Taylor v. Kirkpatrick

Filing 11

ORDER denying 10 Motion to Stay and denying 1 Petition for Writ of Habeas Corpus. Consistent with the attached memorandum and order, Petitioner's habeas petition, along with his motion for a stay, is denied. I decline to issue a certificate of appealability. Ordered by Judge Edward R. Korman on 8/9/2018. (Chefitz, Jacob)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

NOT FOR PUBLICATION

DEVON TAYLOR,
Petitioner,

MEMORANDUM & ORDER

– against –
17-cv-2954 (ERK)
SUPERINTENDANT M. KIRKPATRICK,
Respondent.

Korman, J.:
In the early hours of October 1, 2009, Officer Veerana Ramayya found Petitioner Devon
Taylor riding a bike on a sidewalk in Brooklyn. A chase ensued, and at a certain point, Officer
Ramayya apparently saw Taylor toss a gun into a sewer. After a jury trial, Taylor was convicted
of criminal possession of a weapon in the second degree under N.Y. Penal Law § 265.03(1)(b),
for which he was sentenced to sixteen years to life. The Appellate Division affirmed his
conviction, see People v. Taylor, 19 N.Y.S.3d 433 (Mem) (2d Dep’t 2015), and the Court of
Appeals denied leave to appeal, see People v. Taylor, 26 N.Y.3d 1150 (2016).
Taylor now petitions for a writ of habeas corpus under 28 U.S.C. § 2254, asserting four
grounds for relief: (1) that the state failed to prove its case beyond a reasonable doubt; (2) that
the verdict was against the weight of the evidence; (3) that the prosecutor committed “flagrant
misconduct” during summation; and (4) that his trial counsel was ineffective.
DISCUSSION
I observe initially that Taylor’s ineffective-assistance claim is partially unexhausted.
Although the Appellate Division did not discuss it, Taylor did argue in his brief there, albeit
rather fleetingly, that his trial counsel was ineffective for failing to object to prosecutorial
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misconduct during summation. See Dkt. No. 6-3 at 39. However, in his habeas petition, Taylor
has broadened the scope of his ineffective-assistance claim, arguing that his trial counsel was
also ineffective for failing to object to supposedly contradictory testimony by one of the
prosecution’s key witnesses. Thus, Taylor’s ineffective-assistance claim with respect to his
lawyer’s failure to object to contradictory testimony is unexhausted.
Recognizing this problem, Taylor has moved for a stay and abeyance so he can bring his
unexhausted claim in state court via a § 440.10 motion. See Dkt. No. 10. In Rhines v. Weber, 544
U.S. 269 (2005), the Supreme Court explained that “it likely would be an abuse of discretion for
a district court to deny a stay and to dismiss a mixed petition if the petitioner had good cause for
his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no
indication that the petitioner engaged in intentionally dilatory litigation tactics.” Id. at 278. But
Rhines also cautioned that “stay and abeyance should be available only in limited
circumstances,” adding that “the district court would abuse its discretion if it were to grant [the
petitioner] a stay when his unexhausted claims are plainly meritless.” Id. at 277. Because I find
that all of Taylor’s grounds for federal relief––both the exhausted and unexhausted––are plainly
meritless, I deny his motion for a stay and abeyance, and I dismiss his petition in its entirety. See
28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits,
notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the
State.”); Wesley-Rosa v. Kaplan, 274 F. Supp. 3d 126, 128 (E.D.N.Y. 2017) (explaining that a
district court has discretion, when facing a “mixed petition,” to “deny the entire petition on the
merits” (internal quotation omitted)).
I.

The prosecution did not fail to prove its case beyond a reasonable doubt.
Taylor first argues that the prosecution failed to prove its case beyond a reasonable doubt.

