Edwards v. Capra

Filing 13

MEMORANDUM AND ORDER: For the reasons stated above, the Petition is DISMISSED. No Certificate of Appealability shall issue because Petitioner has failed to make a "substantial showing of the denial of a constitutional right," as required under 28 U.S.C. § 2253(c)(2). So Ordered by Judge Nicholas G. Garaufis on 10/4/2016. (c/m to pro se; fwd'd for jgm) (Lee, Tiffeny)

UNITED STATES DISTRICT COURT

T/f

EASTERN DISTRICT OF NEW YORK
-X

HAKIM EDWARDS,

MEMORANDUM & ORDER

12-CV-4654(NGG)

Petitioner,

-against-

MICHAEL CAPRA,

Respondent.
-X

NICHOLAS G. GARAUFIS,United States District Judge.
Before the court is Petitioner Hakim Edwards' pro se Petition for a Writ of Habeas

Corpus (the "Petition") under 28 U.S.C. § 2254. (Pet.(Dkt. 1).) Petitioner asserts multiple

challenges to his 2007 state conviction for criminal possession ofa weapon. (IdJ For the
reasons set forth below,the Petition is DISMISSED.
I.

BACKGROUND

A. Facts Underlying Arrest^
On December 11, 2005,Police Officer Miguel Marte was on patrol with three other

police officers (collectively, the "Arresting Officers") in Brooklyn, NY. (Pet'r's Br. on Appeal

(Resp't's Rasp,to Order to Show Cause ("State's Resp.")(Dkt. 12)Ex. B)at 4.) The Arresting
Officers pulled over a livery cab that was driving at a "high rate ofspeed," which Officer Marte
estimated at "approximately ...35 or 45 miles per hour." Hd.I As Officer Marte approached

the vehicle, he observed Petitioner sitting "partially bent" in rear passenger seat, then sliding
over to the driver's side. rid.I Petitioner "tried to kick something on the ground ofthe vehicle,"

^ Except as otherwise indicated, these facts are drawn from Petitioner's account ofthe evidence presented at trial, as
described in his briefon direct appeal. Citations to the trial and hearing transcripts are omitted throughout this
section.

1

then exited the vehicle. (IdJ Officer Marte "[shone] his flashlight into the backseat ofthe car
and observed a silver firearm on the floor of the passenger's side, which another officer
recovered." (Id. at 4-5.) The firearm was a loaded .357 Magnum revolver. (Aff. in Opp'n to

Pet.("Oziemblewski Aff.")(contained in State's Resp.)K 5.) Petitioner was arrested and
indicted for criminal possession of a weapon in the third and fourth degrees. (Pet'r's Br. on
Appeal at 3; see also Oziemblewski Aff. at ^ 7.)
B. Criminal Trial Proceedings

Before the trial began, defense counsel moved to suppress certain evidence. (See

Oziemblewski Aff. 8.) Defense counsel argued that the police stop was unlawful, and that the
court should therefore suppress the evidence flowing therefrom, including the firearm collected

from the livery cab, as well as certain statements made by Petitioner to the Arresting Officers

regarding firearm ownership. (Id.

6, 8.) The New York State Supreme Court, Kings County

(the "State Trial Court") held a suppression hearing and denied the motion. (Id ^ 8; see also
Suppression Hg. Tr.(contained in State's Resp. Ex. A)at 55-61.)

Following ajury trial. Petitioner was convicted on March 13,2007,of Criminal

Possession of a Weapon in the Third Degree under N.Y. Penal Law § 265.02. (Oziemblewski
Aff. 10; see also Trial Tr.(contained in State's Resp. Ex. A)at 611-12.) Because Petitioner
had two prior "violent felony" convictions,the State Trial Court adjudicated Petitioner to be a

"persistent violent felony offender" under New York law.^ (Sentencing Tr.(contained in State's

^ A "persistent violent felony offender" is a person who stands convicted of an enumerated "violent felony offense'
under New York State law "after having previously been subjected to two or more predicate violent felony
convictions." N.Y. Penal Law § 70.08(1). Persistent violent felony offenders are subject to a statutory sentencing
range with a maximum ofterm of life imprisonment and a minimum term that varies based on the underlying
offenses. See id. SS 70.08(2VGL

Resp. Ex. A)at 39.) Pursuant to that designation, the court sentenced Petitioner to a prison term
offifteen years to life. (Id. at 43).
C. Direct Appeal

