim. P.
Law § 330.30, arguing that his conviction should be set aside based on the “misconduct” of those
jurors who conducted home experiments to assess the credibility of Croal’s ninety-foot
identification of Petitioner and then reported the results to the rest of the jury. (Dkt. 7.) Among
other things, Petitioner argued that the jurors’ misconduct violated his “substantial right to
confrontation as well as his ability to cross-examine witnesses and evidence as allowed under the
United States Constitution’s Sixth Amendment . . . .” (Dkt. 7.) The trial court denied Petitioner’s
motion, ruling that the juror’s conduct was “no more than the application of everyday perceptions
and common sense,” which “does not taint the subsequent verdict.” (Dkt. 7 (quoting People v.
Brown, 48 N.Y.2d 388 (1979).)

7

The trial court held a sentencing hearing for Petitioner on December 6, 2006. On the count
of manslaughter in the first degree, the court sentenced Petitioner to a determinate term of
imprisonment of 25 years with five years of post-release supervision. (Sentencing Tr. 13.) On the
count of criminal possession of a weapon in the second degree, the court sentenced Petitioner to a
determinate term of imprisonment of 15 years with five years of post-release supervision. (Id.)
On the count of criminal possession of a weapon in the third degree, the court sentenced Petitioner
to a determinate term of imprisonment of seven years with three years of post-release supervision.
(Id. 13-14.) The court ordered that all of these terms would run concurrently. (Id. 14.) Petitioner
was also ordered to pay $14,925.07 in restitution by civil judgment. (Id.)
IV.

EXHAUSTION OF STATE REMEDIES
Petitioner appealed his conviction to the Supreme Court of New York, Appellate Division,

Second Department (“Appellate Division”). (Dkt. 7.) Petitioner argued that his conviction should
be vacated because (i) the trial court improperly admitted Sheppard’s testimony concerning
Petitioner’s out-of-court statements requesting a “ratchet” from a friend (Dkt. 7
(Def.-Appellant’s Br.) at 39); (ii) the trial court improperly admitted “other acts” evidence of prior
altercations between Sheppard and Petitioner, on the one hand, and Grant and his friends, on the
other (id. at 39-46); (iii) the “tests” conducted by members of the jury concerning Croal’s ninetyfoot identification of Petitioner violated Petitioner’s constitutional rights (id. at 56-61); (iv) the
verdict was against the weight of the evidence (id. at 62-63); and (v) the trial court failed to give
“due consideration” to all facts relevant to Petitioner’s sentence of 25 years’ imprisonment, which
Petitioner argues was overly severe (id. at 47-55).
The Appellate Division rejected each of Petitioner’s arguments and affirmed his
conviction. New York v. Chin, 897 N.Y.S.2d 106 (App. Div. 2010). With respect to the other acts

8

evidence admitted at trial, including Sheppard’s testimony about Petitioner trying to get a “ratchet”
before the shooting, the Appellate Division held that Petitioner had not preserved his objection for
appeal, and, in any event, the admission was unobjectionable because the trial court gave “an
appropriate limiting instruction.” Id. at 107. With respect to Petitioner’s weight of the evidence
argument, the Appellate Division held that, “although the main prosecution witness . . . had an
unsavory and criminal background, and testified pursuant to a cooperation agreement, these facts
raised an issue of credibility which the jury resolved in favor of the prosecution.” Id. The
Appellate Division also noted that, “[u]pon reviewing the [trial] record, we are satisfied that the
verdict of guilt was not against the weight of the evidence.” Id. With respect to sentencing, the
Appellate Division held that Petitioner’s “contention that he was not afforded an opportunity to
address the court at the time of his sentencing . . . is unpreserved for appellate review,” that “the
trial court . . . substantially complied with the statutory [sentencing] requirements,” and that “[t]he
sentence imposed was not excessive.” Id. at 108. Finally, with respect to the alleged juror
misconduct, the Appellate Division held that Petitioner’s rights had not been violated because,
“[i]n this regard, the jurors not only made a ‘casual observation of a common, everyday experience
which was readily available to any of the[m] without the benefit of any special expertise,’ but there
was additional evidence presented to connect the defendant with the crimes, including, inter alia,
the testimony of several eyewitnesses.” Id. at 107-108.
Thereafter, Petitioner filed an application for discretionary review by the New York Court
of Appeals. (Dkt. 7 (3/17/2010 Letter).) In the application, Petitioner asserted the same grounds
for vacating his conviction as he had asserted in his submissions to the Appellate Division. (Id. at
2-4 (hearsay statements and other-acts evidence), 4-6 (juror misconduct), 7-14 (weight of the
evidence), 15-18 (excessive sentence).) By order dated July 21, 2010, the Court of Appeals denied

9

Petitioner’s application for review.

New York v. Chin, 907 N.Y.S.2d 461 (2010) (Table).

Petitioner’s 90-day window to seek a writ of certiorari to the Supreme Court of the United States
closed on October 19, 2010.
V.

