Desjardins v. Racette

Filing 23

MEMORANDUM AND ORDER: The application of petitioner Jocelyn Desjardins for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied in its entirety. Because petitioner has not "made a substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), a certificate of appealability will not issue. SO Ordered by Judge Raymond J. Dearie on 8/17/2021. (Tavarez, Jennifer)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------------------------x
JOCELYN DESJARDINS,
Petitioner,
MEMORANDUM & ORDER
-against15 CV 526 (RJD)
STEVEN RECETTE,
Respondent.
-----------------------------------------------------x
DEARIE, District Judge.
Before the Court is the application of petitioner Jocelyn Desjardins for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted in 2009, after trial in Supreme
Court, Kings County, of five counts of robbery in the first degree (N.Y. P.L. § 160.15[4]), five
counts of robbery in the second degree (N.Y. P.L. §160.10[1]), and one count of criminal
possession of stolen property in the third degree (N.Y. P.L. §165.50). He was adjudicated a nonviolent second felony offender and sentenced to concurrent terms of incarceration of twentythree years plus five years’ post-release supervision on the first-degree robbery counts, fifteen
years plus five years’ post-release supervision on the second-degree robbery counts, and three
and one-half to seven years on the stolen-property count.1
The charges arose out of petitioner’s participation in five similarly executed robberies of
Brooklyn electronics stores. In each, three or four African-American men entered a store, spoke

Petitioner’s co-defendant Sam Arthur pled guilty to four counts of second-degree robbery and
co-defendant Kenneth Jones pled guilty to five counts of second-degree robbery. Each was
sentenced to concurrent prison terms of 7 years plus 5 years’ post-release supervision. ECF No.
6-1 at 6.
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to its manager, by word and gesture conveyed the impression they were armed,2 and unloaded
merchandise from the store in large black garbage bags. The crimes occurred on December 6,
2006 (the “first robbery”), January 4, 2007 (the “second robbery”), February 18, 2007 (the “third
robbery”), March 9, 2007 (the “fourth robbery”), and March 16, 2007 (the “fifth robbery”). No
weapon was recovered.
Petitioner was apprehended after a high-speed chase following the fifth robbery. Police
recovered stolen property from the wrecked getaway vehicle and witnessed petitioner discarding
stolen cameras during his flight and as he was captured. For four of the five robberies (the first,
second, third and fifth), store-employee witnesses identified petitioner, both during a line-up and
at trial, as one of the robbers. Witnesses to the fourth robbery could not make a trial
identification due to the passage of time and there was no evidence that they viewed a lineup.3
On direct appeal, petitioner argued that the evidence was insufficient to prove his identity as a
participant in that fourth robbery, and the Appellate Division agreed, vacating the convictions
relating to that incident. People v. Desjardins, 113 A.D.3d 787 (2d Dep’t 2014). As will be
discussed, the Appellate Division rejected petitioner’s other claims, some of which he raises
again here, and affirmed his conviction and sentence as modified. Id. The New York Court of
Appeals denied leave to appeal. People v. Desjardins, 23 N.Y.3d 1035 (July 15, 2014).

2

Representative is the account of Jeffrey Mark, an employee at the Radio Shack where the last
robbery occurred. Mark testified in pertinent part that, “[t]he gentleman in the brown jacket
came up and he put his hand in his jacket and he said you know that this is,” and that he (Mark)
“believed” that the robber “had something in his jacket” that was “[p]robably a gun.” ECF No.
6-3 at 133-34, 393 (Trial Transcript [“TT”] at 39-40, 300).
3

