Gordon v. Colin
Filing
14
ORDER denying 1 Petition for a Writ of Habeas Corpus. For the reasons contained in the attached Memorandum & Order, Mr. Gordon's Section 2254 petition is DENIED and dismissed in its entirety. Because Mr. Gordon has not made a substantial showi ng of the denial of a constitutional right, a certificate of appealability shall not issue. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (discussing certificate of appealability standard); Rules Governing Section 2254 and 2255 Cases, Rule 1 1 ("The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.").The Clerk of Court is respectfully directed to enter judgment in favor of Respondent, serve Mr. Gordon with a copy of this Memorandum & Order and the judgment, note service on the docket, and close this case. Ordered by Judge Kiyo A. Matsumoto on 8/5/2020. (Mayer, Michael)
Case 1:16-cv-05280-KAM Document 14 Filed 08/05/20 Page 1 of 36 PageID #: 800
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
MAURICE GORDON,
Petitioner,
MEMORANDUM & ORDER
-against16-CV-5280(KAM)
JOHN COVLIN, 1 Superintendent of
Five Points Correctional Facility,
Respondent.
----------------------------------X
KIYO A. MATSUMOTO, United States District Judge:
Petitioner Maurice Gordon (“Mr. Gordon”), proceeding
pro se, filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 (“Section 2254”), challenging the
constitutionality of his conviction and sentence in state court
for various counts of selling and possessing narcotics.
(See
generally ECF No. 1, Petition for Writ of Habeas Corpus
(“Pet.”).)
Respondent opposes the petition, arguing that
aspects of it are procedurally barred, and that it is without
merit.
(See generally ECF No. 7, Memorandum of Law in
Opposition to Petition (“Opp.”).)
1
For the reasons discussed
This case was incorrectly docketed as Gordon v. Colin, rather than Gordon v.
Colvin. Mr. Colvin was the superintendent of Five Points Correctional
Facility, Mr. Gordon’s place of incarceration, when the instant petition was
filed. Subsequently, Mr. Gordon was transferred to the Otisville Correctional
Facility. (See Dkt. Order June 10, 2020.) The District Attorney of Kings
County (“Respondent”) represents respondent in this matter pursuant to an
agreement with the Attorney General of the State of New York. (ECF No. 7,
ECF pp. 2-10 ADA Seth Lieberman Affidavit in Opposition (“Aff. in Opp.”), at
2.)
1
Case 1:16-cv-05280-KAM Document 14 Filed 08/05/20 Page 2 of 36 PageID #: 801
below, Mr. Gordon’s petition is DENIED and dismissed in its
entirety.
Background
On December 16, 2009, Mr. Gordon was arrested by the
New York Police Department’s Street Narcotics Enforcement Unit
(“SNEU”) in Brooklyn, New York after allegedly selling
controlled substances to three individuals.
(Aff. in Opp. ¶ 3.)
The police recovered from Mr. Gordon a plastic bag containing
multiple bags of marijuana, $1,126 in cash, and fifteen small
plastic “twisty” bags, each containing crack-cocaine.
I.
(Id.)
The Indictment, Pre-Trial Proceedings, and Plea
Negotiations
Mr. Gordon was charged by Kings County Indictment
Number 11563/2009 with three counts of Criminal Sale of a
Controlled Substance in the Third Degree, in violation of New
York Penal Law (“NYPL”) § 220.39(1); one count of Criminal
Possession of a Controlled Substance in the Fourth Degree, in
violation of NYPL § 220.09; one count of Criminal Possession of
a Controlled Substance in the Seventh Degree, in violation NYPL
§ 220.03; and one count of Unlawful Possession of Marihuana, in
violation of NYPL § 221.05.
(Id. at ¶ 4.)
Subsequently, Mr.
Gordon was also indicted on one count of Criminal Possession of
a Controlled Substance in the Third Degree, in violation of NYPL
§ 220.16(1).
(ECF No. 6-3, March 9, 2012 Pre-trial Proceeding
(“March 9, 2012 Proceeding”), at 4.)
2
Case 1:16-cv-05280-KAM Document 14 Filed 08/05/20 Page 3 of 36 PageID #: 802
John Godfrey, Esq., a legal aid attorney, represented
Mr. Gordon at a preliminary hearing, and served a motion for Mr.
Gordon to testify before the grand jury. 2
(ECF No. 6-2, March 6,
2012 Pre-Trial Proceeding (“March 6, 2012 Proceeding”), at 17.)
As is discussed more below, Mr. Gordon did not ultimately
testify before the grand jury, because the motion was withdrawn.
Subsequently, Robert Reuland, Esq. (“Mr. Reuland”) was
Mr. Gordon’s assigned attorney at arraignment in April 2010.
(Id. at 15.)
1, 2010.
Mr. Reuland then requested to be relieved on June
(Id.)
Though he had not yet been relieved by the
court, Mr. Reuland failed to appear for a hearing on June 28,
2010, and the case was adjourned until July 16, 2010.
(Id.)
At
the hearing on July 16, 2010, Mr. Reuland stated that after
discussion with Mr. Gordon, Mr. Gordon “believe[d] that he was
2
New York Criminal Procedure Law (“NYCPL”) provides that:
When a criminal charge against a person is being or is about to be or
has been submitted to a grand jury, such person has a right to appear
before such grand jury as a witness in his own behalf if, prior to the
filing of any indictment or any direction to file a prosecutor's
information in the matter, he serves upon the district attorney of the
county a written notice making such request and stating an address to
which communications may be sent. The district attorney is not obliged
to inform such a person that such a grand jury proceeding against him
is pending, in progress or about to occur unless such person is a
defendant who has been arraigned in a local criminal court upon a
currently undisposed of felony complaint charging an offense which is a
subject of the prospective or pending grand jury proceeding. In such
case, the district attorney must notify the defendant or his attorney
of the prospective or pending grand jury proceeding and accord the
defendant a reasonable time to exercise his right to appear as a
witness therein . . . .
NYCPL § 190.50(5)(a).
3
Case 1:16-cv-05280-KAM Document 14 Filed 08/05/20 Page 4 of 36 PageID #: 803
denied his right to testify in the grand jury,” and that “Mr.
Gordon wishe[d] the Court to appoint a new attorney at this
time.”
(ECF No. 6-1, July 16, 2010 Pre-trial Proceeding (“July
16, 2010 Proceeding”), at 3.)
Harold Baker, Esq. (“Mr. Baker”) was then assigned to
represent Mr. Gordon, and on September 23, 2010, the prosecution
offered Mr. Gordon a plea agreement stipulating to one and a
half years of incarceration.
(March 6, 2012 Proceeding at 16.)
Mr. Gordon refused this offer, and on November 18, 2010, a trial
date was set for early 2011.
(Id.)
The trial date was adjourned various times throughout
2011.
Mr. Baker was relieved as counsel, and Mr. Gordon
retained Jack Goldberg, Esq. (“Mr. Goldberg”), who began
preparing for trial.
