Flowers v. Perez

Filing 19

MEMORANDUM AND ORDER - The Petitioner's writ of habeas corpus (Docket Entry 1) is DENIED. The Court declines to issue a certificate of appealability because the Petitioner has not made a substantial showing that he was denied a constitutional r ight. See 28 U.S.C. § 2253(c)(2). The Court also certifies that any appeal of this Order would not be taken in good faith, and thus his in forma pauperis status is DENIED for the purposes of any appeal. The Clerk of the Court is respectfully directed to CLOSE this case and mail copies of this Order to the pro se litigant. So Ordered by Judge Joanna Seybert on 8/22/2017. C/M; C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
RANDOLPH N. FLOWERS,
Petitioner,

MEMORANDUM & ORDER
14-CV-2743(JS)

-againstADA PEREZ,
Respondent.
------------------------------------X
APPEARANCES:
For Petitioner:
Randolph N. Flowers, pro se
09-A-5132
Woodbourne Correctional Facility
99 Prison Road
P.O. Box 1000
Woodbourne, New York 12788
For Respondent:

Alyson Gill, Esq.
New York State Attorney General’s Office
300 Motor Parkway, Suite 230
Hauppauge, New York 11788
Marian M. Tang, Esq.
District Attorney’s Office, Suffolk County
Criminal Courts Building
200 Center Drive
Riverhead, New York 11901

SEYBERT, District Judge:
In 2008, Randolph Flowers, along with two accomplices,
staged a home invasion where he struck the victim with a weapon.
After Flowers was arrested, a Suffolk County jury convicted him
of one count of first-degree burglary in violation of New York
Penal Law § 140.30(4) and one count of second-degree assault in
violation of New York Penal Law § 120.05(6).

His appeals proved

unsuccessful, and so Flowers filed this pro se Petition for a

writ of habeas corpus.
issues:

(1) sufficiency

testimony
N.E.2d

See 28 U.S.C. § 2254.

violated
841

of

People

(1953),

the
v.

evidence;

Trowbridge,

because

of

He raises five

(2) whether
305

N.Y.

witness

trial

471,

113

bolstering;

(3) deficiencies in the grand jury proceeding; (4) whether his
sentence

was

excessive

assistance of counsel.

and

retaliatory;

and

(5)

ineffective

For the following reasons, his Petition

is DENIED in its entirety.
BACKGROUND1
The Court will start with a general overview, adding
greater

detail

in

the

ensuing

analysis.

As

is

the

usual

practice, the facts are viewed in the light most favorable to
the

verdict.

See

Garbutt

v.

Conway,

668

F.3d

79,

80

(2d

Cir. 2012).
I.

The Offense Conduct

All dates refer to the year 2009 unless otherwise stated.
Citations to the record are as follows: Tang Aff. (Docket
Entry 7); Flowers’s brief on direct appeal (Appellant’s Br.,
Docket Entry 8 at 1–34); a letter from the Legal Aid Society
dated June 27, 2012 (Legal Aid Ltr., Docket Entry 8 at 103–04);
Flowers’s Section 440.20 Motion (440.20 Mot., Docket Entry 8 at
109–27); Gaynor Flowers’s Affidavit (Flowers’s Aff., Docket
Entry 8 at 126–27); the procedural history of the 440.20 motion
(440.20 Decisions, Docket Entry 8 at 139, 178); 2/25 Tr. (Docket
Entry 8-1 at 1–5); 5/11 Tr. (Docket Entry 8-1 at 27–216);
5/13 Tr. (Docket Entry 8-3 at 1–97); 5/14 Tr. (Docket Entry 8-3
at 98–217); 5/15 Tr. (Docket Entry 8-4 at 1–129); 5/18 Tr.
(Docket Entry 8-4 at 130–210 & Docket Entry 8-5 at 1–81);
5/19 Tr. (Docket Entry 8-5 at 82–220); 5/20 Tr. (Docket Entry 86 at 1–97); 5/22 Tr. (Docket Entry 8-6 at 135–49); and the
sentencing transcript (S. Tr., Docket Entry 8-6 at 150–63);
Pet’r’s Reply Br., (Docket Entry 11).
1

2

In

the

early

hours

of

January

17,

2008,

Randolph

Flowers hatched a plan to rob his former landlord at a threebedroom apartment in Huntington Station.
50:8–13, 63:8–20.)

(5/15 Tr. 47:23–48:3,

Flowers brought a silver B.B. gun, which

resembled a pistol, and recruited two other men.
51:3–52:17.)
at

the

(5/15 Tr.

Donning black masks and gloves, the trio arrived

apartment

getaway driver.

with

the

help

of

Daniel

Dickinson,

their

(5/15 Tr. 53:5–25.)

Inside the apartment was Francisco Garcia, a Honduran
immigrant, who awoke from a knock at the door.
24,

66:14–25.)