In April 2009,Petitioner appealed hisjudgment of conviction to the New York Supreme
Court Appellate Division, Second Department(the "State Appellate Court"). (Oziemblewski
Aff. H 13.) Petitioner filed two briefs through counsel and an additional brief pro se. (See id.
13-17.) Collectively, these briefs raised the following six arguments:

(1) The officer's testimony that a car was driving at a "high rate of
speed," without any evidence supporting his claim or establishing
the relevant speed limit, was insufficient to establish probable cause
to stop the car;

(2) The alleged hearsay testimony that the cab driver did not have a
"discussion" vvdth the previous passengers regarding a gun in the
backseat deprived [Petitioner] of his due process right to a fair trial,
since, according to [Petitioner], it was the only evidence that the gun
was not in the cab before defendant entered[;]

(3) The State [deprived Petitioner] of his right to due process by its late
disclosure of the cab driver's identity and statements[, in violation
of Bradv v. Maryland. 373 U.S. 83 (1963), and People v. Rosario.
9N.Y.2d 286(1961)];

(4) [Petitioner] was deprived ofthe right to present a defense at the pretrial suppression hearing because his attorney failed to request an
adjournment to obtain the presence of the cab driver and the
arresting police officers at the hearing,thereby exonerating the State
ofits burden at the suppression hearing[;]
(5) [Petitioner's] prior violent felony conviction was obtained in
violation of[Petitioner's] constitutional rights and [was]improperly
used in adjudicating him a persistent violent felony offender in the
instant case[; and]

(6) [Petitioner's] sentencing as a persistent violent felony offender
violated his constitutional rights to due process and a jury trial,...
because it relied on facts not foimd by ajury.

(Id.(other alterations, omissions, and footnotes omitted)^; see also Pet'r's Br. on Appeal
(arguments(1)and (2)); Pet'r's Pro Se SuppL Br. on Appeal (State's Resp. Ex. D)
(arguments
(3)to (5)); Pet'r's Suppl. Br. on Appeal(State's Resp. Ex. F)(argument(6)).)

On March 15, 2011,the State Appellate Court affirmed Petitioner's judgment of

conviction, rejecting all six ofPetitioner's arguments."^ See People v. Edwards. 920 N.Y.S.2d 96
(2011)("Edwards I"V Defendant applied for leave to appeal to the New York Court of Appeals,
seeking review of all six arguments made on appeal to the Appellate Division. (Oziemblewski

Aff.^ 20.) On June 9,2011, Petitioner was denied leave to appeal. People v. Edwards.
952 N.E.2d 1097(2011)("Edwards H"! Defendant remains "incarcerated at the Sing Sing

Correctional Facility pursuant to the judgment of conviction." (Oziemblewski Aff.f 12.)
D. State Habeas Petition

On September 8, 2011,Petitioner submitted the Petition under 28 U.S.C. § 2254,

asserting the same six arguments as on direct appeal. (See Pet.) The State ofNew York ("the
State"), on behalf of Respondent Michael Capra, submitted its opposition to the Petition on

February 19,2013. (See State's Resp.) The State argues that the Petition should be dismissed as
untimely or, in the alternative, denied as to all six claims. (Oziemblewski Aff. ^ 25.) Petitioner

did not reply to the State's Response, and the time to do so has now passed. (See Order to Show
Cause (Dkt. 4)(directing that Petitioner's reply, if any, must be filed "within 21 days ofthe date
ofreceipt by him of a copy ofthe [State's response]").)

^ The arguments have been reordered and renumbered to reflect the order in which they will be addressed in this
opinion.
The State Appellate Court opinion discussed and rejected Petitioner's arguments as to probable cause(argument
(1)), hearsay(argument(2)), and the constitutionality ofthe persistent violent felony offender statute (argument(6)),
and concluded by saying that Petitioner's "remaining contentions, including those raised in his pro se supplemental
brief, are without merit." Edwards I. 920 N.Y.S.2d at 96-97.

n.

DISCUSSION

The court finds that the Petition is untimely and should be dismissed on that ground
alone. Even ifthe Petition had been timely brought, however, it would be denied because each
ofPetitioner's six claims is either procedurally barred or substantively without merit.
A. Timeliness of the Petition

1. Legal Standard

The Antiterrorism and Effective Death Penalty Act of 1996("AEDPA")^ imposes a oneyear statute oflimitations on state prisoners seeking habeas corpus reliefin federal court.

