Devaughn v. Graham

Filing 19

MEMORANDUM AND ORDER: The 7 Amended Petition is DENIED. Because Petitioner has not made a substantial showing of the denial of a constitutional right, no certificate of appealability shall issue. The court certifies pursuant to 28 U.S.C, § 1915(a)(3) that an appeal from this judgment would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is respectfully DIRECTED to enter judgment and close this case. So Ordered by Judge Nicholas G. Garaufis on 1/18/2017. (c/m to pro se petitioner; fwd'd for jgm) (Lee, Tiffeny)

Dk

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK
-X

ALEXDEVAUGHN,

Petitioner,

MEMORANDUM & ORDER

14-CV-2322(NGG)

-againstHAROLD D. GRAHAM,

Respondent.
-X

NICHOLAS G. GARAUFIS,United States District Judge.
Petitioner Alex DeVaughn brings this pro se Amended Petition for a writ of habeas

corpus, pursuant to 28 U.S.C. § 2254. (Am. Pet.(Dkt. 7)at 1.) Petitioner challenges his
convictions for two counts ofsecond-degree murder and two counts offirst-degree robbery in the
Supreme Court ofNew York, County of Queens. (Id) For the reasons set forth below,the
Amended Petition is DENIED.
I.

BACKGROUND

A.

Trial Court Proceedings

At trial, the prosecution charged that on January 9,2000,Petitioner and an accomplice,

Wydell Simpkins, noticed two men,Roy Douglas and Wayne Wright, outside a store in Queens,
New York, wearing "expensive chains," and approached them with guns drawn. People v.
DeVaughn. 925 N.Y.S.2d 114,115(App. Div. 2011). The prosecution elicited testimony that

during the incident, a gunshot went off and Petitioner proceeded to grab a chain from Wright and

ran away. Id. Simpkins later admitted to shooting Douglas, who subsequently died from the

gunshot wounds.

id rSee also Trial Tr.(Dkt. 16-5 at ECF No. 204) 1449:20-1460:5.)'

The jury also heard testimony from two men, Jamel Pinkney and Jahmier Everett, with
whom Petitioner allegedly committed a series of similar robberies in the month prior to the
January 9,2000, charged offense.

id (See also Aff. of Ranjana C. Piplani in Opp'n to Pet.

for Writ of Habeas Corpus("Resp't's Opp'n.")(Dkt. 13)^ 5.) Pinkney and Everett testified that
Petitioner described the January 9, 2000, incident to them in detail, and that Petitioner

complained that they were unavailable to assist. DeVauehn.925 N.Y.S.2d at 115-16. The trial
court initially ruled that evidence ofthe uncharged crimes, i.e., robberies Petitioner allegedly

committed with Pinkney and Everett, could be admitted to explain why Petitioner would disclose

details ofthe charged offenses to them, but only those uncharged crimes that pre-dated the
charged offenses. (Trial Tr. 41:13-42:14.) However,Petitioner's counsel opened the door for
the prosecution to adduce evidence regarding uncharged crimes that post-dated the charged

offenses by discussing the same in his opening statement. (Id 1110:5-20.) Pinkney was
therefore permitted to testify that after the commission ofthe charged crimes, he, Petitioner, and
Everett attempted to rob an individual wearing a chain at a convenience store around
January 11, 2000. (Id 1286:10-1289:10.) During the attempted robbery, both Pinkney and

Everett were shot and taken to a hospital. (Id 1288:10-16.) While in the hospital, they entered
into cooperation agreements with the Queens County District Attomey. (See id. 1369:6-17.)

In his defense, Petitioner sought to introduce evidence ofthird party culpability, but the
request was denied by the trial court. (Id 1192:1-9.) His counsel argued that a detective's initial

' state court trial transcripts are docketed together under multiple subparts of document number 16. For ease of
The
reference, the first citation to the relevant transcripts will include the ECF page number corresponding to the initial
page ofthe transcript. Pin citations thereafter reference the pagination ofthe transcript itself.

investigation report provided a good faith basis to believe that there may not have been a robbery
at all, and that the killing was retribution by other drug-dealers against the victim.
(Id. 1183:6-23.) Petitioner wanted to question the surviving robbery victim, Wa3me Wright, who
testified for the prosecution, as to whether there may have been a potential drug-related motive
for the killing. (Id 1180:20-1181:3.)

The jury also heard testimony from the getaway driver ofthe January 9,2000,incident,
Patrick Brunache, who the trial court concluded was an accomplice as a matter oflaw.

dd. 1836:20-23.) Brunache also entered into a cooperation agreement with the District Attorney
before trial. (Id 1456:22-25.)

At the conclusion ofthe parties' cases, the court instructed the jury on the elements of the
charged crimes. Ofrelevance in this petition, the trial court stated:
Under our law, a person is guilty of Murder in the Second Degree,
when, in the course of or in furtherance of the commission or

attempted commission of a robbery, or in the immediate flight
therefrom that, a person or another participant, if there be any,
causes the death of a person other than one ofthe participants.

(Id 1846:9-15(emphasis added).) The statute, however, uses the conjunctive "and" rather than
the disjunctive "or." N.Y. Penal Law § 125.25(3)(stating "in the course of and in furtherance
of(emphasis added)). Petitioner's counsel did not object to this mistake in the jury instructions.

On July 22,2004,the jury found Petitioner guilty oftwo counts of murder in the second
degree on felony murder theory, and two counts of robbery in the first degree. See
DeVaughn. 925 N.Y.S.2d at 115. The court sentenced Petitioner, a second violent felony
offender, to two 25-to-life terms ofimprisonment to run concurrently for the two murder

convictions, and to two determinate terms oftwelve years' imprisonment to run concurrently for
the two robbery convictions. (Sentencing Hr'g Tr.("Sentencing Tr.")(Dkt. 16-7 at ECF

No. 2957)27:2-28:16.) The robbery sentences were to run consecutively to the murder
sentences. (Id.')

B.

Direct Appeal

Petitioner appealed his convictions to the Appellate Division, Second Department.
Petitioner obtained new counsel for his appeal, and his appellate counsel argued three grounds
for reversal, namely that:(1)the trial court erred in admitting evidence of xmcharged crimes;(2)
Petitioner was denied his Sixth Amendment right to confront the witnesses against him and to

present a defense when the trial court denied him the opportunity to put forth credible evidence

of an alternate, drug-related motive for the killing of Douglas; and(3)Petitioner was denied due
process when the trial court used the disjunctive "or" rather than the conjunctive "and" in its

charge on felony murder to the jury, thus eliminating an essential element ofthe crime. (See

Appellant's Br.(Dkt. 15-1 at ECF No.659) at 1.)^
On September, 9,2010,the State ofNew York responded, arguing that:(1)the trial court
did not abuse its discretion in admitting evidence ofthe uncharged robberies and, in any event,

any error was harmless due to overwhelming evidence of guilt;(2)Petitioner's Sixth
Amendment claim lacked merit and,regardless, was unpreserved; and (3)Petitioner's claim
relating to the jury charge lacked merit and was also otherwise unpreserved. (See Resp't's Br.
(Dkts. 15-1,15-2 at ECF No.730) at 21-64.)

On May 31,2011,the Appellate Division affirmed the judgment ofthe trial court. See

DeVaughn. 925 N.Y.S.2d at 115. On April 4,2012,the New York Court of Appeals denied

^ The state court materials are docketed together under docket number 15. All relevant materials, e.g., briefs, orders,
affidavits, were merged together rather than filed as separate documents. As with the trial transcripts, the court will
note the ECF page number corresponding to the first page of a particular document in the initial citation. Pin
citations ofthese state court materials will follow the pagination ofindividual documents.

Petitioner's application for leave to appeal.

People v. DeVaughn,968 N.E.2d 1004,1004

(N.Y. 2012).
C.

Collateral State Court Proceedings

On January 12, 2013,Petitioner filed a pro se motion in the Supreme Court ofNew York

pursuant to New York Criminal Procedure Law § 440.20, arguing that his sentences should be
vacated because the trial court illegally imposed the murder and robbery sentences to run

consecutively. (See Aff. of Alex DeVaughn in Supp. of Mot. to Set Aside Sentence(Dkt. 15-2 at
EOF No. 810)H 1.) The State opposed the motion. (See Resp't's Opp'n ^ 15.) On May 21,
2013,the court denied Petitioner's motion,finding that the sentences were valid as a matter of
law, and that Petitioner failed to make a shoving that the consecutive sentences were illegal.
(See May 21,2013, Order(Dkt. 15-3 at EOF No. 883) at 1-2.)

On June 4,2013,Petitioner applied to the Appellate Division for leave to appeal the

May 21, 2013, Order. (See Aff. ofRoni C. Piplani in Opp'n to Def.'s Mot. for Leave to Appeal

(Dkt. 15-3 at EOF No. 896)at f1.) After the State responded (id.), the Appellate Division denied
Petitioner's application on January 13, 2014(see Jan. 13, 2014,Decision & Order(Dkt. 15-3 at
EOF No. 916).)

On or around July 9, 2014, Petitioner filed a pro se application for a writ of error coram

nobis in the Appellate Division. (See Mot. for Writ of Error Coram Nobis(Dkt.15-3 at ECF
No. 932) at 1.) Petitioner asserted that he was denied his right to effective assistance of
appellate counsel because his appellate counsel did not argue on appeal that trial counsel was
ineffective for:(1)failing to object to the medical examiner's testimony regarding an autopsy

performed by another medical examiner;(2)failing to object when the prosecutor vouched for
the truthfulness of cooperating witnesses;(3)opening the door to allow Pinkney and Everett to
testify as to uncharged crimes; and(4)failing to object to the trial court's refusal to issue the

defense's requested jury charge. (See Aff. of Alex DeVaughn in Supp. of Mot. for Writ ofError
Coram Nobis("DeVaughn Coram Nobis Aff.")(Dkt. 15-3 at ECF No. 942)at 3.) On

July 17,2014,Petitioner filed a supplemental application for writ of error coram nobis. asserting
three additional grounds for ineffective assistance of appellate counsel. (See Aff. of Alex

DeVaughn in Supp. of Suppl. Appl. for Writ of Error Coram Nobis("DeVaughn Suppl. Coram
Nobis Aff.")(Dkt. 15-4 at ECF No. 1017)

7-17.) Petitioner contended that appellate counsel

was ineffective because he failed to argue that trial counsel was ineffective for:(1)not

adequately preparing for Petitioner's case;(2)not objecting to the jury charge relating to
accessorial liability; and(3)not objecting to the trial court's incorrect felony murder jury charge.
(Id.) The State filed a response on October 31,2014. (See Affirm, in Opp'n to Def.'s Pet. for
Writ ofError Coram Nobis(Dkt. 15-3 at ECF No. 971)at 1.)

On April 22,2015,the Appellate Division denied the application, reasoning that
Petitioner failed to establish that he was denied effective assistance of appellate counsel. See

People V. DeVaughn.5 N.Y.S.3d 894, 894(N.Y. App. Div. 2015). Petitioner sought leave to
appeal the denial to the New York Court of Appeals. (Resp't's Opp'n f 20.) On August 4,2015,
the Court of Appeals denied Petitioner leave to appeal. See People v. DeVaughn.38 N.E.3d 837
(N.Y. 2015).
D.

