Dominique v. Artus
Filing
34
DECISION AND ORDER: Dominique's petition for a writ of habeas corpus is DENIED in its entirety. A certificate of appealability shall not issue. The Clerk of the Court is directed to service notice of entry of this Order on all parties and to close the case. C/M. Forwarded for judgment. Ordered by Judge William F. Kuntz, II on 6/17/2014. (Chee, Alvin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------)(
ALY DOMINIQUE,
Petitioner,
DECISION AND ORDER
09-cv-623 (WFK)
-againstDALE ARTUS, SUPERINTENDENT,
Respondent.
--------------------------------------------------------------)(
WILLIAM F. KUNTZ, II, United States District Judge:
Before the Court is a petition for the writ of habeas corpus pursuant to 28 U.S.C. § 2254 by
Petitioner Aly Dominique. Following a jury trial in state court, Petitioner was convicted of
attempted murder in the second degree and conspiracy in the second degree. Petitioner has
brought numerous, unsuccessful state collateral attacks on his conviction-often at improper
procedural junctures-and his direct appeal of the conviction was denied by the New York State
Supreme Court, Appellate Division, Second Department (the "Second Department"). Now,
Petitioner seeks federal habeas relief in this Court alleging fourteen constitutional violations.
However, the majority of Petitioner's claims were never fairly presented to the state courts and
can no longer be brought there. Three of Petitioner's claims were dismissed on independent and
adequate state grounds. And Petitioner's one claim that is ripe for review in this Court is plainly
meritless. For the reasons below, the petition for the writ of habeas corpus is denied in its
entirety.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2000, Petitioner plotted to kill his deceased brother's wife (hereinafter "the
victim"). (Dkt. 18, Resp't's Br. in Opp., Declaration of Andrea M. DiGregorio ("Deel.")
ii 4).
On October 30, 2000, Petitioner drove two hitmen to the victim's home where the hitmen waited
in ambush. (Id.) When the victim emerged, the hitmen shot her in the head and hand, but the
injuries were not fatal. (Id.) Petitioner was arrested the next day following an investigation.
(Id.) After being advised of his rights, Petitioner confessed, orally and in writing, to his efforts
in attempting to have the victim killed. (Id.) Petitioner was indicted in Nassau County for
attempted murder in the first degree, assault in the second degree, and conspiracy in the second
degree. (Id.
ii 5).
During a jury trial in Nassau County Court, Petitioner successfully requested that
attempted murder in the second degree be charged to the jury as a lesser included offense. (Id.
ii
6). On February 25, 2002, Petitioner was convicted of attempted murder in the second degree
and conspiracy in the second degree. (Id.)
Prior to the entry of judgment, Petitioner's attorney brought a motion under New York
Criminal Procedure Law ("N.Y. C.P.L.") § 330.30 alleging jury misconduct and that prosecution
witness Greg San Filippo had erroneously testified. (Id.
ii 7). By Decision and Order of July 22,
2002, the court denied the motion finding no legal ground for juror misconduct and that the
alleged erroneous testimony did not warrant setting aside the verdict. (Id.
ii 8).
On June 14, 2002, Petitioner filed an application for federal habeas corpus relief asserting
fifteen grounds for relief. (Id.
ii 9). The Honorable Joarma Seybert of the United States District
Court for the Eastern District of New York dismissed that petition with leave to re-file when the
judgment of conviction became final. Dominique v. Reilly, 02-cv-3677, Dkt. 12 (E.D.N.Y. Aug.
5, 2002).
On June 27, 2002, prior to his sentencing, Petitioner brought a N.Y. C.P.L. § 440.10
motion to vacate the judgment raising numerous alleged violations in connection with the trial.
(Deel.
ii 12). Despite being represented by counsel, the Petitioner filed the motion prose.
(Id.
ii
14). The court denied the motion as premature and held that two of the issues had been raised,
and denied, in the§ 330.30 motion. (Id.)
-2-
On July 23, 2002, the court sentenced the Petitioner to a determinate term of twenty-five
years imprisonment on the attempted murder conviction and a concurrent, indeterminate eight
~
and one-third to twenty-five year term for the conspiracy conviction. (Id.
counsel, Petitioner filed a timely appeal in the Second Department. (Id.
~
15). With new
16). On appeal,
Petitioner, with appellate counsel, claimed that: the verdict of "not guilty" on the second-degree
assault charge was repugnant to the verdict of "guilty" on the attempted murder charge;
Petitioner was deprived of his right to confront accusers; there was improper bolstering of
prosecution witnesses; it was error to elicit that the defendant refused to make a videotape of his
confession; there was improper vouching of his co-conspirator's testimony; and the sentence was
excessive. (Id.
~
16). The Second Department held that all of Petitioner's claims were without
merit and affirmed the judgment. People v. Dominique, 36 A.D.3d 624, 625-26 (2d Dep't
2007).
During the pendency of that appeal, on October 25, 2005, Petitioner brought a New York
Civil Practice Law and Rules ("N.Y. C.P.L.R.") Article 78 proceeding against the Nassau
County District Attorney and the New York State Attorney General. (Deel.
~
19). Petitioner
contended that the trial court impermissibly amended the indictment, that he was convicted of a
crime for which he had not been indicted, and that the court did not have jurisdiction to sentence
him "for a crime that exist[ed] only in the imagination of the judge." (Id.) The Supreme Court,
Nassau County denied Petitioner's application in its entirety and held: "The nature of relief
sought is not applicable in this instance .... The proper remedy is an appeal .... Finally, on the
merits, the petition fails."
(Id.~
21).
On May 4, 2006, Petitioner moved, pursuant to N.Y. C.P.L. § 440.10, to vacate his
judgment. (Id.
~
22). Petitioner filed two addendums to his motion and ultimately "raised the
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following claims: (1) the trial court lost jurisdiction of the case when defense counsel waived
defendant's appearance for the presentation of some Rosario material; (2) the indictment was
impermissibly amended and he was improperly sentenced; (3) there were 'faulty court
proceedings'; (4) defendant acquired 'newly discovered evidence' which, had he been in
possession of it at trial, would have resulted in the verdict being more favorable to him; (5) the
police allegedly conducted an unlawful search of defendant's home and office; (6) defense
counsel was ineffective; and (7) the prosecutor allegedly suborned perjury." (Id.)
