Roberts v. Griffin

Filing 37

MEMORANDUM AND ORDER, For the foregoing reasons, a writ of habeas corpus is denied, and the petition is dismissed. Since petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability shall not i ssue. See 28 U.S.C. § 2253(c)(2). The Court certifies, pursuant to 28 U.S.C. § 1915(a), that any appeal from this Memorandum and Order would not be taken in good faith and, therefore, in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438,444-45, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962). The Clerk of Court is directed to mail a copy of this Memorandum and Order to petitioner, to enter judgment accordingly, and to close this case. (Certificate of Appealability Denied re 1 Petition for Writ of Habeas Corpus) Ordered by Judge Eric N. Vitaliano on 1/28/19. c/m Fwd. for Judgment. (Galeano, Sonia)

1
•

UNITED STATES DISTRICT COURT

^JOUR] c.O.N.Y.

^ FEQU^ oriin

EASTERN DISTRICT OF NEW YORK

^

^^'9 5

X

BROOKLYN OFFICE

STEPHEN T. ROBERTS,

Petitioner,
MEMORANDUM & ORDER

-against16-CV-5970(ENV)
THOMAS GRIFFIN,

Respondent.
X

VITALIANO,D.J.

Stephen Roberts has filed a habeas corpus petition,pro se, pursuant to 28 U.S.C. § 2254.
Pet.(ECF No. 1). He was convicted by a jury, in 2011, on multiple counts stemming from an

assault on a woman and the ensuing fight with her sons. His petition raises a bushelful of attacks
on his conviction. For the reasons set forth below,the writ is denied and the petition is
dismissed.'

Petitioner has also filed a motion for summary judgment(ECF No. 33). Federal habeas

proceedings generally address solely matters oflaw. As set forth below, prisoners face a high
bar in seeking to revisit a state court's findings offact, and neither party has raised any factual
disputes here. Therefore, the motion for summary judgment is superfluous. Cf. Fed. R. Civ. P.
56(a)("The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any materialfact and the movant is entitled to judgment as a matter of law."
(emphasis added)). Moreover, at least one court in this circuit has held that "motions for
summary judgment in [a] habeas proceeding are arguably inappropriate under the Rules
Governing § 2254 Habeas Cases." Mills v. Poole, No.06-cv-842A, 2008 WL 141729, at *5
(W.D.N.Y. Jan. 14,2008);see also Smith v. New York, No. 13 Civ. 8423(NSR)
(JCM),2017
WL 3917707, at *18(S.D.N.Y. Jan. 9,2017)(citing id.), report and recommendation adopted
sub nom. Smith v. Schneiderman, No. 13 Civ. 8423(NSR),2017 WL 3917606(S.D.N.Y. Sept.

5, 2017). Consequently, the Court treats this as any other habeas petition, governed by 28
U.S.C. § 2254 rather than Rule 56 ofthe Federal Rules of Civil Procedure. The motion for
summary judgment,therefore, is denied as academic.

Background
I,

Trial

Roberts was tried in Queens County Supreme Court in March 2011 before Justice

William Erlbaum and a jury. Trial Tr.,People v. Roberts, Indict No. 218-2009(ECF Nos. 15-4
to 15-6)("Tr."). In their opening statement, the People presented a concise and reliable

summary of what the evidence would and did show. For that reason, the facts set forth here are
referenced primarily to the prosecutor's opening statement.

In January 2009, Monique Revander resided at 117-63 140th Street in Queens. Id. at
150. She lived with her son, Demetrius, and, on January 27,2009, was also visited by

Demetrius's older brother, Gerald, and her two-year-old granddaughter, Angelique. Id. Given

the multiplicity of parties ofthe same surname, first names will be used for the ease of

understanding. Monique was acquainted with petitioner through the neighborhood, id. at 153,
and had allowed him to stay with her temporarily, after he told her that the building in which he
lived had been foreclosed, id. at 239.

On January 27,2009,Parole Officer Vera Foster visited Monique's house to speak with
petitioner. Id. at 153. Demetrius urged Officer Foster to remove Roberts from his mother's

home. M at 153-54. In response. Officer Foster told petitioner to prepare to move out. Id. This

provoked an angry reaction from Roberts. He asked Monique whether she had told Officer
Foster that she wanted him out of the house. Id. at 154. When Monique said "no," Roberts

began to drink, and his anger grew. Id. At approximately 2:52 AM,Monique put on her jacket
and stepped outside to call 911. Id. She told the operator that she needed Roberts to be
removed. Id.

When Monique returned, petitioner confronted her, asking twice whether she had called

the police on him. Id. at 154, 246-47. She repeatedly answered in the negative, but Roberts was

unsatisfied. Id. at 154. He said he was sorry for what he was about to do and then picked up a
screwdriver and lunged at Monique. Id. at 154,246-48,257,286-87,293. He hit her three times
in the face, striking her temple, lip, and jaw, but Monique put up her hand to defend herself. Id.
at 155. However, petitioner would deal a laceration to Monique's left hand and a puncture

wound to her right hand. M at 155. Monique screamed throughout the attack, and her sons

dutifully rushed to her aid. Id. They wrestled with petitioner and eventually pried the
screwdriver from his hand but not before Roberts slashed Demetrius on the chest. Id. In the

course ofthe struggle, petitioner sustained some injuries, which he would later use to advance a
theory of self-defense. Id. at 155, 334-40.