Federal Habeas Petition

On April 9, 2014, Petitioner filed a petition for a writ ofhabeas corpus in this court.
Petitioner contends that:(1)the trial court erred by admitting evidence of uncharged crimes

against him;(2)he was denied his Sixth Amendment right to confront witnesses against him and

to present "credible evidence of a drug related motive for the death ofthe deceased";(3)the trial
court erred in ordering that his murder and robbery sentences run consecutively rather than

concurrently; and (4)his appellate counsel was ineffective because he "failed to raise viable and

meritorious issues" in the direct appeal. (See Pet.(Dkt. 1).) Petitioner then requested that this
court stay his petition to allow him to exhaust his ineffective assistance of appellate counsel
claim in state court. (See Apr. 22, 2014, Mem.& Order(Dkt. 4).) The court granted the request.
(Id at 4.)

On September 4,2015, Petitioner amended his habeas corpus petition after exhausting the
ineffective assistance of appellate counsel claims in the state court error coram nobis proceeding.
(See Am.Pet.) The first three grounds for relief in the Amended Petition are identical to that in
the original Petition. (Id at 6-10.) Petitioner expanded his general ineffective assistance of

appellate counsel into seven separate bases for relief. He argues that appellate counsel was
ineffective for failing to argue on appeal that trial counsel was ineffective for the following
reasons:(1)failing to object to the medical examiner's testimony regarding the autopsy that was

performed by a different medical examiner;(2)opening the door to questioning and testimony
regarding uncharged crimes;(3)failing to object when the prosecutor vouched for the

truthfulness of cooperating witnesses;(4)failing to object to the trial court's refusal to issue the
defense's requested jury charge;(5)failing to adequately prepare and investigate on Petitioner's
behalf;(6)failing to object to the lack ofa jury charge stating that evidence must be considered
individually as to each defendant; and (7)failing to investigate the law. (Id at 11-22.) These

additional grounds for relief largely correspond to the arguments in Petitioner's state court
applications for a writ of error coram nobis. (See DeVaughn Coram Nobis Aff. at 3; DeVaughn
Suppl. Coram Nobis Aff.

7-17.) On December 29,2015, Respondent filed his opposition to

the Amended Petition. (See Resp't's Opp'n H 1.) On January 24,2016,Petitioner replied.
(Pet'r's Resp. to Resp't's Opp'n ("Pet'r's Reply")(Dkt. 18).)

II.

HABEAS CORPUS STANDARDS

Under 28 U.S.C. § 2254(a), a district court is empowered to "entertain an application for

a writ of habeas corpus [on] behalf ofa person in custody pursuant to the judgment of a State
court only on the ground that he is in custody in violation ofthe Constitution or laws or treaties
ofthe United States." A person in custody pursuant to ajudgment ofa state court must generally
meet three requirements to obtain relief:(1)exhaustion;(2)lack of a procedural bar; and
(3)satisfaction ofthe deferential standard ofreview set forth in the Antiterrorism and Effective
Death Penalty Act of 1996("AEDPA"),Pub. L. No. 104-132,110 Stat. 1214(1996).
A.

Exhaustion

"An application for a writ of habeas corpus on behalfof a person in custody pursuant to a
judgment ofa State court shall not be granted unless it appears that... the applicant has
exhausted the remedies available in the courts ofthe State." 28 U.S.C. § 2254(b)(1). "The

exhaustion requirement is not satisfied unless the federal claim has been fairly presented to the
state courts," i.e., the petitioner "informed the state court of both the factual and the legal
premises of the claim he asserts." Dave v. Att'v Gen, of State ofN.Y..696 F.2d 186,191
(2d Cir. 1982)(en banc).

"A petitioner is not required to cite 'book and verse on the federal constitution' in order
for a claim to be 'fairly presented.'" Allison v. Khahaifa. No. lO-CV-3453(KAM),2011
WL 3298876, at *6(E.D.N.Y. Aug. 1, 2011)(quoting Picardv. Connor. 404 U.S. 270,275,278
(1971)). "Instead, exhaustion may be satisfied where the legal basis of a claim made in state
court is the 'substantial equivalent' ofthe habeas claim." Id.(quoting Picard. 404 U.S. at 278).
"This means,in essence, that in state court the nature or presentation ofthe claim must have been

likely to alert the court to the claim's federal nature." Dave,696 F.2d at 192. Thus,even if a

petitioner did not cite any federal constitutional provisions, he may have fairly presented his
federal claim in the state court through:

(a) reliance on pertinent federal cases employing constitutional
analysis, (b) reliance on state cases employing constitutional
analysis in like factual situations,(c)assertion ofthe claim in terms
so particular as to call in mind a specific right protected by the
Constitution, and (d) allegation of a pattern of facts that is well
within the mainstream of constitutional litigation.
Id at 194.

Notably, every claim that a petitioner makes in his § 2254 petition must have been raised
furst in state court to satisfy the exhaustion element. This "total exhaustion" rule requires that"a
district court[] dismiss habeas petitions containing both unexhausted and exhausted claims."
Rose V. Lundv.455 U.S. 509,513, 522(1982). However,there is an important exception to the
total exhaustion rule—created by a 1996 amendment to AEDPA—^whereby a district court may

deny an entire habeas petition on the merits notwithstanding a petitioner's failure to exhaust
some or all of his claims. See 28 U.S.C. § 2254(b)(2). In other words, a court may deny but not

grant"mixed petitions" on the merits. Pratt v. Greiner. 306 F.3d 1190,1197(2d Cir. 2002)("A
district court[may] deny a petition on the merits even ifit contains an unexhausted claim.").
B.

Procedural Bar

"It is well established that federal courts will not review questions offederal law

presented in a habeas petition when the state court's decision rests upon a state-law ground that
is independent ofthe federal question and adequate to support the judgment." Cone v. Bell. 556
U.S. 449,465(2009)(intemal quotation marks omitted). "[Wjhen a petitioner fails to raise his
federal claims in compliance with relevant state procedural rules, the state court's refusal to

adjudicate the claim ordinarily qualifies as an independent and adequate state ground for denying
federal review." Id. The state-law ground may be a substantive mle dispositive ofthe case, or a

procedural rule precluding adjudication ofthe claim on the merits. Sqq Wainwright v.
Svkes. 433 U.S. 72, 81-82(1977).

"[T]he adequacy ofstate procedural bars to the assertion offederal questions is ... not
within the State's prerogative finally to decide; rather, adequacy is itself a federal question."
Cone,556 U.S. at 465 (quoting Lee v. Kemma.534 U.S. 362, 375(2002)(internal quotation
marks omitted)). Thus, courts "have an independent duty to scrutinize the application of state
rules that bar [its] review offederal claims." Id. at 468.

The concepts ofprocedural bar and exhaustion often interact in an important way. If a
§ 2254 petitioner has failed to present a claim to a state court but can no longer do so, e.g., if the
time to file a state court appeal has expired, then that claim is considered procedurally barred
rather than unexhausted. S^ O'Sullivan v. Boerckel. 526 U.S. 838,848(1999)(holding that

petitioner's "failure to present three of his federal habeas claims to the Illinois Supreme Court[]
resulted in a procedural default ofthose claims"); Llovd v. Walker. 771 F. Supp. 570, 574

(E.D.N.Y. 1991)(noting that "[wjhen a petitioner has not properly presented his claim to a state
for consideration on the merits, but it is clear that the state court would hold the claim

procedurally barred,...the exhaustion requirement is satisfied" but the petitioner is barred
"from litigating the merits ofth[at] claim[] in federal habeas proceedings"). A court's

conclusion that a claim is procedurally defaulted rather than unexhausted permits the petitioner
to avoid the harsh effects ofthe "total exhaustion" rule discussed above—^i.e., if a claim has not

been presented to the state court but can no longer be brought in state court, a federal court may

nonetheless consider the petitioner's remaining claims on the merits so long as those claims have
been exhausted.

Turner. 262 F.3d at 122-23.

10

"Once a claim is found to be procedurally defaulted, a federal court may grant habeas
relief on such claim only ifthe petitioner has demonstrate[d] cause for the default and prejudice
from the asserted error,' or a 'fundamental miscarriage ofjustice.'" Allison. 2011 WL 3298876,
at *6(quoting House v. Bell. 547 U.S. 518,536(2006), Murray v. Carrier. 477 U.S. 478,496

(1986)). "Showing 'cause' usually requires a demonstration of'some external impediment
preventing counsel from constructing or raising the claim.'" Id. (quoting Murray.477 U.S.

at 492). "A miscarriage ofjustice claim requires a petitioner to make a showing of actual
innocence." Id.(citing Schlup y. Delo. 513 U.S. 298, 326-27(1995)).
C.

Antiterrorism and Effective Death Penalty Act

Where a state court has reached the merits ofa claim asserted in a § 2254 petition, the
state court's decision is reviewed under the deferential standard set forth in AEDPA,which

provides that:

An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the merits
in State court proceedings unless the adjudication ofthe claim—(I)
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.

28 U.S.C. § 2254rdl: see also Rvan v. Miller. 303 F.3d 231,245(2d Cir. 2002).

"Clearly established federal law 'refers to the holdings, as opposed to the dicta, of the
Supreme Court's decisions as ofthe time ofthe relevant state-court decision.'" Howard v.
Walker. 406 F.3d 114,122(2d Cir. 2005)(quoting Kennaugh v. Miller. 289 F.3d 36,42

(2d Cir. 2002)). A state court decision is "contrary to" clearly established federal law "ifthe
state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question

11

oflaw or ifthe state court decides a case differently than [the Supreme] Court has on a set of
materially indistinguishable facts." Williams v. Taylor. 529 U.S. 362,412-13 (2000). A state
court decision is an "unreasonable application" of clearly established federal law "ifthe state

court identifies the correct governing legal principle from [the Supreme] Court's decisions but

unreasonably applies that principle to the facts ofthe prisoner's case." Id at 413. The 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.303 F.3d at 245 (internal quotation
marks, alterations, and emphases omitted). "Under AEDPA's 'unreasonable application' clause,
our review is extremely deferential: '[a] state court's determination that a claim lacks merit
precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness
ofthe state court's decision." Chrysler v. Guinev, 806 F.3d 104,118(2d Cir. 2015)(quoting
Harrington v. Richter, 562 U.S. 86, 101 (2011)).

Also under AEDPA,"a determination of a factual issue made by a State court [is]

presumed to be correct," and the petitioner has "the burden of rebutting the presumption of
correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). A state court's findings
"will not be overturned on factual groimds unless objectively unreasonable in light ofthe

evidence presented in the state-court proceeding." Miller-El v. CockrelL 537 U.S. 322, 340

(2003). When conducting its review pursuant to § 2254(d)(1), a federal court is generally
"limited to the record that was before the state court that adjudicated the claim on the merits."
Cullenv. Pmholster. 563 U.S. 170, 181 (2011).
III.

