Murray v. People Of The State Of New York
MEMORANDUM AND OPINIONFor the reasons set forth herein, the petition for a writ of habeas corpus is denied in its entirety. The Clerk of the Court shall close this case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 8/28/2017. (Hammond, Daniel)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
No CV-15-3555 (JFB)
SIR JULES MURRAY,
THE PEOPLE OF THE STATE OF NEW YORK,
MEMORANDUM AND ORDER
August 28, 2017
Petitioner was sentenced to three concurrent determinate sentences of seven years’ incarceration followed by five years of post-release supervision for three of his assault convictions. Petitioner was sentenced to concurrent determinate sentences of six years’ incarceration followed by five years of post-release supervision for the other three assault
convictions and one year of incarceration for
his obstructing governmental administration
conviction. The assault sentences were imposed to run consecutive to each other. For
petitioner’s promoting prison contraband and
conspiracy convictions, he was sentenced to
concurrent definite sentences of one year of
incarceration and 90 days’ incarceration, respectively.
JOSEPH F. BIANCO, District Judge:
Sir Jules Murray (“petitioner” or “Murray”) petitions this Court for a writ of habeas
corpus, pursuant to 28 U.S.C. § 2254, challenging his convictions in New York State
Court. On April 29, 2010, following a jury
trial in the Supreme Court of New York, Nassau County (the “trial court”), petitioner was
convicted of six counts of assault in the second degree (N.Y. Penal Law (“NYPL”)
§ 120.05(3)), one count of promoting prison
contraband in the second degree (NYPL
§ 205.20), one count of conspiracy in the
sixth degree (NYPL § 105.00), and one count
of obstructing governmental administration
in the second degree (NYPL § 195.05). These
charges arose from three incidents in which
petitioner either assaulted, or assisted another
inmate in assaulting, corrections officers.
Petitioner challenges his convictions on
the following grounds: (1) the trial court erroneously admitted evidence of his gang affiliation and failed to issue adequate limiting
smoking in his cell. (T. 1 451-54.) Lieutenant
Conway then authorized a “shake-down”—a
search of an area for contraband—of the
fourth floor south block. (Id. at 86, 455.) Possession of anything that could be smoked is
considered contraband. (Id. at 92-93.)
instructions regarding gang affiliation;
(2) the People’s rebuttal witness improperly
bolstered another witness’s
(3) the evidence was legally insufficient to
prove his guilt beyond a reasonable doubt;
and (4) petitioner’s fair trial right was violated when the trial court imposed a harsher
jail sentence after his conviction than his proposed plea offer, and his sentence is unduly
harsh and excessive.
A routine shake-down procedure began
with the sergeant entering the tier followed
by the participating officers in single file,
with each officer standing in front of a cell.
(Id. at 155-58.) The cells were approximately
six by eight feet and contained a sink, toilet
bowl, and metal bed with a mattress. (Id. at
160-61, 194.) Approximately a foot and a
half of space existed between the bed and the
toilet. (Id. at 160-61, 194.) Inmates were instructed to place their hands on the bars facing the two officers in front of their cell. (Id.
at 158.) Once the sergeant gave the order to
open the cell doors, inmates would remove
their hands from the bars and step back. (Id.
at 159.) One of the officers would then enter
the cell and instruct the inmate to walk to the
back of the cell. (Id. at 159-160.) The second
officer would block the cell’s entrance/exit
area. (Id. at 160.) Inmates on this block required a strip search, after which they were
told to dress and step outside their cell so that
officers could enter and search the cell. (Id.
For the reasons discussed below, petitioner’s request for a writ of habeas corpus is
denied in its entirety.
A. Factual Background
The following facts are adduced from the
petition, respondent’s answer and memorandum of law, and the underlying record.
1. Trial Court
At trial, the People produced evidence of
three altercations between petitioner and corrections officers, one occurring on January
23, 2009, one on March 2, 2009, and the last
on April 28, 2009. On each of those dates,
the People’s evidence indicated that petitioner either assaulted, or assisted in assaulting, corrections officers.
