Valdez-Cruz v. Racette

Filing 13

MEMORANDUM AND OPINION. For the reasons set forth herein, 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. The Clerk of the Court shall enter judgment accordingly and close this case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 8/1/2014. (Gibaldi, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 13-CV-03033 (JFB)

_____________________

LEONARDO VALDEZ-CRUZ,
Petitioner,
VERSUS

STEVEN RACETTE, SUPERINTENDENT,
GREAT MEADOW CORRECTIONAL FACILITY,
Respondent.
___________________
MEMORANDUM AND ORDER
August 1, 2014
___________________

JOSEPH F. BIANCO, District Judge:

In the instant case, petitioner
challenges his conviction on the
following grounds: (1) under Batson v.
Kentucky, 476 U.S. 79 (1986), the trial
court erroneously concluded that
petitioner had failed to establish a prima
facie case of race discrimination by the
prosecution during voir dire; (2) the trial
court’s verdict was against the weight of
the evidence; and (3) the trial court
deprived petitioner of his constitutional
right to present a defense at trial.

Leonardo Valdez-Cruz (“petitioner”)
petitions this Court for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254,
challenging his conviction entered on
June 14, 2010, in the Supreme Court of
the State of New York, Nassau County
(the “trial court”). Following a jury trial,
petitioner was convicted of murder in the
first
degree,
N.Y.
Penal
Law
(“N.Y.P.L.”) § 125.27(1)(a)(x); burglary
in the second degree, N.Y.P.L.
§ 140.25(2); six counts of criminal
contempt in the first degree, N.Y.P.L.
§ 215.51; criminal contempt in the
second degree, N.Y.P.L. § 215.50(3);
and criminal possession of stolen
property in the fifth degree, N.Y.P.L.
§ 164.50. Petitioner was sentenced to an
aggregate term of imprisonment of life
without the possibility of parole.

For the reasons set forth below, the
petition for a writ of habeas corpus is
denied in its entirety. Specifically, the
Court concludes that petitioner’s third
claim is procedurally barred from habeas
review. Moreover, the Court concludes
that all of petitioner’s claims, including
the third claim, are without merit.

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I. BACKGROUND

Joanna + another n***** = Joanna
A dead b**** who left behind
2 beautiful kids that really
needed her more than anything in
this whole world.

A. Factual Background
The Court has adduced the following
facts from the instant petition and
underlying record.

(Tr. at 920–21; Ex. 66.)

Petitioner and Joanna Bird (“Bird”)
met in 2002 and subsequently started a
seven year relationship. (Tr.1 at 789–90,
839–40, 1678–81.) Petitioner and Bird
had a son together in March 2005. (Tr. at
788, 970.)

During a phone call on October 19,
2008, petitioner told Bird that he would
be “stressed out” if she were to die
instantly in a car crash because he would
want her to “suffer.” (Tr. at 1665, 1658;
Ex. 115.) On two different occasions,
petitioner explicitly told Bird that he was
going to torture her. (Tr. at 1655, 1657;
Ex. 115.) During a call on October 19,
2008, petitioner warned Bird that he was
going to sit her up and make her watch
as he stabbed off her genitals. (Tr. at
1651, 1655, 1658; Ex. 115.) On July 19,
2008, petitioner twice told Bird over the
phone that he was going to “make her
f****in’ eyes pop out [of her] f****in’
head.” (Id.)

On May 27, 2008, petitioner was
arrested, and an order of protection was
issued requiring him to stay away from
Bird. (Tr. at 761–62.) After barricading
himself in Bird’s apartment on June 28,
2008, petitioner was arrested for, inter
alia, violating the order of protection.
(Tr. at 925–26, 1132, 1163.) With
respect to Bird, a second “stay away”
order of protection was subsequently
issued against petitioner. (Tr. at 397,
762–63.)

Following his release from jail,
petitioner continued to violate the orders
of protection by contacting Bird. (Tr. at
763–65.) By March 2009, petitioner
started constantly appearing wherever
Bird happened to be, would call her
incessantly, and would regularly warn
her that if she did not get back together
with him he was going to kill her. (Tr. at
804–07, 815, 835–36, 982–86.)

While
incarcerated,
petitioner
continued to contact Bird by letter and
by phone. (Exs. 2 63–66, 115.) During
these communications, petitioner both
begged Bird to give their relationship a
second chance and threatened her if she
refused to take him back or if she started
seeing someone else. (Tr. at 920–21; Ex.
64.) In a September 2008 letter to Bird,
petitioner wrote, “It’s not gonna KILL
you to give me one last chance. It might
KILL you if you don’t.” (Id.) In another
September 2008 letter to Bird, petitioner
drew a tombstone with the letters
“R.I.P.” and wrote the following:

On March 19, 2009, Sharon Dorsett
(“Dorsett”) received a frantic call at
12:31 p.m. from Bird, her daughter. (Tr.
at 826–27, 892, 1009–12.) Bird was
screaming, crying, and begging Dorsett
to come help her. (Id.) Bird told Dorsett
that she was trapped in her apartment
with petitioner and could not get out.
(Id.) In the background, Dorsett heard
petitioner tell Bird that she would be

“Tr.” refers to the transcript of petitioner’s trial.
“Ex.” refers to the exhibits admitted in
evidence at petitioner’s trial. Petitioner does not
contest the accuracy of the exhibits cited herein.
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2

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dead before her mother or the police
arrived. (Id.)