INSTANT PETITION
On October 10, 2011, Petitioner timely filed this petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. (Dkt. 1.) In his petition, Petitioner requests a vacatur of his
conviction and a remand to State court for a new trial, or, alternatively, “a hearing to settle any
undisputed facts.” (Dkt. 1 at ECF 14.)
Petitioner asserts five grounds for habeas relief: (i) the trial court improperly admitted
Sheppard’s testimony concerning Petitioner’s out-of-court statements requesting a “ratchet” from
a friend (Dkt. 1 at ECF 6; Dkt. 1 (Pet.’s Br.) at 39; Dkt. 7 (4/18/12 Mem.) at 48-56); (ii) the trial
court improperly admitted “other acts” evidence of prior altercations between Sheppard and
Petitioner, on the one hand, and Grant and his friends, on the other (Dkt. 1 at ECF 8; Dkt. 1 (Pet.’s
Br.) at 39-46; Dkt. 7 (4/18/12 Mem.) at 57-66); (iii) the “tests” conducted by several jurors
concerning Croal’s ninety-foot identification of Petitioner violated Petitioner’s rights under the
Sixth and Fourteenth Amendments to the U.S. Constitution (Dkt. 1 at ECF 5; Dkt. 1 (Pet.’s Br.)
at 56-61; Dkt. 7 (4/18/12 Mem.) at 34-37); (iv) the verdict was against the weight of the evidence
(Dkt. 1 at ECF 9; Dkt. 1 (Pet.’s Br.) at 62-63); and (v) the trial court failed to give “due
consideration” to all facts relevant to Petitioner’s sentence of 25 years’ imprisonment, which
Petitioner argues was overly severe (Dkt. 1 at ECF 9; Dkt. 1 (Pet.’s Br.) at 47-55).

10

DISCUSSION
I.

EXHAUSTION
As a threshold matter, a prisoner seeking habeas relief in federal court must have exhausted

his State remedies by “presenting [his] constitutional claims to the state courts in the first instance.”
Jackson v. Conway, 763 F.3d 115, 132 (2d Cir. 2014) (citing 28 U.S.C. § 2254(b)). “This requires
that the prisoner ‘fairly present’ his constitutional claim to the state courts, which he accomplishes
‘by presenting the essential factual and legal premises of his federal constitutional claim to the
highest state court capable of reviewing it.’” Id. at 133 (quoting Rosa v. McCray, 396 F.3d 210,
217 (2d Cir. 2005)). “While ‘a state prisoner is not required to cite chapter and verse of the
Constitution in order to satisfy this requirement,’ he must tender his claim ‘in terms that are likely
to alert the state courts to the claim’s federal nature.’” Id. (quoting Carvajal v. Artus, 633 F.3d 95,
104 (2d Cir. 2011)).
Here, Respondent argues that Petitioner failed to exhaust two of the grounds on which he
now seeks habeas relief. First, Respondent argues that Petitioner failed to exhaust his claim that
the trial court violated his constitutional rights by failing to give “due consideration” to all facts
relevant to Petitioner’s sentence of 25 years’ imprisonment, which Petitioner argues was overly
severe. (Dkt. 7 (Respondent’s Brief (“Resp. Br.”)) at 19.) Second, Respondent argues that
Petitioner failed to exhaust his claim that juror misconduct, i.e., the home “tests” conducted by
certain jurors, violated Petitioner’s rights under the Sixth and Fourteenth Amendments to the U.S.
Constitution. (Dkt. 7 (Resp. Br.) at 8 (“[D]efendant failed to fairly present to the state courts any
claim that he might now proffer that the alleged juror misconduct at trial, or the trial court’s denial
of his motion to set aside the judgment, violated the federal constitution.”).)

11

The Court disagrees on both counts. With respect to sentencing, as previously discussed,
Petitioner argued in his submissions to the Appellate Division and the Court of Appeals that the
trial court violated Petitioner’s constitutional rights by imposing an excessive sentence and failing
to give due consideration to all factors relevant to Plaintiff’s sentence. (Dkt. 7 (App. Br.) at 47-55;
Dkt. 7 (Ct. Appeals Letter) at 15-18.) Although Petitioner did not expressly invoke the Fourteenth
or Eighth Amendments to the U.S. Constitution, the substance of his argument and the language
he used were clear enough to raise claims of due process and disproportionate and overly severe
sentencing that implicate the Fourteenth and Eighth Amendments. (Ibid.) Those presentations
were sufficient “to alert the state courts to the claim’s federal nature.” Jackson v. Conway, 763
F.3d at 133.
With respect to juror misconduct, Petitioner clearly raised a constitutional issue in State
court. In his post-trial motion to set aside the verdict, Petitioner expressly argued that the jury’s
misconduct violated his “substantial right to confrontation as well as his ability to cross-examine
witnesses and evidence as allowed under the United States Constitution’s Sixth Amendment . . . .”
(Dkt. 7.) In his brief in the Appellate Division, Petitioner argued that the jury’s misconduct violated
his “right to confront the witnesses against him” and cited decisions by the New York Court of
Appeals and the Supreme Court of the United States addressing the scope of a criminal defendant’s
confrontation rights under the New York and United States Constitutions. (Dkt. 7 (Petitioner’s App.
Div. Br.) at 58-60 (citing, among other cases, New York v. Brown, 423 N.Y.S.2d 461 (1979), and
Sheppard v. Maxwell, 384 U.S. 333 (1966)).) In his application for review by the Court of Appeals,
Petitioner expressly argued that his “right to confront the witnesses against him [was] violated by
the tests conducted by the jurors who then ‘testified’ to the other jurors as to the results,” and that
the jurors’ “tests” also violated “the governing principle . . . that a jury must reach its verdict based

