Cardova v. Lavalley
Filing
17
DECISION & ORDER DISMISSING CASE: Petitioner's 1 Petition for a Writ of Habeas Corpus is DENIED in its entirety. A Certificate of Appealability shall not issue. The Clerk of the Court is directed to serve notice of entry of this Order on all parties and to close the case. SO ORDERED by Judge William F. Kuntz, II on 8/17/2015. C/mailed to pro se Petitioner. Electronic service upon Respondent. (Forwarded for Judgment.) (Latka-Mucha, Wieslawa)
FILED~
IN CLERK'S OFFICE
U.S. Ol.l'WUC'T COUfU llE.O.N.Y.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
* AUG 1 7 2015 *
'II 1gg{J1r
Of "'1.i~
MOOKLYN OF~E
---------------------------------------------------------------)(
GEORGE CARDOVA,
Plaintiff,
DECISION & ORDER
13-cv-1976 (WFK)
-againstTHOMAS T. LAV ALLEY,
Defendant.
---------------------------------------------------------------)(
WILLIAM F. KUNTZ, II, United States District Judge
Before the Court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 by
Petitioner George Cardova, a.k.a. Hector Pina ("Petitioner"). Petitioner seeks federal habeas
relief based on five grounds: (1) Petitioner's due process rights were violated when the Supreme
Court of Queens County, New York refused to suppress evidence of suggestive show-up
identification, (2) Petitioner's due process right to a fair trial was violated by the prosecutor's
conduct during summation, (3) Petitioner's sentence as a persistent violent felony offender
violated his due process rights and was harsh and excessive (4) ineffective assistance of trial
counsel, and (5) ineffective assistance of appellate counsel. For the reasons discussed below, the
petition for the writ of habeas corpus is DENIED in its entirety.
FACTUAL AND PROCEDURAL BACKGROUND
On November 26, 2006, Petitioner unlawfully entered the home of Miguel Simbana with
the intent to commit a crime therein ("Incident One"). Dkt. 8, Affirmation in Opposition to
Petition for a Writ of Habeas Corpus ("Affirmation") at 2. On September 7, 2007, Petitioner,
acting in concert with co-defendant Carlos Dajer; entered a home located at 61-42 172nd St.,
Flushing, New York, by knocking the screen from the window and bending the screen ("Incident
Two"). Id. Minutes after fleeing, Petitioner and Mr. Dajer were stopped by police as they were
about to enter a car about four blocks from the scene of the crime. Id. Police recovered a pair of
black gloves from each of their back pockets. Id. at 2-3. Police also recovered two ski masks,
two crow bars, two walkie-talkies, and a police scanner from the trunk of the car. Id. at 3.
If
Melissa Chan, a neighbor who observed Petitioner jump from the window and who saw Mr.
Dajer run across the lawn, positively identified them as the two people she had seen fleeing the
scene. Id at 2.
Based on the foregoing, Petitioner was charged with Burglary in the Second Degree
under New York Penal Law ("NYPL") § 140.25[2], Grand Larceny in the Fourth Degree under
NYPL § 155.30[1], Criminal Mischief in the Fourth Degree underNYPL § 145.00[1], and
Possession of Burglars Tools under NYPL § 140.35 for Incident One. Id. at 3. For Incident
Two, Petitioner was charged with Burglary in the Second Degree under NYPL § 140.25[1],
Criminal Mischief in the Fourth Degree under NYPL § 145.00[1 ], Possession of Burglars Tools
under NYPL § 140.35, and Unlawful Possession of a Radio Device under NYPL § 140.40. Id.
Following the denial of Petitioner's motion to suppress the identification testimony as
well as the property recovered upon his arrest from Incident Two, Petitioner proceeded to a jury
trial for Incident Two before Justice Barry Kron, Supreme Court, Queens County. Id. At the
conclusion of trial, Petitioner was convicted of Burglary in the Second Degree and Criminal
Mischief in the Fourth Degree. Id. Petitioner was found not guilty on the remaining charges
stemming from Incident Two. Id. at n. 2. On May 13, 2009, Petitioner was sentenced as a
persistent violent felony offender to concurrent prison terms of twenty three years to life and one
year. Id. at 4.
On May 18, 2009, Petitioner pled guilty to Burglary in the Second Degree in full
satisfaction of Incident One. Id. On May 28, 2009, Petitioner was sentenced to a prison term of
twenty-three years to life on the charge arising out of Incident One, to run concurrently with his
sentences arising out of Incident Two. Id.
2
In September 2010, Petitioner, represented by counsel, filed a direct appeal to the
Appellate Division, Second Department (the "Appellate Division") raising three claims: (1) the
identification procedure was unduly suggestive, (2) the prosecution's summation comments were
unfair and deprived him of a fair trial, and (3) the persistent violent offender statute is
unconstitutional because it allowed him to receive an enhanced sentence based upon facts not
found by a jury, and that the sentence was harsh and excessive. Id. In June 2011, Petitioner, pro
se, filed a supplemental brief arguing that he was denied effective assistance of trial counsel
because trial counsel failed to obtain Petitioner's cell phone records, failed to argue that the
police lacked sufficient cause to stop and arrest Petitioner or to re-open the Wade hearing 1 based
upon evidence adduced at trial, and failed to move to re-open the Mapp hearing1 . Id. at 5.