As discussed infra at pp. 4-7, surveillance videos of the second, third and fourth robberies were
also admitted into evidence.
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Petitioner advances three claims in the numbered “grounds” section of the petition as
bases for habeas relief: (1) that he was denied his due process right to a fair trial when the court
refused to charge robbery in the third degree as a lesser-included offense (ECF No. 1 at 5); (2)
that the trial court “deprived [him] of his right to an effective summation when it repeatedly
sustained the prosecution’s objections to legitimate summation arguments by defense counsel”
(id. at 6); and (3) that his prison sentence of twenty-three years is excessive. Id. at 8. These
claims are exhausted.
Liberally construed, the pro se petition advances a fourth claim. Petitioner left the first
lines of the “Ground Four” section of the form blank but responded “No” to the question asking
whether that ground had been exhausted, id. at 11, and identified that unexhausted ground as
“Prosecutorial misconduct [ ] based on how the destroyed evidence was not part of petitioner[’s]
evidence to a fair trial.” Id. The related allegation in the petition is that, “[t]he evidence
presented at the hearings and trial clearly did not show that petitioner committed any robbery [ ]
because the video/tapes were destroyed which [ ] deprived petitioner of a fair trial and violates
his rights beyond a miscarriage of justice.” Id. at 6.
As will be discussed, none of these claims is a basis for habeas relief. The application is
therefore denied and the petition dismissed.

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DISCUSSION4
“Mixed” Petitions and the Unexhausted Claim

I.

The threshold matter requiring attention is the presence of both exhausted and
unexhausted claims in the petition. Petitioner concedes that the destroyed-evidence claim is
unexhausted, respondent agrees, and the Court’s review of the record confirms that there was no
discussion of prosecutorial misconduct or destroyed videotapes in petitioner’s or respondent’s
appellate brief.
Unexhausted claims cannot be the basis of habeas relief. 28 U.S.C. § 2254(b) (“An
application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment
of a State court shall not be granted unless it appears that the applicant has exhausted the
remedies available in the courts of the State…”). See generally Daye v. Attorney Gen. of State
of N.Y., 696 F.2d 186, 191 (2d Cir. 1982) (en banc). Further, an unexhausted claim “shall not be
deemed …exhausted” as long as the petitioner “has the right under the law of the State to raise,
by any available procedure, the question presented.” 28 U.S.C. § 2254(c). Here, as respondent
agrees, petitioner still has available to him the procedure of a motion for post-conviction relief
under §440.10(1), which may be made “[a]t any time after the entry of a judgment.” Id.
The question of whether to open the door to this option through a stay (presumably nunc
pro tunc) pursuant to Rhines v. Weber, 544 U.S. 269 (2005), turns on, inter alia, the Court’s
capacity at this stage to assess the likely merits of the claim. See id. at 277-78 (stay available

4

Additional facts are discussed below in the context of the legal claim to which they relate.

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only in limited circumstances and upon petitioner’s showing “1) that he had good cause for his
failure to exhaust his claims first in state court; 2) that his claims are not plainly meritless; and 3)
that he has not engaged in intentionally dilatory litigation tactics”) (internal quotations omitted).
Alternatively, the Court has the statutory authority to deny a mixed petition on the merits—but
again, only if it can assess the merits of the claim at this stage and conclude that they fail. See 28
U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits,
notwithstanding the failure of the applicant to exhaust the remedies in the courts of the State.”).
Here, petitioner has named his unexhausted claim, but has done nothing else, offering no
explanation or factual particulars and, as noted, the unexhausted nature of the claim means there
is nothing in the state appellate briefs to guide the Court toward relevant features of the record.5
The trial record before the Court shows that regularly maintained electronics-store surveillance
videos were introduced for the second, third and fourth robberies. ECF No 6-4 at 21-24, 106,
264-65 (Trial Transcript (“TT) at 441-444, 526, 684-85), and that no such videos were
introduced for the first or fifth robberies. The testimony concerning these videos explored the
store-employee witnesses’ degree of certainty about whether petitioner was one of the
individuals captured in the videos, and during the defense summation, counsel referenced the
three videos, arguing that “when you view those videotapes … it’s not enough to say somebody
looks like him [or that] it’s probably him, but they must prove…his identity beyond a reasonable