28 U.S.C.§ 2244(d). Petitioner's one-year filing period began on "the date on which the
judgment became final by the conclusion of direct review or the expiration ofthe time for

seeking such review." Id § 2254(d)(l)(A).^ In New York,a state judgment becomes "final"
after two events have occurred:(1)"the completion of direct appellate review in the state court

system"; and(2)"either the completion ofcertiorari proceedings m the United States Supreme

Court, or—^ifthe prisoner elects not to file a petition for certiorari—[after] the [90-day period] to
seek direct review via certiorari has expired." Williams v. Artuz. 237 F.Sd 147,151 (2d Cir.

2001); see also Sup. Ct. R. 13(1)(allowing 90 days from the conclusion offinal state court
review to petition for a writ of certiorari).

5 Pub. L. No. 104 132,110 Stat. 1214(1996).

^ There are three other potential "triggering events" for the statute oflimitations, none of which apply in this case:
(1) the date on which the impediment to filing an application created by State action
in violation of the Constitution or laws of the United States is removed, if the

applicant was prevented from filing by such State action;
(2) the date on which the constitutional right asserted was initially recognized by the
Supreme Court, ifthe right has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral review; or
(3) the date on which the factual predicate ofthe claim or claims presented could have
been discovered through the exercise ofdue diligence.
28 U.S.C. §§ 2254(d)(l)(B)-(D). Also not relevant is the provision for tolling the deadline during
the pendency of"a properly filed application for State post-conviction or other collateral review
with respect to the pertinentjudgment." Id § 2254(d)(2).

"A petitioner may secure equitable tolling ofthe limitations period in certain 'rare and
exceptional circumstance[s].'" Martinez v. Superintendent ofE. Corr. Facility. 806 F.3d 27,31
(2d Cir. 2015), as corrected(Nov. 12, 2015)(quoting Smith v. McGinnls,208 F.3d 13,17

(2d Cir. 2000)). Specifically,"[t]he petitioner must establish that(a)'extraordinary
circumstances' prevented him ftom filing a timely petition, and(b)he acted with 'reasonable
diligence' during the period for which he now seeks tolling." Id (quoting Smith, 208 F.3d
at 17"): see also Holland v. Florida. 560 U.S. 631,649(2010).
2. Application

The New York Court of Appeals denied Petitioner's request for leave to appeal on

June 9, 2011. S^ Edwards II. 952 N.E.2d 1097. Consequently,Petitioner's conviction became
"final" under AEDPA on September 7, 2011, after the expiration ofthe 90-day period to seek
Supreme Court review. Petitioner's one-year statute oflimitations thus expired on

September 7, 2012. The Petition was submitted one day later, on September 8, 2012.^
Petitioner has not requested equitable tolling, nor has he pled facts that show

extraordinary circumstances or due diligence. "Generally, a litigant seeking equitable tolling
bears the burden of establishing [these] two elements." Mottahedeh v. United States.

794 F.3d 347,352(2d Cir. 2015)(quoting Pace v. DiGuglielmo.544 U.S.408,418 (2005)). The
court thus has no basis upon which to toll the statute oflimitations, even for such a small
deviation. See Walker v. Graham. 955 F. Supp. 2d 92,105(E.D.N.Y. 2013)("Courts have
declined to equitably toll the limitation period for petitions filed untimely by even one day.");

^ The Petition was not received by the court until September 13,2012. (See Pet. at 1.) Under the "prison mailbox
rule," however,"a pro se prisoner's habeas petition is deemed filed at the moment he gives it to prison officials"
rather than the date the petition is received by the court. Hardv v. Conwav. 162 F. App'x 61,62(2d Cir. 2006)

(citation omitted). Petitioner does not specify the date on which he gave the Petition to a prison official. His
signature on the Petition, however, is dated September 8,2012, and so the court finds that date to be the earliest
possible date on which Petitioner could have submitted the Petition.

cf. Day V. McDonough,547 U.S. 198, 205-06(2006)("The AEDPA statute oflimitation

promotes judicial efficiency and conservation ofjudicial resources, safeguards the accuracy of
state courtjudgments by requiring resolution of constitutional questions while the record is j&esh,
and lends finality to state courtjudgments within a reasonable time."(quoting Acosta v. Artuz.
221 F.3d 117,123(2d Cir. 2000)).
The court finds that the Petition is time-barred and must therefore be dismissed. As the

following sections explain, however,the Petition would not survive review on the merits even if
it had been timely submitted.
B. Standards for State Habeas Review