The Appellate Division rejected this argument both for a procedural reason––the argument was
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unpreserved for appellate review––and on the merits. See Taylor, 19 N.Y.S.3d at 433. Because
the Appellate Division’s procedural ruling, based on N.Y. C.P.L.R. 470.05(2), is an independent
and adequate state ground for its decision, Taylor is procedurally barred from raising his
sufficiency-of-the-evidence challenge on habeas. See Whitley v. Ercole, 642 F.3d 278, 286–87
(2d Cir. 2011). That the Appellate Division also ruled, alternatively, on the merits does not
matter. See Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) (citing Harris v. Reed, 489 U.S.
255, 264 n.10 (1989)). And while Taylor’s procedural default can be excused if he “can
demonstrate cause for the default and actual prejudice as a result of the alleged violation of
federal law, or demonstrate that failure to consider the claims will result in a fundamental
miscarriage of justice,” Coleman v. Thompson, 501 U.S. 722, 750 (1991), he has not done so
here.
Regardless, Taylor’s argument fails on the merits. The Supreme Court has made clear
that, on federal habeas review, a sufficiency-of-the-evidence claim is “subject to two layers of
judicial deference.” Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam). First, “viewing
the evidence in the light most favorable to the prosecution,” Jackson v. Virginia, 443 U.S. 307,
319 (1979), “[a] reviewing court may set aside the jury’s verdict on the ground of insufficiency
of the evidence only if no rational trier of fact could have agreed with the jury,” Cavazos v.
Smith, 565 U.S. 1, 2 (2011) (per curiam). And second, “a federal court may not overturn a state
court decision rejecting a sufficiency of the evidence challenge simply because the federal court
disagrees with the state court. The federal court instead may do so only if the state court decision
was ‘objectively unreasonable.’” Id. (quoting Renico v. Lett, 559 U.S. 766, 773 (2010)).
Here, the prosecution presented at least three crucial pieces of evidence to support the
conclusion that Taylor possessed a loaded gun with the intent to use it unlawfully against another

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person: (1) the eyewitness testimony of Officer Ramayya; (2) Taylor’s admissions to a detective;
and (3) a recorded phone call that Taylor made while at Rikers.
A. Officer Ramayya’s eyewitness testimony.
At trial, Officer Ramayya testified that on October 1, 2009, around 1:35 a.m., he was
riding in an unmarked police car with Officer Rahim Morris when he saw two people riding their
bikes on the sidewalk. Trial Tr. 24:24–25:13, 27:2–6 (Dkt. No. 6-1). Those two men were Taylor
and Leroy Hatcher. Id. at 28:3–7. The officers approached, and as soon as Officer Ramayya
stepped out of the car, Taylor dropped his bike and ran. Id. at 29:13–30:11. Officer Ramayya
took off in pursuit (Officer Morris went in the opposite direction after Hatcher, id. at 127:5–6),
and, at a certain point, Officer Ramayya saw Taylor remove a gun “from his waistband area and
throw it in the sewer,” id. at 31:11–12. Eventually Officer Ramayya caught up to Taylor and
arrested him. Id. at 31:22–32:3. Another officer on scene called the Department of
Environmental Protection to scoop out the contents of the sewer, and, indeed, a black and silver
gun was found. Id. at 34:15–22, 35:7–21. Officer Ramayya testified that it was the same gun that
Taylor had thrown into the sewer. Id. at 35:24–36:1. And subsequent testimony from Detective
Stella Ardizzone, from the Police Department’s Forensic Investigation Division, established that
the gun was loaded and operable. See id. at 222:12–223:20.
B. The admissions to Detective Bartek.
The afternoon after Taylor was arrested, Detective John Bartek spoke with him. Id. at
328:15–330:4. According to his trial testimony, Detective Bartek gave Taylor “a Miranda
warning sheet,” and Taylor, after reading and initialing each individual warning, signed the
bottom of the sheet. Id. at 332:16–21. After asking Taylor whether he understood the Miranda
warnings, id. at 336:20–23, Detective Bartek began talking to Taylor, who eventually admitted to
carrying a “burner” on the night of his arrest because of “major problems from people in the past
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living in the Roosevelt Houses,” id. at 339:10–16. Detective Bartek testified that, based on his
professional experience, he understood “burner” to mean a firearm. Id. at 339:17–22. Detective
Bartek then asked him “where he got it,” and Taylor hesitated. Id. at 339:25–340:2. Deciding to
give Taylor a break from the interrogation, Detective Bartek offered him a cigarette and water,
and then stepped out of the room. Id. at 340:2–6. But before stepping out, he told Taylor “that
any information that he had on this crime or any other crimes that he may know about would
benefit him in the long run.” Id. at 342:12–16. Taylor eventually wrote a statement, in which he
“apologiz[ed] for everything [he] put the officers through” on October 1, 2009. Id. at 353:12–14.
He continued by saying, among other things:
There’s a lot of things that go on in my area that causes for some people to
have to keep themselves safe. My girlfriend also just had a miscarriage that
made [me] realize how easy it is for my life to end and that stuff scares me. So,
still living in the same area I have to be cautious in what I do so I can keep my
life. I would rather be in jail then [sic] dead because a few people in the world
don’t like me for their own reason. I’m scared to die and I don’t want to be
statistics neither.
Id. at 353:14–22.
Detective Bartek, though, was not satisfied, and he told Taylor that “he need[ed] to make
another statement to claim responsibility for his actions.” Id. at 354:20–21. So Taylor wrote out
another statement, saying:
I want to say first that I had the gun that was thrown into the sewer. I also had
weed on my possession. A guy I had a problem with got shot in 2002 that felt I
had something to do with it. I didn’t shoot the guy. Now is for the some [sic]
reason and all that’s been happening around my neighborhood, shootings,
robberies, murders, et cetera. I don’t know when I may could’ve [sic] been on
the bad end of any of those crimes, but I didn’t want to take any chances with
my life. I had no intention on doing any crimes. . . . I totally apologize for
having the gun, but with my life on the line nobody will protect yourself like
you will.
Id. at 355:12–356:3.

