Occhione v. Capra
Filing
21
MEMORANDUM & ORDER. The petition for a writ of habeas corpus pursuant to section 2254 of title 28 of the United States Code is denied. A certificate of appealability is denied. The claims are frivolous and the evidence of guilt overwhelming. The defendant had a fair trial. Ordered by Judge Jack B. Weinstein on 6/24/2015. (Barrett, C) (Main Document replaced on 6/25/2015) Modified on 6/25/2015 (Barrett, C).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
JOSEPH OCCHIONE,
Petitioner,
– against –
MEMORANDUM & ORDER
14-CV-3637
MICHAEL CAPRA, Superintendent of
Sing Sing Correctional Facility,
Respondent.
Appearances
For Petitioner:
Jeffrey G. Pittell
Maher & Pittell, LLP
299 E. Shore Road
Great Neck, NY 11023
(516) 829-2299
jp@jpittell.com
For Respondent:
Daniel Stephen Bresnahan
Office of the District Attorney, Queens County
125-01 Queens Boulevard
Kew Gardens, NY 11415
(718) 286-7046
dsbresnahan@queensda.org
JACK B. WEINSTEIN, Senior United States District Judge:
Table of Contents
Introduction .......................................................................................................................... 2
I.
II.
Crime of Conviction ............................................................................................................ 3
III.
Procedural History ............................................................................................................... 6
A. Grand Jury Indictment ........................................................................................................ 6
B. Arraignment, Pre-Trial Applications and Dispositions ...................................................... 7
C. Pretrial Hearings ................................................................................................................. 8
1. Dunaway Hearing ........................................................................................................... 8
2. Huntley Hearing .............................................................................................................. 8
3. Sandoval Hearing ............................................................................................................ 9
D. Jury Selection ...................................................................................................................... 9
E. Trial and Sentencing ......................................................................................................... 11
F. Direct Appeals .................................................................................................................. 14
G. Motion to Vacate Conviction ............................................................................................ 15
H. Instant Petition .................................................................................................................. 16
IV. Applicable Standard of Review ......................................................................................... 17
A. Antiterrorism and Effective Death Penalty Act ................................................................ 17
1. “Contrary to” Clause ..................................................................................................... 18
2. “Unreasonable Application” Clause ............................................................................. 18
B. Deference to State Court ................................................................................................... 19
C. Harmless Error .................................................................................................................. 21
V.
Ineffective Assistance of Counsel ...................................................................................... 21
A. Law ................................................................................................................................... 21
1. Standard ........................................................................................................................ 22
2. Application of Standard by Court of Appeals for the Second Circuit .......................... 24
3. Application of Standard by District Courts in the Second Circuit ............................... 25
B. Application........................................................................................................................ 26
VI. Denial of Right to Testify Before Grand Jury ................................................................... 29
A. Law ................................................................................................................................... 29
B. Application........................................................................................................................ 30
VII. Reverse Batson Challenge ................................................................................................. 30
A. Law ................................................................................................................................... 30
B. Application........................................................................................................................ 33
VIII. Sentencing Persistent Violent Felony Offenders and Apprendi Doctrine ......................... 33
A. Law ................................................................................................................................... 33
B. Application........................................................................................................................ 35
IX. Conclusion ......................................................................................................................... 35
I.
Introduction
Petitioner Joseph Occhione seeks a writ of habeas corpus. See 28 U.S.C. §2254(d). It is
denied.
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He is currently serving a sentence of sixteen years to life, imposed on July 23, 2008, for
burglary, criminal mischief, criminal possession of stolen property, resisting arrest, and
possession of burglar’s tools. He has served some seven years at Sing Sing Correctional Facility.
Asserted are four grounds for relief: (1) ineffective assistance of counsel due to trial
counsel’s cumulative errors; (2) denial of the right to testify before the grand jury; (3) failure of
the trial court to sustain a peremptory challenge to a juror of Indian descent during jury selection;
and (4) violation of the right to due process resulting from the trial court’s implementation of
New York Penal Law’s persistent violent felony offender provision during sentencing.
Each of petitioner’s claims fail.
II.
Crime of Conviction
On May 14, 2007, at approximately 1:00 p.m., in a townhouse located in Flushing,
Queens, Bik Ying Chan’s lunch was interrupted when she heard a persistent loud noise. See
Trial Transcript 437:19–438:22, June 26–July 1, 2008, People v. Occhione, Queens Cnty. Indict.
No. 1383/07 (N.Y. Crim. Ct.) (“Occhione I”), ECF No. 8-7 at 72–199, ECF No. 8-8 at 1–191,
ECF No. 8-9 1–93 (“Trial Tr.”). Looking out of her kitchen window, she saw a bald man setting
down a metal grate next to a tree in the backyard. Id. at 439:10–441:2. She recognized the grate
as the one covering a bathroom window in her neighbor’s house. Id. at 441:5–6. Frightened and
concerned, Chan phoned her neighbor, Sandy Shi, at her work. Id. at 443:6–14. Chan had
observed the man for only a moment—too quickly to identify him except by his baldness. Id. at
441:3–4.
Shi immediately called 911 to report the potential burglary. Id. at 461:22–462:8. The
report was forwarded to Sergeant George Fountaulakis, Officer Jared Rothschild, and Officer
McManus, all members of the “Burglary Apprehension Team.” Id. at 642:1–7.
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Four blocks away from the Shi residence when the notification was received, the officers
arrived at 58–27 150th Street in less than sixty seconds. Id. at 539:16–18. Riding in an
unmarked police vehicle, the plainclothes officers saw petitioner, a bald Caucasian man in his
fifties, on top of Shi’s backyard fence. Id. at 644:16–645:7. They watched him dismount the
fence and walk to a white SUV parked on the sidewalk. Id. at 645:13–16.
McManus, angling the police car in front of the white SUV, blocked petitioner’s escape
route. Id. at 578:2–13. As petitioner entered the passenger side of the SUV, Fountaulakis and
Rothschild exited the car, calling out, “Police!” Id. at 542:6–8. Petitioner fled. Id. at 542:11–
13.
McManus stayed with the SUV as Fountaulakis and Rothschild pursued the petitioner on
foot, yelling, “Police! Stop!” Id. at 543:21–544:4, 646:22–24. Nearing petitioner, Rothschild
tripped. Id. at 549:4–9. McManus then joined the pursuit. Id. at 592:7–10. In the interim, the
SUV departed. Id. at 598:14–18.
When the officers surrounded petitioner, he raised a crowbar above his head. Id. at
647:20–15. They drew their weapons; he then threw the crowbar down and lay on the ground,
where he was handcuffed. Id. at 649:18–650:8. A search revealed two pairs of gloves, a cell
phone, an envelope filled with Chinese currency, a separate envelope filled with United States
currency, and boxes filled with jewelry. Id. at 547:12–548:9.
Racing home from work, Shi arrived at her residence one half hour after the burglar had
first been sighted. Id. at 462:12–13. Officer Fountaulakis and a number of other police officers
were present. Id. at 462:14–15. Shi let the officers into her home. Id. at 463:7–14.
Shi called her sister, Hao Ting Shi (“Shi’s sister”), who lived in the basement apartment.
Id. at 465:5–9. An hour later, Shi’s sister arrived. Id. at 465:16–18. She discovered that her
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bedroom had been ransacked. Id. at 494:20–25. Drawers from her dresser and desk had been
taken out and flipped over. Id. at 507:5–508:18. Items were strewn all over the bedroom. Id. at
494:20–25. The chaotic state of the apartment made it impossible for her to tell whether
anything had been taken. Id. at 495:3–7.
At the police station, Shi’s sister identified her cell phone, envelopes of currency, and
jewelry, which had been found on petitioner. Id. at 495:10–17. She valued the jewelry at
approximately $3,500. Id. at 497:21–24.
Officer Laurendi then promptly began an interrogation of petitioner. Id. at 611:12–23.