In an opinion dated October 25, 2011, the Appellate Division modified Petitioner's
sentence by reducing the concurrent indeterminate terms of imprisonment for the Burglary in the
Second Degree charges for both Incident One and Two from twenty-three years to life to
eighteen years to life. Id.; see also People v. Cardova, 88 A.D.3d 1008 (2d Dep 't 2011 ). As so
modified, the judgment was then affirmed. Id. In the unanimous decision, the Appellate
Division held "[t]he [Petitioner's] contention that the showup identification procedure was
unduly suggestive is without merit[.]" Cardova, 88 A.D.3d at 1008 (citations omitted). The
Appellate Division also found Petitioner's "contention that he was deprived of a fair trial by
certain remarks made by the prosecutor during summation is unpreserved for appellate review, as
1
US. v. Wade, 388 U.S. 218, 232 (1967). A Wade hearing is held to determine if a witness's
identification is tainted by unduly suggestive identification procedures. See, e.g., Maldonado v.
Burge, 697 F. Supp. 2d 516, 521, 529-31(S.D.N.Y.2010) (Holwell, J.).
2
Mapp v. Ohio, 367 U.S. 643 (1961). "A Mapp hearing is called for when the defendant alleges
that physical evidence sought to be used against him or her was obtained illegally by law
enforcement officers and is inadmissible at trial." Montgomery v. Wood, 727 F. Supp. 2d 171,
186 (W.D.N.Y. 2010) (Bianchini, Mag. J.); see also Jones v. La Valley, 11-CV-6178, 2014 WL
1377589, at *22 (S.D.N.Y. Apr. 3, 2014) (Peck, Mag. J.).
3
the [Petitioner] either failed to object to the comments or made only general objections, and did
not request further curative instructions or move for a mistrial. In any event, the challenged
remarks were fair comment on the evidence, permissible rhetorical comment, or responsive to
defense counsel's summation." Id. at 1009 (internal citations omitted). Furthermore, the
Appellate Division held Petitioner "failed to preserve for appellate review his argument that the
persistent violent felony offender sentencing scheme ... violates the principles articulated by the
United States Supreme Court[.] In any event, the argument is without merit." Id. (internal
citations omitted). Lastly, the Appellate Division found "[t]he contention raised in the
[Petitioner's] pro se supplemental brief, that he was deprived of the effective assistance of
counsel, is without merit[.]" Id. (internal citations omitted) (emphasis added). Petitioner
thereafter sought leave to appeal the Appellate Division's decision to the New York Court of
Appeals. Affirmation at 6. Leave was denied on January 10, 2012. Id.; see also People v.
Cardova, 18 N.Y.3d 882 (2012).
On May 15, 2012, Petitioner, pro se, submitted a petition for writ of error coram nobis
arguing he was denied effective assistance of appellate counsel because appellate counsel did not
argue that Petitioner was denied effective assistance of trial counsel for trial counsel's (1) failure
to object to the admission of the 911 tape as a prior inconsistent statement, (2) failure to object to
the trial court's alleged violation of the dictates of Criminal Procedure Law ("CPL")§ 270.15[1],
and (3) failure to move for a trial order of dismissal based upon the alleged insufficiency of the
evidence. Affirmation at 6. By order dated September 26, 2012, Petitioner's application for a
writ of error coram nob is was denied because Petitioner "has failed to establish that he was
denied the effective assistance of counsel." People v. Cardova, 98 A.D.3d 1133 (2d Dep't 2012)
4
(internal citations omitted). Petitioner's application for leave to appeal to the Court of Appeals
was denied on January 17, 2013. People v. Cardova, 20 N.Y.3d 1009 (2013).
On April 4, 2013, Petitioner filed his prose petition for writ of habeas corpus in this
Court. Dkt. 1, Petition for Writ of Habeas Corpus ("Petition"). Petitioner seeks federal habeas
relief on five grounds: (1) Petitioner's due process rights were violated when the state trial court
refused to suppress evidence of suggestive show-up identification, (2) Petitioner's due process
right to a fair trial was violated by the prosecutor's conduct during summation, (3) Petitioner's
sentence as a persistent violent felony offender violated his due process rights and was harsh and
excessive, (4) ineffective assistance of trial counsel, and (5) ineffective assistance of appellate
counsel. Id. at PDF 16-59. The Court will address each issue in turn.
DISCUSSION
I.
Legal Standard
The Court's review of the Petition is governed by The Antiterrorism and Effective Death
Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254. A federal habeas court may only consider
whether a person is in custody pursuant to a state court judgment "in violation of the Constitution
or laws or treaties of the United States." 28 U.S.C. § 2254(a). AEDPA requires federal courts to
apply a "highly deferential standard" when conducting habeas corpus review of state court
decisions and "demands that state-court decisions be given the benefit of the doubt." Renico v.
Lett, 559 U.S. 766, 773 (2010) (internal quotation marks and citations omitted). For the reasons
discussed below, the Court denies the petition for the writ of habeas corpus in its entirety.
5
II.
Analysis
A. The Show-Up Identification Was Not Unduly Suggestive
Petitioner argues he is entitled to federal habeas relief because "his right to due process ..
. was violated by the hearing [state] [c]ourt's refusal to suppress a very suggestive police showup identification procedure because the only reason the witness identified Petitioner was because
Petitioner was in handcuffs standing next to a suspect, and surrounded by multiple Police
Officers, rendering the procedure highly unconstitutional and suggestive." Petition at PDF 16.
Petitioner's argument is unavailing.
