Gopaul v. Racette

Filing 11

MEMORANDUM AND ORDER, For the reasons stated, the Queens County Petition (15-CV-1781 [Dkt. 1]) and the Nassau County Petition (15-cv-1782 [Dkt. 1]) are DENIED. So Ordered by Judge Nicholas G. Garaufis on 11/5/2021. (Lee, Tiffeny)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
HAROLD GOPAUL,
Plaintiff,

MEMORANDUM & ORDER
15-CV-1781 (NGG)
15-CV-1782 (NGG)

-againstSTEVEN RACETTE,
Defendant.

NICHOLAS G. GARAUFIS, United States District Judge.
Petitioner Harold Gopaul has filed two pro se petitions for writs
of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his
New York State court convictions in Nassau County and Queens
County for sexual abuse of his minor stepdaughter. (See Queens
Cnty. Pet. for Writ of Habeas Corpus (“Queens Pet.”) (15-cv1781) (Dkt. 1); Nassau Cnty. Pet. for Writ of Habeas Corpus
(“Nassau Pet.”) (15-cv-1782) (Dkt. 1).) For the reasons stated
below, the petitions are DENIED.
BACKGROUND
The court assumes familiarity with the underlying facts and procedural history of this case and summarizes that information only
to the extent necessary to decide the instant petitions.
A. The Queens County Convictions
Petitioner was charged in New York Supreme Court, Queens
County, with thirteen counts of Criminal Sexual Act in the First
Degree (N.Y. Penal Law § 130.50[1]), thirty counts of Sexual
Abuse in the First Degree (N.Y. Penal Law § 130.65[1]), two
counts of Criminal Sexual Act in the Second Degree (N.Y. Penal
Law § 130.45[1]), seven counts of Criminal Sexual Act in the
Third Degree (N.Y. Penal Law § 130.40[2]), Assault in the Third
Degree (N.Y. Penal Law § 120.00[1]), and Endangering the Welfare of a Child (N.Y. Penal Law § 260.10[1]). (See Queens Cnty.

1

Opp. to Pet. (“Queen’s Opp.”) (15-cv-1781) (Dkt. 9) at 3-4.); see
also People v. Gopaul, 112 A.D.3d 966, 966 (2013). He was convicted by the jury of six counts of Criminal Sexual Act in the First
Degree, six counts of Sexual Abuse in the First Degree, Criminal
Sexual Act in the Second Degree, two counts of Criminal Sexual
Act in the Third Degree, Assault in the Third Degree, and Endangering the Welfare of a Child. Gopaul, 112 A.D.3d at 966. He was
sentenced to 18 years of incarceration to be followed by 10 years
of supervised release. (Queens Pet. at 4-5.)
Petitioner appealed his conviction to the Appellate Division, Second Department. Gopaul, 112 A.D.3d 966. There, he argued that
the trial court wrongfully admitted expert testimony; allowed the
prosecutor to make impermissible arguments during his opening
and closing statements; improperly denied his request for a missing witness jury instruction in connection with the arresting
officer; and erroneously admitted testimony from the victim and
her friend concerning the abuse. Id. Petitioner’s direct appeal was
unsuccessful. Id. On March 21, 2014, his application to the New
York Court of Appeals was denied. People v. Gopaul, 22 N.Y.3d
1156 (2014).
B. The Nassau County Convictions
Petitioner was also charged in New York Supreme Court, Nassau
County, for crimes arising from the same conduct. (See Nassau
Cnty. Opp. to Pet. (“Nassau Opp.”) (15-cv-1782) (Dkt. 8) at ECF
p. 6.) On July 15, 2009, he was convicted, following a jury trial,
of 14 counts of Sexual Abuse in the First Degree, pursuant to N.Y.
Penal Law § 130.65. (Affidavit of Nassau Cnty. Dist. Atty. (“Nassau Affidavit”) (15-cv-1782) (Dkt. 8) at ECF p. 4 ¶ 6.) He was
sentenced to 12 years in custody and 5 years of supervised release. (Nassau Pet. at 1.)
Petitioner appealed his Nassau County conviction to the Appellate Division, Second Department. People v. Gopaul, 112 A.D.3d