On March 20, 2008, petitioner
surrendered to the police, with the help
of his father and sister. (Tr. at 1624–27.)
On the car ride back to police
headquarters in Mineola, petitioner said
to his father and sister the following:
“What have I done? I’m going to jail for
the rest of my life. I’m going to go to jail
for twenty-five years to life.” (Tr. at
1628.)

Thereafter, Dorsett rushed over to
Bird’s apartment in Westbury with her
other daughter, Melissa Johnson
(“Johnson”). (Tr. at 827–28, 895, 901,
1012–15, 1041.) When they arrived at
Bird’s apartment, Dorsett and Johnson
observed a car that petitioner often drove
parked in the driveway. (Id.) After no
one answered the door, Johnson called
the police. (Id.) Police officers McQuade
and Doerrie showed up to Bird’s
apartment
minutes
later.
(Id.)
Petitioner’s sister, Chi Chi, subsequently
arrived at the scene while on
speakerphone with petitioner. (Tr. at
829–32, 914.) Johnson testified at trial
that she overheard petitioner tell Chi Chi
“that he did it,” “that it was over,” that
“he did what he told her he was going to
do,” that she “was in the house” and
“wasn’t coming out,” and that “he
wasn’t coming back.” (Id.) Chi Chi
eventually told Officer Doerrie that Bird
was dead inside the house. (Tr. at 1088–
89.) The police then broke down the
front door and found Bird’s lifeless body
on the steps of her apartment. (Tr. at
832, 1092–93, 1144–47.)

An autopsy was performed on Bird
by Deputy Medical Examiner Dr. Brian
O’Reilly (“Dr. O’Reilly”) on March 20,
2009. (Tr. at 731.) Examinations of
Bird’s body revealed that she had
significant injuries to her head and neck,
including blunt force and sharp force
injuries. (Tr. at 735–36, 742–43, 745.)
The blunt force injury included multiple
abrasions to Bird’s face, with obvious
swelling on both cheeks, contusions and
abrasions surrounding her right ear,
lacerations of the skin on the inside of
her mouth, a laceration of her lower lip,
and multiple contusions of her scalp,
under her skin, and on her torso. (Id.)
The most significant of Bird’s sharp
force injuries was the gaping wound on
the right side of her neck. (Id.) This
wound, which Dr. O’Reilly opined at
trial would have been caused by repeated
twisting and hacking motions, transected
Bird’s windpipe, jugular vein, and
sternomastoid muscle, perforated her
esophagus, and left cuts on the front
portion of her spinal column. (Id.) At
trial, Dr. O’Reilly also testified that
when Bird’s windpipe was transected,
she was forced to breath in and out of
the hole in her neck. (Tr. at 739–40,
749–50.) In addition, Bird was stabbed
on the left side of her neck, under her
chin, and in the eyes. (Tr. at 737–38.)
Dr. O’Reilly testified at trial that the
hemorrhaging around the stab wounds of

Testimony from a taxi driver and cell
phone records presented at trial indicated
that petitioner’s phone had traveled from
Westbury to Manhattan—stopping in
Hicksville, Hempstead and the Bronx—
after Bird’s death. (Tr. at 1295–97,
1493–95, 1497–98, 1505–06; Exs. 93–
94, 98–99, 111–12.) Cell phone records
also show that petitioner’s phone and
Bird’s phone had activity within the
range of the same Hempstead tower after
Bird was killed. (Tr. at 1502–06; Exs.
102–03, 110–12.)

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her eyes indicated that Bird was still
alive when she was stabbed there. (Id.)

prosecutor during voir dire; (2) the
quantity of prior bad act evidence that
was introduced at trial deprived him of a
fair trial; and (3) the evidence was
legally insufficient and the verdict was
against the weight of the evidence for his
conviction of first-degree murder. (See
generally Appellant’s Brief.) On
February 24, 2012, petitioner filed a pro
se supplemental brief in which he raised
a fourth claim contending that he was
deprived of his constitutional right to
present a defense at trial. (See Pro Se
Supplemental Brief.)

Dr. O’Reilly explained at trial that
Bird’s death was a homicide, and that
the cause of her death was multiple stab
wounds to the head and neck. (Tr. at
747.) Dr. O’Reilly also testified that Bird
probably remained alive for a few
minutes after suffering such severe stab
wounds. (Id.) Tests established that
petitioner’s sperm had been deposited
into Bird’s vagina within the twenty-four
hours prior to the autopsy, which was
performed at 8:30 a.m. (Tr. at 1552,
1546–50.)

The Appellate Division affirmed
petitioner’s judgment of conviction in a
decision dated October 3, 2012. See
People v. Valdez-Cruz, 951 N.Y.S.2d
582 (N.Y. App. Div. 2012). The
Appellate Division held that: (1) the trial
court concluded correctly that petitioner
had failed to establish a prima facie case
of race discrimination at voir dire; (2)
petitioner’s prior bad acts claim was
without merit; (3) the evidence was
legally sufficient to establish petitioner’s
guilt and the verdict of guilty for firstdegree murder was not against the
weight of the evidence; (4) petitioner’s
deprivation-of-his-constitutional-rightto-present-a-defense
claim
was
unpreserved for appellate review
because he had not advanced it at trial.
Id. at 583–84.