The Nassau
County Court denied the motion in a decision on August 25, 2006, holding that all claims, except
for the newly discovered evidence claim, were issues that Petitioner needed to raise on direct
appeal. (Id.
~
24). The court found the newly discovered evidence claim was without merit.
(Id.). 1 The Second Department denied Petitioner leave to appeal his § 440.10 motion. (Id. ~ 25).
Thereafter, on October 3, 2007, Petitioner moved under N.Y. C.P.L. § 440.20 to set aside
his sentence. (Id.
~
26). He contended that the County Court lacked jurisdiction to sentence him
to the "hypothetical (nonexistent) charge of Attempted Murder in the Second Degree." (Id.)
That decision was dismissed by Justice Peck "with leave to renew, pursuant to C.P.L. § 440.10."
(Id.
~
29). The Petitioner took the court's leave and filed a§ 440.10 motion on January 17, 2008
asserting his original claim and adding that "a charge of Conspiracy in the Second Degree is
incompatible to a nonexistent crime of Attempted Murder in the Second Degree." (Id.
~
30).
Justice Peck denied this motion on the merits, finding that the claims should have been raised on
direct appeal and were nonetheless meritless. (Id.
Petitioner's motion for leave to appeal. (Id.
~
~
32). The Second Department denied the
35).
1
Petitioner's newly discovered evidence claim was based upon his "discovery" ofa new Miranda card;
however, Petitioner was subsequently convicted of forging that purported Miranda card. (Id. at xii, n.22).
--4-
In September 2008, Petitioner brought an Article 78 petition in the Supreme Court,
Albany County against, among others, the prosecutor who tried his case.
(Id
~
36). This
proceeding was dismissed as facially deficient as the Petitioner failed to state a viable claim for
an Article 78 petition. (Id
~
38).
On September 12, 2008, the Petitioner moved for a writ of error coram nobis alleging that
he received ineffective assistance of appellate counsel. (Id
~
39). The Petitioner asserted that
his appellate counsel should have made the following arguments on direct appeal of his
conviction: (1) the trial court and the prosecutor had no jurisdiction to charge and sentence
defendant to a hypothetical crime; (2) the trial judge and the attorneys for all parties failed to
understand that a defendant is entitled to be present at all material stages of the proceedings; (3)
evidence used at trial was irrelevant and illegally obtained through violations of the Fourth and
Fifth Amendments of the United States Constitution; (4) the prosecutor violated Petitioner's
Sixth Amendment right of confrontation by using trial testimony of a co-defendant of whom he
had full control, and other evidence, without affording Petitioner the opportunity for crossexamination; (5) the trial judge denied Petitioner his right to proper summation by repeatedly and
unlawfully amending the grand jury indictment before and during deliberations; (6) Petitioner
was denied a fair trial by the trial court's improper discharge of a sworn juror in violation of
N.Y. State Constitution Art. 1, § 2, and C.P.L. § 270.15(3); (7) Petitioner was denied a fair trial
by the court's failure, following the court's charge, to separate and prevent an alternate juror
from participating in the deliberation process, thereby increasing the number of jurors to thirteen;
(8) the prosecutor misled the court and the jury through his acts of perjury at the trial; (9) the trial
judge committed reversible errors by tainting the jury process with his opening remarks,
allowing the prosecutor to submit newspaper prints as evidence, and failing to hold a hearing
-5-
after reported allegations of jury misconduct in reading a newspaper article concerning the trial;
(! 0) Petitioner was denied a fair trial when the trial court received into evidence an inaudible
tape without construction of proper foundations; (11) coercive instructions by the trial judge
during deliberations forced the jury to reach a verdict and ruled out any possibility of a hung
jury, compounded by failure to keep the jury sequestered; (12) the trial judge denied Petitioner
his right to a public trial by keeping the courthouse doors closed for more than five hours until
the final recess of the day; and (13) Petitioner received ineffective assistance of trial counsel.
(Id
'if 39).
In response, the People argued that Petitioner's appellate counsel provided a well-written
brief on six good faith issues while ignoring issues Petitioner wanted his attorney to raise, but
were meritless or unpreserved for appellate review. (Id.
'if 40). The Second Department denied
the Petitioner's motion holding that he "failed to establish that he was denied the effective
assistance of appellate counsel." People v. Dominique, 56 A.D.3d 571, 572 (2d Dep't 2008).
The Court of Appeals subsequently denied Petitioner's motion for leave to appeal on January 28,
2009. People v. Dominique, 11 N.Y.3d 924 (2009).
On February 3, 2009, Petitioner filed this application for the writ of habeas corpus in the
United States District Court for the Northern District of New York. (Deel.
'if 43). The petition
was transferred to the United States District Court for the Eastern District of New York by order
of the Honorable Thomas J. McAvoy, U.S.D.J., on February 13, 2009. (Id.) Petitioner seeks a
writ of habeas corpus alleging the following claims: (A) the trial court and prosecutor had no
jurisdictional power to accuse and sentence Petitioner to a nonexistent or hypothetical crime
(hereinafter "Ground A"); (B) Petitioner was denied the right to be present during a material
stage of his trial (hereinafter "Ground B"); (C) irrelevant, personal, and illegally obtained
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evidence was used at trial (hereinafter "Ground C"); (D) Petitioner was denied his right to
confront his co-defendants (hereinafter "Ground D"); (E) Petitioner's exculpatory evidence was
confiscated before trial and never returned to him (hereinafter "Ground E"); (F) the trial court
denied Petitioner his right to a proper summation because it repeatedly and unlawfully amended
the indictment before and during deliberations (hereinafter "Ground F"); (G) Petitioner was
denied a fair trial by the trial court's improper discharge of a sworn juror (hereinafter "Ground
G"); (H) Petitioner was denied a fair trial by the trial court's failure to separate and prevent an
alternate juror from participating in the deliberations (hereinafter "Ground H"); (I) the prosecutor
committed perjury and suborned perjury by inviting an investment broker to testify falsely
against Petitioner (hereinafter "Ground I"); (J) the trial court erred by tainting the jury process
with its opening remarks, allowing the prosecutor to submit newspaper articles as evidence, and
failed to hold a hearing after there were reported allegations of jury misconduct involving the
reading of a newspaper article (hereinafter "Ground J"); (K) the trial court allowed a tape into
evidence without a proper foundation (hereinafter "Ground K"); (L) the trial court denied
Petitioner a fair trial by forcing the jury to reach a verdict (hereinafter "Ground L"); (M) the trial
court deprived Petitioner of his right to a public trial by keeping the courthouse doors closed for
more than five hours (hereinafter "Ground M"); and (N) Petitioner was denied effective
assistance of trial and appellate counsel, and the right to hire his own lawyer (hereinafter
"Ground N").
