Johnson v. Heath

Filing 13

MEMORANDUM AND ORDER, For the foregoing reasons, the Court DENIES Petitioner's petition. (Ordered by Judge Sterling Johnson, Jr on 3/26/17) c/m Fwd. for Judgment. (Galeano, Sonia)

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r~ 0o~ . FILED JN CLERK'S OFFIC US DISTRICT E. .N.Y. .·.;. '\1$.J:.._~r , COUA~ * APR l "2011 SROOKLYN of=F1 .E UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------------}{ VICTOR JOHNSON, Petitioner, - against - 11 CV 5467 (SJ) MEMORANDUM AND ORDER PHILIP HEATH, Superihtendent, Sing Sing Correctional Facility, Respondent. --------------------------------------------------~---------X JOHNSON, Senio~ District Judge: After a full trial, Victor Johnson ("Petitioner") was convicted of course sex al conduct against a child in the first degree ("count one") 1 and endangering the wel e I of a child ("count two") 2• He was sentenced tC! .~e maximum allowable twentyyears imprisonment for count one and one year for count two, to run concufren ly. (Docket Number ("Dkt. No.") 6-11 at 68). Petitioner now seeks a writ ofhab as corpus, under 28 U.S.c ... § 2254 ("§ 2254"), ch~llenging the conviction and sente ce ,. 'I ',,· imposed under Nas·sau County Indictment No. 2447N-07 on twelve SfP ate grounds. (Dkt. No. 6-12 at Exhibit A-B-1). Based on this Court's analysis of Petitioner's claims, the submission~ of he . . . I parties, and fo·r.the rea.sons set forth below the:petition is hereby DENIED. 1 NY 2 P·049 Penal Law§ 130.S(l)(a) NY Penal Law § 260.10( 1) I. The Trial The relevant facts are .as follows. During the trial, Petitioner moyed to .. ·.-.· exclude certain statements made by the victim's father to Petitioner during a polic,econtrolled conversation. (T74-81 ). "[M]e knowing, you know, your history" and "none of my [friends] like you ~d you know_that. .. They all knew about Vic long before I knew about Vic." (T76 -79). Petitioner argued that these stateme 1ts I impermissibly alluded to the existence of prior uncharged sexual misconduct by Petitioner. (T76-79). The court admitted the statements into evidence 0~ 1 er Petitioner's objections. (T76-79). Later, Petitioner objected to the victim's grandmother testifying that he police sent "mugshots" of Petitioner to the victim. (T639). The term "mugshots," according to Peti~ioner, .i.mperniissi.bly ·implied ;tWat Petitioner was_ a criminal. CT6~ >9- 70). The court denied Petitioner's request for a mistrial, choosing instead to str ke the reference to mug shots from the record. {T670, 683-85). At another point, the victim's father testified that he "learned that [Petitior er] I had touched [his] son on numerous occasions and that that wasn't the first ti*1e t llat he did it." (T732). Petitioner again moved for mistrial arguing that the statement I could only be interprete~ as meaning Petitioner sexually touched another p~rsor in the past. (T732). The court denied Petitioner's motion for mistrial but admonis led I the Government not to let it happen again. (T733). Later, Petitioner moved to questfon the victim and his father about pictt~es .· ~: ,·) 2 P-049 :r:\.: t.",,' I of the victim's father performing sex acts with other men. {T844). Petitior er I suggested such questioning was relevant to showing the victim was making f p t tie allegations of sexual abuse to hurt Petitioner as retaliation. {T844-48). The court I t '\. ·. ~ barred such questioning finding it irrelevant. {T847). Petitioner later moved to preclude admission of portions of the victim's medical records. {T869). In the records was the reason for the victim's visit to the doctor. It stated that the then-ten year old. chilcii°needed an examination following the • ,•.•• • • I I "disclosure of a penile [to] anal penetration over the course of three years by fathe~'s I I friend (boyfriend/lover)." (Dkt. No. 6-12 Exhibit A). Petitioner argued that 1he doctor could not testify as to who was responsible for the anal penetration or how long it continued. (T873-74). The court admitted the medical records in full withetut a prior review of their contents. (T874). Petitioner alsc;> .