On January 23, approximately 16 officers
reported to the fourth floor lobby to participate in the shake-down. (Id. at 98.) Corrections Officer Thomas Cotter (“Officer Cotter”) was one of these participating members.
(Id. at 141.) Utilizing the shake-down procedure, Officer Cotter stood outside petitioner’s
cell with Officer Frank Mele (“Officer
Mele”) as his partner. (Id. at 172, 324.) The
officers had not had any prior interactions
with petitioner and were unaware he was
a. January 23, 2009 Incident
On January 23, 2009, Sergeant Theodore
Davis (“Sergeant Davis”), who oversaw inmate and officer movement on the fourth
floor of the Riverhead Correctional facility,
was notified by another officer that one of the
fourth floor housing units smelled of smoke
and that the officer thought he saw an inmate
“T.” refers to the trial transcript. (ECF Nos. 7-19 to
fell over. (Id. at 224-25, 341, 460, 477.) Sergeant Davis suffered an injury, but the other
officers managed to subdue petitioner in the
ensuing struggle. (Id. at 460-61, 478, 48081.) At that point, petitioner stopped struggling, and, once again, the officers escorted
him to the elevator cage. (Id. at 226-27, 343,
462.) Two other officers then escorted petitioner to a detention cell and to the hospital.
(Id. at 229, 344.)
housed in that particular cell. (Id. at 171-72,
As the shake-down procedure commenced, Officer Cotter was standing in front
of the cell and Officer Mele was to his left.
(Id. at 173, 362.) Petitioner complied with
Officer Mele’s instruction to put his hands on
the bars, and when the sergeant gave the command to open the gates, petitioner complied
with Officer Mele’s instruction to take his
hands off the bars. (Id. at 173-74, 324-325.)
However, once the gate was approximately
three-quarters of the way open, petitioner
said “F*** you” and pulled Officer Cotter
into the cell. (Id. at 174-75, 325-26.) Officer
Cotter grabbed petitioner in an unsuccessful
attempt to break free, and, instead, was tossed
onto the bed by petitioner who stood over
Cotter, punching him in the chest. (Id. at 17576, 327-28.) Although Cotter fought back,
petitioner seemed to remain unaffected. (Id.
at 179, 181-82.) Officer Mele immediately
entered the cell to assist but petitioner threw
multiple punches and kicks at him, striking
him in the knee, thigh, rib, and chest area. (Id.
at 326, 328-29.) The struggle resulted in all
participants landing on the floor where the officers tried to restrain and handcuff petitioner, but he continuously resisted despite
being instructed to stop resisting. (Id. at 334,
b. March 2, 2009 Incident
On March 2, 2009, Corrections Officer
Shawn Springstein (“Officer Springstein”)
was on duty on the fourth floor southwest tier
at the Riverhead Corrections Facility. (Id. at
524-25.) Officer Springstein’s desk had a
full view down the tier and was situated in
front of the entrance to the sally port and to
the right of a lock box, which controlled the
cell doors. (Id. at 541-43.)
Inmates on that particular tier get thirty
minutes of recreational time in the day area
where they can take a shower, make a phone
call, or walk down to the end of the tier to
borrow reading materials—all at the discretion of the officer on duty. (Id. at 526-27,
545.) Only one inmate would be allowed out
during their recreational time and inmates
cannot linger outside someone’s cell. (Id. at
527.) Inmates were permitted to bring items
they would be using during their recreational
time, such as a towel, shampoo, and shower
sandals. (Id. at 546-47.)
Eventually, both officers handcuffed petitioner. (Id. at 183-88, 337.) Petitioner
stopped resisting after he was handcuffed and
was escorted out of his cell into the lobby.