This petition was initially assigned to the Judge Seybert. (Dkt. 5). An Order to Show
Cause was issued on June 29, 2009. (Dkt. 6). The Nassau County District Attorney's Office
opposed the petition in a brief and declaration filed on October 16, 2009.
(Dkt. 18). The
Petitioner filed a brief in reply on November 20, 2009. (Dkt. 20). In an Order dated February
-7-
11, 2010, Judge Seybert denied Petitioner's motions (1) for discovery, (2) for an evidentiary
hearing, and (3) requesting that Respondent provide a copy of the trial transcripts and all
evidence used at trial to Petitioner. (Dkt. 22).
On October 12, 2011, the petition was transferred to this Court.
This Court denied
Petitioner's request to expand the record on September 26, 2013. (Dkt. 33). At last, the Court
now turns to the pending petition for the writ of habeas corpus.
ANALYSIS
This Court's review of Dominique's petition is governed by The Antiterrorism and
Effective Death Penalty Act of 1996 ("AEDPA"), 28. U.S.C. § 2254. Before the Court can
consider the merits of the petition, compliance with AEDPA's procedural requirements must be
ensured. As the Government has not asserted a statute of limitations defense, we begin with our
consideration of Petitioner's claims that are technically exhausted, but were never fairly
presented in state court. Next, we review Petitioner's claims that are barred by independent and
adequate state procedural rules. Last, we consider the merits of Ground N. Ultimately, the Court
finds that none of Petitioner's claims warrants the issuance of the writ of habeas corpus.
A. The Majority of Petitioner's Claims Are Procedurally Barred
Grounds B, D, F, G, H, I, J, K, L, M, and one aspect of Ground N2 of the petition are
claims based on the record at trial that were not presented to the Second Department on direct
appeal in the state system. These claims were therefore never fairly presented to the state court
for review. The Petitioner is no longer able to raise such claims before the appellate division,
2
To the extent Ground N argues that trial counsel was ineffective for failing to argue that Petitioner's
sentence should have been vacated because he was convicted of an "illegal" and "nonexistent" crime, that
claim is based on the trial record, yet it was not raised on direct appeal. For the reasons below, it is
therefore procedurally barred from being raised now.
-8-
having already made, and lost, his direct appeal. Without having fairly presented his claims to
the state court and with no opportunity to now do so, Petitioner's claims are foreclosed from
federal habeas review in this Court.
Under § 2254, a habeas petitioner serving a state sentence must first exhaust all available
state court remedies. 28 U.S.C. § 2254(b); Baldwin v. Reese, 541 U.S. 27, 29 (2004). "State
remedies are deemed exhausted when a petitioner has: (i) presented the federal constitutional
claim asserted in the petition to the highest state court (after preserving it as required by state law
in the lower courts) and (ii) informed that court (and lower courts) about both the factual and
legal bases for the federal claim." Ramirez v. Attorney Gen. of New York, 280 F.3d 87, 94 (2d
Cir. 2001 ). "When a claim has never been presented to a state court, a federal court may
theoretically find that there is an 'absence of available State corrective process' under §
2254(b)(1 )(B)(i) if it is clear that the unexhausted claim is procedurally barred by state law and,
as such, its presentation in the state forum would be futile. In such a case the habeas court
theoretically has the power to deem the claim exhausted." Aparicio v. Artuz, 269 F.3d 78, 90 (2d
Cir. 2001) (quoting Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997)). As the Circuit has
recognized, this is a pyrrhic victory for the federal habeas petitioner, because "when 'the
petitioner failed to exhaust state remedies and the court to which the petitioner would be required
to present his claims in order to meet the exhaustion requirement would now find the claims
procedurally barred,' federal habeas courts also must deem the claims procedurally defaulted."
Id. (quoting Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991)).
Dismissal of a federal habeas petition on procedural default grounds "differs crucially"
from a dismissal for failure to exhaust state court remedies because a procedural default
constitutes "an adjudication of the merits." Turner v. Artuz, 262 F.3d 118, 122-23 (2d Cir.
-9-
2001). "This means that any future presentation of the claim would be a second or successive
habeas petition, requiring authorization by [the Second Circuit] pursuant to 28 U.S.C. §
2244(b)(3)(A)." Aparicio, 269 F.3d at 90. "For a procedurally defaulted claim to escape this
fate, the petitioner must show cause for the default and prejudice, or demonstrate that failure to
consider the claim will result in a miscarriage of justice (i.e., the petitioner is actually
innocent)." Id (citing Coleman, 501 U.S. at 748-50). This doctrine and the "attendant 'cause
and prejudice"' standard, discussed below, are "grounded in our concerns for federalism and
comity between the state and federal sovereigns" and ensure that federal courts "respect the
States' interest in correcting their own mistakes." Id at 90 (citing Coleman, 501 U.S. at 730-32).
"The doctrine applies whether the default occurred at trial, on appeal or on state collateral
review." Id. (citing Murray v. Carrier, 477 U.S. 478, 490-92 (1986)).
N.Y. C.P.L. § 440.10(2)(c) "requires a state court to deny a motion to vacate a judgment
based on a constitutional violation where the defendant unjustifiably failed to argue the
constitutional violation on direct appeal despite a sufficient record." Sweet v. Bennett, 353 F.3d
135, 139 (2d Cir. 2003). "The purpose of this rule 'is to prevent Section 440.10 from being
employed as a substitute for direct appeal when the defendant was in a position to raise an issue
on appeal ... or could readily have raised it on appeal but failed to do so.'" Id (quoting People v.