DISCUSSION

Petitioner challenges his state court convictions and sentencing. He raises five grounds
for his petition for writ of habeas corpus:(1)the trial court erred by admitting evidence of
uncharged crimes against him;(2)he was denied his Sixth Amendment right to confront
12

witnesses when the trial court prevented him from cross-examining a witness on the issue of"a
drug related motive for the death ofthe deceased";(3)he was denied the right to present a

complete defense because the trial court barred him from adducing evidence ofthe drug related
motive;(4)the trial court erred in ordering that his murder and robbery sentences run

consecutively rather than concurrently; and(5)his appellate counsel was ineffective. (See Am.
Pet. at 6-22.) The court addresses each ofthese grounds in turn and finds that none justify
issuance of a writ of habeas corpus.
A.

Admission of Uncharged Crimes

Petitioner asserts that he was denied due process when the trial court admitted evidence
of uncharged crimes, and that such evidence was significantly prejudicial to him. (Id at 6.) It is
unclear on the face ofthe Amended Petition what prejudice Petitioner claims resulted, but the

court construes the pro se Amended Petition liberally and considers this claim in light ofthe
arguments raised in the state court proceedings. See Triestman v. Fed. Bureau ofPrisons, 470
F.3d 471,474(2d Cir. 2006). On direct appeal before the Appellate Division, Petitioner argued
that the admission oftestimony relating to uncharged crimes deprived him of a fair trial because

it constituted impermissible character evidence. (Appellant's Br. at 1, 7.) At trial, prosecution
witnesses Pinkney and Everett testified to a series of uncharged robberies that occurred both
before and after the charged offenses. (Trial Tr. 1263:7-1290:2, 1538:7-1557:15.) With respect
to each uncharged robberies, the witnesses testified that Petitioner drove the car, provided them

with guns,identified the chain-wearing targets, pawned the stolen chains, and split the proceeds
with all who participated in the crimes. (Id) Petitioner argued that this evidence allowed for an

impermissible propensity inference, i.e., because Petitioner committed a string of similar armed
robberies in the past, he was more likely to have committed the charged crimes. (Appellant's Br.
at 4.)
13

1.

Exhaustion

The court concludes that Petitioner exhausted his remedies in state court relating to the

admission of uncharged crimes. (See id at 15.) The improper admission ofevidence of

uncharged crimes can rise to a constitutional violation "ifthe evidence in question is sufficiently
material to provide the basis for conviction or to remove a reasonable doubt that would have
existed on the record without it." Katowski v. Greiner. 212 F. Supp. 2d 78, 86(B.D.N.Y. 2002)
(quoting Johnson v. Ross,955 F.2d 178, 181 (2d Cir. 1992^h see also Dowling v. United

States. 493 U.S. 342, 352(1990)(finding that due process would be violated if erroneous
admission ofevidence relating to acquitted conduct was "so extremely imfair that its admission
violate[d] fundamental conceptions ofjustice"); cT Roldan v. Artuz, 78 F. Supp. 2d 260,276
(S.D.N.Y. 1999)(finding that a § 2254 habeas claim that evidence of uncharged crimes was

improperly admitted under state law must rise to a constitutional violation to justify federal

review). While no constitutional provisions were cited in his appellate brief. Petitioner asserted
in his direct appeal that the "pervasive and detailed nature ofthe evidence [caused] substantial

harm [and] deprived Devaughn of a fair trial." (Appellant's Br. at 18-20.) Petitioner has thus
arguably alleged a pattern offacts that is well within the mainstream of constitutional litigation.
See, e g.. Torres v. Keane. No.98-CV-2444,2000 WL 35573160, at *1 (2d Cir. Oct. 12, 2000)

(summary order); Katowski. 212 F. Supp. 2d at 86. Accordingly, the court finds Petitioner's
claim exhausted.
2.

Procedural Bar

Petitioner's claim relating to imcharged crimes is not procedurally barred. The Appellate
Division addressed the issue on the merits in the direct appeal and did not invoke any state law

procedural barriers to resolve the claim. DeVaughn.925 N.Y.S.2d at 116("[T]he evidence of
the prior robberies was admissible to provide the jury with a thorough understanding ofthe
14

defendant's relationship with the prosecution witnesses, particularly as to why the defendant
would speak freely to those witnesses about having committed the robberies at issue.").
3.

Review under AEDPA

Because Petitioner exhausted his claim and his claim was adjudicated on the merits, the

court will review the state court determination pursuant to the deferential standard set out in
AEDPA. The court concludes that the Appellate Division's decision was neither contrary to, nor
involved the unreasonable application of, clearly established Supreme Court precedent.
Accordingly, Petitioner's claim relating to admission of uncharged crimes fails.
As an initial matter,the Supreme Court has not specifically addressed whether the
admission of uncharged crimes evidence constitutes a violation of due process. S^ Parker v.
Woughter. No. 09-CV-3843(GEL),2009 WL 1616000, at *2(S.D.N.Y. June 9,2009); see also
Hugh V. Mitchell. 329 F.3d 496, 512(6th Cir. 2003)("There is no clearly established Supreme

Court precedent which holds that a state violates due process by permitting propensity evidence
in the form of other bad acts evidence."). The Appellate Division thus could not have arrived at
a conclusion opposite to that ofthe Supreme Court. This case also does not present facts
materially indistinguishable from those in a case decided by the Supreme Court. See Williams v.
Tavlor, 529 U.S. 362,412-13(2000). The state court's dismissal ofPetitioner's uncharged
crimes claim on direct appeal therefore was not contrary to clearly established Supreme Court
precedent.

The pertinent question then is whether the Appellate Division's affirmance ofPetitioner's
conviction, in light ofthe admission of uncharged crimes testimony, was an unreasonable

application of Supreme Court precedent. For an erroneous admission ofevidence to rise to the
level of a constitutional violation of due process. Petitioner must show that the evidence was "so
extremely unfair that its admission violates 'fundamental conceptions ofjustice.'" Dowling. 493
15

U.S. at 352(quoting United States v. Lovasco. 431 U.S. 783,790(1977)). The Supreme Court
has construed the "category ofinfractions that violate 'fundamental fairness' very narrowly." Id.

This is especially true where state rules of criminal procedure are implicated, because the
Supreme Court is not a "rule-making organ for the promulgation of state rules of criminal
procedure." S^ Spencer v. Texas. 385 U.S. 554,564(1967); see also Lewis v. Jeffers. 497
U.S. 764,780("[HJabeas corpus relief does not lie for errors of state law.").
The court cannot conclude that the admission oftestimony of uncharged crimes violated

Petitioner's right to due process. Similar to federal law. New York law bars evidence of
uncharged crimes or prior bad acts if that evidence is offered solely to establish a defendant's
predisposition to conunit the charged crime. See Feliciano v. Berbarv, No. 03-CV-4832
(NRB),2003 WL 22832638, at *3(S.D.N.Y. Nov. 25,2003); see also Fed. R. Evid. 404(b);
People V. Molineux. 61 N.B. 286,293(N.Y. 1901). Such evidence may be admitted, however,

"where it is relevant to an issue other than a defendant's propensity to conunit the act or crime."
Feliciano, 2003 WL 22832638, at *3. For example, evidence of uncharged crimes is permissible

to prove motive,intent, identity, lack of accident, or mistake, or to complete the narrative ofthe
crime. S^ Fed. R. Evid. 404(b); People v. Ventimiglia. 420 N.E.2d 59,62(N.Y. 1981).

Specifically, prior bad acts may be used "to provide the jury with a thorough understanding of
the defendant's relationship with the prosecution witnesses, particularly why the defendant
would speak freely to those witnesses about having committed the [charged crimes]." People v.
Vega, 805 N.Y.S.2d,642,643(App. Div. 2005): see also People v. Sime,687 N.Y.S.2d 78,79
(App. Div. 1998). Where evidence was admitted under state law for reasons sufficiently

consistent with federal rules, no due process claim will lie. Feliciano, 2003 WL 22832638, at *3.

16

Here, evidence ofthe uncharged crimes was admitted for a legitimate purpose. Pinkney,
Everett, and Petitioner's history of committing similar robberies together was relevant "to

explain the nature oftheir relationship so as to account for [Petitioner]'s sharing of highly
incriminating information with the witness[es]." Sime,687 N.Y.S,2d at 79. Pinkney and Everett
testified that several days after the charged crime, Petitioner greeted them as they arrived back in
New York from a weekend away. fSee Trial Tr. 1279:1-7, 1549:5-15.) He asked them where

they had been and indicated that he had to "put some work in himself." (Id, 1279:1-1279:2.)

Petitioner complained that they were unavailable to assist. DeVaughn,925 N.Y.S.2d at 115-16.
Petitioner then shared with Pinkney and Everett a detailed account of how the charged crimes
were committed, going so far as to take them to the scene of the crimes to describe how the

events took place. (Trial Tr. 1279:1-1285:5, 1549:3-1553:1.) Evidence ofthe uncharged crimes
thus was not admitted to show Petitioner's propensity to commit the charged crime. Rather, it

was used to provide the jury context within which to assess whether Petitioner's supposed
disclosure of highly incriminating information to Pinkney and Everett was credible. Such use is
consistent with both New York and federal rules of evidence.

Furthermore,the trial court mitigated any potential unfairness by issuing limiting

instructions to the jury. After Pinkney testified as to the uncharged crimes, the trial court

explained: "It's not being offered to prove that this defendant was involved in those prior
robberies [so] do not consider it for any purpose ... other than [these] two purposes:

[r]elationship and [the] reasons for the conversation, and the bring back to the scene after the

crime." (Appellant's Br. at 7.)^ The court reiterated the instructions after Everett's testimony.

' to an error in the trial transcript in the record, the court is missing pages 1294 and 1295, which contained the
Due
limiting instruction relating to Pinkney's testimony. However, in the state court filings, the parties do not dispute
the specific language used in this charge and the text was set forth in full in the Petitioner's appellate briefon direct
appeal. The court dierefore cites this appellate brieffor the limiting instruction regarding Pinlmey's testimony.
17

(Trial Tr. 1614:25-1615:9.) Thus,the instructions expressly limited the consideration ofthe
uncharged crimes testimony solely for permissible reasons. Juries are presumed to follow the
court's instructions. See United States v. Snvpe,441 F.3d 119, 129(2d Cir. 2006); see also

Opper V. United States, 348 U.S. 84,95(1954)("Our theory oftrial relies upon the ability of a
jury to follow instructions."). "Viewing the evidence of alleged uncharged crimes in light ofthe
proper instructions before the jury, the admission ofthis testimony cannot constitute a due
process violation." Urena v. Lane. 373 F. Supp. 2d 449,456(S.D.N.Y. 2005).
At best,"fairminded jurists could disagree" as to whether the contested evidence
rendered Petitioner's trial so fundamentally unfair that his right to due process was violated.
Chrysler. 806 F.3d at 118. Petitioner thus is not entitled to habeas relief on this ground.
B.

Violation of the Sixth Amendment's Confrontation Clause

Petitioner also asserts that he was denied his rights under the Confrontation Clause ofthe

Sixth Amendment. (Am.Pet. at 7.) Petitioner argues that the trial court erroneously limited the
scope of his cross-examination of Wayne Wright, the surviving robbery victim, when the court
prevented Petitioner's counsel from presenting a drug-related theory for the robbery.
(Appellant's Br. at 22.) The Confrontation Clause claim is exhausted but procedurally barred.
Accordingly,the claim fails.
1.