B. Procedural History
Following a jury trial in the trial
court, petitioner was convicted on June
10, 2014, of murder in the first degree,
N.Y.
Penal
Law
(“N.Y.P.L.”)
§ 125.27(1)(a)(x); burglary in the second
degree, N.Y.P.L. § 140.25(2); six counts
of criminal contempt in the first degree,
N.Y.P.L. § 215.51; criminal contempt in
the second degree, N.Y.P.L. § 215.50(3);
and criminal possession of stolen
property in the fifth degree, N.Y.P.L.
§ 164.50. (Tr. 1872–77.) (Id.) Petitioner
was sentenced to an aggregate term of
imprisonment of life without the
possibility of parole. (S.3 at 20–21.)
On July 18, 2011, petitioner
appealed his conviction to the New York
Supreme Court, Appellate Division,
Second
Department
(“Appellate
Division”). He raised the following
issues on appeal: (1) the trial court erred
when it concluded, under Batson, that
petitioner had failed to establish a prima
facie case of race discrimination by the

On November 20, 2012, petitioner
filed an application with the New York
Court of Appeals for leave to appeal
from the Appellate Division’s order on
his Batson and legal sufficiency claims.
(See Application for Leave to Appeal.)
The Court of Appeals denied petitioner’s
application for leave to appeal on
December 19, 2012. See People v.
Valdez-Cruz, 20 N.Y.3d 989 (2012).

“S.” refers to the transcript of petitioner’s
sentencing.
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4

On May 7, 2013, petitioner,
proceeding pro se, filed the instant
petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Petitioner
claims that: (1) he was denied his right
to a fair trial under Batson; (2) the trial
court’s verdict was against the weight of
the evidence; and (3) he was deprived of
his constitutional right to present a
defense at trial. (Pet. 4 at 6–7, 9.)
Respondent filed its memorandum of
law in opposition to the petition on
August 26, 2013. Petitioner filed a
traverse on March 5, 2014. The Court
has fully considered the arguments and
submissions of the parties.

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)).

II. STANDARD OF REVIEW

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.

A. Legal Standard
To determine whether petitioner is
entitled to a writ of habeas corpus, a
federal court must apply the standard of
review set forth in 28 U.S.C. § 2254, as
amended by the Antiterrorism and
Effective
Death
Penalty
Act
(“AEDPA”), which provides, in relevant
part:
(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 adjudicated
on the merits in State court
proceedings
unless
the
adjudication of the claim—

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 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).

(1) resulted in a decision that was
contrary to, or involved an
unreasonable application of,
clearly established Federal law,

“Pet.” refers to petitioner’s habeas corpus
petition submitted in this Court.
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5

Additionally, while “‘[s]ome 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.’” Id. (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 . . . 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)).

A. Procedural Bar
1. Legal Standard
A petitioner’s federal claims may be
procedurally barred from habeas review
if they were decided at the state level on
“independent and adequate” state
procedural grounds. Coleman v.
Thompson, 501 U.S. 722, 729–33
(1991); see, e.g., Michigan v. Long, 463
U.S. 1032, 1041 (1983). 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). To be
independent, the “state court must
actually have relied on the procedural
bar as an independent basis for its
disposition of the case,” by “clearly and
expressly stat[ing] that its judgment rests
on a state procedural bar.” Harris v.
Reed, 489 U.S. 255, 261–63 (1989)
(internal quotation marks omitted). In
addition, a state court’s reliance on an
independent and adequate procedural bar
precludes habeas review even if the state
court also rejected the claim on the
merits in the alternative. See, e.g., id. at
264 n.10 (holding that “a state court
need not fear reaching the merits of a
federal claim in an alternative holding,”
so long as the state court “explicitly
invokes a state procedural bar rule as a
separate basis for decision” (emphasis in
original)); Glenn v. Bartlett, 98 F.3d
721, 725 (2d Cir. 1996) (same).

III. DISCUSSION
Petitioner argues he is entitled to
habeas relief on three grounds: (1) he
was denied his right to a fair trial
because of the trial court’s Batson
determination; (2) the trial court’s
verdict was against the weight of the
evidence; and (3) he was deprived of his
constitutional right to present a defense
at trial. (Pet. at 6–7, 9.) Respondent
argues that petitioner’s third claim is
procedurally barred from habeas review
and that all of his claims are without
merit. (Resp’t Br.5 at 5–29.)
The Court agrees that petitioner’s
third claim is procedurally barred from
habeas review. However, in an
abundance of caution, the Court has
analyzed the merits of all claims. As set
forth below, the Court finds that all of
petitioner’s claims are without merit and
therefore denies the petition in its
entirety on the merits.

The procedural bar is based on the
“comity and respect” that state
judgments must be accorded. House v.
Bell, 547 U.S. 518, 536 (2006). Its
purpose is to maintain the delicate
balance of federalism by retaining a
state’s rights to enforce its laws and to
maintain its judicial procedures as it sees

“Resp’t Br.” refers to respondent’s brief in
opposition to the instant petition.
5

6

dimensions.” Torres v. Senkowski, 316
F.3d 147, 152 (2d Cir. 2003) (citation
and internal quotation marks omitted). A
miscarriage of justice is demonstrated in
extraordinary cases, such as where a
“constitutional violation has probably
resulted in the conviction of one who is
actually innocent.” Murray v. Carrier,
477 U.S. 478, 496 (1986). To overcome
a procedural default based on a
miscarriage of justice, the petitioner
must demonstrate that “more likely than
not, in light of the new evidence, no
reasonable juror would find him guilty
beyond a reasonable doubt.” House, 547
U.S. at 536–38.

fit. Coleman, 501 U.S. at 730–31.
Generally, the Second Circuit has
deferred to state findings of procedural
default as long as they are supported by
a “fair and substantial basis” in state law.
Garcia, 188 F.3d at 78. 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 (citation and
internal quotation marks omitted).