A district court is empowered to "entertain an application for a writ of habeas corpus on

behalf of a person in [state custody] only on the ground that he is in custody in violation ofthe
Constitution" or other federal law. 28 U.S.C. § 2254(a). A state habeas petitioner must

generally meet three requirements to obtain relief:(1)exhaustion;(2)lack ofa procedural bar;
and(3)satisfaction of AEDPA's deferential standard of review.
1. Exhaustion

A state habeas petition "shall not be granted unless it appears that...the applicant has
exhausted the remedies available in the courts ofthe State." Id. § 2254(b)(1). To satisfy that

requirement,"the petitioner must have informed the state court of both the factual and the legal
premises ofthe claim he asserts in federal court." Rush v. Lemoke.500 F. App'x 12,14
(2d Cir. 2012)(citation omitted).
2. Procedural Default

"A federal habeas court... may not review a related state court decision if that decision
rests on a state law ground that is 'independent ofthe federed question and adequate to support

the judgment.'" Fulton v. Graham. 802 F.3d 257,262(2d Cir. 2015)fquoting Cone v. Belh
7

556 U.S. 449,465 (2009)). "This prudential rule applies 'whether the state law ground is
substantive or procedural.'" Id ^quoting Coleman v. Thompson,501 U.S. 722,729(1991)).
Additional procedural bars attach to particular types of substantive claims, as discussed below.
3. AEDPA Deference

If a state court reached the merits of a federal claim asserted in a § 2254 habeas petition,
a federal court reviews the state court's decision under the deferential standard set forth in

AEDPA. Habeas relief may only be granted if the state court's adjudication:

(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 ofthe 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.
28 U.S.C. § 2254(d).

Under the first prong, the words "clearly established federal law" refer to "the holdings,
as opposed to the dicta, ofthe Supreme Court's decisions as ofthe time ofthe relevant
state-court decision." Howard v. Walker,406 F.Sd 114,122(2d Cir. 2005). The central

question is "not whether the state court was incorrect or erroneous in rejecting petitioner's claim,
but whether it was objectively unreasonable in doing so." Rvan v. Miller, 303 F.3d 231,245

(2d Cir. 2002)(internal quotation marks, alterations, and emphases omitted). A federal court

should not displace a state court's ruling on the merits so long as "fairminded jurists could
disagree on the correctness ofthe state court's decision." Woods v. Etherton,

U.S.

,

136 S. Ct. 1149, 1151 (2016)(quoting Harrington v. Richter. 562 U.S. 86,101 (2011)).
With regard to the second AEDPA prong,"a federal court is required to presume that a
state court's factual findings are correct and to place on the petitioner the burden ofrebutting this

presumption by clear and convincing evidence." Fulton. 802 F,3d at 262(citing 28 U.S.C.
§ 2254(e)(1)).
C. Review of Petitioner's Habeas Claims

The Petition asserts the same six arguments that the State Appellate Court considered on

direct review, and upon which Petitioner sought leave to appeal to the New York Court of
Appeals. See supra Sections I.C-D. The court therefore finds that Petitioner has satisfied the
exhaustion requirement with regard to all six claims. S^ 28 U.S.C. § 2254(b)(1). The court
finds, however,that each claim fails under either a procedural bar or AEDPA's deference
standard.

1. Lack ofProbable Cause

Petitioner claims that the Arresting Officers lacked probable cause to stop the livery cab,

and that the State Trial Court should therefore have suppressed the resulting evidence (i.e., the
recovered gun and Petitioner's statements to the Arresting Officers). (Pet. at 5.) Petitioner

argues that Officer Marte's testimony about the cab's "high rate ofspeed" was unsupported by
any evidence "that he had any experience estimating the speed ofvehicles," and also that there

was no testimony as to "the applicable speed limit in the area" where the cab was stopped. (Id.)
Petitioner cites to the Sixth and Fourteenth Amendments ofthe United States Constitution (see

id.), but this argument is properly characterized as arising under the Fourth Amendment, which
protects individuals "against unreasonable search and seizures" except "upon probable cause,"
U.S. Const, amend. IV.^ Because this claim has already been fully adjudicated by the State
Appellate Court, it is procedurally barred fi-om habeas review in this court.