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C. The recorded call.
While at Rikers Island, Taylor made a phone call that officers recorded. Id. at 207:7–18.
The recording was played at trial. Id. at 210:7. In it, Taylor said: “[A]nd the joint, that right there,
was down the sewer, so I could probably beat that.” Dkt No. 6-3 at 17. Taylor then went on to
say that he:
told Elroy, 1 Son, yo, I’m . . . listen, I’m goin’ because of you, son, because you
want to get this little nigga, son so I’m goin’ because of you, son, and I didn’t
put the shit in Elroy hand because you know how reckless niggas is, son . . .
when the time came, son, when we fuckin’ got to Green and Broadway, son,
them niggas pull up on us, son, I ain’t know what to do, son, you already know
how my fuckin’ mind played tricks, my shit start runnin’ crazy, son, I just got
off the bike and I start tearin’ ass, son. The first thing I could think about was
to put that shit down in the sewer, son . . . and now I’m jammed up.
Id. at 56; see also id. at 17–18.
***
This evidence was more than enough to establish Taylor’s guilt beyond a reasonable
doubt. To be sure, Taylor, at least in his Appellate Division brief, identifies a number of concerns.
The problems he notes, however, do not undermine the jury’s conclusion.
Taylor highlights a number of discrepancies between Officer Ramayya’s testimony at trial
and at a pretrial hearing. For instance, at the hearing, Officer Ramayya testified that the gun was
silver; at trial, he said it was black. And at the hearing, he testified that Taylor “turned toward
him during the chase and lifted a shirt,” id. at 26; at trial, he said that didn’t happen. These
discrepancies, however, concern relatively minor details. The jury was entitled to believe Officer
Ramayya’s testimony that he saw a gun and to ascribe his discrepancies to lapses in memory. See
Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996) (“[A]ssessments of . . . the credibility of
witnesses are for the jury and not grounds for reversal on appeal[.]”). Similarly, Taylor’s

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Presumably, “Elroy” is Leroy Hatcher, who was with Taylor on the night of the crime.

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argument that Officer Ramayya was not credible because he testified that the area was “well lit,”
Dkt. No. 6-3 at 24, in contrast to another witnesses’ characterization of the lighting as dark, is
unavailing. Assessment of lighting can be subjective, and, in any event, a “challenge to the
witnesses’ credibility cannot support a claim of legal insufficiency on habeas review.” Sanford v.
Burge, 334 F. Supp. 2d 289, 304 (E.D.N.Y. 2004). The same applies to Taylor’s argument that
Officer Ramayya was not credible because he testified to not initially seeing a gun on Taylor,
despite their standing only around five feet apart.
Regarding the recording of his call, Taylor notes that he referred to the item he threw
down the sewer as a “joint,” which he argues meant marijuana, not a gun. But when hearing that
reference in context, a jury could reasonably have found that Taylor actually was referring to a
firearm. In the recording, Taylor said he was out that night “to get this little nigga,” seemingly
suggesting he wanted to hurt someone. Moreover, when talking about the “joint,” Taylor said he
“could probably beat that,” seemingly referring to the criminal charge he was facing, which was
for possession of a firearm, not drugs.
And regarding his written statements in the precinct, Taylor argues that the second
statement, in which he explicitly admitted to throwing a gun down the sewer, was written at the
urging of Detective Bartek and, unlike his first statement and his Miranda waiver, was unsigned.
But the jury was entitled to believe Detective Bartek that Taylor truthfully wrote the second
statement. What’s more, although the first statement does not contain an explicit confession, it
does strongly suggest that Taylor had a gun that night––he stated that he acted out of fear for his
life. And Detective Bartek also testified that Taylor told him he was carrying a “burner” that
night.