(Id. at 183-86, 210-12, 216, 337, 341.) Once
in the lobby, petitioner tried to knock the officers off by violently thrashing from side to
side and lifting his legs up and down. (Id. at
183-86, 210-12, 216, 220-21, 223, 337, 341,
459, 476.) Sergeant Davis intervened to help
control petitioner, but petitioner lifted his feet
off the ground and everyone lost balance and
On March 2, inmate Edward Lerner
(“Lerner”) was released for his recreational
time during which Officer Springstein observed that Lerner did not bring anything
with him from his cell. (Id. at 548-49.) At the
end of his recreational time, Lerner refused
Officer Springstein’s request to return to his
cell and, instead, stood in front of petitioner’s
opened the gate with his hands and peered
around the corner to look at the female inmates. (Id. at 870-72, 896.) Officer Madden
ordered petitioner to step back and shut the
gate three times. (Id. at 873-74.) Each time,
petitioner refused to comply, and, after the
third command, he moved towards Officer
Madden with his hands up in a boxing stance.
(Id. at 874-85, 954.) In response, Officer
Madden punched petitioner in the face and
then grabbed his legs to trip him so he could
handcuff him on the ground. (Id. at 878-79,
954.) Lerner disrupted the take-down by
striking Officer Madden from behind, causing the officer to torque his knee. (Id. at 880,
955.) Petitioner stood back up. (Id. at 88182.)
cell. (Id. at 552-53.) Officer Springstein observed petitioner and Lerner communicating
with each other, which was prohibited, but he
could not make out what they were saying.
(Id. at 545-46, 552-53.) Officer Springstein
then reiterated his command for him to go
back to his cell, but Lerner refused and said,
“Go get the turtles”—referring to the Sheriff’s Emergency Response Team (“SERT”).
(Id. at 554-55.) At that point, petitioner
handed a cup of water and a bottle of lotion
to Lerner, who poured the water and the contents from the bottle onto the floor between
himself and the officer. (Id. at 556-58.) Petitioner then handed Lerner a sock with a block
of soap inside, a prohibited weapon colloquially referred to as a “slung.” (Id. at 558, 582,
Additional officers then came to assist
Officer Madden. (Id. at 882-85, 986.) Petitioner threw punches and kicks at them, but
the officers successfully brought him to the
ground (Id. at 883-86, 957-58, 1033-37,
1043, 1068, 1081.) Once petitioner was on
the ground, Officer Jose Berrios instructed
him to “give [him his] hand” multiple times,
but petitioner, who was lying on his stomach,
refused to be handcuffed by tucking his arms
under his chest and clenching his fists. (Id. at
887, 962-63, 986.) With Officer Mele’s assistance, petitioner was finally handcuffed.
(Id. at 886, 963, 990, 986, 1039, 1070-71.)
Upon receiving the slung, Lerner hopped
around swinging it in an “X” motion. (Id. at
559.) Petitioner then said to Lerner, “Do this
b**** in front of my cell.” (Id. at 560, 584.)
Lerner then turned to Officer Springstein,
who was five to seven feet away from Lerner,
and said, “Where you guys at? Bring those
mother f****** up”—again referring to the
SERT. (Id. at 621.) Lerner also told Sergeant
Michael Ervolino (“Sergeant Ervolino”),
who had come to the scene, that he wanted to
fight. (Id. at 666.) After Lerner refused several orders to lock in, the SERT team entered
and successfully subdued and removed Lerner from the day area. (Id. at 706-16.)
d. Evidence of Petitioner’s Gang
Affiliation at Trial
c. April 28, 2009 Incident
During the jury trial, the court admitted
evidence of petitioner’s possible gang affiliation as it relates to the issue of establishing
motive. (See id. at 1743-45.) Petitioner repeatedly denied that he was a gang member.
(See, e.g., 1221, 1315, 1323.) During crossexamination, he provided non-gang related
explanations for his MySpace pictures—
which depicted him making a symbol with
his hands—and his a letter he’d sent—which
On April 28, 2009, Officer John Madden
(“Officer Madden”) instructed a group of ten
inmates, who had been walking in single file
down one of the corridors, to wait behind the
corridor gate until they received clearance to
pass. (Id. at 867-70.) Petitioner was first in
line, followed by Lerner. (Id. at 922-23.) After failing to comply with Officer Madden’s
commands not to touch the gates, petitioner
you find as a jury that Mr.