12

solely on the evidence received in open court and not from outside sources.” (Dkt. 7 (3/17/2010
Letter) at 6 (citing Sheppard v. Maxwell, 384 U.S. 333 (1966)).) In short, there is no question that
Petitioner “fairly presented” his claim of juror misconduct under the Sixth and Fourteenth
Amendments to the U.S. Constitution in State court.
II.

PROCEDURAL BAR
Under 28 U.S.C. § 2254, the Court need not consider the merits of any claim that is

procedurally defaulted. Harrington v. Richter, 562 U.S. 86, 131 (2011). “A procedural default
occurs in one of two ways.” Jackson, 763 F.3d at 133. First, it occurs when “the state prisoner
fails to exhaust his state remedies . . . .” Id. Second, it occurs “if the state court’s rejection of
a federal claim rests on state law grounds—such as the operation of a state procedural rule—that
is both independent of the federal question and adequate to support the judgment.” Id. (quotation
omitted); accord Estelle v. McGuire, 502 U.S. 62, 67 (1991) (“[F]ederal habeas corpus relief does
not lie for errors of state law.” (quotation omitted)); Howard v. Walker, 406 F.3d 114, 121
(2d Cir. 2005) (“A claim that a state conviction was obtained in violation of state law is not
cognizable in the federal court.”). “The preclusion of federal review applies only when ‘the last
state court rendering a judgment in the case clearly and expressly states that its judgment rests
on a state procedural bar.’” Messiah v. Duncan, 435 F.3d 186, 195 (2d Cir. 2006) (quoting Glenn
v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996)). In particular, “[w]hen a state court finds that a
claim is not preserved, but then holds ‘in any event’ on the merits, the claim is procedurally
defaulted.’” Kennedy v. Connolly, 2017 WL 496071, at *12 (E.D.N.Y. Feb. 6, 2017) (citing
Green v. Travis, 414 F.3d 288, 294 (2d Cir. 2005)).
Here, in affirming Petitioner’s conviction, the Appellate Division ruled that Petitioner
had failed to preserve two grounds for attacking his conviction. The Appellate Division ruled,

13

first, that Petitioner had failed to preserve his contention that the trial court erred in failing to
give a proper limiting instruction regarding his prior bad acts. New York v. Chin, 897 N.Y.S.2d
106, 107 (App. Div. 2010). The Appellate Division ruled, second, that Petitioner had failed to
preserve his contention that he should have been given an opportunity to address the court during
sentencing. Id. Thus, to the extent that the instant Petition is based on either of these grounds,
it is dismissed as procedurally barred. See Connolly, 2017 WL 496071, at *2. Nonetheless, the
Court addresses Petitioner’s claims on the merits as well.
III.

STANDARD OF REVIEW
A federal district court “shall entertain an application for a writ of habeas corpus [o]n behalf

of a person in custody pursuant to the judgment of a State court on the ground that he is in custody
in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).
“[F]ederal habeas corpus relief does not lie for errors of state law.” Estelle v. McGuire, 502 U.S.
62, 67 (1991) (quotation marks omitted); accord Howard v. Walker, 406 F.3d 114, 121 (2d Cir.
2005) (“A claim that a state conviction was obtained in violation of state law is not cognizable in
federal court.”).
If a petitioner’s claim was “adjudicated on the merits in State court proceedings,”4 the
district court may grant the petition if the adjudication of the claim:
(1)

resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or

(2)

resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.

4

An “adjudication on the merits” is one that “(1) disposes of the claim on the merits, and
(2) reduces its disposition to judgment.” Bell v. Miller, 500 F.3d 149, 155 (2d Cir. 2007) (quotation
omitted).
14

28 U.S.C. § 2254(d).
A State court decision is “contrary to” clearly established federal law if “the state court
reached a conclusion of law that directly contradicts a holding of the Supreme Court” or, “when
presented with ‘facts that are materially indistinguishable from a relevant Supreme Court
precedent,’” the State court arrived at an opposite result. Evans v. Fischer, 712 F.3d 125, 132
(2d Cir. 2013) (quoting Williams v. Taylor, 529 U.S. 362, 405 (2000)).
A State court decision is an “unreasonable application” of clearly established federal law
if “the state court identifies the correct governing legal principle from [Supreme Court] decisions
but unreasonably applies that principle to the facts of the prisoner’s case.” Williams, 529 U.S. at
413. The Court cautions, however, that “an unreasonable application of federal law is different
from an incorrect application of federal law.” Id. at 410; see also Grayton v. Ercole, 691 F.3d
165, 174 (2d Cir. 2012) (“[T]he writ may only issue where the state court’s application of the law
was not only wrong, but unreasonable.”). A federal habeas court may “issue the writ [only] in
cases where there is no possibility fairminded jurists could disagree that the state court’s decision
conflicts with [the Supreme] Court’s precedents.” Harrington v. Richter, 562 U.S. 86, 102 (2011).
Furthermore, “[i]n § 2254 proceedings a court must assess the prejudicial impact of
constitutional error in a state-court criminal trial under the substantial and injurious effect standard
set forth in Brecht v. Abrahamson.” Jackson v. Conway, 763 F.3d 115, 140 (2d Cir. 2014) (internal
brackets and quotation omitted). Under Brecht v. Abrahamson, 507 U.S. 619 (1993), “a federal
court may overturn a state conviction ‘only when the constitutional violation had a substantial and
injurious effect or influence in determining the jury’s verdict.’” Jackson, 763 F.3d at 140 (quoting
Brecht, 507 U.S. at 637) (internal quotation marks omitted). In this regard, “[t]he strength of the
prosecution’s case without the erroneously admitted evidence ‘is probably the single most critical