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In sum, the jury had sufficient evidence to conclude beyond a reasonable doubt that
Taylor unlawfully had a loaded and functioning gun that night. It was surely objectively
reasonable for the Appellate Division to find that as well. That is not to say that the prosecution’s
case was perfect. As Taylor has pointed out, Officer Morris (Officer Ramayya’s partner who
returned the gun to the precinct) admitted to dousing the gun in water and bleach before
obtaining any fingerprints or DNA samples. Officer Morris also botched the police report for the
incident, confusing Taylor with a different suspect. And the photo Officer Morris took of the gun
on the day of the incident (October 1, 2009) was dated March 5, 2008. But Officer Morris had
explanations for these blunders that the jury was legally entitled to credit. See Manson v.
Brathwaite, 432 U.S. 98, 116 (1977) (“We are content to rely upon the good sense and judgment
of American juries, for evidence with some element of untrustworthiness is customary grist for
the jury mill.”). Moreover, Officer Morris’s problematic conduct does not undermine the other,
significant evidence presented to support the finding that Taylor nonetheless had a gun that night.
Accordingly, Taylor’s sufficiency-of-the-evidence argument is meritless.
II.

Taylor’s weight-of-the-evidence claim is not cognizable on habeas.
Taylor next argues that the verdict was against the weight of the evidence, an argument

that was rejected by the Appellate Division, both on a procedural ground and on the merits. See
Taylor, 19 N.Y.S.3d at 433. The argument fails here, too, because a weight-of-the-evidenceclaim––as opposed to a sufficiency-of-the-evidence-claim––is purely a matter of state law based
on N.Y. Crim. Proc. Law § 470.15(5) and thus is not cognizable on federal habeas review. E.g.,
Medina v. Gonyea, 111 F. Supp. 3d 225, 232–33 (E.D.N.Y. 2015); see also 28 U.S.C. §
2254(d)(1) (stating that a habeas petition cannot be granted unless the state court adjudication
“involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States”).
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III.

Taylor’s prosecutorial misconduct claim is meritless.
Taylor next argues that various comments by the prosecutor during summation

constituted “flagrant misconduct.” The Appellate Division rejected this argument as “largely
unpreserved for appellate review.” Taylor, 19 N.Y.S.3d at 433. But the Appellate Division also
ruled on the merits, holding that “most of [the prosecutor’s] remarks were within the broad
bounds of permissible rhetorical comment, a fair response to the defendant’s summation, or fair
comment on the evidence and the reasonable inferences to be drawn therefrom.” Id. And it
further held that “[t]o the extent that any remaining challenged remarks were improper, they
were not so egregious as to have deprived the defendant of a fair trial.” Id. Because the Appellate
Division did not clearly identify those objections that were preserved and those that were not, I
will proceed to the merits and not apply any procedural bar. See Jimenez v. Walker, 458 F.3d 130,
145 (2d Cir. 2006); Murray v. Griffin, 17-cv-26, 2017 WL 2817044, at *8 (E.D.N.Y. June 28,
2017).
The claim fails on the merits. To obtain habeas relief on the ground of prosecutorial
misconduct, the prosecutor’s comments must have “so infected the trial with unfairness as to
make the resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181
(1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). This is a high hurdle to
overcome; “it is not enough that the prosecutor’s remarks were undesirable or even universally
condemned.” Id. (internal quotation marks omitted). Here, Taylor objects to a number of the
prosecutor’s comments during summation. But upon a review of the record, I cannot disagree
with the Appellate Division’s conclusion that “most of those remarks were within the broad
bounds of permissible rhetorical comment, a fair response to the defendant’s summation, or fair
comment on the evidence and the reasonable inferences to be drawn therefrom.” Taylor, 19
N.Y.S.3d at 433; see also Ely v. Lempke, 09-cv-5836, 2012 WL 7050432, at *10 (S.D.N.Y. Oct.
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18, 2012), report and recommendation adopted, 09-cv-5836, 2013 WL 544070 (S.D.N.Y. Feb.
11, 2013). For example, Taylor objects to the prosecutor’s describing defense counsel’s
arguments as “non-issues.” But that was a fair comment to make in responding to arguments
made during the defense’s summation that the prosecutor fairly believed did not strike at the
heart of the prosecution’s case. In any event, none of the prosecutor’s conduct so infected the
trial as to compromise due process. I observe, in fact, that the judge instructed the jury at least
six times during the prosecution’s summation that the prosecutor’s arguments were just that, not
evidence. See United States v. Wilson, 967 F. Supp. 2d 673, 683 (E.D.N.Y. 2013) (citing United
States v. Batista, 684 F.3d 333, 342–43 (2d Cir. 2012)); cf. Richardson v. Marsh, 481 U.S. 200,
211 (1987) (“[J]uries are presumed to follow their instructions[.]”).
IV.