At first, Laurendi was alone in a room with petitioner; no notes were taken and no record made.
Id. at 634:22–635:2. According to Laurendi, petitioner admitted to being in possession of Shi’s
sister’s property and told the officer that when he had tried to enter the SUV, the driver would
not let him in. Id. at 619:24–620:9. Laurendi’s report of the initial interrogation was written at
4:30 p.m. that afternoon. Id. at 635:22–636:1.
About 7:00 p.m. that evening, Fountaulakis bought sandwiches, sharing them with
petitioner. Id. at 661:21–662:6. Initially, their chitchat was about the respective neighborhoods
in which each had grown up. Id. at 662:7–11. Steering the conversation to the burglary,
Fountaulakis reported that petitioner told him the following:
Mr. Occhione explained that he was in a white SUV with an
individual by the nickname of [B]ingo, they were going to target
an Asian home. They were driving in the neighborhood of
Flushing . . . where they observed a female get into her vehicle and
back out of her driveway. This female happened to be Asian . . . .
Mr. Joseph Occhione exited that SUV. He rang the doorbell of the
house where the woman just came out of[.] [N]o one answered the
door. At that point he stated he went over the gate and with a
crowbar removed the gate around the window of the bathroom,
within fifteen seconds, and entered the residence through that
bathroom window.
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He stated that he removed some jewelry boxes. He saw some
envelopes with money. He wasn’t sure of the amount of money or
what type of currency. He said he took that and he exited the
location and basically we are very lucky we got him.
Id. at 662:21–663:13. The report of the conversation was written four days later, after
Fountaulakis had spoken with the Assistant District Attorney. Id. at 680:7–19.
III.
Procedural History
A. Grand Jury Indictment
On May 24, 2007, ten days after the burglary, petitioner was indicted on the following
nine charges:
• Burglary in the First Degree (two counts), see N.Y. Penal Law
§ 140.30(2)–(3);
• Burglary in the Second Degree (one count), see N.Y. Penal Law
§ 140.25;
• Assault in the Second Degree (two counts), see N.Y. Penal Law
§ 120.05(2) & (6);
• Criminal Possession of Stolen Property in the Third Degree (one
count), see N.Y. Penal Law § 165.50;
• Criminal Possession of Stolen Property in the Fifth Degree (one
count), see N.Y. Penal Law § 165.40;
• Criminal Mischief in the Third Degree (one count), see N.Y.
Penal Law § 145.05(2);
• Resisting Arrest (one count), see N.Y. Penal Law § 205.30;
• Possession of Burglar’s Tools (one count), see N.Y. Penal Law
§ 140.35; and
• Criminal Possession of a Weapon in the Fourth Degree (one
count), see N.Y. Penal Law § 265.01(2).
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See Indictment, May 24, 2007, Occhione I, ECF No. 8-2 at 2–9. Petitioner did not testify before
the grand jury. See Grand Jury Trial Transcript, May 18, 2007, Occhione I, ECF No. 8-1 at 47–
95.
B. Arraignment, Pre-Trial Applications and Dispositions
On June 1, 2007, one week after petitioner had been indicted, he was arraigned. See Web
Appearance Detail, n.d., Occhione I, ECF No. 8-2 at 1. He orally objected that he had been
denied the right to testify before the grand jury. See Occhione Affidavit in Support of 440
Motion to Vacate Judgment 9, Mar. 11, 2013, Occhione I, ECF No. 8-1 at 139–153 (“Occhione
Aff.”). A new attorney was appointed by the presiding judge to represent petitioner. Id.
Ten days later, on July 11, 2007, petitioner’s counsel sought the following:
(1) inspection and release of the grand jury minutes and charge; (2) a bill of particulars;
(3) Dunaway, Huntley, and Sandoval hearings, see infra Part III.C; and (4) dismissal of multiple
charges, including Criminal Possession of Stolen Property in the Fifth Degree, Burglary in the
First Degree, and Assault in the Second Degree. See Petitioner’s Notice of Omnibus Motion 1–
2, July 10, 2007, Occhione I, ECF No. 8-2 at 20–23; see also Santos Affirmation in Support of
Omnibus Motion 3, ECF No. 8-2 at 23–33.
Dismissal was granted as to Criminal Possession of Stolen Property in the Fifth Degree
and the charge vacated. See Omnibus Motion Decision 1, Aug. 17, 2007, Occhione I, ECF No.
8-2 at 35–37. Petitioner was granted a bill of particulars and his request for Dunaway, Huntley,
and Sandoval hearings. Id. at 2–3. The other requests were denied. Id.
Petitioner then filed a pro se motion to dismiss the indictment, alleging that his counsel
did not allow him to testify before the grand jury. See Motion to Dismiss Indictment for Failure
to Testify at Grand Jury, Aug. 31, 2007, Occhione I, ECF No. 8-2 at 11. The motion was denied
orally on September 25, 2007. See Hearing Transcript for Motion to Dismiss Indictment 4:22–
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5:1, Sept. 25, 2007, Occhione I, ECF No. 8 at 145–50. As required by section 190.50(c) of New
York’s Criminal Procedure Law, it had not been filed within five days of the arraignment. Id.
C. Pretrial Hearings
1. Dunaway Hearing
Two months after the denial of petitioner’s request to dismiss the indictment, a hearing
was conducted on petitioner’s claim that there was no probable cause to arrest. See Dunaway
Hearing Transcript, Nov. 20, 2007, Occhione I, ECF No. 8-5 at 1–39; Dunaway v. New York,
442 U.S. 200 (1979). The court found that the police had probable cause to arrest petitioner. See
Judicial Hearing Officer Report on Motion for Dunaway and Huntley Hearings 4, Jan. 15, 2008,
Occhione I, ECF No. 8-2 at 92–96 (“Dunaway and Huntley Report”); Order of the Court on
Dunaway and Huntley Hearings 1, Jan. 16, 2008, Occhione I, ECF No. 8-2 at 90 (“Dunaway and
Huntley Order”).
2. Huntley Hearing
One month later, a Huntley hearing was held to determine whether petitioner’s statements
made to police were involuntary. See Huntley Hearing Transcript, Dec. 20, 2007, Occhione I,
ECF No. 8-5 at 40–56 (“Huntley Hr’g Tr.”); People v. Huntley, 204 N.E.2d 179 (N.Y. 1965). At
the December 20, 2007 hearing, Detective Laurendi testified that he had read petitioner his
Miranda rights, and that petitioner had initialed next to each statement read by the detective. See
Huntley Hr’g Tr. 44:9–14, 45:4–46:19.
Fountaulakis testified:
Basically, [petitioner] started saying how he is a part of, I would
say, a crew of people, that’s how he described it, and that crew is
like a four-man unit. They have police scanners. They are aware
of our precinct sectors, our precinct boundaries. They know when
police officers are dispatched to different jobs by understanding
our radio codes, as well.
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. . . They . . . operate targeting Asian homes because they believe
Asian Families carry more money, more jewelry, carry cash in
their homes, and what they do is they drive around and look for
target locations owned by Asians.
. . . And the only reason he said he was apprehended was because
the person in the car didn’t give him the signal we were 10–84,
which is a signal for we arrived at the location, the person in the
car, who was monitoring the radio, didn’t hear that from us.
Id. at 20:24–22:9. The statements made by petitioner while in police custody were ruled
voluntary and admissible. See Dunaway and Huntley Report 4; Dunaway and Huntley Order 1.
3. Sandoval Hearing
The court informed the parties that the prosecution would be allowed to cross-examine
petitioner about his convictions from 1992 onward should he testify at trial. See Sandoval
Hearing Transcript 21:3–8, June 19–24, 2008, Occhione I, ECF No. 8-5 at 57–77 (“Sandoval
Hr’g Tr.”); People v. Sandoval, 314 N.E.2d 413 (N.Y. 1974). Over a twenty-two year period,
stretching from 1981 to 2002, petitioner had been convicted of five misdemeanors and four
felonies, including criminal possession of stolen property, burglary, and attempted burglary. See
Sandoval Hr’g Tr. 33:2–38:20. The facts underlying the convictions were found inadmissible.