15

factor in determining whether the error was harmless.’” Id. To evaluate the importance of the
wrongly admitted evidence, a federal court considers “(1) the prosecutor’s conduct with respect to
the evidence, (2) whether the evidence bore on an issue plainly critical to the jury’s decision, and
(3) whether the evidence was material to the establishment of the critical fact, or whether it was
instead corroborated and cumulative.” Id.
IV.

ANALYSIS
As noted above, Petitioner asserts five grounds for habeas relief. The Court addresses each

ground in turn.
A.

Admission of Out-of-Court Statements

Petitioner argues that his right of confrontation under the Sixth Amendment to the U.S.
Constitution was violated when the trial court allowed the prosecution to elicit testimony from
William Sheppard concerning two phone conversations between Petitioner and third parties,
during which Petitioner purportedly asked for a “ratchet,” which is slang for a gun. (Dkt. 1 (Pet.’s
Br.) at 39.) To the extent Petitioner objects to the admission of his own out-of-court statements
concerning his desire to obtain a “ratchet,” that objection clearly fails because Petitioner has no
right under the Sixth Amendment to confront himself, whatever that would mean. Indeed,
Petitioner cites no cases to support his argument that the introduction of a defendant’s own out-ofcourt statements violates the defendant’s right of confrontation.5
To the extent Petitioner objects to the admission of testimony concerning statements made
by persons on the other end of the phone calls with Petitioner, the Court finds that any error in
admitting those statements was harmless. Petitioner does not point to anything in the record

5

Under the Federal Rules of Evidence, a party’s out-of-court statements may be used
against him or her by the opposing party as non-hearsay evidence. See Fed. R. Evid. 801(d)(2).
16

suggesting that the prosecution, defense, or any witness placed any significance on the substance
of statements made by the persons who were on the other end of Petitioners’ alleged phone calls
in which he requested a “ratchet.” To the extent those phone calls were relevant to the jury’s
verdict, they were relevant because of Petitioner’s own statements—i.e., his requests for a gun—
not because of anything that was said in response to his request. Accordingly, the Court has no
trouble finding that any error with respect to admitting testimony about statements made by the
recipients of Petitioner’s phone calls was harmless under Brecht.
B.

Admission of Other Acts Evidence

Petitioner argues that the admission of testimony concerning “other acts” evidence of
prior altercations between Sheppard and Petitioner, on the one hand, and Grant and his friends,
on the other hand, “deprived [Petitioner] of a fair trial.” (Dkt. 1 (Pet.’s Br.) at 57-66.) Petitioner
does not explain, however, how the trial court’s admission of other acts evidence was either
“contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(a). Nor does
Petitioner explain how the trial court’s admission of the “other acts” evidence “resulted in a
decision that was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(a). As Petitioner’s brief makes clear,
Petitioner’s objection to the trial court’s admission of other acts evidence amounts to an
objection to the trial court’s application of New York evidentiary law governing the admission
of propensity evidence, including in particular an objection to the trial court’s weighing of the
probative and prejudicial value of that evidence. (Dkt. 1 (Pet.’s Br.) at 58-66.) Even assuming
arguendo, as Petitioner contends, that the trial court erred in its application of the New York
evidentiary standards governing the admission of other acts evidence, this Court could not grant

17

habeas relief on that basis. See Estelle v. McGuire, 502 U.S. 62, 67 (1991) (“[F]ederal habeas
corpus relief does not lie for errors of state law.” (quotation omitted)); Howard v. Walker, 406
F.3d 114, 121 (2d Cir. 2005) (“A claim that a state conviction was obtained in violation of state
law is not cognizable in federal court.”).
C.

