Schouenborg v. Suffolk County Riverhead Courts et al

Filing 18

MEMORANDUM & ORDER granting in part and denying in part 13 Motion to Stay; denying 15 Motion to Compel. For the foregoing reasons, Petitioner's motion for a stay of his Petition pending exhaustion in state court is GRANTED IN PART and DE NIED IN PART. It is GRANTED insofar as Petitioner seeks to exhaust his claim for ineffective assistance of appellate counsel, but otherwise DENIED. In addition, the Court hereby ORDERS that Kevin Keating, Esq., be appointed as counsel for Petitioner. Mr. Keating, having accepted the appointment, shall promptly file a notice of appearance and notify Petitioner of his representation. Finally, Petitioner's motion to compel the Court's assistance in obtaining transcripts is DENIED with l eave to refile through counsel. The Clerk of Court is directed to amend the caption to name the Superintendent of the Auburn Correctional Facility as the Respondent and to mail a copy of this Memorandum and Order to Petitioner. So Ordered by Judge Joanna Seybert on 9/30/2013. C/M; C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
TERRENCE P. SCHOUENBORG,
Petitioner,
MEMORANDUM & ORDER
08-CV-2865(JS)

-againstSUPERINTENDENT, AUBURN CORRECTIONAL
FACILITY1,

Respondent.
----------------------------------X
APPEARANCES
For Petitioner:
Terrence P. Schouenborg , pro se
05A3388
Auburn Correctional Facility
P.O. Box 618
Auburn, NY 13024
For Respondent:

Edward A. Bannan, Esq.
Suffolk County District Attorney’s Office
200 Center Drive
Riverhead, NY 11901

SEYBERT, District Judge:
On January 27, 2005, following a jury trial in the County
Court of Suffolk County (Crecca, J.), pro se Petitioner Terrence
Paul Schouenborg (“Petitioner”) was convicted of two counts of
Sodomy in the First Degree in violation of New York Penal Law
§ 130.50(1); two counts of Sodomy in the Second Degree in violation
of New York Penal Law § 130.45(1); four counts of Sexual Abuse in
the Second Degree in violation of New York Penal Law § 130.65(1);

1

The proper Respondent in this action is the Superintendent of the
Auburn Correctional Facility. See generally 28 U.S.C. § 2254. The
Clerk of the Court is directed to amend the caption accordingly.

and three counts of Endangering the Welfare of a Child in violation
of New York Penal Law § 260.10(1).

On June 16, 2005, following a

hearing pursuant to Section 400.21 of New York Criminal Procedure
Law, Petitioner was sentenced as a persistent felony offender to an
indeterminate term of imprisonment of twenty years to life for each
of his convictions for Sodomy in the First Degree; an indeterminate
term of imprisonment of twenty years to life for each of his
convictions for Sodomy in the Second Degree and Sexual Abuse; and
one

year

of

imprisonment

for

each

Endangering the Welfare a Child.

of

his

convictions

for

The sentences were imposed

concurrently.
Presently before the Court are the Petition for a Writ of
Habeas Corpus (the “Petition”) pursuant to 28 U.S.C. § 2254
(“Section 2254”), Petitioner’s letter motion to stay (Docket Entry
13), and Petitioner’s letter motion to compel (Docket Entry 15).
For the reasons set forth below, Petitioner’s motion for a stay is
GRANTED IN PART and DENIED IN PART and his motion to compel
transcripts is DENIED with leave to refile. In addition, the Court
sua sponte appoints pro bono counsel.

2

BACKGROUND
I.

The Underlying Facts
On September 16, 2003, thirteen-year-old SV2, a female

student in the eighth grade, went to Tanner Park in Copiague, New
York with two friends, LJ, also a female student, and JP, a male
student. LJ subsequently left the park to return home. (Trial Tr.
591-602.)

SV and JP remained at the park, where a man who had just

parked his vehicle approached them.
them if they had “rolling papers.”

(Id. at 720.)
(Id.)

The man asked

JP answered in the

negative and the man went back to his car and drove away.

(Id. at

720-21.)
Shortly thereafter, the man returned and asked SV and JP
if they wanted to smoke.

(Id. at 722.)

SV answered that she

would, and SV and JP got into the man’s car.

(Id.)

The three

drove around, drank beer, and smoked cigarettes. (Id. at 724-28.)
The driver identified himself as Paul and told the two teenagers
that he was twenty-seven years old.

(Id. at 603-10, 723.)

After

a while, the driver dropped JP off at his home. (Id. at 621, 728.)
Once JP left the car, the man drove around for a while, ultimately
parking the car in front of a flower shop, where he climbed into
the rear seat and sexually assaulted and sodomized SV.

2

(Id. at

Due to the minority ages of SV, LJ, and JP at the time of the
incident, they are identified only by their initials.
3

620-26, 629-36.)
After the assault, SV climbed into the front seat and was
able to escape from the vehicle.
home where the police were called.
II.

(Id. at 637.)

She ran to LJ’s

(Id. at 637-39.)

The Investigation
Police Officer Sonia Martinez arrived at LJ’s home at

approximately 11:00 p.m.

(Id. at 561.)

SV told Officer Martinez

that her attacker was a “white Hispanic-looking male,” and upon
further questioning, stated that her attacker was white.
574-75.)

(Id. at

SV described her assailant as having a mustache and

beard, blue eyes, and as driving a white vehicle with black
lettering on the side.
Detectives

(Id. at 581.)

subsequently

arrived,

including

Joseph Brittelli, who took control of the investigation.

Detective
SV drove

around with the detectives and showed them the location of her
assault, the parking lot of a florist shop.

(Id. at 802.)

SV

indicated that her attacker discarded a cigarette butt, and the
detectives located and retrieved one for forensic testing. (Id. at
802-03.)

The detectives also sent a Marlboro butt that SV’s

assailant placed in SV’s purse to the lab for testing.