As her sons struggled with Roberts, Monique ran outside and called 911 again. Id. at
294-97. Police Officers Antoinette Sylvester and Jacqueline Greene had been dispatched to

Monique's home after her first 911 call, and they arrived moments after the second call. Id. at
200-01. After speaking with Monique, id. at 201,the officers entered the home and found
Roberts, id. at 202-03, 230. Although he told the officers that he had been injured and they
called an ambulance, Roberts refused any treatment other than a bandage. Id. at 207,231-32.

He was thereafter arrested and transported to the precinct, where he once again claimed that he

was injured. Id. at 234. Petitioner was then taken to the hospital in a wheelchair. Id. at 208.
Given the ferocity ofthe attack, Monique and Demetrius were each treated at Jamaica Hospital.

Id. at 256-57. Monique testified that she had a headache for one week after the attack, id. at 299300,and that it took three weeks oftherapy before she regained use of her right hand, id. at 263.

Roberts presented a different version of events. In his account, he had a minor argument

with Monique £ifter she stepped outside her home to make a phone call. Id. at 332-33. Monique

screamed, and Demetrius jumped on him, he claimed, eventually pinning him to the ground. Id.
at 334-35. Roberts saw Demetrius wielding a screwdriver, as Monique pummeled him, and

Gerald repeatedly hit him with a chair. M at 335, 348-49. Petitioner avers that he defensively
wrestled the screwdriver from Demetrius and swung it around to protect himself, retreating
outside after he fought off his assailants. Id. at 335, 345-46.

Ultimately, the jury embraced the People's explanation ofthe evidence. They found

Roberts guilty of attempted first degree assault, second degree assault as to Monique, and third
degree criminal possession of a weapon. Id. at 482. However,they acquitted Roberts of second
degree assault as to Demetrius. Id.

Petitioner was sentenced as a persistent violent felony offender. Sentence,People v,
Roberts, Indict. No. 218-2009, at 6(Queens Cty. Sup. Ct. 2011)
(ECF No. 15-6, at 132)

("Sentence"). He received concurrent terms ofimprisonment: 16 years to life for attempted first
degree assault, 12 years to life for second degree assault, and three-and-a-halfto seven years for
criminal possession of a weapon in the third degree. Id. at 11 (ECF No. 15-6, at 137).
11.

Post-Trial Proceedings

On July 18,2012, Roberts moved,pro se, to set aside his sentence, pursuant to New York
Criminal Procedure Law § 440.20("CPL"). State Ct. R. at 320(ECF Nos. 15 to 15-3)("SR").

He argued that his adjudication as a persistent violent felony offender was unlawful because the
sentence on one of his predicate felony convictions was amended to correct an error after he
committed the offenses in this case. Id. at 1-5. He also argued that his sentence was unlawful

because the trial court improperly allowed the People to amend the indictment and because his

presentence investigation report contained erroneous details. Id. at 5-9. The trial court denied
the motion, id. at 62-65, and the Appellate Division denied leave to appeal, id. at 147.

On September 17, 2013, petitioner moved, again pro se, to vacate his convictions,

pursuant to New York CPL § 440.10. SR at 152. This time, he argued that the indictment was
multiplicitous and violated the prohibition on double jeopardy. Id. at 154-56. On a different
tack, he claimed that his trial counsel was ineffective for failing to object to tlie submission ofthe

weapons charge to the jury. Id. at 156. The trial court denied the § 440.10 motion,finding his
claims to be procedurally barred and meritless. Id. at 170-71. The Appellate Division denied
leave to appeal. Id. at 186.

Aside from an array of opportunities to collaterally attack a criminal conviction. New

York, of course, affords aggrieved defendants an opportunity to take a direct appeal from a
judgment of conviction. Represented by counsel for this purpose, Roberts appealed his
convictions and sentence to the Appellate Division, Second Department. His counseled brief

argued that(1)the evidence was legally insufficient to support the conviction of attempted first
degree assault,(2)trial counsel was ineffective for failing to request a missing witness charge,
(3)the trial court improperly amended the indictment to change the subsection under which

second degree assault was charged, and (4)sentencing him as a persistent violent felony offender

was improper. Id. at 195-235. Roberts also filed a pro se supplemental brief, reiterating several
claims from the counseled brief, and added five additional claims:(1)that the trial court

improperly permitted the People to amend the indictment to charge attempted first degree
assault,(2)that his presentence report contained incorrect information,(3)that trial counsel was
ineffective for inadequately cross-examining Monique Revander and failing to introduce

petitioner's medical records,(4)that the prosecutor vindictively sought to have him sentenced as
a persistent violent felony offender, and (5)that appellate counsel was ineffective. Id. at 236-63.
On April 10, 2015,the Second Department reversed Roberts's second degree assault conviction

but otherwise affirmed the judgment. Id. at 320-21.

Pursuing his final avenue of relief on direct appeal, petitioner sought leave to appeal to

the Court of Appeals. Id. at 322-32. However,on March 14,2016,the high court denied leave.
Id. at 344. Petitioner's motion for reconsideration was also denied, id. at 345-48, 352.