<;>~jected to the admissi~n of the alleged hearsay testim ony of " , . ' . Detective Sheinberg. "(Tl 162). Detective Sheinberg testified as to statements made 1 I I by the victim about what Petitioner did to him. {Tl 162-163). The court overruled , I Petitioner's objection holding the statements were "recent outcr[ies]" and therefore not hearsay. (Tl i62-163). Later, Dr. Sallie Carter, a pediatrician, testified about her diagnosis of the victim. {Tl507-1529). Dr. Carter testified that the victim suffered from Post1 ! Traumatic Stress Syndrome (''PTSD").· · Dr. 'Carter claimed to have a degree in I psychology, divinity, and medicine. {Tl 507). She further testified that she diagnoi es 3 P-049 mental health conditions of children in her professional capacity. I •i ';·I ' (Tl50~-50 ~). ' Petitioner objected numerous times on the grounds that Dr. Carter was not qualified as an expert in PTSD since there was no Em hearing. (Tl520-1530). The co~rt I overruled Petitioner's objections and admitted Dr. Carter's expert testimony. (Tl 520-1530). Following the victim's testimony, Petitioner moved to have th~ case ! dismissed as a matter of law on the ground that the Government's case was lega ly insufficient to establish that Petitioner sexually abused the victim at least tw ce ! during the time allegation. (Tl 803). The court denied that motion. Just before closing arguments began, Juror #9 informed the court that Ju~or ! #3 was involved in a child abuse allegati~n. (~'}' 8Q4). According to Juror #9, Ju"or l ' #3 also told other j~rors that she felt sorry for Petitioner when she saw himjcry ng and that she didn't "believe what [the victim] ·said." (Tl865). The Government I argued that if Juror #3 was the target pf an abuse allegation, she was unqualified for jury service. (Tl 866). I The court questioned Juror #3 about the allegations. (Tl 868-869). ~.he denied having been accused of sexual abuse. {Tl 868). Instead, she claimed that ;he I was accused of ~~rbill y kbusing 1 ~ stUdent. (Tl 86S). She further claimed that ;he never expressed an opinion about Petitioner or the victim to another juror. Cp 8t 9). Petitioner argued that this exchange did not provide a basis for discharging the jw or. ! (Tl 870-871). · T~e court, r~ •.•• 4 P-049 ~\ believirig'tha~ the jtltbr should have disclosed th+ abllse ' ~ -; : t. accusation, decided to dismiss the juror over the objection of Petitioner. (Tl 87 ). Petitioner tried to object again but was cut off by the trial judge who said "w~ have I four alternates that are pristine. Why take a chance on something?" (T:l 87 ). Petitioner responded that there was no way to give credibility to one juror over 1he other. Petitioner further argued that Juror #3 did not lie on any questionnaire and I was therefore still qualified to be a juror. (Tl 872). The court discharged th~ jui-or anyway. (Tl 872)~ The jury convicted Petitioner on both counts. (T2033). II. Post-Conviction Proceedings Following his conviction, Petitioner filed a timely appeal to the New York State Supreme Court Appellate Division, Second Department (the "SecCJnd I Department"). He raised twelve mostly non-constitutional claims subs~tia .ly similar to the con~tiq.iti~~ally colored claims upon which he now seeks habeas relief. .. (Dkt. No. 6-12). On direct appeal, he argued that the trial court erred by: (1) disqu~ify ng Juror #3; (2) admitting testimony related to allegations of prior sexual miscondt ct; ~ (3) permitting . . Di< Carter. to testify ~:tri. -~ PTSb. diagnosis without a fw hearii~g; . I (4) failing to redact the victim's medical records; (5) entering a verdict wh~re he I People failed to establish all of the elements of the crime; (6) entering a verdict t tlat was against the weight of the evidence; (7) ente~ing a verdict where the indi,ctment I charged a count made duplicitous by an overbroad time allegation; (8) preven~ing he ;, · l,t · :u1::: P·049 5 t ' ·;I l ! 1 .1) . I: it )j ',, : : defendant from cross-examining the yic~im' s ·father about pictures that coul4 have , I ' •, shed light on the victim's motives; (9) admitting hearsay that prejudiced t le defendant's case; (10) admitting a police-controlled conversation between Petitior er I I and the victim's father; ( 11) allowing the preceding errors to become harmful: in 1ne . ' aggregate; and (12) sentencing Petitioner to an excessive prison term. (Dkt. No. 612). The Secon.dI)ep~ment affirmed:the trial court in a two-page opinion. ~~ People v. Johnson, 83 A.D.3d 1094, 922 N.Y.S.2d 455, (2nd Dep't 2011). The I Second Department held that Petitioner's first and seventh claims