Ambers v. Colvin
Filing
23
ORDER: For the reasons discussed in the attached, the petition is DENIED in its entirety. The Clerk of Court is respectfully directed to serve a copy of this Order and an appeals packet on petitioner, note service on the docket, and close the case. Ordered by Judge Kiyo A. Matsumoto on 8/9/2019. (Mazzurco, Vincent)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
NUGENE AMBERS,
Petitioner,
-against-
MEMORANDUM & ORDER
16-CV-5326 (KAM)
JOHN COLVIN, Superintendent,
Five Points Correctional Facility,
Respondent.
-----------------------------------X
KIYO A. MATSUMOTO, UNITED STATES DISTRICT JUDGE:
Pro se petitioner Nugene Ambers (“petitioner”),
currently incarcerated at Elmira Correctional Facility, 1 seeks a
writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging
his convictions of Course of Sexual Conduct Against a Child in
the First Degree, Course of Sexual Conduct Against a Child in
the Second Degree, Rape in the Second Degree, and two counts of
Endangering the Welfare of a Child, for which he was sentenced
to seventeen years’ of imprisonment by the Supreme Court of the
State of New York in Kings County.
Writ of Habeas Corpus (“Pet.”) 1.) 2
(See ECF No. 1, Petition for
For the reasons set forth
below, the petition is denied in its entirety.
When petitioner brought this action, he was incarcerated at the Five
Points Correctional Facility in the custody of Superintendent John Colvin.
(Pet. 1.) He then notified the court on January 23, 2017, that he was moved
to Elmira Correctional Facility and that a “Mr. Chappia” served as the
Superintendent to that facility. (See ECF No. 16, Letter.) Petitioner did
not move to amend the caption.
2
Citations to the petition refer to the pagination as designated by the
court’s Electronic Case Filing (“ECF”) system. All other record citations,
unless indicated otherwise, refer to original pagination.
1
BACKGROUND 3
I.
Factual Background
In 1996, petitioner met V.M., mother to three
daughters from a previous marriage, and the two began a romantic
relationship. 4
(ECF No. 12, Resp’t’s Opp’n (“Opp.”), Ex. A,
Trial Tr. (“Tr.”) 652.)
Petitioner and V.M. married in 1997
while petitioner was incarcerated for an unrelated crime.
at 653, 828, 862.)
(Id.
Upon his release in 2012, petitioner moved
in with V.M. and her daughters.
(Id. at 654, 828—30, 863.)
Two of V.M.’s daughters, S.M. and A.M., are the
victims of petitioner’s offense conduct.
(Id. at 392—94.)
Beginning in 2003, when S.M. was eleven years old and A.M. was
nine, petitioner subjected both girls to numerous instances of
sexual abuse.
(Id. at 415, 418—20, 548—52.)
Between September
2003 and August 2006, petitioner groped S.M., put his penis in
her mouth, rubbed his genitals against hers, penetrated her
vagina with his fingers, and in one instance, penetrated her
vagina with his penis.
(Id. at 415—20, 422—24, 456, 461.)
Between January 2003 and April 2007, petitioner also groped
A.M., rubbed his genitals against her, and asked A.M. to rub his
The following summary of facts and procedural history is primarily
compiled from the parties’ submissions and transcripts of petitioner’s
hearing and trial in New York State Supreme Court.
4
The victims and their relatives will be referred to by their initials
throughout this order, as they were similarly referred to in the parties’
subsequent submissions.
3
2
penis, among other acts.
(Id. at 548—49, 553, 578—81.)
Petitioner’s sexual abuse continued until S.M. was nearly
fourteen years old and A.M. was thirteen, when both girls left
home to live with their grandmother.
(Id. at 422, 425, 467,
479—83, 525, 552, 665—66.) 5
In May 2010, S.M. and A.M. told their aunt and
grandmother about petitioner’s sexual abuse.
505, 515—17, 528.)
(Id. at 667—68.)
(Id. 429, 498—99,
Petitioner was arrested on May 19, 2010.
After a police detective advised him of his
Miranda rights, petitioner gave an oral statement where he said
that he believed he had not improperly touched his stepchildren,
but he could not be sure because he had problems with drinking.
(Id. at 873—74.)
II.
Petitioner’s July 2011 Trial
A.
Trial testimony
Petitioner’s trial commenced on July 21, 2011. 6
at 14.)
(Id.
Both S.M. and A.M. testified to numerous instances of
sexual abuse perpetrated by petitioner during the period from
2003 to 2007.
(Id. at 415, 418—20, 548—52.)
This included
petitioner groping and rubbing his genitals against both girls,
asking the girls to rub his penis or watch him ejaculate, and
A.M. moved in with her grandmother about a year after S.M. had moved
out of petitioner and V.M.’s home. (Tr. 525, 552.)
6
Petitioner was represented by Paul S. Montgomery, Esq. of the Legal Aid
Society at his pre-trial hearings, trial, and sentencing. (Pet. 13.)
5
3
penetrating S.M.’s vagina with his penis.
(Id. at 415—20, 422—
24, 456, 461, 548—49, 553, 578—81.)
The prosecution also presented Dr. Jamie HoffmanRosenfeld, a child abuse pediatrician who examined the victims.
Dr. Hoffman-Rosenfeld testified that it was her opinion that the
girls presented with a history of sexual abuse, and that her
physical examination of either child did not prove or disprove
that either was sexually abused.
(Id. at 720—28, 746.)
Dr.
Hoffman-Rosenfeld’s file for S.M. showed that the girl reported
a history of “penis to her mouth, her genitalia and the buttock,
anus region.
And that the contact between penis and genitalia
caused pain and bleeding.”
(Id. at 741.)
The file for A.M.
showed that the girl reported a history of being “touched on her
breasts, her genital region and . . . buttocks over her
clothing.”
(Id. at 745.)
Dr. Hoffman-Rosenfeld testified that
the lack of physical evidence of abuse neither proved nor
disproved that sexual abuse took place, because abuse may not
lead to physical injuries or physical injuries might have healed
with time.
(Id. at 761.)
Further, Dr. Hoffman-Rosenfeld
testified she was only aware of sexually transmitted diseases
being passed onto abuse victims in about five percent of cases.
(Id. at 733.)
As part of the prosecution’s case, V.M. testified that
between 2003 and 2007, petitioner consumed about three 40-ounce
4
bottles of beer every day.