2

964 (2013). In his direct appeal, he argued that the trial court
improperly denied his motion to suppress statements and physical evidence; that his Fourth Amendment rights were violated;
that the court improperly admitted testimony in violation of the
New York State Molineux doctrine; that he was convicted on legally insufficient evidence; and that the court imposed an
excessive and vindictive sentence. Id. On December 26, 2013, the
Appellate Division affirmed the conviction. Id. On March 21,
2014, the Court of Appeals denied leave to appeal. People v. Gopaul, 22 N.Y.3d 1156 (2014).
C. The Habeas Petitions
Petitioner submitted timely petitions for habeas relief challenging his Queens County and Nassau County convictions. (Queens
Pet.; Nassau Pet.) His petitions present some of the same arguments that he raised in each of his direct appeals, and they are
opposed by Queens County and Nassau County, respectively.
(Id.; Queens Opp.; Nassau Opp.)
The applicable law and parties’ arguments are addressed below.
LEGAL STANDARD
A district court may review an application for a writ of habeas
corpus submitted by a person in state custody if the petition asserts violations of the United States Constitution or other federal
law. 28 U.S.C. § 2254(a). To obtain relief, petitioners must also
demonstrate that they have met three requirements: (1) exhaustion and timeliness; (2) lack of a procedural bar; and (3)
satisfaction of the deferential standard of review under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub. L. No.
104-132, 110 Stat. 1214 (1996).
A. Exhaustion and Timeliness
A petitioner must have exhausted all available state court remedies to be eligible for federal habeas relief. 28 U.S.C. §

3

2254(b)(1). The purpose of the exhaustion doctrine is to ensure
that a petitioner “first ha[s] given the state courts a fair opportunity to pass upon his federal claim.” Daye v. Att’y Gen. of State
of N.Y., 696 F.2d 186, 191 (2d Cir. 1982) (en banc); see also Wilwording v. Swenson, 404 U.S. 249, 250 (1971) (per curiam). 1 To
satisfy this requirement, the petitioner must have “informed the
state court of both the factual and the legal premises of the [federal] claim [] assert[ed].” Daye, 696 F.2d at 191.
Habeas petitions are subject to a one-year statute of limitations,
which begins to run when the state judgment becomes final. 28
U.S.C. § 2244(d)(1); Williams v. Artuz, 237 F.3d 147, 151 (2d
Cir. 2001).
B. Procedural Bar
A habeas petition is procedurally barred if it challenges a state
court decision that “rests upon a state-law ground that is independent of the federal question and adequate to support the
judgment.” Cone v. Bell, 556 U.S. 449, 465 (2009); see also Coleman v. Thompson, 501 U.S. 722, 748 (1991) (“Because this Court
has no power to review a state law determination that is sufficient to support the judgment, resolution of any independent
federal ground for the decision could not affect the judgment and
would therefore be advisory.”) Failure to satisfy this requirement
is commonly called “procedural default.”
Procedural default may be excused if “the prisoner can demonstrate cause for the default and actual prejudice as a result of the
alleged violation of federal law, or demonstrate that failure to
consider the claims will result in a fundamental miscarriage of
justice.” Coleman, 501 U.S. at 750.

1

When quoting cases, and unless otherwise noted, all citations and quotation marks are omitted, and all alterations are adopted.