In his last attempt at relief before seeking a federal habeas remedy, Roberts filed a

petition,pro se, for a writ of certiorari from the United States Supreme Court. Id. at 374-424.
By dint ofsubstance and the numbers, unsurprisingly, on October 3,2016,the petition was
denied. Mat 425. The petition here followed on October 22,2016. Pet.
Standard of Review

Post-conviction federal habeas relief is dominated by the Anti-Terrorism and Effective

Death Penalty Act,Pub. L. No. 104-132,110 Stat. 1214(1996)("AEDPA"), which provides that
a writ of habeas corpus shall not issue with respect to any claim of a prisoner in state custody
that was adjudicated on the merits in state court unless the state court's decision(1)"was

contrary to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court ofthe United States," or(2)"was based on an unreasonable
determination ofthe facts in light ofthe evidence presented." 28 U.S.C. § 2254(d);see also
Fischer v. Smith, 780 F.3d 556, 560(2d Cir. 2015)(describing this standard as"AEDPA

deference"). Such deferential review applies whenever a state court disposes of a state prisoner's
federal claim on the merits, regardless of whether that court gives reasons for its determination or
refers to federal law in its decision. Harrington v. Richter, 562 U.S. 86,98-99,131 S. Ct. 770,

178 L. Ed. 2d 624(2011); see also Sellan v. Kuhlman,261 F.3d 303,312(2d Cir. 2001).

"Section 2254(d) reflects the view [of Congress] that habeas corpus is a guard against
extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error

correction through appeal." Harrington, 562 U.S. at 102-03 (citation and internal quotation
marks omitted). Habeas review under AEDPA "demands that state-court decisions be given the
benefit of the doubt." Hardy v. Cross, 565 U.S. 65,66,132 S. Ct. 490,181 L. Ed. 2d 468(2011)
(quoting Felkner v. Jackson,562 U.S. 594,598, 131 S. Ct. 1305, 179 L. Ed. 2d 374(2011)).

Where AEDPA deference applies,"[a] state court's findings offact are 'presumed to be correct'

unless rebutted 'by clear and convincing evidence.'" Drake v. Portuondo, 553 F.3d 230, 239(2d
Cir. 2009)(quoting 28 U.S.C. § 2254(e)(1)).

Habeas corpus jurisprudence, given these ground rules, is well-cabined. The laser sharp
focus offederal habeas review is reinforced by the mandated understanding that the required

application of"clearly established federal law" refers to the holdings, as opposed to dicta, of
Supreme Court decisions that are controlling law at the time ofthe relevant state court decision.
Williams v. Taylor, 529 U.S. 362,412, 120 S. Ct. 1495,146 L. Ed. 2d 389(2000). A state court

decision is "contrary to clearly established federal law," within the meaning of§ 2254(d), if it
contradicts relevant Supreme Court precedent or arrives at a different conclusion based on

"materially indistinguishable" facts. Id. at 405-06. A state court decision is classified as one

resting on an "unreasonable application" offederal law if it "identifies the correct governing

legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to
the facts ofthe prisoner's case." Id. at 413. Even erroneous state court decisions, then, if
deemed reasonable, will survive habeas review. Id. at 411.

At the same time, the state court decision need not be "so far off the mark as to suggest

judicial incompetence" before habeas relief may be granted. Cornell v. Kirkpatrick,665 F.3d
369, 375(2d Cir. 2011)(quoting Georgison v. Donelli, 588 F.3d 145,154(2d Cir. 2009)). It
remains true that"a federal court may reverse a state-court ruling where it was 'so lacking in

justification that there was...[no] possibility for fairminded disagreement.'" Vega v. Walsh^

669 F.3d 123, 126(2d Cir. 2012)(per curiam)(quoting Harrington, 562 U.S. at 103). Yet, it

must also be kept in mind that "[i]fthis standard is difficult to meet- and it is-that is because it
was meant to be." Burt v. Titlow, 571 U.S. 12,20,134 S. Ct. 10,187 L. Ed. 2d 348(2013)

(citation and internal quotation marks omitted).
AEDPA superimposes another potential obstacle to federal habeas relief, that is, where a
habeas claim was denied by the state court on independent state law procedural grounds. A

federal petitioner can overcome such a procedural bar only by either "show[ing] cause for failing

to [comply with the state procedural requirement] and prejudice therefrom" or "show[ing] that a
fundamental miscarriage ofjustice would result from a failure to entertain the claim."
McCleskey v. Zant,499 U.S. 467,494-95, 111 S. Ct. 1454, 113 L.Ed.2d 517(1991).

To satisfy the first requirement, i.e., to establish cause excusing the default, a petitioner
must"show that'some objective factor external to the defense impeded counsel's efforts' to
raise the claim in state court." Id. at 493 (citing Murray v. Carrier, All U.S. 478,488,106 S. Ct.

2639,91 L. Ed. 2d 397(1986)). Such "[o]bjective factors" can include "interference by officials

that makes compliance with the State's procedural rule impracticable, and a showing that the
factual or legal basis for a claim was not reasonably available to counsel." McCleskey,499 U S.
at 493-94 (citation and internal quotation marks omitted). Once cause has been demonstrated,
the petitioner must show "actual prejudice resulting from the errors of which he complains." Id.
at 494(citation and internal quotation marks omitted).