Weight of the Evidence

Petitioner argues that the verdict should be vacated as against the weight of the evidence.
(Dkt. 1 at ECF 9; Dkt. 1 (Pet.’s Br.) at 62-63.)
The circumstances in which a federal district court may grant habeas relief based on
insufficiency of the evidence are extremely narrow. As the Supreme Court recently explained:
The opinion of the Court in Jackson v. Virginia, 443 U.S. 307 (1979), makes clear
that it is the responsibility of the jury—not the court—to decide what conclusions
should be drawn from evidence admitted at trial. A reviewing court may set aside
the jury’s verdict on the ground of insufficient evidence only if no rational trier of
fact could have agreed with the jury. What is more, a federal court may not overturn
a state court decision rejecting a sufficiency of the evidence challenge simply
because the federal court disagrees with the state court. The federal court instead
may do so only if the state court decision was “objectively unreasonable.”
Cavazos v. Smith, 565 U.S. 1, 2 (2011) (quoting Renico v. Lett, 559 U.S. 766, 772 (2010)). Indeed,
the Supreme Court “h[as] made clear that Jackson claims[—i.e., habeas claims asserting
insufficiency of the evidence—] face a high bar in federal habeas proceedings because they are
subject to two layers of judicial deference,” one layer of deference to the jury, and a second layer
of deference to the reviewing State court. Coleman v. Johnson, 566 U.S. 650, 650 (2012).
Here, the Appellate Division held that, “although the main prosecution witness . . . had an
unsavory and criminal background, and testified pursuant to a cooperation agreement, these facts
raised an issue of credibility which the jury resolved in favor of the prosecution.” Chin, 897
N.Y.S.2d at 107. The Appellate Division also held that, “[u]pon reviewing the [trial] record, we
are satisfied that the verdict of guilt was not against the weight of the evidence.” Id.
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As summarized in greater detail above, Sheppard testified that Petitioner obtained a
revolver in the minutes before Sheppard and Petitioner drove to Hamilton’s house. (T. 448-53.)
Sheppard and Croal both testified that they personally witnessed Petitioner fire the shot that killed
Hamilton. (T. 450-53, 838-39.) Ashley Armstrong and Roland Knight testified that Petitioner, in
the days after the shooting, admitted to having shot someone. (T. 993-1025, 1036.) Even setting
aside Croal’s identification (discussed in greater detail below), this testimony and the other
evidence at trial were more than sufficient basis from which a rational jury could have convicted
Petitioner for the murder of Hamilton. As the Appellate Division explained in its order affirming
Petitioner’s conviction, although the witnesses against Petitioner were subject to questions of
credibility, “the jury [evidently] resolved [those questions] in favor of the prosecution.” Chin,
897 N.Y.S.2d at 107. Given all of the evidence of Petitioner’s guilt that was presented at trial, this
Court cannot conclude that the Appellate Division’s rejection of Petitioner’s weight-of-theevidence challenge was “objectively unreasonable.” Cavazos, 565 U.S. at 2. Accordingly, the
Court denies Petitioner’s request for habeas relief on this ground.
D.

Juror Misconduct

Petitioner argues that his rights under the Sixth and Fourteenth Amendments to the U.S.
Constitution were violated when, after deliberations had already begun, several members of the
jury conducted home “experiments” to assess the plausibility of Croal’s identification of Petitioner
from a distance of ninety feet. (Dkt. 1 at ECF 5; Dkt. 1 (Pet.’s Br.) at 56-61; Dkt. 7 (4/18/12 Mem.)
at 34-37.) The trial court rejected the substance of this argument in its order denying Petitioner’s
post-trial motion to set aside the verdict, holding that no confrontation issue had arisen because
the juror’s conduct was “no more than the application of everyday perceptions and common
sense,” which “does not taint the subsequent verdict.” (Dkt. 7 (quoting People v. Brown, 48

19

N.Y.2d 388 (1979).) The Appellate Division adopted substantially the same reasoning. New York
v. Chin, 897 N.Y.S.2d 106, 107-08 (2010).
As noted above, 28 U.S.C. § 2254 authorizes this Court to grant habeas relief only where
“the adjudication of the claim . . . resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established federal law, as determined by the Supreme Court
of the United States.” 28 U.S.C. § 2254(d)(1). The analysis under § 2254(d)(1) proceeds in two
steps. Jackson v. Conway, 763 F.3d at 133-34. “The first is to identify the governing ‘clearly
established Federal law.’” Id. (quoting Marshall v. Rodgers, 133 S. Ct. 1446, 1449 (2013)). “The
second asks whether, in the context of the petitioner’s case, the state court’s decision was contrary
to or an unreasonable application of that clearly established precedent.” Id.
1. “Clearly Established” Federal Law
Petitioner’s claim of jury misconduct rests upon the general principle, embodied in the
Sixth Amendment to the U.S. Constitution, that “the evidence developed against a defendant shall
come from the witness stand in a public courtroom where there is full judicial protection of the
defendant’s right of confrontation, of cross-examination, and of counsel.” Parker v. Gladden, 385
U.S. 363, 364 (1966)); Turner v. Louisiana, 379 U.S. 466, 472-73 (1965) (same); see also Dkt. 1
(Pet.’s Br.) at 60 (substantially stating this principle). This general principle is clearly established
by Supreme Court precedent. See Parker, 385 U.S. at 364; Turner, 379 U.S. at 473; Irvin v. Dowd,
366 U.S. 717, 723 (1961).