4

C. AEDPA Standard of Review
Under AEDPA, the court applies a deferential standard of review
to the merits of federal claims asserted in Section 2254 petitions.
Habeas relief may only be granted if the state court’s adjudication:
“(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.”
28 U.S.C. § 2254(d). The words “clearly established federal law”
refer to “the holdings, as opposed to the dicta, of the Supreme
Court’s decisions as of the time of the relevant state-court decision.” Howard v. Walker, 406 F.3d 114, 122 (2d Cir. 2005). The
central question is “not whether the state court was incorrect or
erroneous in rejecting petitioner’s claim, but whether it was objectively unreasonable in doing so.” Ryan v. Miller, 303 F.3d 231,
245 (2d Cir. 2002). With regard to the state court’s factual determinations, “a federal court is required to presume that a state
court’s factual findings are correct and to place on the petitioner
the burden of rebutting this presumption by clear and convincing
evidence.” Fulton v. Graham, 802 F.3d 257, 262 (citing 28 U.S.C.
§ 2254(e)(1)).
DISCUSSION
A. Queens County Petition
Petitioner presents four grounds for challenging his Queens
County convictions and sentencing. For the reasons stated below,
his Queens County Petition is denied.

5

1. State Evidentiary Rulings
Petitioner attacks two state evidentiary rulings from his Queens
County convictions. He first argues that his due process rights
were violated because the trial court admitted expert testimony
concerning patterns in sexual abuse victim behavior that were
not “beyond the ken” of a typical juror. (Queens Pet. at 6A-6D.)
He additionally argues that the trial court erred, also in violation
of his due process rights, by admitting certain testimony of the
victim and her friend. (Id. at 10A-10C.) In response, Queens
County contends, inter alia, that these claims should be rejected
because Petitioner has not sufficiently raised a federal issue and
because he did not exhaust his claims in the state court system.
(Queens Opp. at 13-14.)
Neither of Petitioner’s evidentiary challenges presents a federal
issue for this court’s review. His first claim is that expert testimony is inadmissible under New York State law unless its subject
matter is beyond the understanding of the reasonable juror. (Id.)
However, evidentiary claims typically involve issues of state, not
federal, law. See, e.g., Katowski v. Greiner, 212 F. Supp. 2d 78, 86
(E.D.N.Y. 2002) (rejecting habeas petitioner’s challenge to state
evidentiary ruling). And Petitioner almost exclusively references
New York State, not federal, law, in support of this claim.
(Queens Pet. at 6A-6D.) The only invocation of the federal constitution is found in the penultimate paragraph of his argument,
where he asserts that the admission of expert testimony was an
error that “violated my constitutional right to due process of
law.” (Id. at 6C.)
Merely citing the right to due process, without more, does not
convert errors of state law into constitutional violations. See
DiGuglielmo v. Smith, 366 F.3d 130, 136 (2d Cir. 2004); see also
Collins v. Scully, 755 F.2d 16, 18 (2d Cir. 1985) (To demonstrate
that “an evidentiary error deprived [Petitioner] of due process,
he must show that the error was so pervasive as to have denied

6

him a fundamentally fair trial.”) Petitioner has not argued that
the contested evidence, in light of the full record, “was sufficiently material to provide the basis for conviction or to remove
reasonable doubt that would have existed on the record without
it.” Collins, 755 F.2d at 18. To the contrary: he argues that the
expert testimony was superfluous in light of the other evidence,
including lay testimony, that was offered during trial. (Queens
Pet. at 6A-6D.) Accordingly, Petitioner has not demonstrated that
the introduction of expert testimony denied him due process of
the law.
Petitioner’s second evidentiary claim fails for the same reason.
He contends that the New York court erred by admitting testimony of the victim and her friend describing the abuse because
it was inadmissible hearsay not subject to an exception. In support of this argument, his only reference to federal issues is a onesentence assertion that the introduction of this evidence “deprived petitioner of his due process right to a fair trial.” (Id. at
10A.) The remainder of his argument invokes New York law.
Thus, this claim also fails to present any federal questions that
this court may resolve.
Even if he had presented federal questions in his Petition, his evidentiary claims would not be cognizable because he has not
argued that he alerted the state court to the purportedly constitutional dimension of his arguments. See Daye, 696 F.2d at 191.
As discussed above, his habeas briefing fails to reference any constitutional arguments, outside of the unsubstantiated claim in
each argument section that his constitutional rights were violated. 2 (Queens Pet.; Reply in Supp. of Queens Pet. (Dkt. 13) at
2

