Daniels v. Ercole
MEMORANDUM & ORDER - The Court DENIES Petitioner's Petition for a Writ of Habeas Corpus. So Ordered by Judge Thomas C. Platt on 11/14/13. (Coleman, Laurie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MEMORANDUM & ORDER
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PLATT, District Judge.
Before the Court is Anthony Daniels' ("Petitioner") Petition for a Writ of Habeas Corpus
("Petition"), pursuant to 28 U.S.C. § 2254. ECF No. I. The Petition challenges Petitioner's
conviction, following a jury trial in New York State Supreme Court (Suffolk County), and the
subsequently imposed sentence. Pet'r's Pet. I. The Court DENIES the Petition.
On June 24, 2003, after receiving their respective dispatches, a Suffolk County police
officer and local fire department volunteers found Norman Phillips ("the deceased") lying in a
car ("the Infinity"); the deceased had suffered multiple gunshot wounds. See, e.g., Trial Tr.
62:11-63:4. The deceased died from these gunshot wounds. See, e.g., Pet.'s State App. Brief,
2005 WL 5340171, *4.
In the course of their investigation of the homicide, detectives focused on Petitioner as a
suspect. See, e.g., Trial Tr. 145-55. On July 28, 2003, when detectives attempted to detain
Petitioner for interrogation, they found Petitioner in possession of a .357 magnum handgun. See
id., 149:15-164:1; Pet.'s State App. Brief 6. When the investigators compared left palm prints
found on the Infinity to the left palm print of Petitioner, the palm prints matched. See Trial Tr.
485:20-22. Additionally, investigators found that two bullets taken from the body of the
deceased, and one from the crime scene (after passing through the body of the deceased), were
fired from the .357 magnum handgun found on Petitioner's person when he was arrested. See
Trial Tr. 396:3-5; 397:22-25.
At the conclusion of the trial, the jury found Petitioner guilty of murder in the second
degree and criminal possession of a weapon in the second degree. Trial Tr. 668:14-20. The jury
found Petitioner not guilty of criminal possession of stolen property in the fourth degree. Trial
Tr. 668:21-24. The State court sentenced Petitioner to 25 years-to-life for the murder charge and
15 years for the possession charge. See Resp.'s Brief 3. The court ordered Petitioner to serve
these sentences consecutively. Id
The Petition presents four claims: (i) Petitioner was denied his rights, under the Sixth
Amendment, to effective counsel and to confront witnesses against him as to the testimony of
Elaine Colbert (Pet. 16); (ii) Petitioner was denied effective counsel as to his counsel's failure
"to object to evidence of information of a missing witness [who] appeared on the prosecutor's
call list." (id at 17); (iii) Petitioner was denied his Confrontation Clause rights because he was
unable to cross-examine an unnamed witness prior to trial (id at 18); and (iv) Petitioner was
denied his Fourteenth Amendment rights due to an un-Constitutional prison sentence (id. at 20). 1
While Petitioner argues his Fourteenth Amendment rights were violated, the Court will also
review under the Eighth Amendment's protection from cruel and unusual punishment.
Legal Standard for a Petition for a Writ of Habeas Corpus
The Supreme Court, a Justice thereof, a circuit judge, or a district court
shall entertain an application for a writ of habeas corpus in behalf of a person in
custody pursuant to the judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties of the United States.
28 U.S.C. § 2254(a).
"The writ of habeas corpus stands as a safeguard against imprisonment of those held in
violation ofthe law." Harrington v. Richter, 131 S. Ct. 770, 780 (2011).
A state prisoner seeking federal habeas review of his state conviction is required to first
exhaust all remedies available to him in the State courts. See 28 U.S.C. § 2254(b)(1)(a).
Exhaustion requires alerting the State courts to the Federal nature of the claim and raising the
claim in the State's highest court. See, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 839-40 (1999).
If an application [for a Writ of Habeas Corpus] includes a claim that has been
"adjudicated on the merits in State court proceedings,"§ 2254(d), an additional
restriction applies. Under§ 2254(d), that application "shall not be granted with
respect to [such a] claim ... unless the adjudication of the claim": "(1) resulted in a
decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States;
or "(2) resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding." "This is
 'difficult to meet,' Harrington v. Richter, 131 S. Ct. 770, 786 (2011), and
"highly deferential standard for evaluating state-court rulings, which demands that
state-court decisions be given the benefit of the doubt," Woodfordv. Visciotti, 537
u.s. 19,24 (2002).
Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011); see also Jones v. Keane, 329 F.3d 290, 294
(2d Cir. 2003) (federal court is barred from granting a habeas petition if the petitioner has not
exhausted all available state remedies. "Exhaustion requires a petitioner fairly to present the
federal claim in state court." Presentation means a petitioner "has informed the State court of
both the factual and the legal premises of the claim he asserts in Federal court.").
As Petitioner admits, he failed to raise the issues presented to the Court herein in his State
appeal. See Pet. at 5, 7, 8,10 (e.g., page 5: "if you appealed from the judgment of conviction, did
you raise this issue?" Petitioner checked "No"). As to claims one, two, and three, clearly
Petitioner failed to exhaust the remedies available to him in State court.
In his State court appeal, Petitioner presented four claims. See Pet. 's App. Brief 3. Claim
one, ineffective representation (because his counsel failed to move for a Mapp/Huntley hearing
to attempt to suppress the allegedly ill-found murder weapon and oral admissions). Claim two,
denial of his right to a fair trial (because the trial court permitted an autopsy photograph to be
shown to the jury). 'Claim three, the State failed to prove its case beyond a reasonable doubt.
Claim four, the imposition of consecutive maximum sentences was harsh and excessive.
The Petition includes two claims of ineffective assistance of counsel. While the State
appeal includes one such claim, it does not address the same allegedly ineffective counsel issues
as the Petition. As such, the State court did not have the opportunity to address the ineffective
counsel claims brought herein. Claims one and two are procedurally barred.
The Petition's third claim argues that Petitioner was not permitted to cross-examine an
unnamed witness prior to trial. This claim was not brought in the State appeal. As such, it is
procedurally barred from this review. Petitioner's fourth claim argues that because the same
weapon was involved in both offenses, Prisoner's prison sentences must run concurrently, not
consecutively. While Petitioner did not address, in the State court appeal, the Constitutionality of
his sentence, the Court, in the interests of justice, will deem this claim exhausted.
Petitioner's first three claims are procedurally barred and the Petition is dismissed as to
those claims. For the reasons set forth infra, however, even if the claims had been exhausted, the
Court would deny those claims.
Ineffective Assistance of Counsel
"[T]he proper standard for attorney performance is that of reasonably effective
assistance[;] ... the defendant must show that counsel's representation fell below an objective
standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 687-88 (1984). "The
proper measure of attorney performance remains simply reasonableness under prevailing
professional norms." !d. at 688.
"Representation of a criminal defendant entails certain basic duties. Counsel's function is
to assist the defendant, and hence counsel owes the client a duty of loyalty, a duty to avoid
conflicts of interest .... Counsel also has a duty to bring to bear such skill and knowledge as
will render the trial a reliable adversarial testing process." !d.
"A court must indulge a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action might be considered sound trial
strategy." !d. at 689 (internal citations omitted).
As to habeas review,
[t]he pivotal question is whether the state court's application of
the Strickland standard was unreasonable. This is different from asking whether
defense counsel's performance fell below Stricklands standard. Under AEDPA,
though, it is a necessary premise that the two questions are different. For purposes
of§ 2254(d)( 1), an unreasonable application of federal law is different from
an incorrect application of federal law. A state court must be granted a deference
and latitude that are not in operation when the case involves rev1ew under
the Strickland standard itself.
Harrington v. Richter, 131 S. Ct. 770, 785-86 (2010) (internal citations and quotations
omitted; italics in original).
For emphasis, this Court's job, under Harrington, is not to decide whether Petitioner's
counsel met the Strickland standard; rather, it is to determine whether the State court's
determination on the issue was reasonable. 131 S. Ct. at 785. The State court reasonably held that
Petitioner's trial counsel's "conduct [fell] within the wide range of reasonable professional
assistance." Strickland, 466 U.S. at 689; see also People v. Daniels, 826 N.Y.S.2d 369, 370
(N.Y. App. Div. 2006) ("[t]he defendant received meaningful representation throughout the
course of the proceedings."). The State appellate court held Petitioner's counsel "delivered
adequate cross-examinations and arguments . . . presented clear and cogent opening and
summation . . . and secured the defendant an acquittal on the count of criminal possession of
stolen property ." Daniels, 826 N.Y.S.2d at 370. The Court holds this determination was
Moreover, as Respondent notes, Crawford violations (the crux of claim one) do not
involve pre-trial suppression hearings. See Unites States v. Raddatz, 447 U.S. 667, 679 (1980)
("At a suppression hearing, the court may rely on hearsay and other evidence, even though that
evidence would not be admissible at trial." (citations omitted)). Ms. Colbert testified at trial; she
was cross-examined by Petitioner's trial counsel. There was no Crawford violation.