Id. at 20:17–20.
D. Jury Selection
On June 24–26, 2008, jury selection took place. See Voir Dire Transcript, June 24–26,
2008, Occhione I, ECF No. 8-5 at 77–195, ECF No. 8-6 at 1–204. ECF No. 8-7 at 1–71 (“Voir
Dire Tr.”). Petitioner’s counsel raised two for-cause challenges. The first was against a potential
juror of Indian descent, Jennifer Partivit. Id. at 365:16–17. It was contended that she could not
give a clear opinion about whether she thought defendant should testify. Id. at 365:18–366:1.
The court denied the challenge, stating: “[T]here is nothing in her responses to you or anybody
that would demonstrate that she has a state of mind that would prevent her from sitting here as a
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fair and impartial juror.” Id. at 366:14–17. In response, petitioner’s counsel exercised a
peremptory challenge against this potential juror. Id. at 366:24–25.
A for-cause challenge was raised against a man of Taiwanese descent, Peter Wang:
I couldn’t find him very credible. I don’t believe that basically that
a son of a police officer for four years and in these four years his
son has never discussed a single case, arrest or day of work with
him, your Honor. That’s one.
Second of all, Judge, I remember . . .when he was being told about
if he could be fair and impartial, I think he said, “I don’t think so.”
So you know he seemed hesitant when that question was posed.
. . . I don’t find him to be totally forthcoming in those type of
answers that were given to him during my voir dire, Judge. That
would be the grounds of me challenging him for cause, Judge.
Id. at 369:1–22. Denying the challenge, the court described the potential juror as “forthright,”
“articulate,” and “probably the most intelligent person on the panel.” Id. at 369:23–370:12.
Petitioner’s counsel used his second peremptory challenge against this juror. Id. at 370:16–17.
Arguing that the peremptory challenges were being used to discriminate against
individuals of Asian descent, the prosecution raised a Kern challenge. Id. at 370:18–371:2;
People v. Kern, 554 N.E.2d 1235, 1246 (N.Y. 1990). The court agreed. See Voir Dire Tr.
372:14–23, 373:10–14. Petitioner’s counsel then presented the following facially neutral reasons
for the peremptory challenges:
Reason for Mr. Wang, I find him not to be credible. I do not
believe he is the most intelligent member of that panel. I think that
he was not forthright or forthcoming with the question[s] being
posed to him, your Honor. He is a gentleman, your Honor, who I
believe has a predetermination, already been involved in the legal
process of arrests and testifying, and I do not believe, your Honor,
that he gave truthful answers, your Honor. That is the opinion of
the defense.
As to Miss Partivit, and [I] hope I pronounce it correctly, your
Honor, I clearly remember her wavering on how basically the
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burden of proof and the presumption of innocence and the
protection that my client gets by not having to testify, and although
the Court did rehabilitate her, she did say, “I don’t think so[,]” and
I believe the Court is stating through the — these three grounds it’s
not, “I don’t think so,” it’s yes or no. That’s the position of the
defense, your Honor. The Court has [its] own perspective and [its]
own view on how it views the jurors, your Honor; but I challenged
for cause both those individuals based upon my questioning them,
listening to their answers from both the Court and the prosecution
in this matter, your Honor.
Id. at 375:23–376:24.
The peremptory challenge as to Wang was sustained. Id. at 379:23–380:5. Rejected was
the challenge regarding Partivit, the juror of Indian descent. Id. at 380:18–21.
There was nothing in the record to give one a reason to
peremptorily challenge her except her race. . . . The explanation
doesn’t fit the facts of the case in any event. The reason for the
challenge is not based upon evidence. At best, it could be
intuition. . . .
Id. at 381:9–24.
E. Trial and Sentencing
At trial, which started on June 26, 2008 and ended on July 1, 2008, the prosecution called
six witnesses:
• Bik Ying Chan: The woman who first observed the break-in;
• Sandy Chi: The woman whose home was broken into;
• Hao Ting Shi: The woman from whom property was stolen;
• Officer Rothschild: The officer who arrested petitioner;
• Detective Laurendi: The officer who read petitioner his Miranda
rights and first interviewed him at the station house; and
• Sergeant Fountaulakis: The officer in charge of the unit
responsible for arresting petitioner and the one who interviewed
petitioner at length the night of the arrest.
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See Trial Tr. 829:7–16.
Prior to the parties’ opening statements, petitioner’s counsel informed the court that
petitioner’s mother overheard juror nine comment on the petitioner’s guilt while in the ladies’
room. Id. at 389:9–390:4. At the request of counsel, juror nine was questioned and excused
from service. Id. at 407:14–23. Alternate one took her place. Id. at 414:23–415:4. Each
remaining juror and alternate was questioned about the comment. Id. at 408:1–414:22. Only
juror ten heard the statement, but she affirmed her impartiality. Id. at 404:12–405:25. When
asked if she agreed with juror nine’s position on petitioner, she explained: “No. I do not. I do
not agree with that.” Id. at 405:15–16.
During trial, petitioner’s counsel cross-examined Officer Rothschild about alleged
evidence tampering. Id. at 603:11–608:18. Noted was that the evidence bag had been vouchered
twice. Id. at 607:4–7. Requiring further clarity on the matter, the court interrogated the witness:
THE COURT: What’s the difference between the first voucher
and the second voucher? The actual difference.
THE WITNESS: The actual difference is it’s just redone, and it’s
more clear to anybody that wants to read the voucher.
THE COURT: Was anything added to it?
THE WITNESS: No, there was nothing added to it.
...
THE COURT: Is the quantity [of items in the first bag] the same
[as the second]?
THE WITNESS: Yes.
Id. at 607:24–608:15. The issue was not further pursued by counsel or the court.
A sidebar during the course of summations resulted in an amendment to the indictment.
Id. at 705:22–707:7. The changes in language to the charges of burglary in the first and second
degrees benefitted petitioner. Id. at 706:18–19 (removing “remained” from the phrases
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“knowingly entered and remained unlawfully” and “knowingly entered or remained unlawfully”
(emphasis added)). The court provided the following reason for the change:
Under the case of People v Gaines, G-A-I-N-E-S, Court of Appeals
case, presenting the language – I know it’s conjunctive. It’s not
disjunctive. Its [sic] when entered or remained unlawfully. But
even so. You can’t have entered and remained. It’s either entered
or remained because if you enter – if you enter unlawfully – my
understanding of the case law is that you only have remained
unlawfully if you entered lawfully. That’s my understanding of
the Gaines determination. So you would have a problem with the
indictment as it’s presently written so that – you can’t have
remained unlawfully because then you would have to have entered
lawfully. So it should just be ‘entered unlawfully’ and the
indictment should be amended.
. . . [T]he People have to prove entered – the fact of this case
entered unlawfully. Either he entered unlawfully or he didn’t, but
if he didn’t, then the remains unlawfully is of no consequence.
Id. at 705:22–707:7.
Petitioner did not testify at trial, and the defense did not call any witnesses. Id. at
701:23–702:6. Testimony about petitioner’s prior convictions was not introduced. See supra
Part III.C.3. Nor was the information acquired from petitioner about the crew that used police
scanners to target Asian homes. See supra Part III.C.2.
The jury convicted petitioner of Burglary in the Second Degree, Criminal Possession of
Stolen Property in the Fifth Degree, Criminal Mischief in the Third Degree, Resisting Arrest, and
Possession of Burglar’s Tools. See Trial Tr. 822:22–825:15. He was acquitted of Burglary in
the First Degree, Assault in the Second Degree, and Criminal Possession of a Weapon in the
Fourth Degree. Id. The charge of Criminal Possession of Stolen Property in the Third Degree
was dismissed by the trial court at the conclusion of the State’s case. Id. at 701:2–6.