Petitioner does not appear to have submitted the Appellate Division briefing for this court’s review. Accordingly, the court is unable to investigate
the underlying arguments firsthand. Relying on the federal habeas briefing, however, the court observes that Petitioner does not assert that he

7

3-6.) Nor does he assert that he raised any constitutional claims
in his state court proceedings. Thus, Petitioner has failed to
demonstrate that he exhausted his state remedies.
Because Petitioner has not presented a federal question, or, alternatively, because he has failed to exhaust his remedies in state
court, his claims for relief on the grounds that the trial court
wrongfully admitted expert and hearsay testimony is denied.
2. Prosecutor’s Opening and Closing Statements
Petitioner next argues that the trial court erred, in violation of his
due process rights, by allowing the prosecutor to improperly address the jury in opening and closing statements. (Queens Pet. at
7A-7E.) Specifically, he contends that the prosecutor impermissibly (1) elicited sympathy for the victim; (2) labeled defense
“ridiculous” and “absurd;” (3) asserted that the victim would
have to be a “sick, despicable human being if she were to falsely
accuse Petitioner; and (4) asked the jury to rely on the grand jury
vote to reach a guilty verdict. (Id.)
Queens County responds that Petitioner’s claim is meritless because the state court relied on an adequate and independent
state law ground when it denied this claim on direct appeal.
(Queens Opp. at 36.) The court agrees. The Appellate Division
rejected Petitioner’s prosecutorial misconduct argument on the
grounds that it was unpreserved for appellate review. People v.
Gopaul, 112 A.D.3d 966, 967 (2013) (citing N.Y. Code Crim.
Proc. 470.05[2]; People v. Thompson, 99 A.D.3d. 819, 819
(2012); People v. Umoja, 70 AD3d 867, 868 (2010); People v.
Tate, 275 AD2d 380, 381 (2000).) The Appellate Division found
that Petitioner failed to object to the purported violations contemporaneously, as required by New York State law. (Id.)
made any constitutional arguments in the state court litigation. Accordingly, he has not shown that he presented a federal issue to the state court,
and his claim is denied.

8

Because the reviewing state court set forth a plain statement explaining the well-established state law grounds for rejecting
Petitioner’s argument, see Harris v. Reed, 489 U.S. 255, 263-65
(1989), Petitioner’s prosecutorial misconduct claims are procedurally barred.
Petitioner has not argued that the default should be excused because of cause and prejudice. Thus, his prosecutorial misconduct
claim is denied. See Francis v. Henderson, 425 U.S. 536, 542
(1976) (requiring petitioner to show cause and prejudice to excuse procedural default).
3. Denial of Petitioner’s Request for a Missing Witness
Jury Instruction
Petitioner’s final challenge to his Queens County conviction is
that his due process rights were violated when the trial court denied his application for a missing witness charge as to his
arresting officer. (Queens Pet. at 9A-9D.) He asserts that, under
well-settled law, after a party has “established prima facie that
an uncalled witness is knowledgeable about a pending material
issue and that such witness would be expected to testify favorably to the opposing party,” the burden shifts to the opponent to
“account for the witness’ absence or otherwise demonstrate that
the charge would not be appropriate.” (Id. at 9A.) He asserts that
he met this initial burden in the state court proceedings by alleging that the police officer who received his confession was
knowledgeable about the circumstances of his arrest, which, he
contends, included use of excessive and coercive force. (Id. at 9B9C.) He further asserts that the prosecution, by failing to show
that the witness was unavailable or providing other reasons that
his testimony was not relevant, did not carry its burden. (Id. at