2. Application
Petitioner argues that he was
deprived of his constitutional right to
present a defense at trial when the trial
court denied his application to introduce
tape recordings of telephone calls that
petitioner had made to Bird. (Pet. at 8.)
The
Appellate
Division
denied
petitioner’s constitutional claim by
ruling that it was unpreserved for
appellate review because petitioner had
not made this argument at trial. ValdezCruz, 951 N.Y.S.2d at 584 (citing
People v. Haddock, 917 N.Y.S.2d 634
(N.Y. App. Div. 2010); People v. Simon,
775 N.Y.S.2d 169 (N.Y. App. Div.
2004)).

If a claim is procedurally barred, a
federal habeas court may not review it
on the merits unless the petitioner
demonstrates both cause for the default
and prejudice resulting therefrom, or if
he demonstrates that the failure to
consider the claim will result in a
miscarriage of justice. Coleman, 501
U.S. at 750. A 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, 2010 WL
5125317, at *3 (E.D.N.Y Dec. 9, 2010)
(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

Failure to preserve an issue for state
appellate review by not raising a
constitutional claim before the trial court
or failing to object to the trial court’s
denial of an evidentiary application is an
adequate and independent procedural
ground recognized in New York State.
See N.Y. Crim. Proc. Law § 470.05;
Murray,
477
U.S.
at
485–93
(contemporaneous
objection
rule);
Wainwright v. Sykes, 433 U.S. 72, 86–92

7

(1977) (contemporaneous objection rule
is an independent and adequate state
ground); Glenn v. Bartlett, 98 F.3d 721,
724–26 (2d Cir. 1996); Owens v.
Portuondo, No. 98-CV-6559 (AJP),
1999 WL 378343, at *6 (S.D.N.Y. June
9, 1999) (citing cases), aff’d, 205 F.3d
1324 (2d Cir. 2000); Torres v. Irvin, 33
F. Supp. 2d 257, 263–65, 273–75
(S.D.N.Y. 1998); Vera v. Hanslmaier,
928 F. Supp. 278, 285 (S.D.N.Y. 1996)
(“Failure to object at trial is an
independent
and
adequate
state
procedural bar.”); Jamison v. Smith, No.
98-CV-3747 (FB), 1995 WL 468279, at
*2 (E.D.N.Y. July 26, 1995) (“Courts in
this circuit have consistently held that
the
failure
to
object
contemporaneously . . .
constitutes an
adequate and independent basis for
barring habeas review.”); Anderson v.
Senkowski, No. 92-CV-1007, 1992 WL
225576, at *4 (E.D.N.Y. Sept. 3, 1992),
aff’d, 992 F.2d 320 (2d Cir. 1993). As
stated supra, the Appellate Division held
that this claim was unpreserved for
review. Valdez-Cruz, 951 N.Y.S.2d at
584. Because the Appellate Division
denied petitioner’s claim on an
independent and adequate state law
ground, the Court is procedurally barred
from reviewing this claim.

basis for their admissibility, or how such
portions
could
undermine
the
overwhelming evidence of his guilt.
Accordingly, this claim is procedurally
barred from federal habeas corpus
review.
B. Merits Analysis
Although petitioner’s deprivation-ofhis-constitutional-right-to-present-adefense claim is procedurally barred
from habeas review, the Court, in an
abundance of caution, has analyzed the
merits of all of petitioner’s claims and
concludes, for the reasons discussed
below, that they are without merit.
1. Batson Claim
a. Legal Standard
“[W]hen reviewing a Batson
challenge in the context of a habeas
petition, a trial court’s conclusion that a
peremptory challenge was not exercised
in a discriminatory manner is entitled to
a presumption of correctness, except,
inter alia, to the extent that the trial
court did not resolve the factual issues
involved in the challenge or if the
finding is not fairly supported by the
record.” Galarza v. Keane, 252 F.3d
630, 635 (2d Cir. 2001). In Batson, the
Supreme Court set forth a three-part test
for a trial court evaluating whether
peremptory challenges were exercised in
a discriminatory manner: (1) “a trial
court must decide whether the party
challenging the strike has made a prima
facie showing that the circumstances
give rise to an inference that a member
of the venire was struck because of his
or her race”; (2) “[i]f the party making
the Batson challenge establishes a prima
facie case, the trial court must require
the nonmoving party to proffer a race-

Moreover,
petitioner
has
demonstrated neither “cause and
prejudice” for his procedural default, nor
a miscarriage of justice that would result
from the failure to consider his claim. In
his petition, petitioner has wholly failed
to explain why neither he nor his counsel
registered any objection when the trial
court denied his evidentiary application.
In addition, petitioner has failed to
demonstrate any prejudice because, as
discussed infra, he has failed to
articulate what portions of the recordings
would have been helpful to him, or the
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neutral explanation for striking the
potential juror”; and (3) “if the nonmoving party proffers a race-neutral
explanation, the trial court must
determine whether the moving party has
carried his or her burden of proving that
the strike was motivated by purposeful
discrimination.” Id. at 635–36 (citing
Batson, 476 U.S. at 96–98).