were not preserv~d for review since the Petitioner did not properly_raise those issues at a time when 1ne .... ' ,. . ' ·.... i· . f·· ! • trial court could have provided a remedy:: Johnson, 83 A.D.3d at 1095, 922 N.r.s.2d i at 457 (internal citations omitted). The court rejected Petitioner's sixth and twel th claims on the merits. Id. While acknowledging that Petitioner's tenth claiF v'as correct that the trial court should have redacted. the police-controlled conver~ati1m, the court found the error harmless in light of the "overwhelming evidence. of 1he I defendant's guilt." Id. The court dismissed the remainder of Petitioner's cl~ims as ' ./.,;._i,1• ,, "without merit." Id. · . · · ··. ·• • '. Petitioner then sought review from the New York Court of Appeals.I (Dkt. No. 6-15). In his application for leave to appeal, Petitioner asserted all but 1two of the same claims from his direct appeal, .dropping claim six (that the verdict v1as •t • • . against the weight ·1 ~ ', I . I of the evidence) and claim ten (that the police-coritrol ed I 6 P-049 conversations between Petitioner and the victim's father should have been red~cte1 l). i I I Id. The Court of Appeals denied the application without opinion on August 5, 20 1. i ; . '·: See People v. Jdhllson, 17 N.Y.3d 818, 954 N.E.2d 97 (2011) (Order Dfnying Leave). II. !''. ' The Instant Petition Petitioner now seeks federal habeas relief advancing all twelve claims ~hat he raised in his direct appeal. (See Dkt. No. 1). However, for the first time, Petitio111er now couches each of the twelve claims in t~rms of a constitutional deprirafi m. Although it is often unclear which constitutional right he is asserting, Defendant now appears to allege as follows: 1. the tri~l .~01µ1 violated Jris Sixth Amendment right to a fair and . ~. : ~ impartial trial by disqualifying Juro~ #3 without a more thoro~gh inquiry into the juror's fitness 2. The trial court violated his Due Process rights by admitting testimony that related to allegations of prior uncharged sexual misconduct 3. The trial court violated his Due Process rights by allowing a doctc r to testify to a PTSD diagnosis without a _tm hearing. 4. The trial court violated his Sixth Amendment right to a fair trial b~ I failing to redact prejudicial allegations from the victim's medical 7 p.049 ~e~ords 5. The trial court violated his Sixth Amendment right to a fair and I impartial trial by imposing a conviction where the People had pot established the elements of count; one 6. The trial court violated his Sixth Amendment right to a fair tri~l ar d his Fourteenth Amendment Due Process rights by imposing a i conviction where the verdict was against the weight of the evidence 7. The trial court violated his Fourteenth Amendment Equal Protecti~m rights by imposing a conviction upon an indictment containing a I duplicitous count I •! 8. The trial court violated his Fourteenth Amendment Equal Protecti~m rights by barring cross-examinatfon regarding pictures of the victim's father performing sex acts ,. 9. The trial court violated his Sixth Amendment right to a fair trial and Fourteenth Amendment Due Process rights by admitting impermissible hearsay evidence I 0. The t~iaCb~urt violated his Sixth Amendment right to a fair trial, Fourteenth Amendment Due Process rights, and an unnamed Fifth Amend~ent right by refusing to_~edact prejudicial portions ofl police~controHed conv~r~a~ions with the victim's father . I 11. The trial court violated his Sixth Amendment right to a fair trial and 8 P-049 Fourteenth Amendment Due Process rights by allowing 1he n . I cumulative effect of the ten prior claims for relief to become harm 'hi I in the aggregate 12. The trial court violated his Fourteenth Amendment Due Proc~ss and Equal Protection right~ by :imposing an excessive sentence III. Discussion A. Procedural Issues The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") i codified a series of procedural requirements for the filing of an application fo~ a writ of habeas corpus by a person in custody pursuant to a state court judgment. Ame ng ,,,. I those procedural requirements is: (1) the petition must be timely; (2) the pe1itio Iler must have exhausted available state corrective processes; and (3) the claims wit 1in I ' I the petition cannot be procedilrally barred on independent and adequate st~te law ~ grounds. See : .. . . 