Based upon his prior felony convictions, see supra Part III.C.3, petitioner was sentenced
as a persistent violent felony offender. See Sentencing Transcript 8:7–11, July 23, 2008,
13
Occhione I, ECF No. 8-9 at 97–109. He received a term of imprisonment of sixteen years to life.
Id. at 11:10–12:13.
F. Direct Appeals
Petitioner appealed to the Supreme Court of the State of New York, Appellate Division,
Second Department, on six grounds: (1) his lack of testimony before the grand jury violated
section 190.50 of New York’s Criminal Procedure Law, resulting in a defective indictment;
(2) he had ineffective assistance of trial counsel when denied the right to testify before the grand
jury; (3) the conviction of Criminal Possession in the Fifth Degree should be vacated because the
charge had already been dismissed; (4) the trial judge ruled wrongly during jury selection; (5) the
conviction of Burglary in the Second Degree was against the weight of the evidence; and (6) the
persistent violent felony offender scheme under section 70.08 of New York’s Penal Law is
unconstitutional because it relies on facts not put before juries. See People v. Occhione, 942
N.Y.S.2d 185, 186–87 (App. Div. 2d Dep’t 2012) (“Occhione II”).
The Appellate Division vacated the conviction of Criminal Possession of Stolen Property
in the Fifth Degree since the charge “was mistakenly submitted to the jury.” Id. at 187.
Affirming the remainder of the judgment, the Appellate Division wrote:
The defendant failed to preserve for appellate review his
contention that the persistent violent felony offender sentencing
scheme under Penal Law § 70.08 violates the principles articulated
by the United States Supreme Court[.] In any event, the contention
is without merit[.]
The defendant contends that he was denied his statutory right to
testify before the grand jury. Having failed to move to dismiss the
indictment within five days after his arraignment thereon, the
defendant waived this contention[.] Further, contrary to the
defendant’s contention, his attorney’s failure to effectuate his
intention to testify before the grand jury, standing alone, did not
constitute the denial of effective assistance of counsel.
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The defendant’s contention that the evidence was legally
insufficient to establish his guilt of burglary in the second degree is
unpreserved for appellate review[.] In any event, viewing the
evidence in the light most favorable to the prosecution, we find
that it was legally sufficient to establish the defendant’s guilt
beyond a reasonable doubt with respect to the count of burglary in
the second degree[.] Moreover, in fulfilling our responsibility to
conduct an independent review of the weight of the evidence, we
are satisfied that the verdict of guilt with respect to the count of
burglary in the second degree was not against the weight of the
evidence[.]
. . . The defendant’s remaining contentions, raised in his pro se
supplemental brief, are unpreserved for appellate review, and, in
any event, without merit.
Id. at 186–87 (citations and internal quotation marks omitted).
Petitioner filed a motion to reargue. See Defendant’s Notice of Motion for Leave to
Reargue Appeal, May 24, 2012, Occhione II, ECF No. 8 at 185. That motion was denied
without opinion. See Order and Decision on Motion to Reargue Appeal 1, Aug. 14, 2012,
Occhione II, ECF No. 8-1 at 96.
The New York Court of Appeals denied petitioner leave to appeal. See Order Denying
Leave, July 5, 2012, People v. Occhione, 973 N.E.2d 769 (N.Y. 2012), ECF No. 8-1 at 136. No
explanation was provided. Id.
No appeal was taken to the United States Supreme Court.
G. Motion to Vacate Conviction
On March 11, 2013, petitioner filed a motion in state court to vacate his conviction,
claiming that “material evidence adduced at trial . . . was false[,]” and that “[t]he judgment was
obtained in violation of [his rights.]” See Notice of Motion to Vacate Judgment Pursuant to
C.P.L 440.10(1)(c)(h) 1, Mar. 11, 2013, Occhione I, ECF No. 8-1 at 137–38; see also N.Y. Crim.
Pro. Law § 440.10 note (McKinney 2015) (Practice Commentaries).
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Petitioner argued that his previous counsel provided ineffective assistance because he had
failed to: (1) effectuate his desire to testify before the grand jury and move to dismiss the
indictment; (2) conduct a full investigation into petitioner’s side of events and build an alibi
defense; (3) permit petitioner to testify at trial; (4) object to a jury charge of fifth degree criminal
possession of stolen property and the accompanying “recent and exclusive inference” instruction;
(5) object to the prosecution’s trial exhibits as tampered evidence and raise Rosario violations;
(6) object when the court amended a defective indictment; (7) object to a tainted jury; (8)
properly cross-examine police officers concerning inconsistent statements; and (9) object and
submit a motion to dismiss the charge of burglary in the second degree for lack of proof. See
Occhione Aff. 10–17.
The trial court ruled that petitioner had “failed to demonstrate prejudice under the New
York State [t]est for ineffective assistance of counsel and ha[d] also failed to provide objective
evidence to support his claims under [f]ederal law. . . . [D]efendant’s claim[] of ineffective
assistance of counsel [was] deemed meritless.” Order and Decision on 440 Motion to Vacate
Judgment 5, Oct. 10, 2013, Occhione I, ECF No. 8-4 at 17–21.
The Appellate Division denied petitioner leave to appeal. See Order and Decision on
Appeal, People v. Occhione, No. 2014-00710 (N.Y. App. Div. 2d Dep’t Apr. 2, 2014), ECF No.
8-4 at 22.
H. Instant Petition
On June 5, 2014, petitioner filed a pro se petition for a writ of habeas corpus. See
Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus, June 5, 2014, No. 14-CV-3637,
ECF No. 1 (“Pet.”). Nine ineffective assistance of counsel claims were explicated, all of which
had been previously raised at the state level. Id. at 3–4; supra Part III.G. He additionally sought
to overturn the verdict on three other grounds: (1) denial of his right to testify before the grand
16
jury; (2) denial of the right to due process attributable to the trial court’s failure to deny the
prosecution’s Batson Kern objection regarding the juror of Indian descent; and (3) violation of
the right to due process stemming from being sentenced as a persistent violent felony offender.
See Pet. 3–4.
Counsel was appointed on October 15, 2014. See Criminal Justice Act, 18 U.S.C.
§ 3006A; CJA 20 Appointment of Attorney Jeffrey Pittell for Joseph Occhione 1, Oct. 15, 2014,
No. 14-CV-3637, ECF No. 11. A memorandum of law in support of the petition for habeas
corpus was filed on May 8, 2015. See Reply Memorandum of Law in Support of Petition, May
8, 2015, No. 14-CV-3637, ECF No. 19 (“Pet’r’s Habeas Br.”). No other filings were made.
IV.
Applicable Standard of Review
A. Antiterrorism and Effective Death Penalty Act
Petitioner’s habeas petition is governed by section 2254 of title 28 of the United States
Code, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
Under AEDPA, a federal court may grant a writ of habeas corpus to a state prisoner on a claim
that was “adjudicated on the merits” in state court only if it concludes that the adjudication of the
claim resulted in a decision that (1) 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) was based on an unreasonable determination of the facts in light of the evidence presented in
the state court proceeding. See 28 U.S.C. § 2254(d).
“An adjudication on the merits is a substantive, rather than a procedural, resolution of a
federal claim.” See Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (citations and internal
quotation marks omitted).
“Clearly established federal law refers to the holdings, as opposed to the dicta, of the
Supreme Court’s decisions as of the time of the relevant state-court decision.” Howard v.
17
Walker, 406 F.3d 114, 122 (2d Cir. 2005) (citations and internal quotation marks omitted); see
also Williams v. Taylor, 529 U.S. 362, 380 (2000) (federal habeas courts deny relief if it “is
contingent upon a rule of law not clearly established by United States Supreme Court precedent
at the time the state court conviction became final”).
“[W]hen deciding whether a state-court decision was ‘contrary to’ or an ‘unreasonable
application of . . . clearly established Federal law,’ a federal habeas court will generally consider
only those Supreme Court opinions issued prior to the state court’s denial of relief.” Duhs v.