(Id.)
However, on March 6, 2012, the week
before Mr. Gordon’s trial was to begin, Mr. Goldberg requested
to be relieved because Mr. Gordon “indicated that when he heard
[the plea] offer,” he felt that Mr. Goldberg had “done nothing
for him.”
(Id. at 9.)
The state trial judge informed Mr.
Gordon that if Mr. Goldberg were relieved and yet another
attorney were assigned, it would be his “last lawyer,” and the
court would not “put[] this case over.”
(Id. at 19.)
Mr. Gordon moved pro se to dismiss the indictment
pursuant to NYPL § 210.20 on the ground that he was denied the
right to testify before the grand jury pursuant to New York
4
Case 1:16-cv-05280-KAM Document 14 Filed 08/05/20 Page 5 of 36 PageID #: 804
Criminal Procedure Law.
(Id. at 17-18.)
Gordon’s motion because it was untimely.
The court denied Mr.
(Id. at 18.)
At the
same hearing, Assistant District Attorney Darren Albanese, Esq.
(“ADA Albanese”) informed the court of a 2010 email from Mr.
Gordon’s then-counsel, Mr. Reuland, to the former ADA
responsible for the case, that stated: “Further to our telephone
conversation, this will affirm that I am withdrawing cross
190.50 notice in this matter.”
(Id. at 21.)
Based on this
email showing that Mr. Gordon’s counsel had withdrawn Mr.
Gordon’s motion to testify before the grand jury, the court
repeated it denial of his motion based “upon the applicable law
and the withdrawal of 190.50 notice . . . .”
(Id.)
The court then appointed Phillip Smallman, Esq. (“Mr.
Smallman”) to represent Mr. Gordon at trial.
(Id. at 24-26.)
Mr. Goldberg stated in court that he briefed Mr. Smallman and
that Mr. Smallman could “call upon [Mr. Goldberg] to confer”
regarding any questions or information related to Mr. Gordon’s
case.
(Id. at 24.)
Mr. Smallman stated that he had been “given
the parameters” and “was comfortable” with representing Mr.
Gordon.
(Id. at 25.)
He then stated that he understood that
“the court was looking to do [the trial] at some point early
next week,” and that was “fine.”
(Id.)
After the court stated that it wished to begin trial
the following Monday, March 12, 2012, Mr. Smallman requested to
5
Case 1:16-cv-05280-KAM Document 14 Filed 08/05/20 Page 6 of 36 PageID #: 805
proceed instead on Tuesday, March 13, 2012.
(Id.)
The court
granted this request so that Mr. Smallman would “have the
opportunity to confer with [his] client” before trial began.
(Id.)
The court also noted that it was “up to [Mr. Gordon] to
get along with Mr. Smallman.”
(Id. at 26.)
The court
continued:
Mr. Smallman is a very, very experienced criminal
defense attorney in this county and other counties.
And if you don’t like his advice, that’s too bad, but
certainly he will work with you. I am sure he will
give you the best defense possible under the law and
the facts of this case[.]
(Id.)
On March 9, 2012, ADA Albanese conveyed another plea
offer in court, in the presence of Mr. Gordon:
I want it to be clear to defense counsel and the
defendant the offer in this case is four years jail.
And I did some more research to confirm what we
discussed earlier in the week with regards to possible
consecutive time should the defendant be convicted,
and the defendant is, in fact, facing consecutive time
on the four top counts, all B felonies, each of them
carry with them a possible jail sentence of two years
jail to 12 years jail. Should the defendant be
convicted and should the defendant be convicted on all
four top counts, the People will be seeking
consecutive time based on the defendant’s record and
based on some other factors, which when we get to that
point, the People will bring to the Court’s attention.
Also, this is the last day that we will be offering
four years jail. If we continue on with the
preliminaries, the offer will be called off and the
defendant would have to receive some sort of plea from
your Honor, because the People would not be offering
anything today.
6
Case 1:16-cv-05280-KAM Document 14 Filed 08/05/20 Page 7 of 36 PageID #: 806
(March 9, 2012 Proceeding at 3-4.)
The judge clarified the offer:
[J]ust so we are clear, I thought I understood from
you that if the defendant was interested in a plea in
this case for four years jail plus probably three
years post-release supervision and surcharges, and if
he has [a] new [case], that four years would also
cover the new case, we’ll say, even though it has not
been indicted.
(Id. at 4.)
(Id.)
ADA Albanese stated that the judge was “correct.”
Mr. Smallman, in the presence of Mr. Gordon, rejected the
plea offer, and stated:
I believe we are ready to proceed Judge, I have had
discussions with [Mr. Gordon] since being assigned to
the case, and I do not have any indication at this
point that he was interested in disposing of the
matter.
(Id. at 5.)
II.
Trial and Sentence
Mr. Gordon’s trial commenced on March 15, 2012. 3
(Trial Tr. at 2.)
The prosecution presented six witnesses:
Police Officer Hector Morales (“Officer Morales”), Police
Officer Edwin Ferreira (“Officer Ferreira”), NYPD Laboratory
criminalist Danielle Buthorn (“Ms. Buthorn”), Police Officer
Christopher Salamone (“Officer Salamone”), Police Officer Edwin
Simon (“Officer Simon”), and Sergeant Kurt Trotman (“Sergeant
Trotman”).
3
The trial transcripts in People v. Gordon (“Trial Tr.”) are available at ECF
Nos. 6-4 (pp. 1-210), 6-5 (pp. 211-385), and 6-6 (386-541).
7
Case 1:16-cv-05280-KAM Document 14 Filed 08/05/20 Page 8 of 36 PageID #: 807
Officer Morales testified that he had been the
“observing officer” 4 on the evening of December 16, 2009, and was
parked on Troy Avenue in Brooklyn.
(Id. at 65-67.)
Officer
Morales testified that the streets were well-lit at 7:00 p.m.
(Id. at 68.)
Officer Morales saw people approach an individual
and hand him money, and the individual “would reach into the
waistband and hand them something, an object, and then they
would just walk away.”
(Id. at 68-69.)
Officer Morales
identified Mr. Gordon at trial as the individual he observed.
(Id. at 69-70.)
Officer Morales testified that he then radioed
directions to the apprehension team three times, at 7:10 p.m.,
at 8:10 p.m., and at 8:15 p.m., respectively.
(Id.)
Officer
Morales testified that he later observed Mr. Gordon entering a
bar at 259 Troy Avenue, and that after 20 minutes, he radioed
the apprehension team to arrest Mr. Gordon inside the bar.
(Id.
at 88-89.)
Officer Ferreira also testified that Troy Avenue was
well-lit on the night of December 16, 2009.
(Id. at 175.)
Officer Ferreira received a radio transmission at 7:10 p.m. from
Officer Morales that a drug transaction took place, and Officer
4
Officer Morales testified that the observing officer assigned to the SNEU
unit will observe to identify “any drug sales, things of that nature” at a
particular location. (Id. at 64.)
