Fountain v. Racette

Filing 26

MEMORANDUM DECISION AND ORDER dated 8/6/21 that the motion for the appointment of counsel 23 is denied. The petition is also denied, and the case is dismissed. Because petitioner has failed to make a substantial showing of a denial of a constitut ional right, no certificate of appealability shall issue. See 28:2253(c)(2). The Court certifies pursuant to 28:1915(a)(3) that any appeal from this Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purposes of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). ( Ordered by Judge Brian M. Cogan on 8/6/2021 ) *forwarded for judgment/copy will be mailed w/jgm. (Guzzi, Roseann)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------- X
:
ALBERT FOUNTAIN,
:
: MEMORANDUM DECISION
Petitioner,
: AND ORDER
:
- against : 14-cv-4782 (BMC)
:
:
SUPERINTENDENT OF ATTICA
CORRECTIONAL FACILITY, *
:
:
Respondent.
:
:
---------------------------------------------------------- X

C/M

COGAN, District Judge.
Petitioner seeks habeas corpus relief under 28 U.S.C. § 2254 from his 2010 conviction
after a jury trial on four counts of predatory sexual assault, two counts of first-degree burglary,
two counts of first-degree robbery, and two counts of first-degree unlawful imprisonment, for
which he was sentenced in the aggregate to twenty years to life imprisonment. Additional facts
will be set forth below as necessary to address each of petitioner’s points of error, but to
summarize, petitioner and his accomplices entered the room of two victims in the house where
petitioner sometimes stayed and, at gun and knifepoint, forced one of the victims to engage in
repeated sexual acts with them. Petitioner filmed some of the acts and goaded on his
accomplices.
As amended, the petition raises four points of error reprised from petitioner’s state court
proceedings. 1 First, petitioner asserts that the trial court improperly permitted the prosecution to

*

The Clerk of Court is directed to change the caption on the docket sheet to reflect petitioner’s current custodian.

Judge Mauskopf, to whom this case was initially assigned, stated that if petitioner did not file an amended petition
before a certain deadline, she would rule on the original petition as modified by a letter seeking amendment. That
amendment added an ineffective assistance of appellate counsel claim that became exhausted during the pendency of
this case. After that, petitioner obtained repeated stays of this case for the purported purpose of exhausting

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impeach one of its own witnesses in violation of New York Criminal Procedure Law § 60.35.
Second, petitioner argues that his trial counsel was constitutionally ineffective. Third, petitioner
asserts that his sentence was excessive. Fourth, petitioner contends that his appellate counsel
was constitutionally ineffective for not challenging the trial court’s ruling rejecting his Batson
challenge.
Petitioner’s first and third points are not cognizable on federal habeas corpus review. His
second and fourth points do not meet the standard for relief under the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”). The petition is therefore denied.
I.

Violation of New York Criminal Procedure Law § 60.35
This New York statute specifies the circumstances and procedures pursuant to which a

party may impeach a witness that the party has called at trial. In the instant case, the prosecution
called one of petitioner’s accomplices, Sincere Chappelle, who had pled guilty pursuant to a
cooperation agreement and had received a promise of an eight-year sentence in exchange for
testifying against defendant. The witness, however, went south on the prosecutor, testifying that
petitioner was not at the crime scene. The prosecutor then impeached the witness with his guilty
plea allocution and written and videotaped confessions, all of which had identified petitioner as
one of the perpetrators. The trial court allowed the impeachment, and on appeal, petitioner
contended that the trial court had not complied with the procedures in Criminal Procedure Law
§ 60.35. The Appellate Division held that the argument was unpreserved and, in any event,
without merit. People v. Fountain, 102 A.D.3d 887, 887, 958 N.Y.S.2d 470, 471 (2d Dep’t),
leave to appeal denied, 21 N.Y.3d 942, 968 N.Y.S.2d 5 (2013).

additional claims before the state court. But he never filed an amended petition, and Judge Mauskopf ultimately
declined to further stay the proceeding.