Capra, No. 13-CV-1056, 2015 WL 428321, at *15 (E.D.N.Y. Feb. 3, 2015) (citations and
internal quotation marks omitted). “But a Supreme Court decision issued after the relevant state
court decision may be considered if it illustrates the proper application of a constitutional
principle.” Id. (emphasis in original) (citations and internal quotation marks omitted).
1. “Contrary to” Clause
“Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state
court arrive[d] at a conclusion opposite to that reached by [the Supreme Court] on a question of
law or if the state court decides a case differently than [the Supreme Court] has on a set of
materially indistinguishable facts.” Williams, 529 U.S. at 412–13 (emphasis added); see also
Bell v. Cone, 535 U.S. 685, 694 (2002) (same).
2. “Unreasonable Application” Clause
“Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ if
the state court identifies the correct governing legal principle from [the Supreme] Court’s
decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Williams,
529 U.S. at 413; see also Bell, 535 U.S. at 694 (same); McMillon v. Culley, 380 F. App’x 63, 64
(2d Cir. 2010) (summary order) (same). “[A] federal habeas court may not issue the writ simply
because that court concludes in its independent judgment that the relevant state-court decision
18
applied clearly established federal law erroneously or incorrectly. Rather, that application must
also be unreasonable.” Williams, 529 U.S. at 411; Duhs, 2015 WL 428321 at *14; see also
Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (“application must be ‘objectively unreasonable,’
not merely wrong, even ‘clear error’ will not suffice”).
“In determining whether a state court’s application of Supreme Court precedent was
unreasonable, a habeas court must be guided by the level of specificity of the relevant
precedent’s holding, because ‘the range of reasonable judgment can depend in part on the nature
of the relevant rule.’” Contreras v. Artus, 778 F.3d 97, 99 (2d Cir. 2015) (citing Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)).
If a legal rule is specific, the range may be narrow. Applications
of the rule may be plainly correct or incorrect. Other rules are
more general, and their meaning must emerge in application over
the course of time. Applying a general standard to a specific case
can demand a substantial element of judgment. As a result,
evaluating whether a rule application was unreasonable requires
considering the rule’s specificity.
Contreras, 778 F.3d at 99.
B. Deference to State Court
“Federal habeas review of state convictions frustrates both the States’ sovereign power to
punish offenders and their good-faith attempts to honor constitutional rights.” Harrington v.
Richter, 562 U.S. 86, 103 (2011) (citations and internal quotation marks omitted). Relief is only
merited to “guard against extreme malfunctions in the state criminal justice systems.” Greene v.
Fisher, 132 S.Ct. 38, 43 (2011) (emphasis added) (citations and internal quotation marks
omitted).
A “federal habeas court may overturn a state court’s application of federal law only if it is
so erroneous that there is no possibility fairminded jurists could disagree that the state court’s
decision conflicts with this Court’s precedents.” Nevada v. Jackson, 133 S.Ct. 1990, 1992
19
(2013) (per curiam) (emphasis added) (citations and internal quotation marks omitted). This
“highly deferential standard” gives state-court decisions “the benefit of the doubt.” Hardy v.
Cross, 132 S.Ct. 490, 491 (2011) (per curiam) (citations and internal quotation marks omitted).
“If this standard is difficult to meet, that is because it was meant to be.” Harrington, 562 U.S. at
102. “[W]e cannot grant habeas relief where a petitioner’s claim pursuant to applicable federal
law, or the U.S. Constitution, has been adjudicated on its merits in state court proceedings in a
manner that is not manifestly contrary to common sense.” Santone v. Fisher, 689 F.3d 138, 148
(2d Cir. 2012) (citations and internal quotation marks omitted).
Entitled to great weight are state court findings of fact. See 28 U.S.C. § 2254(e)(1)
(factual findings by state court may not be disturbed except upon a showing of “clear and
convincing evidence”); Smith v. Phillips, 865 F. Supp. 2d 271, 278–79 (E.D.N.Y. 2012) (same),
aff’d sub nom. Smith v. Scully, No. 12-1561, 2014 WL 7011916 (2d Cir. Dec. 15, 2014); see also
Wood v. Allen, 558 U.S. 290, 301 (2010) (“[A] state-court factual determination is not
unreasonable merely because the federal habeas court would have reached a different conclusion
in the first instance.”); Burt v. Titlow, 134 S.Ct. 10, 15 (2013) (same).
“It is well established that federal courts will not review questions of federal law
presented in a habeas petition application when the state court’s decision rests upon a state-law
ground that is independent of the federal question and adequate to support the judgment.” Cone
v. Bell, 556 U.S. 449, 465 (2009) (citations and internal quotation marks omitted). “[W]hen 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. “[T]he adequacy of state procedural bars to the
assertion of federal questions is not within the State’s prerogative finally to decide; rather,
20
adequacy is itself a federal question.” Id. (citations and internal quotation marks omitted). A
federal court “ha[s] an independent duty to scrutinize the application of state rules that bar . . .
review of federal claims.” Id. at 468. “Where a petitioner has procedurally defaulted a claim by
failing to raise it on direct review, the claim may be raised on habeas review only if the petitioner
can first demonstrate either ‘cause’ and actual ‘prejudice,’ or that he is ‘actually innocent.’”
Gutierrez v. Smith, 702 F.3d 103, 111 (2d Cir. 2012) (citations omitted), cert. denied, 134 S.Ct.
439 (2013).
C. Harmless Error
If a “[federal] court finds that the state court engaged in an unreasonable application of
established law, resulting in constitutional error, it must next consider whether such error was
harmless.” Howard, 406 F.3d at 122 (citations omitted). Asked must be whether the application
of the law “had substantial and injurious effect or influence in determining the jury’s verdict.”
O’Neal v. McAninch, 115 S.Ct. 992, 994 (1995) (citations and internal quotation marks omitted).
“When a [federal judge in a habeas proceeding] has grave doubt about whether a trial
error . . . had substantial and injurious effect or influence in determining the jury’s verdict, that
error is not harmless. And, the petitioner must win.” Wood v. Ercole, 644 F.3d 83, 99 (2d Cir.
2011) (citations and internal quotation marks omitted) (holding that petitioner’s videotaped
statement made after he invoked his right to counsel was wrongfully admitted at trial and not a
harmless error).
V.
Ineffective Assistance of Counsel
A. Law
The Sixth Amendment provides that a criminal defendant “shall enjoy the right . . . to
have the Assistance of Counsel for his defense.” U.S. Const. amend. VI. This right to counsel is
“the right to the effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771 n.14
21
(1970) (emphasis added). Effective assistance “does not guarantee the right to perfect counsel.”
Burt, 134 S.Ct. at 18.
1. Standard
Claims of inadequate assistance of counsel are governed by the Strickland standard,
which declared that “legal representation violates the Sixth Amendment if it (1) falls ‘below an
objective standard of reasonableness,’ as indicated by ‘prevailing professional norms,’ and
(2) the defendant suffers prejudice as a result.” Chaidez v. United States, 133 S.Ct. 1103, 1107
(2013) (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)). The test is applied to
claims of ineffective assistance of counsel at any stage of the litigation. See Hill v. Lockhart, 474
U.S. 52, 57 (1985).
In Strickland, the Supreme Court found that the district court had properly declined to
issue a writ of habeas corpus. Strickland, 466 U.S. at 701 (holding trial counsel’s performance
at sentencing where defendant received death sentence after initial guilty plea was neither
unreasonable, nor prejudicial). Counsel, it explained, had not made an objectively unreasonable
choice of litigation strategy by choosing not to request a presentence report, conduct a
psychiatric examination of his client, or seek out character witnesses in preparation for his
client’s sentencing hearing. Id. at 699. The Court emphasized that reasonable strategic choices
by counsel after an appropriate investigation of the facts and law are “virtually unchallengeable.”