Murray was or was not a gang
member, is not dispositive of
his guilt or innocence.
included gang-related phrases. (Id. at 1319,
In response to petitioner’s testimony, the
People called Investigator Gregory H. Monz
(“Investigator Monz”), an expert in the fields
of gang practices and identifying gang signs
and symbols, as a rebuttal witness. (Id. at
1467, 1483-84, 1493.) Officer Monz worked
as an investigator in the Gang Intelligence
Unit of the Suffolk County Sheriff’s Office.
(Id. at 1468, 1487.) He was familiar with the
gang known as the Bloods (id. at 1494-95),
which was divided into numerous sets and
subsets. One such subset is known as GShine. (Id. at 1495.) He explained that there
were different levels within a gang and that
one of the ways a gang member could get
promoted within the levels was to assault
anybody that would be considered law
enforcement, such as police officers or
corrections officers. (Id. at 1507-08.)
If you find that Mr. Murray
was a gang member, you may
not consider that as evidence
of a propensity to commit
crimes. Such membership
may or may not give rise to a
possible motive as to the
charges against him. And I
just defined that distinction
between intent and motive to
Likewise, if you find Mr.
Murray was not a gang member, you may consider that
fact as a lack of motive to
commit the crimes charged.
(Id. at 1744-45.)
Investigator Monz reviewed and translated a letter written by petitioner to another
inmate, dated October 21, 2008, and deduced
from the contents of the letter that the author
of the letter, petitioner, was a member of the
Bloods, specifically G-Shine. (Id. at 1326,
1496-1507.) He also examined two photographs from petitioner’s MySpace webpage
and found that petitioner was making a B
symbol with his hands, which signified the
Bloods. (Id. at 1512, 1519, 1523.)
e. The Verdict and Sentence
On April 29, 2010, a jury convicted petitioner on three counts of assault in the second
degree (NYPL § 120.05(3)) for the January
23, 2009 incident involving Officer Cotter,
Officer Mele, and Sergeant Davis. (See T.
1939-42.) Petitioner was found guilty on one
count of promoting prison contraband in the
second degree (NYPL § 205.20) and one
count of conspiracy in the sixth degree
(NYPL § 105.00) for the March 2, 2009 incident. (See T. 1939-42.) Petitioner was convicted of three counts of assault in the second
degree (NYPL § 120.05(3)) and one count of
obstructing governmental administration in
the second degree (NYPL § 195.05) for the
April 28, 2009 incident involving Officer
Madden, Officer Berrios, and Officer Polastina. (See T. 1939-42.)
At the end of the trial, the court instructed
the jury on the issue of motive and petitioner’s possible gang affiliation. (Id. at
1743-45.) The instructions provided:
It is on the issue of motive that
I admitted evidence of the Defendant Murray’s possible
gang affiliation. Defendant
Murray denies that he was a
member of a gang. Whether
On June 22, 2010, petitioner was sentenced to three concurrent determinate sentences of seven years’ incarceration followed
by five years of post-release supervision for
three of his assault convictions. (S. 2 at 16.)
Petitioner was sentenced to concurrent determinate sentences of six years’ incarceration
followed by five years of post-release supervision for the other three assault convictions
and one year incarceration for his obstructing
governmental administration conviction. (Id.
at 16-17.) The assault sentences were imposed to run consecutive to each other. (Id. at
16.) For petitioner’s promoting prison contraband and conspiracy convictions, he was
sentenced to concurrent definite sentences of
one year of incarceration and 90 days’ incarceration, respectively. (Id. at 15-16.)
substantive grounds. See People v. Murray,
984 N.Y.S.2d 417 (App. Div. 2014). In affirming his conviction, the Appellate Division rejected petitioner’s first and second arguments relating to the trial court’s evidentiary rulings, holding that the trial court
properly exercised its discretion in admitting
evidence regarding the defendant’s gang
membership. Id. at 418. Since “defense
counsel told the jury in his opening statement
that the defendant had no motive to commit
the crimes and that, in the absence of a motive, the crimes were inexplicable,” the Appellate Division found that the trial court
properly permitted the People to present evidence that was probative of the defendant’s
motive, and the court’s limiting instructions
alleviated any prejudice from this evidence.
