Jones v. Perez
Filing
16
ORDER denying petition for writ of habeas corpus. For the reasons stated in the attached memorandum and order, Jones's petition under 28 U.S.C. § 2254 is denied and no certificate of appealability shall issue. Ordered by Judge John Gleeson on 10/10/2015. (Garcia, Lynda)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
FOR ONLINE PUBLICATION ONLY
ANDRE JONES,
Petitioner,
- versus -
MEMORANDUM
AND ORDER
14-CV-3971 (JG)
ADA PEREZ, Warden,
Respondent.
A P P E A R A N C E S:
ANDRE JONES
09A4947
Downstate Correctional Facility
121 Red Schoolhouse Road
Fishkill, New York 12524
By:
Petitioner, pro se
RICHARD A. BROWN
District Attorney, Queens County
124-01 Queens Boulevard
Kew Garden, New York 11415
By:
John M. Castellano
Merri Turk Lasky
Attorneys for Respondent
JOHN GLEESON, United States District Judge:
Andre Jones petitions under 28 U.S.C. § 2254 for a writ of habeas corpus. Jones
is presently incarcerated pursuant to a New York state criminal conviction and sentence of 20
years (to be followed by a five-year term of post-release supervision) following a jury verdict of
guilty of Manslaughter in the First Degree (N.Y. Penal Law § 125.20(1)) and Criminal
Possession of a Weapon in the Third Degree (N.Y. Penal Law § 265.01(1)).1 I heard argument
1
Jones’s original prison sentence of 25 years plus 5 years of post-release supervision on the
manslaughter charge was reduced on appeal to 20 years. See People v. Jones, 97 A.D.3d 696 (2d Dep’t. 2012).
on the motion on December 12, 2014. For the reasons given below, the petition is denied and no
certificate of appealability shall issue.
BACKGROUND
A.
Proceedings in the Trial Court
Andre Jones was charged in Queens County with one count of Murder in the Second
Degree (N.Y. Penal Law § 125.25 (1)) and one count of Criminal Possession of a Weapon in the
Third Degree (N.Y. Penal Law § 265.01(1)). DE 8, ¶ 6.2 The charges arose from events on
March 24, 2007 inside the apartment of Latrice Goodwine at 91-56 195th Street, Jamaica,
Queens, where Jones stabbed Jackie Halsey through the heart, killing him, after he and Halsey
had an argument during an evening of drinking and marijuana smoking. Brown Aff., ¶ 4.
Jones fled to South Carolina and was arrested a month later with Jantay Brackat.
At the time of his arrest, he made written and recorded statements in which he admitted his
involvement in the crime, though he denied remembering the incident or having any intent to
harm Halsey, who was his friend. See TT 701-02. The videotaped and written statements were
admitted into evidence at trial, and the written statement was read aloud to the jury. Id. at 692,
695-701.
At a pretrial hearing on May 18, 2009, Jones’s counsel stated that he had served
notice of his intention to offer a defense of extreme emotional disturbance the week before. HT
3. Counsel also stated that he had submitted an application to the court to retain an expert
psychologist, but the application had been denied. Id. at 3. Counsel argued that Jones had
himself been the victim of a stabbing just a few days earlier in Brooklyn, and that Jones had
2
Citations in the form “DE __” are to the documents contained in the case file; “DE” refers to the
number of the docket entry for the cited documents. “TT __” is used to refer to the pages of the trial transcript;
“HT” is used to refer to the transcript of the pretrial proceeding held on May 18, 2009; and “ST __ refers to the
transcript of the sentencing, which occurred on September 23, 2009. The transcripts of these proceedings are
attached as exhibits to DE 11 and DE 12
2
testified at the suppression hearing that he had fled the apartment after the stabbing of Halsey
due to his fear of the gang that had stabbed him in Brooklyn. Counsel had spoken with a
psychologist, who could not determine whether Jones had been suffering from post-traumatic
stress as a result of his stabbing without speaking to Jones. The judge stated the Brooklyn event
was too remote to have had an effect on Jones’s later crime. Id. at 4-6. Unlike matrimonial or
domestic disputes, which can have a relevant “nexus” to a charged shooting, the court stated,
“Here gang members weren’t in his house” at the time Halsey was stabbed. Id. at 6. The court
further stated that the “timeliness [of the motion] is another problem,” as it was coming “at the
eleventh hour.” Id. at 8. The application was not explicitly denied because the prospect of a plea
bargain was raised at the hearing, but the court never granted the application to retain the expert.