8
Case 1:16-cv-05280-KAM Document 14 Filed 08/05/20 Page 9 of 36 PageID #: 808
Morales provided the buyer’s description and location.
176.)
(Id. at
Officer Ferreira arrested an individual, Henry Esson, who
met the description, and recovered a bag containing alleged
crack-cocaine from his socks.
(Id. at 176-78.)
At 8:10 p.m., Officer Ferreira testified that he
received another communication from Officer Morales describing
another buyer.
(Id. at 179.)
Officer Ferreira stopped an
individual meeting the description, Robert Smith, and recovered
alleged crack-cocaine from his jacket pocket.
(Id. at 179-180.)
Officer Ferreira received a third communication at
8:15 p.m. describing a third buyer.
(Id. at 180-81.)
Officer
Ferreira stopped an individual meeting the description, Mark
McMahon, and recovered four plastic bags containing alleged
crack-cocaine.
(Id. at 181.)
Officer Ferreira received another radio transmission
from Officer Morales at approximately 9:00 p.m., providing the
description of the seller as a tall black male with “medium
complexion,” wearing a dark-colored jacket and blue jeans, who
entered a bar at 259 Troy Avenue.
(Id. at 184-85.)
Officer
Ferreira testified that when he entered the bar at 259 Troy
Avenue, he identified an individual that fit the description,
and identified the individual in court as Mr. Gordon.
185-86.)
(Id. at
Officer Ferreira, who was accompanied by several other
9
Case 1:16-cv-05280-KAM Document 14 Filed 08/05/20 Page 10 of 36 PageID #: 809
officers, including Sergeant Trotman, arrested Mr. Gordon and
took him to the 77th precinct police station.
(Id. at 186-87.)
Sergeant Trotman testified that he assigned Officer
Ferreira and Officer Simon to conduct a strip search of Mr.
Gordon because of the quantity of marijuana that he was told was
recovered from “his waistband in the back” (id. at 339, 363),
and he saw Officer Ferreira recover “a quantity of alleged
crack” during the strip search (id. at 341).
Officer Ferreira
testified that after Mr. Gordon was told he would be strip
searched, he became “very belligerent,” and started reaching
toward the back of his waistband.
(Id. at 187-88.)
Officer
Ferreira testified that Mr. Gordon attempted to fight him and
Officer Simon during the strip search.
(Id.)
Officer Ferreira
testified that after wrestling Mr. Gordon to the ground, he
recovered alleged crack-cocaine in a plastic bag from the back
of his waistband.
(Id. at 188.)
Officer Simon also identified Mr. Gordon, and
testified that he observed Officer Salamone “recover a quantity
of marijuana from [Mr. Gordon]’s hand.”
(Id. at 282-83.)
Further, Officer Simon testified that he recovered $1,126 from
Mr. Gordon’s pocket.
(Id. at 283-85.)
Officer Simon testified
that when Mr. Gordon reached to his back waist area, he and
Officer Ferreira struggled with Mr. Gordon.
(Id. at 287.)
Officer Simon stated that Officer Ferreira retrieved a white
10
Case 1:16-cv-05280-KAM Document 14 Filed 08/05/20 Page 11 of 36 PageID #: 810
“rocky” substance from his back waist that he believed to be
crack-cocaine.
(Id.)
Ms. Buthorn, the lab criminalist, testified that she
received ten items recovered by the police from Mr. Gordon
containing either white solid material, moist solid material, or
vegetative materials.
(Id. at 231-32.)
Ms. Buthorn testified
that six of the items were identified as crack-cocaine, greater
than one-eighth of an ounce.
(Id. at 234-35.)
Ms. Buthorn
testified that two of the items were revealed to be marijuana.
(Id. at 231, 236.)
After the prosecution rested, Mr. Smallman made a
motion on behalf of Mr. Gordon to dismiss the case, which the
court denied.
(Id. at 369.)
The defense then rested without
putting on a case, choosing to hold the prosecution to its
burden of proof.
(Id. at 373.)
On March 23, 2012, Mr. Gordon was convicted by a
unanimous jury of Criminal Possession of a Controlled Substance
in the Third Degree, and three counts of Criminal Sale of a
Controlled Substance in the Third Degree.
(Id. at 533.)
Mr.
Gordon was found not guilty of Criminal Possession of a
Controlled Substance in the Fourth Degree and not guilty of
Unlawful Possession of Marijuana.
(Id.)
On April 23, 2012, Mr.
Gordon was sentenced as a second felony drug offender to
consecutive terms of incarceration of eight years for each count
11
Case 1:16-cv-05280-KAM Document 14 Filed 08/05/20 Page 12 of 36 PageID #: 811
of Criminal Sale of a Controlled Substance, and eight years, to
run concurrently, for the count of Possession of a Controlled
Substance, for a total term of incarceration of twenty-four
years, with three years of post-release supervision.
People v.
Gordon, 132 A.D.3d 904, 904 (2d Dep’t 2015); (Aff. in Opp. ¶
16).
III. Procedural History
Lynn W. L. Fahey, Esq. (“Ms. Fahey”) was assigned as
Mr. Gordon’s appellate counsel.
Patricia Pazner, Esq. (“Ms.
Pazner”), a colleague of Ms. Fahey, submitted Mr. Gordon’s first
appellate brief to the Appellate Division, Second Department on
May 9, 2014.
(ECF No. 6-7, Mr. Gordon’s Appellate Brief (“Main
Appellate Br.”).)
Mr. Gordon’s appellate brief asserted two grounds for
relief.
First, he argued that the verdict was against the
weight of evidence, because Officer Morales was positioned too
far away from the individual who was selling narcotics to get a
clear view, and the police officers only found drugs on Mr.
Gordon after a fourth search.
(Id. at 3.)
argued that his sentence was excessive.
Mr. Gordon also
(Id.)
submitted its opposition brief on July 22, 2014.
The State
(ECF No. 6-8,
People’s Brief in Opposition to Petitioner’s Appellate Brief.)
On May 15, 2015, Mr. Gordon submitted a pro se supplemental
appellate brief.
(ECF No. 6-9, Petitioner’s Pro Se Supplemental
12
Case 1:16-cv-05280-KAM Document 14 Filed 08/05/20 Page 13 of 36 PageID #: 812
Appellate Brief dated May 15, 2015 (“Pro Se Appellate Br.”).)
Mr. Gordon’s pro se brief set forth two additional grounds for
relief, which were that he was denied effective assistance of
counsel during plea negotiations, and that the withdrawal of his
request to testify before the grand jury required dismissal of
the indictment.
(Id. at 3, 13.)
On October 21, 2015, the Appellate Division issued a
decision, holding that the evidence was sufficient to support
the conviction, Mr. Gordon did not receive ineffective
assistance of counsel, Mr. Gordon waived his argument that he
was deprived of his right to testify before a grand jury, and
Mr. Gordon’s sentence of three consecutive eight-year prison
terms was excessive.