(Id. at

853-54.)
The detectives then transported SV to the Sexual Assault
Nurse Examiner (“SANE”) at Good Samaritan Hospital for examination
4

and for recovery of physical evidence on her person.
08.)

(Id. at 807-

The SANE nurse photographed SV’s injuries, took swabs of

fluids and other evidence from her vaginal and anal areas, and
collected a urine sample.

(Id. at 1021-61, 1068.)

Detective

Brittelli gathered all of the evidence from the examination and
sent it to the Suffolk County Crime Lab.

(Id. at 852.)

He

attempted to take a statement from SV after her examination, but
she was too tired to cooperate at that time.

(Id. at 814.)

On September 29, 2003, Detective Brittelli obtained SV’s
statement.

(Id. at 816-17.)

This statement, along with JP’s

statement, led detectives to arrest Petitioner on October 23, 2003,
at which time they seized Petitioner’s vehicle to search it for
evidence.

(Id. at 829-37, 863.)

On the day of the arrest, police

prepared a lineup for SV to view.

(Id. at 875-76.)

SV was shown

two lineups; each time the participants were rearranged and each
time SV positively identified Petitioner as her attacker.

(Id. at

650-52, 889-91.)
On August 30, 2004, JP viewed a lineup which included
Petitioner, but was unable to identify any of the six men.
730-31.)

JP

was,

however,

able

to

identify

a

(Id. at

picture

of

Petitioner’s vehicle as the vehicle he and SV entered on September
16, 2003.

(Id. at 729-30.)

5

III.

The Trial
SV testified at trial and identified Petitioner as her

assailant in court.
During

(Id. at 636.)

the

trial,

defense

counsel

focused

on

the

inconsistencies in SV’s version of events on the night of the
incident. Specifically, defense counsel argued that SV identified,
and the police arrested, the wrong man.

(Id. at 552.)

He noted

that at various times, SV described her assailant as white,
Hispanic,

Puerto

Rican,

and

black.

(Id.

at

685-87,

927.)

Furthermore, during her various interviews with police, SV failed
to mention that her assailant had any tattoos, despite the fact
that Petitioner has multiple tattoos, and gave varying descriptions
of

the

assailant’s

clothing.

(Id.

at

920-26,

932-33.)

Additionally, SV’s description of the vehicle she entered that
night did not include what defense counsel characterized as a
distinctive sticker on the back window of Petitioner’s vehicle or
a distinctive steering wheel.

(Id. at 915-919.)

Defense counsel intimated that perhaps the holes in SV’s
story were partially attributable to her drinking beer and smoking
marijuana on the night of the incident.

SV admitted to drinking

beer that night, but denied smoking marijuana.
However, JP testified that SV did smoke marijuana.
33.)

(Id. at 681.)
(Id. at 732-

Officer Martinez testified that upon her arrival at LJ’s
6

home, she did not smell alcohol or marijuana on SV.

(Id. at 572.)

The prosecution elicited extensive testimony about the
physical evidence recovered from SV and from Petitioner’s vehicle.
Both the exterior and interior of Petitioner’s vehicle were dusted
for fingerprints, but none were found.

(Id. at 939.)

The vehicle

was also tested for SV’s blood because she told Detective Brittelli
that she had bled into her hand and wiped her blood in the car.
(Id. at 926-27.)
the vehicle.

Police did not find any evidence of SV’s blood in

(Id. at 943.)

Hair and fibers that were recovered

from SV’s clothing were not consistent with Petitioner’s vehicle.
(Id. at 1196-97.)

Hairs and fibers recovered from the floor mats,

seat fabric, and clothing found in the back seat and trunk of
Petitioner’s vehicle were either inconsistent with SV or unusable
for testing and comparison.

(Id. at 1195-99.)

On the basis of

this testing, Clyde Wells, an expert in the field of hair and fiber
analysis from the Suffolk County Crime Lab, determined that he
could

not

conclusively

place

or

exclude

SV

from

being

in

Petitioner’s car. (Id. at 1205-06.) On cross examination, defense
counsel elicited that although animal hair was recovered from many
areas
SV.

in

Petitioner’s

vehicle,

no

animal

hair

was

found

on

(Id. at 1208.)
Ann Juston, a DNA expert from the Suffolk County Crime

Lab, testified that DNA taken from a semen-stained shirt found in
7

Petitioner’s car was insufficient in size to obtain a complete DNA
profile.

(Id. at 1262-63.)

However, the sample was large enough

to test for a partial DNA profile, which was consistent with
Petitioner’s DNA and the DNA of at least two other people.
1262.)

(Id. at

Ms. Juston also testified that SV could not be excluded as

a contributor of the DNA.

(Id. at 1262-63.)

Karen Dunseith, a registered nurse who performed the
physical

examination

of

SV

at

Good

Samaritan

Hospital

(the

“Hospital”) in the hours subsequent to the incident, also testified
at trial.

(Id. at 1015-1078.)

Nurse Dunseith explained that when

SV arrived at the Hospital for examination, she went into a
restroom to remove her clothes and provide a urine sample. (Id. at
1021.) The purpose of the urine sample was to determine whether SV
was pregnant.

(Id. at 1068-69; see also Petr.’s Supp. Br., Docket

Entry 17, Ex. 7, SANE Report.3)

Nurse Dunseith was not allowed to

administer any medications post-rape unless the urine test for
pregnancy was negative.4

(Trial Tr. at 1068-69.)

The urine sample

3

The SANE Report is dated 9/17/03, and was written by Nurse
Dunseith once she completed her examination of SV. (Trial Tr. at
1058-59, 1066-67.) The SANE Report refers to a “Urine Pregnancy”
under “Studies Performed” and the result indicated on the report is
negative.
(Petr.’s Supp. Br., Docket Entry 17, Ex. 7, SANE
Report.)
4

The Medication Consent Form included a statement consenting to
“[a] urine sample to evaluate [the victim’s] kidney function and
for pregnancy (women only).”
8

was not included in the rape kit that Nurse Dunseith collected and
gave to the police for analysis.