At trial, a prosecution witness, Latrice Goodwine, testified that she had not seen
Jones with anything in his hand on the night of the murder. TT 616. The court, pursuant to New
York C.P.L. § 60.35, allowed the prosecutor to impeach Goodwine with her own earlier written
statement to the police and her grand jury testimony. See id. at 616-19. The contents of the prior
statements – that Goodwine had seen Jones with a knife – were disclosed to the jury during the
exchange. Id. at 618. Two other eyewitnesses, Jantay Brackat and Lasandra Russell, testified
that they saw Jones stab Halsey. Id. at 475, 792-93.
The trial court denied Jones’s renewed applications for bus fare for a witness and
a subpoena for police photographs. Id. at 393; HT 5. The court also precluded testimony that a
razor was found in Halsey’s throat during the autopsy. TT 840-43.
The jury found Jones not guilty of intentional murder but guilty of Manslaughter
in the First Degree and Criminal Possession of a Weapon in the Second Degree. On September
23, 2009, the court sentenced Jones to twenty-five years’ imprisonment plus five years of post-
3
release supervision on the manslaughter charge, and a concurrent indeterminate term of two to
six years on the weapon count. ST 30-32.
B.
The Direct Appeal
Jones, represented by counsel, appealed to the Appellate Division, Second
Department, raising four claims: (1) the trial court abused its discretion when ruling on his
Sandoval motion3 to exclude prior convictions; (2) he was deprived of a fair trial when the
prosecution impeached its own witness, Latrice Goodwine, with her prior inconsistent statement;
(3) he was deprived of his right to present a defense when the trial court (i) refused to sign a
subpoena for police records and photographs that could have helped establish his physical
inability to carry out the stabbing, (ii) refused to authorize a disbursement for a witness who
could have testified as to Jones’s physical condition on the day before the crime, and (iii)
precluded evidence that a razor had been found in Halsey’s mouth by the medical examiner; and
(4) his sentence was excessive. In a pro se supplemental brief, Jones raised the following
additional claims: (5) he was denied the effective assistance of counsel because his attorney (i)
failed to file a timely motion for authorization to retain a medical expert, and (ii) failed to
conduct an adequate investigation to pursue a defense of extreme emotional disturbance; (6) the
state had failed to comply with the notice requirement of C.P.L. § 710.30; (7) the trial court erred
in failing to conduct a Dunaway hearing4 after he was granted such a hearing; and (8) his
warrantless arrest was illegal.
3
In a Sandoval hearing, People v. Sandoval, 34 N.Y.2d 371 (1974), the trial judge makes a
determination as to whether any prior convictions or specific uncharged crimes or bad acts may be used to impeach
a testifying defendant.
4
A Dunaway hearing is held to determine whether a statement or other intangible evidence obtained
from a person arrested without probable cause should be suppressed at a subsequent trial. See Dunaway v. New
York, 442 U.S. 200 (1979).
4
On July 11, 2012, the Second Department modified the judgment by reducing the
manslaughter sentence to twenty years, and affirmed the judgment as modified. People v. Jones,
97 A.D.3d 696 (2d Dep’t 2012) (Graffeo, J.). The court held that the trial court did not abuse its
discretion in rendering its Sandoval ruling. It further held that the prosecutor had improperly
used Goodwine’s prior statements to refresh her recollection in a manner that disclosed the
contents to the jury, but the error was harmless in light of the overwhelming evidence of Jones’s
guilt. Jones’s claim that his warrantless arrest was illegal was found to be unpreserved for
appellate review, and his remaining contentions were found to be without merit. Jones’s
application for leave to appeal the decision to the New York Court of Appeals was denied by a
judge of that court on September 28, 2012. Id.