b. Application
Petitioner claims that he was denied
his fundamental right to a fair trial
because the trial court erred when it held
that he had failed to establish a prima
facie case of race discrimination during
voir dire. (Pet. at 6.) More specifically,
petitioner claims that the trial court’s
failure to move to step two of the Batson
analysis and require the prosecutor to
provide a race-neutral explanation for
the removal of African American
prospective jurors was a violation of
petitioner’s right to equal protection
under the law.6 (Id.) His claim relates to
the following exchange at trial. After the
prosecution sought to exercise a
peremptory challenge to excuse Lee, an
African American prospective juror, the
judge asked whether any African
American jurors had been selected as
jurors. (Tr. at 605.) Defense counsel
indicated that an African American
already had been selected as a juror but
explained that this was not a relevant
inquiry because a Batson objection could
be raised based upon the exclusion of a
single prospective juror. (Tr. at 605–06.)
Defense counsel supplemented his
objection by noting that five other
prospective jurors who were also
African American had already been
excused. (Tr. at 605–06.) Defense
counsel then contended, “it’s now the
Court’s discretion to ask [the prosecutor]

In Batson, the Supreme Court stated
that there are three components to
establishing a prima facie case. See 476
U.S. at 96. First, the moving party must
show that he is “a member of a
cognizable racial group, and that the
prosecutor has exercised peremptory
challenges to remove from the venire
members of the defendant’s race.” Id.
(internal citation omitted). Second, the
party bringing the Batson challenge may
rely on the fact “that peremptory
challenges constitute a jury selection
practice that permits ‘those to
discriminate who are of the mind to
discriminate.’” Id. (citing Avery v.
Georgia, 345 U.S. 559, 562 (1953)).
Third, the moving party “must show that
these facts and any other relevant
circumstances raise an inference that the
prosecutor used the practice to exclude
the veniremen from the petit jury on
account of their race.” Id. The Court in
Batson also noted that, when deciding
whether or not a party that brings a
Batson challenge has made a prima facie
showing, all relevant circumstances
should be considered by the trial court.
Id.

6

In his petition, petitioner argues that the
prosecutor should have been required to explain
race-neutral reasons for excluding a number of
African American jurors. (Pet. at 6.) However,
the Batson challenge that was advanced before
the trial court pertained to a single prospective
juror, Danita Lee (“Lee”). (Tr. at 605.) The
remaining prospective African American jurors
were mentioned only in support of petitioner’s
Batson challenge as to Lee. (Tr. at 605–06, 615–
16.)

“Throughout the Batson procedure,
the burden of proving that a strike was
exercised
on
an
impermissible
discriminatory ground remains with the
movant.” Messiah v. Duncan, 435 F.3d
186, 195 (2d Cir. 2006).

9

her racially neutral reason.” (Tr. at 606.)
In response, the prosecutor argued that
defense counsel had not made a prima
facie showing of discrimination (Id.) The
trial court agreed and denied defense
counsel’s Batson objection. (Id.)

exclusion of certain jurors); Butler v.
Fischer, No. 02-CV-5733 (KMK)(KNF),
2008 WL 3338202, at *6–7 (S.D.N.Y.
Aug. 8, 2008) (concluding that there was
no unreasonable application of clearly
established federal law when trial judge
did not require the prosecutor to
articulate a non-race-based reason for
exercising peremptory challenge after
defense counsel failed to make a prima
facie case under Batson), aff’d, 345 F.
App’x 642 (2d Cir. 2009); accord
United States v. Allison, 908 F.2d 1531,
1538 (11th Cir. 1990) (“In making out a
prima facie case, ‘the defendant must
point to more than the bare fact of the
removal of certain venirepersons and the
absence of an obvious valid reason for
the removal.’” (quoting United States v.
Young-Bey, 893 F.2d 178, 179 (8th Cir.
1990))). Moreover, the prosecutor’s
exercise of peremptory challenges to
excuse six African American prospective
jurors, out of a seventy-eight-person
venire having an unknown racial
composition, without more, does not
establish a prima facie case of
discrimination under Batson. See, e.g.,
Rosario, 542 F. Supp. 2d at 341
(“‘[O]nly a rate of minority challenges
significantly higher than the minority
percentage of the venire would support a
statistical inference of discrimination.’”
(quoting United States v. Alvarado, 923
F.2d 253, 255 (2d Cir. 1991)));
Copeland v. Walker, 258 F. Supp. 2d
105, 123 (E.D.N.Y. 2003) (“While
statistics alone may be sufficient to
establish a prima facie case of
discrimination
in
‘appropriate
circumstances,’ petitioner bears ‘the
burden of articulating and developing
the factual and legal grounds supporting
his Batson challenge before the trial
court.’ . . . As in Overton, petitioner did
not address or call to the attention of the

The trial court properly concluded
that petitioner had failed to establish a
prima facie case of discrimination under
Batson. Merely asking for a race neutral
explanation, without any additional
support or argument, is not enough to
meet the defendant’s burden of making a
prima facie case under Batson. See, e.g.,
Anderson v. Superintendent of Elmira
Corr. Facility, No. 05–1586–pr, 2008
WL 162842, at *2 (2d Cir. Jan. 18,
2008) (summary order) (concluding that
a state court’s rejection of a Batson
claim
when
defense
counsel
insufficiently articulated the reasons for
his challenge before the New York
Supreme Court was not an unreasonable
application of clearly established federal
law); Cousin v. Bennett, 511 F.3d 334,
339 n.1 (2d Cir. 2008) (“Petitioner also
argues that a prima facie case was made
because there was no obvious reason for
the government to challenge Smith. This
argument is unavailing. The absence of
an obvious race-neutral reason for
excluding a juror is not sufficient to
establish a prima facie showing of racial
motivation. A party’s valid reasons for
exercising a peremptory challenge are
often not apparent without explanation,
and explanation is not required unless a
prima facie showing of an improper
motivation has been made.” (internal
citations omitted)); Rosario v. Burge,
542 F. Supp. 2d 328, 340–42 (S.D.N.Y.
2008) (denying habeas relief when state
court rejected Batson claim due to
defense counsel’s failure to make out a
prima facie case, when she merely
requested a non-race-based reason for
10