Id. at 690–91. Those “made after less than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the limitations on investigation.” Id. The
responsibility rests with petitioner to “overcome the presumption that, under the circumstances,
the challenged action might be considered sound trial strategy.” Id. at 688 (citations and internal
quotation marks omitted).
22
The decision to rely on the plea colloquy for evidence related to respondent’s extreme
stress caused by his inability to support his family was found reasonable because it prevented the
State from cross-examining character witnesses and presenting psychiatric evidence of its own.
Id. at 699. Counsel’s failure to request a presentence report was not deemed ineffective because
the report would have contained information about respondent’s criminal history and
undermined the claim that he had no significant prior criminal record. Id.
The lack of merit regarding the prejudice component of the ineffective assistance of
counsel claim was ruled “even more stark.” Id. at 700. The Court wrote:
[E]ven assuming the challenged conduct of counsel was
unreasonable, respondent suffered insufficient prejudice to warrant
setting aside his death sentence. . . . [T]here [was] no reasonable
probability that the omitted evidence would have changed the
conclusion that the aggravating circumstances [of the three capital
murder crimes] outweighed the mitigation circumstances and,
hence, the sentence imposed.
Id. at 698–700.
The performance and prejudice prongs of Strickland may be addressed in either order.
Id. at 697. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice . . . that course should be followed.” Id. In evaluating the prejudice suffered
by a petitioner as a result of counsel’s deficient performance, the court looks to the “cumulative
weight of error” to determine whether the prejudice “reache[s] the constitutional threshold.”
Lindstadt v. Keane, 239 F.3d 191, 202 (2d Cir. 2001) (granting writ of habeas corpus because
counsel’s cumulative errors—including failure to effectively challenge only evidence of physical
sexual abuse and expert testimony based on unnamed available studies—amounted to
constitutional ineffectiveness and prejudiced petitioner); see also Hinton v. Alabama, 134 S.Ct.
1081, 1089 (2014) (per curiam) (holding that defense counsel’s failure to request additional
23
funds to replace an inadequate expert amounted to deficient performance) (“When a defendant
challenges a conviction, the question is whether there is a reasonable probability that, absent the
errors, the factfinder would have had a reasonable doubt respecting guilt.” (citations and internal
quotation marks omitted)).
The standard for evaluating counsel’s assistance is a “most deferential one[.]”
Harrington, 562 U.S. at 105 (holding that a state court’s acceptance of counsel’s decision not to
consult blood evidence experts was not an unreasonable application of Strickland). State court
determinations are given heightened deference under section 2254(d) of title 28 of the United
States Code. See supra Part IV.B. A federal court reviewing a state court’s determination
regarding ineffective assistance of counsel has been characterized as “doubly” deferential by the
Supreme Court. Harrington, 562 U.S. at 105. When applying section 2254(d), “the question is
not whether counsel’s actions were reasonable[,]” but “whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.” Id. (emphasis added).
2. Application of Standard by Court of Appeals for the Second Circuit
The Court of Appeals for the Second Circuit has explained that “[i]n assessing counsel’s
performance . . . , we must apply a heavy measure of deference to counsel’s judgments.”
Griener v. Wells, 417 F.3d 305, 323 (2d Cir. 2005) (citations and internal quotation marks
omitted) (holding that counsel’s decision not to call unfriendly witnesses to suggest that a third
party had motive to kill the victim was not deficient); see also, e.g., Lopez v. Rivera, 157 F.
App’x. 358, 360 (2d Cir. 2005) (summary order) (finding that state court reasonably concluded
counsel rendered meaningful assistance, and that there was no evidence that a strategy pursuing
an alibi defense would have supported defendant’s claim).
A counsel’s performance will be found unreasonable or ineffective only “when it is so
deficient that it falls outside the wide range of professionally competent assistance.” Kovacs v.
24
United States, 744 F.3d 44, 50 (2d Cir. 2014) (citations and internal quotation marks omitted)
(holding that “no reasonable jurist could find a defense counsel’s affirmative misadvice as to the
immigration consequences of a guilty plea to be objectively reasonable”); Rivas v. Fischer, 780
F.3d 529, 549–51 (2015) (holding state court unreasonably applied Strickland test because
counsel’s failure to investigate expert testimony, which called into doubt the central forensic
evidence linking the inmate to the crime, was ineffective assistance and prejudicial to the
defendant).
A petitioner must go beyond “convinc[ing] a federal habeas court that, in its independent
judgment[,] the state court applied Strickland incorrectly.” Cox v. Donnelly, 387 F.3d 193, 197
(2d Cir. 2004) (citations and internal quotation marks omitted) (finding counsel’s failure to
object to unconstitutional jury instruction objectively unreasonable and prejudicial). Petitioner
“must show that the state court applied Strickland to the facts of his case in an objectively
unreasonable manner.” Id.
3. Application of Standard by District Courts in the Second Circuit
Second guessing from the federal bench is seldom appropriate with respect to the tactical
and strategic choices made by counsel in the heat of trial. Courts in this district have routinely
refused to find ineffective assistance of counsel given the wide range of conduct considered
reasonable. See, e.g., Melendez v. Heath, No. 10-CV-5698, 2014 WL 2440499, at *5 (E.D.N.Y.
May 30, 2014) (finding “counsel’s failure to move to dismiss the course of sexual conduct
charges on the basis of failure to prove the three-month duration element was not a waiver of ‘a
particularly strong and clear’ claim”); Gordon v. Bradt, No. 09-CV-4383, 2014 WL 1237370, at
*8 (E.D.N.Y. Mar. 25, 2014) (no prejudice found by counsel’s alleged failure to effectuate
desired grand jury testimony); Garcia v. Smith, No. 11-CV-1332, 2014 WL 905544, at *20–21
(E.D.N.Y. Mar. 7, 2014) (“Counsel’s decision not to argue that [petitioner] was the ‘operator’ of
25
the car was a tactical one that cannot give rise to an ineffectiveness claim.”); Johnson v. Taylor,
No. 08-CV-2442, 2010 WL 2735770, at *4–6 (E.D.N.Y. July 8, 2010) (denying habeas relief
where it was alleged that counsel failed to adequately investigate the identity of the individual
who owned the residence where petitioner was arrested, refrained from conducting inapplicable
research, and waived his client’s grand jury testimony).
If counsel was actively engaged, or succeeded, in various aspects of a defense, ineffective
assistance is rarely found. See, e.g., Battee v. Phillips, No. 04-CV-4334, 2010 WL 2026443, at
*6 (E.D.N.Y. May 19, 2010) (considering acquittal of one charge as evidence of effective
counsel); Caimite v. Fischer, No. 05-CV-3324, 2009 WL 236917, at *5–6 (E.D.N.Y. Feb. 2,
2009) (trial counsel considered effective where he engaged in pretrial discovery, cross-examined
witnesses effectively, delivered cogent opening, made appropriate objections and motions during
trial, and made appropriate charge requests and sound closing arguments).
B. Application
Petitioner’s allegations regarding his counsel’s numerous and cumulative errors do not
rise to the level of a Sixth Amendment violation. See supra Part III.H; see also Pet’r’s Habeas
Br. 21–23. Neither prong of the Strickland test is satisfied. See supra Part IV.A.1. The state
court did not apply the Strickland standard in an objectively unreasonable manner. See supra
Part IV.A.2–3. No objective lack of reasonableness on the part of counsel is detected. See supra
Part III. No sufficient prejudice to warrant setting aside the conviction exists. Id.
All nine of petitioner’s ineffective assistance of counsel claims amount to a critique of
counsel’s litigation strategy. See supra Part III.H. None of the claims rise to a standard of
deficient representation falling “outside the wide range of professionally competent assistance.”
See supra Part IV.A.2. Trial counsel’s assistance was effective as it resulted in the acquittal of
multiple charges. See supra Parts II, III & V.A.3.