C.
The Motion to Vacate Judgment
On July 22, 2013, Jones moved to vacate his judgment pursuant to New York
Criminal Procedure Law §§ 440.10 and 440.20. Jones raised five claims: (1) he was denied the
affective assistance of counsel because his attorney failed to object to the submission to the jury
of the lesser included charge of manslaughter on the ground that there was no reasonable view of
the evidence that would support the charge; (2) the trial judge deprived Jones of his right to a fair
trial by acting as an advocate for the prosecution; (3) the court deprived Jones of due process by
relying on improper factors in imposing sentence; (4) he was denied his constitutional right to a
fair trial based on the prosecutor’s failure to disclose Brady material and by his counsel’s failure
to object to the alleged Brady violation; and (5) he was deprived of due process when the
prosecution improperly impeached its own witness and effective assistance of counsel when trial
counsel failed to object to that impeachment.
5
On October 9, 2013, the Supreme Court denied Jones’s motion, finding that his
claims were procedurally barred and without merit. Opinion, DE 11-2. The Second Department
denied Jones’s application for leave to appeal on May 5, 2014. DE 11-3.
D.
The Instant Petition for a Writ of Habeas Corpus
Jones, proceeding pro se, now seeks a writ of habeas corpus on the following
grounds: (1) he was deprived of his due process right to a fair trial and to the effective assistance
of counsel when his trial attorney failed to file a timely notice of intent to proffer psychiatric
evidence pursuant to N.Y. C.P.L. § 250.10; (2) he was deprived of a fair trial when the court
allowed the prosecutor to examine a state’s witness about her prior inconsistent statements; (3)
he was deprived of the right to present a defense when the trial court refused to sign a subpoena
for police records and photographs that could have helped to establish Jones’s physical inability
to commit the crime and refused to authorize a disbursement for a witness’s bus fare; (4) he was
deprived of his right to present a defense when the court precluded the defense from presenting
evidence that Halsey had a razor in his mouth during the autopsy; (5) he was denied the effective
assistance of trial counsel because counsel failed to object to the submission to the jury of
manslaughter as a lesser included offense; (6) the court deprived him of due process and a fair
trial by acting as an advocate for the prosecution; (7) he was denied a fair trial and the effective
assistance of counsel because of the state’s failure to disclose Brady material and because his
trial counsel failed to object to the Brady violation; and (8) the trial court relied on improper
factors in sentencing.
6
DISCUSSION
A.
Standards of Review
Under 28 U.S.C. § 2254(a), a district court can “entertain an application for a writ
of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only
on the ground that he is in custody in violation of the Constitution or laws or treaties of the
United States.” A person in custody pursuant to a judgment of a state court must generally meet
three requirements to obtain habeas relief: (1) exhaustion; (2) lack of a procedural bar; and (3)
satisfaction of the deferential standard of review set forth in the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (1996).
1.
Exhaustion
The exhaustion requirement, codified at 28 U.S.C. §§ 2254(b) and (c), obligates a
federal habeas petitioner to exhaust state judicial remedies before seeking relief from a federal
court. To exhaust state remedies, a petitioner must “fairly present” his federal constitutional
claims to the highest state court with jurisdiction over them. Duncan v. Henry, 513 U.S. 364,
365 (1995) (internal quotation marks and citations omitted); Daye v. Att’y Gen. of New York, 696
F.2d 186, 191 (2d Cir. 1981) (en banc) (citations omitted). This requirement, which “springs
primarily from considerations of comity” between the federal and state systems, Daye, 696 F.2d.
at 191, affords the state system “the opportunity to pass upon and correct alleged violations of its
prisoners’ federal rights.” Duncan, 513 U.S. at 365 (internal quotations and citation omitted).
2.