* The court is cognizant ofits obligation to "construe the submissions ofa pro se litigant liberally and interpret them
'to raise the strongest arguments that they suggest."' Keeling v. Hars. 809 F.3d 43,47 n.2(2d Cir. 2015)(quoting
Triestman v. Fed. Bureau ofPrisons. 470 F.3d 471,474(2d Cir. 2006)).

a. Legal Standard

"As a general rule, Fourth Amendment claims are not reviewable by the federal courts

when raised in a [Section 2254 petition] unless the state prisoner shows that he or she has not had

a full and fair opportunity to litigate that claim in the state court." Graham v. Costello. 299 F.3d
129,133-34(2d Cir. 2002)(citing Stone v. Powell. 428 U.S. 465,481-82(1976); other citations
omitted). There are two circumstances when a federal court may find that a petitioner has not
received a "full and fair opportunity to litigate":(1)"Ifthe state provides no corrective

procedures at all to redress Fourth Amendment violations"; and(2)ifthe state provides such

procedures, but "the defendant is precluded from utilizing [them] by reason ofan unconscionable
breakdown in that process." Singh v. Miller, 104 F. App'x 770,772(2d Cir. 2004)(quoting
Gates V. Henderson. 568 F.2d 830,840(2d Cir. 1977)(en banc)).
b. Application

Petitioner's Fourth Amendment argument was rejected at a pre-trial suppression hearing

and again on direct appeal. Edwards 1. 920 N.Y.S.2d at 96("The suppression court correctly
determined that the police had probable cause to stop the livery cab in question."). (See also

Suppression Hg. Tr. at 56.) "Even if[Petitioner] were correct in his allegation that the [State

Appellate Court] erroneously decided this issue, a petitioner caimot gain federal review ofa
fourth amendment claim simply because the federal court may have reached a different result."
Canellan v. Rilev. 975 F.2d 67,71 (2d Cir. 1992). Petitioner has not alleged, nor can he show,

that he qualifies for either ofthe exceptions based on a lack of"full and fair opportunity to
litigate."

With regard to the first exception. New York provides corrective procedures for alleged
Fourth Amendment violations in Article 710 ofthe New York Criminal Procedure Law.

"[F]ederal courts have approved [this] procedure ... as being facially adequate." Id. at 70 n.l.
10

The second exception is likewise inapplicable. "The record reveals that at every stage ofthe
state proceedings,[Petitioner] was afforded an ample opportunity to vindicate his Fourth
Amendment rights," which is a clear sign "that no 'unconscionable breakdown' occurred."
Singh. 104 F. App'x at 772.

Because Petitioner had a "full and fair opportunity to litigate" his Fourth Amendment
claim in the state courts, the court denies this claim as procedurally barred.
2. Hearsav

Petitioner next contends that the State Trial Court impermissibly admitted hearsay

evidence in violation of his "due process right to a fair trial." (Pet. at 5-6.) Due to the absence of
"direct evidence that petitioner physically possessed the gun," the State relied on a theory of

constructive possession based on a showing that Petitioner "'controlled]' the area from which
[the gun] was recovered." (Id at 5.) To that end,the cab driver testified "that he did not have a
'discussion' with [any of] the previous passengers regarding a gun in the car." (Id. at 6.)
Petitioner argues that the "passenger compartment ofa livery cab [is] an inherently public space

in which passengers frequently [leave] personal items," and that the driver's "damaging
testimony" deprived him ofa fair trial. (Id.)
a. Legal Standard

A federal habeas court may not review "a state court's evidentiary rulings," even ifthe
rulings were "erroneous under state law," unless "the challenged evidentiary rulings in the state
proceedings affect the fundamental fairness ofthose proceedings." McKinnon v.

Superintendent. Great Meadow Con. Facility. 422 F. App'x 69, 72-73(2d Cir. 2011)(internal
footnote and citations omitted). Fundamental unfairness occurs when "the erroneously admitted
evidence, viewed objectively in light ofthe entire record before the jury, was sufficiently
material to provide the basis for conviction or to remove a reasonable doubt that would have
11

existed on the record without it." Id. at 73 (alterations omitted)(quoting Collins v. Scully,
755 F.2d 16,19(2d Cir. 1985)).
b. Application

On direct appeal,the State Appellate Court held that the driver's testimony "did not
constitute hearsay" and was therefore properly admitted.