Guessing

that

his

neighbor

(5/14 Tr. 63:21–
German

Velasquez

forgot his key, Garcia unlocked the door and opened it.

The

three men burst in, and Flowers smashed Garcia in the face with
his gun.

(5/14 Tr. 67:2–20, 69:8–15.)

The men threw Garcia on

his bed, kicked him, and stole at least one cell phone.2

(5/14

Tr. 73:4–15; 5/15 Tr. 55:9–15.)
Meanwhile, Velasquez, who was already home, heard the
commotion from Garcia’s room.

(5/15 Tr. 9:12–18.)

Velasquez

knocked on Garcia’s door and threatened to call the police.
(5/15 Tr. 10:14-16.)

At this point, the intruders fled, and

Velasquez went to the front door and watched the men run away

Garcia was missing one of two cell phones and $125 in cash, but
other testimony suggests that Flowers and his accomplices stole
only two cell phones. (5/14 Tr. 75:20-76:3; 5/15 Tr. 55:9–15.)
2

3

from

the

house.

(5/15

Tr.

11:3–20.)

Velasquez

identified

Flowers as one of the perpetrators because the two had prior
run-ins
earlier.

when

Flowers

lived

in

Garcia’s

room

a

few

months

(5/15 Tr. 4:17–5:25.)
Flowers and the accomplices returned to Dickinson’s

car, telling him that they “kicked somebody in the face, and
somebody got hit with a gun.”
then

drove

himself.

the

men

to

a

(5/15 Tr. 54:11–13.)

friend’s

(5/15 Tr. 54:2-8.)

house

and

went

home

Around the same time, Velasquez

called 911 and informed them of the break-in.
23.)

then

Dickinson

(5/15 Tr. 43:10–

Following a brief investigation, Flowers was arrested on
(5/18 Tr. 30:4-18.)

February 2, 2008.3
After

a

two-week

trial,

Flowers

was

convicted

of

Burglary in the first-degree and Assault in the second-degree.4
(5/22 Tr. 10:9–16.)

The State’s case included testimony from a

number of key witnesses: (1) the victim, Francisco Garcia, (5/14
Tr. 67:2–20,

69:8–25);

(2)

the

other

eyewitness,

German

Velasquez (5/15 Tr. 8:24–9:15); (3) the getaway driver, Daniel
Dickinson,

(5/15

Tr.

47:23–48:8,

49:14–50:13);

(4)

the

911

dispatcher, (5/13 Tr. 86:12–19, 89:14–25); (5) the crime scene

One accomplice pled guilty to one count of Attempted Gang
Assault in the second degree. The third accomplice is still at
large. (Tang Aff. at 2 n.2.)
3

Additional counts were dismissed before jury deliberations.
(5/20 Tr. 2:11–15.)
4

4

officer,

(5/14

Tr.

4:14–22,

8:11–18);

(6)

Officer

Channon

Rocchio, a first responder, (5/13 Tr. 33:6–14, 34:25–36:2); and
(7) Detective Daniel Murphy, the lead detective in the case,
(5/18 Tr. 2:22–23, 4:14–24).5
The defense presented Flowers’s fiancée, Maureen Mohr,
as an alibi witness.
testified

on

his

involvement.

He

(5/19 Tr. 16:12–13, 18:19–20:24.)
own

behalf,

explained

that

asserting

that

he

not

could

he
run

Flowers
had

no

away,

as

Velasquez described, because he injured his leg in a motorcycle
accident.

(5/19 Tr. 78:14–19, 79:6–17, 80:2–6, 84:22–85:14.)
After

his

conviction,

the

trial

court

sentenced

Flowers to concurrent terms: a fifteen-year term followed by
five years of supervised release for first-degree burglary and a
five-year term followed by three years of supervised release for
second-degree assault.
Flowers’s

lawyer

had

(S. Tr. 12:5–13.)
delivered

an

At his sentencing,

impassioned

plea,

which

persuaded the judge to grant a sentence lower than the maximum.
(S. Tr. 12:18–25.)
One

other

point

about

the

trial

is

relevant

here.

During jury selection, Flowers’s lawyer informed the court that
he had received a partial Rosario package, which included the
victim’s

grand

jury

testimony.

The

victim’s

testimony

As relevant to the appellate court’s decision, Detective Murphy
testified that Velasquez saw a confirmatory photo array and
immediately picked out Flowers. (5/18 Tr. 13:4–11.)
5

5

established the date of the attack as August 17, 2007, but the
indictment

established

the

(5/11 Tr. 28:12–24.)

correct

date:

January

17,

2008.

Using this “incorrect” date as support,

Flowers’s lawyer made an application to the court to dismiss the
indictment as “based upon insufficient facts inconsistent with
the Indictment itself.”

(5/11 Tr. 29:15–25.)