trial
judge
crucial
information
surrounding the statistics, such as the
total racial makeup of the venire, the
number of minorities who actually sat on
the jury, and the number of minorities
who were not challenged by the
prosecutor.” (quoting Overton v.
Newton, 295 F.3d 270 (2d Cir. 2002)));
see also Butler, 2008 WL 3338202, at *7
(“[I]t is not the role of the habeas court
to speculate about circumstances outside
the record that hypothetically could have
supported a prima facie case.”); accord
United States v. Williamson, 53 F.3d
1500 (10th Cir. 1995) (presence of
minorities on jury as finally sworn was
relevant
to
prima
facie
case
determination); Deputy v. Taylor, 19
F.3d 1485, 1492–93 (3d Cir. 1994)
(number of minorities in the venire as a
whole was relevant to prima facie case).

but you know—just look at the evidence
and see what makes sense.” (Tr. at 567.)
In sum, the Court determines that
petitioner has failed to meet his burden
to demonstrate that the denial of his
Batson claim in the trial court involved
an unreasonable application of federal
law, or an unreasonable determination of
the facts. Accordingly, petitioner is not
entitled to habeas relief on this basis.
2. Sufficiency of the Evidence Claim
Petitioner claims that his conviction
of murder in the first degree was against
the weight of the evidence. (Pet. at 7.)
As an initial matter, “weight of
evidence” is the name of a specific claim
under New York state law and, thus, is
not cognizable on federal habeas review.
See, e.g., Correa v. Duncan, 172 F.
Supp. 2d 378, 381 (E.D.N.Y. 2001) (“A
‘weight of the evidence’ argument is a
pure state law claim grounded in New
York
Criminal
Procedure
Law
§ 470.15(5), whereas a legal sufficiency
claim is based on federal due process
principles.”); see also Lewis v. Jeffers,
497 U.S. 764, 780 (1990) (“[F]ederal
habeas corpus relief does not lie for
errors of state law.”). However, the
Court will construe the pro se petition as
asserting a sufficiency of the evidence
claim
under
the
Fourteenth
Amendment’s Due Process Clause. 7 See
Einaugler v. Supreme Court of the State
of N.Y., 109 F.3d 836, 839 (2d Cir.
1997) (stating that due process prohibits
“conviction ‘except upon proof beyond a
reasonable doubt of every fact necessary
to constitute the crime with which [the

Additionally, the record also
suggests legitimate, race-neutral reasons
for the prosecutor to have used a
peremptory challenge
to
excuse
prospective
juror
Lee.
Most
significantly, Lee stated that she would
vote to convict petitioner only if she
were “thoroughly convinced” of his guilt
and the prosecution had proven his guilt
“beyond a doubt.” (Tr. at 565.)
Concerned that she might have held the
prosecution to a higher standard of
proof, the prosecutor explained to Lee
that the standard of proof is beyond a
reasonable doubt, not any doubt. (Tr. at
566.) The trial court even felt it
necessary to further explore Lee’s
understanding of the burden of proof by
defining reasonable doubt. (Id.) Still
somewhat concerned, the prosecutor
asked Lee if she would be able to follow
the trial court’s instructions on the
burden of proof while deliberating, and
she vaguely replied: “You never know,

Indeed, in petitioner’s traverse, he re-phrased
his “verdict against the weight of the evidence
claim” as an “insufficiency of the evidence
challenge.” (Traverse at 19–21.)
7

11

defendant] is charged.’” (quoting In re
Winship, 397 U.S. 358, 364 (1970))).

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).

With respect to this claim, the
Appellate Division ruled on the merits
that the evidence at petitioner’s trial was
“legally sufficient to establish the
defendant’s guilt beyond a reasonable
doubt.” Valdez-Cruz, 951 N.Y.S.2d at
584. For the reasons set forth below, the
Court concludes that this ruling was
neither contrary to, nor an unreasonable
application of, clearly established federal
law, nor was it an unreasonable
determination of the facts in light of the
entire record. Thus, this claim does not
entitle petitioner to habeas relief.

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). Accordingly, in this
case, the Court looks to New York law
for the elements of murder in the first
degree. Under the relevant New York
law, “[a] person is guilty of murder in
the first degree when . . . [w]ith intent to
cause the death of another person, he
causes the death of such person or of a
third person; and . . . the defendant acted
in an especially cruel and wanton
manner pursuant to a course of conduct
intended to inflict and inflicting torture
upon the victim prior to the victim’s
death.” N.Y.P.L. § 125.27(a)(1)(x). 8
Torture is defined as “intentional and
depraved infliction of extreme pain,” and
“depraved means the defendant relished
the infliction of extreme physical pain
upon the victim evidencing debasement
or perversion or that the defendant
evidenced a sense of pleasure in the
infliction of extreme physical pain.” Id.

a. Legal Standard
The law governing habeas relief
from a state conviction based on
insufficiency of evidence is well
established. A petitioner “bears a very
heavy burden” when challenging the
legal sufficiency of the evidence in a
state criminal conviction. Einaugler, 109
F.3d at 840. 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) (emphasis in
original); see, e.g., Flowers v. Fisher,
296 F. App’x 208, 210 (2d Cir. 2008)
(summary order); Policano v. Herbert,
507 F.3d 111, 115–16 (2d Cir. 2007);
Ponnapula v. Spitzer, 297 F.3d 172, 179
(2d Cir. 2002). 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

8

In addition, a person is guilty of murder in the
first degree only if he “was more than eighteen
years old at the time of the commission of the
crime.” N.Y.P.L. § 125.27(1)(b).