(Id. at 1041-1058; see also

People’s Trial Exs. 21A-I.)
After deliberation, the jury convicted Petitioner on all
counts.
IV.

(Id. at 1484-1488.)

Sentencing
On June 16, 2005, following a hearing pursuant to New

York

Criminal

Procedure

Law

Section

400.21,

Petitioner

was

sentenced as a persistent felony offender to an indeterminate term
of imprisonment of twenty-two years to life for each of his Sodomy
in

the

First

Degree

convictions;

an

indeterminate

term

of

imprisonment of twenty years to life for each of his convictions
for Sodomy in the Second Degree and Sexual Abuse; and one year of
imprisonment for each of his Endangering the Welfare a Child
convictions.
V.

The sentences were imposed concurrently.

Appeal
Petitioner’s direct appeal raised five grounds.

that

the

trial

court

abused

its

discretion

by

First,

allowing

the

testimony of the DNA expert who could only testify that the DNA
evidence was inconclusive.

Second, that the court further abused

its discretion by allowing Petitioner’s two-year-old driver’s
license photograph, which depicted Petitioner with facial hair,
into evidence. Third, that the prosecutor engaged in prosecutorial
9

misconduct

during

improperly

shifted

her
the

summation
burden

of

by

making

proof

statements

onto

improperly vouched for witness credibility.

which

Petitioner

and

Fourth, that the

evidence was insufficient to prove his guilt beyond a reasonable
doubt. Fifth, that the sentences imposed were harsh and excessive.
The Appellate Division, Second Department, affirmed the conviction
and sentences.

People v. Schouenborg, 42 A.D.3d 473, 840 N.Y.S.2d

807 (2d Dep’t 2007).

Petitioner sought leave to appeal, which was

denied, see People v. Schouenborg, 9 N.Y.3d 926, 844 N.Y.S.2d 181,
875 N.E.2d 900 (2007).
DISCUSSION
I. Standards of Review
A.

AEDPA
Under the Antiterrorism and Effective Death Penalty Act

of 1996 (“AEDPA”), a federal court may grant a writ of habeas
corpus to a state prisoner when prior state adjudication of the
prisoner’s case “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.”

28 U.S.C. § 2254(d)(1).

A state-court decision is

contrary to clearly established federal law if it “applies a rule
that contradicts the governing law set forth in [Supreme Court]
cases, or if it confronts a set of facts that is materially
10

indistinguishable from a decision of [the Supreme] Court but
reaches a different result.”

Brown v. Payton, 544 U.S. 133, 141,

125 S. Ct. 1432, 161 L. Ed. 2d 334 (2005).

“A state-court decision

involves an unreasonable application of [the Supreme] Court’s
clearly established precedents if the state court applies [them] to
the facts in an objectively unreasonable manner.”

Id.

Clearly

established Federal law “refers to the holdings, as opposed to the
dicta, of [the Supreme] Court’s decisions as of the time of the
relevant state-court decision.”

Yarborough v. Alvarado, 541 U.S.

652, 660–61, 124 S. Ct. 2140, 158 L. Ed. 2d 938 (2004) (internal
quotation marks and citation omitted).
B.

Mixed Habeas Petitions
This is a “mixed petition” because it contains exhausted

and unexhausted claims.

See Rhines v. Weber, 544 U.S. 269, 275,

125 S. Ct. 1528, 161 L. Ed. 2d 440 (2005).

A court presented with

a mixed petition has three options: (1) dismiss the mixed petition,
see id. at 273; (2) stay the mixed petition and allow a petitioner
to return to state court to exhaust his unexhausted claims, see id.
at 277; or (3) The federal district court can deny the petition on
the merits, 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.”).

The district court may grant a stay of an
11

unexhausted petition only if the claim is not “plainly meritless”
and if the petitioner can provide “good cause” for his failure to
properly exhaust all of the claims at the state level.5
277.

Id. at

Therefore, when ruling on a mixed petition, the Court must

examine the unexhausted claims to determine if they meet the Rhines
criteria, i.e., if there is good cause and potential merit.
II. The Instant Petition and Unexhausted Claims
The Petition explicitly raises four grounds for habeas
relief:
the

(1) the prosecutor withheld drug urinalysis results from

Petitioner6;

(2)

the

prosecutor

committed

prosecutorial

misconduct by denying Petitioner a speedy trial and by providing
false information about Petitioner’s prior convictions to the
Appellate Division; (3) the trial court abused its discretion by
admitting a photograph of Petitioner taken two years prior to the
incident; and (4) Petitioner did not have a fair and impartial jury
at trial.

In addition, the Government liberally construes the

5

The Rhines court also added a third element: that district
courts, if granting a stay, impose “reasonable time limits” to
insure against the possibility that a petitioner is using the
habeas process to engage in “dilatory tactics.” However, as the
Rhines court recognized, this concern is most relevant when dealing
with “capital [punishment] petitioners.” Id. at 277-78.

6

On July 31, 2013, the Court sought supplemental briefing from
Petitioner and Respondent regarding whether Petitioner intended to
assert a violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct.
1194, 10 L. Ed. 2d 215 (1963), and whether the prosecutor turned
over evidence of SV’s urine test. (See 7/31/13 Electronic Order.)
The Court has since received the parties’s submissions.
12

Petition to also raise as grounds for relief that there was
insufficient evidence and that Petitioner’s trial and appellate
counsel provided ineffective assistance of counsel in violation of
the Sixth Amendment.

The Court agrees that, liberally construing

the Petition, Petitioner does raise these grounds.
The

Court

finds

that

while

most

of

Petitioner’s

unexhausted claims are meritless, there is potential merit to his
Sixth
claim.

