Nesbitt v. Williams
Filing
14
MEMORANDUM AND OPINION. For the reasons set forth in the attached Memorandum and Order, the Court finds that the petitioner has demonstrated no basis for habeas relief under 28 U.S.C. § 2254. Therefore, the petition for a writ of habeas corpus i s denied. Because petitioner has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue. See 28 U.S.C. § 2253(c)(2). The Clerk of the Court shall enter judgment accordingly and close this case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 8/8/2011. (Nagiel, Svetlana)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 09-CV-0979 (JFB)
_____________________
JENNEL NESBITT
Petitioner,
VERSUS
ELIZABETH WILLIAMS,
Respondent.
___________________
MEMORANDUM AND ORDER
August 8, 2011
__________________
determinate terms of imprisonment, the
longest of which was twelve years.
Joseph F. Bianco, District Judge:
Jennel Nesbitt (hereinafter “Nesbitt” or
“petitioner”) petitions this Court pro se for a
writ of habeas corpus pursuant to 28 U.S.C.
§ 2254, to vacate her conviction in a
judgment rendered on August 9, 2005.
Following a jury trial, in the County Court,
Nassau County (the “trial court”), petitioner
was convicted of one count of Burglary in
the First Degree (N.Y. Penal Law §
140.30[1]), one count of Criminal
Possession of a Weapon in the Third Degree
(N.Y. Penal Law § 265.02[4]), seven counts
of Criminal Possession of Stolen Property in
the Fourth Degree (N.Y. Penal Law §
165.45[2]), and two counts of Criminal
Possession of Stolen Property in the Fifth
Degree
(N.Y. Penal Law § 164.50).
Petitioner was sentenced to concurrent,
Nesbitt challenges her conviction on
four grounds. Specifically, petitioner asserts
that (1) her conviction was not supported by
legally sufficient proof; (2) her imposed
sentence was vindictive, harsh, and
excessive; (3) she was denied effective
assistance of trial counsel; and (4) the court
failed to give a circumstantial evidence
charge during jury instructions.
Respondent seeks to dismiss the claims
regarding
legally
sufficient
proof,
ineffective assistance of counsel, and the
circumstantial jury charge as unexhausted or
procedurally barred. Respondent also
opposes all of the claims on the merits. For
the reasons set forth below, the Court finds
1
Hanney observed two people riding the
motorcycle, one wearing red and the other
dark clothing, going with the speed of
traffic. (Id. at 190-91.) When officers
signaled the motorcycle to pull over, the
riders looked back at the officers and sped
away. (Id. at 191.) They followed the
motorcycle onto a smaller road. (Id.) Upon
reaching the cul de sac area of that road,
Hanney testified that he observed the
motorcycle on the ground by the curb and
saw the two riders running into the woods.
(Id. at 192.) Officers ran after the
motorcycle riders, and an officer yelled for
them to stop. (Id. at 194.) Hanney testified
that petitioner was wearing dark clothing.
(Id. at 220.)
that petitioner has procedurally defaulted on
her claims of vindictive sentence,
insufficiency of the evidence and failure to
give the circumstantial evidence charge. In
any event, the Court has examined each of
the petitioner’s claims on the merits and
concludes that there is no basis for habeas
relief.
I. BACKGROUND
A. Facts
The following facts were adduced from
the petition and documents attached thereto,
as well as from the state court and appellate
record.
Officer Sean Balsamello (“Balasmello”)
testified that as he closed in on the
petitioner, the petitioner dropped a black bag
and tripped. (Id. at 230.) At this time,
Balsamello got on top of her and placed her
under arrest. (Id. at 230-31.) Officer Clarke
(“Clarke”) testified that he checked the
black bag soon after and found a woman’s
pocketbook, a man’s wallet and duct tape;
other items later found in the bag were a
small flashlight and two crowbars. (Id. at
289-90.) Detective O’Hayon (“O’Hayon”)
testified that further investigation revealed
that the pocketbook and wallet, which
contained a checkbook and credit cards,
belonged to Singer and Dunn. (Id. at 33840.)
On June 26, 2004, Dr. Carol Singer
(“Singer”), her husband John Dunn
(“Dunn”) and her nephew heard their home
burglar alarm sound. (Tr. at 145-47.) When
Singer entered the kitchen, she saw a male
intruder in a red shirt who she thought was
leaving the house by walking towards her
laundry room, which was next to the garage.
(Id. at 147.) She later saw a window in her
garage pushed in but no cars in the
driveway. (Id. at 148-49.) She then called 91-1. (Id. at 157.)
When responding to the call, Officer
Robert Piampiano (“Piampiano”) saw two
individuals, one wearing a red item, on a
motorcycle speeding away from the
direction of the Singers’ house. (Id. at 163,
165.) The motorcycle was traveling at
approximately 90-100 miles per hour on a
road with a thirty mile per hour speed limit.
(Id. at 165.) Piampiano then followed the
motorcycle and notified other officers. (Id.
at 166-67.)
When the petitioner was escorted back to
the police vehicle, Clarke testified that he
conducted a pat down search of Nesbitt, at
which time he found a black ski mask and
two gloves in Nesbitt’s sweatshirt. (Id. at
288-89.) She had these items on her despite
the seventy-five degree weather outside. (Id.
at 172.) Nesbitt then informed the officers
and detectives that her leg hurt, so Leake sat
her in the back of a police vehicle. (Id. at
Upon receiving notification, Officer
Charles Hanney (“Hanney”) testified that he
responded to the call. (Id. at 188-90.)
2
unaware that Damien set out to commit a
robbery. When Damien and petitioner
reached the cul de sac area, petitioner
testified that Damien told her to “come on,”
so she followed him. (Id. at 507-08.) She
claimed that she was unaware of any police
presence until she was brought out of the
woods. (Id. at 507.) Petitioner also asserted
that the recovered black bag was never
found on her person; instead, she testified
that another officer later emerged from the
woods holding the black bag. (Id. at 515.)
322.) Leake testified that she asked Nesbitt
if she had anything on her that she should
not, at which time Nesbitt indicated that she
had a gun in her pocket. (Id.) Inspection of
the gun revealed that it was loaded. (Id.).
Detective O’Hayon testified that he
heard petitioner say that she had been given
the gun for protection by the other
motorcycle rider, who she referred to as
Damien. (Id. at 353.) She claimed that she
did not know Damien’s last name, where he
lived, or anything about his current
whereabouts. (Id. at 521-22.) Petitioner
testified that she and Damien had come from
her residence in Brooklyn to visit his Long
Island house. (Id. at 490, 496-97.) She
claimed that the two stopped along the way
at what Damien indicated was his sister’s
house and told Nesbitt to wait outside while
he ran in, at which point Nesbitt waited
outside down the street on the motorcycle.
(Id. at 498.) O’Hayon testified that petitioner
further explained that when Damien
returned from the home, he handed her a
woman’s pocketbook and the two sped off.
(Id. at 353.) Petitioner denied telling police
that any such exchange of the pocketbook
occurred. (Id. at 516.)
DNA was taken from petitioner with
buccal swabs. (Id. at 467.) DNA from
petitioner matched the DNA found around
the mouth area of the ski mask collected by
Clark. (Id. at 469-70.)
B. Procedural History
1. State Court Proceedings
On August 9, 2005, the jury found
petitioner guilty on all counts: one count of
Burglary in the First Degree, one count of
Criminal Possession of a Weapon in the
Third Degree, seven counts of Criminal
Possession of Stolen Property in the Fourth
Degree, and two counts of Criminal
Possession of Stolen Property in the Fifth
Degree. (Tr. at 692-96.)