12

b. Application
Petitioner argues that the evidence
was legally insufficient to support his
conviction of murder in the first degree.
(Traverse at 19.) Specifically, petitioner
claims that the evidence was legally
insufficient to establish the element of
torture that distinguishes murder in the
first degree from murder in the second
degree. (Id.) In support of his argument,
petitioner contends that there was “no
eyewitness testimony as to the manner
and timing of the victim’s death,” there
were “no videotapes or still photos” that
established torture, and the medical
examiner did not testify “as to the time
of the victim’s death and which injury
resulted in her death.” (Pet. at 7.)

conversations between petitioner and
Bird establishing that he wanted her to
suffer. (Tr. at 1651, 1655, 1657–58; Ex.
115.) During a recorded phone call made
by petitioner from jail on October 19,
2008, petitioner told Bird that he would
be “stressed out” if she were to die
instantly in a car crash because he would
want her to “suffer.” (Id.) In two
separate instances, petitioner even
explicitly told Bird that he was going to
torture her. (Id.) He also warned her that
he was going to sit her up and make her
watch as he stabbed off her genitals.
(Id.) On July 19, 2008, foreshadowing
what he would eventually do to her,
petitioner twice told Bird that he was
going to “make her f****in’ eyes pop out
[of her] f****in’ head.” (Id.)

The Court concludes that there was
more than sufficient evidence presented
at trial that would allow a rational trier
of fact to conclude beyond a reasonable
doubt that petitioner tortured Bird. With
respect to the infliction of torture, the
jurors heard testimony from the medical
examiner regarding several substantially
painful injuries sustained by Bird prior
to her death. (Tr. at 735–38, 740–41,
747.) In particular, based on the
hemorrhaging around Bird’s wounds, the
medical examiner opined that Bird was
still alive when she was stabbed in the
eyes. (Tr. at 737–38.) In addition, the
medical examiner explained that when
Bird’s windpipe was transected, she was
forced to breathe out of a gaping hole in
her neck for a few minutes before she
died. (Tr. at 739–40, 749–50.) The
medical examiner also opined that
petitioner had inflicted this gruesome
tracheal wound by using a hacking and
twisting motion. (Tr. at 741, 746–47.)
With respect to the intentionality and
depravity of the torture, the jurors heard
evidence at trial of numerous

Given the painful nature of the
injuries inflicted, the manner in which
they were inflicted, and petitioner’s
recurrent threats to Bird that he was
going to torture her, a rational trier of
fact could have concluded beyond a
reasonable doubt that petitioner intended
to and did torture Bird. See, e.g.,
Williams v. Lempke, No. 11-CV-2504
(PGG)(JLC), 2012 WL 2086955, at *19
(S.D.N.Y. June 1, 2012) (report &
recommendation) (finding sufficient
evidence that petitioner had “‘relished’
or took pleasure in inflicting pain,” such
that torture element of first degree
murder was satisfied, from petitioner’s
“sadistic and prolonged dealings with
[the victim],” “the bizarre and needlessly
brutal techniques he selected for
assaulting the victim, which included
throwing boiling water on her, slashing
at her eyes with a kitchen knife,
throwing bleach in her face, forcefeeding her medication, and setting her
apartment on fire, not all at once, but in
a drawn-out manner over many hours,”
and “from his remarks to the victim that
13

she was ‘not good enough’ for a quick
death”). Accordingly, petitioner is not
entitled to habeas relief on this ground.

omitted))). In other words, “[t]he
introduction of improper evidence
against a defendant does not amount to a
violation of due process unless the
evidence ‘is so extremely unfair that its
admission
violates
fundamental
conceptions of justice.’” Dunnigan v.
Keane, 137 F.3d 117, 125 (2d Cir. 1998)
(quoting Dowling v. United States, 493
U.S. 342, 352 (1990) (internal quotation
marks omitted)).

3. Evidentiary Ruling
Petitioner claims that he was
deprived of his constitutional right to
present a defense at trial when the trial
court denied his application to introduce
tape recordings of phone calls that he
had made to Bird. The Appellate
Division found this issue unpreserved.
Valdez-Cruz, 951 N.Y.S.2d at 584. As
previously
stated,
the
Appellate
Division’s ruling procedurally bars this
claim from habeas review. However, in
an abundance of caution, the Court
considers the merits of this claim and,
for the reasons set forth below,
concludes this claim is without merit.

To constitute a denial of due process
under this standard, the erroneously
admitted evidence must have been
“‘sufficiently material to provide the
basis for conviction or to remove a
reasonable doubt that would have
existed on the record without it.’”
Dunnigan, 137 F.3d at 125 (quoting
Johnson v. Ross, 955 F .2d 178, 181 (2d
Cir. 1992) (internal quotation marks
omitted)); see also Collins v. Scully, 755
F.2d 16, 19 (2d Cir. 1985) (holding that
evidence must be “crucial, critical,
highly significant” (internal quotation
marks omitted)). Moreover, the court
“must review the erroneously admitted
evidence ‘in light of the entire record
before the jury.’” Dunnigan, 137 F.3d at
125 (quoting Johnson v. Ross, 955 F.2d
at 181 (internal quotation marks
omitted)). In making this due process
determination, the Court should engage
in a two-part analysis, examining (1)
whether the trial court’s evidentiary
ruling was erroneous under New York
State law, and (2) whether the error
amounted to the denial of the
constitutional right to a fundamentally
fair trial. Wade v. Mantello, 333 F.3d 51,
59 (2d Cir. 2003); Davis v. Strack, 270
F.3d 111, 123–24 (2d Cir. 2001).