Amendment

ineffective

assistance

of

counsel

Therefore, Petitioner’s motion for a stay is DENIED as to

his meritless claims, but GRANTED as to his claim of ineffective
assistance of appellate counsel.
A. Prosecutorial Misconduct
Petitioner
misconduct

during

asserts

his

trial:

three
(a)

instances
that,

of

prior

prosecutorial
to

trial,

the

prosecutor failed to turn over evidence of the results of the
urinalysis showing SV had marijuana in her system on the night of
the incident; (b) that Petitioner was denied the right to a speedy
trial because more than seventeen months passed before his case was
tried; and (c) that the prosecutor made incorrect statements to the
sentencing court and the Appellate Division regarding two past
crimes.
The

standard

for

reviewing

a

habeas

claim

of

prosecutorial misconduct is “‘the narrow one of due process, and
13

not

the

broad

exercise

of

supervisory

power.’”

Darden

v.

Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 91 L. Ed. 2d 144
(1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.
Ct. 1868, 40 L. Ed. 2d 431 (1974)).
therefore,

distinguish

between

A federal court must,

“‘ordinary

trial

error

of

a

prosecutor and that sort of egregious misconduct . . . amount[ing]
to a denial of constitutional due process.’” Floyd v. Meachum, 907
F.2d 347, 353 (2d Cir. 1990) (quoting Donnelly, 416 U.S. at
647–48).

Habeas relief is available only where the prosecutor’s

actions so infected the trial with unfairness that the resulting
conviction is a denial of due process.
F. Supp. 2d 405, 416 (S.D.N.Y. 2000).

See Salcedo v. Artuz, 107
Prejudice must be measured

by a finding that the actions were not only improper, but “had a
substantial and injurious effect or influence in determining the
jury’s verdict.” Tankleff v. Senkowski, 135 F.3d 235, 252 (2d Cir.
1998) (internal quotation marks and citation omitted).
To

determine

whether

the

alleged

misconduct

is

so

significant as to amount to a denial of due process, the habeas
court

must

place

the

alleged

wrongful

actions

or

alleged

prejudicial remarks in context. See Darden, 477 U.S. at 179. When
analyzing whether a petitioner has shown actual prejudice, the
Court should consider the following relevant factors: “(1) the
severity of the prosecutor’s conduct; (2) what steps, if any, the
14

trial court may have taken to remedy any prejudice; and (3) whether
the

conviction

was

certain

absent

the

prejudicial

conduct.”

Bentley, 41 F.3d at 824 (internal citation omitted).
1. Prosecutor’s Alleged Brady Violation
Petitioner claims that the Government was obligated to
introduce any evidence which would have exculpated him at trial.
Specifically,

Petitioner

claims

that

the

Government

had

an

affirmative obligation to turn over urinalysis results which showed
that SV had traces of marijuana in her system on the night of the
incident.

Such evidence, he claims, directly contradicts her

statements to police and her trial testimony that she did not smoke
marijuana

on

the

night

of

the

incident.

Under

Brady,

the

prosecution has an affirmative obligation to disclose evidence it
knows to be exculpatory and favorable to the defendant’s case. 373
U.S. at 86.
However, no such violation occurred here as the evidence
that

Petitioner

claims

was

not

turned

over

does

not

exist.

Petitioner claims he never received the results of SV’s urinalysis
showing that she had drugs in her system on the night of the
incident.

As explained above, see supra pp. 8-9, Nurse Dunseith

testified, and the hospital records submitted by Petitioner in
supplemental briefing show, that SV’s urine sample was taken only
to evaluate her kidney function and to see if she was pregnant.
15

(Trial Tr. at 1058-59, 1068-69; see also Petr.’s Supp. Br., Docket
Entry 17, Exs. 7 & 8, SANE Report and SANE Program Medication
Consent

Form.)

Respondent

affirms

that

the

results

of

the

pregnancy and kidney function tests were provided to Petitioner’s
counsel.

(Resp. Supp. Aff. Opp’n Pet. ¶¶ 5-10.)

In fact, on

cross-examination, Petitioner’s counsel questioned Nurse Dunseith
about the purpose of the urine sample collected from SV.
Tr. at 1068-69.)

(Trial

Respondent further affirms that no other testing

was done on SV’s urine, and that once the testing of SV’s urine was
completed, SV’s urine sample was discarded, and not included in the
Rape Kit given to the police for analysis. (Resp. Supp. Aff. Opp’n
Pet. ¶¶ 5-9, Trial Tr. at 1041-1058.)
to the contrary.
because

the

Petitioner offers no proof

In sum, the prosecution did not violate Brady,

evidence

Petitioner

seeks

never

existed,

and

Petitioner’s motion for a stay to exhaust this claim is DENIED.
2. Speedy Trial Claim
The Sixth Amendment to the United States Constitution
guarantees that, “[i]n all criminal prosecutions, the accused shall
enjoy the right to a speedy [] trial . . . .”

U.S. CONST. AMEND. VI.

To determine whether this right has been violated, the Supreme
Court has adopted a balancing test.

See Barker v. Wingo, 407 U.S.

514, 519, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972).

Courts

must weigh whether: (1) the delay before trial was uncommonly long;
16

(2) the government or the criminal defendant is more to blame for
that delay; (3) the defendant asserted his right to a speedy trial
in due course; and (4) the defendant suffered prejudice.

See

Doggett v. United States, 505 U.S. 647, 651, 112 S. Ct. 2686, 120
L. Ed. 2d 520 (1992).

The first inquiry, the length of the delay,

is a threshold issue.

See

id. at 651–52 (“[T]o trigger a speedy

trial analysis, an accused must allege that the interval between
accusation and trial has crossed the threshold dividing ordinary
from presumptively prejudicial delay . . . .” (internal quotation
marks and citation omitted)); Barker, 407 U.S. at 530.