5

The failure of the appellate briefs to address the alleged destruction of videotapes is not
dispositive: the Court’s research shows that subsequent to the filing of his petition here,
petitioner also sought in state court a writ of error coram nobis—the vehicle through which a
defendant asserts a claim that appellate counsel was ineffective. The Court has available to it the
decision summarily denying that claim, People v. Desjardins, 186 A.D.3d 1241 (2d Dep’t Sep 2,
2020), but not the briefs, so it cannot speculate on the nature of the grounds advanced.
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doubt.” ECF No. 6-4 at 388, TT at 588. The most the Court can locate arguably relating to a
possible “destruction of evidence” claim is the testimony of a police officer that, with respect to
the first robbery, he received a surveillance video from the electronics store that “malfunctioned”
when played and that when he went back to the store, he was told by an employee that the
original had been destroyed and no copies existed. ECF No. 6-3 at 479-81 (TT at 386-88).
To be clear: if this is all that petitioner has then his claim fails on the merits. Allegations
of prosecutorial destruction of evidence are treated as distinct from claims under Brady v.
Maryland, 373 U.S. 83 (1963), because they involve evidence that can no longer be produced,
United States v. Tyree, 279 Fed. App’x 31 33 (2d Cir.), cert. denied, 555 U.S. 963 (2008), and
“only rise[ ] to a constitutional violation when three requirements are met: (1) the government
must have acted in bad faith in destroying the evidence; (2) the ‘evidence must . . . possess an
exculpatory value that was apparent before [it] was destroyed’; and (3) the defendant must be
‘unable to obtain comparable evidence by other reasonably available means.” Dark v. Crowley,
2020 WL 6291420, at*6 (W.D.N.Y Oct. 27, 2020) (quoting Tyree, 279 Fed. Appx. at 33).
Based on the materials now before the Court, petitioner plainly fails to meet this standard,
as the only trial testimony the Court has located referring to a destroyed video tape does not
attribute that destruction to the police. Therefore the Court exercises its authority to deny the
merits of this unexhausted claim. Even while affording latitude to petitioner as a pro se litigant,
it remains his burden to prove his claim. See, e.g., Pikney v. Keane, 920 F.2d 1090, 1094 (1990)
(“Habeas corpus is not a neutral proceeding in which the petitioner and the State stand on an
equal footing. Rather…[the] prisoner seeks to overturn a presumptively valid judgment of
conviction [and] [b]ecause of this, the petitioner generally bears the burden of proof throughout
the habeas proceeding.”).
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The absence of a basis for attributing the alleged destruction of evidence to law
enforcement also renders the claim “plainly meritless” for purpose of a possible Rhines stay.
Even if the claim had arguable merit, a Rhines stay would be appropriate only if petitioner also
showed “good cause” for his failure to exhaust and that he has not engaged in intentionally
dilatory tactics. Id. at 277-78. In his petition he pleads that he “is a layman to the land of the
laws and for this reason he did not present said issue,” and that he “does not have the knowledge
defense counsel has to understand what needs to be preserved to raise such issue.” ECF No. 1 at
11. Without reaching the question of whether petitioner has shown “good cause,” see generally
Hunter v. Annucci, 19 CV 1321 (MKB), 2020 WL 9816004, at *5 (E.D.N.Y. Dec. 18, 2020)
(reviewing the “disagreement among courts as to what constitutes ‘good cause’ under Rhines”),
in the six years since petitioner acknowledged the unexhausted nature of his destroyed-evidence
claim, he does not appear to have elected to pursue that claim through the long-available means
of a CPL §440.10 motion. The Court’s electronic search of the dockets in Kings County
Supreme Court, where petitioner would have had to file that motion, shows no matters in which
petitioner is a party during the relevant time. There seems little point in further delaying
adjudication of his petition now in order to invite him to do so.
Finally, apart from these procedural considerations, in light of the record as a whole, the
Court is confident that the unexhausted claim would not provide a basis for habeas relief. On the
question of petitioner’s identity, store-employee eyewitnesses to each of the four robberies
identified petitioner at trial and in a lineup as a participant in the crime. The surveillance videos,
while part of the state’s case, were hardly the heart of it. Further, with respect to the three
surveillance videos that were admitted, their arguable shortcomings were fully explored on
cross-examination and in the defense summation. The notion underlying petitioner’s
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unexhausted claim—that exculpatory surveillance video once existed and was destroyed by law
enforcement—is simply too speculative to warrant further attention.