Edwards L 920 N.Y.S.2d at 96.

Even if that conclusion were incorrect, this court is procedurally barred from disturbing it
because Petitioner has failed to show that the admitted testimony resulted in fundamental
unfairness for two reasons. First, when defense counsel objected to the driver's testimony at
trial, the State Trial Court responded by instructing the jury that the driver's statements were

admitted "to reveal information that [the driver] did or did not have," which shed light on his
"state of mind at that time." (Trial Tr. at 316.) Defense counsel then had the opportunity to

cross-examine the driver, and specifically elicited testimony as to the number ofpassengers the
driver had picked up on the night ofPetitioner's arrest, as well as the frequency with which the
driver found left-behind items in the back seat. (See id. at 335-37.) Second,the State's case did

not rest solely on the challenged statements. The State also elicited testimony as to Petitioner's
movements within the car as the Arresting Officers approached, as well as to the low likelihood

offailing to notice a large gun lying on the floor of a small backseat area. (Mem. of Law
("State's Mem.")(contained in State's Resp.) at 23-24.)
For these reasons,the court finds that the admission ofthe driver's testimony did not

"affect the fundamental fairness ofthe proceedings" under McKinnon.422 F. App'x at 73.
Petitioner was afforded procedural fairness with ajury instruction and the opportunity for crossexamination. Moreover,the court finds that the driver's testimony about prior conversations was

not "sufficiently material to provide the basis for conviction or to remove a reasonable doubt that

12

would have existed on the record without it." Id.(quoting Collins. 755 F.2d at 19). Therefore,
Petitioner's claim is denied as procedurally barred.
3. Bradv/Rosario Violation

Petitioner alleges that the State impermissibly withheld from defense coxmsel the name of
the cab driver, as well as certain statements the driver made during an interview with the police.

(Pet. at 7-8.) Petitioner argues that the withheld evidence prejudiced his defense in violation of

Bradv v. Maryland. 373 U.S. 83(1963), as well as a related state-law doctrine under People v.
Rosario.9 N.Y.2d 286(1961). (Id) As a preliminary matter, a federal habeas court may not
adjudicate an alleged Rosario violation because the obligation to tum over Rosario material
arises entirely under state law. S^ 28 U.S.C. § 2254(a)(providing for federal habeas relief
based on violations offederal law); see also, e.g.. Kotler v. Woods.620 F. Supp. 2d 366, 395

(E.D.N.Y.2009)("[T]o the extent that [a state habeas] claim is based on a Rosario violation, it
must fail."). The court thus txims to the alleged violation ofthe federal Bradv doctrine, which
offers appropriate subject matter for federal habeas review.
a. Legal Standard

Because this claim was "adjudicated on the merits" in the State Appellate Court,^ habeas
relief is only available if the state adjudication "resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court ofthe United States." 28 U.S.C. § 2254(d)(1). AEDPA establishes a "highly
deferential standard for evaluating state court rulings... which demands that state court

'
Petitioner raised an identical Bradv argument on direct appeal. (See Pet'r's Pro Se Suppl. Br. on Appeal at 13-18.)
The State Appellate Court's opinion did not discuss Petitioner's Bradv argument in detail, but specifically stated that
all arguments not fiilly discussed in the opinion were found to be "without merit." Edwards 11. 920 N.Y.S.2d at 97.
The Second Circuit has held that such statements are sufficient to constitute "adjudication on the merits" for the
purposes of AEDPA deference. See Murden v. Artuz. 497 F.3d 178, 198(2d Cir. 2007) ("[A]n unexplained ruling
on &e merits is also entitled to AEDPA deference."(citations omitted)).
13

decisions be given the benefit ofthe doubt." Woodford v. Visciotti, 537 U.S. 19, 24(2002)

(internal quotation marks and citations omitted).
"To establish a Brady violation" under applicable Supreme Court precedent,"a defendant
must show that(1)the evidence at issue is favorable to him because it is either exculpatory or

impeaching,(2)the government suppressed that evidence, and(3)[the defendant] was thereby
prejudiced." United States v. Fernandez. 648 F. App'x 56, 61 (2d Cir. 2016)(summary order)
(citing Strickler v. Greene,527 U.S. 263,281-82(1999)).
b. Application