28 tJ.S.C. ' ~ . ' ·1. j ' t. ' ( ~·,..; . §§ 2244(d)(l)(A) & ·22s4(b)(l)(B); see also Cole~an v. Thompson. 501 U.S. 722, 729 (1991). 1. Timeliness The first inquiry is whether the petition is timely under AEDPA's o~e-year statute of limitations. In most cases, the limitations period runs from "the date on which judgment ~e~~e ;final by the conclusio·ii of direct review or the expiratio1 of 1 9 p.049 . i the time for seeking -such review."· '28-._· U.S~~C. § 2244(d)(l)(A). A convictiJOn becomes "final" when the United States Supreme Court "affirms a conviction on ·he 1 i merits on direct review or denies a petition for a writ of certiorari, or when t4e ti ne for filing a certiorari petition expires." Clay v. United States, 537 U.S. 522, 527 (2003). I For New York prisoners, generally, the conviction is final 90 days aft~t le~ ve to appeal to the ~ew·York Court of Appeals is!aenied, because defendants have 90 days to seek certiorari review before the United States Supreme Court. t~~ McKinney v. Artuz, 326 F.3d 87, 96 (2d Cir. 2003); see also Sup. Ct. R. 13(11). I In the instant case, since Petitioner did not seek a writ of certiorari1 in he •.:. . ... United States Supreme CoUrt, the conviction became final on November 7, 2011, 90 days after the New York Court of Appeals denied leave to appeal. Accordinfly, he statute of limitations would run until November 7, 2012 - one year after he I expiration of time for seeking review from 'die United States Supreme C0111rt. Petitioner filed the instant petition on October 31, 2011, well before the limitatfoms I period had expired. Therefore, his petition is timely. . 2. ! 1 I ' .. Exhaustion The second inquiry is whether the petitioner exhausted each claim by Seek ng I ·1 ' I I remedies that may be available· in the courts of"the state in which he was convic1ed. 28 U.S.C. 2254(b)(l )(B). A petitioner must "fairly present" both the factual and legal 10 P-049 premises of his federal claims to the highest state court. Baldwin v. Reese. 54:1 US. ~· . ·,. (~ ~ .' . 1' • ~Wh 27, 29 (2004); see also Jones v. Keane, 329 F.3d 290, 294-295 (2d Cir. 2003). le "a state prisoner is not required to cite chapter and verse of the Constitution in ore er I to satisfy this requirement," he must tender his claim "in terms that are likely to al ~rt . - t .• the state courts to the claim's federal nattite." Jackson v. Conway, 763 F.3d 115, IB3 (2d Cir. 2014). It is enough if the petitioner cites to federal cases in his direct rpp~eal brief, see Dye v. Hofbauer, 546 U.S. 1, 4 (2005), or relies on state cases that ~ppl:~ a (19~ constitutional analysis. See Daye v. Attorney. General, 696 F.2d 186, 194 2) i (Superseded by statute on unrelated grounds). Finally, a petitioner waives all :clai ns I from the original appellate brief to the extent that he does not include such claims in See Grev v. his application for l~av~ io appeal to t~e New. Y_ork Court of Appeals. - I ,. ... Hoke, 933 F.2d 117, 120 (2d Cir. 1991). This Court will address each claim in turn. In his direct appeal, Petitioner . . : . . prese~ted • i. ·· .., .!;_,).. his first claim, regarding he . . I dismissal of a juror, in terms that were likely to alert that court to the claim's federal nature. "This country's judicial system does not tolerate jury deliberations where such immediate risks to Due Process of Law are so glaring." (Dkt. NoJ 6- 2) I (emphasis added). Petitioner aiso raised this· claim in constitutional terms in llis application for appeal to the Court of Appeals. "[The Court] discharged her o ier . I defendant's opposition, thus adversely implicating defendant's constitutional riJht I to a trial by a p'arti~ul~ juN chosen ·according to law, in whose selection he 11 P-049 ). defendant has had a voice." (Dkt. No. 6-15) (emphasis added) (citing U.S. CONST. §1, sec.2 & People v. Ivery, 96 AD2d 712 (4thpep't 1983) (State case conqucting . . I constitutional analysis). Therefore, claim one was exhausted upon denial of 1he application to appeal. Petitioner pres~nied c~aims two, three, four, eight, nine, and ten - ·he ...• f :.,.. ; :1 \1~ . " . •. ' evidentiary claims - in his direct appeal, (Dkt. No. 6-12), and then again, with he I exception of claim ten, to the Court of Appeals. (Dkt. No.