The prosecutor

contested the motion, arguing that the sole reference to the
incorrect

date

was

likely

a

typographical

error

because

the

correct date was provided by German Velasquez, other witnesses,
the felony complaint, and the bill of particulars.
33:10–13, 32:5–24.)
part,

because

prejudice.

it

The court ultimately denied the motion, in
did

not

find

(5/11 Tr. 34:6–13.)

inconsistencies

(5/11 Tr.

were

“fodder

that

Flowers

suffered

any

The court also noted that any
for

cross-examination.”

(5/11

Tr. 34:14–17.)
II.

Post-Trial Proceedings
Flowers, with aid of appellate counsel, appealed to

the Second Department, presenting four bases of error: (1) the
evidence was legally insufficient for a jury to convict him;
(2) the

trial

court

improperly

allowed

state

witnesses

to

bolster testimony; (3) he was denied his right to a grand jury;
and (4) the sentence was excessive.

(Appellant’s Br. at 7.)6

The page numbers correspond with CM/ECF’s numeration of Docket
Entry 8.
6

6

Unpersuaded,

the

Second

Department

affirmed

his

conviction.

People v. Flowers, 95 A.D.3d 1233, 1233–34, 945 N.Y.S.2d 701,
702–03 (2d Dep’t 2012).

First, the sufficiency-of-the-evidence

argument was “unpreserved for appellate review,” the court said,
and, at any rate, there was no shortage of evidence at trial to
support the convictions.
03.

Second,

the

Id. at 1233–34, 945 N.Y.S.2d at 702–

bolstering

argument

was

“unpreserved

for

appellate review, as defense counsel either failed to object to
the

challenged

grounds.”
held

testimony,

or

objected

on

general

Id. at 1234, 945 N.Y.S.2d at 703.

that

Detective

Murphy’s

hearsay

The court further

“testimony

regarding

the

complainant’s identification of the defendant from a photo array
was improper, the error was harmless” because the trial evidence
was

“overwhelming”

that,

but

for

defendant.”

the

Id.

and

“there

error,

was

the

no

jury

significant

would

have

probability

acquitted

the

Third, the court determined that the grand-

jury arguments were “not reviewable” because Flowers’s “guilt
was

proven

beyond

a

reasonable

doubt

at

trial”

alternatively, the arguments lacked merit.

Id.

court

imposed

determined

excessive.”

that

“[t]he

sentence

and

that

Finally, the
was

not

Id.

Flowers requested leave to appeal, which was denied by
the New York Court of Appeals.

People v. Flowers, 19 N.Y.3d

1025, 978 N.E.2d 110, 953 N.Y.S.2d 558 (2012).
7

Flowers then filed a pro se motion to set aside his
sentence

under

New

York

(440.20 Mot. at 109–10.)

Criminal

Procedure

Law

§

440.20.

In this 440.20 motion, he argued that

his sentence was excessive and in retaliation for his decision
to reject a plea deal and proceed to trial.
He

also

argued

sentencing phase.

that

his

lawyer

was

(Id. at 114–17.)

(Id. at 111–12.)

ineffective

during

the

Flowers attached a sworn

statement from his mother detailing a supposed plea deal that
the trial judge offered during jury deliberations.
The Suffolk County Supreme Court denied the motion.
(440.20 Decisions at 139.)

The court concluded that Flowers’s

ineffective-assistance-of-counsel claim was based on the trial
record and accordingly “not available for review under Article
440

of

the

Criminal

Procedure

Law.”

(Id.)

As

for

the

sentencing claims, the court determined that Flowers “had a full
and fair opportunity to litigate his sentence” before the Second
Department and thus rejected those claims.

(Id.)

Flowers then

sought leave to appeal to the Second Department, but his request
was denied.

(Id. at 178.)

This Petition followed.

8

DISCUSSION
I.

The Legal Standard
Congress enacted the Antiterrorism and Effective Death

Penalty

Act

(“AEDPA”),

Pub.

L.

No.

104–132,

110

Stat.

1214

(1996), to restrict “the power of federal courts to grant writs
of habeas corpus to state prisoners.”

Williams v. Taylor, 529

U.S. 362, 399, 120 S. Ct. 1495, 1516, 146 L. Ed. 2d 389 (2000).
While

not

a

rubber

stamp,

the

statute

deference to state court decisions.

gives

substantial

See Virginia v. LeBlanc,

137 S. Ct. 1726, 1729, 198 L. Ed. 2d 186 (2017).

The rationale

is straightforward: A high bar for relief “avoids unnecessarily
‘disturbing

the

State’s

significant

interest

in

repose

for

concluded litigation, denying society the right to punish some
admitted

offenders,

and

intruding

on

state

sovereignty

to

a

degree matched by few exercises of federal judicial authority.’”
Id. (quoting Harrington v. Richter, 562 U.S. 86, 103, 131 S. Ct.
770, 787, 178 L. Ed. 2d 624 (2011)) (brackets omitted).
To warrant relief, a state prisoner must show “that he
is

in

custody

in

violation

of

treaties of the United States.”

the

Constitution

or

28 U.S.C. § 2254(a).

laws

or

Assuming

that his claims are cognizable in federal court, the prisoner
must comply with three requirements; he must: (1) exhaust state
remedies, (2) follow procedural requirements, and (3) satisfy
AEDPA’s steep standard of review.
9

See 28 U.S.C. § 2254.