Procedural Default
A federal habeas court may not review a state prisoner’s federal claims if those
claims were defaulted in state court pursuant to an independent and adequate state procedural
rule, “unless the prisoner can demonstrate cause for the default and actual prejudice as a result of
7
the alleged violation of federal law, or demonstrate that failure to consider the claims will result
in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). A
state law ground is “adequate” if “the state’s insistence on compliance with its procedural rule
serves a legitimate state interest.” Wainwright v. Sykes, 433 U.S. 72, 83 n.8 (1977) (quoting
Henry v. Mississippi, 379 U.S. 443, 447 (1965)). Further, a “state law ground is only adequate to
support the judgment and foreclose review of a federal claim if it is ‘firmly established and
regularly followed’ in the state.” Garvey v. Duncan, 485 F.3d 709, 713 (2d Cir. 2007). The
“fundamental miscarriage of justice” exception has been has been construed to require a showing
of actual innocence. Schlup v. Delo, 513 U.S. 298, 321 (1995).
3.
AEDPA Deference to State Court Decisions
Under AEDPA, a federal court may not grant a writ of habeas corpus “with
respect to any claim that was adjudicated on the merits in State court proceedings” unless the
state court’s decision was “contrary to, or an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States,” or “was based on an
unreasonable determination of facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(1)-(2). A decision on the merits is “contrary to” clearly
established federal law if the state court arrives at a conclusion opposite to that reached by the
Supreme Court on a question of law or decides a case differently than the Supreme Court has on
a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405 (2000). A state
court decision is an “unreasonable application” of clearly established federal law if the state
court identifies the correct governing legal principle from the Supreme Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s case. Id. at 407.
8
AEDPA’s deferential standard of review “reflects the view that habeas corpus is a
guard against extreme malfunctions in the state criminal justice systems, not a substitute for
ordinary error correction through appeal.” Harrington v. Richter, 562 U.S. 86, 102 (2011)
(internal quotation marks and citation omitted). “[A] federal habeas court may not issue the writ
simply because that court concludes in its independent judgment that the relevant state-court
decision applied clearly established federal law erroneously or incorrectly.” Williams, 529 U.S.
at 411 (2000). Rather, the court should ask whether the state court’s application of federal law
was objectively unreasonable. Id. In addition, a federal habeas court must presume all state
court factual determinations to be correct; such findings are binding on habeas review unless the
petitioner rebuts them with clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
AEDPA’s deferential review applies whenever a state court disposes of a state
prisoner’s federal claim on the merits, regardless of whether it gives reasons for its determination
or refers to federal law in its decision. See Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001)
(“When a state court [adjudicates a federal claim on the merits], a federal habeas court must
defer in a manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court’s decision on the
federal claim – even if the state court does not explicitly refer to either the federal claim or to
relevant federal case law.”).
B.
Jones’s Claims for Relief
1.
Ineffective Assistance of Counsel
a.
Failure to File a Timely Motion for Authorization to Retain a Medical
Expert Under New York C.P.L. § 250.10
Jones claims that he was denied effective assistance of counsel because trial
counsel failed to timely file a notice of intent to offer psychiatric testimony pursuant to New
York C.P.L. § 250.10, and waited too long to seek authorization to retain a medical expert to
9
support a defense of extreme emotional disturbance. Specifically, Jones contends that the
medical expert may have been able to testify that Jones was suffering from post-traumatic stress
because he himself had been stabbed a few days before the crime. This, in turn, the argument
goes, would have allowed him to put forth a defense of extreme emotional disturbance.
Although the state court did not “explicitly refer to either the federal claim or to relevant federal
case law,” the claim was nevertheless adjudicated on the merits when the Second Department
found that the petitioner’s “remaining contentions are without merit,” Jones, 97 A.D.3d 696, and
is thus subject to AEDPA’s deferential standard of review. See Sellan, 261 F.3d at 312.
To establish ineffective assistance of counsel under the Sixth Amendment, a
defendant must show (1) that the attorney’s performance was deficient, and (2) that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984).
At the May 18, 2009 hearing, Jones’s trial counsel renewed a motion for
authorization to retain a medical expert5 and made a robust argument in support of the motion.
HT 3-8. The court noted the tenuous connection between the after-effects of the earlier crime
against Jones and Jones’s own stabbing of Halsey. Skeptical that expert testimony could support
to support a defense of extreme emotional disturbance, the hearing court essentially denied the
§ 250.10 motion, and its decision was affirmed by the Second Department.