- 6-15). But neit ~er evidentiary claim was presented to either appe.llate court in terms that were lifel) to I alert those courts to the claims' federal µature~ The sum of Petitioner's evidbnti uy ' ' claims is that the trial court "got it wrong." However, a state court's evidenti rry rulings, even if erroneous under state law, do 'not generally present constit;utional issues cognizable under federal habeas review. See Estelle v. McGuire, 502 U.S. 52, I 68 (1991) (Habeas relief does not lie for mere errors of state law); McKirino11 v. I Superintendent. Great Meadow Corr. Facility, 422 F. App'x 69, 73 (2d Cir. 20. 1). Petitioner did not · Cite. 'to .. any federal cases, rely on state cases appl~ini a I constitutional analysis, or do anything that would otherwise suggest to an appellate court that his evidentiary claims were federal in nature. As such, each of Petitiom r's I six evidentiary claims are unexhausted. Claim ·ten, however, was not included in the ., . application for appeal to the Court of Appeai~. Accordingly, claim ten is not only I unexhausted but also waived. See Grey, 933 F.2d at 120. Petitioner's fifth claim, that the Government did not establish an of ~he 1 • ' 12 P·049 i I elements of count.orie:;·w~ not presented in coristitutional terms on direct appeal or in Petitioner's application for leave to appeal to the Court of Appeals. (Dkt. No. 612 & 6-15). Petitioner argued that the victim gave testimony too inconsistent to be . reliable in establishing whether or when twol-or more acts of abuse took ". ' I iplaj~e. I I ,'; ~ Apparently, Petitioner takes issue with the jury finding the victim credible desp te I I I the victim's inability to name the exact dates when abuse occurred. But ?abeas review is not a second bite at the apple for trying facts. Petitioner's argument men'ly presents a disagreement with the jury's finding, not a constitutional question. ~s such, that claim is also unexhausted. Petitioner's sixth claim, that the conviction was against the weight of tne • , ' ~·: ~ ' 1 ·::I..,' • ' ' ' '' i ·, I evidence, was not' pr~sented ori direct app~al ~in federal constitutional terms. Throughout the portion of Petitioner's direct appeal brief devoted to this ~clai n, Petitioner only asserts; that the evidence was "grossly inconsistent." Separate~y, tl tis claim was not included in Petitioner's applic~tl~n for ".. • leave to appeal to the N( w I York Court of Appeals. As such, Petitioner's claim, is not only unexhausted but also I waived. See Grey, 933 F.2d at 120. Petitioner's seventh claim, that count one of the indictment was duplicit011s, was presented in federal constitutional terms on direct appeal and in Petitipne ·'s application for leave to appeal to the Court of Appeals. "[A] Violation of CPL 200.00(1) is [a] viol~tlo!l ' • i of Due Process and &rounds for mistrial." (Dkt. No. 6-12 ·\~;; •, ~ . at 55; Dkt. No. 6-15 at 19) (citing People v. Keindl, 68 NY2d 410, 418 (1986>). 13 P-049 l. Petitioner explicitly invoked the constitutional right of Due Process. As su h, Petitioner' s seventh claim was exhausted. Petitioner's eleventh claim, that each of the aforementioned errors becai e harmful in the aggregate, was presented in federal constitutional terms on dir ct appeal and in Petitioner's application for leave to appeal to the Court of Appe ls. This claim focused on a defendant's right to a "fair trial." Respondent argues t at such a general statement is not enough to alert a state court to the federal nature of the claim. The undersigned disagrees. Even if such a statement was not enough to alert a state court to the claim ' s federal nature, Petitioner cited to state ca es conducting a constitutional analysis, which in itself is enough to alert a state cou to the claim's federal nature. See People v. Pelow, 24 N.Y.2d 16 1, 166, (1969) (conducting constitutional analysis); see also Daye, 696 F.2d at 194 (holding tt t state cases applying constitutional analysis is enough to alert courts to federal nat re of claim). As such, Petitioner's eleventh claim was exhausted. Petitioner"s · t~~{ft'h and' final claim, that his sentence was excessive, was ot presented in federal constitutional terms on direct appeal or in hi s application for I leave to appeal to the Court of Appeals. Petitioner seems to argue that the sentence was harsh given his relative lack of criminal his.tory. But Petitioner did not clJim any constitutional right was at issue and he did not cite to federal cases or rely on state cases that applied a constitutional analysis. In fact, Petitioner did not cite to r case on this issue in either appellate brief. As such, Petitioner' s twelfth clai 14 P-049 is unexhausted. · Procedural Bar·.:...; lndeo~~dent and Adeauate State Grounds 3. Federal courts conducting habeas corpus review may not consider the merits of federal constitutional claims when a state court has already found those claims to be procedurally barred by "a state law ground that is independent of the fede ~a1 question and adequate to support the judgment." Coleman. 