Alternatively, a petitioner can seek to meet the much higher burden ofshowing that

upholding the state court procedural bar would result in a "fundamental miscarriage ofjustice,"
but such a showing is limited to "extraordinary instances when a constitutional violation

probably has caused the conviction of one innocent of the crime." Id.
Discussion

I.

Legal Sufficiency

Roberts argues, first, that the evidence at trial was insufficient to convict him of

attempted first degree assault. Pet. at 6. He contends that the People failed "to show that[he]
intended to inflict serious physical injury or ever came close to such a result." Id. (emphasis
omitted). The state court, not addressing the contention on the merits,found that this claim was

"unpreserved for appellate review," SR at 320, citing New York's contemporaneous objection
rule, codified by CPL § 470.05(2).

Almost always, and certainly here, dispositively, a federal court may "not review a

question offederal law decided by a state court if the decision ofthat court rests on a state law
ground that is independent ofthe federal question and adequate to support the judgment."

Coleman v. Thompson^ 501 U.S. 722,729, 111 S. Ct. 2546,115 L. Ed. 2d 640(1991). The

Second Circuit has held repeatedly that failure to comply with the contemporaneous objection
rule constitutes an independent and adequate state law ground that bars federal habeas review.
See, e.g.. Downs v. Lape,657 F.3d 97,104(2d Cir. 2011)(citing Second Circuit cases).
Therefore, petitioner's legal sufficiency claim is procedurally barred.

Ofcourse, a habeas petitioner may overcome a procedural bar and obtain federal review,
but only by demonstrating either(1)"cause" for the procedural default and "prejudice" from
barring the claim, or(2)that failure to consider the claim will result in a "fundamental

miscarriage ofjustice." McCleskey,499 U.S. at 494-95. Here, petitioner has not even argued
that there was cause for his default, so the Court need not consider the question of prejudice. See

Stepney v. Lopes,760 F.2d 40,45(2d Cir. 1985); accord Dominguez v. Rock, No. 12-cv-3269

(NGG),2016 WL 542120, at *8(E.D.N.Y. Feb. 9, 2016)(quoting id.). In any event, the petition
does not contain a claim ofactual innocence, so the Court need not consider the question of

whether a fundamental miscarriage ofjustice will result. In short, petitioner's claim is
procedurally barred, and he has no excuse for his default. Therefore, the writ may not issue on
this basis.

II.

Ineffective Assistance of Trial Counsel

Second, petitioner claims that his trial counsel was ineffective for failing to(1)request a

missing witness charge with respect to Gerald Revander,(2)adequately cross-examine Monique
Revander using her grand jury testimony, and(3)obtain and make use of petitioner's hospital
records. The Appellate Division rejected this argument. See SR at 321.
a. The Strickland Standard

Federal claims of ineffective assistance of counsel are governed by the two-pronged

framework ofStrickland v. Washington,466 U.S. 668,104 S. Ct. 2052,80 L. Ed. 2d 674(1984).
"First, the defendant must show that counsel's performance was deficient

[He] must show

that counsel's representation fell below an objective standard of reasonableness." Id. at 687-88.
Courts evaluate deficiency "under prevailing professional norms," id. at 688, but must respect
"the wide latitude counsel must have in making tactical decisions," id. at 689. For this reason,

"[jjudicial scrutiny of counsel's performance must be highly deferential," and a court must
"evaluate the conduct from the counsel's perspective at the time [of the original criminal
proceeding]." Id.

If di Strickland appellant succeeds in showing that counsel's performance was deficient,

the next step in the analysis requires "that the defendant affirmatively prove prejudice." Id. at
693. He "must show that there is a reasonable probability that, but for counsel's unprofessional

10

errors, the result ofthe proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome." Id. at 694.

Strickland is highly deferential to trial coimsel, and when a federal district court reviews
a state court's determination under Strickland^ it must be doubly deferential. Given the

requirements of AEDPA,"[t]he 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.'" Knowles v. Mirzayance,556 U.S. Ill, 123,
129 S. Ct. 1411, 173 L. Ed. 2d 251 (2009)(quoting Schriro v. Landrigan,550 U.S. 465,473,127

S. Ct. 1933,167 L. Ed. 2d 836(2007)). In other words, the Court must ask "whether there is any

reasonable argument that counsel satisfied Strickland's deferential standard." Harrington,562
U.S. at 105. This rule sets a mark that Roberts cannot surpass.
b. Missing Witness Charge

Petitioner argues that counsel was deficient for failing to request a missing witness

charge in the absence of Monique's son, Gerald, who resided in Virginia. New York mandates
that, as a precondition for a missing witness instruction,"the witness must be expected to give
noncumulative testimony favorable to the party against whom the charge is sought." People v.
Savinon, 100 N.Y.2d 192,197, 761 N.Y.S.2d 144, 791 N.E.2d 401 (2003). Here, Gerald
followed Demetrius downstairs after Demetrius — who testified at trial, see Tr. at 162-96 — heard

Monique scream. Id. at 150. Gerald arrived at the scene at the same time as Demetrius and
remained with him while Monique ran out ofthe house. Id. There is absolutely nothing in the

record to suggest that Gerald's testimony would not be cumulative of Demetrius's. Petitioner
argues that Gerald "was a 'direct participant,' and as such is the only person who could have, and
should have, presented non-hearsay testimony as to his role and actions in assaulting Petitioner