I conclude that the hearing court’s assessment of the application was reasonable.
Though there was a temporal connection between the assault of Jones and Jones’s stabbing of
Halsey a few days later, there were no other indicia that the two events were related in any way.
Accordingly, even a more prompt motion for authorization to retain an expert would not have
5
Counsel had originally made the request at a hearing on October 2, 2008.
10
changed the outcome. Accodringly, the state court’s determination of this issue cannot be
characterized as an unreasonable application of Strickland.
b.
The Failure to Object to the Lesser Included Charge of First-Degree
Manslaughter and to Allege A Brady Violation
Jones argues that he received ineffective assistance of counsel when his lawyer
failed to raise a specific objection to the submission of first-degree manslaughter as a lesser
included offense, and failed to object to an alleged Brady violation. Addressing the lesser
included charge claim first, on the circumstances of this case, I cannot fathom why counsel
would not have wanted the lesser included charge submitted to the jury. Jones was charged with
murder in the second degree, a more serious charge. Trial counsel made an application to the
court for the charges of criminally negligent homicide and manslaughter in the second degree.
The court denied the request for a charge of criminally negligent homicide but granted the charge
for manslaughter in the second degree. TT 912. The prosecution moved to include a charge of
manslaughter in the first degree, which trial counsel opposed and the court granted. Jones
contends that counsel was ineffective because he failed to raise a specific objection to the lesser
included charge. In my opinion, counsel should have welcomed any charge lower than the top
charge of murder in the second degree.
In deciding whether a charge is properly a lesser included charge, the trial court
must consider two factors. First, it must consider whether the offense is “of lesser grade or
degree and that in all circumstances, not only in those presented in the particular case, it is
impossible to commit the greater crime without concomitantly, by the same conduct, committing
the lesser offense.” People v. Glover, 57 N.Y.2d 61, 63 (1982). Second, there must be a
“reasonable view of the evidence in the particular case that would support a finding that [the
defendant] committed the lesser offense but not the greater.” Id. In light of the fact that there
11
was a reasonable view of the evidence – which included Jones’s own statements – that Jones
intended to do serious physical harm to Mr. Halsey, but not kill him, counsel was not ineffective
for failing to raise a specific objection to the charge of manslaughter in the first degree as a lesser
included charge.6 Therefore, the state court’s rejection of this claim was not an unreasonable
application of Strickland.
Turning to the alleged Brady violation, there is no violation where the
photographs in question documented an incident that Jones had knowledge of, specifically, his
own injuries. The Brady doctrine requires prosecutors to turn over material exculpatory to
defendants but does not require prosecutors to supply a defendant with evidence when the
defendant knew of, or should reasonably have known of, the evidence and its exculpatory nature.
People v. Doshi, 93 N.Y.2d 499, 506 (1999) (citing United States v. Leroy, 687 F.2d 610, 618
(2d Cir. 1982). Jones was in exactly such a position. Even if the photographs did exist, Jones
was well aware of the facts underlying his beating, and was likely aware that police had taken the
photographs at the time. Because the photographs in question do not constitute Brady material,
Jones cannot support a claim that he was denied effective assistance of counsel for counsel’s
failure to object to the alleged Brady violation.7
Moreover, in the circumstances of this case, I conclude the photographs were not
even exculpatory. Under Brady v. Maryland, 373 U.S. 83 (1963), the prosecution has an
obligation to disclose evidence in its possession that is favorable to the defendant and material.
See id. at 87. Evidence is material for Brady purposes “only if there is a reasonable probability
6
Manslaughter in the first degree requires “intent to cause serious physical injury to another
person.” N.Y. Penal Law § 125.20. Murder in the second degree, on the other hand, requires “intent to cause the
death of another person.” N.Y. Penal Law § 125.25.
7
Because the Court finds the claims of ineffective assistance of counsel for failure to object to the
lesser included charge and to the Brady violation without merit, it does not need to address the State’s alternative
argument that the claims were procedurally barred.