501 U.S. at 7~9 (emphasis added). A procedural rule is adequate to support the judgment when t rte ~~ rule is firmly established in the law of the state at issue and regularly followed. . ; .·. . \ ' Walker v. Martin, 562 U.S. 307, 316 (2011). Exceptions to this procedural default may arise if the petitioner can showing of cause for the default and resulting 433 U.S. 72, 87 (1977), "a ~~nstih.iiOria\ , ~rejudice, ~ak( a see Wainwril!ht v. Svkes, viJf~\ion that resulted in a fundaren al miscarriage of justice, i.e., that he is actually innocent of the crime for which he has ! been convicted," Dunham v. Travis, 313 F.3d ·724, 730 (2d Cir. 2002), or the su te I procedural rule was "applied in an ''arbitrary· or iinprecedented fashion," or in a I I "manifestly unfair manner." Romanes v. Sec'y, Dep't of Corr., 621 F. Supp. 2d 12~ 9, ! 1255 (M.D. Fla. 2008). r I Where a state ·c~a~m is ·unexhausted and the petitioner no longer has st~ te ! forum in which to raise the claim, the claim may be deemed exhaustqd tut I procedurally barred. See Bossett v. Walker, 41F.3d825, 828-29 (2d Cir. 1914). In P-049 New York, if a claim could have been raised on direct appeal but was not rafsed it is barred. N.Y. Crim. Proc. Law§ 440.10(2)(c).' Following the above discussion of exhaustion, only ten of Petitioner's claims remain. 3 Of the ten remaining claims, seven are unexhausted and three ~ tre •t ~ ;: ,j ~~~ ~ . . ; !':; !' . . exhausted. The undersigned will address the unexhausted claims first. I Petitioner's five remaining evidentiary claims were not exhausted. Neit1 er were Petitioner's fifth and twelfth claims. However, Petitioner does not have 1ne option to return to New York's state courts toassert these claims since he failed to • .; . I raise them in his direct appeal in a way that would alert the court tq th ~ir constitutional nature. See N.Y. Crim. Proc. Law§ 440.10(2)(c). Section 440.10~ 2) waives claims that were not raised on direct appeal. Id. This procedural rule is fim ly established in the law of New York and has been regularly followed for years. ~~ I ~,People v. Garcia, 399 N.Y.S.2d 117, 118 (1st Dep't 1977); Peoole v. Camob( ll, No. 2014-05078, 2017 :• . ' l WL 902390, at *1 (2d Oep't Mar. 8, 2017). :."!·:.d . :; : •1 · • .... Petitioner· 'has not shown a cause for failing to properly assert these I seven claims. See Wainwright, 433 U.S. at 87. Neither has he established (or ev~n asserted) actual innocence or an arbitrary or unprecedented application of § i . " ... ; ) ·~ •.·- . : 440.10(2)(c). See Dunham, 313 F.3d at730;.see also Romanes, 621 F. Supp~ 2d at I i 1255. Had Petitioner's appellate counsel properly asserted the evidentiary cla~ms as ... \ 3 Claims six and ten were both waived since Petitioner did not include those claims in his application for leave to appeal to the Court of Appeals. See Grey, 933 F.2d at 120. 16 P-049 .;·_.. constituting some constitutional wrong, the record suggests some of those blai:ns ! . may have had some merit. As it stands, independent of any federal question, all seven claims ai:e qeemed exhauste.d b~t. p~ocequially barred. The undersigned will now move o;n to the exhausted claims. The Second Department found that Petitioner's first claim, regardiµg t tle dismissal of a juror, was unpreserved for appellate review under CPL 47Q.0512) <'.;. I because Petitioner "neither informed the court that its questioning was insuffici( nt or objectionable, nor suggested additional avenues of inquiry or requested tha~ otl er jurors be questioned." People v. Johnson, 83 A.D.3d 1094, 1095, 922 N.Y.S.2d 465 :.:· • • ! (2d Dep't 2011). The procedural rule at issue requires a movant to protest in the tr al court at a time when "the court had an opportunity of effectively