II. Petitioner’s Three Exhausted Claims
A.

General Habeas Standards
Habeas relief is authorized “only on the ground that [an individual] is in custody in

violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).
Where, as here, purportedly federal claims advanced as grounds for habeas relief were already
decided by a state court, the habeas court’s review of those decisions is highly deferential. As
the habeas statute provides:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim . . . resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.
28 U.S.C. § 2254(d)(1), as amended by the Antiterrorism and Death Penalty Act of 1996
(“AEDPA”). As the Supreme Court has made emphatically clear: “The federal habeas statute ...
imposes important limitations on the power of federal courts to overturn the judgments of state
courts in criminal cases. The statute respects the authority and ability of state courts and their
dedication to the protection of constitutional rights.” Shoop v. Hill, 139 S. Ct. 504, 506-07
(2019) (internal quotations and citations omitted). See also Burt v. Titlow, 571 U.S. 12, 16
(2013) (federal habeas courts “will not lightly conclude that a State’s criminal justice system has
experienced the extreme malfunction for which federal habeas relief is the remedy”) (internal
quotations, citations and alterations omitted); Renico v. Lett, 559 U.S. 766, 773 (2010)
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(“AEDPA [ ] imposes a highly deferential standard for evaluating state-court rulings” and
“demands that state-court decisions be given the benefit of the doubt”) (internal quotations
omitted). But see Brumfield v. Cain, 576 U.S. 305, 314 (2015) (“As we have also observed,
however, even in the context of federal habeas, deference does not imply abandonment or
abdication of judicial review, and does not by definition preclude relief.”) (internal quotation
marks, citation and alterations omitted).
Each component of the standard set forth in the habeas standard has been construed to
advance these principles of federalism. First, as the Supreme Court has explained, “[a] legal
principle is ‘clearly established within the meaning of this provision only when it is embodied in
a holding of this Court,” Thayler v. Haynes, 559 U.S. 43, 47 (2010), “as opposed to the dicta,”
Williams v. Taylor, 529 U.S. 362, 412 (2000), or the holdings of federal appellate courts. Carey
v. Musladin, 549 U.S. 70, 74 (2006).
As the Supreme Court has further instructed, a state court decision is “contrary to”
established federal law “if the state court arrives at a conclusion opposite to that reached by this
Court on a question of law or if the state court decided a case differently than this Court has on a
set of materially indistinguishable facts.” Williams v. Taylor, 529U.S. 362, 313 (2000). The
state court decision is an “unreasonable application of” that federal law “if the state court
identifies the correct governing legal principle from [the Supreme] Court’s decision but
unreasonably applies that principle to the facts of the prisoner’s case.” Id. Unreasonableness for
section 2254(d)(1) purposes, however, is a “bar [that] is not reached where fairminded jurists
could disagree on the correctness of the state court’s decision.” Orlando v. Nassau Cty. Dist.
Attorney’s Office, 915 F.3d 113, 121 (2d Cir. 2019) (internal quotation and citation omitted).
Rather, to be “an unreasonable application” of federal law, a state court decision “must be so
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lacking in justification that there was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” Shoop, 139 S. Ct. at 507. See also
Virginia v. Le Blanc, 137 S. Ct. 1726, 1728 (2017) (“In order for a state court’s decision to be an
unreasonable application of this Court’s case law, the ruling must be objectively unreasonable,
not merely wrong; even clear error will not suffice”) (internal quotation marks and citations
omitted).
Additionally, under the less frequently invoked second branch of § 2254(d), a petitioner
may seek habeas relief by challenging the factual basis of the adverse state court ruling. See 28
U.S.C. § 2254(d)(2) (habeas court may overturn the state court’s decision only if it was “based
on an unreasonable determination of the facts in light of the evidence presented in the State
Court proceedings.”) For purposes of Section 2254(d)(2), a “state-court factual determination is
not unreasonable merely because the federal habeas court would have reached a different
conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). Habeas challenges
to a state court’s factual findings are also subject to 28 U.S.C. § 2254(e)(1), which provides that
“a determination of a factual issue made by a State court shall be presumed to be correct,” and
that the petitioner “shall have the burden of rebutting the presumption of correctness by clear and
convincing evidence.”6

The Supreme Court “has not yet defined the precise relationship between §2254(d)(2) and
§2254(e)(1).” Brumfield, 576 U.S. at 322 (internal quotation and citation omitted). The Second
Circuit, to date, “proceed[s] under the assumption that ‘satisfaction of either inquiry is
sufficient.’” Fernandez v. Capra, 916 F.3d 215, 221 n.1 (2d Cir. 2019) (quoting Channer v.
Brooks, 320 F.3d 188, 194 (2d Cir. 2003)).
6

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B.