A petitioner is entitled to habeas corpus relief only if he can show the state court
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 of the United States[.]"
28 U.S.C. § 2254(d)(l). "For the purposes of federal habeas review, 'clearly established law' is
defined as 'the holdings, as opposed to dicta, of [the Supreme] Court's decisions as of the time of
the relevant state court decision."' Davis v. Racette, 11-CV-5557, 2015 WL 1782558, at *3
(E.D.N.Y. Apr. 21, 2015) (Brodie, J.) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)).
"A state court decision is 'contrary to,' or an 'unreasonable application of,' clearly established
law ifthe decision (1) is contrary to Supreme Court precedent on a question of law; (2) arrives at
a conclusion different [from] that reached by the Supreme Court on 'materially
indistinguishable' facts; or (3) identifies the correct governing legal rule, but unreasonably
applies it to the facts of the petitioner's case." Id. (quoting Williams, 529 U.S. at 412-13 and
citing Harrington v. Richter, 562 U.S. 86, 99-100 (2011)). To establish that a state court's
decision constitutes an unreasonable application of the law, the state court decision must be
6
"more than incorrect or erroneous[,]" it must be "objectively unreasonable." Lockyer v.
Andrade, 538 U.S. 63, 75 (2003).
Additionally, "[i]n federal habeas review, the question of whether an out-of-court
identification procedure is so suggestive that it violates a [petitioner's] due process rights is a
mixed question oflaw and fact. Under 28 U.S.C. § 2254(e), the findings of fact which underlie
the state court's conclusion are entitled to the statutory presumption of correctness by the
reviewing federal habeas court. Unless rebutted by clear and convincing evidence, the habeas
court must accept the facts found by the state court as true." Sanford v. Burge, 334 F. Supp. 2d
289, 301 (E.D.N.Y. 2004) (Gershon, J.) (adopting Report and Recommendation of Magistrate
Judge Marilyn D. Go) (citations omitted).
In this case, Plaintiffs argument fails because he does not show the state court's refusal
to suppress the show-up identification constituted an unreasonable application of clearly
established federal law. Under well-established federal law, admission of identification
testimony violates a petitioner's right to due process when it is based on police procedures that
create a "very substantial likelihood of irreparable misidentification" and the "totality of the
circumstances" indicates the identification is not independently reliable. Brisco v. Ercole, 565
F.3d 80, 88-89 (2d Cir. 2009) (internal citation and quotation marks omitted). To determine
whether the identification testimony is admissible, the Supreme Court has established a two-step
inquiry. "The court first asks whether the out-of-court identification process was unduly
suggestive. If it was, the court may nonetheless admit the identification testimony if it
determines the identification to be independently reliable. The factors a court will consider in
assessing reliability include the opportunity of the witness to view the criminal at the time of the
crime, the witness' degree of attention, the accuracy of the witness' prior description of the
7
criminal, the level of certainty demonstrated by the witness at the confrontation. and the length
of time between the crime and the confrontation." McBride v. Senkowski, 98-CV-8663, 2002
WL 523275, at *5 (S.D.N.Y. Apr. 8, 2002) (Mukasey, J) (adopting Report and Recommendation
of Magistrate Judge Theodore H. Katz) (citing Manson v. Brathwaite, 432 U.S. 98, 110-14
(1977) and Neil v. Biggers, 409 U.S. 188, 199-200 (1972)) (internal quotation marks omitted).
Courts have noted that although "[t]he so-called show-up procedure has been
characterized by an authoritative treatise on criminal law as the most grossly suggestive
identification procedure now or ever used by the police[,] ... the show-up procedure violates due
process only if it is the product of an unnecessarily suggestive procedure." Bratcher v. McCray,
419 F. Supp. 2d 352, 358 (W.D.N.Y. 2006) (Bianchini, Mag. J.) (internal quotation marks and
citations omitted). Where exigent circumstances exist, such circumstances "weigh[] in favor of
finding that a show-up was not unnecessarily suggestive [because] such a procedure may be
necessary to quickly confirm the identity of a suspect ... [f]or this reason, courts have admitted
identification evidence from show-ups held in close temporal and geographic proximity to the
crime scene." Id. (citations omitted).
Here, Plaintiff argues that the show-up identification was unduly suggestive because the
show-up identification occurred when Petitioner was in handcuffs, surrounded by police officers,
and standing next to his co-defendant, Mr. Dajer, who was also wearing a pink shirt. Petition at
PDF 16-17. However, show-up procedures are not rendered unduly suggestive as a matter of
law merely because a defendant is handcuffed and surrounded by police. See United States v.
Bautista, 23 F.3d 726, 730 (2d Cir. 1994) ("The fact that the suspects were handcuffed, in the
custody of law enforcement officers, and illuminated by flashlights also did not render the pretrial identification procedure unnecessarily suggestive.").
8
Moreover, the show-up identification procedure was conducted in relatively close
temporal and geographic proximity to the crime. Officers responded to a 911 call placed by Ms.
