Ellis v. Smith
MEMORANDUM AND ORDER - Because the Court has considered all of Petitioner's arguments and found them meritless, the petition is DENIED. A certificate of appealability shall not issue because Petitioner has not made a substantial showing that she was denied any constitutional rights. The undersigned certifies that any appeal of this Order as to those issues would not be taken in good faith, and thus in forma pauperis status is denied for the purposes of any appeal on those grounds. The Clerk of the Court is respectfully directed to mail a copy of this Order to the Petitioner and to close this case. SO Ordered by Judge Gary R. Brown on 7/14/2021. (Tirado, Chelsea)
12:45 pm, Jul 14, 2021
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
ROBERT ROGER JERMAINE ELLIS GOLDSMITH,
MEMORANDUM AND ORDER
JOSEPH T. SMITH,
GARY R. BROWN, United States District Judge:
Petitioner Robert Roger Jermaine Ellis Goldsmith (“Petitioner”), proceeding pro se,
petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging a
conviction and sentence for firearms possession offenses in the Supreme Court of the State of New
York, Kings County (the “trial court”). On this petition, Petitioner raises various grounds as
Insufficiency of the evidence;
Jury selection improprieties arising from a reverse-Batson challenge;
Improper admission of post-arrest statements obtained due to absence of probable cause to
arrest and alleged violation of right to counsel;
Involuntarily coercion of statements through use of force;
Denial of severance from co-defendants;
Excessive involvement in questioning by the trial judge;
Jury instructions which included the “automobile presumption”;
Excessive sentence following the consideration of victim impact statements from acquitted
The admission of prior bad act evidence for identification purposes.
Docket Entry (“DE”) 1. Because each of these claims is procedurally barred and/or substantively
without merit, and none represent a procedure or decision that was contrary to, or an unreasonable
application of, clearly established federal law, the petition must be denied.
I. FACTUAL BACKGROUND
A review of the petition, filings by the Respondent and the state court record reveals that
the Petitioner was charged by indictment with several offenses arising from an incident in which
petitioner was subject to a traffic stop while in a stolen BMW on which he had switched the license
plates. See DE 1, 7, 13, 15. Tragically, two codefendants (but not the petitioner) exited the vehicle,
armed with handguns, and opened fire upon the police officers, killing one and seriously injuring
a second. DE 7 at ¶ 5. The petitioner and his codefendants fled the scene. Id. After a manhunt
lasting several days, the petitioner was arrested in Pennsylvania and returned to New York, where
a grand jury returned an indictment against petitioner charging him with, inter alia, homicide,
attempted homicide and firearms possession violations. Id. ¶¶ 8, 10.
While in Pennsylvania, petitioner made post-arrest statements which – as discussed herein
– cannot be challenged in this context and the substance of which belies any assertion that the
convictions constitute a miscarriage of justice. Those statements include admissions by the
petitioner relating to his stealing and swapping the license plates on the BMW, his awareness of
two of the three firearms in the BMW and that he and his co-defendants – at least one of whom he
knew from jail – were discussing committing a robbery and that he was aware that the guns would
be used to do so. See generally DE 7-6 at 9-54.
That video confession was the subject of a suppression hearing at which the petitioner
challenged voluntariness as well as Sixth Amendment right to counsel issues. DE 7 at ¶¶ 11, 24;
DE 7-6 at 8-54. Prior to providing those statements, petitioner had signed a Miranda waiver as
well as a document disavowing knowing, or being represented by, two attorneys apparently hired
by his family or, for that matter, any other attorney. DE 7-6 at 5, 7. Furthermore, the content of
the video confession, which was taken by an assistant district attorney in Pennsylvania, included
reiteration of the waiver of rights. Id. at 9-10.
At a joint trial, the prosecution introduced evidence including the subject video confession
as well as the testimony of an eyewitness who saw petitioner in the BMW with a handgun. DE 7
at ¶¶ 11-12. Petitioner was convicted by a jury of the firearms charges but acquitted of the
homicide charges. Id. ¶ 13. Following the conviction, based on his status as a violent felony
offender, petitioner was sentenced to three concurrent terms of fifteen years, to be followed by five
years of probation. Id. ¶ 14.