Cooks, 67 N.Y.2d 100, 103 (1986)).
Here, Grounds B, D, F, G, H, I, J, K, L, M, and one aspect of Ground N, see n.1 supra,
could have been raised on direct appeal as they were based on the record at trial. And while
these claims were presented in Petitioner's coram nobis application, that procedural vehicle does
not "fairly present" the underlying claim to the state court. See Turner, 262 F.3d at 123 (citing
People v. Gordon, 183 A.D.2d 915 (2d Dep't 1992)) ("In a criminal action, the writ of error
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coram nobis lies in [the state appellate court] only to vacate an order determining an appeal on
the ground that the defendant was deprived of the effective assistance of appellate counsel.").
The writ for error of coram nobis exhausted Petitioner's claim for ineffective assistance of
appellate counsel, but the only constitutional claim that Petitioner "was permitted to raise in
seeking a writ of error coram no bis was ineffective assistance of appellate counsel, a claim that is
distinct from [the underlying claims] in procedural terms under state law and in their federal
constitutional sources." Id. "A court considering ineffective assistance might never reach the
underlying constitutional claims, and the rejection of the ineffective assistance claims without
detailed comment does not bespeak any necessary ruling on the underlying constitutional
claims." Id.
Petitioner lacks a state procedural outlet to raise the claims in Grounds B, D, F, G, H, I, J,
K, L, M, and one aspect of Ground N with any New York court. Each of the above grounds for
federal habeas relief is based on matters of records from the Petitioner's judgment of conviction
and should have been raised on direct appeal. As discussed above, the lack of an "available State
corrective process" renders Petitioner's claims exhausted. However, he has already exercised his
one and only direct appeal to the Appellate Division. See Aparicio, 269 F.3d at 91 (citing 28
U.S.C. §2254(b)(l)(B)(i); N.Y. Crim. Proc. Law§ 450.10(1); N.Y. Court R. § 500.IO(a)). With
Petitioner lacking an appropriate state outlet for his claims, this Court will treat the claims as
exhausted, but procedurally defaulted as a New York state court would find them barred from
consideration pursuant to the applicable rule of procedural law. See id.; see also Sweet, 353 F.3d
at 140.
"[P]rocedural default can only be cured by a showing of cause for the default plus
prejudice, or a showing of actual innocence." Aparicio, 269 F.3d at 91 (citing Coleman, 501 U.S.
-II-
at 748-49). Petitioner's sole ground for cause would be the ineffective assistance of his appellate
counsel, which will only be found if counsel's ineptitude qualifies as a Sixth Amendment violation
of Petitioner's constitutional right to an attorney. See Edwards v. Carpenter, 529 U.S. 446, 451
(2000).
As the Court holds that Petitioner was not given ineffective assistance of appellate
counsel, there is no adequate cause to excuse his procedural default. See Aparicio, 269 F.3d at 9192; see also Carvajal v. Artus, 633 F.3d 95, I 08 (2d Cir. 2011).
Furthermore, Petitioner has not shown that there was a fundamental· miscarriage of
justice, i.e. that he is actually innocent nor that "in light of all the evidence, it is more likely than
not that no reasonable juror would have convicted him." Sweet, 353 F.3d at 142 (citing Schlup v.
v. Delo, 513 U.S. 298, 327-28 (1995)). "The Supreme Court has explained that the fundamental
miscarriage of justice exception is 'extremely rare' and should be applied only in 'the
extraordinary cases."' Id (quoting Schlup, 513 U.S. at 321-22). "Petitioner does not rely on or
present any 'exculpatory scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence,' that was not presented at trial." Diaz v. Bellnier, 08-CV-4009, 2012 WL
4447357, at *7 (E.D.N.Y. Sept. 24, 2012) (Brodie, J.) (quoting Schlup, 513 U.S. at 324); Doe v.
Menefee, 391 F.3d 147, 161 (2d Cir. 2004) (There is a "limited ... type of evidence on which an
actual innocence claim may be based" "in order to take advantage of the [Schlup] gateway[,]"
which includes "exculpatory scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence-that was not presented at trial."); cf Rivas v. Fischer, 687 F.3d 514, 546-47
(2d Cir. 2012) (finding that the petitioner had "a close case" that only passed the Schlup standard
because the petitioner was able to present reliable scientific expert testimony not presented to the
jury and stating that the Second Circuit "would not expect a lesser showing of actual innocence
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to satisfy the Schlup standard"). Accordingly, there is no cure for Petitioner's procedural default
and Grounds B, D, F, G, H, I, J, K, L, M, and one aspect of Ground N of the petition are denied.
B. Grounds A, C, and E are Barred by Independent and Adequate State Grounds
In a § 2254 petition, a federal court faced with a claim that was dismissed by the state
court pursuant to an independent and adequate state ground for dismissal must defer to the state
law ruling and decline to review the federal claim. Whitley v. Ercole, 642 F.3d 278, 285 (2d Cir.
2011); see also Coleman, 501 U.S. at 750. Here, Petitioner's claims in Grounds A, C, and E of
his petition for habeas relief were rejected by the state court on state law procedural grounds and
were therefore dismissed "independent[ly] of federal constitutional law." Murden v. Artuz, 497
F.3d 178, 193 (2d Cir. 2007).
"To bar federal habeas review, however, the state court's decision must rest not only on
an independent procedural bar under state law, but also on one that is 'adequate to support the
judgment."' Id. at 191-92 (citing Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir. 2006)). "A
state procedural bar is adequate if it is firmly established and regularly followed by the state in
question in the specific circumstances presented in the instant case." Id. (citing Monroe v.
Kuhlman, 433 F.3d 236, 241 (2d Cir. 2006)) (internal quotations omitted). The Second Circuit
has articulated the following guideposts for determining whether state procedural grounds were
adequate: "(!) whether the alleged procedural violation was actually relied on in the trial court,
and whether perfect compliance with the state rule would have changed the trial court's decision;
(2) whether state caselaw indicated that compliance with the rule was demanded in the specific
circumstances presented; and (3) whether petitioner had 'substantially complied' with the rule
given 'the realities of trial,' and, therefore, whether demanding perfect compliance with the rule
would serve a legitimate governmental interest." Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir.