Petitioner has failed to show that the state courts unreasonably applied the Bradv
doctrine. With regard to the first prong,the cab driver was not an exculpatory witness because
his testimony was consistent with the State's affirmative case. tSee State's Mem. at 34-35
(describing the trial record).) Likewise,Petitioner has not identified any allegedly suppressed

evidence that would have supported impeachment.
The court need not analyze the second prong because, even ifPetitioner were able to
show that the State impermissibly suppressed evidence. Petitioner has failed to show prejudice.
Petitioner bears the burden of establishing "a reasonable probability that, had the evidence been

disclosed to the defense, the result ofthe proceeding would have been different." Fuentes v. T.
Griffin. 829 F.3d 233,246(2d Cir. 2016)(quoting United States v. Baelev.473 U.S. 667,682
(1985)). To that end. Petitioner alleges that "the outcome of[the suppression] hearing would
have been different" had defense counsel been able to offer the cab driver's testimony as to

Petitioner's identity, namely "that he did not know"Petitioner, and that he could offer only a
"vague" description ofthe passenger in his cab on the night in question. (Pet. at 8.) Defense
counsel elicited precisely such testimony during his cross-examination at trial, however, where it
was far more relevant. (Trial Tr. at 337-38.) There is thus no basis for suspecting that the
14

alleged suppression of evidence affected the outcome ofthe suppression hearing, much less the
ultimate outcome ofthe trial.

Moreover, when defense counsel raised the alleged Bradv suppression at trial, the State

Trial Court responded by altering the trial schedule, allowing additional time before crossexamination for defense counsel to speak with the cab driver. (See id. at 129-33.) "'[A]s long as

a defendant possesses Bradv evidence in time for its effective use,' there can be no Bradv
violation." United States v. Halloran. 821 F.3d 321, 341 (2d Cir. 2016)(quoting United States v.
Coppa.267 F.3d 132,144(2d Cir. 2001)).

The court finds that the state courts did not unreasonably apply clearly established federal
law when they denied Petitioner's Bradv claim. This habeas claim is therefore denied.
4. Ineffective Assistance of Counsel

Petitioner alleges ineffective assistance ofcounsel on the basis that defense counsel
declined to call any witnesses at the suppression hearing. (Pet. at 9-10.)
a. Legal Standard
This claim, like Petitioner's Bradv claim, was adjudicated on the merits in the State

Appellate Court. Edwards 1. 920 N.Y.S.2d at 97. Petitioner therefore bears the burden of
showing that the state court unreasonably applied clear Supreme Court precedent. S^ 28 U.S.C.
§ 2254(d)(1). The Court has explained that "[cjoimsel is unconstitutionally ineffective if his
performance is both deficient, meaning his errors are 'so serious' that he no longer functions as
'counsel,' and prejudicial, meaning his errors deprive the defendant ofa fair trial." Marvland v.
Kulbicki.

U.S.

136 S. Ct. 2,3(2015)(emphasis omitted)(quoting Strickland v.

Washington.466 U.S. 668,687(1984)). "At the first step, courts must 'indulge a strong

presumption that counsel's conduct falls within the wide range ofreasonable professional
assistance.'" Lugo v. LaVallev.601 F. App'x 46,48(2d Cir. 2015)(summary order)(quoting
15

Strickland, 466 U.S. at 689). "At the second step, the inquiry is not whether counsel's error had
'some conceivable effect on the outcome ofthe proceeding,' but whether it'so undermined the

proper functioning ofthe adversarial process that the trial caimot be relied on as having produced
a just result.'" Id (quoting Strickland. 466 U.S. at 686).
b. Application
Petitioner has not met the Strickland standard. His claim of ineffective counsel is

structurally identical to his Bradv claim: Petitioner points to testimony that emerged at trial and

speculates that it would have made a material difference ifthat same testimony had been
presented earlier, at the suppression hearing. (Pet. at 9-10.) Specifically, Petitioner contends
that defense counsel should have requested an adjournment ofthe suppression hearing in order to

produce testimony from the cab driver as to the identity ofthe passenger in the cab, and also
testimony from the Arresting Officers as to certain discrepancies in their accoxints ofthe arrest.