9

9C). Accordingly, he contends that the trial court erred by summarily denying his request for a missing witness charge. 3 (Id.)
Petitioner’s missing witness claim fails to raise an issue of federal
law. See 28 U.S.C. § 2254(a); see also Pulley v. Harris, 465 U.S.
37, 41 (1984); Wright v. Marshall, No. 05-cv-2280, 2005 WL
1861633, at *4 (E.D.N.Y. Apr. 4, 2005) (“A state trial court’s jury
instruction, such as a missing witness charge, is ordinarily a matter of state law.”). Here, as on his evidentiary claims, Petitioner
exclusively relies upon and analyzes state law, and fails to invoke
a federal issue. Thus, this claim is also denied.
B. Nassau County Petition
Petitioner asserts five grounds for challenging his Nassau County
convictions and sentencing, discussed below.
1. Miranda Rights
Petitioner contends that the trial court erred by admitting written
and videotaped statements in violation of his Miranda rights.
(Nassau Pet. at 6A.) In response, Nassau County argues that this
claim fails because he has not satisfied the AEDPA standard of
review. (Nassau Opp. at 4.)
A defendant’s post-arrests statements may be admissible if there
has been a knowing, voluntary, and intelligent waiver of their
Miranda rights. Miranda v. Arizona, 384 U.S. 436, 479 (1966);
Miller v. Fenton, 474 U.S. 104, 112 (1985). The court considers
the totality of the circumstances in evaluating whether a waiver
occurred; those circumstances may include the length of detention, the conduct of law enforcement, and the use of coercive
strategies. Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973).
3

The Appellate Division held that the trial court erred by failing to advise
the jury with a missing witness charge, but it concluded that the error was
harmless because the evidence of guilt was overwhelming. See Gopaul, 112
A.D.3d at 967.

10

This court reviews legal findings de novo, and it must presume
that the trial court’s factual findings are correct; it is Petitioner’s
burden to rebut this presumption by clear and convincing evidence. See Fulton, 802 F.3d at 262 (citing 28 U.S.C. §
2254(e)(1)).
The trial court’s decision was neither contrary to, nor an unreasonable application of, clearly established federal law. The trial
court determined that, over the course of approximately 4.5
hours in custody, Petitioner was read his Miranda rights from a
pre-printed form by Detective Shulman; that Detective Shulman
noted “yes” next to each question on the form, as did Petitioner;
that he subsequently made two statements to the police; that his
demeanor was calm throughout; and that he did not appear to
be injured or distressed. (Queens Cnty. App. Div. Br. [Dkt. 8-2]
at 30-36.) These facts are adequate to support the trial court’s
conclusion that Petitioner validly waived his Miranda rights. See
Schneckloth, 412 U.S. at 226; Columbe v. Connecticut, 367 U.S.
568, 602 (1961); United States v. Ruggles, 70 F.3d 262, 265 (2d
Cir. 1995). Thus, Petitioner’s Miranda claim is denied.
2. Sufficiency of the Evidence
Petitioner next claims that the evidence was legally insufficient
to support his conviction. (Nassau Pet. at 9A-9C.) Petitioner did
not object to the sufficiency of the evidence in the trial court proceedings, instead raising it for the first time on direct appeal. See
Gopaul, 112 A.D.3d 964, at 965. Accordingly, the Appellate Division rejected this objection as unpreserved. Id. For the reasons
explained supra, (see Section III.A.2.), failure to preserve an argument for appeal constitutes waiver of those claims; thus,
Petitioner has procedurally defaulted on these claims. Velasquez
v. Leonardo, 898 F.2d 7, 9 (2d Cir. 2009). Because he has procedurally defaulted and has not argued any cause or prejudice for
this default, this claim is denied.