11

with a chair." Pet'r's Traverse at 5(ECF No. 21)("Traverse"). Quite to the contrary of

petitioner's explanation-less conclusion, Demetrius was in an identical position as Gerald to give
a non-hearsay account of the entire incident, including Gerald's actions.
The Court need not decide whether the judge would have granted a missing witness

instruction had it been requested by Roberts's counsel. But, it is more than obvious that there is
a reasonable argument that such an instruction would not issue and that a seasoned criminal
defense lawyer would have reached that conclusion. Because it is not deficient performance to
decline to make a futile request,see United States v. Arena, 180 F.3d 380, 396(2d Cir. 1999)
("Failure to make a meritless argument does not amount to ineffective assistance."), the state

court must be found to have reasonably concluded that trial counsel was not ineffective, and
AEDPA does not permit that determination to be disturbed on habeas review.
c. Impeachment bv Grand Jurv Testimonv

Roberts next contends that counsel was ineffective for failing to use Monique's grand

jury testimony for impeachment purposes at trial. In his pro se supplemental briefto the

Appellate Division, he argued that counsel should have confronted Monique with the fact that, in
her grand jury testimony, she did not mention Gerald's presence in the apartment during the
attack. SR at 245. Even assuming that petitioner accurately characterizes Monique's grand jury

testimony, counsel's choice not to rely on that testimony was not ineffective assistance. Roberts
does not explain what motive Monique would have had to lie about Gerald's presence. It is,
frankly, hard to fathom how this inconsistency could be described as significant impeachment

evidence. In any case, moreover, decisions about the manner of cross examination are

"'strategic in nature' and generally will not support an ineffective assistance claim." Dunham v.
Travis, 313 F.3d 724,732(2d Cir. 2002)(quoting United States v. Nersesian, 824 F.2d 1294,

12

1321 (2d Cir, 1987)); accord United States v. Wilson, 146 F. Supp. 3d 472,482(E.D.N.Y. 2015).
Finally, even ifthe Court were to conclude that counsel's cross examination was deficient,

petitioner has not come close to showing prejudice. Viewed against "the totality of the
evidence," Strickland,466 U.S. at 695,the limited impeachment that could be accomplished by

use of Monique's grand jury testimony could not have exculpated Roberts. Therefore, counsel
was not ineffective.

d. Medical Records

Moving to the last arrow in this quiver, Roberts pitches the contention that counsel was
ineffective because counsel failed to obtain his hospital records and admit them into evidence.

He appears to believe that these records were necessary to support his theory of self-defense.
Pet. at 13. Presumably, petitioner's argument is that his medical records would have revealed

injuries consistent with Monique and her sons' attacking him, rather than his attacking Monique.
Ironically, the argument proves, if anything,just the opposite and supports the professional
understanding ofthe benefit of being counseled over self-representation. Overlooked by

petitioner, the trial record reflects that petitioner's la^vyer elicited testimony as to his injuries, his
medical treatment at the scene, and his subsequent trip to the hospital by ambulance, including

photographs ofthe injuries. Tr. at 336-45. Even assuming that petitioner's medical records
would have strengthened his case - which is far from clear from the bare assertions in his
briefing -the absence of those records is not "sufficient to undermine confidence in the
outcome," Strickland, 466 U.S. at 694, given the other evidence of petitioner's injuries that was

introduced. Because petitioner has not established prejudice, counsel was not constitutionally
ineffective, and the writ is denied on this ground.

13

III.

Persistent Violent Felony Offender Adjudication

Next in line, petitioner takes issue with the sentencing court's adjudication of him as a

persistent violent felony offender. He argues that one of his predicate felony convictions was

amended after he committed the subject crimes, which, he claims, renders the prior conviction an
impermissible basis for sentence enhancement. Plainly, this claim is based on the state court's

resolution of a question purely of state law and is not cognizable on federal habeas review. The
Supreme Court has squarely held that "[i]t is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions." Estelle v. McGuire^ 502 U.S. 62,

67-68,112 S. Ct. 475,116 L. Ed. 2d 385 (1991). Providing even more refined guidance, the

Second Circuit has held that "[wjhether a New York court erred in applying a New York

recidivist sentencing statute is a question of New York State law." Saracina v. Artus^ 452 F.
App'x 44,46(2d Cir. 2011)(summary order); accord Pruitt v. KirkpatricK No. 16 Civ. 2703

(IMF),2017 WL 4712225, at *3 n.2(S.D.N.Y. Oct. 18,2017)(citing id.). Therefore,
petitioner's claim affords no basis for federal relief.
IV.

Amendments to the Indictment

The petition, additionally, takes exception to what it terms the unlawful amendment of
the indictment by the trial court. These claims arise from the trial court's(1)changing the
subsection under which second degree assault was charged and(2)reducing count one ofthe
indictment from first degree assault to attempted first degree assault.

The first claim is moot, as petitioner now admits,see Traverse at 6. The Second

Department reversed his second degree assault conviction, vacated his sentence on that
conviction, and dismissed the count from the indictment. SR at 321. As a result, petitioner has
received all ofthe relief he desired, and this claim must be denied as moot. Cf., e.g., Delgado v.

14

Duncan,No. 02-cv-4929(JBW),2003 WL 23185682, at *5(E.D.N.Y. Nov. 4,2003)(denying a
habeas claim as moot when the petitioner "received relief on th[e] claim from the Appellate
Division").