Whether a great lawyer would have requested a Dunaway hearing or objected to evidence
or witnesses at trial is not the Court's concern as to the Petition; the reasonableness of the State
court's determinations is. As the Court finds the State court's holding (as to Petitioner's
Constitutional right to effective representation) was reasonable, claims one and two are denied.
Confrontation Clause and the "Right" to Depose
The primary object of the Confrontation Clause of the Sixth Amendment was to
prevent depositions or ex parte affidavits being used against the prisoner in lieu
of a personal examination and cross-examination of the witness in which the
accused has an opportunity, not only of testing the recollection and sifting the
conscience of the witness, but of compelling him to stand face to face with the
jury in order that they may look at him, and judge by his demeanor upon the stand
and the manner in which he gives his testimony whether he is worthy of belief.
Barber v. Page, 390 U.S. 719, 721 (1968) (quoting Mattox v. United States, 156 U.S. 237, 242-
The Confrontation Clause does not grant a right to depose witnesses before trial; rather, it
ensures, as noted supra, defendants may cross-examine a prosecutorial witness in open court.
Petitioner's counsel cross-examined the witness at trial? There is no merit, whatsoever, to
Petitioner's third claim; the Court denies the Petition as to the third claim.
Excessive Prison Sentence
"No federal constitutional issue is presented where, as here, the sentence is within the
range prescribed by state law." White v. Keene, 969 F.2d 1381, 1383 (2d Cir. 1992)
(citing Underwood v. Kelly, 692 F. Supp. 146 (E.D.N.Y. 1988)).
2 The Court believes Petitioner is most likely referring to witness Anthony Bennett; in any case,
the record shows Petitioner's counsel had the opportunity to cross-examine all prosecutorial
"Whether a sentence should run concurrently or consecutively is purely an issue of state
law and is not cognizable on federal habeas review." Johnson v. New York, 851 F.Supp.2d 713,
722 (E.D.N.Y. 2012) (citing Reyes v. New York, No. 08 Civ. 8645, 2009 WL 1066938, at *2
(S.D.N.Y. Apr. 21, 2009)).
The imposition of consecutive sentences under New York State law is
governed by New York Penal Law Section § 70.25(2). Specifically, consecutive
sentences are not permitted where "more than one sentence of imprisonment is
imposed on a person for two or more offenses committed through a single act or
omission, or through an act or omission which in itself constituted one of the
offense and also was a material element of the other." The New York Court of
Appeals has interpreted "act or omission" to include the actus reus of the
offense. People v. Rosas, 8 N.Y.2d 493, 496 (1997). "Actus reus is defined as
'[t]he wrongful deed that comprises the physical components of a crime and that
generally must be coupled with mens rea to establish criminal liability.' "Id at
497 (quoting Black's Law Dictionary 39 [8th ed.2004]).
Seow v. Artuz, 98-CV-72, 2007 WL 2890259, at *8 (E.D.N.Y. 2008), ajf'd, 320 F. App'x
46 (2d Cir. 2009); see also People v. Gucla, 794 N.Y.S.2d 126, 127 (N.Y. App. Div.
2007) ("Consecutive sentencing is permissible when the defendant's acts are
distinguishable by culpable mental state, nature and manner of use, time, place and
victim." (internal quotations omitted)).
Petitioner was convicted for two separate criminal acts: murder in the second degree,
which took place on June 24, 2006; and criminal possession of a weapon in the second degree,
which took place on July 28, 2003. The Court agrees with Respondent's argument on this matter:
"[P]etitioner's act of possessing a loaded weapon at the time of his arrest 'was a complete crime
and separate and district' from his use of the weapon the commission of the murder." Resp.'s
Brief 17 (quoting Gucla, 794 N.Y.S.2d at 127).
The sentencing court had the discretion to sentence Petitioner to consecutive sentences.
As the sentence was within prescribed State law, there is no Constitutional issue for the Court to
review herein. Petitioner's fourth claim is denied.
For the foregoing reasons, the Court DENIES Petitioner's Petition for a Writ of Habeas
Dated: November l!i_, 2013
Central Islip, New York
/s/ Thomas C. Platt
Thomas C. Platt, U.S.D.J.
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