While on the stand, petitioner contended
that she had never known Damien’s last
name or whereabouts. (Id. at 485-87.) She
testified that they had met a few months
prior on a basketball court and began
socializing together soon after. (Id. at 48788.) At one point in May, petitioner testified
that she had worn the ski mask that Clark
found in her sweatshirt pocket, but claimed
that she did not wear it on the night of her
arrest. (Id. at 489-90.) Nesbitt claimed only
to wear it in an effort to protect her face
from windburn. (Id. at 489.) When
testifying, petitioner also denied that Clark
recovered the ski mask from her sweatshirt.
(Id. at 512.) Nesbitt claimed that she was
Petitioner was sentenced on September
28, 2005, the greatest of which was a
determinate term of imprisonment of twelve
years, to run concurrently with the other
sentences, and post-release supervision of
five years. (Sentencing Tr. at 13-14.)
Additionally, the court imposed restitution
in the amount of $3000.1 (Id.; Hab. Pet. at
1.)
1
The Court received a letter from petitioner
alleging that the trial court had waived her
restitution fees, but that such a waiver was
3
Petitioner appealed her conviction to the
New York Supreme Court, Appellate
Division Second Department (“Appellate
Division”), on three grounds: (1) that the
charges against the defendant were not
proven beyond a reasonable doubt; (2) that
the legal elements of the burglary count
were not established by legally sufficient
evidence; and (3) that defendant was given
an unduly harsh, excessive sentence. (Pet’r’s
App. Div. Mot. dated September 26, 2006,
at 2, 12.)
assistance of trial counsel. Specifically,
petitioner argued that counsel was
ineffective based on his “(1) failure to
investigate material evidence; (2) failure to
object to errors that occurred during trial
that made the trial fundamentally unfair in
violation of the 14th Amendment; (3) failure
to object to prosecutorial misconduct during
summation; and (4) failure to make a
meritorious trial order of dismissal.” (Hab.
Pet. at 4.) On October 9, 2009, while the
petitioner’s habeas corpus petition was
pending, the court denied petitioner’s
motion. (Pet’r’s Supp. Reply Br. at 6, 8.)
While the instant claims were pending,
petitioner applied for permission to appeal to
the Appellate Division pursuant to New
York Criminal Procedure Law § 450.15 and
§ 460.15. The court denied this motion on
March 19, 2010. (Id. at 7.)
On June 26, 2007, the Appellate
Division affirmed the trial court’s ruling.
People v. Nesbitt, 837 N.Y.S.2d 579, 579
(N.Y. App. Div. 2007). The court held that
petitioner’s challenge to legal sufficiency of
the evidence was unpreserved for appellate
review, denying plaintiff’s claims in the
alternative on the merits. Id. The court also
concluded that petitioner’s sentence was not
excessive. Id.
2. The Instant Petition
Nesbitt’s petition was filed with the
Court on February 25, 2009. Respondent
submitted her opposition on May 12, 2009.
Petitioner’s reply brief to respondent’s
opposition was filed with the Court on June
4, 2009. Petitioner’s supplemental reply
brief was filed with the Court on April 16,
2010. The Court has fully considered the
arguments and submissions of the parties.
Petitioner applied for a writ of error
coram nobis to the Appellate Division to
vacate judgment on the ground of ineffective
appellate counsel. On December 26, 2007,
the Appellate Division denied petitioner’s
application as meritless. People v. Nesbitt,
847 N.Y.S.2d 861 (N.Y. App. Div. 2007).
The New York Court of Appeals denied
petitioner’s application for leave to appeal
from her direct appeal on April 10, 2008.
People v. Nesbitt, 889 N.E.2d 88 (N.Y.
2008).
II. STANDARD OF REVIEW
To determine whether petitioner is
entitled to a writ of habeas corpus, a federal
court must apply the standards of review
provided in 28 U.S.C. § 2254, as amended
by AEDPA, which provides, in relevant
part:
On February 2, 2009, petitioner filed a
motion to vacate her conviction pursuant to
New York Criminal Procedure Law §
440.10 on the ground of ineffective
(d) An application for a writ of
habeas corpus on behalf of a person
in custody pursuant to the judgment
of a State court shall not be granted
with respect to any claim that was
omitted from the record. There is no evidence
that plaintiff presented this claim to the highest
state court. This claim is therefore unexhausted.
See infra Section III.A.1.
4
that the relevant state-court decision applied
clearly established federal law erroneously
or incorrectly. Rather, that application must
also be unreasonable.’”
Gilchrist v.
O’Keefe, 260 F.3d 87, 93 (2d Cir. 2001)
(quoting Williams, 529 U.S. at 411). The
Second Circuit added that, while “‘some
increment of incorrectness beyond error is
required . . . the increment need not be great;
otherwise, habeas relief would be limited to
state court decisions so far off the mark as to
suggest judicial incompetence.’” Gilchrist,
260 F.3d at 93 (quoting Francis S. v. Stone,
221 F.3d 100, 111 (2d Cir. 2000)). Finally,
“if the federal claim was not adjudicated on
the merits, ‘AEDPA deference is not
required, and conclusions of law and mixed
findings of fact and conclusions of law are
reviewed de novo.’” Dolphy v. Mantello,
552 F.3d 236, 238 (2d Cir. 2009) (quoting
Spears v. Greiner, 459 F.3d 200, 203 (2d
Cir. 2006)).
adjudicated on the merits in State
court proceedings unless the
adjudication of the claim—
(1) resulted in a decision that was
contrary to, or involved an
unreasonable application of, clearly
established
Federal
law,
as
determined by the Supreme Court of
the United States; or
(2) resulted in a decision that was
based
on
an
unreasonable
determination of the facts in light of
the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(d). “‘Clearly established
Federal law’” is comprised of “‘the
holdings, as opposed to the dicta, of [the
Supreme] Court’s decisions as of the time of
the relevant state-court decision.’” Green v.
Travis, 414 F.3d 288, 296 (2d Cir. 2005)
(quoting Williams v. Taylor, 529 U.S. 362,
412 (2000)).
III. DISCUSSION
A. Procedural Bar
A decision is “contrary to” clearly
established federal law, as determined by the
Supreme Court, “if the state court arrives at
a conclusion opposite to that reached by [the
Supreme Court] on a question of law or if
the state court decides a case differently than
[the Supreme Court] has on a set of
materially
indistinguishable
facts.”
Williams, 529 U.S. at 412-13. A decision is
an “unreasonable application” of clearly
established federal law if a state court
“identifies the correct governing legal
principle from [the Supreme Court’s]
decisions but unreasonably applies that
principle to the facts of [a] prisoner’s case.”
Id. at 413.
For the reasons set forth below, the
Court is procedurally barred from reviewing
petitioner’s sufficiency of the evidence and
improper jury instruction claims.2 In
2 Respondent argues in her opposition that
petitioner’s claims for ineffective assistance of
trial counsel are unexhausted because a decision
is still pending from state court on petitioner’s
Section 440.10 motion.
However, a
supplemental letter submitted by petitioner after
respondent’s opposition was filed indicates that
the Supreme Court of Nassau County dismissed
petitioner’s motion because she failed to comply
with filing procedures. (Pet’r’s Supp. Reply Br.
at 8-10.) Specifically, it appears that petitioner
failed to file “sworn allegations supporting her
claim.” (Id. at 10.) As a result, the Court deems
petitioner’s ineffective assistance of trial counsel
claim exhausted but meritless for the reasons
stated below.
AEDPA establishes a deferential
standard of review: “‘a federal habeas court
may not issue the writ simply because that
court concludes in its independent judgment
5
at 365-66. “A petitioner has ‘fairly
presented’ his claim only if he has ‘informed
the state court of both the factual and the
legal premises of the claim he asserts in
federal court.’” Jones v. Keane, 329 F.3d
290, 294-95 (2d Cir. 2003) (quoting Dorsey
v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997)
(quoting Daye, 696 F.2d at 191)); see also
Jones v. Vacco, 126 F.3d 408, 413 (2d Cir.
1997) (quoting Daye, 696 F.2d at 191).