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2003) (citing Lee v. Kemna, 534 U.S. 362, 376 (2002)). These factors are "not a three-prong
test[,]" but are "guideposts to aid inquiry," and a federal habeas court need only consider the
germane factors.
Clark v. Perez, 510 F.3d 382, 391 (2d. Cir. 2008); see also Monroe v.
Kuhlman, 433 F.3d 236, 242 (2d Cir. 2006).
1. GroundA
Ground A was raised in Petitioner's January 17, 2008 N.Y. C.P.L. § 440.10 motion. It
was rejected by the county court under N.Y. C.P.L. § 440.10(2)(c) and (3)(a), as a claim that was
based on the record that should have been brought on direct appeal.
(Resp't's Br., Ex. 30,
County Court's June 26, 2008 Decision Denying Defendant's January 2008 C.P.L. § 440.10
Motion at 3-4; see also Deel.
~
32). The state court's ruling on this ground was independent of
federal constitutional law as it "fairly appears to rest primarily on state procedural law."
Murden, 497 F.3d at 191 (quoting Jimenez, 458 F.3d at 138).
Of course, the state procedural bar must also be adequate. As to the first Cotto factor,
"[t]he trial record has little or no bearing when the procedural bar arises after trial[.]" Clark, 510
F.3d at 391. The final Cotto factor is also not germane under these circumstances. The second
Cotto factor "considers whether state case law indicates that compliance with a procedural rule
was required under the specific circumstances of the case." Id at 392. Upon a review of New
York law, the rule that a claim based upon a matter of record at trial cannot serve as the basis for
relief under N.Y. C.P.L. § 440.10 is firmly established and regularly followed in New York. See
People v. Cooks, 67 N.Y.2d 100, 103-04 (1986) ("The purpose of those provisions is to prevent
CPL 440.l 0 from being employed as a substitute for direct appeal when defendant was in a
position to raise an issue on appeal ... or could readily have raised it on appeal but failed to do
so[.]") (internal citations omitted); People v. Williams, 5 A.D.3d 407, 407 (2d Dep't 2004);
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People v. Allen, 285 A.D.2d 470, 471 (2d Dep't 2001); see also Andrews v. Downstate Corr.
Facility, 09-CV-1555, 2009 WL 3587280, at *3 (E.D.N.Y. Oct. 27, 2009) (Gleeson, J.). Here,
Petitioner's claim that the charge of attempted second degree murder was a hypothetical or
nonexistent crime was apparent on the record at trial and must have been brought on direct
appeal. Accordingly, the independent procedural ground used to dismiss Ground A when raised
in Petitioner's January 2008 § 440.10 motion was adequate. See Clark, 510 F.3d at 393 (holding
the state court's application of§ 440.10(2)(c) was an adequate state procedural bar to collateral
federal habeas review); Acevedo v. Capra, 13-CV-5579, 2014 WL 1236763, at *10 (E.D.N.Y.
Mar. 25, 2014) (Cogan, J.) ("The Second Circuit has regularly held that a court's denial of a §
440 .10 motion on the basis of the movant' s failure to raise an issue on direct appeal is an
independent and adequate state ground barring federal habeas review."); Holmes v. Brown, 1OCV-03592, 2013 WL 6408496, at *10 (E.D.N.Y. Dec. 6, 2013) (Amon, CJ.) (same).
2. GroundE
Ground E, raised in Petitioner's June 2002 N.Y. C.P.L. § 440.10 motion, was dismissed by
the state court as premature because such a motion may only be properly brought following the
entry of judgment.
(Resp't's Br., Ex. 9, County Court's July 22, 2002 Decision Regarding
Defendant's June 2002 C.P.L. § 440.10 Motion at 1; see also Deel., 14). Again, the state court's
ruling on this ground was independent of federal constitutional law as it "fairly appears to rest
primarily on state procedural law." Murden, 497 F.3d at 191 (quoting Jimenez, 458 F.3d at 138).
Furthermore, a review of the Cotto factors and New York state law confirms that § 440.lO(l)'s
requirement that such motion must be made "after the entry of a judgment" was adequate. This
procedural violation was actually relied upon by the County Court and New York caselaw is clear
that § 440.l 0 motions are found to be premature when brought prior to judgment. See People v.
-15-
Spirles, 294 A.D.2d 810, 811 (4th Dep't 2002); People v. Bailey, 275 A.D.2d 663, 664 (!st Dep't
2000); People v. Burt, 246 A.D.2d 919, 923 (3rd Dep't 1998); People v. Burdash, 102 A.D.2d 948,
949 (3rd Dep't 1984); see also N.Y. C.P.L. § 440.10(1) ("At any time after the entry of a
judgment, the court in which it was entered may, upon motion of the defendant, vacate such
judgment[.]") (emphasis added). As to the final Cotto factor, perfect compliance with this rule
serves the reasonable state policy interest of requiring all challenges under § 440. l 0 to occur after
judgment, instead of allowing for piecemeal and successive motions draining the judicial resources
of the already over-burdened state courts. In sum, the denial of Petitioner's June 2002 N.Y. C.P.L.
§ 440.10 motion as premature was an independent and adequate state ground barring federal
habeas review by this Court.
3. GroundC
The claims in Ground C were also dismissed by the state courts, on two separate occasions,
on independent and adequate state law procedural grounds. Respondent's brief expressed initial
uncertainty as to the exact nature of Ground C in light of its simultaneous brevity and breadthPetitioner alleges a broad swath of constitutional violations, while providing only minimal
guidance to ascertain the exact nature of each violation. It is clear, however, from Petitioner's
reply brief that he is echoing claims made in two prior N. Y. C.P.L. § 440. l 0 motions.
The pending claim in Ground C-that "evidences used at trial were irrelevant, personal,
and illegally obtained in violation of the Fourth and Fifth Amendments of the United States
Constitution, and the Exclusionary Principle"--concems the nature of the warrant and search
conducted at Petitioner's home and office after his arrest. (Pet.'s Reply Br. at 27-33). However,
Petitioner's June 2002 § 440.10 motion asserted that the police entered his resident with a forged
warrant and his May 2006 § 440.10 motion asserted that the police conducted an unlawful search
-16-
of his home and office.