Id. This included evidence that petitioner
was a gang member and that assaulting corrections officers was a way to advance a
member’s status within the gang. Id. The
Appellate Division also found that the trial
court properly permitted the People to introduce expert testimony to rebut petitioner’s
claim that he had no motive to assault correction officers. Id. In addition, petitioner’s argument that the expert testimony improperly
bolstered Officer Mele’s testimony was
found to be unpreserved for appellate review
and without merit. Id.
B. Procedural History
1. State Procedural History
On July 9, 2013, petitioner filed a direct
appeal to the Supreme Court, Appellate Division, Second Department, in which he argued, inter alia, that (1) the trial court erroneously admitted evidence of petitioner’s
gang affiliation and failed to issue adequate
limiting instructions regarding gang affiliation; (2) the People’s rebuttal witness improperly bolstered Officer Mele’s testimony;
(3) the evidence was legally insufficient to
prove his guilt beyond a reasonable doubt;
and (4) petitioner’s fair trial right was violated when the trial court imposed a harsher
jail sentence after his conviction than his proposed plea offer, and his sentence is unduly
harsh and excessive. (See Appellant’s Br.,
ECF No. 7-10, at i-ii.)
In rejecting petitioner’s third argument
relating to the sufficiency of the evidence, the
Appellate Division held that, in “viewing the
evidence at trial in the light most favorable to
the prosecution,” it was legally sufficient to
establish the petitioner’s guilt beyond a reasonable doubt. Id. Furthermore, when conducting its review of the weight of the evidence, the court “accord[ed] great deference
to the fact finder’s opportunity to view the
witnesses, hear the testimony, and observe
On April 30, 2014, the appeal of his conviction was denied on both procedural and
“S.” refers to the sentencing transcript. (ECF No. 723.)
imposed a harsher jail sentence after his conviction than his proposed plea offer, and his
sentence is unduly harsh and excessive. (See
Pet., ECF No. 1, at 6-12.) Respondent filed
an answer and memorandum of law opposing
the petitioner application on November 25,
2015. (ECF No. 6.) The Court has fully considered all submissions of the parties.
demeanor. Id. In reviewing the record, the
court concluded that “the verdict of guilt was
not against the weight of the evidence.” Id.
Finally, the Appellate Division rejected
petitioner’s fourth argument that the trial
court violated his right to trial by imposing a
harsher jail sentence after his conviction than
his proposed plea offer sentence and that his
sentence is unduly harsh and excessive. Id.
at 418-19. The court held that petitioner
“failed to preserve for appellate review his
contention that the Supreme Court, by the
sentences it imposed, penalized him for exercising his right to a trial,” and in any case,
“the fact that the sentences imposed were
greater than what the defendant had been offered in connection with a proposed plea
agreement does not, standing alone, establish
that he was punished for proceeding to trial.”
Id. at 418-19. Additionally, the court found
that “the transcript of the sentencing proceedings does not support a finding that the sentencing determination was tainted by retaliation or vindictiveness.” Id. Finally, the Appellate Division found that the sentences imposed were not excessive. Id. On December
3, 2014, the New York Court of Appeals denied petitioner leave to appeal. See People v.
Murray, 24 N.Y.3d 1087 (N.Y. 2014) (Table).
II. STANDARD OF REVIEW
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
(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 –
(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
2. The Petition
On June 8, 2015, petitioner moved before
this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, on the grounds that:
(1) the trial court erroneously admitted evidence of petitioner’s gang affiliation and
failed to issue adequate limiting instructions
regarding gang affiliation, thus denying him
his right to a fair trial; (2) the People’s rebuttal witness improperly bolstered Officer
Mele’s testimony; (3) the evidence was legally insufficient to prove his guilt beyond a
reasonable doubt; and (4) petitioner’s fair
trial right was violated when the trial court
(2) resulted in a decision that
was based on an unreasonable determination of the
facts in light of the evidence presented by the
State court proceedings.