His second claim is not cognizable on federal habeas review. He contends that he is
entitled to relief because the trial court allowed the People to amend the indictment without

resubmitting it to a grand jury. However,there is no federal constitutional right to a grand jury
in state criminal proceedings. Alexander v. Louisiana,425 U.S. 625,633,92 S. Ct. 1221,31 L.

Ed. 2d 536(1972); Hurtado v. California, 110 U.S. 516,538,4 S. Ct. 111,28 L. Ed. 232(1884);
LanFranco v. Murray,312 F.3d 112,118(2d Cir. 2002). For this reason, petitioner's "claim that

his right to be indicted by a grand jury was violated ... presents no federal question, and hence is
unreviewable by this Court." Parrilla v. Goord,No.02 Civ. 5443(WHP),2005 WL 1422132, at
*9(S.D.N.Y. June 20, 2005);see also 0*Halloran v. Gonyea, No. ll-cv-0346(GTS/TWD),

2015 WL 93716, at *20(N.D.N.Y. Jan. 7,2015)("The amendment of indictments is generally a
matter of state law and is not ordinarily cognizable on habeas corpus review."). Consequently,

since nothing about this claim is in derogation ofthe ordinary rule, the amendment ofthe
indictment without grand jury action does not warrant habeas relief.
V.

Presentence Report

Roberts objects that his due process rights were violated because the presentence

investigation report provided to the sentencing court contained "[ejrroneous, detrimental and

improper information." Pet. at 3. "[T]he sentencing process... must satisfy the requirements of
the Due Process Clause." Gardner v. Florida, 430 U.S. 349, 358,97 S. Ct. 1197,51 L. Ed. 2d

393(1977); accord United States v. Lee, 818 F.2d 1052,1055(2d Cir. 1987). As a consequence,
a defendant"may not be sentenced on the basis of'materially xmtrue' statements or

15

'misinformation.'" United States v. Romano,825 F.2d 725,728(2d Cir. 1987)(citing Townsend
V. Burke,334 U.S. 736,741,68 S. Ct. 1252,92 L. Ed. 1690(1948)); accord Constant v.

Martuscello, 119 F. Supp. 3d 87,133(E.D.N.Y. 2015)(citing United States v. Alexander, 860
F.2d 508, 511-12(2d Cir. 1988)). Significantly, however,"[a]lthough an error in the

[presentence] report may require resentencing, the error must amount to 'misinformation of a
constitutional magnitude.'" Castillo v. Donelly, No.06-cv-3388(SJF), 2007 WL 1395463, at *5
(E.D.N.Y. May 7,2007)(quoting United States v. Tucker,404 U.S. 443,447,92 S. Ct. 589,30
L. Ed. 2d 592(1972)). "In other words,the error must be so egregious, that if accurately

presented to the sentencing judge a different result would have been reached." Warren v. Miller,
78 F. Supp. 2d 120,131 (E.D.N.Y. 2000). This demanding standard is not satisfied by the
showing Roberts makes in this petition.

On balanced review, Roberts sets forth very little detail as to what misinformation his

presentence report allegedly contained. His supplemental state court brief refers to the "class of
charge, place of arrest, etc.," alludes to "allegations by a'Mr. Cotoy' which have been judicially
nullified," and mentions "unfair, unauthorized, unqualified allegations by a Probation Officer,

which are diagnostic and conclusory." SR 243. Despite this jumble of disagreements, though,
nothing in the record suggests that the trial judge was confused about the class of charge or the
place of arrest. Moreover, Roberts's references to the statements of his probation officer are
little more than general criticisms and do not identify anything false or misleading in the

presentence report. Out of solicitude, the Court will construe the references to "Mr. Cotoy" as an
argument that petitioner's sentence was based on a period of post-release supervision on an
earlier offense that was later found to be unlawful, resulting in modification ofthe sentence. See
SR 424.

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Notwithstanding solicitude, no error is presented, much less one that would bring Roberts
closer to federal habeas relief. The trial court made it clear at the time of sentencing that it was

aware that petitioner's earlier sentence had been modified. See Sentence at 2-3(ECF No. 15-6,

at 128-29). Moreover, petitioner's aggregate sentence of sixteen years to life was the minimum
term allowed by law for a persistent violent felony offender who committed attempted first

degree assault. See N.Y. Penal Law § 70,08(b)(3).^ Therefore, factually, the trial court did not
rely on misinformation, and,even if it had, it would not have been able to impose a more lenient
sentence had the mistake been corrected. It follows that Roberts's due process rights were not

violated, and the writ may not issue on this ground.
VI.