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The Appellate Division’s decision cannot form the basis for federal habeas corpus relief
because petitioner’s argument in state court did not raise a federal constitutional issue. He
presented it merely as statutory non-compliance or abuse of discretion under the statute.
Because habeas corpus relief may only be predicated on federal constitutional violations, federal
courts have regularly declined to review state court applications of Criminal Procedure Law
§ 60.35. See King v. Capra, No. 15-cv-7403, 2019 WL 1900847, at *4 (E.D.N.Y. Apr. 29, 2019)
(“[C]laims for violations of state law are not cognizable on federal habeas review, which
concerns violations of ‘the Constitution or laws or treaties of the United States.’” (quoting 28
U.S.C. § 2254(a))); Pickens v. Sheahan, No. 12-cv-4308, 2019 WL 1643039, at *6 (E.D.N.Y.
Apr. 16, 2019) (“As petitioner’s claim [regarding § 60.35] primarily alleges an error in the
application of state law, federal habeas relief is not available.”); Harris v. Perez, No. 14-cv-7218,
2017 WL 5468782, at *5 (E.D.N.Y. Nov. 13, 2017) (“Since § 60.35’s provisions are not
mandated by federal law or the United States Constitution, a trial court’s error in applying th[is]
provision is solely an error of state law.”); Dunston v. Griffin, No. 16-cv-821, 2016 WL
1255727, at *4 (E.D.N.Y. March 29, 2016) (“The U.S. Constitution places no restrictions on a
prosecutor’s ability to impeach his own witness.”); Escobar v. Senkowski, No. 02-cv-8066, 2005
WL 1307939, at *12 (S.D.N.Y. May 26, 2005) (“Neither the Supreme Court nor the Second
Circuit has held that a prosecutor’s impeachment of her own witness may violate a criminal
defendant’s due process rights.”), report and recommendation adopted as modified, 2005 WL
2148712 (S.D.N.Y. Sept. 7, 2005); Arthur v. Beaver, No. 03-cv-4555, 2004 WL 2287773, at *4
(E.D.N.Y. Oct. 8, 2004) (“To the extent [petitioner] is seeking relief for an alleged violation of
[§ 60.35], no such relief is available here, because an application for a writ of habeas corpus will
be entertained only on the ground that there has been a violation of federal law.”).

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I therefore reject petitioner’s state law argument.
II.

Ineffective Assistance of Trial Counsel
On direct appeal, petitioner raised a laundry list of objections about the performance of

his trial counsel. The Appellate Division held:
[B]ecause the record also establishes that counsel’s representation did not fall
below an objective standard of reasonableness or that there is a reasonable
possibility that, but for counsel’s claimed unprofessional errors, the result of the
proceeding would have been different, the defendant was not deprived of the
effective assistance of counsel under the United States Constitution.
Fountain, 102 A.D.3d at 887-88, 958 N.Y.S.2d at 471 (cleaned up).
Because the Appellate Division rejected petitioner’s claim on the merits, his ineffective
assistance claim must be viewed through the prism of AEDPA’s narrow review standard.
AEDPA permits habeas relief only if a state court’s legal conclusion is “contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined by the Supreme
Court of the United States.” 28 U.S.C. § 2254(d)(1). The decision of a state court is “contrary”
to clearly established federal law within the meaning of § 2254(d)(1) if it is “diametrically
different” from, “opposite in character or nature” to, or “mutually opposed” to the relevant
Supreme Court precedent. Williams v. Taylor, 529 U.S. 362, 405 (2000) (quoting another
source). A state court decision involves “an unreasonable application” of clearly established
federal law if the state court applies federal law to the facts of the case “in an objectively
unreasonable manner.” Brown v. Payton, 544 U.S. 133, 141 (2005).
The Supreme Court has made clear that the AEDPA standard of review is extremely
narrow and is intended only as “a guard against extreme malfunctions in the state criminal justice
systems, not a substitute for ordinary error correction through appeal.” Ryan v. Gonzales, 568
U.S. 57, 75 (2013) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011)). “A state court’s
determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded
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jurists could disagree’ on the correctness of the state court’s decision.” Harrington, 562 U.S. at
101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has
repeatedly admonished circuit courts for not affording sufficient deference to state court
determinations of constitutional issues. See, e.g., White v. Wheeler, 577 U.S. 73, 76-77 (2015)
(per curiam) (“This Court, time and again, has instructed that AEDPA, by setting forth necessary
predicates before state-court judgments may be set aside, ‘erects a formidable barrier to federal
habeas relief for prisoners whose claims have been adjudicated in state court.’” (quoting Burt v.
Titlow, 571 U.S. 12, 19 (2013))).
As with many issues on federal habeas corpus review, petitioner faces a double burden.
He must meet not only the narrow standard of review under AEDPA but also the two-prong test
of Strickland v. Washington, 466 U.S. 668 (1984). He must first show that counsel’s
performance fell below “an objective standard of reasonableness” under “prevailing professional
norms.” Id. at 688. The Court must apply a “strong presumption of competence” and
“affirmatively entertain the range of possible reasons [petitioner’s] counsel may have had for
proceeding as they did.” Cullen v. Pinholster, 563 U.S. 170, 196 (2011) (quoting another
source). Second, under the “prejudice” prong, petitioner must demonstrate that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694. “The likelihood of a different result
must be substantial, not just conceivable.” Harrington, 562 U.S. at 112. Moreover, as the
Second Circuit has noted, “[t]he prejudice inquiry is . . . ineluctably tied to the strength of the
prosecution’s evidence.” Garner v. Lee, 908 F.3d 845, 862 (2d Cir. 2018).
In terms of objective reasonableness, the Appellate Division could reasonably conclude
that every claimed inadequacy that petitioner raised was, at best, the second-guessing of strategic