Gordon, 132 A.D.3d at 904-05.
The
Appellate Division ordered that the judgement be modified to
reduce “the determinate terms of imprisonment imposed on each of
the convictions from eight years to be four years,” for a total
prison term of twelve years.
Id. at 904.
On October 30, 2015, Mr. Gordon, through Ms. Pazner,
requested leave to file an appeal with the Court of Appeals of
the State of New York.
(ECF No. 6-11, Request for Leave to
Appeal.)
On December 22, 2015, the Court of Appeals denied the
request.
People v. Gordon, 26 N.Y.3d 1088 (2015).
On September 19, 2016, Mr. Gordon timely filed his
petition for writ of habeas corpus pursuant to Section 2254.
13
Case 1:16-cv-05280-KAM Document 14 Filed 08/05/20 Page 14 of 36 PageID #: 813
Mr. Gordon’s petition argues that his conviction and sentence
are unconstitutional for four reasons: (1) ineffective
assistance of counsel during arraignment for withdrawing the
timely request to testify before the grand jury; (2) ineffective
assistance of trial counsel during plea negotiations for failure
to advise Mr. Gordon of a plea agreement, and electing to go to
trial three days after appointment; (3) the verdict was against
the weight of the evidence; and (4) Mr. Gordon’s sentence of
consecutive eight year terms on the three counts of Criminal
Sale of a Controlled substance was excessive.
(Pet. at 7-8.)
On December 12, 2016, Respondent filed its opposition to Mr.
Gordon’s petition.
On February 28, 2017, Mr. Gordon filed a
reply.
On March 6, 2017, Mr. Gordon filed a motion to stay
and hold in abeyance the instant habeas proceeding, seeking
“permission to go back to the Court of Appeals to file Leave to
Appeal for [his pro se] supplemental brief.”
to Stay and Hold in Abeyance, at 2.)
(ECF No. 9, Motion
On March 8, 2017, this
court granted the motion to stay, so that Mr. Gordon could seek
relief in state court.
(Dkt. Order March 8, 2017.)
On April 16, 2019, and subsequently on February 3,
2020, this court ordered the parties to jointly provide status
updates regarding the status of any state court proceedings.
(Dkt. Order April 16, 2019; Dkt. Order Feb. 3, 2020.)
14
In
Case 1:16-cv-05280-KAM Document 14 Filed 08/05/20 Page 15 of 36 PageID #: 814
response to both orders, Assistant District Attorney Seth
Lieberman, Esq. provided letters stating that he was “unaware of
. . . any state court proceedings pertaining to [Mr. Gordon]
that have taken place subsequent to the filing of petitioner’s
habeas petition.”
(ECF No. 11, ADA Seth Lieberman Status Update
Letter filed April 17, 2019, at 1; ECF No. 13, ADA Seth
Lieberman Status Update Letter filed February 5, 2020, at 1.)
On June 10, 2020, this court ordered Mr. Gordon to
submit a letter to this court by no later than July 10, 2020
conveying his view about whether his case should remain stayed.
(Dkt. Order June 10, 2020.)
The order was served by the Clerk
of Court by mail upon Mr. Gordon at the facility at which he is
currently incarcerated.
Mr. Gordon has not provided a response,
and so the court accepts Respondent’s statement that Mr. Gordon
has not sought relief in a state court proceeding since his
request for a stay. 5
Therefore, this court lifts the stay.
5
Mr. Gordon’s motion to stay his habeas petition on the basis that his
appellate counsel failed to submit his pro se supplemental brief to the Court
of Appeals of the State of New York does not appear to be supported by the
record. Ms. Pazner’s October 30, 2015 letter to the chief judge of the Court
of Appeals requested leave on the issues raised in Mr. Gordon’s main brief as
well as his pro se supplemental brief, which was purportedly included in this
request for leave. (ECF No. 6-11, Request for Leave to Appeal dated October
30, 2015, at 2.) Further, even if Mr. Gordon’s claims are unexhausted, this
court is “given discretion to deny unexhausted claims on the merits, although
it is not required to do so.” Velazquez v. Poole, 614 F. Supp. 2d 284, 311
(E.D.N.Y. 2011) (citing 28 U.S.C. § 2254(b)(2)).
15
Case 1:16-cv-05280-KAM Document 14 Filed 08/05/20 Page 16 of 36 PageID #: 815
Legal Standard
Pursuant to Section 2254, a district court shall issue
a writ of habeas corpus to an individual in state custody “only
on the ground that he is in custody in violation of the
Constitution or law or treaties of the United States.”
U.S.C. § 2254(a).
28
A district court may only issue such a writ
if the state court 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 evidence presented in the State court proceeding.”
28 U.S.C.
§ 2254(d); see also Lindstadt v. Keane, 239 F.3d 191, 198 (2d
Cir. 2001).
In reviewing the instant petition, the court is
mindful that Mr. Gordon is proceeding pro se, and thus reviews
his petition “with a lenient eye.”
Williams v. Kullman, 722
F.2d 1048, 1050 (2d Cir. 1983); see also Erickson v. Pardus, 551
U.S. 89, 94 (2007) (“A document filed pro se is ‘to be liberally
construed,’ and a ‘pro se complaint, however inartfully pleaded,
must be held to less stringent standards than formal pleadings
drafted by lawyers.’”) (quoting Estelle v. Gamble, 429 U.S. 97,
106 (1976)).
Therefore, the Court interprets Mr. Gordon’s
petition as raising the strongest arguments it suggests.
16
Harris
Case 1:16-cv-05280-KAM Document 14 Filed 08/05/20 Page 17 of 36 PageID #: 816
v. Mills, 572 F.3d 66, 72 (2d Cir. 2009); see also Martin v.
United States, 834 F. Supp. 2d 115, 119 (E.D.N.Y. 2011) (citing
Williams, 722 F.2d at 1050).
Discussion
I.
Grounds One and Two: Ineffective Assistance of Counsel
Mr. Gordon asserts two ineffective assistance of
counsel claims in his habeas petition: (1) ineffective
assistance of counsel in connection with the withdrawal of his
motion to testify before the grand jury, and (2) ineffective
assistance of trial counsel during plea negotiations and in
preparation for trial.
(Pet. at 7-8.)
For the reasons below,
both claims are respectfully denied.
A. Legal Standard
A “defendant’s Sixth Amendment right to counsel
attaches at all critical stages in the proceedings after the
initiation of formal charges, which has been held to include
plea negotiations.”
United States v. Gordon, 156 F.3d 376, 379
(2d Cir. 1998) (quotation omitted).
In reviewing an ineffective assistance of counsel
claim, courts must apply the “highly demanding” standard set
forth in Strickland v. Washington, 466 U.S. 688 (1984).
Kimmelman v. Morrison, 477 U.S. 365, 382 (1986).
See
The court
“must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance,”
17
Case 1:16-cv-05280-KAM Document 14 Filed 08/05/20 Page 18 of 36 PageID #: 817
and “[j]udicial scrutiny of counsel’s performance must be highly
deferential.”