Like the failure to exhaust a claim, the
failure to satisfy the state’s procedural
requirements deprives the state courts of an
opportunity to address the federal
constitutional or statutory issues in a
petitioner’s claim. Coleman v. Thompson,
501 U.S. 722, 731 (1991). “[A] claim is
procedurally defaulted for the purposes of
federal habeas review where ‘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.’” Reyes
v. Keane, 118 F.3d 136, 140 (2d Cir. 1997)
(quoting Coleman, 501 U.S. at 735)
(additional citations omitted). Where the
petitioner “can no longer obtain state-court
review of his present claims on account of
his procedural default, those claims are . . .
to be deemed exhausted.” DiGuglielmo v.
Smith, 366 F.3d 130, 135 (2d Cir. 2004)
(citing Harris v. Reed, 489 U.S. 255, 263 n.9
(1989) and Grey v. Hoke, 933 F.2d 117, 120
(2d Cir. 1991)). Therefore, for exhaustion
purposes, “a federal habeas court need not
require that a federal claim be presented to a
state court if it is clear that the state court
would hold the claim procedurally barred.”
Keane, 118 F.3d at 139 (quoting Hoke, 933
F.2d at 120) (quoting Harris, 489 U.S. at
263 n.9)).
addition, even assuming arguendo that these
claims are not barred from review, as
discussed infra the claims are also without
merit.
1. Legal Standard
As a threshold matter, a district court
shall not review a habeas petition unless
“the applicant has exhausted the remedies
available in the courts of the state.” 28
U.S.C. § 2254(b)(1)(A). Although a state
prisoner need not petition for certiorari to
the United States Supreme Court to exhaust
his claims, see Lawrence v. Florida, 549
U.S. 327, 333 (2007), petitioner must fairly
present his federal constitutional claims to
the highest state court having jurisdiction
over them. See Daye v. Attorney Gen. of
N.Y., 696 F.2d 186, 191 n.3 (2d Cir. 1982)
(en banc). Exhaustion of state remedies
requires that a petitioner “fairly present[t]
federal claims to the state courts in order to
give the State the opportunity to pass upon
and correct alleged violations of its
prisoners’ federal rights.” Duncan v. Henry,
513 U.S. 364, 365 (1995) (quoting Pickard
v. Connor, 404 U.S. 270, 275 (1971)
(quotation marks omitted) (alteration in
original)).
“[I]t is not sufficient merely that the
federal habeas applicant has been through
the state courts.” Picard, 404 U.S. at 275-76.
To provide the State with the necessary
“opportunity”, the prisoner must “fairly
present” his claim in each appropriate state
court (including a state supreme court with
powers of discretionary review), alerting
that court to the federal nature of the claim
and “giv[ing] the state courts one full
opportunity to resolve any constitutional
issues by invoking one complete round of
the State’s established appellate review
process.” O’Sullivan v. Boerckel, 526 U.S.
838, 845 (1999); see also Duncan, 513 U.S.
A petitioner’s federal claims may also be
procedurally barred from habeas corpus
6
(citing Bossett v. Walker, 41 F.3d 825, 829
(2d Cir. 1994)). Such prejudice can be
demonstrated by showing that the error
“worked to his actual and substantial
disadvantage, infecting his entire trial with
error of constitutional dimensions.” Torres
v. Senkowski, 316 F.3d 147, 152 (2d Cir.
2003). A miscarriage of justice is
demonstrated in extraordinary cases, such as
where a constitutional violation results in the
conviction of an individual who is actually
innocent. Murray v. Carrier, 477 U.S. 478,
496 (1986). To overcome a procedural
default based on miscarriage of justice,
petitioner must demonstrate that “in light of
new evidence, it is more likely than not that
no reasonable juror would have found
petitioner guilty beyond a reasonable doubt”
and would require “new reliable evidence . .
. that was not presented at trial.” House v.
Bell, 547 U.S. 518, 536-37 (2006).
review if they were decided at the state level
on “independent and adequate” state
procedural grounds. Coleman, 501 U.S. at
729-33. To be independent, the “state court
must actually have relied on the procedural
bar as an independent basis for its
disposition of the case,” Harris, 489 U.S. at
261-62, by “clearly and expressly stat[ing]
that its judgment rests on a state procedural
bar.” Id. at 263 (internal quotation marks
omitted). The procedural rule at issue is
adequate if it is “firmly established and
regularly followed by the state in question.”
Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir.
1999) (internal quotation marks omitted).
However, there is a “small category” of
“exceptional cases in which [an] exorbitant
application
of
a
generally
sound
[procedural] rule renders the state ground
inadequate to stop consideration of a federal
question.” Lee v. Kemna, 534 U.S. 362, 376,
381 (2002). Nevertheless, “principles of
comity . . . counsel that a federal court that
deems a state procedural rule inadequate
should not reach that conclusion lightly or
without clear support in state law.” Garcia,
188 F.3d at 77 (quotation marks omitted).
2. Application
a. Sufficiency of the Evidence Claim
Petitioner argues that the evidence was
insufficient to find her guilty on all charges
beyond a reasonable doubt. (Hab. Pet. at 56.) Respondent asserts that such a claim is
procedurally barred because she did not
raise this issue with the trial court. (Resp’t’s
Opp. Br. at 19.) On direct appeal, the
Appellate Division explicitly determined
that petitioner’s claim concerning the
sufficiency of the evidence was unpreserved
for appellate review. People v. Nesbitt, 837
N.Y.S.2d 579, 579 (N.Y. App. Div. 2007)
(“The defendant’s challenge to the
sufficiency of the evidence is unpreserved
for appellate review, as her general motions
to dismiss at the close of the People’s case
and at the close of all the evidence failed to
specify any grounds for dismissal.”). In the
alternative, the court dismissed the claim on
the merits. Id. This Court concludes that the
If a claim is procedurally barred, a
federal habeas court may not review the
claim on the merits unless the petitioner can
demonstrate both cause for the default and
prejudice resulting therefrom, or if he can
demonstrate that the failure to consider the
claim will result in a miscarriage of justice.
Coleman, 501 U.S. at 750. Petitioner may
demonstrate cause by showing one of the
following: “(1) the factual or legal basis for
a petitioner’s claim was not reasonably
available to counsel, (2) some interference
by state officials made compliance with the
procedural rule impracticable, or (3) the
procedural default was the result of
ineffective assistance of counsel.” McLeod
v. Graham, No. 10 Civ. 3778 (BMC) 2010
WL 5125317, at *3 (E.D.N.Y Dec. 9, 2010)
7
considered by this Court. Petitioner alleges
that she is actually innocent of the charges
she was convicted, and thus failure to
consider the claim will result in a
miscarriage of justice. (Hab. Pet. at 2.)
However, as discussed in more detailed
infra, petitioner has failed to demonstrate
that there was insufficient evidence for
conviction. As a result, failure to consider
this claim would not result in a miscarriage
of justice.
Appellate Division’s dismissal of this claim
was based on an independent and adequate
state law procedural ground. This Court is
thereby barred from reviewing the claim on
the merits.
New York’s preservation doctrine is an
adequate procedural ground because it is
firmly established and regularly followed.
See Garvey v. Duncan, 485 F.3d 709, 71516 (2d Cir. 2007); Glen v. Bartlett, 98 F.3d
721, 724-25 (2d Cir. 1996) (finding that
failure to preserve issue for appeal was
adequate and independent state law ground
precluding federal habeas review and further
noting that “federal habeas review is
foreclosed when a state court has expressly
relied on a procedural default as an
independent and adequate ground, even
where the state court has also ruled in the
alternative on the merits of the federal
claim” (quoting Velasquez v. Leonardo, 898
F.2d 7, 9 (2d Cir. 1990))); see also
Fernandez v. Leonardo, 931 F.2d 214, 21516 (2d Cir. 1991).