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decisions or the assertion of an objection that, in all likelihood, would have failed. Those claims
are resolved as follows:
ALLEGED ERROR

BASIS FOR FINDING OBJECTIVE
REASONABLENESS

Failure to pursue the Batson objection after
the trial court determined that there was no
prima facie showing.

Counsel made the Batson objection. After it
was denied, a reasonable attorney would have
no reason to think the trial court would
change its mind with further argument.

Failure to cross-examine the two victims
about their prior convictions.

The male victim had already testified on
direct that he had five felony convictions for
burglary, robbery, and drug-related offenses.
The female victim testified that she had
several prior misdemeanor convictions. Yet
the victims’ direct testimony showed that they
had substantially rehabilitated themselves
since the commission of their crimes by,
among other things, overcoming their drug
addictions. Trial counsel could reasonably
conclude that emphasizing the victims’
historical convictions after what petitioner
and his accomplices had done to them would
make them more sympathetic, not less so.
Notwithstanding that, trial counsel carefully
elicited some details that might have caused
the jury to question the veracity of the
victims’ testimony.

Failure to adequately review the police
paperwork before cross-examining the
victims. When cross-examining the female
victim, trial counsel asked if she had informed
the police that the perpetrators stole a camera
from her room, as she testified on direct. She
could not remember, but her recollection was
refreshed with the police report on redirect,
showing that she had reported the stolen
camera.

Trial counsel could reasonably conclude that
the failure of recollection itself might be one
factor that could affect the jury in determining
her credibility.

Failure to object to a detective’s testimony
that Chappelle had expressed fear of
retribution if he testified against petitioner
and so was going to recant his statements.

Trial counsel, in fact, objected.

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Failure to object to a detective’s testimony
that he had shown a series of photographs to
the victims.

There was no basis for an objection.
Although the detective testified that the
victims were shown a series of photographs,
there was no testimony that the victims had
identified petitioner from the photographs.

Failure to object when the prosecutor asked
Chappelle on direct examination whether he
was a gang member.

Shortly after this questioning, trial counsel
made a motion for a mistrial, citing “the fact
that [the prosecutor was] busy fighting with
his own witness, and [he was] using it to
backhand it and blame everything on
[petitioner].”

Failure to object to the prosecutor’s
impeachment of Chappelle with his prior
statements.

The witness was plainly hostile and
impeachable by his own statements.

In terms of prejudice, petitioner has not pointed to any. As noted above, most of his
arguments presume that an objection would have been sustained if made, but in fact, such
objections were without a legal basis. Applying Supreme Court authority through the narrowing
prism of AEDPA, I conclude that the Appellate Division’s rejection of petitioner’s ineffective
assistance claim was neither contrary to nor an unreasonable application of Strickland and its
progeny.
III.

Excessive Sentence
Petitioner’s sentence was within the parameters of New York law. This removes it from

the purview of federal habeas corpus relief. “[I]t is well settled that an excessive sentence claim,
such as [p]etitioner’s, does not present a required federal constitutional issue when the received
sentence ‘is within the range prescribed by state law.’” Ramos v. Lee, No. 19-cv-1125, 2021
WL 3269237, at *15 (E.D.N.Y. July 30, 2021) (quoting White v. Keane, 969 F.2d 1381, 1383
(2d Cir. 1992)). There is nothing approaching cruel and unusual punishment in petitioner’s 20years-to-life sentence considering the depraved nature of his criminal conduct.