To

begin,

a

prisoner

must

have

exhausted

state

remedies by presenting his claims to the state court for review.
28 U.S.C. § 2254(b)(1)(A).
finality,
with

and

the

federalism

“‘opportunity

This

requirement

interests
to

by

pass

advances

providing

upon

and

state

correct

violations of its prisoners’ federal rights.’”

comity,
courts
alleged

See Jackson v.

Edwards, 404 F.3d 612, 619 (2d Cir. 2005) (quoting Picard v.
Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 512, 30 L. Ed. 2d 438
(1971)); Davila v. Davis, 137 S. Ct. 2058, 2070, 198 L. Ed. 2d
603 (2017).
The next step also provides due deference to state
functions.
the

A federal court will not review a habeas petition if

prisoner

failed

to

satisfy

state

court

procedural

requirements for presenting his claims, thereby “depriv[ing] the
state

courts

of

an

opportunity

to

address

those

claims.”

Coleman v. Thompson, 501 U.S. 722, 732, 111 S. Ct. 2546, 2555,
115 L. Ed. 2d 640 (1991).

This procedural bar applies even if

the state court addressed the merits in the alternative but
decided the claim on independent procedural grounds.
v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990).

Velasquez

To secure review of

defaulted claims, a state prisoner must show either (1) “cause
for the default and actual prejudice as a result” or (2) actual
innocence.

Coleman, 501 U.S. at 750, 111 S. Ct. at 2565.

10

Finally,

a

federal

court

may

not

grant

a

writ

of

habeas corpus unless the state court’s adjudication of the claim
either:
(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.SC. § 2254(d).

The Supreme Court has construed AEDPA “to

give independent meaning to ‘contrary [to]’ and ‘unreasonable.’”
Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000).
A
established

state

court’s

federal

law

decision
if

“the

is

“contrary

state

court

to”

clearly

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

indistinguishable facts.”
Ct. at 1523.
of

clearly

“identifies
Supreme]

has

on

a

set

Ct.

A decision involves “an unreasonable application”
established
the

Court’s

at

materially

Williams, 529 U.S. at 412–13, 120 S.

correct

federal
governing

decisions

but

law
legal

when

a

1523.

This

standard

unreasonably

does

state

principle

principle to the facts of the prisoner’s case.”
S.

of

not

court

from

applies

[the
that

Id. at 413, 120

require

that

all

reasonable jurists agree that the state court was wrong; rather,
11

the

standard

“falls

somewhere

between

‘merely

unreasonable to all reasonable jurists.’”

erroneous

and

Jones, 229 F.3d at

119 (quoting Francis S. v. Stone, 221 F.3d 100, 109 (2d Cir.
2000)).
AEDPA
evaluating

“‘imposes

state-court

a

highly

rulings

and

deferential
demands

that

decisions be given the benefit of the doubt.’”

standard

for

state-court

Jones v. Murphy,

694 F.3d 225, 234 (2d Cir. 2012) (quoting Hardy v. Cross, 565
U.S. 65, 66, 132 S. Ct. 490, 491, 181 L. Ed. 2d 468 (2011)).
This standard is “‘difficult to meet,’” and deliberately so.
White v. Woodall, 134 S. Ct. 1697, 1702, 188 L. Ed. 2d 698
(2014) (quoting Metrish v. Lancaster, 569 U.S. 351, ---, 133 S.
Ct. 1781, 1786, 185 L. Ed. 2d 988 (2013)), reh’g denied, 134 S.
Ct. 2835 (2014).

Section 2254(d), as amended by AEDPA, “stops

short of imposing a complete bar on federal-court relitigation
of claims already rejected in state proceedings.”
562 U.S. at 102, 131 S. Ct. at 786.
that

the

“state

justification
comprehended

court’s

that
in

there

existing

fairminded disagreement.”
II.

ruling
was
law

Thus, a petition must show

.

an

Harrington,

.

error

beyond

.

was
well
any

so

lacking

in

understood

and

possibility

for

Id. at 103, 131 S. Ct. at 786–87.

The Petition
Flowers renews the arguments made in his direct appeal

and his 440.20 motion: (1) the evidence was legally insufficient
12

for a jury to convict him, (Pet. at 3); (2) the trial allowed
witness bolstering in violation of People v. Trowbridge, 305
N.Y. 471, 113 N.E.2d 841 (1953), (id. at 7); (3) Flowers was
deprived of his right to a grand jury because of deficiencies
with the indictment, (id. at 6, 9); (4) the sentence imposed was
excessive and retaliatory, (id. at 3, 10); and (5) his trial
counsel was constitutionally ineffective, (id. at 4).
Pro se submissions, like those from Flowers, require
flexible construction, and so the Court must interpret them “‘to
raise the strongest arguments that they suggest.’”