Thus, this Court is barred from
reviewing petitioner’s sufficiency of the
evidence claim because it was dismissed on
an independent and adequate state
procedural ground. Additionally, petitioner
has failed to demonstrate either cause for or
prejudice resulting from a failure of this
Court to review this claim, or that a
miscarriage of justice would occur if this
Court fails to address it. In any event, as
discussed infra, even if arguendo this claim
was not procedurally barred, the Court
concludes that it fails on the merits.
b. Circumstantial Jury Charge Claim
Notwithstanding petitioner’s failure to
preserve her claim, this Court may still
consider it on the merits if petitioner can
demonstrate cause and prejudice if it is not
considered, or that failure to consider the
claim will result in a miscarriage of justice,
i.e., that she is actually innocent of the
crimes for which she was convicted. See
Coleman, 501 U.S. at 748-51; Murray, 477
U.S. at 496. Petitioner has failed to
demonstrate cause for the default because
she has not made any allegations either that
the factual or legal basis was unavailable to
trial counsel or that there was any
interference by state officials. As discussed
below, the procedural default was not the
result of ineffective assistance of counsel.
See infra Section III.B.4. Petitioner has also
failed to demonstrate that a miscarriage of
justice would occur if the claim is not
Finally, petitioner claims that the court’s
failure to give a circumstantial charge to the
jury violated her Fourteenth Amendment
rights. However, respondent argues that
such a claim was not raised on direct appeal
in the state court, and as such, this Court is
barred from reviewing the claim. (Resp’t’s
Opp. at 23.) As discussed below, because
petitioner did not raise the circumstantial
jury charge claim on direct appeal, the claim
is procedurally barred.3
3 Respondent also argues that petitioner’s
excessive, harsh and vindictive sentence claims
are also barred from review because they were
not raised on direct appeal.
Specifically,
respondent asserts that petitioner raised harsh
and excessive sentence claims to the Appellate
Division framed as violations of state, rather
8
extent petitioner is suggesting that defense
counsel was ineffective in failing to make a
motion to incorporate a circumstantial
evidence jury instruction, petitioner is
wrong. See infra Section III.B.4.
The claim petitioner asserts was
reviewable from the record; however, it was
not raised on direct appeal and is therefore
barred from review. Because petitioner no
longer has any state remedies available to
her, which occurs when a petitioner has
defaulted on her federal claim in state court,
she meets the technical requirements for
exhaustion. Coleman, 501 U.S. at 732. Thus,
petitioner’s claims are deemed exhausted
under 28 U.S.C. § 2254(b) because
petitioner no longer has remedies available
in the New York State Courts. However,
though exhausted, petitioner’s claim is
procedurally defaulted because she did not
raise it on direct appeal. See Graham v.
Costello, 299 F.3d 129, 133 (2d Cir. 2002).
While petitioner contends that she is
innocent of the charges (with the possible
exception of the criminal possession of a
weapon in the third degree charge),4 the
evidence presented at trial was sufficient to
established petitioner’s guilt beyond a
reasonable doubt. See infra Section III.B.1.
Accordingly, petitioner’s claim is deemed to
be exhausted, but is procedurally barred
from review by this Court. In any event,
assuming arguendo that this claim is
reviewable, it is substantively without merit,
as discussed infra.
Petitioner has not demonstrated that the
defaulted claim can nevertheless be
reviewed by this Court. Petitioner is not
entitled to have this claim reviewed in a
habeas proceeding unless she can
demonstrate both cause for the default and
prejudice if the Court fails to review it, or if
she can demonstrate that the failure to
consider the claim will result in a
miscarriage of justice. Petitioner does not set
forth any factors that would have given the
court a basis for determining that the claim
was not reasonably available to defense
counsel during the trial. Furthermore, to the
B. Merits Analysis
1. Insufficient Evidence5
Petitioner contends that the evidence
presented at trial was insufficient to support
a finding of guilt beyond a reasonable doubt.
4
In her habeas petition, petitioner stated that the
charge of possession of a weapon in the third
degree was the only charge that she was
“actually guilty of.” (Hab. Pet. at 2.)
5
than federal, law. (Resp’t’s Opp. at 33 n.14.)
First, the Court concludes that it is not, in fact,
apparent whether petitioner was raising
excessive and harsh sentence claims based on
state rather than federal law since petitioner did
not state a basis for relief explicitly and also
cited federal caselaw in her appeal. However, it
is clear that petitioner did not raise a vindictive
sentence claim on direct appeal so that this basis
for review is barred for the reasons stated below.
In any event, the Court addresses petitioner’s
excessive, harsh, and vindictive sentence claims
on the merits and concludes that they do not
provide a basis for relief for the reasons stated
below. See infra Section III.B.2.
In her habeas petition, petitioner listed claims
that the “charges [were] not proven beyond a
reasonable doubt” and that the burglary count
was “not supported by legally sufficient proof”
as two separate grounds for reversal of her
conviction. (Hab. Pet. at 5, 7.) It appears that
petitioner is separately challenging the
sufficiency of the evidence for her conviction of
all the charges and the burglary charge
separately. Because the first insufficiency of the
evidence claim applicable to all charges
essentially incorporates the burglary charge, the
Court will evaluate plaintiff’s two claims for
insufficiency of the evidence as one claim
regarding all of the charges.
9
the evidence in the light most favorable to
the State and the applicant is entitled to
habeas corpus relief only if no rational trier
of fact could find proof of guilt beyond a
reasonable doubt based on the evidence
adduced at trial.”). A criminal conviction
will stand so long as “a reasonable mind
‘might fairly conclude guilt beyond a
reasonable doubt.’” United States v. Strauss,
999 F.2d 692, 696 (2d Cir. 1993) (internal
quotation marks omitted) (quoting United
States v. Mariani, 725 F.2d 862, 865 (2d
Cir. 1984)). Even when “faced with a record
of historical facts that supports conflicting
inferences [a court] must presume—even if
it does not affirmatively appear in the
record—that the trier of fact resolves any
such conflicts in favor of the prosecution,
and must defer to that resolution.” Wheel v.
Robinson, 34 F.3d 60, 66 (2d Cir. 1994)
(quoting Jackson, 443 U.S. at 326).
(Hab. Pet. at 5-6.) As noted above, this
claim is procedurally barred from review. In
any event, viewing the evidence in the light
most favorable to the prosecution, this Court
concludes that a rational jury could have
found petitioner guilty beyond a reasonable
doubt. The Appellate Division’s conclusion,
in the alternative, that the evidence was
sufficient was not contrary to, or based on
an unreasonable application of, clearly
established federal law, nor was it an
unreasonable determination of the facts in
light of the entire record. Thus, habeas relief
based on this claim is denied.
a. Legal Standard
The law governing habeas relief from a
state conviction based on insufficiency of
the evidence is well established. A petitioner
“bears a very heavy burden” when
challenging the legal sufficiency of the
evidence in an application for a writ of
habeas corpus. Einaugler v. Sup. Ct. of the
State of N.Y., 109 F.3d 836, 840 (2d Cir.
1997) (quoting Quirama v. Michele, 983
F.2d 12, 14 (2d Cir. 1993)).
A habeas petitioner cannot prevail on a
claim of legally insufficient evidence unless
he can show that, viewing the evidence in
the light most favorable to the prosecution,
“no rational trier of fact could have found
proof of guilt beyond a reasonable doubt.”
Flowers v. Fisher, 296 F. App’x 208, 210
(2d Cir. 2008) (quoting Jackson, 433 U.S. at
324). When considering the sufficiency of
the evidence of a state conviction, “[a]
federal court must look to state law to
determine the elements of the crime.”
Quartararo v. Hanslmaier, 186 F.3d 91, 97
(2d Cir. 1999).