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IV.

Ineffective Assistance of Appellate Counsel
In his coram nobis motion, petitioner argued that his appellate counsel was ineffective for

failing to raise a claim under Batson v. Kentucky, 476 U.S. 79 (1986). The trial record reflects
that trial counsel objected on Batson grounds to the prosecution’s use of four peremptory
challenges of black jurors. The trial court noted, however, that when the prosecutor exercised
those peremptory challenges, the prosecutor had already passed, and the trial court had already
seated, four jurors – three of whom were black. Because the prosecutor had not exercised
peremptory challenges as to those three black jurors, the trial court ruled that petitioner’s counsel
had failed to make a prima facie case of racially based use of peremptory challenges.
Defense counsel then asserted another Batson ground in the immediately following
colloquy:
MR. KASS [defense counsel]: I have another. I have another ground on that
challenge beyond that, that these were four black males.
THE COURT [to the prosecutor]: You wish to be heard?
MR. DEGAETANO [the prosecutor]: Your Honor, I do not wish to be heard only
at this moment because the Court, in the first instance, has to make a
determination that a prima facie –
THE COURT: I can ask you if you wish to be heard. If you don’t wish to be
heard, you want my ruling, first?
MR. DEGAETANO: Your Honor, I don’t believe that defense counsel’s
characterization –
THE COURT: I’m not satisfied that a prima facie case has been made either.
Move on. You have an exception.

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Based on this excerpt, petitioner argued in his coram nobis motion that appellate counsel in his
direct appeal had foregone a “viable” Batson claim in favor of claims that were “unpreserved or
meritless.” 2
The Appellate Division summarily rejected petitioner’s argument on the merits. People
v. Fountain, 127 A.D.3d 784, 785, 4 N.Y.S.3d 542, 542 (2d Dep’t 2015), leave to appeal denied,
27 N.Y.3d 964, 36 N.Y.S.3d 625 (2016). Because the Appellate Division rejected the argument
on the merits, I must apply the narrow standard of review under AEDPA as described above.
See Chrysler v. Guiney, 806 F.3d 104, 117 (2d Cir. 2015) (“[S]ummary dispositions rank as
adjudications ‘on the merits’ for AEDPA purposes unless the petitioner provides ‘reason to think
some other explanation for the state court’s decision is more likely.’” (quoting Harrington, 562
U.S. at 99-100)).
The standard for ineffective assistance of trial counsel under Strickland is also
applicable to ineffective assistance of appellate counsel claims. Smith v. Robbins, 528 U.S. 259,
285 (2000). To state a claim for ineffective assistance of appellate counsel, a petitioner must
show (1) “that his counsel was objectively unreasonable in failing to find arguable issues to
appeal” and (2) “a reasonable probability that, but for his counsel’s unreasonable failure” to raise
an issue on appeal, “he would have prevailed on his appeal.” Id. (citation omitted). “To
establish prejudice in the appellate context, a petitioner must demonstrate that there was a
reasonable probability that his claim would have been successful before the state’s highest
court.” Mayo v. Henderson, 13 F.3d 528, 534 (2d Cir. 1994) (cleaned up). “The benchmark for
judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the

As a preliminary point, petitioner argued that the trial court had erred in denying his Batson challenge. That is not
a stand-alone claim that can be raised in a coram nobis motion under New York practice, although the Appellate
Division could consider it to the extent that it informed the claim for ineffective assistance of appellate counsel.
2