Chan who reported suspicious activity of two males around 61-46 172nd St., Flushing, New
York. Dkt. 5 ("State Court Record") at PDF 58. Within a minute, the officers arrived at the
scene and met Ms. Chan. Id. at 58-59. The officers asked Ms. Chan what she saw and asked for
a description of the two perpetrators. Id. at PDF 60. Within a few minutes, the officers received
a radio transmission from another officer who reported he had stopped two males: Petitioner and
Mr. Dajer. Id. at PDF 61. A minute after that, the officers and Ms. Chan went to the location
where Petitioner and Mr. Dajer had been stopped. Id. Upon arriving at the location, Ms. Chan
immediately identified Petitioner and Mr. Dajer as the perpetrators who she saw fleeing the
residence. Id. at PDF 62. Because the show-up identification occurred in close proximity in
space and time, it was not unduly suggestive. As such, no further inquiry is necessary to
determine whether the identification was independently reliable. See Raheem v. Kelly, 257 F.3d
122, 133 (2d Cir. 2001).
Therefore, the state court's decision that the show-up identification was not unduly
suggestive is entitled to deference because it was not contrary to, or an unreasonable application
of, Supreme Court precedent. It should be noted that Petitioner's argument must also fail
because he has not presented clear and convincing to rebut the state court's decision. See 28
U.S.C. § 2254(e). Accordingly, Petitioner's claim for relief on this ground must be dismissed.
B. Petitioner's Due Process Right to a Fair Trial Claim is Procedurally Barred
Petitioner argues he was denied his due process right to a fair trial because of the
prosecutor's "pervasive misconduct in summation, including disparaging the defense, expressing
her personal belief in petitioner's guilt, and asking the jury to conduct an experiment in the jury
9
room." Petition at PDF 18. However, Petitioner's argument is without merit because it is
procedurally barred from the Court's review by an adequate and independent state law ground.
Federal courts are procedurally barred from considering a state court judgment that fairly
"rests on a state law ground that is independent of the federal question and adequate to support
the judgment." Coleman v. Thompson, 501 U.S. 722, 729 (1991) (citations omitted). "A state
procedural bar qualifies as an independent and adequate state law ground if the last state court
rendering a judgment in the case clearly and expressly stated that its judgment rested on a state
procedural bar." Swait v. Hunt, 742 F. Supp. 2d 352, 358 (W.D.N.Y. 2010) (Bianchini, Mag. J.)
(internal quotation marks, citations, and alterations omitted). The Second Circuit has also
established that "federal habeas review is foreclosed when a state court has expressly relied on a
procedural default as an independent and adequate ground, even where the state court has also
ruled in the alternative on the merits of the federal claim." Velasquez v. Leonardo, 898 F.2d 7, 9
(2d Cir.1990). Specifically, "[ e]ven where the state court has ruled on the merits of a federal
claim in the alternative, federal habeas review is foreclosed where the state court has also
expressly relied on the petitioner's procedural default." Murden v. Artuz, 497 F.3d 178, 191 (2d
Cir. 2007) (internal quotation marks and citation omitted). As such, "federal habeas review is
precluded as long as the state court explicitly invokes a state procedural bar rule as a separate
basis for decision." Velasquez, 898 F.2d at 9 (internal quotation marks and citation omitted). A
state court decision is adequate where if "it is firmly established and regularly followed." Swait,
742 F. Supp. 2d at 358 (internal quotation marks and citation omitted).
In this case, Petitioner challenged the conduct of the prosecutor before the Appellate
Division. In its unanimous decision, the Appellate Division held Petitioner's "contention that he
was deprived of a fair trial by certain remarks made by the prosecutor during summation is
10
unpreserved for appellate review, as the [Petitioner] either failed to object to the comments or
made only general objections, and did not request further curative instructions or move for a
mistrial. In any event, the challenged remarks were fair comment on the evidence, permissible
rhetorical comment, or responsive to defense counsel's summation." Cardova, 88 A.D.3d at
1009 (internal citations omitted). Specifically, the Appellate Division found Petitioner failed to
comply with New York's contemporaneous objection rule pursuant to New York Criminal
Procedure Law ("NYCPL") § 470.05[2]. Id. When Petitioner sought leave to appeal this
decision, the New York Court of Appeals denied Petitioner's request. Cardova, 18 N.Y.3d at
882.
Based on the foregoing, although the Appellate Division briefly discussed the merits of
Petitioner's claim, its decision also clearly stated a state procedural ground for default- failure to
comply with NYCPL § 470.05[2]. As such, this Court is foreclosed from reviewing the state
court decision because the Appellate Division "also expressly relied on [Petitioner's] procedural
default." Murden, 497 F.3d at 191 (internal quotation marks and citation omitted); see also
Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996) (habeas review precluded where Appellate
Division clearly stated petitioner had failed to object to prosecutor's comments and failed to
preserve the record even though Appellate Division also went on to discuss the due process
merits of the claim). Moreover, because the New York Court of Appeals decision denying leave
to appeal was silent, the Appellate Division was the last state court which rendered a judgment in
the case, clearly and expressly stating its judgment rested on a state procedural ground. Because
the Appellate Division's decision "fairly appears to rest primarily on state law" habeas review by
this Court is precluded. Coleman, 501 U.S. at 740 (internal quotation marks and citations
omitted).
11
Nonetheless, "[e]ven though a constitutional claim is procedurally barred from federal
review, [a petitioner] may obtain review of his claim on the merits if he shows that equity
demands it." Murden, 497 F.3d at 194 (citing Dretke v. Haley, 541 U.S. 386, 393 (2004)). To
obtain such review, a petitioner must "either demonstrate cause and prejudice for the procedural
default, or that the constitutional violation has probably resulted in the conviction of one who is
actually innocent of the substantive offense." Id. (internal quotation marks and citation omitted).