However,

there is no precise formula for determining what constitutes a
presumptively prejudicial delay.

See, e.g., Barker, 407 U.S. at

531 (“[T]he delay that can be tolerated for an ordinary street
crime is considerably less than for a serious, complex conspiracy
charge.”).
Here,

more

than

seventeen

months

elapsed

between

Petitioner’s arrest and the start of his trial. Petitioner has not
alleged

that

this

delay

was

uncommonly

7

long.7

But

even

if

Petitioner’s charges were serious, and the prosecution of his
case required laboratory analysis of several items. But whether a
seventeen-month delay is beyond the threshold is unclear based on
recent case law. See United States v. Vassell, 970 F.2d 1162, 1164
(2d Cir. 1992) (noting consensus that a delay of over eight months
meets the threshold requirement). But see Scott v. Walker, No.
01–CV–7717, 2003 WL 23100888, at *6 (E.D.N.Y. Dec. 30, 2003)
(finding no threshold showing where thirteen-month delay before
17

Petitioner could show sufficient delay to trigger a speedy trial
analysis, the other Barker factors do not weigh in his favor.
Petitioner was arrested on October 23, 2003, and was indicted on
October 28, 2003.

The prosecution announced its readiness for

trial on November 7, 2003.

There is no indication that any of the

time from that date forward, through trial on January 10, 2005,
resulted from delays by the prosecution.8
a speedy trial motion.
that

Petitioner

was

Petitioner did not file

Nor does anything in the record indicate

prejudiced

by

this

delay.

Accordingly,

Petitioner’s motion for a stay to exhaust this ground is DENIED.
3. Incorrect Statements to the Sentencing Court and
Appellate Division Regarding Petitioner’s Previous
Felony Convictions
Petitioner

argues

that

the

prosecutor

committed

misconduct during both his sentencing hearing before the sentencing
court and in a brief to the Appellate Division regarding two of

trial involving serious criminal charges, pre-trial hearings, and
DNA testing).
8

See Thomas v. Phillips, No. 04–CV–0906, 2006 WL 39239, at *9–10
(E.D.N.Y. Jan. 5, 2006) (finding no constitutional violation when
less than nine months of twenty-two-month delay was attributable to
petitioner and where motion for speedy trial was not made until
fifteen months after arrest); McKenzie v. Herbert, 969 F. Supp. 1,
3–4 (E.D.N.Y. 1997) (finding no constitutional violation arising
from fifteen-month delay where a substantial portion was
attributable to petitioner’s actions, where petitioner did not
assert his right to speedy trial until thirteen months after
initial incarceration, and where petitioner articulated no specific
prejudice resulting from the delay).
18

Petitioner’s past crimes.
a.

The 1987 Conviction

Petitioner

claims

that

his

1987

conviction

attempted arson, not for attempted assault.

was

for

The record sheet

submitted by Petitioner shows that, although he was arrested in
1986 for Attempted Arson in the Second Degree and for Resisting
Arrest, he pleaded guilty to Attempted Assault in the First Degree
on January 5, 1987. (Pet’r Br. Ex. I, Repository for NYSID No.
453211L.) This conviction was accurately presented to the courts.
Accordingly, Petitioner’s motion to stay to exhaust this claim is
DENIED.
b.

The 1997 Conviction

In 1997, Petitioner was convicted for Sexual Abuse in the
First Degree and Assault in the Second Degree.
New York Penal Law § 70.10 authorizes a court to impose
an enhanced sentence where a defendant is adjudicated a persistent
felony offender.

A persistent felony offender is defined as a

person “who stands convicted of a felony after having previously
been

convicted

§ 70.10(1)(a).

of

two

or

more

felonies.”

N.Y.

PENAL

LAW

A previous felony conviction, as applicable here,

is a conviction for a felony in any state where the defendant was
sentenced to a term of imprisonment of one year or more and for
which the defendant served that sentence prior to committing the
19

present felony.

N.Y. PENAL LAW § 70.10(1)(b).

At Petitioner’s felony offender hearing, the Government
accurately presented the convictions to the sentencing court, who
had to determine whether Petitioner should be sentenced as a
(Hearing Tr.9 at 12-13.)

persistent felony offender.

At the

hearing, the court determined that Petitioner had two previous
felony convictions--one conviction for Attempted Assault in the
First Degree in 1987 and a second conviction in 1997 for Sexual
Abuse in the First Degree and Assault in the Second Degree--and
that those convictions assessed along with Petitioner’s history and
character

in

addition

to

the

nature

and

circumstances

of

Petitioner’s conduct combined to enhance Petitioner’s sentence as
a persistent felony offender pursuant to New York Penal Law
§ 70.10. (Id. at 48-49; Sent. Tr.10 at 4-7.)
also

issued

a

“Statement

of

Crimes

and

The sentencing court
Factors

Constituting

Defendant a Persistent Felony Offender” making it clear that it had
the correct information before it, as it correctly categorized the

9

Citations to the “Hearing Tr.” refer to the felony offender
hearing held in Case No. 02683-2003 before the Hon. Andrew Crecca
on June 9, 2005, in Suffolk County Court.
10

Citations to the “Sent. Tr.” refer to the sentencing held in Case
No. 02683-2003 before the Hon. Andrew Crecca on June 16, 2005, in
Suffolk County Court.
20

degrees of Petitioner’s 1997 convictions.11
Petitioner, however, is correct that the Government
mischaracterized his 1997 convictions in their appellate brief
opposing Petitioner’s argument that his sentence was excessive. In
their

brief,

the

Government

erroneously

stated

that

in

1997

Petitioner was convicted of two D-class felonies in the First
Degree, rather than one D-class felony in the First Degree and one
D-class felony in the Second Degree.

The Appellate Division

affirmed Petitioner’s sentence, finding that the sentence was not
excessive.