Taylor’s ineffective-assistance-of-counsel claim is meritless.
Taylor’s final ground for relief is ineffective assistance of trial counsel. As explained, the

Appellate Division has not ruled on this issue, and Taylor seeks a stay and abeyance in order to
fully present this argument before the state courts. In his habeas petition, Taylor identifies two
ways in which his trial counsel failed to provide effective assistance. First, he argues that his
lawyer did not “object to the many instances of contradictory testimony of Officer Ramayya.”
Pet. 10. And second, he contends that his lawyer failed to specifically object to the instances of
alleged prosecutorial misconduct during summation.
I initially observe that Taylor’s second ineffective-assistance argument surely would fail
in state court. The Appellate Division has already found that the alleged prosecutorial
misconduct did not prejudice Taylor, so it certainly would also conclude that Taylor suffered no
prejudice from his trial counsel’s failure to object to it. Regardless, Taylor’s two ineffectiveassistance arguments are entirely meritless. To make out an ineffective-assistance claim, Taylor
must satisfy the two prongs of the test established in Strickland v. Washington, 466 U.S. 688
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(1984): (1) that his “counsel’s representation fell below an objective standard of reasonableness,”
id. at 688, and (2) “that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different,” id. at 694. And, in determining
what counts as deficient representation, the “court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689.
Taylor’s two ineffective-assistance arguments cannot meet this difficult standard.
Regarding the first, his lawyer did call out the various inconsistencies between Officer
Ramayya’s testimony at trial and at the pretrial hearing. He highlighted Officer Ramayya’s
contradictions both on cross examination and during summation. See, e.g., Trial Tr. 76:6–77:24,
394:2–396:5. Indeed, it is difficult to see what more his lawyer could have done. As for the
second, the record demonstrates that Taylor’s lawyer did object, on several occasions, to
comments made by the prosecutor during summation. See, e.g., id. at 428:1–5, 432:12–20,
444:23–445:6. Though defense counsel did not object to every allegedly improper comment, his
failure to do so does not rise to the level of ineffective assistance under Strickland. The
prosecutor’s statements were fair responses to the defense’s arguments, and “[w]here the
prosecution’s summation is appropriate, a failure to object does not constitute ineffective
assistance of counsel.” Mazique v. Ercole, 06-cv-1723, 2008 WL 2884370, at *9 (E.D.N.Y. July
23, 2008) (citing Cuevas v. Henderson, 801 F.2d 586, 592 (2d Cir. 1986)). And even if the
prosecutor’s summation crossed the line at points, “objections, particularly during a prosecutor’s
summation, are generally considered strategic in nature and therefore not grounds for claims of
ineffectiveness.” Persad v. Conway, 05-cv-4199, 2008 WL 268812, at *15 (E.D.N.Y. Jan. 30,
2008).

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Finally, even if I assume, arguendo, that counsel acted deficiently in failing to object
during summation, there was no prejudice. As I’ve already explained, the prosecutor’s comments
themselves, to the extent they were improper, did not deprive Taylor of due process. In light of
all the evidence against Taylor, there is “no reasonable probability that, absent [counsel’s] errors,
the factfinder would have had a reasonable doubt respecting guilt.” Strickland, 466 U.S. at 695.
Taylor’s habeas petition, along with his motion for a stay and abeyance, is DENIED. I
decline to issue a certificate of appealability.
SO ORDERED.
Brooklyn, New York
August 9, 2018

Edward R. Korman
Edward R. Korman
United States District Judge

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