(Id. at 664—65.)
The prosecution
also presented petitioner’s statement to the police following
his arrest, where he said he had a drinking problem and consumed
at least 200 ounces of beer per day.
(Id. at 873—74.)
In this
statement, petitioner also said that he had many blackouts and
near-death experiences from drinking.
(Id. at 873.)
Petitioner testified at trial that he had never
sexually abused his step-daughters.
(Id. at 848—51.)
Instead,
petitioner believed S.M. and A.M. had fabricated charges against
him as retaliation for his strict parenting style.
(Id. at 855,
872—73.)
B.
Defense summation
At summation, defense counsel argued that S.M.’s and
A.M.’s testimony should not be believed because there was no
corroborating physical evidence of sexual abuse.
900, 902.)
(Id. at 898,
Counsel further argued that no inference supporting
abuse could be drawn from Dr. Hoffman-Rosenfeld’s testimony,
because she found no physical evidence of abuse.
01.)
(Id. at 900-
Defense counsel also argued that S.M. and A.M. were not
credible because they had not made a prompt charge against the
petitioner and had changed the dates associated with their
abuse.
(Id. at 808—09, 891, 893—98, 902.)
Instead, counsel
argued, S.M. and A.M. had fabricated the charges as retaliation
for petitioner’s strict parenting style.
5
(Id. at 884—89, 902.)
Last, counsel argued that petitioner’s drinking precluded him
from committing the alleged abuse, because he typically fell
asleep in the evening while watching television.
(Id. at 900.)
The prosecution objected twice during defense counsel’s
summation, but neither was sustained.
C.
(Id. at 892, 897.)
Prosecution’s Summation
In the prosecutor’s summation, she argued that there
was sufficient evidence to find the petitioner guilty beyond a
reasonable doubt for all charges.
(Id. at 932—33.)
Regarding
the victims’ words and demeanor at trial, she argued, “If they
were able to fake those emotions that you saw, then, I submit to
you, that they both deserve an Oscar.”
(Id. at 919.)
The
prosecutor also questioned the petitioner’s credibility,
describing him as a “two-time convicted felon, a raging drunk, a
fall-down drunk who had missed his own son’s birthday” and who
had been “five years imprisoned.”
(Id. at 911.)
She stated
that the petitioner stole S.M.’s innocence and took her
virginity.
(Id. at 917.)
The prosecutor also represented that Dr. Hoffman-
Rosenfeld’s opinion was that S.M. and A.M. had been sexually
abused, and that her opinion was supported by the victims’
medical histories.
(Id. at 931.)
The prosecutor stated, “[Dr.
Hoffman-Rosenfeld] told you that the lack of medical injury to
6
[S.M.] does not negate the fact that she was raped.”
(Id. at
931—32.)
The prosecutor further argued that the petitioner’s
drinking did not prevent him from committing sexual abuse.
at 926.)
(Id.
She stated that it was petitioner’s testimony that he
drank to “feel good” and “escape his problems.”
(Id.)
She
asked the jury, “What else would he do back then to feel good?”
(Id.)
She argued, “When people drink that much this is how they
act.”
(Id.)
During the prosecutor’s summation, defense counsel
(Id. at
objected 31 times and moved for a mistrial three times. 7
904, 906, 908—11, 914—16, 918—19, 921—22, 925—27, 930—32.)
Defense counsel objected twelve times to the prosecutor’s
statements about witness credibility, five of which were
sustained.
(Id. at 904, 910—11, 915—16, 919, 921—22.)
Defense
counsel also objected twice and once moved for a mistrial in
response to the prosecutor’s statements characterizing Dr.
Hoffman-Rosenfeld’s testimony.
(Id. at 931—32.)
The judge
sustained both objections but denied the mistrial motion.
at 932.)
(Id.
Further, defense counsel objected seven times and
twice moved for a mistrial in response to the prosecutor’s
statements about petitioner’s drinking.
(Id. at 925—27.)
By the court’s accounting, petitioner’s trial counsel made 31
objections during the prosecutor’s summation, not 30 as noted by the
Appellate Division. See Ambers, 115 A.D.3d at 671.
7
7
Five
of these objections were sustained but the motions for a
mistrial were once more denied.
(Id. at 926—27.)
court instructed the prosecutor to “move on.”
The trial
(Id. at 927.)
Following the prosecutor’s summation, defense counsel
moved for a mistrial based on the cumulative effect of the
prosecutor’s statements.
(Id. at 934—35.)
Defense counsel
argued that the prosecutor’s statements about Dr. HoffmanRosenfeld’s testimony and petitioner’s drinking were not
supported by evidence in the trial record.
was also denied.
(Id. at 935.)
(Id.)
This motion
Defense counsel renewed his
motion for a mistrial prior to the judge’s charge to the jury,
which the judge did not specifically rule on.
(Id. at 934—35.)
Instead, the judge stated that he intended to address the
prosecutor’s improper summation statements in his charge to the
jury to cure any perceived harm.
D.
(Id. at 936.)
Jury Instructions
In its instructions, the trial court charged the jury
to disregard any statements that the prosecutor had made in her
summation vouching for any witness’s credibility.
(Id. at 940.)
The trial court reminded the jury that summation statements were
merely arguments and not evidence, concluding that it was solely
for the jury to determine witness credibility.
(Id. at 940—41.)
The court also instructed the jury that Dr. Hoffman-Rosenfeld
testified that for both victims, she did not find any physical
8
evidence to corroborate sexual abuse, but that the lack of such
evidence neither proved nor disproved the claims.
(Id. at 946.)
Further, the trial court instructed the jury, “contrary to the
prosecutor’s comment in her closing statement, there is no
inference that can be drawn from Dr. Hoffman’s findings in this
case.”
(Id.)
The court also instructed the jury that it could
not use the petitioner’s prior convictions as proof that he
committed the crimes that he was presently charged with, but
only to assist in evaluating his credibility.
(Id. at 947.)
Last, the trial court instructed the jury that no witness
testified that the petitioner was under the influence of alcohol
during the alleged incidents of sexual abuse, and instructed the
jury to disregard the prosecutor’s summation statements as to
this effect.
(Id. at 951—52.)
Following the jury charge,
defense counsel did not object or renew his mistrial motion.
(Id. at 967.)
E.