A criminal conviction in state court will
not be reversed if, “after viewing the
evidence in the light most favorable to the
prosecution, any rational trier of fact could
have found the essential elements of the
crime beyond a reasonable doubt.” Jackson
v. Virginia, 443 U.S. 307, 319 (1979); see
also Policano v. Herbert, 507 F.3d 111,
115-16 (2d Cir. 2007) (stating that “[i]n a
challenge to a state criminal conviction
brought under 28 U.S.C. § 2254 . . . the
applicant is entitled to habeas corpus relief if
it is found that upon the record evidence
adduced at the trial no rational trier of fact
could have found proof of guilt beyond a
reasonable doubt” (quoting Jackson, 443
U.S. at 324)); Ponnapula v. Spitzer, 297
F.3d 172, 179 (2d Cir. 2002) (“[W]e review
b. Analysis
The prosecution presented evidence
from which a rational trier of fact could
conclude beyond a reasonable doubt that the
petitioner was guilty of all of the crimes
charged. Jurors heard evidence that
petitioner was outside of the Singer
residence at the time of the burglary. They
10
degree criminal possession of a weapon,7
seven counts of fourth-degree criminal
possession of stolen property, and two
counts of fifth-degree criminal possession of
stolen property.
heard evidence that a loud alarm sounded
soon after an intruder exited the Singer
home. Petitioner testified that she
accompanied a man that she identified as
“Damien” on a motorcycle to Long Island
from Brooklyn. Detectives testified that
petitioner had a loaded gun on her person as
well as a ski mask and gloves despite the
fact that it was over seventy degrees outside.
A forensic scientist testified that she
determined that the mask had petitioner’s
DNA around the mouth area. Several
officers testified that they chased the
petitioner, who was riding a motorcycle, to a
cul de sac area, at which time the
motorcycle fell to the ground and petitioner
ran into the woods. Officers further testified
that petitioner dropped a black bag while
running into the woods. The jury heard
testimony that this black bag contained
seven credit cards and a purse from the
Singer house, duct tape, a crow bar, and a
flashlight. Petitioner admitted to having a
loaded gun on her person and officers
corroborated that she had this gun. This
evidence, taken together, could have led a
rational jury to conclude beyond a
reasonable doubt that Nesbitt committed, or
aided Damien in committing, all of the
counts that she was convicted of arising out
of the burglary: first-degree burglary,6 third-
In sum, the Appellate Division’s
conclusion that the evidence was sufficient
for a conviction on all the charges is not
contrary to, or an unreasonable application
of, clearly established federal law, nor is it
based on an unreasonable determination of
the facts.
2. Petitioner’s Sentence Was Not Harsh,
Vindictive, and Excessive
Petitioner also claims that the sentence
imposed by the trial court was harsh,
vindictive, and excessive and was imposed
in retaliation for her decision to go to trial.
(Hab. Pet. at 8-9.) Respondent argues that
petitioner’s sentence was not only within the
prescribed statutory range, but it was also
more lenient than the criminal statute
required. (Resp’t’s Opp. at 33.) The
Appellate Division affirmed the petitioner’s
sentence on direct appeal. Nesbitt, 837
N.Y.S.2d at 579. The Court concludes that
the Appellate Division’s determination that
petitioner’s sentence was not excessive was
not contrary to, or an unreasonable
application of, clearly established federal
law, nor was it based on an unreasonable
determination of the facts. Petitioner’s
vindictiveness claim is unexhausted, as
noted above, and is also meritless for the
reasons set forth below.
6
Petitioner seems to be under the impression
that she had to have been physically present in
the burglarized house to be convicted of firstdegree burglary. In her habeas petition,
petitioner alleged that because there is no
evidence that petitioner was physically present
in the burglarized home, the prosecution did not
prove all of the elements of first-degree
burglary. However, as the trial court explained
in the jury instructions, the first-degree burglary
charge required the jury to find beyond a
reasonable doubt that the petitioner aided and
abetted an accomplice who committed the
criminal act, namely, the first-degree burglary.
(See Tr. at 671-72.)
7
Petitioner does not contest the sufficiency of
the evidence for this count; petitioner admits that
she was guilty of this count and states that if she
were retried, she would plead guilty to that
count. (Hab. Pet. at 1.)
11
No. 05-CV-4209 (JG), 2006 U.S. Dist.
LEXIS 6925, 2006 WL 463499, at *25-26
(E.D.N.Y. Feb. 24, 2006) (quoting
McGautha v. California, 402 U.S. 183, 213
(1971)). See also Brady v. United States,
397 U.S. 742, 750-51 (1970).
a. Legal Standard
Where a petitioner is claiming that her
sentence is harsh and thereby excessive, for
purpose of habeas review, “[n]o federal
constitutional issue is presented where . . .
the sentence is within the range prescribed
by state law.” White v. Keane, 969 F.2d
1381, 1383 (2d Cir. 1992); see also Santiago
v. Riley, 92-cv-2302 (DRH), 1993 WL
173625, at *4 (E.D.N.Y. May 14, 1993)
(“Where the sentence imposed by a state
trial judge is within the statutorily prescribed
range, the constitution is not implicated and
there is no federal question for habeas
corpus review.”); Underwood v. Kelly, 692
F. Supp. 146, 152 (E.D.N.Y. 1988), aff’d,
875 F.2d 857 (2d Cir. 1989).
b. Analysis
There is no evidence that petitioner’s
sentence was vindictive. Petitioner contends
that the court bailiff told petitioner that if
she went to trial, she would be retaliated
against. This claim is conclusory and wholly
unsupported by the record. There is no
evidence that the judge threatened petitioner
with a more severe sentence if she elected to
go to trial, which would, if it actually
happened, “establish a per se violation of the
defendant’s Sixth Amendment right to a trial
. . . .” Fielding v. Lefevre, 548 F.2d 1102,
1106 (2d Cir. 1977) (citations omitted).
Finally, to the extent petitioner argues that
her sentence is vindictive because it is so
severe (Hab. Pet. at 9), that claim is
meritless because petitioner’s sentence was
not excessive.
Furthermore, a petitioner may not be
punished for going to trial. The Sixth
Amendment guarantees the right to a trial by
jury, and a court may not penalize a person
for exercising a right guaranteed under the
Constitution. See Bordenkircher v. Hayes,
434 U.S. 357, 363 (1978) (“To punish a
person because he has done what the law
plainly allows him to do is a due process
violation of the most basic sort.”).
However, plea bargains, which often require
a defendant to choose between going to trial
and pleading guilty in order to receive a
reduced sentence, are an important and
constitutional part of the criminal justice
system. See Corbitt v. New Jersey, 439 U.S.
212, 218-19 (1978) (“[T]here is no per se
rule against encouraging guilty pleas.”).
“The criminal process, like the rest of the
legal system, is replete with situations
requiring ‘the making of difficult
judgments’ as to which course to follow.
Although a defendant may have a right, even
of constitutional dimensions, to follow
whichever course he chooses, the
Constitution does not always forbid
requiring him to choose.” Bonner v. Smith,
The sentence petitioner is serving is
within the permitted statutory range, as
petitioner herself admits. (See Pet’r’s Reply
Br. at 13.) Thus, there is no federal question
for habeas review. In this case, petitioner
was sentenced to a total of twelve years of
imprisonment. The top charge, Burglary in
the First Degree, is a Class B Violent
Felony. N.Y. Penal Law § 70.02(1)(a).
According to New York Penal Law Section
70.02(3)(a), for a Class B Violent Felony
“the term must be at least five years and
must not exceed twenty-five years.”
Petitioner was sentenced to twelve years,
which is in the prescribed statutory range.
Therefore, since petitioner’s sentence was
within the statutorily prescribed range, there
is no federal question for habeas review. The
12
certainty – they must be inconsistent with
his innocence and must exclude to a moral
certainty
every
other
reasonable
hypothesis.” Floyd v. Miller, No. 01 Civ.