12
that, had the evidence been disclosed to the defense, the result of the proceeding would have
been different.” United States v. Persico, 645 F.3d 85, 111 (2d Cir.2011) (quoting Strickler v.
Greene, 527 U.S. 263, 280 (1999)) (internal quotation marks and citations omitted). For the
reasons discussed below with respect to Jones’s claim that he was denied his right to present a
defense, the photographs of his injuries would not have made a meaningful difference to the
defense at trial. At no time did defense assert that Jones’s injuries from being assaulted days
prior to the murder impair his physical ability to stab Halsey through the heart.
2.
The Prosecutor’s Impeachment of a Latrice Goodwine
Jones contends that he was deprived of his right to a fair trial when the prosecutor,
in an effort to refresh Latrice Goodwine’s recollection for impeachment purposes, disclosed the
contents of her prior written statement (and grand jury testimony) to the jury. Goodwine, a
state’s witness, testified at trial that she had not seen Jones with anything in his hand on the night
of the stabbing. The court allowed the prosecutor to impeach her by asking her if copies of her
written statement and grand jury testimony refreshed her recollection. The Second Department
held that the prosecutor’s conduct was improper because it revealed the contents of the
statements (specifically, that Goodwine stated that she had seen Jones with a knife) to the jury,
but the error was harmless because there was overwhelming evidence of Jones’s guilt and “no
significant probability that the error had contributed to his conviction.” Jones, 97 A.D. at 697.
This claim fails because it does not raise a federal issue on which habeas relief
may be granted. Jones contended in state court that the prosecutor’s conduct violated New York
Criminal Procedure Law § 60.35, which limits the circumstances in which a prosecutor may
properly impeach his or her own witness. I have reviewed the testimony at issue (see TT 61624), and in federal court the prosecutor would have been entitled to conduct a full cross-
13
examination based on Goodwine’s prior written statement and grand jury testimony without
raising either an evidentiary issue or a Confrontation Clause issue.
3.
The Right to Present a Defense
Jones contends that he was deprived of the right to present a defense when the
trial court (1) refused to sign a subpoena for police records and photographs that could allegedly
have helped to establish Jones’s physical inability to commit the crime and refused to authorize a
disbursement for a witness’s bus fare, and (2) precluded the defense from presenting evidence
that Halsey had a razor in his mouth during the autopsy. The Appellate Division rejected these
claims on the merits when Jones raised them on direct appeal.
I have reviewed the relevant portions of the trial transcript and they reveal no
error by the trial court. In his opening statement, defense counsel told the jury that the stabbing
of Halsey, which occurred after a lot of drinking, was an “unfortunate thing” that was “not an
intentional murder as the prosecutor wants you to believe.” TT 352. Though Jones’s fear of the
“Crips” who had assaulted him days earlier was mentioned by counsel (“he was worried about
the Crips coming back to get him”), there was no suggestion in the defense at trial that the
assault had disabled Jones in a manner that precluded him from stabbing Halsey. See id. at 35054.
At the end of that same day, the issue of bus fare for an out-of-state witness,
Shauntay Jones, arose.8 After defense counsel said the witness would testify about Jones’s
physical condition on the day before the stabbing (TT 393-95), the court asked, “Are you trying
to say he was physically incapable of doing anything?” Id. at 395. After conferring with Jones,
defense counsel reiterated that Jones was not denying that he had stabbed Halsey, but rather was
8
The colloquy described here occurred approximately 40 pages after defense counsel’s opening
statement.
14
claiming that he could not have “run” into the kitchen to get the knife. Id. at 395. The trial court
was unpersuaded that such a contention warranted the additional expense of bringing in the
witness – an assessment I agree with – and invited defense counsel to use the upcoming weekend
to fashion further arguments if he wished to. Id. at 396; see also id. at 736-37 (rejecting the same
request upon renewal on the ground that testimony about Jones’s physical condition in between
the assault of him and the stabbing of Halsey would be cumulative). I see no error, let alone
unreasonableness, in the state court’s resolution of this issue.