Verdict and Sentencing
The jury found petitioner guilty of committing one
count of a Course of Sexual Conduct Against a Child in the First
Degree, one count of a Course of Sexual Conduct Against a Child
in the Second Degree, one count of Rape in the Second Degree,
and two counts of Endangering the Welfare of a Child.
990—91.)
9
(Id. at
Prior to sentencing, defense counsel moved for the
court to set aside the jury’s verdict based on the prosecutor’s
statements during her summation, which counsel claimed violated
the petitioner’s Fourteenth Amendment rights to a fair trial.
(ECF No. 14-7, Sent. Tr. (“Sent.”) 3. 8)
Defense counsel argued
that the judge’s curative instructions during the jury’s charge
were insufficient to rectify the harm petitioner sustained as a
result of these comments.
motion.
(Id. at 3—4.)
The court denied this
(Id. at 5.)
Petitioner was sentenced on September 22, 2011, and,
as amended on December 14, 2011, is serving concurrent prison
terms totaling seventeen years of imprisonment, followed by ten
years of post-release supervision.
(Opp. 3—4.)
III. Post-Conviction Proceedings in State Court
Represented by counsel, petitioner on May 28, 2013,
appealed his conviction to the New York State Supreme Court’s
Appellate Division, Second Department.
(See generally ECF No.
14-8, Defendant-Appellant’s Main App. Br. (“App. Br.”).) 9
Petitioner challenged his conviction on the basis that he was
denied his Fourteenth Amendment due process right to a fair
The transcript of petitioner’s September 22, 2011 Sentencing begins at
page 55 of the compiled State Court record filed at ECF No. 14-7. The
following sentencing transcript citations are to pagination as designated on
the original document.
9
Petitioner was represented by Mark W. Vorkink, Esq. of Appellate
Advocates for his appeal to the New York State Supreme Court Appellate
Division, Second Department and the New York Court of Appeals. (Pet. 13.)
8
10
trial because the counts of the conviction were not supported by
legally sufficient evidence and because the prosecutor made
improper statements during voir dire and summation; and his
Sixth Amendment right to effective counsel because his trial
counsel failed to adequately object, demand curative
instructions, and make timely mistrial motions in response to
the prosecutor’s improper summation statements, as well as
failed to move to dismiss clearly time-barred misdemeanor
charges.
(Id. at 3.)
The Appellate Division affirmed the trial court’s
conviction by decision and order dated March 5, 2014.
See
People v. Ambers, 115 A.D.3d 671 (N.Y. App. Div. 2014).
The
court determined, on the merits, that the jury’s verdict was not
against the weight of evidence, the prosecutor’s statements
during voir dire were not improper, and counsel was not
ineffective for failing to make further objections or move to
dismiss clearly time-barred misdemeanor charges.
Id.
The court
also determined that petitioner’s Fourteenth Amendment claims
related to certain of the prosecutor’s statements during
summation were not properly preserved for appellate review, and
thus failed on procedural grounds.
Id.
Petitioner’s appellate counsel then sought leave to
appeal to the New York Court of Appeals on all the issues raised
at the Appellate Division.
See generally People v. Ambers, 43
11
N.E.3d 757 (N.Y. 2015) (No. 2011—10022).
The New York Court of
Appeals granted leave and then affirmed the petitioner’s
conviction by decision and order dated November 23, 2015.
id.
See
The Court of Appeals addressed petitioner’s ineffective
assistance of counsel claim for both failing to seek to dismiss
two clearly time-barred misdemeanor charges and failing to
object to some of the prosecutor’s summation statements, and
held that counsel was not ineffective.
The Court did not
Id.
address the merits of petitioner’s due process claim, though it
noted the Appellate Division had held such claim was
unpreserved.
IV.
Id. at 759.
The Instant Habeas Petition
Proceeding pro se, petitioner filed the instant habeas
petition on September 22, 2016, claiming that he was denied his
Sixth Amendment right to effective counsel where his counsel
failed to adequately object, demand curative instructions, and
make timely mistrial motions in response to the prosecutor’s
improper summation statements as well as failed to move to
dismiss clearly time-barred misdemeanor charges.
(Pet. 1—7.)
Petitioner also claimed that he was denied his Fourteenth
Amendment due process right to a fair trial when the prosecutor
made improper statements at summation.
(Id.)
Specific to his
Fourteenth Amendment claims arising from the prosecutor’s
summation statements, petitioner identified as prejudicial
12
statements vouching for witness credibility, misstating expert
testimony, and claiming that petitioner had abused his stepdaughters while intoxicated.
(Id. at 3—4.)
STANDARD OF REVIEW
A federal habeas petition brought under 28 U.S.C. §
2254 will not be granted unless the petitioner has “exhausted
the remedies available in the courts of the State.”
28 U.S.C. §
2254(b)(1)(A); see also O'Sullivan v. Boerckel, 526 U.S. 838,
845 (1999) (“[S]tate 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.”); Jackson v. Conway, 763 F.3d 115, 133 (2d Cir.
2014).
A habeas petitioner’s state remedies are considered to
have been exhausted when the petitioner has: “(i) presented the
federal constitutional claim asserted in the petition to the
highest state court (after preserving it as required by state
law in lower courts) and (ii) informed that court (and lower
courts) about both the factual and legal bases for the federal
claim.”
Ramirez v. Attorney Gen. of N.Y., 280 F.3d 87, 94 (2d
Cir. 2001); see also Bossett v. Walker, 41 F.3d 825, 828 (2d
Cir. 1994) (“To fulfill the exhaustion requirement, a petitioner
must have presented the substance of his federal claims ‘to the
highest court of the pertinent state.’” (quoting Pesina v.
Johnson, 913 F.2d 53, 54 (2d Cir. 1990))).
13
When a claim has been exhausted, the state court’s
adjudication on the merits is entitled to deference on
collateral review in federal court.
See Renico v. Lett, 559
U.S. 766, 767 (2010) (“AEDPA imposes a highly deferential
standard for evaluating state-court rulings and demands that
[they] be given the benefit of the doubt.” (internal citations
omitted)).
As such, a federal court may only grant habeas
relief when a state court’s adjudication of a federal claim
resulted in a decision that was either: (1) “contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States,” or (2) “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).
Clearly established federal law is “the governing
legal principle or principles set forth by the Supreme Court at
the time the state court renders its decision.”
Andrade, 538 U.S. 63, 71—72 (2003).
Lockyer v.