Kirkland v.

Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (quoting
Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).

But this

leeway does not excuse Flowers “‘from compl[ying] with relevant
rules of procedural and substantive law,’” Traguth v. Zuck, 710
F.2d 90, 95 (2d Cir. 1983) (quoting Birl v. Estelle, 660 F.2d
592, 593 (5th Cir. Nov. 1981)), as he “bears the burden of
proving

by

a

preponderance

of

the

evidence

that

his

constitutional rights have been violated,” Jones v. Vacco, 126
F.3d 408, 415 (2d Cir. 1997).
A.

Sufficiency of the Evidence
First,

Flowers

challenges

evidence to support his convictions.7

the

sufficiency

(Pet. at 3.)

of

the

His main

If Flowers also challenges the weight of the evidence, that
claim is not cognizable. See Correa v. Duncan, 172 F. Supp. 2d
7

13

argument is that the victim established the incorrect date of
the crime during his grand jury testimony.
103–04.)

(Legal Aid Ltr. at

Any corrections, Flowers argues, “did not establish

the facts of the crime charged, but simply proved [his] presence
at the incident location at that later date.”

(Id. at 103.)

The Second Department, which issued the “last reasoned state
judgment,” Jones v. Stinson, 229 F.3d 112, 118 (2d Cir. 2000),
held that this claim was “unpreserved for appellate review, as
defense counsel made only a general motion for a trial order of
dismissal based upon the People’s alleged failure to make out a
prima facie case,” Flowers, 95 A.D.3d at 1233–34, 945 N.Y.S.2d
at 702–03.

Thus, Flowers’s claim is procedurally defaulted.

Of

course, Flowers can secure review of this default claim if he
can show either (1) cause and ensuing prejudice or (2) actual
innocence.

Coleman, 501 U.S. at 750, 111 S. Ct. at 2565.

But

nothing in the record supports either exception.
Even

putting

claim is meritless.8

aside

this

procedural

roadblock,

the

A defendant challenging the sufficiency of

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.”); Douglas v.
Portuondo, 232 F. Supp. 2d 106, 116 (S.D.N.Y. 2002) (recognizing
that a federal court can address legal sufficiency claims but
not “weight of the evidence” claims).
The Second Department’s alternative ruling on the merits does
not change this outcome. See Flowers, 95 A.D.3d at 1233, 945
8

14

the evidence “‘bears a heavy burden, as the standard of review
is exceedingly deferential.’”

United States v. Brock, 789 F.3d

60, 63 (2d Cir. 2015) (quoting United States v. Coplan, 703 F.3d
46, 62 (2d Cir. 2012)).
the

light

most

The Court “‘must view the evidence in

favorable

to

the

Government,

crediting

every

inference that could have been drawn in the Government’s favor,
and deferring to the jury’s assessment of witness credibility.’”
Id. (quoting U.S. v. Chavez, 549 F.3d 119, 124 (2d Cir. 2008).
The verdict will stand if “‘any rational trier of fact could
have

found

the

essential

reasonable doubt.’”
To

elements

of

the

crime

beyond

a

Id.

evaluate

the

sufficiency

of

the

evidence,

“[a]

federal court must look to state law to determine the elements
of the crime.”
Cir. 1999).

Quartararo v. Hanslmaier, 186 F.3d 91, 97 (2d

Pertinently, a person is guilty of first-degree

burglary when:
[H]e knowingly enters or remains unlawfully
in a dwelling with intent to commit a crime
therein, and when, in effecting entry or
while in the dwelling or in immediate flight
N.Y.S.2d at 702 (“In any event, viewing the evidence in the
light most favorable to the prosecution, we find it was legally
sufficient to establish the defendant’s guilt beyond a
reasonable doubt.”) (internal citation omitted). Indeed,
“federal habeas review is foreclosed where the state court has
also expressly relied on the petitioner’s procedural default,”
Murden v. Artuz, 497 F.3d 178, 191 (2d Cir. 2007), and the
Second Circuit has “decline[d] to read a contingent observation
as an ‘adjudication on the merits.’” Bell v. Miller, 500 F.3d
149, 155 (2d Cir. 2007).
15

therefrom, he or another participant in the
crime:
*

*

*

4. Displays what appears to be a
revolver, rifle, shotgun, machine
other firearm. . . .
NEW YORK PENAL LAW § 140.30(4).

pistol,
gun or

A person is guilty of second-

degree assault if:
In the course of and in furtherance of the
commission or attempted commission of a
felony, other than a felony defined in
article one hundred thirty which requires
corroboration
for
conviction,
or
of
immediate flight therefrom, he, or another
participant if there be any, causes physical
injury to a person other than one of the
participants[.]
Id. § 120.05(6).
Addressing these crimes in tandem, the Court concludes
that

Flowers

has

not

carried

his

heavy

burden.