Plaintiff has failed to do so. Although Petitioner claims "since defense counsel failed to object to
these errors [by the prosecution]" he was deprived a right to a fair trial, Petitioner has failed to
demonstrate cause and prejudice for this error. Petition at PDF 23. While Petitioner previously
raised a claim for ineffective assistance of trial counsel in his prose supplemental brief
submitted to the Appellate Division, Petitioner never argued that trial counsel was ineffective for
failing to object to statements made by prosecution during summation. Without demonstrating
cause and prejudice or that the constitutional violation resulted in the conviction of someone who
is innocent, Petitioner's claim on this issue remains procedurally barred. Accordingly, this claim
is dismissed.
C. Petitioner's Challenge to his Adjudication as a Persistent Violent Felony
Offender is Procedurally Barred
Petitioner argues that his sentence as "a persistent violent felony offender violated his
rights to due process and a jury trial because it relied on facts not found by a jury[.]" Petition at
PDF 24. For reasons based on substantially similar grounds as discussed above, Petitioner's
argument is procedurally barred.
Here, Petitioner challenged his sentence as a persistent violent felony offender in the
Appellate Division. The Appellate Division held "[t]he [Petitioner] failed to preserve for
appellate review his argument that the persistent violent felony offender sentencing scheme
12
under Penal Law § 70.08 violates the principles articulated by the United States Supreme Court .
. . [i]n any event, the argument is without merit." Cardova, 88 A.D.3d at 1009 (citing Apprendi
v. New Jersey, 530 U.S. 466 (2000) and NYCPL § 470.05[2]). Petitioner's request to seek leave
to appeal was denied by the New York Court of Appeals. Cardova, 18 N.Y.3d at 882.
Based on the above, it is clear that the Appellate Division's decision was firmly based on
a state procedural ground for default - failure to preserve the argument under NY CPL §
470.05[2]. As such, the Court is foreclosed from reviewing the state court decision. See
Murden, 497 F.3d at 191. Although the Appellate Division noted that Petitioner's argument was
without merit, the Appellate Division did provide any basis as to why Petitioner's argument was
without merit. Additionally, because the New York Court of Appeals denied leave to appeal
without any explanation, the Appellate Division was the last state court which rendered a
judgment in the case that clearly and expressly stated its judgment rested on a state procedural
ground. Therefore, the Appellate Division's decision "fairly appears to rest primarily on state
law," and habeas review by this Court is precluded. Coleman, 501 U.S. at 740 (internal
quotation marks and citations omitted). Petitioner has also failed to present any evidence to
suggest the procedural default was prejudicial or that the constitutional violation likely resulted
in the conviction of one who is actually innocent, for substantially the same reasons as discussed
above. Murden, 497 F.3d at 194; see also supra section Il.B. Accordingly, Petitioner's claim on
this issue must be dismissed.
D. Petitioner's Challenge to His Sentence as Harsh and Excessive Does Not
Present a Federal Question
Petitioner challenged his sentence as harsh and excessive with the Appellate Division.
The Appellate Division modified Petitioner's sentence by reducing the concurrent indeterminate
terms of imprisonment for the Burglary in the Second Degree charges from twenty-three years to
13
life to eighteen years to life. Cardova, 88 A.D.3d at 1008. As so modified, the Appellate
Division then affirmed the judgment. Id.
Petitioner now challenges the modified sentence arguing that because "[t]his was not a
heinous crime, nor [did it] involve[] murder or severe injury ... an 18 year to life sentence is
harsh and excessive[.]" Petition at PDF 27. Petitioner's argument is not cognizable on habeas
review.
"It is well settled that an excessive sentence claim may not be raised as grounds for
habeas corpus relief ifthe sentence is within the range prescribed by state law." Williams v.
Lavalley, 12-CV-01141, 2014 WL 1572890, at *5 (N.D.N.Y. Apr. 17, 2014) (Singleton, J.)
(citing White v. Keane, 969 F.2d 1381, 1383 (2d Cir.1992)). Here, the eighteen years to life
sentence Petitioner received was within the statutory range prescribed by New York law.
Petitioner was convicted of Burglary in the Second Degree, a class C felony. NYPL § 140.25.
As a persistent violent felony offender, the minimum sentence for Petitioner's conviction is
sixteen years and the maximum is life imprisonment. NYPL § 70.08. Accordingly, Petitioner's
challenge to his sentence does not present a cognizable federal question and must be dismissed.
See Cangelosi v. Miller, 611 F. Supp. 2d 274, 316 (W.D.N.Y. 2009) (Siragusa, J.) (adopting
Report and Recommendation ofMagistrate Judge Victor E. Bianchini); Betancourt v. Bennett,
02-CV-3204, 2003 WL 23198756, at *14 (E.D.N.Y. Nov. 7, 2003) (Weinstein, J.);.
E. Petitioner's Ineffective Assistance of Trial Counsel Claim Fails
Petitioner argues he is entitled to federal habeas relief for ineffective assistance of
counsel based on trial counsel's (1) failure to obtain cell phone records that would prove
Petitioner's innocence, (2) failure to argue that the police lacked sufficient cause to stop and
arrest Petitioner or move to re-open the Wade hearing based upon evidence adduced at trial, and
14
(3) failure to re-open the Mapp hearing once the pre-trial judge ruled that the items in the vehicle
had no connection to the crime at issue. Petition at PDF 28-38. Petitioner's argument is without
merit.