26
Petitioner’s first argument regarding counsel’s failure to permit him to testify before the
grand jury and dismiss the indictment is meritless. Any defects with respect to the grand jury
process are cured after a conviction in front of a petit jury under a heightened standard of proof.
See infra Part VI.A.
His second argument, focusing on counsel’s failure to conduct an adequate pre-trial
investigation and build an alibi defense, fails. Arguing ineffective assistance of counsel,
petitioner presented the following alibi defense to the state court on the motion to vacate his
conviction:
On May 14, 2007[,] [petitioner] was in area of 150th[] Street and
58th Road looking at a home for sale. [He] knocked on the door
and received no answer. [Petitioner] knocked on the neighbor[’]s
door and spoke with an Asian woman. This woman gave
[petitioner] a phone number to reach the owner[.] [He] thanked the
woman for her help, [and] headed back to his friend[’]s S.U.V. . . .
As [he and his friend] were leaving, [petitioner] noticed that
someone left a back-pack on the floor, near the trunk of a car
[p]arked across the street. [Petitioner] jumped out of the S.U.V.,
walked over to the [b]ack-[p]ack; and picked it up, to see if there
was an address or number on it to return it to its owner. As
[petitioner] was looking at the bag[,] a car skid up and three (3)
men with guns in hand[] ran at [petitioner][.] [O]ut of fear
[petitioner] ran about 100 yards when one of the men chasing
[Petitioner] fell on the ground and his gun skid on the floor about
five (5) feet from his hand. [Petitioner] looked down and heard
“drop the weapon or will sho[o]t”. At which time[,] [petitioner]
lifted his hands into the air to show he had no weapon.
See Occhione Aff. 7–8. He raised the same argument to this court. See Hearing Transcript, June
9, 2015, No. 14-CV-3637. Having considered the alibi defense in light of the entire record, this
court finds that the state court assessed petitioner’s ineffective assistance of counsel claim and
his alibi defense in accordance with Supreme Court precedent and in light of the evidence. The
arresting officers testified to witnessing petitioner climb over the fence, and found him with a
27
crowbar and the victim’s property on his person. See supra Part II. Relief is not merited. See
supra Parts IV & V.A.
No basis exists for petitioner’s third claim that his counsel failed to permit him to testify
at trial. See supra Part V.A.3. The trial transcript does not indicate that petitioner voiced any
objection when counsel rested his case or when counsel affirmatively stated that petitioner would
not be exercising his right to testify. See Trial Tr. 701:23–702:2; see also id. at 756:13–21
(charge provided to jury at request of petitioner’s counsel highlighted that decision to not testify
is not a factor from which any inference unfavorable to the petitioner may be drawn). In view of
defendant’s criminal record, cross-examination would have been deleterious.
The claim regarding a charge for a crime vacated on appeal is of no moment. See supra
Part III.B.
Petitioner’s remaining ineffective assistance of counsel claims—stating that counsel
failed to object at specific points during the trial, pursue sanctions, move to dismiss the burglary
count, and adequately cross-examine police officers about inconsistent statements—cannot
succeed.
The contention that his counsel did not effectively bring to light evidence tampering is
not corroborated by the trial record. See supra Part III.E.
His sixth claim is mooted because the removal of the word “remained” from the
indictment benefitted petitioner’s case. Id.
The tainted jury claim lacks merit because the trial court removed juror number nine prior
to opening statements, and confirmed with each of the remaining jurors and alternates that they
were impartial. Id.
28
The allegation that petitioner was coerced into signing the “Miranda Warning,” his eighth
ineffective assistance of counsel claim, is unsubstantiated by the evidence. Id.; see also supra
Part III.C.3.
Petitioner cannot make out his final claim that his counsel should have submitted a
motion to dismiss the charge of burglary in the second degree for lack of proof. See supra Part
II. The evidence in the record with respect to petitioner’s guilt for the crimes charged is
overwhelming. Id.
Prejudice sufficient to warrant setting aside the conviction cannot be established.
All ineffective assistance of counsel claims are denied.
VI.
Denial of Right to Testify Before Grand Jury
A. Law
The Fifth Amendment right to a grand jury presentation in felony cases is not applicable
to the States. Alexander v. Louisiana, 405 U.S. 625, 633 (1972); Fields v. Soloff, 920 F.2d 1114,
1118 (2d Cir. 1990). “Once a state itself creates such a right, however, due process may prevent
it from causing the right to be forfeited in an arbitrary or fundamentally unfair manner.” Michael
v. Dalsheim, No. 90-CV-2959, 1991 WL 99368, at *10 (E.D.N.Y. May 22, 1991).
Claims of deficiencies in state grand jury proceedings are generally not cognizable in a
habeas corpus proceeding in federal court. Any grand jury deficiencies are rendered harmless
by a petit jury conviction assessing petitioner’s guilt under a heightened standard of proof. See
Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989) (holding that alleged use of misleading and
prejudicial evidence in front of grand jury were cured in trial before petit jury, which convicted
habeas petitioner of manslaughter under heightened standard of proof); Venable v. Walsh, No.
05-CV-0084, 2009 WL 750230, at *8 (E.D.N.Y. Mar. 19, 2009) (“[Defendant]’s conviction
renders any failure to allow him to testify before the grand jury harmless error. His grand jury
29
claim is not cognizable on habeas review.”); Montalvo v. Annetts, No. 02-CV-1056, 2003 WL
22962504, at *17–18 (S.D.N.Y. Dec. 17, 2003) (same); see also Bulla v. Lempke, No. 06-CV1156, 2006 WL 2457945, at *11 (S.D.N.Y. Aug. 25, 2006) (“[A]ny right to testify before a grand
jury arises only under state law and is thus not cognizable on habeas review” (collecting cases));
Cates v. Senkowski, No. 02-CV-5957, 2003 WL 1563777, at *3 (E.D.N.Y, Mar. 17, 2003)
(same); Green v. Artuz, 990 F. Supp. 267, 273 n.8 (S.D.N.Y. 1998) (same).
B. Application
Petitioner erroneously insists that he is entitled to habeas relief because he was not
permitted to testify before the grand jury on May 18, 2007. See Pet’r’s Habeas Br. 21. He
asserts that this failure deprived him of his statutory right to testify under section 190.50 of New
York’s Criminal Procedure Law. Id. Having been convicted by a petit jury, petitioner has no
claim. See supra Part III.E & Part VI.A.
No sound practitioner would have put defendant before the grand jury in view of the
strong evidence against him. Should he have decided to testify, inconsistent statements before
the grand jury would have plagued him. Petitioner’s claim has no credibility.
The claim regarding his right to testify before the grand jury is dismissed.
VII.
Reverse Batson Challenge
A. Law
A state’s privilege in criminal trials to strike individual jurors through peremptory
challenges is subject to Supreme Court equal protection jurisprudence. See Batson v. Kentucky,
476 U.S. 79, 96 (1985). Under the Batson rule, peremptory challenges cannot be used to exclude
jurors based on “race, ethnicity, or sex.” Rivera v. Illinois, 556 U.S. 148, 153 (2009); see also
Miller-EL v. Dretke, 545 U.S. 231 (2004) (“[F]or more than a century, this Court consistently
and repeatedly has reaffirmed that racial discrimination by the State in jury selection offends the
30
Equal Protection Clause.” (citations and internal quotation marks omitted)); JEB v. Alabama ex
rel. T.B., 511 U.S. 127, 128 (1994) (“[P]otential jurors, as well as litigants, have an equal
protection right to jury selection procedures that are free from state-sponsored group stereotypes
rooted in, and reflective of, historical prejudice.”); Edmonson v. Leesville Concrete Co., 500 U.S.
614, 616 (1991) (“Recognizing the impropriety of racial bias in the courtroom, we hold the racebased exclusion violates the equal protection rights of the challenged jurors.”).