Exhaustion

Petitioner exhausted his remedies for his Confrontation Clause claim. Petitioner's brief

on direct appeal specifically referenced violations of"his rights of confrontation" and the "right
to conduct a full and fair cross-examination." (Appellant's Br. at 1.) This is sufficient to alert
the state court as to the claim's federal nature.

Dave.696 F.2d at 192. Moreover, it was

clear that the Appellate Division was aware ofthe federal nature ofthe claim because the court

18

referred to the Sixth Amendment and cited to Supreme Court precedent relating to the
Confrontation Clause. See DeVaughn. 925 N.Y.S.2d at 116-17.
2.

Procedural Bar

However,the claim is procedurally barred because Petitioner failed to make a
contemporaneous objection as required by state law. A federal court cannot review an issue
raised in a habeas petition if the state court previously dismissed the claim on an independent
state law ground that is adequate to support the judgment. S^ Cone. 556 U.S. at 465.
a.

Independent State Law Ground

It is clear that Petitioner's Confrontation Clause claim was denied on an independent

state law ground. A state law ground is independent if it "fairly appear[s] to rest primarily on

state procedural law." Jimenez v. Walker.458 F.3d 130, 138(2d Cir. 2006)(citation omitted).
Here,the Appellate Division applied New York's contemporaneous objection rule to find that
Petitioner's claim was "unpreserved for appellate review." DeVaughn.925 N.Y.S.2d at 116.

Under New York law, a party claiming an error in the admission of evidence must raise the issue
when the evidence is admitted or it is waived. See, e.g.. People v. Kello. 746 N.E.2d 166, 167

(N.Y. 2001); People v. Grav.652 N.E.2d 919,921 (N.Y. 1995); see also N.Y. Crim. Proc. Law
§ 470.05(2). Petitioner argued at trial that he should be able to question Wright about the

deceased's drug-dealing and the possibility ofa drug-related motive for the killing (Appellant's
Br. at 22), but never claimed that the court's evidentiary decision denying the request violated
his rights under the Confrontation Clause (see Trial Tr. 1181:16-1192:13). The state court's
dismissal ofPetitioner's Sixth Amendment claim for failing to make a contemporaneous

objection thus rests primarily on a state law ground and was independent ofthe merits of his
objection. DeVaughn.925 N.Y.S.2d at 116(citing People v. Walker. 70 A.D.3d 870, 871 (N.Y.

19

App. Div. 2010)'): see also Zarvela v. Artuz, 364 F.3d 415,417(2d Cir. 2004)(finding

"petitioner's claim was procedurally defaulted for lack of a contemporaneous objection").'^
b.

Adequacy ofProcedural Bar

Even where the state court dismissed a claim on an independent state law ground, a

habeas court must still assess the adequacy ofthe procedural bar because it has "an independent
duty to scrutinize the application of state rules that bar []review offederal claims." Cone. 556
U.S. at 468. A state procedural rule is adequate if it is firmly established and regularly followed.
See Walker v. Martin. 562 U.S. 307, 316 f2011): see also Downs v. Lane. 657 F.3d 97,102

(2d Cir. 2011). Application ofthe procedural rule also must be justified by legitimate state
interests. S^ Downs.657 F.3d at 101. Here, both criteria are met. The Second Circuit has

found that the contemporaneous objection rule is firmly established and regularly followed in
New York. Id at 102; see also Whitelv v. Ercole. 642 F.3d 278, 286(2d Cir. 2011). The

contemporaneous objection rule also serves legitimate state interests as it seeks "to ensure that
parties draw the trial court's attention to any potential error while there is still an opportunity to
address it, and to prevent those who fail to do so from sandbagging the opposing party and the
trial court on appeal." Downs.657 F.3d at 106 (citation and intemal quotation marks omitted).
Nevertheless,"there are exceptional cases in which exorbitant application of a generally
sound rule renders the state ground inadequate to stop consideration of a federal question." Lee
V. Kemna.534 U.S. 362,376(2002). To determine if a particular case presents such exceptional
circumstances, a court must consider the following:

(1)... whether perfect compliance with the state rule would have
changed the trial court's decision; (2) whether state case law
indicated that compliance with the rule was demanded in the specific
^ It is ofno moment that the Appellate Division also found that Petitioner's claim was,"in any event, without merit'
DeVaughn.925 N.Y.S.2d at 116. The state court's holding that the objection was procedurally barred forecloses
habeas review ofthe same claim. Green v. Travis. 414 F.3d 288,294(2d Cir. 2005).
20

circumstances presented; and (3) whether petitioner had
'substantially complied' with the rule given the 'realities of trial,'
and,therefore, whether demanding perfect compliance with the rule
would serve a legitimate governmental interest.

Cotto V. Herbert. 331 F.3d 217,240(2d Cir. 2003)(quoting L^,534 U.S. at 376). Here,the
court first notes that while determining whether perfect compliance with the contemporaneous

objection rule would have changed the trial court's decision "involves a certain degree of
speculation," a timely objection at least would have put the court on notice ofa potential
constitutional error. Id at 243. Second, New York courts have required compliance with the

contemporaneous objection rule in similar circumstances. See, e.g.. People v. Smith,75
A.D.3d 420,421 (N.Y. App. Div. 2010), afFd, 965 N.E.2d 232(N.Y. 2012). Finally, because
Petitioner neither expressly nor implicitly raised this claim in the trial court, he did not
"substantially comply" with the state procedural rule. As noted previously, compliance serves a

legitimate governmental interest by putting a trial court on notice ofthe error so that it can be
remedied if necessary. See Downs,657 F.3d at 106. This is not an exceptional case that justifies
finding inadequate the generally sound contemporaneous objection rule.
c.

Cause and Prejudice or Miscarriage ofJustice

Petitioner may still obtain review ofthe procedurally barred claim if he can establish
cause for the procedural default and prejudice from denial of habeas review. S^Parks v.

Sheahan, 104 F. Supp. 3d 27l,282(E.D.N.Y. 2015). Cause for a procedural default typically
requires a showing that some objective element external to the defense impeded counsel's efforts
to comply with a state's procedural rules. See Amadeo v. Zant,486 U.S. 215,222(1988); see
also Murrav,477 U.S. at 488. Alternatively, a federal court may review a procedurally defaulted

claim ifthe petitioner shows that a fundamental miscarriage ofjustice will result from nonreview. See Murra,477 U.S. at 492. A miscarriage ofjustice generally requires a showing of

21

actual innocence through new evidence that was not available to the jury, such as "exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical evidence."

Schlup

V. Delo,513 U.S. 298, 324-25. Where no "information regarding cause for the default or a
miscarriage ofjustice" is presented in a habeas petition, there is no basis to consider a

procedurally defaulted claim. Silent v. Perlmann. No.07-CV-4524(JFB),2008 WL 5113418, at
*7(E.D.N.Y. Nov. 25, 2008). Here, Petitioner has neither explained how he was prevented from
raising a Confrontation Clause claim in the trial court, nor does he assert his actual innocence.
There is thus no basis to consider his defaulted claim, and he is not entitled to habeas relief on
this ground.
C.

Deprivation of Right to Present a Defense

Petitioner also contends that he was deprived ofthe right to present a defense when the
trial court prevented him from eliciting testimony as to a drug-related motive for the shooting.

(Am.Pet. at 7.) The court finds that his claim has been exhausted and is not procedurally barred.
However,the claim fails on the merits.
1.

Exhaustion

Petitioner satisfied the exhaustion requirement for his claim by fairly raising the federal
claim in his direct appeal. Petitioner explicitly argued that his right to present a defense was

grounded in the U.S. Constitution and cited relevant Supreme Court precedent. (Appellant's Br.
at 21-22.)
2.

Procedural Bar

Petitioner's right to present a defense claim is not procedurally barred. The Appellate

Division addressed the right to present a defense on direct review, and denied Petitioner's appeal
on the merits without invoking any procedural barriers. DeVaughn.925 N.Y.S.2d at 116("[T]he
[trial court] properly precluded defense counsel from asking the surviving robbery victim ifthe
22

shooting could have been perpetrated by a third party in retaliation for a drug-deal-related
stabbing robbery ... since this line of questioning was based only on speculation.").
3.

Review under AEDPA

The court thus analyzes the Appellate Division's adjudication on the merits pursuant to
the deferential standard set out in AEDPA. Because the Appellate Division's decision was
neither contrary to, nor involved the unreasonable application of, clearly established Supreme
Court precedent. Petitioner's claim relating to his right to present a defense fails.
a.

Contrary to Clearly Established Federal Law

While it is true that the Supreme Court has made clear that"a criminal defendant has a
constitutional right—grounded in the Sixth Amendment's Compulsory Process and
Confrontation Clauses and the Fourteenth Amendment's Due Process Clause—^to 'a meaningful

opportunity to present a complete defense,"' Hawkins v. Costello. 460 F.3d 238,243

(2d Cir. 2006)(quoting Crane v. Kentucky,476 U.S. 683,690(1986)), this right is not
"unlimited; rather it is subject to 'reasonable restrictions,"' Wade v. Mantello, 333 F.3d 51,58
(2d Cir. 2003)(quoting United States v. Scheffer, 523 U.S. 303, 308 (1998)). "Central among
these restrictions are state and federal rules of procedure and evidence 'designed to assure both
fairness and reliability in the ascertainment of guilt and innocence.'" Id (quoting Chambers v.
Mississippi, 410 U.S. 284,302(1973)). But,"a state is not free to apply arbitrary rules of

competence to prevent a material witness from testifying for the defense, nor may it 'apply a rule
of evidence that permits the witness to take the stand, but arbitrarily excludes material portions
of his testimony.'" Id at 57(quoting Rockv. Arkansas. 483 U.S. 44,55 (1987)). However, as

relevant here, the Supreme Court "has not articulated the specific set of circumstances under
which a criminal defendant must be permitted to introduce evidence of potential third-party
culpability." Id at 58. It has only noted that "such evidence must be admitted when,under the
23

'facts and circumstances' ofthe individual case, its exclusion denied the defendant of a fair

trial.'" Id,(quoting Chambers,410 U.S. at 303). Therefore, it cannot be said that it was contrary

to clearly established federal law as defined by the Supreme Court to exclude evidence ofthird
party culpability, i.e., an alternative, drug-related motive for the shooting.

b.

Unreasonable Application ofClearly Established Federal Law

The question then, is whether the state court decision was an unreasonable application of
clearly established federal law. When considering whether exclusion of evidence violated a
criminal defendant's right to present a complete defense, a court must first consider "the
propriety ofthe trial court's evidentiary ruling." Hawkins.460 F.3d 238, 244(2d Cir. 2006)
(quoting Wade. 333 F.3d at 59). Ifthe evidentiary ruling was correct pursuant to a state
evidentiary rule, then the applicable inquiry is whether the evidentiary rule is "arbitrary" or
"disproportionate to the purposes [it is] designed to serve." Id.(quoting United States v.
Scheffer. 523 U.S. 303, 308 (1998)).
i.