A state court’s decision is
“contrary to” clearly established Supreme Court precedent “if
the state court arrives at a conclusion opposite to that reached
by [the Supreme] Court on a question of law or if the state
court decides a case differently than [the] Court has on a set
of materially indistinguishable facts.”
Williams v. Taylor, 529
U.S. 362, 413 (2000) (O’Connor, J., concurring).
14
A state
court’s decision is an “unreasonable application” of federal law
“if the state court identifies the correct governing legal
principle from [the] Court’s decisions but unreasonably applies
that principle to the facts of the prisoner’s case.”
The
Id.
Supreme Court has emphasized a state court’s application of
federal law is to be evaluated according to objective
reasonableness rather than subjective.
Id. at 409—10; see also
Harrington v. Richter, 131 S. Ct. 770, 786—87 (2011) (“[A] state
prisoner must show that the state court's ruling on the claim
being presented in federal court was so lacking in justification
that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded
disagreement.”).
To determine whether a state court has based its
decision on an “unreasonable determination of the facts in light
of the evidence presented in the State court proceeding,” 28
U.S.C. § 2254(d)(2), the Supreme Court has looked to whether the
evidence “can fairly be read to support the [court’s] factual
determination.”
Wood v. Allen, 558 U.S. 290, 301—02 (2010).
Factual determinations are not unreasonable “merely because the
federal habeas court would have reached a different conclusion
in the first instance.”
Id. at 301.
The reviewing court might
determine that a factual determination was unreasonable, for
example, where “reasonable minds could not disagree that the
15
trial court misapprehended or misstated material aspects of the
record in making its finding,” Cardoza v. Rock, 731 F.3d 169,
178 (2d Cir. 2013) (citing Wiggins v. Smith, 539 U.S. 510, 528
(2003)), “or where the court ignored highly probative and
material evidence,”
id. (citing Miller-El v. Cockrell, 537 U.S.
322, 346 (2003)).
In reviewing a pro se habeas petition, courts should
be mindful that a “document filed pro se is to be liberally
construed, and a pro se [petition], however inartfully pleaded,
must be held to less stringent standards than formal pleadings
drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(internal citations and quotation marks omitted); see also
Williams v. Kullman, 722 F.2d 1048, 1050 (2d Cir. 1983) (“[D]ue
to the pro se petitioner’s general lack of expertise, courts
should review habeas petitions with a lenient eye[.]”).
As
such, the court must interpret petitioner’s papers as raising
the strongest arguments that they suggest.
See Walker v.
Schult, 717 F.3d 119, 124 (2d Cir. 2013).
DISCUSSION
Petitioner filed a timely habeas petition for his
claims under the one-year statute of limitations imposed by the
Antiterrorism and Effective Death Penalty Act of 1996
16
(“AEDPA”). 10
28 U.S.C. § 2244(d).
The petition is timely
because the New York Court of Appeals decided petitioner’s
appeal on November 23, 2015, Ambers did not petition for
certiorari to the United States Supreme Court, and filed this
petition on September 22, 2016.
See Ambers, 26 N.Y.3d 313
(2015); (see also Pet. 1, 3.).
Regarding petitioner’s Sixth Amendment claims of
ineffective counsel arising from defense counsel’s failure to
further object to prosecution’s summation statements and motion
to dismiss clearly time-barred misdemeanor charges, it is
undisputed that petitioner exhausted these claims in state
court.
(Opp. 39—42.)
Thus, this court need only determine
whether the state court reasonably applied clearly established
federal law when rejecting petitioner’s claims of ineffective
counsel and whether it made reasonable factual determinations
regarding these claims.
Applying federal law, this court
reviews the state court’s determination that, given the totality
of circumstances, defense counsel’s assistance was not so
ineffective that it undermined the adversarial process and
produced a result that cannot be relied upon as a just outcome.
Under AEDPA, a one—year statute
in the State’s custody seeking a writ
§2244(d). The statute of limitations
possible dates, including the date on
conclusion of direct review. Id.
10
of limitations applies to all persons
of habeas corpus. See 28 U.S.C.
runs from the latest of several
which the judgment became final by
17
Petitioner’s Fourteenth Amendment claim, however, is
not exhausted. 11
The court finds that petitioner’s Fourteenth
Amendment claim is thus barred from review on procedural
grounds, and petitioner does not argue any exception to overcome
this procedural bar.
In any event, petitioner cannot establish
cause for his procedural default, due to his failure to show
that counsel’s conduct was constitutionally defective.
Further,
petitioner cannot show prejudice resulting from the errors he
complains of, because the prosecutor’s summation statements
about witness credibility, petitioner’s drinking, and medical
evidence did not result in error that was so substantial as to
infect the entire trial to constitutional dimensions.
In his appeal to the Appellate Division, petitioner also raised
Fourteenth Amendment claims. Specifically, that his due process right to a
fair trial was violated because the jury’s verdict was against the weight of
evidence and reached by a partial jury. See Ambers, 115 A.D.3d at 671—72.
The Appellate Division rejected both claims. Id. Although petitioner has
not specifically raised these claims to this court, if he were to attempt to
do so, the claims would be procedurally barred from review, and even so,
clearly fail on the merits. The claims are procedurally barred from review
because petitioner did not subsequently raise the claims to the New York
Court of Appeals, and as such, has not exhausted state relief available to
him. See 28 U.S.C. § 2254(b)(1)(A) (“An application for a writ of habeas
corpus on behalf of a person in custody pursuant to the judgment of a State
court shall not be granted unless it appears that . . . the applicant has
exhausted the remedies available in the courts of the State.”).
Notwithstanding the procedural bar, if this court were to review the claims
on the merits, they would also fail, because as the Appellate Division found,
there was no violation during voir dire that was likely to result in a biased
jury, and there was substantial trial evidence that supported the verdict.
See Ambers, 115 A.D.3d at 671—72. Moreover, “weight of the evidence” claims
are not cognizable in federal habeas petitions. See Lewis v. Jeffers, 497
U.S. 764, 780 (1990); Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996)
(finding “[a]ssessments of the weight of the evidence or the credibility of
witnesses are for the jury and not grounds for reversal on appeal”).
11
18
I.
Petitioner’s Sixth Amendment Claim of Ineffective
Assistance of Counsel
The state court’s rejection of petitioner’s claim of
ineffective counsel was not contrary to or an unreasonable
application of clearly established federal law where counsel
failed to further object to the prosecution’s summation
statements and failed to move to dismiss clearly time-barred
misdemeanor charges.