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proper functioning of the adversarial process that the trial cannot be relied on as having produced
a just result.” Strickland, 466 U.S. at 686.
Moreover, it is well settled that “[a]ppellate counsel has wide latitude to select which
arguments to raise on appeal, and her failure to raise a claim will amount to ineffective assistance
only when it is ‘outside the wide range of professionally competent assistance.’” Silva v. United
States, No. 01-cr-1110, 2009 WL 10713720, at *1 (S.D.N.Y. Sept. 14, 2009) (Lynch, J.) (citation
omitted) (quoting Claudio v. Scully, 982 F.2d 798, 805 (2d Cir. 1992)). For that reason, “[a]n
ineffective assistance of appellate counsel claim cannot be based on a counsel’s decision not to
pursue an issue which his client considers important.” Best v. Kelly, No. 91-cv-2638, 1991 WL
341736, at *3 (E.D.N.Y. Nov. 21, 1991) (citing Jones v. Barnes, 463 U.S. 745, 754 (1983)). As
one court recently noted:
The Strickland standard is difficult to meet in any procedural context, and perhaps
especially so when the claim is that a lawyer failed to make an argument on direct
appeal. An appellate lawyer “need not raise every plausible claim and has a wide
degree of professional discretion to choose which issues to raise.” Lynch v.
Dolce, 789 F.3d 303, 319 (2d Cir. 2015) (citing Jones v. Barnes, 463 U.S. 745,
754 (1983)). In order to show deficient performance by his appellate counsel –
Strickland’s first prong – “petitioner must show that ‘counsel omitted significant
and obvious issues while pursuing issues that were clearly and significantly
weaker.’” Santana v. Capra, 284 F. Supp. 3d 525, 544 (S.D.N.Y. 2018) (quoting
Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994)). Under Strickland’s second
prong, petitioner must show a reasonable probability that, but for counsel’s errors,
the outcome of the proceeding would have been different. Id.
Carrasco v. Miller, No. 17-cv-7434, 2020 WL 9256469, at *19 (S.D.N.Y. Nov. 13, 2020), report
and recommendation adopted, 2021 WL 1040473 (S.D.N.Y. March 18, 2021).
Petitioner’s claim of ineffective assistance of appellate counsel does not meet this
standard. The problem with petitioner’s alleged Batson claim is that the record would not have
told the Appellate Division very much about what happened during jury selection. All that
appellate counsel could have pointed out was that the prosecutor sat three black jurors, then the

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prosecutor made peremptory challenges to the four black jurors, and then, after trial counsel’s
Batson objection, the trial court determined that there was no prima facie case. But trial counsel
did not state any reasons for the Batson objection, other than generally referencing the race and
gender of the excused jurors. Nothing else in the record might have shown prosecutorial bias
(like, for example, striking a black store clerk but not a white store clerk), and that left little to
talk about on appeal. See Flowers v. Mississippi, 139 S. Ct. 2228, 2243 (2019) (listing ways to
establish Batson violations, such as “evidence of a prosecutor’s disparate questioning and
investigation of black and white prospective jurors in the case” and “side-by-side comparisons of
black prospective jurors who were struck and white prospective jurors who were not struck”).
On this record, I cannot find that, but for appellate counsel’s failure to raise the Batson claim on
appeal, the outcome of the proceeding would have been different.
The main thrust of petitioner’s argument is that the claims chosen to be advanced by
appellate counsel were so weak that to forego the Batson claim in their favor was objectively
unreasonable. (Ironically, he asserts that the other claims brought by his appellate counsel were
“unpreserved and meritless,” but that has not stopped him from pursuing those same claims
before me.) I do not see the potential Batson claim as any stronger, and it is probably weaker
than the other claims. “Sometimes there are trials that adequately protect the rights of defendants
and present no substantial issues for appeal.” Washington v. Noeth, No. 17-cv-0004, 2021 WL
3173273, at *3 (E.D.N.Y. July 27, 2021). This was one of them.
V.

The Motion for the Appointment of Counsel
While his petition was pending, petitioner moved for the appointment of counsel. “There

is no constitutional right to representation by counsel in habeas corpus proceedings, and 18
U.S.C. § 3006A(a)(2) requires appointment of counsel only for a financially eligible person if
‘the interests of justice so require.’” Quail v. Farrell, 550 F. Supp. 2d 470, 480 (S.D.N.Y. 2008)
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(quoting 18 U.S.C. § 3006A(a)(2)). “The threshold consideration in ruling on such an
application is the showing of some merit.” Id.; see also Reynolds v. Greene, No. 9:05-cv-01539,
2010 WL 604179, at *2 (N.D.N.Y. Feb. 16, 2010) (listing factors to consider). As set forth
above, petitioner has not made this threshold showing.
CONCLUSION
The motion for the appointment of counsel [23] is denied. The petition is also denied,
and the case is dismissed. Because petitioner has failed to make a substantial showing of a
denial of a constitutional right, no certificate of appealability shall issue. See 28 U.S.C.
§ 2253(c)(2). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this
Order would not be taken in good faith, and therefore in forma pauperis status is denied for the
purposes of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.

Digitally signed by Brian
M. Cogan
______________________________________
U.S.D.J.

Dated: Brooklyn, New York
August 6, 2021

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