Strickland, 466 U.S. at 89; see also United
States v. Cohen, 427 F.3d 164, 167 (2d Cir. 2005).
Under Strickland’s two-prong test for ineffective
assistance of counsel, habeas petitioners must demonstrate (1)
that “counsel’s representation fell below an objective standard
of reasonableness,” and (2) that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”
Strickland, 466 U.S. at 688, 703.
If a petitioner fails to meet
one prong, the court need not consider the other, and “where ‘it
is easier to dispose of an ineffectiveness claim on the ground
of lack of sufficient prejudice . . . that course should be
followed.’”
Parker v. Ercole, 666 F.3d 830, 834 (2d Cir. 2012)
(quoting Strickland, 466 U.S. at 697).
To satisfy the first prong of the Strickland test,
petitioners are required to demonstrate “that counsel made
errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Strickland, 466 at 687.
To satisfy the second prong,
petitioners must establish that there is a “reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would be different.”
Taylor, 529 U.S. 362, 391 (2000).
18
Williams v.
A petitioner does not satisfy
Case 1:16-cv-05280-KAM Document 14 Filed 08/05/20 Page 19 of 36 PageID #: 818
the prejudice prong by merely showing that counsel’s errors had
“some conceivable effect,” but “a [petitioner] need not show
that counsel’s deficient conduct more likely than not altered
the outcome in the case.”
Strickland, 466 U.S. at 693.
Further, “[w]hen a federal court reviews a state court
decision under [Section] 2254, ‘the question is not whether a
federal court believes the state court’s determination under the
Strickland standard was incorrect but whether that determination
was unreasonable-a substantially higher threshold.’”
Rosario v.
Ercole, 601 F.3d 118, 123 (2d Cir. 2010) (quoting Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009)).
The petitioner “must
overcome a separate hurdle on his complaints about counsel’s
performance at . . . trial, because the state court specifically
determined counsel was not ineffective under Strickland.”
Bonds
v. Keyser, 2020 WL 1550575, at *14 (E.D.N.Y. Mar. 31, 2020).
“[A] federal habeas court may not issue the writ
simply because that court concludes in its independent judgement
that the state-court decision applied Strickland incorrectly.”
Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (citing Bell v.
Cone, 535 U.S. 685, 698-699 (2002)).
A habeas petitioner has
the “burden to show that the state court applied Strickland to
the facts in an objectively unreasonable manner, which is
‘different from an incorrect application of federal law.’”
(quoting Williams v. Taylor, 529 U.S. 362, 410 (2000)).
19
The
Id.
Case 1:16-cv-05280-KAM Document 14 Filed 08/05/20 Page 20 of 36 PageID #: 819
standard created by Strickland and the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”) are both highly
deferential, and “when the two apply in tandem, review is
‘doubly’ so.”
Harrington v. Richter, 562 U.S. 86, 105 (2011)
(quoting Knowles, 556 U.S. at 123).
“[T]he question is not
whether counsel’s actions were reasonable,” but rather “whether
there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.”
Id.
Even if the state court does not explain its decision,
the petitioner still bears the burden of showing that “there was
no reasonable basis for the state court to deny relief.”
Jean
v. Greene, 523 F. App’x 744, 747 (2d Cir. 2013) (quoting
Harrington, 562 U.S. at 99).
Therefore, a “federal court might
agree with a petitioner that the relevant federal law should
have been interpreted differently than the way it was
interpreted by the state court yet still conclude that the state
court’s application of the federal law was reasonable.”
Dunlap
v. Burge, 583 F.3d 160, 165 (2d Cir. 2009) (citing Price v.
Vincent, 538 U.S. 634, 641 (2003)).
B. Failure to Exhaust
Respondent contends that one of Mr. Gordon’s grounds
for ineffective assistance of counsel, based on trial counsel
electing to go to trial “three days” after he was appointed, was
not raised in Mr. Gordon’s appellate briefs, and should be
20
Case 1:16-cv-05280-KAM Document 14 Filed 08/05/20 Page 21 of 36 PageID #: 820
denied on the ground that it was not exhausted in state court.
(Opp. at 7-8.)
Respondent is correct that Mr. Gordon did not exhaust
the claim for ineffective assistance of counsel for proceeding
to trial, because he did not raise it in his petition to the
Court of Appeals.
Appeal, at 2-3.)
(See ECF No. 6-11, Request for Leave to
“Because the exhaustion doctrine is designed
to give the state courts a full and fair opportunity to resolve
federal constitutional claims before those claims are presented
to the federal courts, . . . state prisoners must give the state
courts one full opportunity to resolve any constitutional issues
by invoking one complete round of the State’s established
appellate review process.”
O’Sullivan v. Boerckel, 526 U.S.
838, 845 (1999).
Accordingly, Mr. Gordon’s claim for ineffective
assistance of counsel, based on his trial counsel’s decision to
proceed to trial in a short amount of time, is procedurally
barred.
Nonetheless, the court will briefly address the merits
of this ground below, along with his other asserted grounds for
ineffective assistance of counsel.
C. Ground One: Ineffective Assistance of Counsel During
Arraignment
Mr. Gordon asserts that during arraignment, his
counsel, Mr. Reuland, rendered ineffective assistance of counsel
21
Case 1:16-cv-05280-KAM Document 14 Filed 08/05/20 Page 22 of 36 PageID #: 821
by withdrawing Mr. Gordon’s timely request to testify before the
grand jury.
(Pet. at 7.)
This claim is without merit.
As an initial matter, the Appellate Division
adjudicated this claim on the merits, holding that Mr. Gordon
had “not established that his attorney’s failure to effectuate
his appearance before the grand jury constituted ineffective
assistance of counsel under the circumstances of the case.”
Gordon, 132 A.D. at 905.
Therefore, this court considers this
claim under the “doubly” deferential standard set forth by the
AEDPA in tandem with Strickland.
Harrington, 562 U.S. at 105.
Mr. Gordon is unable to demonstrate any prejudice from
the decision to withdraw his request to testify because “[a]ny
prejudice suffered by petitioner was rendered harmless by his
conviction at trial by the petit jury, which assessed his guilt
under a heightened standard of proof.”
Turner v. Fischer, 2003
WL 22284177, at *6 (E.D.N.Y. Aug. 20, 2003) (citing Lopez v.
Riley, 865 F.2d 30, 32 (2d Cir. 1989)).
It is well established
that, even if there were a defect in a grand jury’s indictment,
that defect was cured when a defendant is subsequently found
guilty beyond a reasonable doubt by a jury.
See United States
v. Mechanik, 475 U.S. 66, 67 (1986) (“The petit jury’s verdict
of guilty beyond a reasonable doubt demonstrates a fortiori that
there was probable cause to charge the defendants with the
offenses for which they were convicted.
22
Therefore, the
Case 1:16-cv-05280-KAM Document 14 Filed 08/05/20 Page 23 of 36 PageID #: 822
convictions must stand despite the rule violation.”); Bingham v.