(Resp't's Br., Ex. 7, Defendant's C.P.L. § 440.10 Motion at 4-5;
Resp't's Br., Ex. 17, Defendant's May 4. 2006 C.P.L. § 440.10
~~
Motion~~
18-24; see also Deel.
12, 22). As discussed above, both of these motions was rejected under New York procedmal
rules. The June 2002 motion was denied as prematme, (Resp't's Br., Ex. 9 at 1), and the May
2006 motion was denied for failing to raise a claim based on the record at trial on direct appeal,
(Resp't's Br., Ex. 20, County Court's August 25, 2006 Decision Denying Defendant's May 2006
C.P.L. § 440.10 Motion at l; see also
Deel.~
24). The same analysis that barred federal relief
for Grounds E and A, respectively, applies with equal force to Ground C. Thus, this Court is not
permitted to review the merits of that claim.
4. No Cause and Prejudice or Actual Innocence
Each of the procedural defects addressed in Sections B.1-3, supra, could be cmed if the
Petitioner demonstrated "cause and prejudice for the procedural default" or that he is "actually
innocent of the substantive offense." Murden, 497 F.3d at 194. As discussed above, see Section
A, supra, Petitioner's only ground for cause would be the ineffective assistance of appellate
counsel, which this Court denies on the merits, see Section C, infra. Furthermore, as explained
in Section A, supra, Petitioner has not demonstrated that "in light of all the evidence, it is more
likely than not that no reasonable jmor would have convicted him." Sweet, 353 F.3d at 142.
Petitioner's claims in Grounds A, C, and E of his petition for the writ of habeas corpus
are denied as they are barred from collateral habeas review in this Court by independent and
adequate state law grounds.
-17-
C. Ground N is Plainly Meritless
In Ground N of the petition, Petitioner makes three claims alleging the ineffective
assistance of counsel. Petitioner claims that he received ineffective assistance of trial counsel,
received ineffective assistance of appellate counsel, and was not allowed to hire his own lawyer.
The Court finds each of these claims to be meritless.
1. Ineffective Assistance of Trial Counsel
Petitioner stakes his ineffective assistance of trial counsel claim on grounds that his
attorney accepted a payment for services from a witness and failed to request that the "illegal
conviction of a nonexistent crime, not cognizable by the Penal law" be vacated. 3 The first claim
is unexhausted, but meritless; while the second claim is barred on procedural grounds, see
Section A. n. l, supra.
Petitioner's claim that his trial counsel accepted payments from a witness is unexhausted
because it could be brought through a successive N.Y. C.P.L. § 440.10 motion. 4 See 28 U.S.C. §
2254(c) ("An applicant shall not be deemed to have exhausted the remedies available in the
courts of the State . . . if he has the right under the law of the State to raise, by any available
3
If Petitioner means to assert an all-encompassing claim that his attorney performed below the minimum
standard, see Pet. Ground N, that claim was not fairly presented to the state courts and would be
procedurally barred if he were to now present it. See Section A supra. Accordingly, any such expansive
claim lurking in Ground N is denied.
4
The county court could also determine that Petitioner was required to raise this claim in one of his prior
§ 440.10 motions. See N.Y. C.P.L. § 440.10(3)(c) (allowing discretionary successive appeals in the
interest of justice upon "good cause shown"); § 440.10(1 )(g) (permitting § 440.10 motions when "[n]ew
evidence has been discovered since the entry of a judgment based upon a verdict of guilty after trial,
which could not have been produced by the defendant at the trial even with due diligence on his part and
which is of such character as to create a probability that had such evidence been received at the trial the
verdict would have been more favorable to the defendant; provided that a motion based upon such ground
must be made with due diligence after the discovery of such alleged new evidence").
-18-
procedure, the question presented.") (emphasis added); see also O'Sullivan v. Boerckel, 526 U.S.
838, 847 (1999) (announcing a rule "requiring state prisoners to file petitions for discretionary
review when that review is part of the ordinary appellate review procedure in the State").
However, § 2254 also permits a district court to deny a writ of habeas corpus on the merits
"notwithstanding the failure of the applicant to exhaust the remedies available in state court." 28
U.S.C. § 2254(b)(2); Rhines v. Weber, 544 U.S. 269, 277 (2005) (finding that a "district court
would abuse its discretion if it were to grant [a petitioner] a stay when his unexhausted claims
are plainly meritless"). Petitioner's ineffective assistance of counsel claim regarding alleged
payments from a witness is plainly meritless.
As the Respondent has argued in both its coram nobis response and in its brief before this
Court, all indications demonstrate that Petitioner's trial counsel performed well above the
requirements of Strickland.
See Strickland v. Washington, 466 U.S. 668 (1984).
"Under
Strickland, in order to prevail on an ineffective-assistance-of-counsel claim, a defendant must
meet a two-pronged test: (I) he 'must show that counsel's performance was deficient' and (2) he
must show that 'the deficient performance prejudiced the defense[.]'" Bennett v. United States,
663 F.3d 71, 84 (2d Cir. 2011) (quoting Strickland, 466 U.S. at 694). "It is the accused's 'heavy
burden' to demonstrate a constitutional violation under Strickland." Moreno v. Smith, 2010 WL
2975762, at *15 (E.D.N.Y. July 26, 2010) (Matsumoto, J.) (quoting United States v. Gaskin, 364
F.3d 438, 468 (2d Cir. 2004)).
Under the first prong, "[j]udicial scrutiny of counsel's
performance must be highly deferential ... 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."' Strickland, 466 U.S. at 689.
-19-
As an initial note, a review of the record reveals a professionally sound performance by
trial counsel. Petitioner's trial counsel engaged in effective cross-examination, made a written
demand for a bill of particulars, requested N.Y. C.P.L. § 240.20 discovery, drafted a written
motion to controvert the search warrant, voiced objections during testimony, moved twice for an
order of dismissal, presented a written motion to set aside the verdict, and argued for leniency at
sentencing. This adequate performance manifested itself in trial counsel securing an acquittal for
Petitioner of the most serious charge he faced, attempted murder in the first degree, as well as
assault in the second degree.