Moreover, the court’s denial was not based
on an unreasonable determination of the facts.
The Supreme Court has held that to succeed on a Sixth
Amendment claim for ineffective assistance of counsel, a
petitioner must show that counsel’s conduct so undermined the
adversarial process that it cannot be relied upon as having
produced a just result.
668, 686—87 (1984).
See Strickland v. Washington, 466 U.S.
A reviewing court must assess “whether an
attorney’s representation amounted to incompetence under
‘prevailing professional norms,’ not whether it deviated from
best practices or most common custom.”
Id. at 692.
A reviewing
court must evaluate counsel’s conduct in light of the totality
of the circumstances that existed at the time.
Id. at 680.
In
addition, a petitioner must show that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”
694.
Id. at
A “reasonable probability” is a probability “sufficient to
19
undermine confidence in the outcome” of the trial.
Id. at 694.
It is not enough for a petitioner to show that some error or
errors had a “conceivable effect” on the outcome of proceedings.
Id. at 693.
Further, counsel is “strongly presumed” to have
rendered adequate assistance and made all significant decisions
using reasonable professional judgment.
Id. at 690.
A
reviewing court should consider that there are “countless ways
to provide effective assistance in any given case” and “even the
best criminal defense attorneys would not defend a particular
client in the same way.”
Id. at 689—80.
Reviewing courts
should likewise avoid the temptation to second-guess trial
counsel or to let the “distorting effects of hindsight” cloud
its decision.
Id. at 713.
Thus, a habeas claim asserting a
Sixth Amendment violation due to ineffective counsel must pass
two levels of deference: first, to the state court’s review of
the federal issue; and second, to the attorney’s professional
judgment.
See Harrington v. Richter, 562 U.S. 86, 99 (2011).
Moreover, counsel is afforded an especially strong
presumption of adequate assistance when making tactical
decisions.
Strickland, 466 U.S. at 689.
A petitioner must
therefore overcome the presumption that, “under the
circumstances, the challenged action ‘might be considered sound
trial strategy.’”
Id.
This is particularly true where a
20
petitioner’s claim arises solely from the trial record, i.e.,
where petitioner presents no evidence probative of counsel’s
conduct outside of court proceedings.
540 U.S. 1, 5 (2003).
See Yarborough v. Gentry,
In such cases, the reviewing court “may
have no way of knowing whether a seemingly unusual or misguided
action by counsel had a sound strategic motive,” and the
presumption is that the decision-making was sound.
Id. at 5—6
(citation omitted).
Where, as here, an ineffective assistance claim is
primarily based on counsel’s failure to object and to move to
dismiss time-barred claims, the presumption that counsel acted
with sound strategic rationale applies.
The decision to object
is primarily a strategic and tactical decision and is only
rarely the basis of a successful Sixth Amendment challenge.
See
Brown v. Artuz, 124 F.3d 73, 77 (2d Cir. 1997) (describing the
decision to object as primarily a matter of trial strategy and
tactics); United States v. Gaskin, 364 F.3d 438, 468 (2d Cir.
2004) (describing counsel’s decision to object as “virtually
unchallengeable” absent exceptional grounds for doing so); see
also United States v. Luciano, 158 F.3d 665, 660 (2d Cir. 1998)
(noting that appellate courts are “ill-suited to second-guess”
strategic decisions by trial counsel “unless there is no
strategic or tactical justification for the course taken”).
21
Further, the New York Court of Appeals has held that
it may be reasonable strategy for a defense attorney not to seek
dismissal of a time-barred lesser charge in order to provide the
jury the opportunity to render a compromise verdict when faced
with a multiple-count indictment.
See People v. Evans, 16
N.Y.3d 571, 575 (2011) (“[I]n many cases a defendant who thinks
his chances of acquittal are small may welcome giving the jury
an opportunity to consider a lesser charge.”); see also People
v. Satterfield, 66 N.Y.2d 796, 836 (1985).
A.
Counsel’s Failure to Further Object to the
Prosecution’s Summation Statements
Petitioner’s first basis for claiming that he received
ineffective assistance of counsel is that his trial counsel,
after objecting 31 times, failed to further object during the
prosecutor’s summation statement.
Pet’r’s Reply (“Reply") 4-5.)
(Pet. 3—4; ECF No. 22,
Based on the trial record, this
court agrees with the Court of Appeals’ finding that while “many
of the prosecutor’s statements were objectionable, defense
counsel’s failure to object to certain comments did not render
him ineffective.”
Ambers, 26 N.Y.3d at 320.
Moreover, this
court finds that petitioner has failed to show that, but for the
claimed errors by counsel, the results of the proceeding would
have been different.
In addition, the court agrees with the
Court of Appeals’ determination that viewing the trial as a
22
whole, counsel inarguably provided petitioner meaningful
representation.
Ambers, 26 N.Y.3d at 320.
Counsel rendered reasonable professional assistance
during the prosecution’s summation.
As the Appellate Division
recognized, “[d]uring the prosecutor’s summation, defense
counsel lodged 30 objections, 15 of which were sustained.”
Ambers, 115 A.D.3d at 671. 12
These objections clearly targeted
the prosecutor’s improper statements during summation concerning
witness credibility, petitioner’s drinking, and Dr. HoffmanRosenfeld’s testimony, and successfully abated any harmful
effect.
(See, e.g., Tr. 904, 906, 908—11, 914—16, 918—19, 921—
22, 925—27, 930—32.)
More than twenty of defense counsel’s
objections were in response to the prosecutor’s statements
concerning witness credibility or misstatements about evidence
in the record, twelve of which were sustained.
(See, e.g., Id.
at 904, 910—11, 915—16, 919, 921—22, 931—32, 925—27.)
As such,
petitioner has not overcome Strickland’s strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance.
486 U.S. at 689.
Further, counsel’s choice not to further object to the
prosecutor’s statements about witness credibility, petitioner’s
drinking, or Dr. Hoffman-Rosenfeld’s testimony reflects a
Petitioner’s trial counsel made 31 objections during the prosecutor’s
summation, not 30 as noted by the Appellate Division. See Ambers, 115 A.D.3d
at 671; (Tr. 904, 906, 908—11, 914—16, 918—19, 921—22, 925—27, 930—32.)
12
23
reasonable professional judgment that additional objections
would belabor the point or waste time and thus turn the jury
against his client or earn the judge’s ire or rebuke.