The

victim

testified about the facts of the home invasion and described how
he was struck in the head with a weapon.
German

Velasquez,

a

neighbor,

overheard

(5/14 Tr. 67:15–20.)
the

commotion

and

stated, with complete certainty, that he saw Flowers and the
accomplices fleeing the crime scene.
20, 15:8–11.)
Flowers

at

(5/15 Tr. 9:17–18, 11:3–

Daniel Dickinson, the getaway driver, also placed

the

crime

Garcia’s property.

scene,

testifying

that

the

(5/15 Tr. 50:11–13, 55:9–14.)

men

stole

On top of

that, the State’s case included testimony from Detective Murphy

16

and Officer Rocchio, both of whom provided details about their
investigation.

(5/13 Tr. 37:22–39:12, 5/18 Tr. 13:4–11.)

To be sure, Flowers challenged this evidence, stating
that he was at home with his fiancée on the night in question.
But at the same time, the State offered a bevy of witnesses,
which, at various points, contradicted this claim.
Court

concludes

that

the

evidence

was

legally

And so the

sufficient

to

convict Flowers.
B.

Bolstering Testimony
Flowers

testimony

violated

also

contends

People

v.

that,

(Pet.

Trowbridge,

at

305

7),

N.Y.

trial

471,

113

N.E.2d 841 (1953), which prohibits witnesses from repeating a
defendant identification made by another person.

Id. at 477,

113

trial

N.E.2d

improperly

at

843.

allowed

As

Flowers

Detective

tells

Murphy

and

it,

the

Officer

reiterate German Velasquez’s eyewitness account.

Rocchio

OFFICER ROCCHIO: Both individuals, Francisco
Garcia through broken-up English, and German
[Velasquez]
translating
basically
for
Francisco
Garcia,
described
it
as
individuals breaking in, they had a handgun,
and they beat him up and fled the scene. So
that categorized it differently.
(5/13 Tr.
39:25–40:6.)
*

*

DETECTIVE
MURPHY:
Mr.
Velasquez
had
indicated that he knew who was involved in
17

to

(Pet. at 7.)

Here are snippets of their respective testimony:

*

court

this crime.
That he’d seen him there, he
was a prior tenant, Mr. Flowers.
I then
provided what we consider a photo array,
which is six photos on a piece of paper, and
asked him to confirm--not to confirm. Asked
him on a sheet of paper if he recognized
anybody. He then immediately picked out Mr.
Flowers. (5/18 Tr. 13:4–11.)
Bolstering arguments, however, do “not rise to the level of a
constitutional claim.”

Slavin v. Artus, No. 05-CV-0870, 2010 WL

185108, at *7 (E.D.N.Y. Jan. 13, 2010) (collecting cases).
concept

of

‘bolstering’

really

has

no

place

as

an

“The

issue

in

criminal jurisprudence based on the United States Constitution.
It is at most a New York State rule or policy, derived from
People v. Trowbridge . . . .”
582 (S.D.N.Y. 1985).

Snow v. Reid, 619 F. Supp. 579,

In sum, this claim fails to present a

cognizable issue for federal courts.
C.

Grand Jury Deficiencies
Shifting to the grand-jury argument, Flowers asserts

that the indictment contained a single reference to an incorrect
date, thereby depriving him of his right to a grand jury.
at 6, 9.)

This, too, presents no federal issue for this Court

to consider.
Cir.

2002)

(Pet.

See Davis v. Mantello, 42 F. App’x 488, 490–91 (2d
(“Claims

of

deficiencies

in

state

grand

jury

proceedings are not cognizable in a habeas corpus proceeding in
federal court.”).

In New York, a grand jury indictment arises

from the “State Constitution and other state laws . . . and

18

federal habeas relief may not be granted for violations of state
law.”

Robinson v. LaClair, No. 09-CV-3501, 2011 WL 115490, at

*8 (E.D.N.Y. Jan. 13, 2011).

And “even if a defective state

indictment constituted proper grounds for federal habeas review,
any injury that petitioner claims from the defective indictment
was cured by the jury’s verdict of guilt beyond a reasonable
doubt at his trial.”
D.

Id.

Thus, this claim also fails.

Sentencing Errors
Next, Flowers argues that his sentence was excessive

and in retaliation for rejecting a plea deal.

(Pet. at 3, 10.)

To begin, there are no grounds for habeas corpus relief when, as
here,

the

sentence

fits

within

statutory

Keane, 969 F.2d 1381, 1383 (2d Cir. 1992).

limits.

White

v.

Flowers’s fifteen-

year sentence, (S. Tr. 12:5–8), is less than the twenty-year
maximum

permissible

for

class

B

felonies

like

first-degree

burglary, New York Penal Law §§ 70.02(3)(a), 140.30(4).