Duncan, 2003 WL 21360084, at *4 (S.D.N.Y. June 12, 2003) (“Given
that any defect in the grand jury proceeding was cured by
petitioner’s subsequent conviction . . . ‘it necessarily follows
as a matter of law that petitioner cannot establish that any
errors made by his trial counsel with respect to the grand jury
proceeding prejudiced him, thereby foreclosing the possibility
of a Sixth Amendment violation.’”).
Further, there is “no federally-cognizable ineffective
assistance claim concerning advice regarding the state grand
jury process.”
Motalvo v. Annetts, 2003 WL 22962504, at *24
(S.D.N.Y. Dec. 17, 2003); see also Sanchez v. Colvin, 2016 WL
5930150, at *21 n.41 (S.D.N.Y. Oct. 7, 2016) (“Moreover,
[petitioner’s] claim that [counsel] was ineffective because she
waived his right to testify at the grand jury is not cognizable
on federal habeas review.”).
Mr. Gordon’s claim fails to show prejudice, and in any
event is not cognizable on federal habeas review.
The claim is,
therefore, respectfully denied.
D. Ground Two: Ineffective Assistance of Trial Counsel
Mr. Gordon asserts that his trial counsel, Mr.
Smallman, rendered ineffective assistance by failing to advise
Mr. Gordon of a plea or offering any professional advice on a
plea, and by electing to proceed to trial with only “three days”
23
Case 1:16-cv-05280-KAM Document 14 Filed 08/05/20 Page 24 of 36 PageID #: 823
to prepare.
(Pet. at 8.)
As discussed above, his claim that
trial counsel had insufficient time to prepare was not exhausted
in state court.
Further, both of Mr. Gordon’s assertions
regarding Mr. Smallman are unsupported by the record and are
unavailing.
The court first considers Mr. Gordon’s assertion that
Mr. Smallman rendered ineffective assistance by electing to
proceed to trial “three days” after his appointment.
While not
clear in his petition, Mr. Gordon’s reply brief cites United
States v. Cronic, 466 U.S. 648 (1984), which implies that his
argument is that the state court constructively denied his right
to effective assistance of counsel by only providing Mr.
Smallman limited time to prepare a defense.
(ECF No. 9-1, Reply
Brief, at 6.)
In Cronic, the Supreme Court did not create a per se
rule that a court constructively denies effective assistance
with a late appointment of counsel, but rather held that “only
when surrounding circumstances justify a presumption of
ineffectiveness can a Sixth Amendment claim be sufficient
without inquiry into counsel’s actual performance at trial.”
466 U.S. at 661-62.
“Cronic instructed that a presumption of
prejudice would be in order in circumstances that are so likely
to prejudice the accused that the cost of litigating their
effect in a particular case is unjustified.”
24
Florida v. Nixon,
Case 1:16-cv-05280-KAM Document 14 Filed 08/05/20 Page 25 of 36 PageID #: 824
543 U.S. 175, 190 (2004) (quotation omitted); see also Nunez v.
Miller, 2001 WL 1773731, at *5 (E.D.N.Y. July 12, 2001) (“Cronic
did not hold that prejudice may be presumed simply because []
errors were made by counsel during the course of trial.
On the
contrary, Cronic made clear that prejudice will be presumed only
in the most exceptional cases.”)
The court finds that Mr. Smallman’s appointment is not
an “exceptional case[]” of constructive denial of counsel.
“Constructive denials of counsel include counsel’s total or
near-total derelictions in representation.”
Restrepo v. Kelly,
178 F.3d 634, 639 (2d Cir. 1999) (collecting cases).
Examples
include filing a cursory five-page brief on appeal, Jenkins v.
Coombe, 821 F.2d 158, 161 (2d Cir. 1987), and sleeping through
trial, Tippins v. Walker, 77 F.3d 682, 686 (2d Cir. 1996).
The court appointed Mr. Smallman as counsel after Mr.
Gordon made clear that he was unhappy with his attorney, Mr.
Goldberg. 6
(March 6, 2012 Proceeding at 9-10, 24-26.)
After his
appointment, Mr. Smallman stated that he was “comfortable” with
representing Mr. Gordon and that he was “fine” with proceeding
to trial the following week.
(Id. at 25.)
Mr. Goldberg also
stated that he had briefed Mr. Smallman, and that Mr. Smallman
6
Mr. Gordon’s previous counsel, Mr. Reuland, had been relieved by Mr. Gordon
because Mr. Gordon was unhappy with his performance, and Mr. Goldberg had
been retained to replace the subsequent court-appointed attorney, Mr. Baker.
Mr. Gordon was represented by a total of five attorneys in the lead-up to
trial.
25
Case 1:16-cv-05280-KAM Document 14 Filed 08/05/20 Page 26 of 36 PageID #: 825
could “call upon [Mr. Goldberg] to confer” regarding Mr.
Gordon’s case.
(Id. at 24.)
Mr. Gordon has not pointed to any
specific error made by Mr. Smallman that was caused by the
limited time he had to prepare for trial.
The record reveals
that Mr. Smallman actively cross-examined the prosecution’s
witnesses, and moved to dismiss the indictment at the end of the
prosecution’s case.
Furthermore, Mr. Smallman did not have only “three
days,” as asserted by Mr. Gordon, to prepare for trial; rather,
Mr. Smallman was originally provided seven days from his
appointment on March 6 to prepare for trial on Tuesday, March
13, 2012.
(See id. at 25.)
Thursday, March 15, 2012.
In fact, trial did not begin until
(Trial Tr. at 1.)
It is true that
there were only three days between Mr. Smallman’s appointment on
March 6 and ADA Albanese’s plea offer before the court on March
9, 2012, but that could not have prejudiced Mr. Gordon because
three days was sufficient time for counsel to prepare to have a
discussion about the risks of rejecting a plea offer.
Considering the surrounding circumstances, the court
finds that the trial court did not constructively deny Mr.
Gordon’s right to effective counsel.
See United States v.
Smith, 982 F.2d 757, 759-63 (2d Cir. 1992) (denying claim that
the state court constructively denied the right to effective
assistance when providing less than three days to prepare for
26
Case 1:16-cv-05280-KAM Document 14 Filed 08/05/20 Page 27 of 36 PageID #: 826
revocation hearing).
Even if this ground for relief were not
procedurally barred, it is without merit.
Furthermore, Mr. Gordon’s ineffective assistance claim
regarding plea negotiations is, likewise, meritless.
Mr.
Gordon’s petition only generally asserts, without support, that
trial counsel failed to advise Mr. Gordon of a plea offer and
offer advice regarding a plea offer.
(Pet. at 8.)
The Appellate Division adjudicated this claim on the
merits and held that Mr. Gordon “failed to demonstrate that he
was deprived of the effective assistance of trial counsel based
on allegations that the attorneys who represented him did not
adequately advise him regarding the prosecution’s plea offers,”
because “[t]hat contention is refuted by the record of pretrial
proceedings in this case, which establishes that he received
meaningful representation.”