Schouenborg, 42 A.D.3d at 474, 840 N.Y.S.2d at 808.
Whether Petitioner was convicted of Assault in the First

Degree or Assault in the Second Degree has no bearing on the
excessiveness of his sentence, however. Petitioner offers no proof
that this error had any impact on him. Petitioner was sentenced to
five years’ imprisonment for each of the D-class felonies in his
1997 conviction.

(Hearing Tr. at 12-13.)

In order for his 1997

conviction to be considered toward his adjudication as a persistent
felony offender, Petitioner need only have been convicted and
served the five year sentence for one of the felonies.

As such,

the Government’s misclassification of the degree of one of his

11

The aforementioned hearing held by the sentencing court and the
Statement issued by the sentencing court are both part of the state
court record and were available to the Appellate Division.
21

underlying felonies did not prejudice Petitioner, and Petitioner’s
motion to stay in this regard is DENIED.
B.

Right to a Fair Trial by an Impartial Jury
Petitioner further claims that his Sixth Amendment right

to a fair trial by an impartial jury was violated.

However,

Petitioner offers no factual information to support this claim, nor
does he offer any explanation as to how this right was violated.
Rather, in support of his Sixth Amendment claim, Petitioner quotes
from the Sixth Amendment.

Bare, conclusory allegations without

supporting facts are insufficient to state a claim for habeas
relief, see United States v. Logan, 845 F. Supp. 2d 499, 511
(E.D.N.Y.

2012),

and,

since

Petitioner

has

not

offered

an

allegation, but only a quote from the Sixth Amendment, Petitioner’s
motion for a stay in this regard is DENIED.
C.

Ineffective Assistance of Trial and Appellate Counsel
Unlike Petitioner’s other claims, the Court finds that

his claim for ineffective assistance of appellate counsel is
potentially meritorious and otherwise meets the Rhines criteria.
1.

Potential Merit

Initially,

the

Court

notes

that

Petitioner’s

claim

regarding ineffective assistance of trial counsel is procedurally
barred, as it was not raised on appeal.

See, e.g., Ortiz v. Heath,

No. 10-CV-1492, 2011 WL 1331509, at *7-8 (E.D.N.Y. Apr. 6, 2011)
22

(where the petitioner fails to raise “on-the-record” failures12 to
provide effective assistance in a direct appeal, and the time to
bring a “Section 440.10(2)(c)” motion has passed, such a claim is
considered exhausted but procedurally barred).13
12

The Court reads the Petition to raise primarily “on-the-record”
failures by trial counsel, particularly his failure to preserve for
appellate review the argument of insufficient evidence to establish
Petitioner’s identity as the perpetrator and his failure to raise
or object to particular arguments.
13

Whether Petitioner’s claim for ineffectiveness of appellate
counsel is sufficient to overcome this procedural bar is an issue
that will not be addressed at this stage. In order to overcome a
procedural bar, Petitioner must show “‘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.’” Montalvo v. Annetts,
No. 02-CV-1056, 2003 WL 22962504, at *21 (S.D.N.Y. Dec. 17, 2003)
(quoting Coleman v. Thompson, 501 U.S. 722, 750, 111 S. Ct. 2546,
115 L. Ed. 2d 640 (1991)). A fundamental miscarriage of justice
typically means “actual innocence.” See Petronio v. Walsh, 736 F.
Supp. 2d 640, 657 (E.D.N.Y. 2010). Although Petitioner does state
that he has always maintained his innocence (Pet. at 1), actual
innocence requires a showing of “factual innocence,” such as
through new evidence, which Petitioner has not shown here.
Petronio, 736 F. Supp. 2d at 658 (finding that under a “new
interpretation of Section 125.25(2),” the evidence presented at
trial was legally insufficient to convict the petitioner of
depraved indifference murder); see also Dunham v. Travis, 313 F.3d
724, 730 (2d Cir. 2000) (“The district court’s reference to the
actual innocence exception is puzzling; Dunham presented no new
evidence of his innocence . . . .”); Cobb v. Artus, No. 08-CV-3955,
2010 WL 4242557, at *2 (S.D.N.Y. July 28, 2010) (“[P]etitioner must
support his claim of actual innocence with a proffer of ‘new
reliable evidence’ . . . .” (quoting Doe v. Menefee, 391 F.3d 147,
161 (2d Cir. 2004)).
However, Petitioner may also be able to overcome a procedural bar
if there was cause for the default and actual prejudice.
One
potential way of showing cause for the procedural default is
through a claim of ineffectiveness of assistance of appellate
23

However, Petitioner also raises an unexhausted claim for
ineffective assistance of appellate counsel.

Unlike Petitioner’s

claim regarding ineffective assistance of trial counsel, a claim
for ineffective assistance of appellate counsel cannot be deemed
procedurally barred because this argument may still be raised
through a writ of coram nobis.

See id. *8 (citing DiSimone v.

Phillips, 461 F.3d 181, 191 (2d Cir. 2006)).

Thus, the issue then

becomes whether Petitioner is entitled to a stay to exhaust his
claim

of

ineffective

assistance

of

appellate

counsel

through

bringing such a writ.
To prevail on a claim of ineffective assistance of
counsel, Petitioner “must show both that his counsel acted ‘outside
the wide range of professionally competent assistance,’ and that
the deficiencies is his counsel’s performance were prejudicial to
his defense.” Jameson v. Coughlin, 22 F.3d 427, 429 (2d Cir. 1994)
(quoting Strickland v. Washington, 466 U.S. 668, 690, 691-92, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).