Propriety ofthe Ruling under State Law

In New York,"[wjhere a defendant seeks to pursue a defense ofthird-party culpability at
trial, evidence offered in support ofthat defense is subject to the 'general balancing analysis that

govems the admissibility of all evidence.'" People v. DiPippo. 50 N.E.3d 888,893(N.Y. 2016)
(quoting People v. Primo. 753 N.E.2d 164,168(N.Y. 2001)). However,"'admission ofevidence
ofthird-party culpability may not rest on mere suspicion or surmise." Id (quoting Primp, 743
N.E.2d at 169). This is because the "risks of delay, prejudice, and confusion are particularly

acute" where a defendant seeks to present evidence ofthird party culpability. Id at 899. In this
case. Petitioner's counsel sought to introduce third party culpability evidence by questioning the
surviving robbery victim, Wright, on whether there was a potential drug-related motive for the
killing. (Trial Tr. 1180:20-1181:3.) Petitioner's counsel argued that a detective's initial
24

investigation report provided a good faith basis to believe that there may not have been a robbery
at all, and that the death was retribution by other drug-dealers against the victim.
(14 1183:6-23.)

The court finds that the third party culpability evidence was wholly speculative, and thus

properly excluded. According to Petitioner's trial counsel,the preliminary investigative report
indicated that Wright was a marijuana dealer and Douglas,the deceased was Wright's supervisor
in these drug activities. (Trial Tr. 1188:1-13.) The report also provided thatjust before the

robbery and shooting at issue, Douglas and Wright discussed the recent stabbing of a rival drug
dealer. (Id) However,there was no indication that this stabbing was in any way linked to the

subsequent shooting, and thus it was pure speculation that there was a drug-related motive for the
shooting here. In essence. Petitioner argued that some unidentified third party might have had a
motive to shoot the deceased because another drug dealer's stabbing may have resulted from his

involvement in the drug trade. Courts have rejected similar attempts to admit such speculative
evidence ofthird party culpability. See, e.g., DiPippo. 50 N.E.3d at 893("[SJpeculative
assertions that other unidentified individuals had a motive to harm a victim are insufficient to

support admission ofthird-party culpability evidence."); People v. Gramble. 899
N.Y.S.2d 207,208(App. Div. 2010)("The court properly exercised its discretion in precluding
background information about one ofthe victims, offered by defendant to show that unknown

persons may have had a motive to kill him."). Furthermore, admission ofthe proffered
testimony could have misled or confused the jury, diverting their attention from consideration of
Petitioner's guilt or innocence to the deceased's character and alleged involvement in drug
dealing, as well as inviting the jury to draw connections between the stabbing and shooting
where there is no indication any existed. See Wade. 333 F.3d at 61-62. Therefore, the trial court

25

properly applied the "general balancing analysis that governs the admissibility of all evidence,"
Primo. 753 N.E.2d at 168, and the preclusion oftestimony relating to the drug-related motive
was not erroneous under New York law.

ii.

Arbitrariness ofthe Evidentiary Rule

Where a trial court properly excluded evidence pursuant to a state evidentiary rule, the
question becomes whether the state rule is "arbitrary" or "disproportionate to the purposes [it is]
designed to serve." Hawkins.460 F.3d at 244(quoting SchefFer, 523 U.S. at 308). Exclusion of
evidence is "unconstitutionally arbitrary or disproportionate [only] where it has infringed upon a

weighty interest ofthe accused." Scheffer, 523 U.S. at 308. It should be noted that "the
Supreme Court has found the Constitution to be principally(but not always)concerned with state
evidentiary rules leading to the 'blanket exclusion' ofcategories of evidence," rather than
ordinary rules of evidence where a court weighs the probative value ofthe challenged evidence
against potential for issues such asjury confusion, undue delay, or prejudice. Wade. 333 F.3d

at 60(quoting Crane. 476 U.S. at 690). In the latter instance,"the Constitution leaves to the
judges...'wide latitude' to exclude evidence

" Id.(citation omitted). The trial court

excluded the purported evidence ofthird party culpability pursuant to a state rule that requires a
court to balance the probative value against the "risks of delay, prejudice, and confusion."
DiPippo. 50 N.E.3d at 899. It is therefore the type of evidentiary rule where the Constitution
affords trial judges broad discretion to determine admissibility, and not the kind of blanket
exclusion rule that traditionally risks running afoul ofthe Constitution. In any event, courts have
held that the exclusion of speculative third party culpability evidence does not "infiringeQ upon a
weighty interest ofthe accused." Collins v. Barto. No.05-CV-9387(RWS),2007 WL 2398778,
at *13-14(S.D.N.Y. Aug. 14, 2007). The state evidentiary rule therefore is not
imconstitutionally arbitrary or disproportionate.
26

Because the exclusion of evidence regarding a potential drug-related motive to the

deceased's killing was neither contrary to, or an unreasonable application of, clearly established
federal law, Petitioner's claim that his right to present a defense was violated fails.
D.

Consecutive Sentences

Petitioner next asserts that the trial court erred in ordering his sentences for robbery to

run consecutively to his sentences for murder. Petitioner characterizes this as an improper
enhancement to his sentence in violation of his Eighth and Fourteenth Amendment rights. (Am.

Pet. at 9.) The court construes the Amended Petition to challenge his sentence on the grounds
that it is cruel and unusual punishment under the Eighth Amendment as applied to the states

through the Fourteenth Amendment.^ See Triestman. 470 F.3d at 474. Although Petitioner's
claim is unexhausted and is not procedurally barred, the court nonetheless dismisses the claim
because it is without merit.
1.

Exhaustion

Petitioner's constitutional claim related to his sentences for robbery running

consecutively to his sentences for felony murder are unexhausted because they were not fairly

presented as a federal claim to the state court. While Petitioner challenged the legality of his
sentences via a motion to vacate under § 440.20 ofthe New York Criminal Procedure Law,the
only legal basis for his motion was based on New York state law, specifically. New York Penal

Law § 70.25(2), governing the imposition of consecutive sentences. (Aff. of Alex DeVaughn in

Supp. of Mot. to Set Aside Sentence ^ 4.) By only referring to state law violations and failing to
mention any constitutional provisions, Petitioner did not "assert[]...[his] claim[s] in terms so

^ Petitioner also claims that his sentence violated the Sixth Amendment, but he provides no explanation for this
contention. Even liberally construing the pro se Amended Petition, the court is unable to find a colorable basis for a
violation ofthe Sixth Amendment. This portion ofPetitioner's claim is therefore dismissed as meritless.
27

particular as to call to mind a specific right protected by the constitution." Dave.696 F.2d
at 192. A challenge on state statutory grounds also cannot be said to be "substantially
equivalent" to Petitioner's current constitutional claims such that the state court was likely
alerted to the federal nature ofPetitioner's motion. Of note, in his § 440 filings, Petitioner cited

only to New York state cases, none of which "employed constitutional analysis in like factual
situations." Id. at 194.

2.

Procedural Bar

Petitioner's claim is not procedurally barred. An unexhausted claim may be procedurally
barred, and thus deemed exhausted, if it is clear that the state court to which a petitioner must

present his claim would now find the claim procedurally defaulted. See Clark v. Perez, 510
F.3d 382, 390(2d Cir. 2008k see also Coleman v. Thompson. 501 U.S. 722,729(1991). Here,
Petitioner could seek an additional § 440.20 proceeding in state court challenging the legality of
his sentence under the Constitution and Supreme Court precedent. See Saracina v. Artus.

No.04-CV-521S(WMS),2007 WL 2859722, at *7(W.D.N.Y. Sept. 26, 2007). "Section 440.20

permits a movant to bring a collateral attack on the legality of his sentence at any time after
conviction unless the issue was previously decided on the merits on direct appeal." Id (citing
Reves v. Phillips. No.02-CV-7319(LBS),2005 WL 2173812, at *5(S.D.N.Y. Sept. 6,2005)).

The legality ofPetitioner's sentence was not decided on the merits on his direct appeal,thus he
can still challenge the sentence in a § 440.20 proceeding. See N.Y. Crim. Proc. Law
§ 440.20(2).
3.

Merits

Although the court finds that Petitioner's claim is unexhausted and not procedurally
barred, it nevertheless denies habeas relief on this basis because the claim is without merit.

Ordinarily,"courts may not adjudicate mixed petitions for habeas corpus, that is, petitions
28

containing both exhausted and unexhausted claims." Rhines v. Weber,544 U.S. 269,273

(2005). However, a mixed petition "may be denied on the merits, notwithstanding the failure of
the applicant to exhaust the remedies available in the courts ofthe State." 28 U.S.C.

§ 2254(b)(2); see also Turner. 262 F.3d at 122. A court therefore may reach the merits ofan
unexhausted claim if it finds the claim to be meritless in order to deny the petition in its entirety.
McCall V. Rivera. 965 F. Supp. 2d 311, 330(S.D.N.Y. 2013).

Petitioner argues that the imposition ofconsecutive sentences for his felony murder and
robbery charges was cruel and unusual in violation ofthe Eighth Amendment. "Eighth
amendment analysis focuses on the sentence imposed for each specific crime, not on the
cumulative sentence." United States v. Aiello. 864 F.2d 257, 265(2d Cir. 1988). The reason is

that "ifthe defendant has subjected himselfto a severe penalty, it is simply because he has
committed a great manv such offences." Id (internal alternation marks omitted)(quoting O'Neil
V. Vermont. 144 U.S. 323, 331 (1892)). Only under extraordinary circumstances would the
imposition of consecutive sentences constitute cruel and unusual punishment. Herrera v.

Artuz. 171 F. Supp. 2d 146,151 (S.D.N.Y. 2001). Courts must defer to the state legislative
determinations regarding the appropriateness of consecutive sentences, and intervene only

"where the punishment is barbaric or vastly disproportionate to the crime committed." Salcedo
V. Artuz. 107 F. Supp. 2d 405,414(S.D.N.Y. 2000)(citing Solemv. Helm.463 U.S. 277(1983),
which found a life sentence vastly disproportionate to a crime of passing a bad check for $100)).
As relevant here. New York law grants a sentencing court discretion to decide whether

multiple sentences ofimprisonment should run consecutively or concurrently. N.Y. Penal Law
§ 70.25(1). One exception to this general rule is sentences for "two or more offenses
committed...through an act or omission which itself constituted one ofthe offenses and also

29

was a material element ofthe other"; these sentences must run concurrently. Id § 70.25(2).
Petitioner and Respondent agree that felony murder and its predicate felony fall within the
purview of§ 70.25(2), i.e., Petitioner's sentences for the felony murder conviction based upon

the robbery of Douglas,the deceased, and the robbery of Douglas itself, must run concurrently,

and the sentences for felony murder premised upon the robbery of Wright, the surviving victim,
and the robbery of Wright must run concurrently. (See Resp't's Opp'n at 67-68.) The trial court
nonetheless ran the felony murder and robbery sentences consecutively, but the two felony
murder sentences and the two robbery sentences, respectively, concurrently. (Sentencing

Tr. 27:2-28:16.) Respondent contends that this was permissible because § 70.25(2) only requires
that a sentence for felony murder and its underlying felony be run concurrently, and so the felony

murder predicated on the robbery of Douglas could run consecutively with the robbery of

Wright, and vice versa. (See Resp't's Opp'n at 67-69.) The practical effect, however,is that the
Douglas felony murder and robbery sentences are run consecutively and the Wright felony
murder and robbery sentences are run consecutively, even if the explicit terms ofthe sentencings
did not require them to run consecutively.