The prosecutor moved to preclude Jones from inquiring into the curious fact that a
razor blade was found in Halsey’s mouth during his autopsy. Defense counsel argued that the
razor blade could possibly explain to the jury why Halsey was moving toward Jones while he
was holding a knife. It appears from the record that because trial counsel neither mentioned nor
elicited any other evidence of self-defense, and was not seeking a self-defense charge, the trial
court precluded the questioning.
Erroneous evidentiary rulings by a state trial court generally do not rise to the
level of constitutional violations upon which a federal court may issue a writ of habeas corpus.
See Jenkins v. Bara, 663 F. Supp. 891, 899 (E.D.N.Y. 1987) (citing Lipinski v. New York, 557
F.2d 289, 292 (2d Cir. 1977)). Erroneously excluded evidence warrants habeas relief only if the
omission deprived the petitioner of a fundamentally fair trial. Estelle v. McGuire, 502 U.S. 62,
72 (1991); Taylor v. Curry, 708 F.2d. 886, 891 (2d Cir. 1983). The test for determining whether
erroneous evidentiary rulings denied the defendant a fair trial centers on whether the excluded
evidence would have created “a reasonable doubt that did not otherwise exist.” United States v.
Agurs, 427 U.S. 97, 112 (1976). Erroneously admitted evidence must be “crucial, critical, [and]
highly significant.” Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985). In this regard, petitioner
15
bears a “heavy burden.” Roberts v. Scully, 875 F. Supp. 182, 189 (S.D.N.Y. 1993), aff’d, 71
F.3d 406 (2d Cir. 1995) (unpublished table decision). However, the Due Process Clause of the
Fourteenth Amendment is violated where “the evidence in question ‘was sufficiently material to
provide the basis for conviction or to remove reasonable doubt that would have existed on the
record without it.’” Johnson v. Ross, 955 F.2d 178, 181 (2d Cir. 1992) (quoting Collins, 755
F.2d at 19); see also Wade v. Mantello, 333 F.3d 51 (2d Cir. 2003).
In light of the absence of any evidence or argument that Jones had acted in selfdefense, the odd fact that a razor blade was found in the victim’s mouth during the autopsy
would not have created a reasonable doubt. Accordingly, the state court’s rejection of this claim
was not an unreasonable application of federal law.
4.
The Claim of Judicial Bias
Jones contends that he was denied a fair trial when the trial court “prompted the
[P]eople to recall [a] witness solely for the purpose of having the petitioner[’s] written statement
read to the jury which strengthen[ed] the [P]eople’s case.” Pet. Br. 24-25. This claim is without
merit because the written statements had already been admitted into evidence. Even if the
prosecutor read it into the record at the judge’s prompting, there’s no impropriety in ensuring
that the jury knew precisely what statement were made. Because the claim is without merit, I
need not address respondent’s alternative argument that the claim is procedurally barred.
5.
The Sentencing
Jones argues that the sentencing court relied on improper facts when imposing his
sentence. The record does not support this claim. First, defense counsel took issue with several
statements contained in the presentence report. ST 2. In response, the court noted that it would
consider only “the facts and circumstances of this case.” Id. at 7. The prosecutor then cited to
16
Jones’s criminal history and history of violence, and stated that Jones had been “pimping” two of
the witnesses. Id. at 14. After defense counsel took issue with these statements, the court
indicated that it would consider only the facts of “this case” and Jones’s record. Id. at 28.
Because the court did not consider improper factors in sentencing Jones, his claim is without
merit.9
CONCLUSION
I have reviewed all of Jones’s claims and concluded that they have no merit. The
petition is denied. Because Jones has failed to make a substantial showing that he was denied a
constitutional right, no certificate of appealability shall issue.
So ordered.
John Gleeson, U.S. District Judge
Dated: Brooklyn, New York
October 8, 2015
9
Even if the court had considered the information Jones disputes, it is not clear to me that this is a
claim on which habeas relief can properly be granted. Under 18 U.S.C. § 3661, there is no limit on the information
a sentencing court may consider in imposing an appropriate sentence. Thus, there would be no federal defect in
considering the disputed information.
17
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