Analysis of Petitioner’s Claims
1.

The Lesser-Included-Offense Claim

For each of the robberies, the trial court submitted to the jury one count of robbery in the
first degree under subdivision four of Penal Law § 160.15, which defines the crime as the
forcible stealing of property in which a participant “[d]isplays what appears to be a pistol,
revolver…or other firearm,” and robbery in the second degree under subdivision one of Penal
Law §160.10, which defines the crime as the forcible stealing of property during which the
defendant “is aided by another person actually present.” Because no weapon was recovered,
petitioner requested that the court also submit, as a lesser-included offense of first-degree
robbery, the crime of robbery in the third-degree, which is defined simply as “forcibly steal[ing]
property.” N.Y. Penal Law § 160.05.
The trial court rejected the request because of the non-negotiability of the second-degree
charge. The court reasoned that there was such “clear and integrated” evidence that petitioner
“was acting in concert with at least another person” that it would be “sheer speculation” to
suggest otherwise. ECF No. 6-4 at 376 (TT at 846). That count, the court further reasoned,
“covers the situation where the jury … might come to the conclusion that … display[ ] [of] what
appears to be [a firearm] is not made out.” Id. at 377 (TT at 847). In short, the trial court agreed
with the prosecution’s position that “[t]here is no reasonable view of the evidence presented . . .
that would support a guilty verdict of [r]obbery in the [t]hird [d]egree but not [r]obbery in the
second [d]egree.” ECF No. 6-4 at 371 (TT at 842).
The Appellate Division, affirming the conviction, likewise concluded that, “contrary to
[petitioner’s] contention, the trial court properly denied his request to have robbery in the third
degree . . . charged as a lesser-included offense of robbery in the first degree, pertaining to the
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[first, second, third, and fifth] robberies.” Desjardins, 113 A.D.3d at 787.
Because this is not a capital case, petitioner’s claim does not present an issue for federal
habeas review. In Beck v. Alabama, 447 U.S. 625, 637-38 (1980), the Supreme Court held that
due process requires the submission of jury instructions on lesser-included offenses in capital
cases. Sixteen years later, in Jones v. Hoffman, 86 F.3d 46 (2d Cir. 1996), the Circuit collected
its caselaw recognizing that “[n]either the Supreme Court nor [the Second] Circuit ha[d] decided
whether the failure to instruct a jury on lesser included offenses in noncapital cases is a
constitutional issue that may be considered on a habeas petition.” Id. at 48 (internal citation and
quotation omitted). The Circuit then concluded as follows: “Since a decision interpreting the
Constitution to require the submission of instructions on lesser-included offense in non-capital
cases would involve the announcement of a new rule, we hold that Teague precludes our review
of the issue.” Id.7
Accordingly, district courts in the Second Circuit regularly hold that habeas review of a
state trial court’s failure to charge the jury on lesser-included offenses in noncapital cases is
precluded. See, e.g., See generally Taylor v. Connelly, 18 F. Supp.3d 242 (E.D.N.Y. 2014)
(Spatt, J.), app. dismissed, No. 14-1987 (2d Cir. May 22, 2015) (collecting cases); Johnson v.
Colvin, 15-CV-5466 (PKC), 2018 WL 6250510, at * 8 (E.D.N.Y. Nov. 29, 2018) (petitioner’s

In Teague v Lane, 489 U.S. 288 (1989), the Supreme Court held that “habeas corpus cannot be
used as a vehicle to create new constitutional rules of criminal procedure unless those rules
would be applied retroactively … through one of the two exceptions we have articulated.” Id. at
316. The Circuit in Jones concluded “neither of the two narrowly drawn” Teague exceptions
applied to the “lesser-included offense rule” because that rule “does not decriminalize a
particular class of conduct, nor does it fall within the small core of ‘watershed’ rules requiring
the observance of certain procedures that are implicit in the concept of ordered liberty.” 86 F.3d
at 48.
7