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2. “Contrary to” or “Unreasonable Application of” Clearly Established Law
In the second step of analysis under § 2254, a Petitioner must show that the State court’s
decision was “contrary to” or an “unreasonable application of” the clearly established principle
that was identified in step one.
A State court decision is “contrary to” a clearly established principle if (1) “the state court
reached a conclusion of law that directly contradicts a Supreme Court holding,” or (2) “the state
court arrived at a result opposite to that reached by the Supreme Court when presented with ‘facts
that are materially indistinguishable from the relevant Supreme Court precedent.’” Jackson v.
Conway, 763 F.3d at 134 (quoting Williams v. Taylor, 529 U.S. 362, 405 (2000)).
Petitioner asserts that the general principle stated above was violated when members of the
jury—after deliberations had begun, outside the courtroom and outside the presence of other
jurors—conducted their own home “experiments” to determine whether it was possible to identify
someone who was in the passenger side of a vehicle from a distance of 90 feet. (Dkt. 1 at ECF 5;
Dkt. 1 (Pet.’s Br.) at 56-61; Dkt. 7 (4/18/12 Mem.) at 34-37.) The results of those experiments,
Petitioner argues, amounted to testimony from an unsworn witness who was not subject to crossexamination in the courtroom, in violation of Petitioner’s confrontation rights under the Sixth
Amendment.
Petitioner’s argument, which is far from frivolous, is grounded on the general principle that
“the evidence developed against a defendant shall come from the witness stand in a public
courtroom.” At the same time, however, federal law recognizes that a criminal defendant’s rights
are not violated any time a juror considers information that was not introduced formally at trial,
and that, in reaching a verdict, a jury may rely upon “the fund of ordinary experience that [each
member of the jury] may bring to the jury room.” Bibbins v. Dalsheim, 21 F.3d 13, 17 (1994).

21

Given the tension between these basic tenets of jury deliberation, Petitioner’s claim of juror
misconduct calls for a closer examination of the general principle on which he relies, namely, that
“the evidence developed against a defendant shall come from the witness stand in a public
courtroom where there is full judicial protection of the defendant’s right of confrontation, of crossexamination, and of counsel.” The Supreme Court cases employing this principle are Irvin v.
Dowd, 366 U.S. 717 (1961), Turner v. Louisiana, 379 U.S. 466 (1965), and Parker v. Gladden,
385 U.S. 363 (1966).
In Irvin v. Dowd, a prisoner sought habeas relief based on a state trial court’s denial of his
motion to transfer venue away from a community where both the crime and the trial had received
extensive media coverage. 366 U.S. at 722. The media coverage included, among other things,
details of the crime, the accused’s criminal background, purported lineup identifications,
a purported lie-detector test, and a purported confession of guilt by the accused. Id. at 722-23. In
ruling for the prisoner, the Supreme Court held that the trial court’s denial of the prisoner’s motion
to transfer venue—and the juror bias that existed as a result—violated the prisoner’s constitutional
right to an impartial jury that renders a verdict “based upon the evidence developed at trial.”
Id. at 722. The Supreme Court also noted, however, that “[i]t is not required that the jurors be
totally ignorant of the facts and issues involved.” Id. at 722. Rather, habeas relief was appropriate
in Irvin because of the “clear and convincing” evidence of a “buildup of prejudice” in the
community about the prisoner. Id. at 722-23; see also Turner v. Louisiana, 379 U.S. at 473 (describing
Irvin as a case in which the Court held that “the conviction could not constitutionally stand because the
jury had been infected by prejudice before the actual trial proceedings had commenced”).
In Turner v. Louisiana, a prisoner sought habeas relief based on allegedly improper influence
exerted on the jury by two principal witnesses for the prosecution. 379 U.S. at 466-67. The improper

22

influence arose when the two witnesses, who also happened to be members of law enforcement, were
given responsibility for monitoring the sequestration of the very jury before which they would later give
testimony. Id. Throughout the sequestration, the two law enforcement witnesses were continuously in
the company of the jurors; they drove the jurors to restaurants for their meals, ate with them, conversed
with them, and even did errands for them. Id. at 468. In ruling for the petitioner, the Supreme Court
explained that the extensive mingling and communication between the witnesses and the jurors
“subvert[ed] the[] [Constitution’s] basic guarantee[]” that “the evidence developed against a defendant
shall come from the witness stand in a public courtroom where there is full judicial protection of the
defendant’s right of confrontation, of cross-examination, and of counsel.” Id. at 474.
In Parker v. Gladden, a petitioner sought habeas relief based on improper statements made by
the trial court’s bailiff. During trial, before deliberations began, the bailiff told the jury that the petitioner
was “a wicked fellow . . .[;] he is guilty.” 385 U.S. at 363-64. The Supreme Court held that this
statement amounted to testimony against the petitioner, which should have been subject to confrontation
and cross-examination by the petitioner. Notably, as in Turner, the Supreme Court reaffirmed that, as a
constitutional matter, “the evidence developed against a [criminal] defendant shall come from the witness
stand in a public courtroom where there is full judicial protection of the defendant’s right of confrontation,
of cross-examination, and of counsel.” Id. at 364.
In this Court’s view, the kind of improper jury influence at issue in Irvin, Turner, and Parker is
factually distinguishable from the “jury misconduct” that Petitioner alleges in this case. In each of the
precedent cases, the jury was exposed to an external influence that was likely to prejudice the jury in its
views of the facts that would later be presented at trial. Irvin, 366 U.S. at 722-23 (media coverage
detailing defendant’s criminal history and suggesting his guilt); Turner, 379 U.S. at 466-67
(comingling of jury and key witnesses for the prosecution during sequestration); Parker, 385 U.S.