Vindictive Sentencing

Shifting gears, petitioner contends that the prosecutor vindictively sought to have him
sentenced as a persistent felony offender in retaliation for his rejection ofa plea bargain. To

grant relief on this ground would be to undermine the plea-bargaining process that dominates the

contemporary American criminal justice system, as well as the prosecutor's lead role in it. Cf.
Lafler v. Cooper,566 U.S. 156,170, 132 S. Ct. 1376,182 L. Ed. 2d 398(2012)("[Cjriminal

justice today is for the most part a system of pleas...."). The Supreme Court has recognized

^ Out of even greater solicitude, the Court will briefly assume without deciding that petitioner's
due process claim would allow this Court to review, as a matter offederal law, his argument
that he was improperly adjudged a persistent violent felony offender and that the claim was
fully exhausted in state court. However,the claim is meritless. The New York Court of
Appeals has held that when a defendant is resentenced to rectify the erroneous imposition of
post-release supervision, the operative date ofthe sentence, for purposes of New York's
sentence enhancement statutes, is the date on which the original sentence was imposed. People

V. Boyer,22 N.Y.3d 15, 19,977 N.Y.S.2d 731,999 N.E.2d 1167(2013). Therefore, even ifthe
judge had been misinformed about the earlier sentence and even if this Court could reevaluate
petitioner's status as a persistent violent felony offender, correcting the information before the
trial judge could not have affected the sentence imposed. It follows that due process was not
violated. See Warren,78 F. Supp. 2d at 131.

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that due process prohibits vindictive prosecution, holding that "[t]o punish a person because he

has done what the law plainly allows him to do is a due process violation ofthe most basic sort,
and for an agent ofthe State to pursue a course of action whose objective is to penalize a

person's reliance on his legal rights is patently unconstitutional." Bordenkircher v. Hayes^ 434
U.S. 357,363,98 S. Ct. 663,54 L. Ed. 2d 604(1978)(citations and internal quotation marks
omitted).

Yet, in the very same case, the Court held that "in the 'give-and-take' of plea bargaining,
there is no such element of punishment or retaliation so long as the accused is free to accept or

reject the prosecution's offer." Id. Although a "plea may have been induced by promises of a
recommendation of a lenient sentence or a reduction of charges, and thus by fear ofthe

possibility ofa greater penalty upon conviction after a trial," the Court has nonetheless "accepted
as constitutionally legitimate the simple reality tliat the prosecutor's interest at the bargaining
table is to persuade the defendant to forgo his right to plead not guilty." Id. at 364. Although

petitioner's sentence after trial was more severe than what he was offered in plea negotiations, it
does not follow that the People prosecuted him vindictively or disturbed his constitutional rights.
That Roberts received after trial a sentence heavier than the one promised had he pled will not
justify habeas relief here.
VII.

Ineffective Assistance of Appellate Counsel

Almost boilerplate in post-conviction proceedings, Roberts claims that his attorney on

direct appeal was ineffective, in this instance, for failing to assert several claims raised in his pro

se supplemental brief to the Appellate Division and repeated here in grounds five through nine.
But,the claimed ineffectiveness is unexhausted because,in derogation ofthe ordinary rule, it
was never raised in state court via a coram nobis petition or other motion. "Before a federal

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court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state
court." O'Sullivan v. Boerckel, 526 U.S. 838, 842,119 S. Ct. 1728, 144 L. Ed. 2d 1 (1999);see

also 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 grEinted unless it appears
that... the applicant has exhausted the remedies available in the courts of the State.").

Specifically, having failed to otherwise advance it, before seeking federal habeas relief,
Roberts was required to raise his claim of ineffective assistance of appellate counsel before the

Appellate Division in a coram nobis proceeding because "[i]n New York,coram nobis is the

appropriate remedy for ineffective assistance of appellate counsel," Smith v. Duncan^ 411 F.3d
340,347 n.6(2d Cir. 2005)(citing People v. Bachert,69 N.Y.2d 593, 516 N.Y.S.2d 623,509
N.E.2d 318(1987)); accord Bryant v. Graham^ No. 1 l-cv-6006(BMC),2011 WL 6329841, at
*1 (E.D.N.Y. Dec. 15, 2011); Gil v. Kelly, No. 90-cv-0603(CPS), 1992 WL 151901, at *3

(E.D.N.Y. June 16,1992)(holding that when a "[pjetitioner has never availed himself of a state

coram nobis proceeding... the state courts have not had a fair opportunity to pass on this
claim"(citing Dean v. Smith, 753 F.2d 239(2d Cir. 1985))). Having failed to pursue a coram
nobis proceeding, petitioner is not entitled to federal review ofthe claim.
Merits consideration ofthe unexhausted claim would not reach a different result. To

begin, the Strickland standard, recited above, governs ineffectiveness claims as to both trial and
appellate counsel. See Hemstreet v. Greiner, 491 F.3d 84,89(2d Cir. 2007). Roberts complains

that, because his appellate counsel submitted a brief he considers too short, counsel did not raise
the issues presented in petitioner's pro se supplemental brief. However,Strickland does not

stand for the proposition that "appellate counsel must raise every nonfrivolous issue requested by
the client." Jones v. Barnes,463 U.S. 745,750,103 S. Ct. 3308,77 L. Ed. 2d 987(1983).

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Rather, counsel may,"as a matter of professional judgment, decide[] not to press those points."
Id, at 751. Indeed,"[ejxperienced advocates since time beyond memory have emphasized the

importance of winnowing out weaker arguments on appeal and focusing on one central issue if
possible, or at most on a few key issues." Id. at 751-52. As a result, to prevail on an ineffective
assistance of appellate counsel claim, petitioner must show that his lawyer "omitted significant
and obvious issues while pursuing issues that were clearly and significantly weaker." Clark v.
Stinson, 214 F.3d 315,322(2d Cir. 2000)(quoting Mayo v. Henderson, 13 F.3d 528,533(2d
Cir. 1994)).