Referred to as a “reverse Batson challenge,” the Batson rule has been extended to the use
of peremptory challenges by criminal defendants. Georgia v. McCollum, 505 U.S. 42, 59 (1992)
(“[N]either the Sixth Amendment right nor the attorney-client privilege gives a criminal
defendant the right to carry out through counsel an unlawful course of conduct.”). “[T]he
exercise of a peremptory challenge by any party, including a defendant in a criminal case,
constitutes state action because it is the exercise of the power to choose ‘the institution of
government on which our judicial system depends.’” United States v. Martinez, 621 F.3d 101,
106 (2d Cir. 2010) (quoting McCollum, 505 U.S. at 54).
While a criminal defendant always retains the possibility of habeas relief for a violation
of the right to an impartial jury, a trial court’s good faith error in denying a peremptory challenge
to a prospective juror does not deprive a defendant of the right to a fair trial. See Rivera, 556
U.S. at 158 (2009). The Court of Appeals for the Second Circuit has found that a defendant’s
right to exercise a peremptory challenge is a matter of state law that does not implicate federal
constitutional rights. See, e.g., Brown v. Conway, 483 F. App’x. 593, 594 (2d. Cir. 2012)
(summary order) (“[petitioner’s] sole claim that the trial court erroneously rejected his exercise
of a peremptory challenge cannot form the basis for federal habeas relief”), cert. denied, 133
S.Ct. 543 (2012); Hayes v. Conway, No. 07-CV-3656, 2009 WL 320188, at *2 (2d Cir. Feb. 10,
31
2009) (summary order) (“Because there is no clearly established federal law as determined by
the Supreme Court . . . , the state court’s denial of two . . . peremptory challenges cannot provide
a basis for federal habeas relief.”). District courts in the circuit have followed suit in their
rulings. See Pinto v. Walsh, No. 09-CV-05419, 2014 WL 2594416, at *2 (E.D.N.Y. June 10,
2014) (“[T]he state court’s denials of . . . peremptory challenges based on race cannot provide a
basis for federal habeas relief.” (citations and internal quotation marks omitted)); Boston v.
Brown, No. 10-CV-01494, 2014 WL 726683, at *12 (E.D.N.Y. Feb. 24, 2014) (rejecting
challenges to a reverse Batson ruling on Sixth Amendment and Equal Protection grounds
because “the mistaken denial of a state-provided peremptory challenge does not, without more,
violate the Federal Constitution” (quoting Rivera, 556 U.S. at 158)).
In response to “ordinary” Batson challenges, the Supreme Court has ruled that a federal
habeas court may grant a petition only where the state court decision was “an unreasonable
determination of the facts in light of the evidence presented in the state court.” Rice v. Collins,
546 U.S. 333, 339 (2006) (citations and internal quotation marks omitted); see also supra Part
IV.B.
[R]ace-neutral reasons for peremptory challenges often invoke a
juror’s demeanor (e.g., nervousness, inattention), making the trial
court’s firsthand observations of even greater importance. . . . We
have recognized that these determinations of credibility and
demeanor lie peculiarly within a trial judge’s province, and we
have stated that in the absence of exceptional circumstances, we
would defer to the trial court.
Snyder v. Louisiana, 552 U.S. 472, 477 (2008) (citations and internal quotation marks omitted);
see also DeVorce v. Philips, No. 13-CV-3205, 2015 WL 1320775, at *2 (2d Cir. Mar. 25, 2015)
(summary order) (giving “great deference” to both prosecutor’s and prospective juror’s in-court
demeanor and holding that trial court did not unreasonably credit prosecution’s proffered race
32
neutral reason for peremptory strike); Messiah v. Duncan, 435 F.3d 186, 196 (2d Cir. 2006)
(“[D]eference stems from the fact that the best evidence . . . will often . . . be the demeanor of the
attorney who exercises the challenge, and such evaluations of demeanor lie peculiarly within a
trial judge’s province.” (citations and internal quotation marks omitted)). “[E]ven if reasonable
minds reviewing the record might disagree about the prosecutor’s credibility, it is inappropriate
on habeas review to supersede the trial court’s credibility determination.” Messiah, 435 F.3d at
200 (citation and internal quotation marks omitted).
B. Application
Petitioner incorrectly maintains that the striking of his peremptory challenge entitles him
to habeas relief. See Pet’s Habeas Br. 20. Asserted is that his right to due process was violated
when the trial court sustained a reverse Batson objection made by the state in response to defense
counsel’s peremptory challenge of a juror. Id. The state court’s decision regarding the
peremptory challenge exercised against a juror of Indian descent was not an unreasonable
determination of the facts in light of the evidence presented. See supra Part III.D. No evidence
has been proffered suggesting that the denial of the peremptory challenge violated petitioner’s
right to an impartial jury. See supra Part VII.A.
The reverse Batson claim is dismissed.
VIII.
Sentencing Persistent Violent Felony Offenders and Apprendi Doctrine
A. Law
New York Penal Law provides that a persistent violent felony offender is a person
previously convicted of two or more predicate violent felonies pursuant to section 70.04(b). See
N.Y. Penal Law § 70.08(1)(a) (McKinney 2006).
In Apprendi, the Supreme Court held: “Other than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed statutory maximum must be
33
submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S.
466, 490 (2000) (emphasis added); Alleyne v. United States, 133 S.Ct. 2151, 2168 (2013) (same).
The narrow exception regarding “prior convictions” exists, the Court has explained, because the
procedural safeguards attendant to prior convictions mitigate Sixth Amendment concerns.
Apprendi, 530 U.S. at 488.
The Court of Appeals for the Second Circuit, following Apprendi, has ruled that
evaluation of a defendant’s propensity for recidivism is the province of judges, not juries. See,
e.g., United States. v. Santiago, 268 F.3d 151, 156 (2d Cir. 2001) (finding prior convictions
considered as “sentencing factor” for purposes of sentence enhancement under section 924(a) of
title 18 of the United States Code rather than as an element of the offense). See also, e.g.,
Thompson v. Ercole, No. 07-CV-3788, 2011 U.S. Dist. LEXIS 125110, at *14 (E.D.N.Y. Oct.
28, 2011) (explaining that task of finding prior convictions and the “who, what, when, and where
of a prior conviction” belongs to judges).
Section 70.08 of New York Penal Law falls within the prior conviction exception to
Apprendi. See, e.g., Washington v. Graham, 355 F. App’x. 543, 545 (2d Cir. 2009) (summary
order); Kelly v. Lee, No. 11-CV-3903, 2014 WL 4699952, at *13 n.12 (E.D.N.Y. Sept. 22, 2014)
(“The Court notes that courts in this Circuit routinely reject Apprendi challenges to New York’s
persistent violent felony offender statute.” (citing Chambers v. Conway, No. 09-CV-2175, 2011
WL 2226956, at *12 (S.D.N.Y. June 8, 2011)); Adelman v. Ercole, No. 08-CV-3609, 2010 WL
3210718, at *5 (E.D.N.Y. Aug. 12, 2010) (same); Boutte v. Poole, No. 07-CV-8412, 2008 WL
3166696, at *3 n.5 (S.D.N.Y. Aug. 4, 2008) (collecting cases).
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B. Application
Petitioner wrongly contends that the sentencing court's use of section 70.08 of New
York's Penal Law entitles him to habeas relief. See supra Parts III.E & VIII.A, see also Pet'r's
Habeas Br. 21. The sentencing court's consideration of prior convictions falls squarely within
the exception articulated by the Supreme Court in Apprendi. See supra Part VIII.A.
Dismissed is petitioner's claim that section 70.08 of New York Penal Law is
unconstitutional.
IX. Conclusion
The petition for a writ of habeas corpus pursuant to section 2254 of title 28 of the United
States Code is denied.
A certificate of appealability is denied. The claims are frivolous and the evidence of guilt
overwhelming. The defendant had a fair trial.
Jack'E. Weinstein
Senior United States District Judge
Dated: June 24, 2015
Brooklyn, New York
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