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claim that counsel was ineffective for failing to request charge on second-degree robbery as a
lesser-included offense “is not cognizable on federal habeas review,” citing, inter alia, Jones v.
Hoffman and Taylor v. Connelly)
In any event, as the Appellate Division correctly determined, the claim is meritless under
state law. As reflected in the parties’ state appellate briefs, see ECF No. 6-1 at 30, 71, there is no
dispute concerning that law. New York CPL § 300.50 provides, in subdivision (1), that when
instructing the jury, the court “in its discretion may, in addition to submitting the greatest offense
which it is required to submit, submit in the alternative any lesser included offense if there is a
reasonable view of the evidence which would support a finding that the defendant committed
such lesser offense but did not commit the greater,” and in subsection (2) that, “[i]f the court is
authorized by subdivision one to submit a lesser included offense and is requested by either party
to do so, it must do so.” Subdivision one also provides, however, that “[i]f there is no reasonable
view of the evidence which would support such a finding, the court may not submit such lesser
offense.” Id.
The Appellate Division applied this standard when it concluded as follows:
Viewing the evidence in the light most favorable to [petitioner], the robbery
victims’ testimony established that during each of these robberies, one or more of
the perpetrators consciously manifested the presence of an object to one or more
of the victims in such a way that the victim reasonably believed the perpetrator
had a weapon. Thus, no reasonable view of the evidence supported charging
robbery in the third degree, which does not require the display of a weapon, as a
lesser-included offense.
Id. (internal citations).
Further, the Appellate Division applied the standards correctly, as the record fully
supports the Appellate Division’s view of the trial testimony: for each robbery, witnesses
testified that the robbers, by word and gesture, created the impression that they were armed. See
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ECF No. 6-3 at 428-29, 455-56 (TT at 335-36, 362-63) (first robbery) (robber said “if you love
your life, don’t move” while “sticking his hand…under his shirt”; victim thought “he had some
kind of weapon under his shirt that could harm me…[m]aybe a gun”); ECF No. 6-4 at 7-9 (TT at
426-429) (second robbery) (robber said “you know what time it is” and put his arm behind his
back; employee “took…that to mean” that it was a robbery and that there “could have been a
weapon”); id. at 170-172 (TT at 589-92) (third robbery) (robber put his hand inside his jacket
and said “you know what this is;” this “made [victim] think” that robber had a weapon
“underneath there”); ECF No. 6-3 at 133-34, 300 (TT at 39-40, 300) (fifth robbery) (see note 1
supra). 8
Finally, for these same reasons, the alleged deprivation of due process that petitioner says
resulted from the alleged jury instruction error necessarily fails as a basis for habeas relief.9

As the trial court instructed the jury, for the “display” theory of first-degree robbery under New
York law,“ the state must prove, in pertinent part, that “[t]he defendant . . . consciously
display[ed] something that could reasonably be perceived as a firearm, with the intent of
compelling an owner of property to deliver [it] up or for the purpose of preventing or
overcoming resistance to the taking,” and that “the display . . . actually be witnessed in some
manner by the victim—i.e., it must appear to the victim by sight, touch or sound that the victim
is threatened by a firearm.” ECF No. 6-4 at 567-68 (TT at 1034-35). Further, “even a hand
consciously concealed in clothing may suffice if under all the circumstances the defendant’s
conduct, or the conduct of a person acting in concert with the defendant, could reasonably lead
the victim to believe that a gun is being used during the robbery.” Id. at 568 (TT at 1035). See
generally Gonzalez v. Reiner, 177 F. Supp.2d 211, 218 (S.D.N.Y. 2001) (“display” element of
first-degree robbery under New York law “has been construed broadly”) (collecting authorities).
8

9

Although the Appellate Division decision does not address due process in the context of this
claim, that component of the claim is exhausted because petitioner’s appellate brief does cast the
refusal to charge third-degree robbery as a deprivation of his due process right to a fair trial.
ECF No. 6-1 at 3.
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2.