Gordon, 132 A.D. at 905.
Thus, the
state court’s decision is reviewed to determine if it involved
an unreasonable application of federal law.
In order to show prejudice during plea negotiations
where a plea offer “has been rejected because of counsel’s
deficient performance, defendants must demonstrate a reasonable
probability they would have accepted the earlier plea offer had
they been afforded effective assistance of counsel.”
Missouri
v. Frye, 566 U.S. 134, 147 (2012); see also Lafler v. Cooper,
566 U.S. 156, 164 (2012).
The Second Circuit’s “precedent
27
Case 1:16-cv-05280-KAM Document 14 Filed 08/05/20 Page 28 of 36 PageID #: 827
requires some objective evidence other than defendant’s
assertions to establish prejudice.”
Pham v. United States, 317
F.3d 178, 182 (2d Cir. 2003) (citing United States v. Gordon,
156 F.3d 376, 380-81 (2d Cir. 1988)); see also Crisci v. United
States, 108 F. App’x 25, 27 (2d Cir. 2004) (holding that
prejudice “require[s] some objective evidence other than
defendant’s self-serving assertions[.]”).
The only known plea agreement that Mr. Gordon’s trial
counsel, Mr. Smallman, would have been able to advise Mr. Gordon
on was ADA Albanese’s final offer, on March 9, 2012, of a plea
agreement stipulating to four years of incarceration.
2012 Proceeding at 3-4.)
(March 9,
ADA Albanese offered this plea
agreement in open court in the presence of Mr. Gordon, and the
trial judge further clarified the agreement’s offer to ensure
the parties understood its terms.
(Id. at 4.)
ADA Albanese
also made clear that each count carried a possible jail sentence
of “two years jail to 12 years jail,” and that the prosecution
would “be seeking consecutive time based on the defendants’
record and some other factors.”
(Id.)
Mr. Smallman rejected
this plea agreement, stating that he “had discussions with [Mr.
Gordon] since being assigned to the case,” and there had not
been “any indication at this point that [Mr. Gordon] was
interested in disposing of the matter.”
28
(Id. at 5.)
Case 1:16-cv-05280-KAM Document 14 Filed 08/05/20 Page 29 of 36 PageID #: 828
Therefore, Mr. Gordon cannot demonstrate that counsel
was deficient, or that any prejudice resulted.
The plea offer
was announced, and counsel rejected it, in the presence of Mr.
Gordon, and Mr. Gordon does not point to another plea offer that
was available to trial counsel.
Mr. Gordon’s blanket assertion
that he had not been properly advised by counsel (Pet. at 8.) is
thus unsupported.
Mr. Gordon has not provided an affidavit or
statement that he would have accepted the prosecution’s plea
offer if properly advised.
See Puglisi v. United States, 538
F.3d 209, 217 (2d Cir. 2009) (holding that district court’s
denial on a claim that petitioner would have accepted plea
agreement when petitioner failed to provide sworn testimony or a
sworn affidavit in support).
Rather, in reviewing Mr. Gordon’s
pro se appellate brief, his argument focused on his counsel’s
performance for failing to “double-down” on the desirability of
an offer, “even when the defendant appears disinterested in an
offer.”
(Pro Se Appellate Br. at 10.)
Mr. Smallman was not
required to “double-down” if Mr. Gordon stated he was not
interested in an offer.
Mr. Gordon has not shown that there was a plea offer
that was not communicated, and he cannot credibly assert that he
would have accepted a plea offer.
Consequently, the court finds
that the Appellate Division’s ruling was not an unreasonable
29
Case 1:16-cv-05280-KAM Document 14 Filed 08/05/20 Page 30 of 36 PageID #: 829
application of federal law.
Thus, Mr. Gordon’s ineffective
assistance of trial counsel claim is respectfully denied.
II.
Ground Three: Weight of the Evidence
Mr. Gordon alleges that his conviction was against the
weight of the credible evidence at trial because (1) Officer
Morales stated that he never saw drugs being passed; (2) Officer
Morales stated that he observed a black male with facial hair,
but Mr. Gordon is “very light” and at the time of arrest did not
have facial hair; (3) Mr. Gordon was “search[ed] [four] times
and [n]o drugs [were] found”; and (4) it was dark at the time of
his arrest and the picture of the area that was shown to the
jury was taken during the day. 7
(Pet. at 8.)
These grounds for
relief are without merit.
Respondent urges that Mr. Gordon’s “weight of the
evidence” claim is not cognizable on federal habeas review
because it is solely a state law claim.
(Opp. at 21.)
“It is
well established that ‘weight of the evidence’ claims are not
cognizable on federal review, given the difference between such
7
Mr. Gordon’s main appellate brief asserted similar claims and provided
arguments as to why Mr. Gordon’s conviction was against the weight of the
credible evidence at trial, including that: (1) Officer Morales’s nighttime
identification of Mr. Gordon from a distance rendered it doubtful; (2)
Officer Morales’s physical description of the seller was unreliable due to
its lack of distinctive features; (3) Officer Morales failed to “ascertain
whether the ‘objects’ allegedly exchanged for money were in fact cocaine”’
(4) the lack of photographic evidence was a failure to support testimony; and
(5) and the three prior searches of Mr. Gordon render the officer’s claim
that the fourth search found a substantial amount of drugs on Mr. Gordon’s
person “unworthy of belief.” (Main Appellate Br. at 16-25.)
30
Case 1:16-cv-05280-KAM Document 14 Filed 08/05/20 Page 31 of 36 PageID #: 830
a challenge and that of a challenge based on the sufficiency of
the evidence.”
Durden v. Greene, 492 F. Supp. 2d 414, 419
(S.D.N.Y. 2007); see also Bey v. Chappius, 2019 WL 4805401, at
*3 n.2 (E.D.N.Y. Sept. 30, 2019) (“Thus, a challenge to the
weight of the evidence concerns ‘an error of state law, for
which habeas review is not available,’ because it presents no
federal issue.”) (quoting Douglas v. Portuondo, 232 F. Sup. 2d
106, 116 (S.D.N.Y. 2002)); Gumbs v. Heath, 2013 WL 1345073, at
*11 (E.D.N.Y. Mar. 29, 2013) (“Specifically, a weight of the
evidence argument is a ‘pure state law claim’ grounded in New
York Procedure Law § 470.15(5), whereas a legal sufficiency
claim is based on ‘federal due process principles.’”) (quoting
Correa v. Duncan, 172 F. Supp. 2d 378, 381 (E.D.N.Y. 2001)).
Although weight of the evidence claims are not
cognizable on habeas review, sufficiency of the evidence claims
are.
Because Mr. Gordon is proceeding pro se, the court “must
read his submissions ‘liberally and interpret them to raise the
strongest arguments that they suggest.’”
2d at 419-20.
Durden, 492 F. Supp.