As discussed above, a petitioner is entitled to habeas corpus relief only if he can show
the state court 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 of the United States[.]" 28 U.S.C. § 2254(d)(l); see also supra section II.A ..
Strickland v. Washington, 466 U.S. 668 (1984), sets forth the relevant federal law
governing ineffective assistance of counsel claims. In reviewing a state court's application of the
Strickland standard, "[t]he pivotal question is whether the state court's application of the
Strickland standard was unreasonable. This is different from asking whether defense counsel's
performance fell below Strickland's standard. Were that the inquiry, the analysis would be no
different than if, for example, [the district court] were adjudicating a Strickland claim on direct
review of a criminal conviction in a United States [D]istrict [C]ourt." Harrington v. Richter, 562
U.S. 86, 101 (2011).
"Under Strickland, in order to prevail on an ineffective-assistance-of-counsel claim, a
defendant must meet a two-pronged test: (1) he 'must show that counsel's performance was
deficient' ... and (2) he must show that 'the deficient performance prejudiced the defense[.]"'
Bennett v. United States, 663 F.3d 71, 84 (2d Cir. 2011) (quoting Strickland, 466 U.S. at 687,
690). "It is the accused's 'heavy burden' to demonstrate a constitutional violation under
Strickland." Moreno v. Smith, 06-CV-4602, 2010 WL 2975762, at *15 (E.D.N.Y. July 26, 2010)
(Matsumoto, J.) (quoting United States v. Gaskin, 364 F.3d 438, 468 (2d Cir. 2004)).
15
Under the first prong, "LJ]udicial scrutiny of counsel's performance must be highly
deferential ... a court must indulge a strong presumption that counsel's conduct falls within the
wide range of reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action might be considered sound trial
strategy." Strickland, 466 U.S. at 689 (internal quotation marks and citations omitted).
Under the second prong, to establish prejudice, "[t]he defendant must show that there is a
reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. In making the determination whether the specified errors resulted in
the required prejudice, a court should presume, absent challenge to the judgment on grounds of
evidentiary insufficiency, that the judge or jury acted according to law." Id. at 694
Here, the Appellate Division rejected Petitioner's claim on the merits. Cardova, 88
A.D.3d at 1009. Petitioner thereafter presented his claim to the Court of Appeals, but the Court
of Appeals denied Petitioner's leave to appeal. Cardova, 20 N.Y.3d at 1009. Upon review of
the state court record, there is nothing in the record to suggest the state courts applied Strickland
unreasonably when rejecting Petitioner's ineffective assistance of counsel claim. See
Harrington, 562 U.S. at 101. As discussed in detail below, all indications demonstrate that
Petitioner received effective assistance of trial counsel throughout each stage of the proceeding.
1. Trial Counsel was Not Ineffective For Failure to Obtain Cell Phone
Records
Although Petitioner claims that trial counsel was ineffective because of his failure to
obtain cell phone records that would prove Petitioner's innocence, Petitioner's argument does
not meet the standard set forth by Strickland. A review of the record reveals a professionally
sound performance by trial counsel who motioned for a suppression hearing and who assisted
16
Petitioner in being acquitted of two very serious charges - Possession of Burglar Tools and
Unlawful Possession of a Radio Device. Moreover, the trial record reveals that trial counsel did
consider the cell phone records and advised the court that trial counsel would only use the cell
phone records to the extent they were relevant. State Court Record at PDF 117-118. Absent a
direct explanation by the Petitioner as to trial counsel's failure to use such records or any
evidence to establish that trial counsel's decision was based on improper grounds, Petitioner
cannot overcome the presumption of effectiveness. See Greiner v. Wells, 417 F.3d 305, 320 (2d
Cir. 2005). Furthermore, the record does not establish any prejudice for trial counsel's failure to
obtain the cell phone records. While Petitioner claims that "[h]ad the [cell phone] records been
obtained[,] it would have shown that [Petitioner] was [nowhere] near the vicinity during the
alleged eye witness time of the crime," Petitioner has not provided any evidence to support this
argument. Petition at PDF 31. The record to support the Petition is devoid of any cell phone
records that could or would have shown that the outcome of Petitioner's trial would have been
different but for trial counsel's errors in not obtaining Petitioner's cell phone records. Strickland,
466 U.S. at 694. Absent such evidence, Petitioner fails to meet the Strickland standard.
2. Trial Counsel was Not Ineffective for Failure to Argue Police Lacked
Sufficient Cause to Stop and Arrest Petitioner or to Move to Re-Open
the Wade Hearing
Petitioner's argument that trial counsel was ineffective because of his failure to argue the
police lacked sufficient cause to stop and arrest or to move to re-open the Wade hearing based
upon evidence adduced at trial must also fail because it does not meet the Strickland standard.
First, it is plausible that trial counsel viewed any attempt to argue the police lacked sufficient
cause to stop and arrest Petitioner as futile. Maldonado v. Burge, 697 F. Supp. 2d 516, 541
(S .D .N. Y. 2010) ( "The failure to make demonstrably futile arguments cannot constitute
17
constitutionally ineffective assistance of counsel.") (internal quotation marks and citations
omitted). Based on the record in this case, not only did the police have reasonable suspicion to
stop and briefly detain Petitioner, but they also had probable cause to arrest Petitioner.