While, intuitively, this appears to run afoul of § 70.25(2), it is not entirely clear that such
sentences are prohibited under New York law. See, e.g.. People v. Rilev. 765

N.Y.S.2d 890, 892-93(App. Div. 2003).^ Even ifthey were. Petitioner's challenge to his
consecutive sentences is an argument that the state court misapplied state law, and the proper

® In Rilev. the defendant was sentenced to a 25-to-life term ofimprisonment for intentional murder,two 12.5-to-25year terms for two robberies, and a 25-to-life term for felony murder predicated on the aforementioned
robberies. 765 N.Y.S.2d at 892-93. The intentional murder and the two robbery sentences were to run

consecutively, and the felony murder sentence was to run concurrent with the intentional murder as well as the two
predicate robbery sentences. Id. However, ifthe two murder sentences were run concurrently, then the felony
murder sentence would have to run consecutively to the predicate robbery sentences because the robbery sentences
must run consecutively with the intentional murder sentence. Id The Second Department held that such a
sentencing structure was permissible under § 70.25(2). Id
30

interpretation and application ofstate law is beyond the scope of habeas review.

Estelle, 502

U.S. at 63 ("[I]t is not the province of a federal habeas court to reexamine state-court

determinations on state law questions."). The only question for this court is whether consecutive
sentences are so "barbaric or vastly disproportionate to the crime committed" as to constitute an
Eighth Amendment violation. Salcedo. 107 F. Supp. 2d at 414. Petitioner was sentenced to a
cumulative term of37 years to life for convictions on two counts offelony murder and two

counts ofrobbery. (Sentencing Tr. 27:2-28:16.) Given the seriousness of the crimes and the fact
that even one count offelony murder carried a sentence of 25 years to life, Petitioner's

cumulative sentence of37 years to life is not barbaric or vastly disproportionate.
Because the court finds that Petitioner's consecutive sentences claim fails to raise a

cognizable constitutional issue, and because the court denies Petitioner's other grounds for
habeas relief Csee supra III.A-C,infra III.E), the unexhausted consecutive sentences claim is
dismissed on the merits.

E.

Ineffective Assistance of Appellate Counsel

Finally, Petitioner claims that he was denied his right to effective assistance of counsel

when appellate counsel failed to argue on appeal that trial counsel was ineffective for:(1)failing
to object to the medical examiner's testimony regarding an autopsy that was performed by a
different medical examiner;(2)opening the door to questioning and testimony regarding
uncharged crimes;(3)failing to object when the prosecutor vouched for the truthfulness of a
cooperating witness;(4)failing to object to the trial court's refusal to issue a requested jury
charge as to accessorial liability;(5)failing to adequately prepare and investigate on Petitioner's
behalf;(6)failing to object to the lack of a multiple defendantjury charge; and (7)failing to

31

investigate the law. (See Am.Pet. at 10-22.)^ These claims were exhausted at the state level in a
writ of error coram nobis proceeding and are not procedurally barred. However, Petitioner has

failed to establish that the Appellate Division's rejection of his claims ofineffective assistance of
appellate counsel was either contrary to, or an unreasonable application of clearly established
Supreme Court precedent. At a minimum,fairminded jurists could disagree as to whether the
Appellate Division's rulings were correct, and thus Petitioner has not met the deferential
standard ofreview under AEDPA.
1.

Exhaustion

Petitioner's ineffective assistance of appellate counsel claims were exhausted. He

petitioned the Appellate Division for a writ ofcoram nobis. arguing that he was "deprived of his
constitutional right to the effective assistance of appellate counsel," asserting the same grounds
as in his Amended Petition. (Compare DeVaughn Coram Nobis Aff,DeVaughn Suppl. Coram

Nobis Aff, with Am.Pet. at 10-22.) It is therefore clear that he "fairly presented [the claims] to
the state courts" by "inform[ing them] of both the factual and the legal premises ofthe claim[s]
he asserts." Dave,696 F.2d at 191. The Appellate Division evidently understood the federal
nature of Petitioner's claims because it cited Supreme Court precedent in denying the claims of
ineffective assistance of appellate counsel. DeVaughn.5 N.Y.S.3d at 894 (citing Jones v.
Barnes,463 U.S. 745(1983)). Petitioner has therefore satisfied the exhaustion requirement.
2.

Procedural Bar

Petitioner's claims also are not procedurally barred. "When a federal claim has been

presented to a state court and the state court has denied relief, it may be presumed that the state
court adjudicated the claim on the merits in the absence of any indication or state-law procedural

Petitioner does not explain the bases for these claims in his pro se Amended Petition, but the court will assume that
they rests on substantially the same grounds as that set forth in his error coram nobis application.
32

principles to the contrary." Harrington v. Richten 562 U.S. 86,99(2011). The Appellate
Division denied the coram nobis petition on the merits and did not indicate any other reason for
the denial. See DeVaughn.5 N.Y.S.Sd at 894. Accordingly, Petitioner's ineffective assistance
claims are not procedurally barred.
3.

Review under AEDPA

Because the state appellate court adjudicated Petitioner's ineffective assistance claims on

the merits, this court will review that court's denial pursuant to the deferential standard of
AEDPA. For the following reasons. Petitioner's claims of ineffective assistance of appellate
counsel do not warrant habeas relief.

a.

Contrary to Clearly Established Federal Law

As an initial matter, the Appellate Division's denial of Petitioner's request for a writ of
error coram nobis based on his claims of ineffective assistance of appellate counsel was not

contrary to clearly established federal law. While the Supreme Court has recognized that "the
[Sixth Amendment's]right to counsel is the right to the effective assistance of counsel,"
Strickland v. Washington.466 U.S. 668,686(1984)(quoting McMann v. Richardson. 397
U.S. 759, 771 n.l4 (1970)), an ineffectiveness claim cannot be based on counsel's failure to raise

all nonfrivolous arguments on appeal, Jones v. Barnes. 463 U.S. 745,754(1983). In fact,

"appellate counsel who files a merits brief need not(and should not) raise every nonJ&ivolous
claim, but rather may select from among them in order to maximize the likelihood ofsuccess on
appeal." Smith v. Robbins. 528 U.S. 259,288(2000)(citing Jones. 463 U.S. at 745). Instead, a
defendant must show that "counsel omitted significant and obvious issues while pursuing issues

that were clearly and significantly weaker." Lvnch v. Dolce. 789 F.3d 303, 311 (2d Cir. 2015).
Although the Appellate Division rejected the error coram nobis petition in a summary
disposition, it did note its reliance on the proper legal standard by citing to Jones and People v.
33

Stultz, 810 N.E.2d 883(N,Y. 2004). See DeVaughn.5 N.Y.S.Sd at 894. Stultz is a New York
Court of Appeals decision with an extensive constitutional analysis of an ineffective assistance
ofappellate counsel claim, including the application of Strickland. See generallv 810

N.E.2d 883. This analysis, coupled with the fact that this case is factually distinguishable from
any previously decided by the Supreme Court, is sufficient to show that the Appellate Division's
ruling was not contrary to Supreme Court precedent. Chrysler. 806 F.3d at 117; Clark v.
Stinson. 214 F.3d 315, 322(2d Cir. 2000).

b.

Unreasonable Application ofClearly Established Federal Law

The court next turns to whether the Appellate Division's denial ofthe coram nobis

petition constituted an unreasonable application of Supreme Court precedent. Specifically,
counsel's assistance is ineffective only if a defendant can show "(1)that his counsel's

representation 'fell below an objective standard ofreasonableness,' and (2)prejudice, in 'that
there is a reasonable probability that, but for counsel's unprofessional errors, the result ofthe

proceeding would have been different.'" Chrvsler. 806 F.3d at 117(quoting Strickland. 466 U.S.
at 688,694)); see also Smith. 528 U.S. at 285 (noting the same test is applied for claims "in the

appellate context as well as at trial"). To show that an appellate counsel's representation fell
below an objective standard ofreasonableness based on his failure to raise colorable claims on

appeal, counsel must have omitted "significant and obvious issues" while pursuing "clearly and
significantly weaker" ones. Lvnch. 789 F.3d at 311. "To establish prejudice in the appellate
context, a petitioner must show that, had his claim been raised on appeal, there is a reasonable
probability that it would have succeeded before the state's highest court." Id. "Whereas
counsel's performance is evaluated based on the facts ofthe particular case, viewed as ofthe
time of counsel's conduct,the prejudice determination may be made with the benefit of
hindsight." Id (citations and internal quotation marks omitted).
34

The court notes that the "highly deferential" standard ofreview under AEDPA amplifies
the already "highly deferential" standard under Strickland, rendering success on an ineffective
assistance of counsel claim in a habeas context exceedingly difficult. Harrington. 562 U.S.
at 105. Under Strickland, there is "a strong presumption that counsel's conduct f[ell] within the
wide range ofreasonable professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances,the challenged action 'might be considered sound []
strategy.'" 466 U.S. at 689(quoting Michel v. Louisiana. 350 U.S. 91,101 (1955)). When
effectiveness of counsel is evaluated by a habeas court, the bar is raised even higher because "the

question is not whether counsel's actions were reasonable [but] whether there is any reasonable
argument that counsel satisfied Strickland's deferential standard." Harrington. 562 U.S. at 105.

"[T]he range ofreasonable applications [of Strickland] is substantial." Chrysler. 806 F.Sd at 118
(citing Harrington. 563 U.S. at 105). Where, as here, the state court decision is a summary

disposition without detailed reasoning, this court "must determine what arguments or theories ...

could have supported the state court's decision; and then it must ask whether it is possible
fairminded jurists could disagree that those arguments or theories are inconsistent with the
holding in a prior decision of[the Supreme] Court." Harrington. 563 U.S. at 102.

The court finds it useful to briefly note the argximents appellate counsel did raise on

appeal. Appellate counsel's well-reasoned,twenty-nine page opening brief stressed three points
on appeal:(1)trial court erred in admitting evidence of uncharged crimes;(2)Petitioner was
denied his Sixth Amendment right to confront witnesses against him and to present a defense
when the trial court precluded him from putting forth evidence of a drug-related motive for the
death ofthe deceased; and(3)Petitioner was denied his right to due process when the trial court
failed to include an essential element offelony murder in its charge to the jury. (See generally

35

Appellant's Br.) Appellate counsel also made clear in a letter to Petitioner that it was a strategic
choice not to argue that trial counsel was ineffective assistance because such an argument would
undermine the more meritorious claims, namely, that the trial court erred despite hearing

compelling arguments from trial counsel. tSee DeVaughn Suppl. Coram Nobis Aff.^ 22).
The court reviews Petitioner's grounds for ineffective assistance of appellate counsel in
turn.

i.