“A pro se litigant’s failure to properly label a
particular claim should not bar review of the argument where the
claim is soundly developed in all other respects,” and thus this
court will construe Mr. Gordon’s claim to be a “challenge to the
legal sufficiency of the evidence, which is cognizable upon
habeas review.”
Durden, at 420.
31
Case 1:16-cv-05280-KAM Document 14 Filed 08/05/20 Page 32 of 36 PageID #: 831
The Appellate Division construed Mr. Gordon’s
appellate brief to raise a claim of legal sufficiency, and held
that the evidence “was legally sufficient to establish the
defendant’s guilt beyond a reasonable doubt.”
A.D.3d at 904.
Gordon, 132
Thus, because Mr. Gordon’s claim was denied on
its merits in state court, the Appellate Division’s decision is
reviewed to determine whether it involved an unreasonable
application of clearly established federal law.
A court “reviewing a sufficiency of the evidence claim
in a federal habeas corpus proceeding must assess ‘whether,
after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’”
Washington v. Griffin, 2019 WL 7598584, at *8 (S.D.N.Y. Dec. 23,
2019) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979));
see also Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir. 2002).
Under Section 2254(e)(1), “a determination of a factual issues
made by a State court shall be presumed to be correct” and
petitioners “shall have the burden of rebutting the presumption
of correctness by clear and convincing evidence.”
28 U.S.C. §
2254(e)(1).
Mr. Gordon’s attacks on the factual issues at his
trial, which primarily seek to undermine the credibility of
Officer Morales and the other testifying officers, do not meet
32
Case 1:16-cv-05280-KAM Document 14 Filed 08/05/20 Page 33 of 36 PageID #: 832
the heavy burden to overcome the presumption of correctness,
because the evidence presented at trial was sufficient to
support a reasonable jury’s findings that Mr. Gordon sold
narcotics to three people, and was in the possession of
narcotics.
“Guilt beyond a reasonable doubt may be established
entirely by circumstantial evidence, and this evidence must not
be reviewed piecemeal, but rather as a whole.”
Maldonado v.
Scully, 86 F.3d 32, 35 (2d Cir. 1996) (internal citations
omitted).
Officer Morales testified that he first identified
Mr. Gordon at 7:00 p.m. from a distance of eight feet, and
witnessed a pattern of individuals who approached Mr. Gordon to
hand him money in exchange for an object from his rear waist
area.
(Trial Tr. 68-69.)
Officer Ferreira testified that he
arrested three individuals based on Officer Morales’s
descriptions, and found that all had narcotics in their
possession.
(Id. at 176-182.)
Officer Ferreira, Officer
Salamone, Officer Simon, and Sergeant Trotman all testified that
they found, or had observed the recovery of, narcotics from Mr.
Gordon’s possession. 8
(Id. at 188, 251-52, 287, 341.)
Further,
Officer Simon stated that $1,126 in cash was recovered from Mr.
Gordon’s pocket.
(Id. at 283-85.)
8
Ms. Buthorn testified that the items that were recovered from Mr. Gordon
were analyzed and tested positive for marijuana and cocaine. (Id. at 23136.)
33
Case 1:16-cv-05280-KAM Document 14 Filed 08/05/20 Page 34 of 36 PageID #: 833
Viewed in its totality, the jury had sufficient
evidence before it to conclude that Mr. Gordon sold the
narcotics found on the three individuals, and that Mr. Gordon
had narcotics in his possession.
As Mr. Gordon’s claim must be
construed as a challenge to the legal sufficiency of the
evidence, the court does not delve into assessments of the
weight of the evidence, nor does it review the credibility of
the witnesses, as that was the sole domain of the jury at trial.
Douglas, 232 F. Supp. 2d at 114 (“[Petitioner] faces a ‘very
heavy’ burden because all inferences are to be drawn in the
prosecution’s favor, and because a ‘conviction may be based upon
circumstantial evidence and inferences based upon the evidence,
and the jury is exclusively responsible for determining a
witness’ credibility.’”) (quoting United States v. Strauss, 999
F.2d 692, 696 (2d Cir. 1993)).
As there was legally sufficient evidence to support
Mr. Gordon’s conviction, the state court’s decision was not an
unreasonable application of clearly established federal law.
Thus, Mr. Gordon’s claim is respectfully denied.
III.
Ground Four: Excessive Sentence
Mr. Gordon asserts that his consecutive eight year
sentences for each of the three counts of Criminal Sale of a
Controlled Substance in the Third Degree, to run concurrently
with his sentence for one count of Criminal Possession of a
34
Case 1:16-cv-05280-KAM Document 14 Filed 08/05/20 Page 35 of 36 PageID #: 834
Controlled Substance in the Third Degree, for a total term of
imprisonment of twenty-four years, were excessive.
(Pet. at 8.)
Mr. Gordon raised this claim in his brief before the
Appellate Division.
(Main Appellate Br. at 25.)
The Appellate
Division agreed with Mr. Gordon, and ordered that the judgment
be modified “by reducing the determinate terms of imprisonment
imposed on each of the convictions from eight years to four
years.”
Gordon, 132 A.D.3d at 904-05.
As a result of the
Appellate Division’s order, Mr. Gordon’s sentence was reduced by
half, to a total term of incarceration of twelve years.
Under
New York law, a second felony drug offender convicted of a class
B felony must receive a sentence of at least two years, and the
sentence cannot exceed twelve years.
NYPL § 70.70(3)(i).
Thus,
Mr. Gordon’s revised sentence, with terms totaling twelve years,
fell within the permissible range.
“An excessive sentence claim may not provide grounds
for habeas corpus relief where a petitioner’s sentence is within
the range prescribed by state law.”
Taylor v. Connelly, 18 F.
Supp. 3d 242, 268 (E.D.N.Y. 2014); see also White v. Keane, 969
F.2d 1381, 1383 (2d Cir. 1992) (“No federal constitutional
issues is presented where, as here, the sentence is within the
range prescribed by state law.”).
As the Appellate Division
modified Mr. Gordon’s sentence to within the statutory range,
Mr. Gordon’s claim that his sentence was excessive is denied.
35
Case 1:16-cv-05280-KAM Document 14 Filed 08/05/20 Page 36 of 36 PageID #: 835
Conclusion
For the foregoing reasons, Mr. Gordon’s Section 2254
petition is DENIED and dismissed in its entirety.
Because Mr.
Gordon has not made a substantial showing of the denial of a
constitutional right, a certificate of appealability shall not
issue.
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)
(discussing certificate of appealability standard); Rules
Governing Section 2254 and 2255 Cases, Rule 11 (“The district
court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.”).
The Clerk of Court is respectfully directed to enter
judgment in favor of Respondent, serve Mr. Gordon with a copy of
this Memorandum & Order and the judgment, note service on the
docket, and close this case.
SO ORDERED.
Dated:
Brooklyn, New York
August 5, 2020
__________/s/_______________
Hon. Kiyo A. Matsumoto
United States District Judge
36
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?