a. Legal Standard
It is well-settled that “[e]rroneous
evidentiary rulings do not automatically
rise to the level of constitutional error
sufficient to warrant issuance of a writ of
habeas corpus.” Taylor v. Curry, 708
F.2d 886, 891 (2d Cir. 1983). See
generally Estelle v. McGuire, 502 U.S.
62, 67 (1991) (“[H]abeas corpus relief
does not lie for errors of state law.”
(citations omitted)). Instead, for a habeas
petitioner to prevail in connection with a
claim regarding an evidentiary error, the
petitioner must “show that the error
deprived her of a fundamentally fair
trial.” Taylor, 708 F.2d at 891; see also
Zarvela v. Artuz, 364 F.3d 415, 418 (2d
Cir. 2004) (“Even erroneous evidentiary
rulings warrant a writ of habeas corpus
only where the petitioner ‘can show that
the error deprived [him] of a
fundamentally fair trial.’” (quoting
Rosario v. Kuhlman, 839 F.2d 918, 925
(2d Cir. 1988) (internal quotation marks

14

b. Application

could conclude that he was prevented
from introducing certain phone call
recordings that would have had any
impact on the jury’s verdict. The record
contains overwhelming evidence of
petitioner’s guilt. The jury heard
uncontroverted evidence that petitioner
repeatedly threatened to torture and kill
Bird in the months preceding her death.
(Tr. at 920–21, 1651, 1655, 1657–58;
Exs. 63–66, 115.) Evidence was
introduced at trial that petitioner
deposited sperm in Bird on the morning
of her death. (Tr. at 1552, 1546–50.)
Furthermore, the jury heard evidence
that petitioner had been with Bird shortly
before her death and had warned her that
she would soon be dead. (Tr. at 1009–
12.) The jury also heard evidence that
petitioner had Bird’s cell phone and fled
to Manhattan immediately after her
death. (Tr. at 1497–98, 1502–06; Exs.
102–03, 110–12.) Lastly, evidence was
presented at trial that petitioner made the
following statement to his father and
sister after surrendering to the police:
“What have I done? I’m going to jail for
the rest of my life.” (Tr. at 1628.)
Therefore, even if the recorded phone
conversations plaintiff sought to admit
were admitted in evidence, the evidence
of petitioner’s guilt was overwhelming
in this case.

The Court has reviewed the trial
court’s evidentiary ruling to which
petitioner objects under this two-part test
and concludes that petitioner’s claim
lacks merit. As a threshold matter, there
is no basis to conclude that the trial
court’s denial of petitioner’s application
to introduce unspecified recorded phone
conversations was erroneous under state
law. Petitioner’s counsel did not identify
which of the 170 recordings would have
“complete[ed] the narrative” or “give[n]
the jury [a] whole and accurate picture.”
(Tr. at 1659–60.) Not only did he fail to
explain what he meant by “complete the
narrative” or “give the jury a whole and
accurate picture,” he did not even
specify how the content of any of the
recorded phone conversations could
“complete the narrative” or “give the
jury a whole and accurate picture.” (Id.)
Even assuming arguendo that the
unspecified
recorded
phone
conversations would have helped the
defense, petitioner has never articulated
a legal basis to warrant their admission.
Furthermore, even if the denial of
petitioner’s application to introduce
unspecified phone recordings was
erroneous under state law, there is no
basis for the Court to conclude that this
error substantially harmed petitioner and
thus deprived him of his constitutional
right to a fair trial. Petitioner has failed
to explain the content of the phone calls
he sought to admit, and, therefore, the
materiality of this evidence is
completely unknown. Accordingly, he
has not met his burden to show that the
trial court’s ruling precluding him from
introducing certain phone calls in
evidence
deprived
him
of
a
fundamentally fair trial. Petitioner has
presented no basis upon which this Court

In sum, the trial court’s ruling
denying petitioner’s application to
introduce unspecified phone recordings
was neither contrary to, nor an
unreasonable application of, clearly
established federal law. In addition to
being procedurally barred, this claim is
patently without merit because, when
viewing the record as a whole, there is
no basis to conclude that a permissible
use of this excluded evidence would
have created a reasonable doubt in the
jury’s mind that did not otherwise exist,
15

in light of his failure to articulate what
portions would have been helpful, how
they would have been admissible, or
how such portions would have
undermined,
in
any
way,
the
overwhelming evidence of his guilt.
Accordingly, petitioner is not entitled to
habeas relief on this ground.

Petitioner
proceeds
pro
se.
Respondent is represented by Kathleen
M. Rice, District Attorney, Nassau
County, by Tammy J. Smiley and
Jacqueline Rosenblum, Assistant District
Attorneys, Nassau County District
Attorney’s Office, 262 Old Country
Road, Mineola, NY 11501.

III. CONCLUSION
For the foregoing reasons, petitioner
has demonstrated no basis for relief
under 28 U.S.C. § 2254. Petitioner has
failed to point to any state court ruling
that was contrary to, or an unreasonable
application of, clearly established federal
law, or that 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. The Court has reviewed all
of petitioner’s claims and finds them to
be without merit. 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 the case.
SO ORDERED.

______________________
JOSEPH F. BIANCO
United States District Judge
Dated: August 1, 2014
Central Islip, NY
*

*

*

16