Medical Examiner Testimonv

Petitioner asserts that appellate counsel should have argued that trial counsel was

ineffective for not objecting to the medical examiner's testimony. (See Am. Pet. at 10.) At trial.
Dr. Lara Goldfeder, a certified expert witness (Trial Tr. 1669:23-25), testified about the autopsy
ofthe deceased robbery victim and the corresponding autopsy report(id 1670:3-1685:21).
However,the autopsy was performed by Dr. Amy Hart, who, at the time ofthe trial, had left

New York. (Id 1671:3-6.) The autopsy report, which was also prepared by Dr. Hart and which
was received into evidence without objection, indicated that the cause of death was "Homicide
(shot by another)." (Autopsy Report(Pet'r's Resp. to Resp't's Opp'n to Writ of Error Coram
Nobis(Dkt. 15-3 at ECF No. 995), Ex. E)(Dkt. 15-4 at ECF No. 1036).) Petitioner argues that

allowing Dr. Goldfeder to testify as to the autopsy report prepared by Dr. Hart violated his Sixth
Amendment right to confront the witnesses against him. (DeVaughn Coram Nobis Aff. at 3.)

Petitioner has not shown that appellate counsel's failure to raise this issue on appeal was
unreasonable. While it is true that the Confrontation Clause has been interpreted to bar

admission of"testimonial evidence," the Supreme Court has only stated "testimonial evidence"
includes "prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to

police interrogations," and has yet to define the full contours of what it means to be
"testimonial." Crawford v. Washington. 541 U.S. 36,68 (2004). Furthermore, under then and
36

current New York caselaw, admission ofautopsy reports prepared by non-testifying medical

examiners does not violate the Sixth Amendment.

People v. Frevcinet 892 N.E.2d 843,846

(N.Y. 2008); People v. Acevedo. 976 N.Y.S.2d 82, 83(App. Div. 2013). In assessing whether a
scientific report is testimonial in nature and thus implicates the Confrontation Clause, the New

York Court of Appeals has considered whether the report:(1)was prepared by an arm ofthe law
enforcement;(2)contains a "contemporaneous record of objective facts";(3)likely contains a
pro-law enforcement bias; and(4)"explicitly link[s]" the defendant to the crime. Frevcinet. 892
N.E.2d at 845-46. A medical examiner is not part of an arm oflaw enforcement, see id., and Dr.

Hart's report contains a mostly contemporaneous, objective account of observable facts, does not
contain a pro-law enforcement bias, and makes no reference to Petitioner. See id. Although the

report in Frevcinet was redacted for the medical examiner's opinion and Dr. Hart's report

contained an opinion as to the cause of death, the "significance ofthe report to this case
[similarly] derives almost entirely from Dr.[HartJ's precise recording of[her] observations and
measurements as they occurred." Id. at 846. Given the state ofthe law and mindful ofthe strong

presumption that counsel's conduct fell within the wide range of reasonable professional
assistance,

Strickland. 466 U.S. at 689,the court cannot conclude that trial counsel's decision

not to object to Dr. Goldfeder's testimony about Dr. Hart's report was unreasonable, much less
that it was unreasonable for appellate counsel not to advance such an argument. For similar

reasons. Petitioner fails to show that appellate coimsel's conduct prejudiced him, i.e., "there is a
reasonable probability that [the claim] would have succeeded." Lvnch.789 F.3d at 311.
Accordingly,the Appellate Division correctly denied Petitioner's claim.

37

ii.

Opening the Door to Uncharged Crimes Post-Dating the
Charged Offense

Petitioner also asserts that his appellate counsel should have argued that trial counsel was

ineffective for opening the door to testimony regarding uncharged crimes. (DeVaughn Coram
Nobis Aff. at 3.) Before trial, the court ruled that the prosecution could introduce evidence of
uncharged robberies allegedly committed by Petitioner and two cooperating witnesses, but only

those that pre-dated the charged offenses and not after. (Trial Tr. 42:3-15.) Petitioner's trial
attorney brought up the post-dated robberies in his opening statement(id. 1104:25-1105:20), thus
opening the door for the prosecution to introduce evidence relating to the same (see
id. 1109:23-1110:4.) Petitioner's trial counsel indicated that his cross-examination strategy

necessitated opening the door in this fashion. (Id. 1110:18-20("I anticipate fully that the door
will be opened,so I have no problem with the witnesses testifying about that.").)
Appellate counsel's choice not to argue trial counsel was ineffective on this ground was
reasonable. "[T]he decision of appellate counsel to choose among plausible options of appellate
issues is preeminently a strategic choice and is 'virtually unchallengeable.'" Richburg v.
Hood. 794 F. Supp. 75, 78-79(E.D.N.Y. 1992)(quoting Strickland. 466 U.S. at 690); Jones. 463
U.S. at 751-52("Experienced advocates since time beyond memory have emphasized the

importance of winnowing out weaker arguments on appeal and focusing ... at most on a few key
issues."). Appellate counsel here made the strategic choice to argue on appeal that the trial court
erred in admitting evidence of uncharged crimes ore-dating the charged offenses. (Appellant's
Br. at 1.) He declined to raise an ineffective assistance oftrial counsel claim because it would
"hurt some of our appellate arguments, e.g.,... we are claiming that your trial attorney raised a
compelling argument to exclude the uncharged crime evidence." (DeVaughn Suppl. Coram

Nobis Aff. H 22.) Furthermore, trial counsel opened the door only after the trial court denied his
38

application to exclude evidence of all uncharged crimes. Because the jury would already hear
about the uncharged crimes pre-dating the charged offense, trial counsel used the post-dated

robberies to impeach the prosecution witnesses' credibility by establishing their reasons for

cooperating with the prosecution and their original misstatements to the police.
(Id. 1315:9-1323:13, 1569:9-1577:8.) Trial counsel's decision was not unreasonable, and was in

fact sound litigation strategy. Accordingly, appellate counsel's failure to argue such a decision
was unreasonable—and instead focusing on other arguments—also was not unreasonable.
Petitioner was not prejudiced for similar reasons.
iii.

Vouching for the Truthfulness of Cooperating Witnesses

Petitioner next claims that his appellate counsel should have argued on appeal that trial
counsel was ineffective for failing to object when the prosecutor vouched for the truthfulness of

cooperating witness testimonies. (Am.Pet. at 14.) Petitioner enumerates two instances of
allegedly improper vouching. The court addresses them separately.
The first incident allegedly occurred during voir dire. (Id. at 6.) Petitioner takes

exception to the prosecutor inquiring as to a situation where "witnesses who have entered

into ... cooperation agreements... are willing to provide truthful testimony in exchange for
leniency on a case that they may be involved with," and whether any ofthe prospective jurors
"feels that a person in those shoes, under those circumstances, could not be telling the truth."

(Trial Tr. 1026:4-13.) When a prospective juror suggested that a cooperating witness may not be
telling the truth and that the jury must"make [its] ownjudgment whether that person is a
credible vdtness or not," the prosecutor agreed, noting the prospective juror "summed it up
accurately and succinctly." (Id 1026:14-1027:4.) Vouching "refers to the prosecutor acting as
an unsworn witness in order to tie his own credibility to that ofthe witness." McGhee v. Rock.

No. 12-CV-4077(ERK),2014 WL 5800650, at *7(E.D.N.Y. Nov. 7,2014). The prosecutor in
39

this case merely inquired if the prospective jurors believed a cooperating witness could never be

truthful, i.e., whether they are biased against cooperating witnesses.^ There was no improper
vouching here.

The second incident allegedly occurred during summation. (Mem. of Law in Supp. of

Pet. for Writ ofError Coram Nobis("Coram Nobis Mem.")(Dkt. 15-3 at ECF No. 950)at 7.)

Again referencing cooperating witnesses, the prosecutor told the jury that,"the[ir] testimony
proves out, I submit to you, to be truthful when taken against all other evidence." (Trial
Tr. 1792:10-13.) Again, this is not improper vouching. The prosecution is permitted to argue
that a witness testified truthfully ifthat speculation is based on the evidence adduced at trial,
rather than on personal belief. McGhee.2014 WL 5800650, at *7(finding the prosecutor's use
I

of words like "I submit" or "I suggest" in relation to the truthfulness of a witness's testimony is

not vouching when based on evidence). Here,the prosecutor "submit[ted]" to the jury that the

testimonies ofthe cooperating witnesses were truthful "when taken against all other evidence"
(Trial Tr. 1792:10-13), and there is no indication that she tied her own credibility to that ofthe
witnesses. Furthermore, such comments are particularly innocuous when they come in response
to defense counsel's attack on the witnesses' credibility.

id at *7(citing People v.

Marks. 160 N.E.2d 26,31 (N.Y. 1959)). Petitioner's trial counsel specifically argued in

summation that the cooperating witnesses lied in order to benefit fi*om their cooperating
agreements with the District Attorney. (See, e.g.. Trial Tr. 1731:8-10,1748:15-16.) The

prosecutor's comments during summation, when reviewed in context, are therefore permissible.

® While not directly at issue here, the court also notes that New York law affords each party "a fair opportunity to
question the prospective jurors as to any unexplored matter affecting their qualifications." N.Y. Crim. Proc. Law
§ 270.15. Courts have broad discretion in deciding the scope ofcounsel's questioning of prospective jurors. People
V. Steward. 950 N.E.2d 480,484(N.Y. 2011). Whether a juror can fairly evaluate a witness who has a cooperation
agreement with the District Attorney undoubtedly concerns his or her qualifications in a trial where two ofthe
primary witnesses are cooperators.
40

Because the prosecutor's statements were not improper vouching, any argument by

appellate counsel alleging ineffective assistance oftrial counsel on this basis would have been
meritless and appellate counsel cannot be faulted for omitting it.

Anaricio v. Artuz.269

F.3d 78, 88(2d Cir. 2001)(finding appellate counsel was not ineffective for not raising a claim
that trial counsel failed to pursue an objection that was meritless). Accordingly, Petitioner's
claim fails.

iv.

Accessorial Liabilitv Jurv Charge

Petitioner also contends that his appellate attomey was ineffective because he should
have argued that trial counsel was ineffective for failing to object when the trial court erred in its
jury charge on accessorial liability. (Am.Pet. at 16.) The trial court instructed the jury that
"[wjhen one person engages in conduct which constitutes an offense, another is criminally liable

for such conduct when acting with the state of mind required for the commission ofthat offense,
he solicits, requests, commands,importunes or intentionally aids such person to engage in such
conduct." (Trial Tr. 1834:23-1835:3 (emphasis added).) Petitioner quibbles with the use ofthe
term "state of mind" as opposed to "mental culpability." (DeVaughn Suppl. Coram Nobis Aff.
H 14 (citing People v. Vasquez.478 N.Y.S.2d 947,948(App. Div. 1984)).) While it is true that
some courts use the term "mental culpability" when referencing the mens rea element of
accessorial liability, others use "state of mind." Compare, e.g.. VasQuez.478 N.Y.S.2d at 948
("mental culpability"), with e.g.. People v. Morales. 27 N.Y.S.3d 538, 539(App. Div. 2016)
("state of mind"), CJI2d[NY] Accessorial Liability, http://www.nycourts.gov/judges/cji/lGeneraI/CJI2d.Accessorial_Liability.Rev.pdf(same). The court sees no meaningful difference
between the two. In its instructions to the jury, a trial court need only ensure that "the jury,

hearing the whole charge, would gather from its language the correct rules which should be
applied in arriving at decision." People v. Drake. 850 N.E.2d 630,633(N.Y. 2006); see also
41

N.Y. Crim. Proc. Law § 300.10(In charging ajury, the court must state "the fundamental legal

principles applicable to criminal cases in general [and] the material legal principles applicable to

the particular case, and,so far as practicable, explain the application ofthe law to the facts.").
Whatever the precise language, the trial court correctly charged the jury as to the mens rea

element of accessorial liability. Accordingly, the assertion that the trial court erred by using the

term "state of mind" is meritless, and neither trial counsel nor appellate counsel can be faulted

for not pursing this claim.^
V.