The petitioner pursued an appeal in the state court system, during which procedure the
Appellate Division affirmed the judgement of conviction. People v. Ellis, 117 A.D. 3d 843 (2d
Dep’t 2014), leave to appeal denied, 24 N.Y.3d 1002 (2014). The Appellate Division held that
petitioner’s claim of evidentiary insufficiency had not been properly preserved for appellate
review, but that, in any event, even after conducting an independent review of the evidence, the
claim proved meritless. Id. at 844. Further, the Appellate Division determined that the video
confession was obtained in violation of the “indelible right to counsel” as defined by state law –
finding that here, the retention of a lawyer by the petitioner’s family precluded interrogation. Id.
at 844-45. However, the Appellate Division held that “the admission of the defendant's statements
at trial was harmless beyond a reasonable doubt, as there is no reasonable possibility that the error
affected the jury's verdict.” Id. at 845. Moreover, the Appellate Division reviewed and affirmed
the trial court’s application of Batson to revoke defense counsel’s exercise of a preemptory
A. Standard of Review
This petition is reviewed under the well-established standard of review of habeas corpus
petitions, including the authority of this Court to review such matters, the application of the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the exhaustion doctrine, the
independent and adequate procedural bar, the cause and prejudice exception, AEDPA deference,
the evaluation of claims of ineffective assistance of counsel and Brady violations, and the liberal
construction afforded to filings by pro se petitioners, as more fully discussed in Licausi v. Griffin,
460 F. Supp. 3d 242, 255–60 (E.D.N.Y. 2020), appeal dismissed, No. 20-1920, 2020 WL 7488607
(2d Cir. Nov. 17, 2020). The discussion of these principles set forth in Licausi is incorporated
herein by reference.
B. The Instant Petition
As noted, petitioner seeks habeas relief on the grounds summarized above.
attributing the petition the solicitous treatment afforded to pro se pleadings, none of the grounds
supports habeas relief, and most bear little discussion. Some are rooted in state law rights that are
simply not cognizable on a habeas petition and/or were denied based upon an independent and
adequate state law ground, including claims regarding jury instruction issues 1, the New York
“indelible right to counsel” questions, 2 evidentiary rulings 3 and Batson errors made in good faith. 4
To the extent that factually-based claims were fully considered by the state court, such
determinations must be given deference by this Court under the AEDPA. Ellis, 117 A.D. 3d at
844. Petitioner cannot proceed on claims that were not fully exhausted and hence are subject to
the procedural bar, as Petitioner has failed to demonstrate (1) “cause for the default and actual
prejudice as a result of the alleged violation of federal law” or (2) “that failure to consider the
claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722,
750 (1991). Petitioner’s challenge to the sufficiency of the evidence fails to meet the “doubly
deferential” standard applied to the determinations of the jury and the state courts. 5 And challenges
Cupp v. Naughten, 414 U.S. 141, 146-67 (1973) (jury instruction argument in habeas petitions generally rooted in
The parameters of right to counsel under state law – see People v. Hobson, 39 N.Y.2d 479, 483 (1976) (discussing
right to counsel rule “grounded in this State's constitutional and statutory guarantees”) – are not coextensive with the
rights under the Fifth and Sixth Amendment of the U.S. Constitution and cannot form the basis of a habeas petition.
See Licausi, 460 F. Supp. 3d at 262 (“[T]he violation of the indelible right of counsel under the New York State
Constitution” is not a “bas[is] for federal habeas relief” as such relief “does not lie for errors of state law”); see also
Kirby v. Senkowski, 141 F. Supp. 2d 383, 398 n.7 (S.D.N.Y. 2001), aff’d, 61 F. App’x 765 (2d Cir. 2003) (“[S]tate
law claims, including New York ‘indelible right to counsel’ claims, are not cognizable on habeas.”).