In fact, the one claim that succeeded before the Appellate Division was a claim that

appellate counsel chose to present: that the second degree assault count was improperly
amended. See SR at 321. Moreover, the remaining arguments advanced by appellate counsel

have been expressly adopted in petitioner's habeas petition. Courts have denied habeas relief

when petitioners "reiterate[] many ofthe same arguments made by appellate counsel on appeal."
Kollar V. Smith, No.04 Civ. 10175(NRB),2005 WL 1653883, at *10(S.D.N.Y. July 12,2005).

Finally, the other arguments that petitioner faults his appellate lawyer for failing to raise are

uniformly meritless, "Appellate counsel cannot be deemed ineffective for failing to raise a
meritless argument." Miller v. Smith, No. 05-cv-5976(ENV),2010 WL 4961666, at *12
(E.D.N.Y. Dec. 1,2010)(citing United States v. Arena, 180 F.3d 380, 396(2d Cir. 1999),

abrogated in part on other grounds,Scheidler v. Nat'I Org.for Women, Inc., 537 U.S. 393,403
n.8,123 S. Ct. 1057,154 L. Ed. 2d 991 (2003)). Because petitioner's claim is unexhausted and
meritless, relief on grounds ofineffective assistance of appellate counsel is denied.
VIII.

Double Jeopardv

Petitioner contends that the indictment was multiplicitous, violating his rights under the

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Double Jeopardy Clause. His argument rests on the fact that he was accused, in several counts of

the indictment, of possessing a weapon. The state court found this claim to be procedurally
defaulted because "it is an on the record claim which must be raised on direct appeal" and was

not so raised. SR at 171. As a result, the court found, the claim was barred, pursuant to New
York Criminal Procedure Law § 440.10(2)(b).

The Second Circuit has recognized CPL § 440.10(2)(b)to be an independent and

adequate state law ground for decision and, therefore, as a bar to federal review. Holland v.
Irvin,45 F. App'x 17,20-21 (2d Cir. 2002)(summary order); accord Gilford v. Racette, No. 13

Civ. 5881(ALC)(AJP),2015 WL 4639975, at *19 n.26(S.D.N.Y. Aug. 5,2015)(collecting

cases), report and recommendation adopted, 2015 WL 7430825(S.D.N.Y. Nov. 20,2015);Scott
V. Connolly, No. 1 l-cv-953(PKC)
(LB),2014 WL 354253, at *7(E.D.N.Y. Jan. 30,2014).

Plus, once again, petitioner has not attempted to show cause or to assert actual innocence, so the
procedural default bars review.

That said, the state court opinion referred only to the claim that criminal possession ofa

weapon in the third degree was a lesser included offense of assault in the second degree, but

petitioner also argues that the former was a lesser included offense of attempted assault in the

first degree. Therefore, but merely for the sake of argument,the Court will consider this claim
on the merits. Any review, of course, must begin with the Constitution's prohibition on double
jeopardy, which "protects persons from being punished twice for a single criminal offense."

Aparicio v. Artuz,269 F.3d 78,96(2d Cir. 2001)(citing U.S. Const, amend. V;Brown v. Ohio,
432 U.S. 161, 165,97 S. Ct. 2221,53 L. Ed. 2d 187(1977)). When a person violates multiple
criminal statutes, double jeopardy is implicated if the two statutes punish the same offense or one
offense is a lesser included offense of the other. Rutledge v. United States, 517 U.S. 292,297,

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116 S. Ct. 1241,134 L. Ed. 2d 419(1996). To evaluate double jeopardy claims, courts apply the

Blockburger test, according to which the prohibition on double jeopardy is not violated if"each
provision requires proof ofa fact which the other does not." Id.(quoting Blockburger v. United
States, 284 U.S. 299, 304,52 S. Ct. 180, 76 L. Ed. 306(1932)).

Upon review, it is evident that the prohibition was not violated because the indictment
passes the Blockburger test. Attempted first degree assault requires proof of petitioner's intent to

cause serious physical injury, a requirement absent from the other two offenses. See N.Y. Penal
Law §§ 110,120.10(1). Second degree assault requires proof of actual physical injury to the

victim, also not necessary to prove the other offenses. See N.Y.Penal Law § 120.05(2). Finally,
third degree criminal possession ofa weapon requires proofthat a defendant has previously been
convicted of a crime, an element absent from the assault charges. See N.Y. Penal Law §

265.02(1). Consequently,even assuming that petitioner's double jeopardy claim was not
procedurally defaulted, the claim is meritless and does not warrant relief.
Conclusion

For the foregoing reasons, a writ of habeas corpus is denied, and the petition is
dismissed.

Since petitioner has not made a substantial showing ofthe denial of a constitutional right,
a certificate of appealability shall not issue. See 28 U.S.C. § 2253(c)(2).
The Court certifies, pursuant to 28 U.S.C. § 1915(a), that any appeal from this
Memorandum and Order would not be taken in good faith and,therefore, informa pauperis

status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438,44445,82 S. Ct. 917,8 L. Ed. 2d 21 (1962).

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The Clerk of Court is directed to mail a copy of this Memorandum and Order to

petitioner, to enter judgment accordingly, and to close this case.
So Ordered.

Dated: Brooklyn, New York
January 28,2019

/s/ USDJ ERIC N. VITALIANO
ERICN. VITALIANO

United States District Judge

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