Multiple Defendant Jury Charge

Petitioner further asserts that appellate counsel was ineffective for not raising an

ineffective assistance argument against trial counsel for not objecting to the trial court's failure to
use a multiple defendantjury charge, (DeVaughn Suppl. Coram Nobis Aff. ^^11-12.)
Petitioner relies on Vasquez and N.Y. Criminal Procedural Law § 300.10(4)for the proposition

that the trial court should have "instruct[ed] the jury to consider the evidence of guilt or

' Amended Petition only alleges that appellate counsel was ineffective for not arguing that "trial counsel was
The
ineffective for failing to object to the trial [court's] refusal to apply the defense['s]jury charge." (Am. Pet. at 16.)
All ofPetitioner's ineffective assistance of appellate counsel claims derive from some form ofineffective assistance

claim against trial counsel. (Id. at 10-23.) The court therefore does not construe the Amended Petition to raise the
separate ineffective assistance of appellate counsel claim concerning the trial court's alleged error in refusing—over
trial counsel's objection—to read die full pattern criminal juiy instruction relating to corroboration of accomplice
testimony. (See Coram Nobis Mem. at 8-12.)
Even ifPetitioner did assert such a claim, it would be meritless. The crux ofthis argument is that the trial court

should have further explained to the jury that accomplice testimony requires corroboration because the law views
such testimony with suspicion, especially when the accomplice received some consideration for the testimony. (Id.:
Trial Tr. 1859:18-1860:19.) However, as noted previously, ajury charge is adequate if, when taken as a whole, it
properly instructs the jury as to the correct rules oflaw. See Drake. 850 N.E.2d at 633. Furthermore,"a charge may
be sufficient, indeed substantially correct, even though it contains phrases which, isolated from the context, seem
erroneous." People v. Ladd.675 N.E.2d 1211, 1213(N.Y. 1996). Here, although the trial court did not read
wholesale the pattern instruction on corroboration of accomplice testimony, it did instruct the jury that "[a]
defendant may not be convicted ofany offense upon the testimony of an accomplice unsupported by corroborative
evidence tending to connect the defendant with the commission ofsuch offense." (Trial Tr. 1837:11-14.) The court
also explained that, in relation to cooperating witnesses, the jury may "consider whether a witness hopes for or
expects to receive a benefit for testifying [and] whether and to what extent, if any, it affected the truthfubess ofthe
witness's testimony"(id 1841:18-22). The court thus alerted the jury to the possibility that an accomplice who has
somethmg to gam from testifymg agamst Petitioner may have an mcentive to lie m his or her testimony. Therefore,
the jury charge, when taken as a whole, was not erroneous, and any meffective assistance claim based on the
assertion that it is erroneous fails.

42

innocence separately as to each defendant." (Id. 12.) His reliance on these authorities is

misplaced. Vasquez held that in "trial[s] involving two defendants, it was incumbent upon the

court to instruct the jury to consider the evidence of guilt or innocence separately as to each
defendant." 478 N.Y.S.2d at 948(emphasis added)(citing N.Y. Crim. Proc. Law § 300.10(4)).
Section 300.10(4)similarly notes that the court must "instruct the jury to render a verdict...

with respect to each defendant if there fisl more than one." N.Y. Crim. Proc. Law § 300.10(4)

(emphasis added). In this case. Petitioner was the only defendant tried, and Vasquez and
§ 300.10(4) are inapplicable. Neither appellate nor trial counsel's decision not to take issue with
the lack ofa multi-defendantjury charge is a basis for an ineffective assistance claim.
vi.

Felonv Murder Jury Charge

Petitioner's last enumerated ground for ineffective assistance of appellate counsel is that
appellate counsel failed to argue on appeal that trial counsel was ineffective for not objecting to
the erroneous felony murder instructions. (DeVaughn Suppl. Coram Nobis Aff. at 15-16.) In its
charge explaining felony murder to the jurors, the trial court stated;

Under our law, a person is guilty of Murder in the Second Degree,
when, in the course of or in furtherance of the commission or

attempted commission of a robbery, or in the immediate flight
therefrom that, a person or another participant, if there be any,
causes the death of a person other than one ofthe participants.

(Trial Tr. 1846:9-15 (emphasis added).) The statute, however, uses the conjunctive "and" rather
than the disjunctive "or." N.Y. Penal Law § 125.25(3)(stating "in the course of and in
furtherance of(emphasis added)). The trial court thus erred by eliminating a necessary element
offelony murder. See Langston v. Smith.630 F.3d 310, 315(2d Cir. 2011)("[I]n the course of
and Tn furtherance of must be construed as two distinct proof elements, each of which has

independent meaning."). Petitioner's trial counsel did not object to the charge during trial and
appeared not to have noticed the misstatement oflaw. However, it must be noted that the
43

validity ofthis charge is not at issue before the court. It is not enough to show that the charge
was erroneous. Nor is it sufficient to establish that trial counsel was ineffective for failing to

object to the charge. Rather, the pertinent question is whether Petitioner's appellate counsel was
ineffective for choosing not to argue on appeal that trial counsel was ineffective on this basis.
Appellate counsel's decision not to argue ineffectiveness oftrial counsel on direct appeal
was plainly strategic, and the court cannot conclude that Petitioner has overcome the high bar
imposed on challenges to such tactical choices. See Strickland, 466 U.S. at 690("[SJtrategic
choices made after thorough investigation oflaw and facts relevant to plausible options are
virtually unchallengeable."). Appellate counsel was aware ofthe mistaken jury charge and the
potential claim ofineffective assistance oftrial counsel on this ground. (See Nov. 25,2009, Ltr.

(DeVaughn Suppl. Coram Nobis Aff., Ex. D)
(Dkt. 15-3 at ECF No. 929).) He specifically
addressed this issue in a letter to Petitioner dated November 25,2009. (Id) He explained that it
was best to forgo arguing that trial counsel was ineffective because normally,"an ineffective
assistance of coimsel claim is raised in a post-conviction proceeding [and] is not done in the

appellate court." (Id.) "[I]t is [therefore] unlikely that the appellate court w[ould] resolve the
merits ofsuch a claim." (Id.) Furthermore, appellate counsel "believe[d] that raising the claim
w[ould] hurt some of[the other] appellate arguments, e.g. [the argument that the trial court erred
in admitting evidence of uncharged crimes] because we are claiming that [your] trial attorney
raised a compelling argument to exclude [them]." (Id.) Appellate counsel therefore thought it
best to "save" the ineffectiveness argument for a separate proceeding, and instead argued on

appeal only that the erroneous jury charge amounted to a constitutional violation. (Id.;
Appellant's Br. at 27-28.)

44

While the court has some doubts as to the prudence ofthis strategy, it is clear from

appellate counsel's letter that his decision was "made after thorough investigation oflaw and
facts relevant to plausible options." Strickland. 466 U.S. at 690. It was not objectively
unreasonable for appellate counsel to conclude that the better course was to omit the ineffective
assistance argument on the direct appeal given the evidence in the record linking Petitioner to the
charged offenses and the potential deleterious effect on Petitioner's other appellate arguments.

An appellate counsel's strategic choices are presumed reasonable, and are "virtually
unchallengeable." Id.; see also id. at 681 ("Because advocacy is an art and not a science, and

because the adversary system requires deference to counsel's informed decisions, strategic
choices must be respected in these circumstances ifthey are based on professionaljudgement.").

Admittedly, Petitioner's ineffective assistance argument on this basis is the strongest of all his
asserted grounds. Nevertheless, the burden Petitioner must carry to succeed against the doubly
deferential standard when Strickland and AEDPA work in tandem is heavy, and on these facts,
the court concludes that Petitioner's claim fails. At minimum,fairminded jurists could conclude

that such a decision did not fall below an objective standard of professional reasonableness.^®
vii.

Cumulative Effect of Appellate Counsel's Conduct

The court finally assesses whether the cumulative effect of errors allegedly made by
Petitioner's appellate counsel justifies a finding of ineffective assistance of counsel. Eze v.
Senkowski. 321 F.3d 110,135-36(2d Cir. 2003)("assess[ing] the aggregate effect ofthese

For completeness's sake,the court notes that Petitioner asserted a separate claim that appellate counsel was
ineffective for his failure to argue that "trial counsel was ineffective for his failure to adequately prepare and
investigate on [his] behalf." (Am.Pet. at 18-19.) Petitioner provides no further support for this claim. Having
carefully reviewed the trial transcripts, the parties' submissions in this proceeding as well as in Petitioner's direct
appeal and collateral applications, the court finds no colorable basis for this claim other than the grounds specifically
asserted in his Amended Petition and error coram nobis application. Those issues have been separately addressed
supra.

45

alleged errors to determine whether their cumulative weight rises to the level of constitutionally

deficient conduct"). The court concludes that it does not, and that appellate counsel provided

meaningful representation. On appeal, appellate counsel stressed the three main points that he
deemed most persuasive and had the highest likelihood ofsuccess. (See Appellant's Br. at 1.)
Petitioner's ineffectiveness claims all flow from arguments that appellate counsel chose not to
pursue. As explained in greater detail previously, most ofthese arguments are weak or
meritless—indeed, only one ofthe bases Petitioner asserted gave the court pause (see supra

III.E.S.b.vi), and the decision to omit it was a legitimate strategic choice. "Experienced
advocates since time beyond memory have emphasized the importance of winnowing out weaker
arguments on appeal and focusing on one central issue if possible, or at most a few key issues."
See Jones. 463 U.S. at 751-52. The strategic decisions ofPetitioner's appellate counsel must be
afforded the same deference that the Supreme Court has repeatedly mandated is due. Although

appellate counsel failed to obtain the reliefPetitioner desired and we can never be certain
whether a different outcome would have resulted from alternative arguments, the court is

mindful that"a fair assessment of attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight." Strickland. 466 U.S. at 689. As such,the
Appellate Division did not unreasonably apply any federal law when it denied Petitioner's
ineffective assistance of appellate counsel claim.
*

*

*

Having considered each ground ofPetitioner's ineffective assistance of appellate counsel
claim individually and cumulatively, the court concludes that habeas relief is not warranted.
IV.

CONCLUSION

For the foregoing reasons, the Amended Petition is DENIED. Because Petitioner has not
made a substantial showing ofthe denial of a constitutional right, no certificate of appealability
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shall issue. The court certifies pursuant to 28 U.S.C, § 1915(a)(3)that an appeal from this
judgment would not be taken in good faith, and therefore in forma pauneris status is denied for

the purpose ofany appeal. See Coppedge v. United States. 369 U.S. 438,444-45 (1962). The
Clerk of Court is respectfully DIRECTED to enter judgment and close this case.
SO ORDERED.

s/Nicholas G. Garaufis

Dated: Brooklyn New York

January

NICHOLAS G. GARAUFIS

2017

United States District Judge

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