“Under Supreme Court jurisprudence, a state court's evidentiary rulings, even if erroneous under state law, do not
present constitutional issues cognizable under federal habeas review.” McKinnon v. Superintendent, Great Meadow
Corr. Facility, 422 F. App’x 69, 72-73 (2d Cir. 2011) (citing Hawkins v. Costello, 460 F.3d 238, 244 (2d Cir.2006));
see also Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas court to reexamine
state-court determinations on state-law questions.”). Such claims do not constitute issues of constitutional magnitude
unless the evidentiary error was “so pervasive as to have denied [petitioner] a fundamentally fair trial.” Collins v.
Scully, 755 F.2d 16, 18 (2d Cir. 1985).
Rivera v. Illinois, 556 U.S. 148, 158 (2009) (“Because peremptory challenges are within the States’ province to
grant or withhold, the mistaken denial of a state-provided peremptory challenge does not, without more, violate the
Federal Constitution.”). In this case, after the defense had challenged a series of prospective jurors from a single
demographic group, the trial judge denied several reverse-Batson challenges and granted one. DE 7-1 at 883-97.
While perhaps not flawless, the transcript reveals a good faith effort to vigilantly apply the caselaw.
“When a federal habeas petition challenges the sufficiency of the evidence to support a state-court conviction,
AEDPA establishes a standard that is ‘twice-deferential.’” Santone v. Fischer, 689 F.3d 138, 148 (2d Cir. 2012). “A
state court directly reviewing a jury verdict of guilty must, consistent with United States Supreme Court precedent,
view the evidence in the light most favorable to the prosecution and must not uphold a challenge to the sufficiency of
the evidence if any rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. And the federal court in a habeas proceeding may not ... overturn the state-court decision rejecting a sufficiency
challenge ... unless the decision was objectively unreasonable.” Id. (quotations and citations omitted). “In sum,
Jackson [v. Virginia, 443 U.S. 307 (1979)] leaves juries broad discretion in deciding what inferences to draw from the
evidence presented at trial, requiring only that jurors draw reasonable inferences from basic facts to ultimate facts,
based on purported excessive sentences fail on habeas review provided such sentence is within the
statutory range. 6
Of particular note is the Appellate Division’s determination regarding the admission of the
video confession. As noted, the violation of petitioner’s right to counsel as measured against the
state standard for such determinations is not actionable in this context. Even if it were, though,
given that there was independent witness testimony and other evidence linking the petitioner to
the handguns in the vehicle, the Appellate Division’s determination that the error was harmless
because the remaining evidence in the case proves sufficient cannot be disturbed.
Thus, the petition is denied in its entirety.
Because the Court has considered all of Petitioner’s arguments and found them meritless,
the petition is DENIED. A certificate of appealability shall not issue because Petitioner has not
made a substantial showing that she was denied any constitutional rights.
See 28 U.S.C.
§ 2253(c)(2). The undersigned certifies that any appeal of this Order as to those issues would not
be taken in good faith, and thus in forma pauperis status is denied for the purposes of any appeal
on those grounds. Coppedge v. United States, 369 U.S. 438, 444–45 (1962).
and on habeas review, a federal court may not overturn a state court decision rejecting a sufficiency of the evidence
challenge simply because the federal court disagrees with the state court.” Id. (alterations omitted).
“It is well settled that an excessive sentence claim may not be raised as grounds for habeas corpus relief if the
sentence is within the range prescribed by state law.” Cardova v. Lavalley, 123 F. Supp. 3d 387, 398 (E.D.N.Y. 2015);
see also Dixon v. Lee, No. 14-CV-7162 (SLT), 2017 WL 4402439, at *9 (E.D.N.Y. Sept. 29, 2017) (citing White v.
Keane, 969 F.2d 1381, 1383 (2d Cir. 1992)).
The Clerk of the Court is respectfully directed to mail a copy of this Order to Petitioner
and to close the case.
Dated: July 14, 2021
Central Islip, New York
/s/Gary R. Brown
HON. GARY R. BROWN
UNITED STATES DISTRICT JUDGE
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