2097 (JBW), 2003 WL 21845995, at *7
(E.D.N.Y. Aug. 6, 2003) (quotation marks
omitted) (quoting People v. Barnes, 406
N.E.2d 1071, 1073 (N.Y. 1980)). However,
under New York law, this standard only
applies to cases dealing exclusively with
circumstantial evidence. A case that includes
any direct evidence, or a combination of
direct and circumstantial evidence, “does not
qualify for the circumstantial evidence
instruction.” People v. Roldan, 666 N.E.2d
553, 554 (N.Y. 1996); Norwood v. Atis, 487
F. Supp. 2d 321, 333-34 (W.D.N.Y 2007)
(“[A]s prosecution’s case rested upon both
direct and circumstantial evidence, the court
was not obligated to provide the requested . .
. circumstantial evidence charge” (quotation
marks omitted) (quoting People v. Pagan,
576 N.Y.S.2d 311 (N.Y. App. Div. 1991),
lv. denied, 580 N.E.2d 769 (N.Y. 1992)).
Jury instructions violate due process if
they “fail[ ] to give effect to [the]
requirement” that the prosecution must
prove every element of a charged offense
beyond a reasonable doubt. See Middleton v.
McNeil, 541 U.S. 433, 437 (2004) (per
curiam). However, “a state prisoner making
a claim of improper jury instructions faces a
substantial burden.” Devalle v. Armstrong,
306 F.3d 1197, 1200 (2d Cir. 2002). The
petitioner must establish that “‘the ailing
instruction by itself so infected the entire
trial that the resulting conviction violat[ed]
due process,’ not merely [that] ‘the
instruction is undesirable, erroneous, or even
universally condemned.’” Id.
at 1201
(quoting Henderson v. Kibbe, 431 U.S. 145,
154 (1977)); see also Middleton, 541 U.S. at
437 (explaining that “not every ambiguity,
inconsistency, or deficiency in a jury
sentences for all of the other charges are
being served concurrently.8
In sum, the Court finds that the
Appellate Division’s conclusion that
petitioner’s sentence was not retaliatory,
excessive, or vindictive, was not contrary to,
nor an unreasonable application of, clearly
established federal law. Nor was it based on
an unreasonable determination of the facts.
Therefore, petitioner’s application for
habeas corpus relief on this ground is
denied.
3. Failure to Give a Circumstantial Jury
Charge
Finally, petitioner contends that the jury
instructions were improper because, based
on the evidence presented in support of the
burglary and possession of stolen property
charges, a jury charge on circumstantial
evidence should have been included and that
failure to include such a charge was in
violation of her Fourteenth Amendment
rights. (Hab. Pet. at 6.) As discussed supra,
this claim was not thoroughly exhausted in
state court and is thus barred from review. In
any event, as discussed below, this Court
finds that the jury instructions were proper,
and habeas relief on this claim is
unwarranted.
a. Legal Standard
In criminal cases “which depend entirely
upon circumstantial evidence[,]. . . the facts
from which the inference of the defendant’s
guilt is drawn must be established with
8 In any event, even if the Court could review
the sentence, the Court would find no basis to
conclude that petitioner’s sentence was grossly
disproportionate to the crime committed so as to
violate the Eighth Amendment given the nature
of the criminal activity that was the subject of
the conviction in the instant case.
13
instruction rises to the level of a due process
violation”).
relevant section of the jury instructions
stated:
b. Analysis
[I]t is not sufficient to prove the
defendant is probably guilty. In a
criminal case, the proof of guilt must
be stronger than that. It must be
beyond a reasonable doubt. A
reasonable doubt is an honest doubt
to the defendant’s guilt which a
reason exist based upon the nature
and quality of the evidence. It is an
actual doubt, not an imaginary doubt.
It is a doubt that a reasonable person
has, acting in a matter of this
importance, would be likely to
entertain because of thee evidence
that was presented or because of the
lack of evidence that was presented.
In this case, the Court finds that the trial
court’s instructions, even without a specific
circumstantial evidence charge, were not
erroneous and certainly did not constitute a
due process violation. The facts of this case
were supported by both circumstantial and
direct evidence. Officers testified that they
saw petitioner speeding away from the
burglarized home. Another officer testified
he saw her running into the woods, chased
her, and saw her drop a black bag on the
ground while running. There was also direct
evidence that petitioner had a gun. Such
evidence presented by these officers is direct
evidence. Because the prosecution proffered
such direct evidence, the trial court was not
obliged to give a circumstantial evidence
charge and thus did not err by failing to do
so.
Proof of guilt beyond a reasonable
doubt is proof that leaves you so
convinced of the defendant’s guilt
that you have no reasonable doubt of
the existence of any element of the
crime or of defendant’s identity as
the person who committed the crime.
Even assuming arguendo that the trial
court erred by not giving the jury a
circumstantial evidence charge, this in and
of itself does not violate petitioner’s
Fourteenth Amendment right to due process.
Where, as here, a petitioner objects to the
trial court’s failure to instruct the court on a
“circumstantial
evidence”
charge,
a
conviction should be disturbed “only when it
appears reasonably likely that the jury
understood the instructions to allow it to
convict on evidence insufficient to prove
every element of the offense charged beyond
a reasonable doubt.” United States v.
Desimone, 119 F.3d 217, 227 (2d Cir.1997).
Petitioner puts forth no evidence that this is
the case. The trial court’s instructions,
viewed in their entirety, “correctly
conveye[d] the reasonable-doubt concept to
the jury.” Id. The trial judge spoke at length
about the concept of reasonable doubt. The
(Tr. at 659.)
The trial judge also explained each legal
element for each count with which petitioner
was charged (id. at 666-81), and discussed
the elements of aiding and abetting burglary
(id. at 670-71). The jury instructions were
thus adequate. Furthermore, as discussed
supra, there was overwhelming evidence of
petitioner’s guilt. Petitioner has not
presented any evidence tending to show that
the jury instructions below deprived her of
her Fourteenth Amendment rights.
4. Ineffective Assistance of Counsel
Petitioner contends that she received
ineffective assistance of trial counsel
14
measure of deference to counsel’s
judgments.” Greiner, 417 F.3d at 319
(quoting Strickland, 466 U.S. at 691). “‘A
lawyer’s decision not to pursue a defense
does not constitute deficient performance if,
as is typically the case, the lawyer has a
reasonable justification for the decision,’”
DeLuca v. Lord, 77 F.3d 578, 588 n.3 (2d
Cir. 1996), and ‘strategic choices made after
thorough investigation of law and facts
relevant to plausible options are virtually
unchallengeable.’“ Id. (citing Strickland,
466 U.S. at 690-91). Moreover, “strategic
choices made after less than complete
investigation are reasonable precisely to the
extent
that
reasonable
professional
judgments support the limitations on
investigation.” Id.
because counsel: (1) failed to investigate a
“911” tape and the DNA evidence on the
mask; (2) failed to object to prosecutorial
misconduct during summation; (3) failed to
make an adequate motion for a trial order of
dismissal; and (4) failed to object to possible
errors within the trial that make the trial
inherently unfair. (Hab. Pet. at 10.) As
discussed below, the Court finds that each of
petitioner’s arguments is without merit.
a. Legal Standard
Under the standard promulgated in
Strickland v. Washington, 466 U.S. 668
(1984), a defendant is required to
demonstrate two elements in order to state a
successful claim for ineffective assistance of
counsel: that (1) “counsel’s representation
fell below an objective standard of
reasonableness,” id. at 680, and (2) “there is
a reasonable probability that, but for
counsel’s unprofessional errors, the result of
the proceeding would have been different.”
Id. at 694.
The second prong focuses on prejudice
to the defendant. The defendant is required
to show that there is “a reasonable
probability that, but for counsel’s
unprofessional errors, the result of the
proceeding would have been different.”
Strickland, 466 U.S. at 694. “Reasonable
probability” means that the errors were of a
magnitude such that it “undermine[s]
confidence in the outcome.” Pavel v.