The Summation Claim

Petitioner claims that he is entitled to habeas relief because the court sustained three of
the prosecution’s objections to portions of the defense summation. See ECF No. 6-4 at 435, 433,
448 (TT at 896, 903, 918). In two of the instances defense counsel argued to the jury that the
fact that none of the recovered fingerprints were petitioner’s established reasonable doubt; after
sustaining the first objection the court told the jury that it “will explain to you later about the
instructions on the law and the meaning [of] beyond a reasonable doubt,” and after the second,
that it “will explain the reason about it at the end of the case.” ECF No. 6-4 at 425, 433 (TT at
896, 903). The third sustained objection was to the following remarks of defense counsel:
“Ladies and gentlemen … I’ve spoken to you for a long time. And all I could say is this: when
you get stew or soup and something in it is rotten, you don’t pick out the one piece and eat the
rest. You throw out the whole thing…And in this case I am asking you to throw out the whole
stew and find my client not guilty.” Id. at 448 (TT at 918).
On petitioner’s appeal, the Appellate Division cited New York’s contemporaneous
objection rule (NY CPL § 470.05[2]) in holding that “[petitioner’s] contention that the trial court
violated his right to a fair trial …by improperly curtailing his right to present an effective
argument in summation is unpreserved for appellate review.” Desjardins, 113 A.D.3d at 788.
The court also held that, “[i]any event, the trial court properly limited defense counsel’s
summation remarks under the circumstances of this case” and that petitioner was therefore “not
deprived of his right to a fair trial.” Id.
The state court’s determination that the summation/fair trial claim is unpreserved is a
denial of that claim on an independent and adequate state law ground, which habeas courts treat
as a procedural bar rendering the claim unreviewable. See generally Davila v. Davis, 137 S. Ct.
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2058, 2064 (2017); Coleman v. Thompson, 501 U.S. 722, 729 (1991).10 The bar erected by the
independent and adequate state law doctrine may be lifted only if a petitioner demonstrates either
“cause” for failing to comply with the state rule and “actual prejudice” if the claim is not
reached, or that a lack of federal review will result in a fundamental miscarriage of justice
because he is actually innocent. Harris v. Reed, 489 U.S. 255, 262 (1989); Wainwright v. Sykes,
433 U.S. 72, 87 (1977). Petitioner has not addressed this feature of his claim and the Court need
not reach these separate procedural inquires because, even if the claim were reviewable, it would
not entitle petitioner to habeas relief.
One of the sustained objections that petitioner challenges involves counsel’s discussion
of reasonable doubt concerning the fourth robbery—and, as noted, the Appellate Division
dismissed the charges relating to that robbery on sufficiency grounds, so the portion of the claim
based on that objection is moot. As for the remaining two challenged objections, the Appellate
Division’s conclusion that the trial court acted properly under the circumstances (presumably on
the theory that counsel was veering inappropriately into commentary upon the law rather than
merely arguing the facts) is not unreasonable. In any event, counsel argued that features of the
record established reasonable doubt at least ten other times during his summation. See ECF No.

A state procedural bar “is ‘adequate’ if it ‘is firmly established and regularly followed by the
state in question’ in the specific circumstances presented.” Murden v. Artuz, 497 F.3d 178, 191
(2d Cir. 2007) (internal quotation and citation omitted), cert. denied, 552 U.S. 1150 (2008)
(quoting, Monroe v. Kuhlman, 433 F.3d 236, 241 (2d Cir. 2006)). The requirement that an issue
be preserved by contemporaneous objection as required by NY CPL § 470.05(2) is a firmly
established and regularly followed rule for these purposes. Richardson v. Greene, 497 F. 3d 212,
217-18 (2d Cir. 2007); Petronio v. Walsh, 736 F. Supp. 2d 640, 653 (E.D.N.Y. 2010). This bar
applies “even where,” as here, “the state court has also ruled in the alternative on the merits of
the federal claim.” Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990); see also Harris v. Reed,
489 U.S. 255, 264 n. 10, (1989) (“a state court need not fear reaching the merits of a federal
claim in an alternative holding”) (emphasis in original).
10