For a

class D felony like second-degree assault, the maximum is seven
years, id. §§ 70.02(3)(a), 120.05(6), and Flowers’s sentence was
five

years,

(S.

Tr.

12:7–9).

Thus,

neither

sentence

is

excessive because they both fall within the permissible ranges.9

Flowers requests judicial notice of the fact that, (Pet’r’s
Reply Br. at 9), one of his accomplices pled guilty and received
three years of probation. See FED. R. EVID. 201(b) (allowing
courts to take judicial notice of facts that “can be accurately
and readily determined from sources whose accuracy cannot
9

19

That

leaves

the

retaliation

argument.

Generously

construing his arguments, Flowers relies on statements made by
the trial judge throughout the case.

For example, the judge

said this before jury selection:
THE COURT: As far as I can see--and I know
your attorney has spoken to you about it-this is a case that I don’t think you’re
going to win on trial.
The chances of
winning are not good.
Largely because
there’s DNA evidence that’s involved that
will hurt your chances very, very greatly.
. . . [T]he absolute minimum if you lost at
trial is five years and it could be as much
as twenty five years. . . . They’re willing
to take Count 2 of the indictment in
satisfaction of the entire indictment with a
bargained-for four years sentence. . . . As
of today, I don’t know whether they’ll offer
you this plea again.
(2/25 Tr. 2:10–4:10.)

The trial judge reiterated his dim view

of Flowers’s chances right before the jury began deliberations.
(5/21 Tr. 36:9–16.)

Yet there is no indication in the record

that the trial judge punished Flowers with a heavier sentence.
True,

Flowers’s

plea

offer

(four

years)

was

less

than

his

ultimate sentence (fifteen years), (2/25 Tr. 3:17–22; S. Tr.
12:5-8), but that is the point of the bargaining process: accept
a deal or take your chances at trial.

With this in mind, courts

will not presume a retaliatory motive based on “the mere fact
that the sentence imposed following trial is greater than the

reasonably be questioned”). But this request is irrelevant
because Flowers was sentenced within permissible ranges.
20

offer made during plea negotiations.”

Walker v. Walker, 259 F.

Supp. 2d 221, 226 (E.D.N.Y. 2003); Echevarria-Perez v. Burge,
779 F. Supp. 2d 326, 338 (W.D.N.Y 2011).
White v. Lamas, 905 F. Supp. 2d 624 (E.D. Pa. 2012),
which Flowers relies on, offers no assistance.

There, the trial

judge imposed the maximum sentence in retaliation, the district
court concluded, because the petitioner had rejected a lenient
plea deal.

Id. at 642.

In reaching this conclusion, the court

evaluated the judge’s comments during the sentencing hearing:
“I would have expected a man of your stature not to make
a family go through that incredibly painful trial for a
case that was not winnable.”
The “Commonwealth made you what I deemed to be a cake
offer. It was a cake offer. . . . You threw all of that
back and you rolled the dice.”
You “had that opportunity to get less [than the minimum
sentence]. It’s not appropriate to give you a three to
six minimum. It’s really not.”
Id. (internal quotation marks omitted) (alteration in original).
“These comments made in the context of sentencing,” the court
said,

show

that

the

judge

“gave

undue

consideration

to

petitioner’s decision to reject the plea offer and proceed to
trial.”

Id. at 642–43.

And for present purposes, the court

made an important observation: “In cases where petitioners have
unsuccessfully presented a claim of judicial vindictiveness, the
facts show that the judicial comments at issue were not made in
the sentencing context.”

Id. at 643.
21

That is the case here.

Although the judge challenged Flowers’s decision to reject his
plea offer, those comments occurred outside of the sentencing
colloquy.

Indeed,

during

the

sentencing

phase,

the

judge

focused on the fact that “the trial brought out several things
that are disturbing.”

(S. Tr. 11:9–10.)

For example, the trial

judge criticized Flowers for presenting his fiancée as an alibi
witness in the face of overwhelming evidence.
24.)

(S. Tr. 11:19–

The trial judge also worried that the victim was targeted

because he was an immigrant and perhaps less likely to report
the crime.

(S. Tr. 11:11–14.)

In other words, the record lacks

evidence that the trial judge made his decision based on the
plea

deal.

Cf.

Carter

v.

Mooney,

No.

15-CV-4896,

2016

WL

8731450, at *17–18 (E.D. Pa. June 6, 2016) (distinguishing White
v. Lamas because “[p]etitioner’s disingenuous letter motivated
the judge’s sentencing, not petitioner’s earlier rejection of
the plea offer”), adopted by, 2017 WL 1331710 (E.D. Pa. Jan. 20,
2017).

Thus, the Court concludes that Flowers has failed to

provide evidence of retaliation.
One other issue requires attention.