(Id. at 10.) "Petitioner believes that had the hearing judge been able to hear these facts, the case
would have been dismissed." (Id.) Such speculation does not approach the standard necessary

to establish unconstitutionality, however. The testimony in question was more relevant for the
ultimate question of guilt at trial than for the constitutional and evidentiary questions in the

suppression hearing,to which defense counsel mounted a vigorous opposition. fSee Suppression
Hg. Tr. at 44-51.) Petitioner has not shown that counsel was so defective as to deprive him of a
fair trial, and is therefore not entitled to relief on this claim. The claim is denied.
5. Challenges to the "Persistent Violent Felonv Offender" Designation

Petitioner brings two separate challenges to his designation as a "persistent violent felony
offender"(the "Designation") under New York State law for the purposes of sentencing.^

N.Y. Penal Law § 70.08. Both claims are procedurally barred, and must therefore be denied.

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a. Prior Unconstitutional Conviction

The Designation was based on Petitioner's prior convictions in 1994 and 1996.
(Sentencing Tr. at 28-29.) Petitioner claims that the Designation was improper because he

pleaded guilty in 1994 under the belief that his conviction would be considered a non-violent
felony. (Pet. at 9.) Nonetheless,in the 1996 proceedings, the state court determined that the
1994 conviction constituted a violent felony; the State argues that this "adjudication was binding

in any future proceeding." (State's Mem.at 38-39 (citing N.Y. Crim. Proc. Law § 400.15(8)).)
Petitioner responds that a plea is only valid ifthe defendant knowingly and voluntarily accepts,
and so "[i]f a person is not told they are pleading to a violent felony," then the felony should be
deemed nonviolent. (Pet. at 9.)

Petitioner's argument was rejected in both the State Trial Court and the State Appellate
Court. Petitioner does not appear to directly challenge the constitutionality ofthose decisions,
but rather contends that this court should reach past them to correct the alleged constitutional

violation that occurred two decades ago, when the 1996 court designated his prior conviction as a

"violent felony." This claim for collateral reliefis clearly prohibited as both untimely and nonexhausted under the standards outlined above in Sections II.A and B.

In the alternative, it is possible to read Petitioner as challenging the state courts'

application ofthe "violent felon" designation procedures in Article 470 ofNew York's Criminal
Procedure Law. Any such a claim would fail on grounds of procedural default. The Supreme

Court has clearly stated that "[i]t is not the province ofa federal habeas court to reexamine statecourt determinations on state-law questions." Estelle v. McGuire. 502 U.S. 62,67-68(1991).
For these reasons, the court has no authority to consider Petitioner's claims as to the

propriety ofrelying on the 1994 conviction in his designation as a persistent violent felony
offender. The claim is denied.
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b. Sentencing Based on Facts Not Found by a Jury

In Petitioner's final claim, he attacks the constitutionality ofthe New York "violent

felony offender" statute itself. The statute instructs courts to determine "persistent violent felony
offender" status based on the existence, timing, and nature of an individual's prior convictions.

See N.Y. Penal Law § 70.08. Petitioner contends that these are questions offact, and so must be
submitted to ajury pursuant to the "jury clauses ofthe Federal and state constitutions." (Pet.

at 6-7.) With regard to the claim under the New York State Constitution, the court is precluded
from considering a state-law challenge on collateral review, as explained in the prior section.
See McGuire. 502 U.S. at 67-68.

With regard to the federal constitutional challenge, the claim is procedurally barred in
light ofthe holding on direct appeal that Petitioner's "constitutional challenge to the persistent
violent felony offender statute is unpreserved for appellate review." Edwards L 920 N.Y.S.2d
at 97(citing N.Y. Grim. Proc. Law § 470.05(2)). It is immaterial that the State Appellate Court
offered an alternative holding rejecting the merits ofPetitioner's constitutional challenge.
"Federal habeas review is foreclosed when a state court has expressly relied on a procedural

default as an independent and adequate state ground, even where the state court has also ruled in
the alternative on the merits ofthe federal claim." Rodriguez v. Schriver, 392 F.3d 505,512

(2d Cir. 2004)(alteration omitted)(quoting Velasquez v. Leonardo. 898 F.2d 7,9
(2d Cir. 1990)). Therefore, this claim is denied as procedurally barred.

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ni.

CONCLUSION

For the reasons stated above, the Petition is DISMISSED. No Certificate of

Appealability shall issue because Petitioner has failed to make a "substantial showing ofthe
denial of a constitutional right," as required under 28 U.S.C. § 2253(c)(2).
SO ORDERED.

s/Nicholas G. Garaufis

Dated: Brooklyn, New York
October

NICHOLAS G. GARAUFIS

2016

United States District Judge

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