Under New York law, "[r]easonable suspicion represents that quantum of knowledge
sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to
believe criminal activity is at hand[.]" People v. Woods, 98 N.Y.2d 627, 628 (2002) (internal
quotation marks and citations omitted). Moreover, "[a]n anonymous tip cannot provide
reasonable suspicion to justify a seizure, except where that tip contains predictive informationsuch as information suggestive of criminal behavior-so that the police can test the reliability of
the tip." People v. Moore, 6 N.Y.3d 496, 499, 847 N.E.2d 1141, 1143 (2006).
Here, the record supports a finding that the police had a reasonable suspicion of criminal
activity to briefly detain Petitioner. First, the police officers who detained Petitioner detained
him within a matter of minutes because he matched the description they received on their radios.
State Court Record at PDF 6-7. Second, the police officers detained Petitioner within a couple
blocks of the scene of the crime. Id. Lastly, the police officers who detained Petitioner testified
that Petitioner was sweating profusely. Id. at 8. Given that Petitioner matched the description on
the radio, was sweating profusely, and was detained within close temporal and geographic
proximity of the crime, the police officers had reasonable suspicion to detain Petitioner. Once
Ms. Chan arrived at the scene within minutes and positively identified Petitioner, the police had
probable cause to arrest Petitioner. See supra Section II; see also People v. Bittner, 97 A.D.2d
33, 36 (1983) ( "[P]robable cause exists if the facts and circumstances known to the arresting
officer would warrant a reasonable person, who possesses the same expertise as the officer, to
18
conclude, under the circumstances, that a crime is being or was committed"). Accordingly,
Petitioner's ineffective assistance of trial counsel claim on this basis must be dismissed.
Second, with respect to trial counsel's failure to re-open the Wade hearing, "[u]nder New
York law, the trial court has discretion to reopen a Wade hearing if additional pertinent facts are
discovered that could not have been discovered with reasonable diligence before the Wade
determination and that go to the issue of official suggestiveness such that they would materially
affect or have affected the earlier Wade determination." Lynn v. Bliden, 443 F.3d 238, 249 (2d
Cir. 2006) (internal quotation marks and citations omitted). Moreover, "[i]n prior habeas cases
in which there were claims of ineffective assistance of counsel for failing to request a Wade
hearing, [the Second Circuit] has demanded some showing of the likelihood for success at the
hearing." Id. Here, there is nothing in the record to suggest that had the Wade hearing been
reopened due to new evidence adduced at trial, evidence related to Petitioner's arrest and/or
identification would have been suppressed due to improper police procedure. See, e.g., id.
Furthermore, Petitioner cannot establish he was prejudiced by trial counsel's failure to re-open
the Wade hearing because, as previously discussed, the show-up identification was not unduly
suggestive thereby giving police probable cause to arrest Petitioner. See supra section II.A.
Accordingly, the state courts did not apply Strickland unreasonably when rejecting this part of
Petitioner's ineffective assistance of counsel claim. As such, Petitioner's claim on this ground
must be dismissed.
3. Trial Counsel was Not Ineffective for Failure to Re-Open the Mapp
Hearing
Petitioner's argument that trial counsel was ineffective because of his failure to re-open
the Mapp hearing once the pre-trial judge ruled that the items in the vehicle had no connection to
the crime fails to meet the standard set forth in Strickland. According to Petitioner, trial counsel
19
advised him that, because he had no standing to challenge the search of the vehicle, there was no
need to re-open the Mapp hearing. Petition at PDF 39. However, Petitioner claims that trial
counsel was ineffective because Petitioner "feels that he did have standing and that he should
have been granted a Mapp hearing." Id. Even assuming Petitioner did have standing to re-open
the Mapp hearing, Plaintiff has failed to demonstrate he was prejudiced in any way from trial
counsel's failure to request a re-opening of the Mapp hearing. The items recovered from the
vehicle included two ski masks, two crow bars, two walkie-talkies, and a police scanner from the
trunk of the car. Affirmation at 3. Nonetheless, trial counsel was able to obtain acquittal of all
charges expressly related to the items in the car, including Possession of Burglar's Tools and
Unlawful Possession of a Radio Device, and Petitioner was only convicted of Burglary in the
Second Degree. Affirmation at 2. Plaintiff has not shown how trial counsel's failure to obtain a
re-opening of the Mapp hearing, let alone suppression of those items, would have resulted in the
outcome of the proceedings being any different. Strickland, 466 U.S. at 694. Absent such a
showing, Petitioner fails to meet the Strickland standard. Based on the foregoing, Petitioner's
entire ineffective assistance of trial counsel claim must be dismissed.
F. Petitioner's Ineffective Assistance of Appellate Counsel Claim Fails
Petitioner also argues he is entitled to federal habeas relief for ineffective assistance of
counsel based on appellate counsel's failure to raise ineffective assistance of trial counsel claims
for trial counsel's failure to object to the admission of the 911 tape as a prior inconsistent
statement, failure to object to the state court violating the mandate of Criminal Procedure Law §
270.15(1 ), and failure to move for a trial order dismissal based upon the alleged insufficiency of
the evidence before the Appellate Division. Petition at PDF 40-59. Petitioner's argument is
unavailing.