23

at 363-64 (bailiff’s assertion to jurors that defendant was “wicked” and “guilty”). None of these
cases involved home “experiments” by the jurors to assess the credibility of a witness’s testimony. Nor
did they involve information that could reasonably be described as part of “the fund of ordinary
experience that [each member of the jury] may bring to the jury room[,]” such as a person’s ability
to identify someone from a distance of 90 feet. Bibbins, 21 F.3d at 17. Indeed, in Irvin, Turner, and
Parker, the information improperly injected into the jury’s deliberations was outside their normal
experience and knowledge, and was likely to corrupt or taint the actual evidence introduced at trial.
Given these factual discrepancies, the Court cannot conclude that the State court’s denial
of Petitioner’s motion to set aside the verdict “arrived at a result opposite to that reached by the
Supreme Court when presented with ‘facts that are materially indistinguishable from the relevant
Supreme Court precedent.’” Jackson v. Conway, 763 F.3d at 134 (quoting Williams v. Taylor, 529
U.S. 362, 405 (2000)).
Having ruled that the State court’s decision here was not “contrary to” Supreme Court
precedent, the Court considers whether it was an “unreasonable application” of the general
principle that “the evidence developed against a defendant shall come from the witness stand in a
public courtroom.” Parker v. Gladden, 385 U.S. 363, 364 (1966)). “In this analysis, a state court’s
‘unreasonable’ application of law is not synonymous with an ‘incorrect’ or ‘erroneous’ decision.”
Jackson, 763 F.3d at 135 (quoting Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). “Instead, the state
court’s application must be ‘objectively unreasonable,’ which . . . requires ‘some increment of
incorrectness beyond error.’” Id. (quotation omitted). “If a legal rule is very specific, then the
range of reasonable applications of that rule is correspondingly narrow.” Id. (citing Yarborough
v. Alvarado, 541 U.S. 652, 664 (2004)). “By contrast, ‘the more general the rule, the more leeway
state courts have in reaching outcomes in case-by-case determinations.’” Id. (quoting Alvarado,

24

541 U.S. at 664). “In short, the standard under the unreasonable application prong of § 2254(d)(1)
is difficult to meet, and a state court’s determination that a claim lacks merit precludes federal
habeas relief so long as fairminded jurists could disagree on the correctness of the state court’s
decision.” Id. (quotations omitted).
Taken literally, the principle on which Petitioner relies is a bright-line rule barring the jury
from considering any facts that are not introduced at trial. One could argue, therefore, that the
“range of reasonable applications of that rule is correspondingly narrow.” Jackson, 763 F.3d at
135. However, as noted above, given the competing principle that a jury may rely upon “the fund
of ordinary experience that [each member of the jury] may bring to the jury room,” Bibbins, 21
F.3d at 17, the Court does not construe the principle in question literally. See supra. Instead,
reading the general principle in light of Irvin, Turner, and Parker, the Court views the principle at
issue as a more general one, whereby the Constitution is violated when the jury is exposed to an
external influence that is likely to prejudice the jury’s assessment of the evidence presented at trial or its
verdict irrespective of that evidence.
In this regard, the Court takes guidance from the Second Circuit’s decisions in United States ex
rel. Owen v. McMann, 435 F.2d 813 (2d Cir. 1970), and Bibbins v. Dalsheim, 21 F.3d 13 (2d Cir. 1994).
In McMann, the Second Circuit affirmed an order granting habeas relief based on a State court’s refusal
to vacate a verdict where certain members of the jury, who happened to know certain information about
the defendant in that case, told other members of the jury in closed deliberations that “the defendant had
been in trouble all his life; that he had been suspended from the police force . . .; [and] that he had been
involved in a fight in a tavern,” among other things. McMann, 435 F.2d at 815-16. By contrast, in
Bibbins, the Second Circuit affirmed an order denying habeas relief where the alleged jury misconduct
in question was a single juror’s statement, in closed deliberations, that no businesses in a particular area