Furthermore, with regard to the specific conduct Petitioner challenges-that his trial
counsel accepted payments from Betsy Dominique 5-Petitioner has made absolutely no showing
that his attorney was paid by Ms. Dominique or otherwise had any conflict of interest. The only
fact Petitioner cites to substantiate his allegation is an exhibit in his reply brief. That document
is merely a request to his trial attorney for payment records related to his state court case. (See
Pet. 's Reply Br., Ex. 25). Petitioner's baseless allegation does not give rise to an ineffective
assistance of counsel claim.
See Morales v. United States, 199 F.3d 1322, at *2 (2d Cir.
1999) (denying defendant's "conclusory assertion[s]" and finding that they failed to support
ineffective assistance claim); see also Rosenberger v. United States, 133 F. App'x 799, 801 (2d
Cir. 2005) (finding that petitioner provided "no evidence, other than his self-serving, conclusory
allegations" in denying petitioner's ineffective assistance of claim); Russell v. Rock, 08-CV1894,
2009
WL
1024714,
at
*3
(E.D.N.Y.
Apr.
15,
2009)
(Cogan,
J.)
("Petitioner's conclusory allegations regarding his counsel's failure to prepare a defense
are insufficient to support an ineffective assistance claim."); Besser v. Walsh, 02-CV-6775, 2003
5
Betsy Dominque was the second wife of Petitioner's brother. (Tr. 1949-2016).
-20-
WL 22093477, at *36 (S.D.N.Y. Sept. 10, 2003) (Peck, M.J.) (collecting Second Circuit cases).
Nonetheless, the record is clear that Petitioner's trial counsel represented Petitioner with zeal in
his attempts to have Ms. Dominique testify in the face of her resistance.
Petitioner's trial
counsel tried to call Ms. Dominique as a witness at the beginning of the defense case. (Tr. at
1949). After counsel was informed that she would invoke her right against self-incrimination if
called to testify, counsel proceeded to vigorously question Ms. Dominique outside the presence
of the jury. 6 (Tr. 1949-2016).
In the absence of any indication that there was actually a third party payment to
Petitioner's trial counsel, the ineffective assistance of trial counsel claim on these grounds is
undoubtedly and plainly meritless.
And as discussed in Section A, n.l, supra, the Petitioner's
claim that he was convicted of a nonexistent, hypothetical crime was not fairly presented to the
state courts and is barred from collateral review in federal court. Accordingly, Petitioner's claim
for ineffective assistance of trial counsel is denied in its entirety.
2. Ineffective Assistance of Appellate Counsel
Petitioner makes two general claims regarding his alleged ineffective assistance of
appellate counsel. First, Petitioner claims that appellate counsel failed to raise certain issues on
appeal, including "Confrontation Right violation, Amendment of a defective indictment after
summation, Violation of the Fourth Amendment, Conviction of a non-existent crime." (Pet.,
Ground N). These claims were fairly presented to the state courts and are now exhausted. See
6
Defense counsel questioned Ms. Dominque outside of the presence of the jury in order to probe the
extent to which she would invoke the right against self-incrimination. (Tr. 1949-2016). During that
session, Petitioner's counsel argued that the trial court should compel as much of Ms. Dominque's
testimony as possible. (Tr. at 1949-2016). Counsel even raised the argument that the government was
refusing to grant Ms. Dominque immunity solely to deter Petitioner's counsel from being able to question
her as thoroughly as possible. (Tr. 1949-2016).
-21-
People v. Dominique, 56 A.D.3d 571, 572 (2d Dep't 2008) (denying writ of coram nobis and
holding that Petitioner "failed to establish that he was denied the effective assistance of
counsel"). Nonetheless, these claims lack merit. Second, Petitioner claims that appellate counsel
failed to seek leave of the New York Court of Appeals without consulting Petitioner. This claim
is unexhausted, however it is also meritless and is denied under 28 U.S.C. § 2254(b)(2).
The same standard regarding ineffective assistance of trial counsel under Strickland
discussed in Section C.l, supra, applies to the question of appellate counsel. Additionally, §
2254 mandates that a federal district court may not grant a writ of habeas corpus to a state
prisoner on a claim adjudicated on the merits in state court
unless the adjudication of the claim (!) 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.
28 U.S.C. § 2254(d); see also Price v. Vincent, 538 U.S. 634, 639-40, 123 (2003). In sum, a writ
of habeas corpus will not issue merely because the state court misapplied Supreme Court
precedent. Price, 538 U.S. at 641. Rather,
[u]nder the "contrary to" clause, a federal habeas court may grant the writ (only]
ifthe state court arrives at a conclusion opposite to that reached by [the Supreme]
Court on a question of law or ifthe state court decides a case differently than [the
Supreme] Court has on a set of materially indistinguishable facts. Under the
"unreasonable application" clause, a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle from [the Supreme]
Court's decisions but unreasonably applies that principle to the facts of the
prisoner's case.
Williams v. Taylor, 529 U.S. 362, 412-13 (2000). In the Second Circuit, it is well-established
that "the objectively unreasonable standard of§ 2254(d)(l) means that [a] petitioner must
-22-
identify some increment of incorrectness beyond error in order to obtain habeas
relief." Cotto, 331 F.3d at 248 (internal quotation marks omitted).
a. Failure to Raise Issues on Direct Appeal
With these guiding standards in mind, the Court turns to the Second Department's terse,
but conclusive review of Petitioner's application for the writ of error corarn nobis. The court
held: "The appellant has failed to establish that he was denied the effective assistance of
appellate counsel."
Dominique, 56 A.D.3d at 572 (citing Jones v Barnes, 463 U.S. 745
(1983); People v Stultz, 2 N.Y.3d 277 (2004)). Petitioner has failed to establish that the Second
Department's decision was either contrary to or involved an unreasonable application of clearly
established federal law as determined by the United States Supreme Court.
Petitioner's appellate counsel selected six non-frivolous claims to argue on direct appeal.