Counsel
could have reasonably decided that a mistrial motion or a
request for curative jury instructions would be more effective
in curing the prosecutor’s remarks.
See United States v.
Daniels, 558 F.2d 122, 127 (2d Cir. 1977) (“The decision [of]
whether to object to an arguably improper remark [made in a
prosecutor’s summation] or to wait and attack it in the defense
summation was strictly a matter of tactics.”).
Indeed, the
record indicates counsel’s dozens of objections were not
effective in stopping the prosecutor’s approach.
Further,
defense counsel did in fact move for a mistrial several times
and received additional curative jury instructions, suggesting
that counsel pursued this strategy to cure any residual
prejudice from the prosecutor’s remarks.
(Tr. 934—35; Sent. 3.)
Thus, and as noted by the Appellate Division, petitioner has not
disproven the absence of a strategic rationale for counsel’s
behavior, and has no colorable claim.
Ambers, 115 A.D.3d at
671.
In addition, the prosecutor’s comments that defense
counsel did not object to were not so flagrant or improper that
they would have undermined the adversarial process or amounted
to incompetence under prevailing professional norms.
24
See
Strickland, 466 U.S. at 686—87, 692.
The prosecutor’s statement
that S.M. and A.M. had their virginity taken from them reflected
record testimony, as did the prosecutor’s statement that
petitioner was a two-time felon.
(Tr. 904, 911.)
Regarding the
latter point, the judge clarified in his charge to the jury that
this fact could only be used to weigh witness credibility, not
to establish guilt.
(Tr. 952.)
Considering Strickland's prejudice requirement and
given the nature of the evidence against petitioner there is no
reason to believe that had counsel made even more objections
during the prosecutor’s summation that the trial result would
have been different.
See Strickland, 466 U.S. at 689; see also,
e.g., United States v. Simmons, 923 F.2d 934, 956 (2d Cir. 1991)
(“[G]iven the plethora of evidence against [defendant], there is
little reason to believe that alternative counsel would have
fared any better.”).
At the time of the prosecutor’s summation,
the jury had heard from both victims and their mother, the aunt
and grandmother to whom S.M. and A.M. reported the sexual abuse,
the police detective who took petitioner’s statement, and the
prosecutor’s expert witnesses.
697 719, 767.)
(Tr. 406, 513, 523, 540, 650,
Moreover, as the Court of Appeals recognized,
the trial court’s charge to the jury was effective in curing any
remaining prejudice to petitioner.
Ambers, 26 N.Y.3d at 320.
The court’s charge was specific: it identified the prosecutor’s
25
improper statements.
(Tr. 940—41, 946—47, 951—52.)
And the
charge was clear and unequivocal in what treatment the jury
should give to these remarks.
(Id.)
Thus, petitioner has not
shown that, but for counsel’s alleged professional errors, the
result of the proceeding would have been different, failing
Strickland’s prejudice requirement.
Furthermore, this court agrees with the Court of
Appeals that, based on the trial testimony, it is clear that
counsel’s representation as a whole showed him to be a
knowledgeable and zealous advocate.
Ambers, 26 N.Y.3d at 320.
Counsel requested a pre-trial hearing to avoid any propensity
arguments about petitioner’s previous criminal history; was
effective during cross examination of the prosecution’s
witnesses; presented an expert witness to rebut the victims’
credibility due to delayed disclosure of sexual abuse; moved for
a mistrial several times; and argued for a reduced sentence for
petitioner.
Id.
In rejecting petitioner’s Sixth Amendment claim, the
state court did not come to a decision contrary to federal law,
unreasonably apply federal law, or make unreasonable factual
determinations based on evidence in the state court proceeding.
New York’s meaningful representation standard is not
“diametrically different, opposite in character or nature, or
mutually opposed” to Strickland.
26
See generally Rosario v.
Ercole, 601 F.3d 118 (2d Cir. 2010); Lindstadt v. Keane, 239
F.3d 191 (2d Cir. 2001). In addition, the Court of Appeals
specifically cited Strickland, the relevant and applicable
federal case law, and relevant New York cases.
N.Y.3d at 317.
See Ambers, 26
Moreover, the state court properly applied the
relevant authority and did not reach a decision contrary to a
“materially indistinguishable” Supreme Court case.
Williams, 529 U.S. at 413.
See
In light of the extensive efforts by
defense counsel to object during summation, his knowledgeable
and zealous advocacy throughout trial, and the strong,
unrebutted presumption that counsel’s tactical decisions were
made with reasonable professional judgment, the state court’s
conclusion is a reasonable application of clearly established
federal law.
B.
Counsel’s Failure to Bring a Motion to Dismiss
Cleary Time-barred Misdemeanor Claims
Petitioner’s second basis for claiming that he
received ineffective counsel is that his trial attorney failed
to move to dismiss two clearly time-barred misdemeanor charges
for Endangering the Welfare of a Child. 13
(Pet. 3—4; Reply 8-
As noted by the Court of Appeals, the statute of limitations for the
class of misdemeanors at issue was two years. See N.Y. Penal Law §
260.10(1); N.Y. Crim. Proc. Law § 30.10(2)(c). The criminal complaint
alleged the abuse against S.M. took place between September 1, 2003 and
August 30, 2006 and against A.M. between April 7, 1999 and April 6, 2007.
Thus, the statute of limitations expired on August 30, 2008 and May 20, 2010,
respectively. Accordingly, both charges were time-barred. See Ambers, 26
N.Y.3d at 313 n.1.
13
27
11.)
Based on the trial testimony, and a lack of extrinsic
evidence, this court agrees with the Appellate Division and
Court of Appeals’ consistent findings that it may have been
counsel’s reasonable strategy to retain the time-barred
misdemeanor charges to encourage the jury to reach a compromise
verdict.
Ambers, 115 A.D.3d at 671; 26 N.Y.3d at 320.
Further,
the court finds that petitioner has failed to show that but for
the claimed error by counsel, the results of the proceeding
would have been different.
The court also agrees with the
Court of Appeals’ ultimate determination that, viewing the trial
as a whole, counsel provided petitioner meaningful
representation.
Ambers, 26 N.Y.3d at 320.
Both the Appellate Division and Court of Appeals
recognized that defense counsel’s strategy to retain the timebarred misdemeanor charges may have been intended to encourage
the jury to reach a compromise verdict.
at 671; 26 N.Y.3d at 320.