20
Petitioner's ineffective assistance of appellate counsel claim is also governed by the
Strickland standard set out above. See Grady v. Artuz, 931 F. Supp. 1048, 1061(S.D.N.Y.1996)
(Koeltl, J.); see also supra section ILE. With respect to appellate counsel, Strickland's analysis
requires Petitioner to "first show that his [appellate] counsel was objectively unreasonable in
failing to raise the issue on appeal, and then must show a reasonable probability that, but for his
[appellate] counsel's unreasonable failure [to raise the issue], he would have prevailed on his
appeal." Chrysler v. Guiney, 14 F. Supp. 3d 418, 457 (S.D.N.Y. 2014) (internal quotation marks
and citations omitted) (Karas, J) (adopting Report and Recommendation of Magistrate Judge
Lisa M. Smith). Under the first prong of Strickland, appellate counsel is not obligated to raise
every non-frivolous claim; instead, appellate counsel has the discretion to select among the
claims at issue to maximize the likelihood of success on appeal. Id. at 458. "However, a
petitioner may establish constitutionally inadequate performance if he shows that [appellate]
counsel omitted significant and obvious issues while pursuing issues that were clearly and
significantly weaker." Id. (internal quotation marks and citation omitted). Under the second
prong of Strickland, Petitioner "must demonstrate that there was a reasonable probability that his
claim would have been successful before the state's highest court." Id. (internal quotation marks
and citations omitted).
Upon review of the record, Petitioner has failed to demonstrate that appellate counsel's
performance does not meet the Strickland standard. While Petitioner argues that appellate
counsel was ineffective for the reasons discussed directly above, Petitioner has not met his
burden of establishing that appellate counsel pursued issues that were significantly weaker than
other issues or that any of the claims Petitioner now asserts would have had a reasonable
probability of success before the Appellate Division.
21
Under the first prong of Strickland, appellate counsel effectively represented Petitioner in
his appeal, submitting a sixty page brief on behalf of Petitioner. Dkt. 6 ("Appellate Brief').
Appellate counsel's brief carefully lays out the relevant facts related to Petitioner's conviction.
Id. at PDF 7-29. Based on the relevant facts, appellate counsel argued Petitioner's due process
rights were violated when the state court refused to suppress evidence of Ms. Chan's show-up
identification, Petitioner was denied the right to a fair trial because of comments made by the
prosecutor during summation, and Petitioner's sentence of twenty-three years to life was harsh
and excessive. Id. at PDF 30-64. Although appellate counsel was unsuccessful in establishing
Petitioner's due process rights were violated by the show-up identification and Petitioner was
denied the right to a fair trial by the prosecutor's comments during summation, appellate counsel
nonetheless successfully persuaded the Appellate Division to reduce Petitioner's sentence from
twenty-three years to life to eighteen years to life. Cardova, 88 A.D.3d at 1008. Given this
successful performance by appellate counsel, it is clear that appellate counsel chose the
arguments she believed would have the best likelihood of success on appeal. Chrysler, 14 F.
Supp. 3d at 458. Moreover, there is no evidence in the record to suggest that appellate counsel
pursued weaker claims instead of pursuing stronger claims - this is especially true given that
appellate counsel helped secure a lower sentence for Petitioner. Accordingly, Petitioner has
failed to establish appellate counsel's representation meets the first prong under Strickland.
Because Petitioner has failed to meet the first prong under Strickland, the Court need not engage
in analysis of the second prong under Strickland. Strickland, 466 U.S. at 697 ("'[T]here is no
reason for a court deciding an ineffective assistance claim to ... address both components of the
inquiry if the defendant makes an insufficient showing on one.").
22
In any event, Petitioner's argument also fails under the second prong of Strickland
because he has failed to show "there was a reasonable probability that any of his claims would
have been successful before the state's highest court." Chrysler, 14 F. Supp. 3d at 458. For
example, Petitioner claims appellate counsel's failure to present trial counsel's failure to object
to the 911 tape submission as a prior inconsistent statement was the "deciding factor between
guilt or innocence." Petition at PDF 48. However, the 911 tape was properly admitted under the
present sense impression exception to the evidentiary rule against hearsay because Ms. Chan
called 911 within minutes after witnessing Petitioner and Mr. Dajer at the scene of the crime.
See Fed. R. Evid. 803(1). Moreover, the police briefly detained Petitioner and Mr. Dajer within
minutes ofreceiving Ms. Chan's 911 call, and within minutes Ms. Chan positively identified the
Petitioner and Mr. Dajer. See People v. Brown, 80 N.Y.2d 729, 732-35 (1993). Accordingly,
even if trial counsel had objected to the 911 tape as a prior inconsistent statement, the tape still
would have come into evidence under the present sense impression exception. Petitioner's
remaining claims - appellate counsel's failure to argue trial counsel's failure to object to the state
court violating the mandate of Criminal Procedure Law § 270.15( 1) and appellate counsel's
failure to raise trial counsel's failure to move for a trial order dismissal based upon the alleged
insufficiency of the evidence - also suffer from the same deficiency. Petitioner has not provided
a single reason as to why these claims would have had a reasonable probability of success before
the state's highest court. Chrysler, 14 F. Supp. 3d at 458. Based on the above, Petitioner's claim
for relief based on ineffective assistance of appellate counsel is dismissed.
23
CONCLUSION
Petitioner's petition for a writ of habeas corpus is DENIED in its entirety. A certificate
of appealability shall not issue. See 28 U.S.C. § 2253. The Clerk of the Court is directed to
serve notice of entry of this Order on all parties and to close the case.
SO ORDERED
/S/ Judge William F. Kuntz, II
a,
Dated: August
2015
Brooklyn, New York
24
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