Hollins, 261 F.3d 210, 216 (2d Cir. 2001)
(quoting Strickland, 466 U.S. at 694). “[T]he
question to be asked in assessing the
prejudice from counsel’s errors . . . is
whether there is a reasonable probability
that, absent the errors, the factfinder would
have had a reasonable doubt respecting
guilt.” Henry v. Poole, 409 F.3d 48, 63-64
(2d Cir. 2005) (quoting Strickland, 466 U.S.
at 695). “‘An error by counsel, even if
professionally unreasonable, does not
warrant setting aside the judgment of a
criminal proceeding if the error had no
effect on the judgment.’” Lindstadt v.
Keane, 239 F.3d 191, 204 (2d Cir. 2001)
(quoting Strickland, 466 U.S. at 691).
Moreover, “[u]nlike the determination of
The first prong requires a showing that
counsel’s performance was deficient.
However, constitutionally effective counsel
embraces a “wide range of professionally
competent assistance,” and “counsel is
strongly presumed to have rendered
adequate assistance and made all significant
decisions in the exercise of reasonable
professional judgment.” Greiner v. Wells,
417 F.3d 305, 319 (2d Cir. 2005) (quoting
Strickland, 466 U.S. at 690). The
performance
inquiry
examines
the
reasonableness of counsel’s actions under all
circumstances, keeping in mind that a “fair
assessment of attorney performance requires
that every effort be made to eliminate the
distorting effects of hindsight.” Greiner, 417
F.3d at 319 (quoting Rompilla v. Beard, 545
U.S. 374, 389 (2005)). In assessing
performance, a court must apply a “heavy
15
that counsel did not listen to the tape.
Counsel may have appropriately exercised
his discretion to not pursue arguments based
on the tape because of what he heard on the
tape. In fact, Singer testified that she saw a
male intruder, and not Nesbitt, so it is
unclear what exactly petitioner expected
counsel to accomplish with the tape.9
Additionally, aside from the petitioner’s
own reading of the DNA forensic analysis,
petitioner sets forth no evidence that there
were any factual problems with the
testimony of the forensic scientist that would
suggest to counsel that he should have
investigated it further.
trial counsel’s performance under the first
prong of Strickland, the determination of
prejudice ‘may be made with the benefit of
hindsight.’” Hemstreet v. Greiner, 491 F.3d
84, 91 (2d Cir. 2007) (quoting Mayo v.
Henderson, 13 F.3d 528, 534 (2d Cir.
1994)).
This Court proceeds to examine the
petitioner’s claim, keeping in mind that the
habeas petitioner bears the burden of
establishing both deficient performance and
prejudice. United States v. Birkin, 366 F.3d
95, 100 (2d Cir. 2004). As set forth below,
petitioner’s claims, taken alone or together,
fail to satisfy either element of the
Strickland test.
Moreover, even assuming arguendo that
counsel was somehow deficient, petitioner
makes no argument as to how any alleged
failures prejudiced her. As discussed supra,
there was overwhelming evidence of
petitioner’s guilt on all counts of which she
was convicted. The prosecutor set forth
evidence that petitioner went from Brooklyn
to Long Island with an acquaintance who
entered the home. Petitioner testified that
she waited outside of the home parked down
the street on a motorcycle with a loaded gun
on her person. Officers and detectives
testified that they chased her into the woods
and found items from the burglarized home,
along with duct tape, a flashlight and a crow
bar, in a black bag she dropped. Another
officer testified that he found a mask and
gloves in her sweatshirt pocket. Petitioner
admits to having a loaded gun on her at the
time, and she handed it over to police on
request. Even if the 911 tape revealed, as
petitioner contends, that the intruder was
b. Analysis
i. Failure to Investigate Evidence
There is no evidence in the record to
support petitioner’s claim that counsel was
deficient for failing to investigate the “911”
tape or the DNA evidence. Petitioner
contends that the 911 tape would reveal that
it was Damien, and not petitioner, who was
seen by Singer in the home, and Damien
was wearing a mask. She further contends
that her own reading of the forensic
scientist’s reporting of the alleles
comparison seems to suggest it is not her
DNA on the mask. (Hab. Pet. at 10; Pet’r’s
Reply Br. at 18.) As discussed below, both
of these arguments are without merit.
Petitioner is unable to establish that
counsel’s performance was deficient. There
is no evidence that counsel failed to
investigate either the tape or the DNA
evidence beyond petitioner’s bare assertions.
As for the tape, as respondent points out,
counsel received a copy of the 911 tape.
(Resp’t’s Opp. at 38.) Nothing in the court
record or in petitioner’s brief demonstrates
9
Respondent also points out that the 911 tape
“does not contain a description by the victim
that the burglar was masked.” (Resp’t’s Opp. at
39.) As discussed supra in footnote 6, petitioner
was under the misimpression that she had to be
physically present in the home to be convicted
of the burglary charge.
16
masked, there is sufficient evidence for a
rational jury to conclude beyond a
reasonable doubt that petitioner aided and
abetted the burglary. Thus, there is no
reason to believe that absent the alleged
deficiency, the jury would have reached a
different conclusion. See Butts v. Walker,
No. 01 CV 5914 (JG), 2003 WL 22670921,
at *8 (E.D.N.Y. Nov. 6, 2003). Accordingly,
petitioner cannot satisfy the second prong of
Strickland.
given enough rope, would alienate the jury;
the desire not to call attention to unfavorable
evidence or to highlight unfavorable
inferences.” Taylor v. Fischer, No. 05 Civ.
3034 (GEL), 2006 WL 416372, at *5
(S.D.N.Y. Feb. 21, 2006). Thus, even if
some of the comments during summations
were objectionable, counsel is not
necessarily deficient for not objecting. It is
also apparent that counsel was active during
summations. Specifically, counsel made
repeated
objections
throughout
the
prosecutor’s summations. (See, e.g., Tr. at
634 (“Objection. That is not her
testimony”); Id. at 636 (where counsel had a
side bar conference off of the record); Id. at
637.)
Petitioner’s claim that counsel was
ineffective for failing to investigate both the
DNA evidence and the 911 tape is
consequently without merit.
ii. Counsel’s Failure to Object to
Improper Summation
Moreover, the prosecution’s comments
were permissible as rebuttal to petitioner’s
summation. Defense counsel’s summation
focused largely on both the testimony of the
defendant and the discrepancies in the police
officers’ accounts of the evening. (See, e.g.,
id. at 584, 592, 595-96, 626.) The prosecutor
was thus entitled to rebut defense counsel’s
summation and discuss the credibility of
each witness, including the petitioner. See
Celleri v. Marshall, No. 07-CV-4114 (JFB),
2009 WL 1269754, at *17 (E.D.N.Y. May 6,
2009) (“[U]nder both New York and federal
law, the prosecutor was entitled to rebut
defense counsel’s summation with contrary
assertions.”); Jones v. Keane, 250 F. Supp.
2d 217, 236-37 (W.D.N.Y. 2002) (holding
that the prosecutor’s characterization of the
defendant as a “liar” and “con artist” during
summations was not improper). Thus, the
prosecutor’s characterizations of petitioner
as a liar were not improper comments to
make during summation, and such
comments do not amount to prosecutorial
misconduct.
Petitioner’s
claim
of
prosecutorial misconduct based on the
expression on petitioner’s shirt was taken
out of context. The prosecutor’s mentioning
Petitioner contends that she received
ineffective assistance of trial counsel
because counsel failed to make the
appropriate
objections
during
the
prosecutor’s summations. Specifically,
petitioner objects to statements by the
prosecutor that refer to her as being a liar,
and to a statement concerning the words that
were printed on her shirt.10 For reasons set
forth below, the Court finds that there is no
basis to conclude that trial counsel’s
performance was constitutionally defective,
or that there was any prejudice to petitioner.