25

of town would have been open at a certain time of day. Bibbins, 21 F.3d at 17-18. As the Second Circuit
explained in McMann, “[t]he touchstone of decision in a case such as we have here is thus not the mere
fact of infiltration of some molecules of extra-record matter, with the supposed consequences that the
infiltrator becomes a ‘witness’ and the confrontation clause automatically applies, but the nature of what
has been infiltrated and the probability of prejudice.” McMann, 435 F.2d at 818.
As a technical matter, the Court does not treat McMann and Bibbins as “refin[ing] or sharpen[ing]
a general principle of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court
has not announced.” Jackson, 763 F.3d at 135 (quoting Marshall v. Rodgers, 133 S. Ct. 1446, 1450
(2013)) (emphasizing that courts “must scrupulously avoid using [lower court] decisions” in this
manner). Rather, the Court views McMann and Bibbins as confirmation that, although the Supreme
Court has established the general principle that a jury’s verdict must rest solely on evidence introduced
at trial, the touchstone for determining whether an improper external influence or the improper injection
of information into the jury’s deliberations is “the nature of what has been infiltrated and the probability
of prejudice.” McMann, 435 F.2d at 818. This practical approach is also consistent with the Supreme
Court’s decisions in Irvin, Turner, and Parker. See supra.
Applying this approach here, the Court cannot find that the State court’s denial of Petitioner’s
motion to set aside the verdict based on alleged juror misconduct was “objectively unreasonable,” as
would be required to grant habeas relief. The New York trial and appellate courts both viewed the jurors’
alleged home “experiments” as non-prejudicial because they were tantamount to “a casual observation
of a common, everyday experience which was readily available to any of them without the benefit of any
special expertise.” New York v. Chin, 897 N.Y.S.2d 106-07 (App. Div. 2010). Regardless of how this
Court might resolve the same issue had it arisen in a jury trial in this Court, the Court cannot find that the
State courts’ resolution of the issue was “objectively unreasonable” under the Supreme Court’s relevant

26

decisions in Irvin, Turner, and Parker. See Jackson, 763 F.3d at 135 (“[T]he standard under the
unreasonable application prong of § 2254(d)(1) is difficult to meet, and a state court’s
determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists
could disagree on the correctness of the state court’s decision.” (quotations omitted)). Accordingly,
the Court denies habeas relief on the basis of the alleged juror misconduct.6
E.

Sentencing

Petitioner argues that the trial court violated his constitutional rights by issuing a “quickdraw” and overly severe sentence. (Dkt. 1 at ECF 9; Dkt. 1 (Pet.’s Br.) at 47-55.) First, Petitioner
argues that the trial court denied him due procedural process, in violation of the Fourteenth
Amendment to the U.S. Constitution, by issuing a sentence of 25 years’ imprisonment—the
maximum authorized sentence—without giving due consideration to the evidence presented at trial
and Petitioner’s submissions in support of leniency. (Dkt. 1 (Pet.’s Br.) at 47-55.) Second,
Petitioner argues that his sentence of 25 years’ imprisonment is a sentence so severe that it violates
the Eighth Amendment to the U.S. Constitution. (Id.)
With respect to Petitioner’s due process claim, the Court cannot conclude that the trial
court’s procedure for sentencing Petitioner gives grounds for habeas relief. The trial court entered
Petitioner’s sentence after a hearing in which the court heard testimony from the victim’s mother
(who requested the maximum authorized sentence) and Petitioner’s counsel. (Sentencing Tr.) The
court also considered a pre-sentence report prepared by the probation department, which

6

Though the Court need not reach this issue, even if the Court had found that the jurors’
home “experiments” violated Petitioner’s Sixth Amendment rights, the Court would still not grant
Petitioner habeas relief, because any such error was harmless, given the substantial and direct
evidence of Petitioner’s guilt, without Croal’s identification. Jackson, 763 F.3d at 140 (“[A]
federal court may overturn a state conviction only when the constitutional violation ‘had a
substantial and injurious effect or influence in determining the jury’s verdict.’” (quoting Brecht,
507 U.S. at 637)).
27

Petitioner’s counsel had an opportunity to review and argue against during the sentencing hearing.
(Sentencing Tr. 7-14.) Furthermore, Petitioner’s counsel expressly told the trial court, during
sentencing, that Petitioner would not be speaking at sentencing on his counsel’s instructions.
(Sentencing Tr. 7.) Other than the swiftness with which the trial court issued a sentence after
Petitioner’s counsel made his arguments, Petitioner does not identify any flaw in the procedure
used by the trial court to arrive at the imposed sentence, let alone a procedural flaw that satisfies a
ground for habeas relief under 28 U.S.C. § 2254(a). The Court, therefore, denies habeas relief on
this ground.
With respect to Petitioner’s Eighth Amendment claim, the Court agrees with the
Respondent: nothing in the Supreme Court’s Eighth Amendment case law suggests that a prison
term of 25 years for first-degree manslaughter constitutes a penalty so severe as to violate the
proportionality requirements of the Eighth Amendment. (Dkt. 7 (Respondent’s Br.).) Moreover,
the Second Circuit has indicated that habeas relief cannot be granted based on the length of a
prison sentence under the Eighth Amendment where, as here, a State court’s sentence falls within
the authorized statutory range. See White v. Keane, 969 F.2d 1381, 1383-84 (2d Cir. 1992).
Accordingly, the Court also denies habeas relief on this ground.
CONCLUSION
For the reasons set forth above, the Court denies Petitioner’s application for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Because Petitioner has not made a substantial
showing of a denial of a constitutional right, no certificate of appealability shall issue.
See 28 U.S.C. § 2253(c)(2). Additionally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal from this Order would not be taken in good faith, and, therefore, in forma pauperis

28

status is denied for purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Clerk of Court is respectfully requested to close this case.

SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge

Dated: August 29, 2017
Brooklyn, New York

29