In evaluating whether an

attorney’s representation has fallen “below an objective standard
of reasonableness,” Strickland, 466 U.S. at 688, a court must

counsel. Ortiz, 2011 WL 1331509, at *8. “Cause” as required to
overcome a procedural bar, however, may require a somewhat stricter
standard than “good cause” as part of the Rhines analysis in
considering a stay. See Bryant v. Greiner, No. 02-CV-6121, 2006 WL
1675938, at *5 (S.D.N.Y. June 15, 2006).
24

“indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance” id. at 689.
“Counsel has a duty to make reasonable investigations or make a
reasonable

decision

unnecessary.”

that

makes

particular

investigations

Id. at 691 (“[A] heavy measure of deference [is

accorded] to counsel’s judgments.”).
The second prong of the Strickland test requires that any
deficiencies
defense.

in

counsel’s

performance

be

See Strickland, 466 U.S. at 692.

prejudicial

to

the

While a finding of

prejudice is not dependent upon a showing “that counsel’s deficient
conduct more likely than not altered the outcome in the case,” id.
at 693, the petitioner nevertheless must establish “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.

“A reasonable probability is a probability sufficient

to undermine confidence in the outcome.”

Bunkley v. Meachum, 68

F.3d 1518, 1521 (2d Cir. 1995).
It is well established that counsel need not raise every
non-frivolous

issue

simply

because

a

client

suggests

it

“if

counsel, as a matter of professional judgment, decides not to
present those points.”

Jones v. Barnes, 463 U.S. 745, 751, 103 S.

Ct. 3308, 77 L. Ed. 2d 987 (1983); see also Abdurrahman v.
Henderson, 897 F.2d 71, 74 (2d Cir. 1990).
25

Further, there is a

strong

presumption

that

counsel

used

reasonable

judgment and conducted himself accordingly.

professional

See Clark v. Stinson,

214 F.3d 315, 321 (2d Cir. 2000) (quoting Strickland, 466 U.S. at
689).

However,

“a

petitioner

may

establish

constitutionally

inadequate performance if he shows that counsel omitted significant
and obvious issues while pursuing issues that were clearly and
significantly weaker.”
Cir. 1994).

Mayo v. Henderson, 13 F.3d 528, 533 (2d

“The Second Circuit Court of Appeals has adopted the

test for ineffective assistance of trial counsel for claims of
ineffective appellate counsel.” Mabee v. Phillips, No. 05-CV-4182,
2009 WL 3644077, at *5 (S.D.N.Y. Nov. 4, 2009) (citing Bunkley, 68
F.3d at 1521).
In arguing against a claim of ineffective assistance of
appellate

counsel,

the

Government

essentially

asserts

that

appellate counsel raised five grounds on appeal, and that his
failure to raise the frivolous arguments that Petitioner suggests
did not render his assistance ineffective. (Resp. Opp. Br., Docket
Entry

7,

arguments,

at

20.)

the

However,

Government

in

fails

characterizing
to

note

that

Petitioner’s
the

Petition,

liberally construed, can be read to assert that appellate counsel
was

ineffective

because

he

did

not

raise

the

potential

ineffectiveness of trial counsel, particularly insofar as trial
counsel did not preserve the argument regarding insufficiency of
26

the evidence to establish Petitioner’s identity as the perpetrator.
See Schouenborg, 42 A.D.3d at 473, 840 N.Y.S.2d at 808 (finding
that

insufficiency

of

the

evidence

to

establish

Petitioner’s

identity as the perpetrator was unpreserved for appellate review).
(Compare Pet. at 9 (arguing that trial counsel did a “poor job”),
with Pet. at 6 (arguing that appellate counsel disregarded findings
and refused to work with Petitioner).)

Given the Government’s

concession that eyewitness testimony was at least one of the
central pieces of evidence (see Resp. Opp. Br. at 9 (“We urge that
[P]etitioner’s guilt, which was established by reliable eyewitness
testimony as well as documentary, circumstantial and scientific
evidence, was proven beyond a reasonable doubt.”)), the Court finds
that Petitioner’s Sixth Amendment challenge to appellate counsel’s
failure to raise the fact that trial counsel did not preserve that
argument to be potentially meritorious.
2.

Good Cause

The Rhines court did not define “good cause,” and in the
years since Rhines, the Supreme Court has provided little guidance,
holding that in certain circumstances a petitioner’s “reasonable
confusion” may constitute good cause.

See Nieves v. Conway, No.

09-CV-3710, 2011 WL 2837428, at *2 (E.D.N.Y. July 14, 2011)
(quoting Pace v. DiGuglielmo, 544 U.S. 408, 416, 125 S. Ct. 1807,
161 L. Ed. 2d 669 (2005)); see also Ramdeo v. Phillips, No. 04-CV27

1157, 2006 WL 297462, at *6 (E.D.N.Y. Feb. 8, 2006) (observing that
neither the Supreme Court nor the Second Circuit has precisely
defined what constitutes “good cause under Rhines.”).

However,

district courts in this Circuit have routinely held that in order
to demonstrate good cause, a petitioner must show that “some factor
external to the petitioner gave rise to his failure to assert [his]
claims in state court.”

Nieves, 2011 WL 2837428, at *2 (internal

quotation marks and citations omitted) (collecting cases); see also
Williams v. Marshall, No. 09-CV-7411, 2011 WL 1334849, at *2
(S.D.N.Y. Mar. 30, 2011) (“Although the term ‘good cause’ has not
been defined with geometric precision, most courts have deemed it
to require . . . some factor external to the petitioner.” (citing
Whitley v. Ercole, 509 F. Supp. 2d 410, 417 (S.D.N.Y. 2007)));
Ramdeo, 2006 WL 297462, at *2 (“[M]ost of the courts which have
thus far engaged in an in-depth analysis of the issue have required
that ‘good cause’ arise from something external, and not fairly
attributable, to the petitioner.”).
Even without a precise definition of good cause, there is
a “general consensus that an ineffective assistance of counsel
claim itself is good cause.”

Bryant, 2006 WL 1675938, at *5

(citing Wallace v. Artus, No. 05-CV-0567, 2006 WL 738154, at *4
(S.D.N.Y. Mar. 23, 2006)).