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6-4 at 388-91, 397, 405, 429, 431, 438 (TT at 858-61, 867, 875, 899, 900, 908). Likewise, the
theme of the objected-to remark urging jurors to throw out the whole stew if one piece is rotten
was also separately made at another point in the summation. Id. at 397 (TT at 867) (“I submit to
you, because the government is saying my client committed all five robberies, if you have a
reasonable doubt as to one, then you have a reasonable doubt as to all five robberies.”). For
these reasons petitioner could not possibly establish that he was prejudiced by the court’s limited
curtailment of his counsel’s summation. And the absence of prejudice ends the inquiry.
Therefore, the Appellate Division’s determination that the minor curtailing of counsel’s
summation did not deprive petitioner of his rights to present an effective argument and to a fair
trial cannot be considered factually unreasonable or an unreasonable application of Supreme
Court fair-trial holdings within the meaning of AEDPA. See generally Crane v. Kentucky, 476
U.S. 683, 690 (1986) (recognizing that “the Constitution guarantees criminal defendants a
meaningful opportunity to present a complete defense”).
3.

The Excessive-Sentence Claim.

Petitioner claims that his twenty-three year sentence is unduly harsh because no one was
injured and no violence occurred in the commission of the robberies. Although petitioner
challenged his sentence in state court as illegal,11 he does not do so here; indeed, that claim

11

In a motion to vacate pursuant to N.Y.C.P.L. § 440.20, petitioner argued, unsuccessfully, that
his prison sentence of twenty-three years plus five years’ post-release supervision was illegal
under the 25-year maximum set by New York Penal Law § 70.06 for a class B felony offense
(such as first-degree robbery) committed by a second felony offender. See People v. Desjardins,
Dec. & Order, Oct. 4, 2014, at p. 2, ECF No. 6-1 at 112 (holding that under New York law postrelease supervision “is ‘additional’ to” the sentence of incarceration and that petitioner’s
sentence “fully complies with” the applicable New York sentencing statutes). The petition does
not include this illegal-sentence claim
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would be meritless, as each component of petitioner’s sentence falls within the range prescribed
by New York’s non-violent second felony offender statute. See N.Y. Penal Law § 70.06 (3)(b).12
That ends the constitutional inquiry for purposes of his application for habeas relief. See Cruz v.
Griffin, 2019 WL 6220806, at *19 (S.D.N.Y. Oct. 24, 2019) (“It is well settled that when a
sentence is in accord with the range established by state statutory law there is no constitutional
issue presented for habeas review,” citing White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992)).
See also Mitchell v. Rock, 11-CV-2642 (JG), 2013 WL 4041545, at *14 (E.D.N.Y. Aug 9, 2013)
(“Under well-settled federal constitutional law, there is no claim for cruel and unusual
punishment where the sentence is within the range prescribed by state law”), app. dismissed, 2d
Cir. No. 13-3126 (2d Cir. Nov. 7, 2013).

12

Under New York law, first-degree robbery a class B felony, P.L. § 160.5, and section
70.06(3)(b) provides that the sentence for a second felon convicted of a class B felony “must be
at least nine years and must not exceed twenty-five years.” The 23-year term imposed on
petitioner’s first-degree counts, therefore, is legal. Second-degree robbery is a class C felony,
P.L. § 160.10, and for that category of crimes, section 70.06(3)(c) requires a sentence of between
six and fifteen years. The 15-year sentence imposed on petitioner’s second-degree counts is
lawful. Finally, criminal possession of stolen property in the third-degree is a class D felony,
P.L. § 165.50, and for such crimes section 70.06(3)(d) requires a sentence of between four and
seven years. The term of 3½ to 7 years imposed on petitioner’s conviction for this crime is legal.
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CONCLUSION
For all the reasons discussed, the application of petitioner Jocelyn Desjardins for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 is denied in its entirety. Because petitioner has not
“made a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), a
certificate of appealability will not issue.
SO ORDERED.
Dated: Brooklyn, New York
August 17, 2021

_____s/_______________________
RAYMOND J. DEARIE
United States District Judge

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