changing the ~amc•." I NY CPL§ 470.05(2). Such protest must be sufficient to make the objecting part~ 's I i . . ;1 . ..: ";t~,:,~ l position known to' the court and may be 'exprds or 'implied. Id. In this Court's review of the record, it is ·a close call as to whether Petitior er ! protested sufficiently. (See Trial Court Transcript ("Tr.") at 1867, 1871-1872).: First, Petitioner argued that the even if the court acdepted what Juror #9 said about Jwor #3 as true, it does not mean Juror #3 was untruthful during voir dire since it was I unclear if Juror #3 was accused of a crime. (Tr. at 1867). Following the couri 's questioning of Juror #3:~Petiti'oner again· argued that since Juror #3 denied all .oft 1e allegations against her by Juror #9, there was "absolutely no basis to discharge ti is I juror." (Tr. at 1870). The trial judge stated that even though Juror #3 may not ha~e '· . :: 1:7 ,., '. Ii .·.\., P-049 .' '. .. .i: ' I : ·~ , i been charged with a crime, she should have disCiosed during vior dire that she was accused of abuse in her role as a teacher. (Tr. at 1871 ). Furthermore, according to the court, Juror #9 had no reason to make up the allegations about Juror #3. '(Tr. at i· ,: : J>V. · · ·:;, ..: .. ::·· _ : 1871). Petitioner again tried to intervene arguing that there was no reason 'ogive credibility to one juror over another. (Tr. at 1871). Petitioner never suggested that the court ask more questions or question otJ er jurors. Nor did he inform the court that its inqµiry was insufficient or objectionab e. : • • • I But Petitioner now argues that the court erred by failing to conduct a more searching I inquiry. The Second Department did not think the Petitioner did enough to suggest to the trial court that its inquiry was the problem - a reasonable opinion in light, oft rie record. No matter this Court's opinion of whether Petitioner did enough, fede ·al . courts hearing habeas ,c~se~ are not permitted ~ '. ~ 1 "' ;·J ~o ' I substitute their own interprytati :m : of a state procedural rule for a state court's interpretation where the state cour 's interpretation was not arbitrary, unprecedented, or manifestly unfair. See Ro~an~~s, 621 F. Supp. 2d at 1255. It is enough that the Second Department's opinion was rot I an "arbitrary''·· unp~ecedented, or 1 'riifuiifestlY ;~nfafr application of NY CPL § I 470.05(2). See People v. Hicks, 6 N.Y.3d 737, 739 (2005) (holding that a defendant must inform court that its questioning is the issue or suggest further inquiry); Peor le .. v. Parrilla, 27 N.Y.3d 400, 405 (2016): ' : ~ .. Petitioner has offered no cause for his failure to suggest a more th9rough 18 P-049 inquiry. Neither has he established (or even asserted) actual innocence. Moreover, the procedural rule at issue is firmly established and regularly used in New. Yo "k. . See~' ~ ~.d•, .. '. '" t Parrilla, 27 N.Y.3d at 405; People v. Hodge, No. 118, 2017 WL 538?47, at *I (N.Y. App. Div. Feb. IO, 2017). Had Petitioner's trial counsel simply suggested to the court that it conduc~ a further inquiry, the record suggests that this may· have been a meritorious claim. Eut since Petitioner defaulted on this claim by failing to raise it before the trial co1~rt I dismissed the juror, this claim is now, as the Second Department held, procequra ly barred. That same procedural bar now prevents this Court from reviewing this cla m on the merits. The seventh claim, that count one of the indictment was duplicitous, was ! • • •••• , , I exhausted, but the Second Departm~nt ~deegied it unpreserved for review since \. ; ~ 1 J, • • Petitioner did not file a motion to \dismiss· that count within 45 days of his arraignment. See N. Y. Crim. Proc. Law§§ 470.05(2) & 210.20(1). Again, Petitior er has not shown any cause for this default. See Wainwright, 433 U.S. at 87. J' • ' I has he established ·(oi even asserted) actual innocence or an arbitr¥y or unprecedented application of the procedural rules at issue. See Dunham, 3 I 3 F .3d at 730; see also Romanes, 621 F. Supp. 2d at 1255. Sections 470.05(2) and 210.20( 1) { • I are firmly established in the law of New York and regularly followed. See Garvev I v. Duncan, 485 F.3d 709, 715-16 (2d Cir. 2007); see also Glen v. Bartlett, 72 I, 724-25 (2d Cir. I 996). F. M Therefore, independent of any federal questic n, .. lWY.: 19 p.049 9~ Petitioner's seventh