Furthermore, the Court finds that

Petitioner “has provided some indication that his failure to
28

exhaust is, at least in part, attributable to external factors.”
Id. at *6.

In documents attached to the Petition, Petitioner

explains that trial counsel did not provide him with requested
legal documents and transcripts and that appellate counsel was
virtually

incommunicado.

(Pet.

at

ECF

26.)

In

addition,

Petitioner’s motion to compel the Court’s assistance in obtaining
transcripts

(Docket

Entry

15)

documents

how

Petitioner

has

unsuccessfully attempted to obtain the state court transcripts.
Accordingly, Petitioner’s motion for a stay in this
regard is GRANTED.
III.

Petitioner’s Exhausted Claims
The Petition also raises two claims which this Court

considers exhausted: (1) that the trial court abused its discretion
and erred by allowing a two-year-old driver’s license photo of
Petitioner into evidence; and (2) that the evidence was legally
insufficient

to

establish

Petitioner’s

identity

as

the

perpetrator14.

14

This claim is procedurally barred and therefore deemed exhausted
because the Appellate Division, Second Department determined that
it was unpreserved for appellate review.
See Schouenborg, 42
A.D.3d at 473, 840 N.Y.S.2d at 808; see also Fama v. Comm’r of
Corr. Servs., 235 F.3d 804, 811 n.4 (2d 2000) (“[W]here a state
court says that a claim is ‘not preserved for appellate review’ and
then ruled ‘in any event’ on the merits, such a claim is not
preserved.”). Again, the Court will not decide, at this juncture,
whether Petitioner is able to overcome this procedural bar.
29

While considerations of judicial economy might suggest
addressing Petitioner’s exhausted claims now, the Court must defer
ruling on these claims.

It is the presence of an exhausted claim

that allows the Court to stay the proceeding in the first place:
“If the Court were to rule on the exhausted claims, it would be
left with a petition containing only unexhausted claims; the Court
can only dismiss such a petition.”

Keating v. New York, 708 F.

Supp. 2d 292, 303 n.16 (E.D.N.Y. 2010) (emphasis in original).
“Accordingly the Court will defer ruling on the exhausted claims
and address them if and when the stay is lifted.”
IV.

Id.

Appointment of Counsel
Although a habeas corpus petitioner has no constitutional

right to counsel, the court may appoint counsel “when the interests
of justice so require.”

18 U.S.C. § 3006A(a)(2)(B).

Courts

possess broad discretion when determining whether appointment is
appropriate, “subject to the requirement that it be ‘guided by
sound legal principles.’”

Cooper v. A. Sargenti Co., Inc., 877

F.2d 170, 171-72 (2d Cir. 1989) (quoting Jenkins v. Chemical Bank,
721 F.2d 876, 879 (2d Cir. 1983)).
In deciding whether to exercise their discretion to
appoint counsel in a habeas corpus proceeding, a district court
must look to the standard set forth by the Second Circuit in
determining whether to appoint counsel to indigent civil litigants
30

under 28 U.S.C. § 1915. See Lawson v. Taylor, No. 10-CV-0477, 2011
WL 839509, at *1 (E.D.N.Y. Mar. 2, 2011); Williams v. Breslin, 06CV-2479, 2008 WL 163599, at *1 (E.D.N.Y. Jan. 10, 2008).

The

Second Circuit has set forth the guiding legal principle as
follows:
First, the district court must “determine
whether the indigent’s position seems likely
to be of substance.” If this threshold
requirement is met: “the court should then
consider the indigent’s ability to investigate
the
crucial
facts,
whether
conflicting
evidence implicating the need for crossexamination will be the major proof presented
to the fact-finder, the indigent’s ability to
present the case, the complexity of the legal
issues and any special reason . . . why
appointment of counsel would be more likely to
lead to a just determination.”
Rivas v. Suffolk Cnty., Nos. 04-4813, 04-5198, 2008 WL 45406, at *1
(2d Cir. Jan. 3, 2008) (quoting Hodge v. Police Officers, 802 F.2d
58, 61-62 (2d Cir. 1986)).

The Second Circuit has explained that

these factors are not restrictive and that “[e]ach case must be
decided on its own facts.”

Hodge, 802 F.2d at 61.

The Court has evaluated the Petition and finds that
appointment

of

counsel

is

warranted

here.

The

threshold

requirement of Hodge has been met and the balance of factors weighs
in favor of appointment of counsel.

Therefore, the Court hereby

orders the appointment of counsel from the Criminal Justice Act
Habeas Corpus Panel for the purpose of representing Petitioner.
31

V.

Motion for Assistance Obtaining Transcripts
Finally, Petitioner also moves for Court assistance in

obtaining transcripts.

(Docket Entry 15.)

As this Court has

appointed counsel, Petitioner’s current motion is DENIED with leave
to refile through counsel.
CONCLUSION
For the foregoing reasons, Petitioner’s motion for a stay
of his Petition pending exhaustion in state court is GRANTED IN
PART and DENIED IN PART. It is GRANTED insofar as Petitioner seeks
to exhaust his claim for ineffective assistance of appellate
counsel, but otherwise DENIED.
In addition, the Court hereby ORDERS that Kevin Keating,
Esq., be appointed as counsel for Petitioner. Mr. Keating, having
accepted

the

appointment,

shall

promptly

file

a

notice

of

appearance and notify Petitioner of his representation.
Finally,

Petitioner’s

motion

to

compel

the

Court’s

assistance in obtaining transcripts is DENIED with leave to refile
through counsel.
The Clerk of Court is directed to amend the caption to

32

name the Superintendent of the Auburn Correctional Facility as the
Respondent and to mail a copy of this Memorandum and Order to
Petitioner.
SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated:

September
30 , 2013
Central Islip, New York

33