11

3. Other Evidentiary Claims
Petitioner next contends that the trial court erred by denying his
motion in limine to exclude evidence of his Queens County
charges. (Nassau Pet. at 7A-7E.) He contends that this evidence
of prior bad acts constituted improper propensity evidence under
the New York State Molineux rule and that it violated his right
against self-incrimination. (Id.)
Like the evidentiary claims in his Queens County Petition, Petitioner’s Molineux argument only involves questions of state, not
federal, law. See Katowski, 212 F. Supp. 2d at 86; People v.
Molineux, 168 N.Y. 264 (1901). As explained supra, (see Section
III.A.1.), to demonstrate that “an evidentiary error deprived [Petitioner] of due process, he must show that the error was so
pervasive as to have denied him a fundamentally fair trial.” Collins, 755 F.2d at 18. To satisfy this burden, Petitioner must show
that the contested evidence, in light of the full record, “was sufficiently material to provide the basis for conviction or to remove
reasonable doubt that would have existed on the record without
it.” Id.
Petitioner has not shown that admission of the Queens charges
denied him a fair trial. Under both federal and New York State
evidentiary rules, uncharged criminal conduct is inadmissible to
establish propensity but may be admissible for other purposes,
including “motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” Fed. R.
Evid. 404(b); Molineux, 168 N.Y. 264. It may also be admissible
to provide context or background for the charges being litigated.
See United States v. Jackson, 2002 WL 31101718, at *2 (2d Cir.
Sept. 20, 2002); People v. Haidara, 65 A.D. 3d. 974, 974 (N.Y.
App. Div. 2009). Even if that evidentiary ruling arguably denied
him due process, the weight of the evidence supporting his conviction undermines any claim that the violation was “so pervasive
as to have denied him a fundamentally fair trial.” Collins, 755

12

F.2d at 18. Thus, admission of this evidence did not violate Petitioner’s due process rights.
4. Fourth Amendment Claims
Petitioner contends that the trial court erred by admitting into
evidence massagers and a knife, which were obtained during police searches of Petitioner’s car and home, in violation of his
Fourth Amendment rights. (Nassau Pet. at 6A-6F.) Fourth
Amendment claims that were fully and fairly litigated in the state
court proceedings are not reviewable in a federal habeas petition.
See Stone v. Powell, 428 U.S. 465, 494 (1976); Jackson v. Scully,
781 F.2d 291, 297 (2d Cir. 1986). Here, Petitioner challenges the
conclusion of the trial court; he does not contend that he was
denied the chance to fully and fairly litigate his claim. (See Nassau Pet. at 6A-6F.) In any event, the record reflects that the trial
court held a suppression hearing in which Petitioner had the opportunity to cross-examine witnesses; present evidence; and
advance legal arguments in support of his argument for suppressing the evidence. (See Pre-Trial Suppression Hearing Minutes
(Dkt. 8-11).) The trial court denied the claim, and the Appellate
Division upheld that decision. Gopaul, 112 A.D.3d 964, at 96465. Thus, the Fourth Amendment claim is denied.
5. Imposition of an Excessive and Constitutionally
Vindictive Sentence
Lastly, Petitioner claims that the trial court violated his due process rights by imposing an excessive and unconstitutionally
vindictive sentence. (Nassau Pet. at 10A-10B.) Nassau County argues that he failed to exhaust his claim that the sentence was
unconstitutionally vindictive, and that his claim that it was excessive does not invoke a federal issue that this court may
resolve. (Nassau Opp. at 25-27.)
The court agrees that Petitioner failed to exhaust his vindictiveness claim because he did not raise it in his application for leave

13

to appeal to the New York Court of Appeals. Coleman v. Thompson, 501 U.S. 722, 732, 749-51 (1991). Nor has he argued cause
or prejudice, or actual innocence, to excuse the procedural default. See Jones v. Keane, 329 F.3d 290, 296 (2d Cir. 2003). Thus,
his claim that his sentence was unconstitutionally vindictive is
denied.
The court also agrees that the excessive sentencing claim does
not present a federal issue reviewable under Section 2254. Petitioner does not dispute that he was sentenced within the
applicable range prescribed by state law. Federal habeas review
of this claim is therefore unavailable. See Ross v. Gavin, 101 F.3d
687 (2d Cir. 1996) (summary order). Accordingly, his excessive
sentencing claim is also denied.
CONCLUSION
For the reasons stated above, the Queens County Petition (15-cv1781 [Dkt. 1]) and the Nassau County Petition (15-cv-1782 [Dkt.
1]) are DENIED.
SO ORDERED.
Dated:

Brooklyn, New York
November 5, 2021
_/s/ Nicholas G. Garaufis_
NICHOLAS G. GARAUFIS
United States District Judge

14