claim is also procedurally barred. Petitioner's eleventh claim, that the trial court's errors are harmful in 1he aggregate, was exhausted. This claim was reviewed on the merits by the Second Department although it was deemed "without merit." Therefore, no procedural b~s I I currently prevent this court from reviewing this claim. Accounting for waived claims and pro~edurally barred claims, only clam eleven is preserved for habeas review. · B. Standard of Review Under 28 U.S.C. § 2254, as amended by AEDPA, an application for a writ of I I habeas corpus by a person in custody pursuant to a state court judgment may only be brought on the ground that his or her custody is "in violation of the Constitution or laws or treaties of t~etJilited States."· , 28 U.s.C: § 2254(a). . A petitioner is reijuired I to show that the state court decision, having been adjudicated on the merits, is eit! er "contrary to, or involved an unreasonable application of, clearly established ~edetal law, as determined by the Sul?reme .Court of}~e United States," or "based Ion m I unreasonable determination of the facts in'light of the evidence presented in the Ste te court proceeding." 28 U.S.C. § 2254(d). For the purposes of federal habeas review, "clearly established law" is I defined as "the holdings, ·as opposed to dicta, rir' [the Supreme] Court's decisi6ns as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 3t 2, 20 ' ; p.049 I •' : ·.: . . ~ ·' ~ 412 (2000). A state court decision is "contrarytfo," or an "unreasonable application of," clearly established law ifthe decision (1) is contrary to Supreme Court prepedc nt I on a question of law; (2) ·arrives at a conclusion different from that reached by 1ne Supreme Court on "materially indistinguishable" facts; or (3) identifies the , com~ct I governing legal rule, but unreasonably applies it to the facts of the petitioner's ca:;e. Id. at 412-13. In order to establish that a state court decision is based :on an I "unreasonable application" of the law, the state court decision must be "mo~e than ~ '. incorrect or erroneous"; it must be "objectively unreasonable." Lockver v. Andrae e, I 538 U.S. 63, 75 (2003). Factual determinations made by the state court are pre~umed to be correct, and the petitioner bears the burden of rebutting the presumption of . : ! \; I i• correctness by clear and convincing evidence.'_28 U.S.C. § 2254(e)(l). C. Cumulative effect of errors became harmful in the aggregate I Petitioner's eleventh claim, the only ~ong his claims preserved for habeas ; review, asserts that Petitioner was deprived of a constitutionally fair trial because t 1e . I I I cumulative effect of the many trial court errors became harmful when taken to~ethc:r. (See Dkt. No. 1 at l 0). This claim was properly exhausted and is not otherwise procedurally barred: · 1. Established Federal Law . ·. ; ' ... . -i(. A habea8 petitioner is entitled ·to relief if the constitutional error at trial w :is 21 P-049 ; . ,·, not harmless. Brown v. Keane, 355 F.3d 82, 9 1 (2d Cir. 2004). An error is 01 ly harmless if, beyond a reasonable doubt, the error did not contribute to the verdil t. c See Mitchell v. Esparza, 540 U.S. 12, 18 (2003); Zappula v. New York, 391 F.Gd 462 , 467 (2d Cir. 2004). In reviewing a state court's determination of harmless error, district courts can only reverse objectively unreasonable determinations. ~~ Mitchell. 540 U.S. at 18 . 2. State Court Holdings The only error that the Second Department recognized was Claim Ten.4 E ut the court found that error harmless since the Government had shown overwhelmi 11g evidence of Petitioner' s guilt. The Second Department held that there was "no significant probability that the error contributed to [Petitioner's] convictioJ" Johnson, 83 A.D.3d at' f095. Finding no other e~ors existed, the Second Department summarily dismissed Claim Eleven as "without merit." Id. 3. Analysis Claim Eleven was the only claim preserved for review by this Court. The e are therefore no errors for this Court to review for a cumulative effect. Petitione1 's claim therefore fai ls without any further analysis. Habeas relief is denied. " Claim ten is procedurally barred from consideration on the merits as explained above supra sectic n Ill , A, 3. \ IJ' P-049 22 /S/ USDJ STERLING JOHNSON, JR.

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