See Ambers, 115 A.D.3d
In contrast to the Court of Appeals
decision in People v. Turner, here, defense counsel made no
clear statement that he opposed a compromise verdict.
N.Y.3d 476, 806.
See 5
Rather, the trial record is bereft of any
mention that the child endangerment charges are time-barred.
Instead, counsel’s emphasis on petitioner’s strict parenting
style during his opening statement, direct examination of the
petitioner, and summation statement supports the theory that
28
counsel may have welcomed a compromise verdict.
400, 826, 848—51, 857, 884.)
(See, e.g., Tr.
As such, petitioner has not
overcome the strong presumption that counsel’s conduct fell
within the wide range of reasonable professional performance.
486 U.S. at 689; see also People v. Rivera, 71 N.Y.2d 705, 709
(holding petitioner who failed to show “the absence of strategic
or other legitimate explanations” for counsels’ alleged
shortcoming did not have viable claim to constitutionally
ineffective counsel).
Further, as noted by the Court of Appeals, a
compromise verdict would have been in petitioner’s best
interest.
Ambers, 26 N.Y.3d at 320.
If convicted of the
misdemeanors alone, petitioner would have served no additional
prison time.
Id.
And, given the overwhelming weight of the
evidence presented at trial and outlined above, and the serious
nature of the charges, it was unlikely that a jury would not
convict petitioner of any crime.
Id.
Thus, defense counsel may
have strategically attempted to keep the lesser misdemeanor
charges in the trial to avoid the jury convicting petitioner of
the more serious felony charges of second-degree rape and firstand second-degree course of sexual conduct.
Ambers, 26 N.Y.3d
at 320; see also Evans, 16 N.Y.3d at 925 (holding that it may be
a reasonable strategy for a defense attorney not to seek
dismissal of a time-barred lesser charge in order to provide the
29
jury the opportunity to render a compromise verdict where there
was a multiple-count indictment).
Such a strategy would have
been well within the range of reasonable professional conduct.
As to Strickland’s prejudice requirement, and as noted
by the Court of Appeals, petitioner has failed to show that he
was harmed by counsel’s failure to dismiss the time-barred
misdemeanor charges.
Instead, this court agrees with the Court
of Appeals that no additional negative testimony against
petitioner entered into trial as a result of counsel’s failure
to dismiss the misdemeanor charges, as the same testimony would
have been admitted for the purposes of proving the felony
charges against petitioner.
Ambers, 26 N.Y.3d at 320.
Further,
petitioner did not stand to serve any additional jail time if he
were convicted of the misdemeanor charges either on their own or
in combination with greater charges.
Id.
In the former case,
petitioner would have already served the requisite jail time,
and in the latter case, any time for the misdemeanor charges
would be served concurrently with the felony charges.
Id.
In rejecting petitioner’s Sixth Amendment claims, the
state court did not come to a decision contrary to federal law,
unreasonably apply federal law, or make an unreasonable factual
determination based on evidence in the state court proceeding.
New York’s meaningful representation standard is coextensive
with the Strickland standard, and the Court of Appeals applied
30
the proper rule in its analysis.
See generally Rosario, 601
F.3d 118; see also Ambers, 26 N.Y.3d at 317.
Further, the
court’s conclusion is not opposed to any Supreme Court case
decided on “materially indistinguishable” facts.
529 U.S. at 413.
See Williams,
Thus, in light of the inarguable benefit to
petitioner of potentially receiving a compromise verdict, and no
clear statement that this strategy was not counsel’s intention,
petitioner has not overcome the strong presumption that he
received adequate assistance.
Further, petitioner suffered no
apparent harm from retention of these lesser charges.
The state
court’s conclusion is a reasonable application of clearly
established federal law.
Thus, this court must conclude that
petitioner has failed to establish either cause or prejudice as
required by Strickland and denies the petition as to
petitioner’s ineffective assistance of counsel claim.
II.
Petitioner’s Fourteenth Amendment Claims Due to
Prosecutor’s Summation Statements
A.
Procedural Bar to Collateral Review
A federal habeas court will not review the merits of a
claim rejected by a state court if that decision “rests on a
state law ground that is independent of the federal question and
adequate to support the judgment.”
Beard v. Kindler, 558 U.S.
53 (2009) (quoting Coleman v. Thompson, 501 U.S. 722, 729
(1991)).
A state court’s application of its own procedural
31
rules is typically sufficient “adequate and independent state
grounds.”
See Harris v. Reed, 489 U.S. 255, 262 (1989);
Rosenfield v. Dunham, 820 F.2d 52, 54 (2d Cir. 1987) (“When a
state appellate court refuses to consider the merits of a
petitioner’s claims on account of his procedural failure to
preserve his rights by objection at the time, then a federal
court may not review those merits in a collateral habeas corpus
proceeding.”).
This procedural bar to collateral review applies
only when the last reasoned state court decision contains a
“plain statement” that it is relying on a state procedural rule
to decide the claim.
See Harris, 489 U.S. at 262—65.
In
addition, a state’s procedural rule is only “adequate” where it
is firmly established and regularly followed.
See Walker v.
Martin, 562 U.S. 307, 316 (2011).
Here, the Appellate Division’s decision contains a
plain statement that it was rejecting petitioner’s Fourteenth
Amendment claim as to the prosecutor’s summation on procedural
grounds.
See Ambers, 115 A.D.3d at 672 (describing claim as
“unpreserved for appellate review, as the defendant either did
not object to the remarks at issue, made only a general
objection or failed to request further curative relief or make a
timely motion for a mistrial on the specific grounds now
asserted on appeal when the trial court sustained his objections
or provided curative instructions”).
32
In addition, the Second
Circuit has held that New York’s contemporaneous objection rule
is a firmly established and regularly followed procedural rule
so long as it is not “exorbitant[ly] misapplied” and does not
impose “an extreme, novel, or unforeseeable requirement without
fair or substantial support in prior state law.”
657 F.3d 97, 102 (2d Cir. 2011).
Downs v. Lape,
Petitioner does not argue that
the Appellate Division’s conclusion that he failed to preserve
his Fourteenth Amendment claims was a misapplication of the
rule, and the court sees no reason to so conclude. 14
Petitioner
is correct that counsel in fact repeatedly objected to the
prosecutor’s suggestions that the petitioner was drunk during
offense conduct and mischaracterization of Dr. HoffmanRosenfeld’s opinion testimony.