The direct appeal asserted that: the verdict of "not guilty" on the second-degree assault charge
was repugnant to the verdict of "guilty" on the attempted murder charge; Petitioner was deprived
of his right to confront accusers; there was improper bolstering of prosecution witnesses; it was
error to elicit that Petitioner refused to make a videotape of his confession; there was improper
vouching of Petitioner's co-conspirator's testimony; and the sentence was excessive. (Deel.
if
16). The claims that Petitioner now argues should have been raised on appeal are devoid of
merit or unpreserved for appellate review. Barnes, 463 U.S. at 751 (holding that no "defendant
has a constitutional right to compel appointed counsel to press nonfrivolous points requested by
the client, if counsel, as a matter of professional judgment, decides not to present those points").
In fact, the Supreme Court has "recognized the superior ability of trained counsel in the
examination into the record, research of the law, and marshalling of arguments on [the
-23-
appellant's] behalf' and noted that experienced appellate advocates understand "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. Petitioner's appellant counsel did exactly this.
"After carefully reviewing the transcripts of the trial, [Petitioner's appellate counsel] submitted a
brief and included only those points that [he] believed had some merit." (Resp't's Br., Ex. 38,
Affirmation of Martin Goldberg, Esq. ("Goldberg Aff.")
if 6). Petitioner and his attorney
engaged in substantial and substantive conversations concerning the arguments to be raised on
appeal, but counsel ultimately determined which claims were meritorious for appeal. (Id.
if 4). 7
Without a finding of,ineffective assistance, a discussion of prejudice is moot.
In sum, the Second Department's holding that Petitioner did not receive ineffective
assistance of appellate counsel when his attorney did not raise all of the issues Petitioner sought
to appeal was neither contrary to nor an unreasonable applicable of Supreme Court precedent.
Petitioner's first ineffective assistance of appellate counsel claim is accordingly denied.
b. Failure to Seek Leave to Appeal
Petitioner's second ineffective assistance of counsel claim-that appellate counsel failed
to seek leave to appeal to the New York Court of Appeals without consulting Petitioner-is
unexhausted as it could be brought in a successive coram nobis application. See 28 U.S.C. §
7
For example, as he has contended since his conviction, Petitioner argued to his appellate attorney that
attempted murder in the second degree was a hypothetical and imagined crime. (See Goldberg Aff. ifif 34 ). Appellate counsel informed Petitioner that attempted murder in the second degree "was a very real
crime and gave [Petitioner] illustrations." (Id if 4). This Court reiterates for Petitioner that despite his
continued arguments to the contrary, attempted murder in the second degree exists as a crime under New
York law. See generally People v. Fernandez, 88 N.Y.2d 777, 779 (1996) (holding that defendant's
conviction of attempted murder in the second degree was proper); People v. Cabey, 85 N.Y.2d 417, 422
(1995) (same).
-24-
2254(c). However, because it is plainly meritless, the Court denies Petitioner's claim. See 28
u.s.c. § 2254(b)(2).
There is no right to counsel on a discretionary appeal, 8 Evitts v. Lucey, 469 U.S. 387, 394
(1985), and therefore, a defendant cannot be denied the effective assistance of appellate counsel
with regard to such an appeal, Wainwright v. Torna, 455 U.S. 586, 587-88 (1982). "[A] writ of
habeas corpus cannot be premised on a claim of ineffective assistance of counsel based on
counsel's failure to file a timely application for leave for a discretionary appeal." Chalk v.
Kuhlmann, 311 F.3d 525, 528 (2d Cir. 2002) (discussing Wainwright). Petitioner cannot have be
deprived of effective assistance of appellate counsel on his discretionary appeal to the Court of
Appeals because "even if his attorney's performance did not conform to minimum standards, this
failure would not violate any constitutional right, and could not serve as the basis for overturning
his conviction on application for habeas corpus under Section 2254." Chalk, 311 F.3d at 528.
"Since [petitioner] had no constitutional right to counsel, he could not be deprived of the
effective assistance of counsel[.]" Wainwright, 455 U.S. at 587-88. Petitioner's second claim
for ineffective assistance of appellate counsel is accordingly denied.
3. Petitioner's Claim that he was Not Allowed to Hire his Own Lawyer
The final sentence of the petition raises the allegation that Petitioner was denied the right
to hire his own attorney. This claim was not previously raised, but appears to be based on
matters outside the trial record and, therefore, could be brought in a new N.Y. C.P.L. § 440.10
motion.
The availability of this procedure renders the claim unexhausted, see 28 U.S.C. §
8
An appeal to the New Yark Court of Appeals in a non-capital felony case, such as Petitioner's, is
nondiscretionary. See N.Y. C.P.L. § 460.20(2)(a); Chalk v. Kuhlmann, 311 F.3d 525, 528 (2d Cir. 2002)
("The appellant has no right to have his appeal heard by the Court of Appeals. Whether the appeal will be
heard in the Court of Appeals is a discretionary decision").
-25-
2254( c), but, because it is plainly without basis, the Court denies the unexhausted claim on the
merits, see 28 U.S.C. § 2254(b)(2); see also Rhines, 544 U.S. at 276-77.
In support of his claim, Petitioner again exhibits the letter to his trial counsel asking for
"a copy of the retainer fee, work file product, and receipts and checks payable by any third-party
for the above-referenced case to raise a potential conflict of interest." (Pet., Ex. 3). Neither
Petitioner's exhibit nor his conclusory allegation gives rise to any indicia that he was denied the
right to choose his own attorney. See Morales, 199 F.3d at *2; see also Besser, 2003 WL
22093477, at *36 (collecting Second Circuit cases). This unadorned allegation is simply without
merit or root in reality. Petitioner's final theory under Ground N for ineffective assistance of
counsel is denied.
CONCLUSION
Dominique's petition for a writ of habeas corpus is DENIED in its entirety. A certificate
of appealability shall not issue. See 28 U.S.C. § 2253. The Clerk of the Court is directed to
serve notice of entry of this Order on all parties and to close the case.
SO ORDERED
/s/ Judge William F. Kuntz, II
HON. WILLIA F. K
TZ, II
UNITED STATES D TRICT JUDGE
Dated: June 17, 2014
Brooklyn, New York
-26-
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