First, petitioner has not satisfied the first
prong of Strickland because she is unable to
demonstrate that counsel’s representation
fell below an objective standard of
reasonableness. First, there are strategic
reasons that an attorney might “forgo
objections: the conclusion that additional
objections might have annoyed the judge or
jury; the possibility that the prosecutor,
10
Petitioner was wearing a shirt that read “F**k
Milk Got Pot” when arrested. (Tr. at 310.)
17
second prong of Strickland. In short, the
improper summation claim has no merit.
of the writing on petitioner’s shirt was made
as part of a rebuttal to defense counsel’s
testimony. Specifically, the prosecutor was
rebutting defense counsel’s allegations that
the officer was not credible because he
remembered her wearing a t-shirt and not a
sweatshirt (Tr. at 587-88); the prosecutor
explained that the officer may have recalled
the t-shirt that petitioner was wearing
underneath her sweatshirt because of the
content of the expression written on it (id. at
630).
iii. Counsel’s Failure to Make a Motion to
Dismiss at Trial
Finally, there is insufficient evidence in
the record to support petitioner’s claim that
counsel was deficient for failing to make a
motion to dismiss at trial. Because counsel
did not make a motion to dismiss based on
insufficiency of the evidence, petitioner was
procedurally barred from bringing up her
sufficiency of the evidence claim discussed
supra on direct appeal. In any event, as
discussed below, petitioner is unable to
satisfy Strickland, and thus petitioner’s
claim about counsel’s failure to make a trial
order of dismissal fails on the merits.
In any event, even assuming arguendo
that petitioner was able to show that
counsel’s performance was deficient,
petitioner cannot show that she was
prejudiced as a result. As an initial matter,
evidence of petitioner’s guilt was
overwhelming, as discussed supra in section
III.B.1.b. Furthermore, any prejudicial
impact of the statements was neutralized by
the trial judge’s numerous instructions to the
jury. The judge instructed the jury before
opening
arguments,
before
closing
arguments,
and
again
during
the
prosecutor’s summations, that “counsel’s
arguments are not evidence in the case.” (Tr.
at 575, 637.) During several of defense
counsel’s objections, the trial judge would
again remind the jury that counsel’s
arguments were not evidence, but merely
opinions of counsel. The judge went a step
further to ensure that the jury would not take
statements in the summations as facts by
banning the jury from taking any notes
during either summation. (Tr. at 637 (“That
is why you’re not allowed to take notes.
This is the people’s theory [of] how the
crime was committed . . . .”).) Thus, even if
there were any deficiencies by counsel in
failing to object to the prosecutor’s
statements, the trial judge took curative
steps to ensure neither side was prejudiced.
See Celleri, 2009 WL 1269754 at *18.
Accordingly, petitioner cannot satisfy the
Petitioner has not satisfied the first prong
of Strickland because she is unable to
demonstrate that counsel’s performance fell
below a level of reasonableness. Petitioner
wanted counsel to make a motion to dismiss
after the prosecution rested so as to
preserve her ability to appeal the sufficiency
of the evidence claims. However, as
discussed supra, the evidence against her
was overwhelming see supra III.B.1.b, and
trial counsel is not required to make a
meritless motion. Furthermore, to the extent
petitioner also wanted trial counsel to make
a motion for the inclusion of a
circumstantial evidence instruction, it is
apparent that such a motion would be
meritless, see supra III.B.3, and trial counsel
is not required to make a meritless motion.
Even assuming arguendo that counsel’s
performance was deficient, petitioner is
unable to demonstrate that she was
prejudiced as a result. As discussed supra,
petitioner’s sufficiency of the evidence
claim is meritless. Thus, even if counsel had
made such an objection, thereby preserving
18
reasons that an attorney might “forego
objections.” Taylor, 2006 WL 416372, at *5.
Counsel may have determined that an
objection was not necessary because he had
no reason to believe that anything discussed
affected the case in a material way. It is
likely that trial counsel did not share
petitioner’s speculation of a conspiracy
against her even if some sort of exchange
occurred off the record either between the
judge and prosecutor, or the prosecutor and
bailiff.11
petitioner’s ability to contest the sufficiency
of the evidence, petitioner’s sufficiency
claim fails on the merits. The evidence
against petitioner was overwhelming. Again,
there was sufficient evidence for a
reasonable jury to conclude beyond a
reasonable doubt that petitioner was guilty
of the crimes for which petitioner was
convicted. Thus, the second prong of
Strickland cannot be met. In short, this claim
has no merit.
iv. Counsel’s Failure to Object to Errors in
the Trial
Even if petitioner was able to show that
counsel’s performance was deficient,
petitioner cannot satisfy the second prong of
Strickland by showing that she was
prejudiced by such deficiency. The evidence
of petitioner’s guilt was overwhelming on
all charges as discussed supra. See Section
III.B.1. The jury spent several days
deliberating, and the jury reached a
unanimous decision on all counts. Thus,
there is no reason to believe that absent the
alleged deficiency, the jury would have
reached a different conclusion on any of the
charges. See Butts, 2003 WL 22670921 at
*8.
Petitioner contends that counsel failed to
object to misconduct by the judge, court
bailiff, and prosecutor that occurred during
jury deliberations. Specifically, petitioner
contends that the three colluded to tamper
with the jury that seemed to be leaning
towards a dismissal of the burglary charge.
She claims that after a jury note inquired
about whether or not jurors could dismiss
some but not all charges, the prosecutor and
judge at the judge’s bench had a “private
conversation” off of the record without
defense counsel present. (Pet’r’s Supp.
Reply Br. at 32-33.) Petitioner claims that
the prosecutor then looked annoyed and had
a whispered conversation with the court
bailiff. The judge subsequently granted a
recess for the day. The next day, the jury
returned with a guilty verdict on all counts.
11 To the extent petitioner is arguing that trial
counsel should also have objected to the trial
judge granting a recess at 4 p.m. the day before
the jury returned a guilty verdict (Pet’r’s Reply
Br. at 19), that claim is similarly without merit.
Petitioner’s trial counsel may not have objected
because there was no evidence that anything
improper was taking place even if, as petitioner
suggests, “private” conversations between the
prosecution, judge, and bailiff took place not
long prior to the recess. Nor does the fact that
petitioner arrived immediately prior the jury
verdict (id. at 20) suggest some collusion against
the petitioner. Furthermore, even if petitioner’s
trial counsel was deficient in not objecting to
any of this conduct, petitioner was not
prejudiced for the reasons stated below.
As an initial matter, petitioner’s
allegations that said conversations took
place are entirely conclusory and are wholly
unsupported by the record. Even assuming
arguendo that the conversations occurred,
petitioner has not satisfied the first prong of
Strickland by showing that counsel’s
representation fell below an objective
standard of reasonableness. Petitioner argues
that counsel did not object to such private
conversations. However, there are strategic
19
*
*
*
In sum, having carefully analyzed all of
petitioner’s claims, the Court concludes that
the petition must be denied. Petitioner’s
claims concerning the sufficiency of the
evidence and failure to give a circumstantial
evidence charge are procedurally barred. In
any event, all of petitioner’s claims are
meritless.
IV. CONCLUSION
For the reasons set forth herein, the
Court finds that the petitioner has
demonstrated no basis for habeas relief
under 28 U.S.C. § 2254. Therefore, the
petition for a writ of habeas corpus is
denied. Because petitioner has failed to
make a substantial showing of a denial of a
constitutional right, no certificate of
appealability shall issue. See 28 U.S.C. §
2253(c)(2). The Clerk of the Court shall
enter judgment accordingly and close this
case.
SO ORDERED.
_____________________
JOSEPH F. BIANCO
United States District Judge
Dated: August 8, 2011
Central Islip, New York
* * *
Petitioner is proceeding pro se.
Respondent is represented by Kathleen M.
Rice, District Attorney of Nassau County,
by Andrea M. DiGregorio, 262 Old Country
Road, Mineola, New York, 11501.
20
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