(Reply 19; Tr. 925-26.)
Indeed,
counsel contemporaneously moved for a mistrial in the face of
the prosecutor’s inflammatory or mischaracterizing statements.
(See, e.g., Tr. 926, 927, 932, 934.)
Furthermore, at the
conclusion of summations, petitioner’s counsel indicated he
would request a mistrial based on the prosecutor’s statements,
(id. at 934-35), but the trial court responded it would “clean a
lot of that up” in its jury instructions, (id. at 936).
The
Petitioner only appears to argue that the state court’s ruling was
“based on an unreasonable determination of facts,” and that “[d]efault of a
state procedural rule is not an adequate or independent reason to deny
review” of a habeas petition. (Reply 12.)
For both these arguments,
petitioner appears to cite only to persuasive authority from other circuits
without explaining why the state court’s finding of default was an
unreasonable determination of facts or not an adequate or independent ground.
14
33
court addressed these comments, and petitioner’s concerns, in
its instructions and, upon charging the jury, asked the parties
if either had objections to the charges.
(Id. at 967.)
Neither
party lodged an objection or requested further instructions, and
petitioner’s counsel did not renew his motion for a mistrial.
(Id.)
Clearly, counsel for petitioner, when given the
opportunity, indicated approval of the court’s curative
instructions.
Thus, the state court’s determination that there
was a procedural bar to petitioner asserting his Fourteenth
Amendment claim is based on an adequate independent state
ground.
B.
Collateral Review on the Merits
An independent and adequate state ground for rejecting
a federal habeas claim will not bar federal review in all
instances, however.
A federal court may review a claim if the
petitioner can demonstrate cause for his procedural default and
resulting prejudice (“cause and prejudice”), or if he can show
that a fundamental miscarriage of justice has taken place.
See
Murray v. Carrier, 477 U.S. 478, 496 (1986).
For “cause,” a petitioner typically must show that
some objective, external factor impeded his efforts to comply
with the state’s procedural rule.
Greene, 527 U.S. 263 (1999).
See generally Strickler v.
Habeas petitioners commonly argue
trial counsel was constitutionally defective under the
34
Strickland standard.
Murray, 477 U.S. at 496.
Here, because
petitioner has failed to establish that he received
constitutionally defective counsel under Strickland, he cannot
show “cause.”
See supra Discussion, Part I.
Thus, he cannot
satisfy this requirement to overcome the procedural bar for his
Fourteenth Amendment claims.
For “prejudice,” a petitioner must demonstrate “not
merely that the errors at . . . trial created a possibility of
prejudice, but that they worked to his actual and substantial
disadvantage, infecting his entire trial with error of
constitutional dimensions.”
See Murray, 477 U.S. at 494
(quoting United States v. Frady, 456 U.S. 152, 170 (1982))
(emphasis in original).
Petitioner must also show that but for
the error, there is a reasonable probability that the outcome of
the case would have been different.
263 (1999).
See Strickler, 527 U.S. at
A court reviewing for prejudice may consider, “the
severity of the misconduct; the measures adopted to cure the
misconduct; and the certainty of conviction absent the improper
statements.”
Floyd v. Meachum, 907 F.2d 347, 355 (2d Cir. 1990)
cert. denied, 506 U.S. 1023 (1992).
Here, petitioner has not shown that prosecutor’s
statements at summation so infected his trial with error to
constitutional dimensions, nor has he established that the trial
outcome would have been different but for the prosecutor’s
35
summation.
In general, summation statements will not support a
due process violation claim.
See Gonzalez v. Sullivan, 934 F.2d
419, 424 (2d Cir. 1991) (quoting Donnelly v. DeChristoforo, 416
U.S. 637 (1974)); United States v. Parker, 903 F.2d 91, 98 (2d
Cir. 1990).
This is true even when a prosecutor’s remarks are
undesirable or even universally condemned.
Wainright, 477 U.S. 168, 181 (1986).
See Darden v.
Petitioner can merely show
that many of the prosecutor’s summation statements were
improper, not that they subjected petitioner to “substantial
disadvantage” and infected the entire trial to constitutional
dimensions.
See Tankleff v. Senkowski, 135 F.3d 235, 253 (2d
Cir. 1998) (finding prosecutor’s numerous improper summation
statements that were “short and fleeting” and corrected with the
court’s charge to the jury did not result in substantial
prejudice arising to the level of a Fourteenth Amendment
violation).
Here, the court specifically addressed any
potential prejudice to petitioner in his charge to the jury.
(Tr. 940—41, 946—47, 951—52.)
Moreover, given the overwhelming
weight of evidence against petitioner, there is little doubt
that the outcome of the trial would not have been different but
for the prosecutor’s statements.
20, 548—52, 720—28, 873—74.)
(See, e.g., id. at 415, 418—
Thus, petitioner fails to
establish prejudice, as well.
36
Alternatively, petitioner is not entitled to federal
review of the merits of his Fourteenth Amendment claim based on
a fundamental miscarriage of justice theory.
For review under
this theory, petitioner must show that a constitutional
violation has “probably resulted in the conviction of one who is
actually innocent.”
See Murray, 477 U.S. at 495—96.
“Actual
innocence” means factual innocence, not a mere legal
insufficiency of proof.
See Calderon v. Thompson, 523 U.S. 538,
559 (1998); Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002).
This exception is permitted only for the “extraordinary case.”
See Murray, 477 U.S. at 96.
Here, because petitioner has
provided no new facts or evidence that would support a claim of
actual innocence, he is not eligible for review of his
procedurally barred claim.
Thus, this court concludes that the Appellate Division
appropriately determined that petitioner’s Fourteenth Amendment
claims were procedurally barred, and New York’s contemporaneous
objection rule is an adequate and independent ground recognized
under federal law to bar collateral review.
See generally
Harris, 489 U.S. at 262—65; see also Ambers, 115 A.D.3d at 672.
And petitioner has not established any recognized exceptions to
overcome his procedural bar.
Moreover, even if he could, his
Fourteenth Amendment claims are without merit.
37
CONCLUSION
For the foregoing reasons, the petition is denied in
its entirety.
The Clerk of Court is directed to serve a copy of
this Order and an appeals packet on petitioner at his address of
record, note service on the docket, and close the case.
SO ORDERED.
Dated: Brooklyn, New York
August 9, 2019
________ /s/ ___
___
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York
38
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?