In support of his

440.20 motion, Flowers attached a sworn affidavit in which his
mother states that the trial judge made an off-the-record plea
offer during jury deliberations.

(Flowers Aff. at 126.)

But

she concedes that she was neither present during this supposed
offer nor did she understand what was going on at the time.
22

(Id. at 126–27.)
this incident.

What is more, there is no other mention of
Even if it did occur, the trial judge made no

indication that Flowers’s rejection of the deal motivated his
sentencing decision, as evidenced by the sentencing colloquy.
Thus, the Court concludes that Flowers’ sentence was neither
excessive nor retaliatory.
E.

Ineffective Assistance of Counsel
Finally, Flowers argues that he was denied his Sixth

Amendment right to counsel because his trial counsel failed to
make

sentencing

objections.

(Pet.

at 4.)

As

a

general

principle, there is “a strong presumption that counsel’s conduct
falls

within

assistance.”

the

wide

range

of

reasonable

professional

Strickland v. Washington, 466 U.S. 668, 689, 104

S. Ct. 2052, 2065, 80 L. Ed. 2d 674 (1984).

After all, “there

are countless ways to provide effective assistance in any given
case,” and “[e]ven the best criminal defense attorneys would not
defend a particular client in the same way.”

Id.

To overcome

this presumption, Flowers must establish two elements: deficient
performance and prejudice.
67.

Id. at 688–92, 104 S. Ct. at 2064–

In reviewing the totality of the evidence, the Court must

“use a ‘doubly deferential’ standard of review that gives both
the state court and the defense attorney the benefit of the
doubt.”

Burt v. Titlow, 134 S. Ct. 10, 13, 187 L. Ed. 2d 348

(2013) (quoting Cullen v. Pinholster, 563 U.S. 170, 190, 131 S.
23

Ct. 1388, 1403, 179 L. Ed. 2d 557 (2011)).

Bearing in mind this

deferential standard, it is no surprise that “the great majority
of

habeas

petitions

counsel” fail.

that

allege

constitutionally

ineffective

Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir.

2001).
To establish deficient performance, Flowers must prove
that “counsel’s representation fell below an objective standard
of reasonableness.”
at 2064.

Strickland, 466 U.S. at 688, 104 S. Ct.

But even if Flowers can show deficient performance, he

must also establish prejudice--that is, “there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”
694, 104 S. Ct. at 2068.

Id., at

A reasonable probability “lies between

prejudice that ‘had some conceivable effect’ and prejudice that
‘more

likely

than

not

altered

the

outcome

in

the

case.’”

Lindstadt, 239 F.3d at 204 (quoting Strickland, 466 U.S. at 693,
104 S. Ct. at 2067–68)).

“In the context of sentencing, the

petitioner

but

there

is

must
a

show

that

reasonable

for

probability

would have been different.”

counsel’s
that

the

ineffectiveness,
sentence

imposed

Garafola v. United States, 909 F.

Supp. 2d 313, 331 (S.D.N.Y. 2012).
The Court concludes that Flowers’s lawyer “advocated
leniency in sentencing,” and “while counsel could attempt to
advocate in behalf of a client for a more lenient sentence, he
24

could not object as a matter of law to these legally imposed
sentences.”
(W.D.N.Y.

See Willson v. Berbary, 421 F. Supp. 2d 589, 603
2006).

Counsel,

for

instance,

highlighted

client’s character and history of nonviolent crimes.
4:16–23,

5:6–12.)

Counsel

also

suggested

that

his

(S. Tr.

the

reason

Flowers rejected the plea offer was his fear of incarceration.
(S. Tr. 5:6–12, 6:7–11.)

Counsel further explained his client’s

remorse and the low chance of recidivism.
8:14–20.)
judge

to

(S. Tr. 7:14–23,

Most importantly, counsel’s advocacy convinced the
lower

Flowers’s

sentence.

(S.

Tr.

12:18–22

(“THE

COURT: So your attorney did a good job for you with persuading
me to sentence you as I have. . . . [B]ecause to be truthful
with you, up to this morning I was contemplating the maximum
sentence.”).)

For

these

reasons,

Flowers’

ineffective-

assistance-of-counsel claim fails.
CONCLUSION
The

Petitioner’s

Entry 1) is DENIED.
of

appealability

writ

of

habeas

corpus

(Docket

The Court declines to issue a certificate
because

the

Petitioner

has

not

made

a

substantial showing that he was denied a constitutional right.
See 28 U.S.C. § 2253(c)(2).

The Court also certifies that any

appeal of this Order would not be taken in good faith, and thus
his in forma pauperis status is DENIED for the purposes of any
appeal.

Coppedge v. United States, 369 U.S. 438, 444–45, 82 S.
25

Ct. 917, 921, 8 L. Ed. 2d 21 (1962).

The Clerk of the Court is

respectfully directed to CLOSE this case and mail copies of this
Order to the pro se litigant.

SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

August
22 , 2017
Central Islip, New York

26