28 U.S.C. § 2554. “Clearly established Federal law” is comprised of “the holdings, as
v. Greiner, 459 F. 3d 200, 203 (2d Cir.
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
Petitioner argues that: (1) the trial court
erroneously admitted evidence of his gang affiliation and failed to issue adequate limiting
instructions regarding it; (2) the People’s rebuttal witness improperly bolstered Officer
Mele’s testimony; (3) the evidence was legally insufficient to prove his guilt beyond a
reasonable doubt; and (4) petitioner’s fair
trial right was violated when the trial court
imposed a harsher jail sentence after his conviction than his proposed plea offer, and his
sentence is unduly harsh and excessive. (See
Pet. at 6-12.) For the reasons discussed below, the Court concludes none of these arguments provide grounds for habeas relief in
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
413. A decision is an “unreasonable application” of clearly established federal law if a
state court “identifies the correct governing
legal principles from [the Supreme Court’s]
decisions but unreasonably applies that principle to the facts of [a] prisoner’s case.” Id.
AEDPA establishes a deferential standard of review: “a federal habeas court may
not issue the writ simply because the court
concludes in its independent judgment that
the relevant state-court decisions applied
clearly established federal law erroneously or
incorrectly. Rather, that application must be
unreasonable.” Gilchrist v. O’Keefe, 260
F.3d 87, 93 (2d Cir. 2001) (quoting Williams,
529 U.S. at 411). The Second Circuit added
that, while “[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
feelings of fact and conclusions of law are reviewed de novo.’” Dolphy v. Mantello, 552
F.3d 236, 238 (2d Cir. 2009) (quoting Spears
A. Gang Affiliation Claims
Petitioner contends that the trial court
erred in admitting evidence pertaining to his
alleged gang affiliation, thus denying him a
fair trial. He also contends that the trial court
failed to provide adequate limiting instructions to the jury regarding the issue of motive
and petitioner’s possible gang affiliation,
thus failing to minimize any prejudicial effect
the gang-affiliation evidence may have had
on the jury. As set forth below, these claims
are without merit and do not warrant habeas
relief because the admission of this evidence
was not erroneous under state law and the
court’s limiting instructions were constitutionally adequate.
Petitioner contends that he was denied a
fair trial because the trial court erroneously
allowed evidence of his alleged gang affiliation to be introduced through Officer Mele’s
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); see
also Collins v. Scully, 755 F.2d 16, 19 (2d
Cir. 1985) (evidence must be “crucial, critical, highly significant”). 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, 955 F.2d at 181).
re-direct testimony, petitioner’s cross-examination, and the prosecution’s rebuttal witness. The Appellate Division found this
claim to be without merit. Murray, 984
N.Y.S.2d at 418. Therefore, AEDPA deference applies. As set forth below, there is no
basis to conclude that the state court’s evidentiary ruling or the Appellate Division’s
affirmance thereof was erroneous under state
law. Nor has petitioner demonstrated that the
ruling, even if erroneous, rose to a constitutional level that deprived him of a fair trial.
Thus, petitioner's claim does not warrant habeas relief.
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
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))). 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.’”
Keane, 137 F.3d 117, 125 (2d Cir. 1998)
(quoting Dowling v. United States, 493 U.S.
342, 352 (1990)).
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 n. 7 (2d Cir.
2003); Davis v. Strack, 270 F.3d 111, 123-24
(2d Cir. 2001).
Here, there is no basis to conclude that the
trial court’s admission of the evidence regarding gang affiliation by the petitioner was
erroneous under state law. Under New York
law, evidence of a defendant’s prior bad acts
is admissible if such evidence helps refute
disputed contentions posed by the defendant
at trial. See e.g. People v. Rojas, 97 NY2d
32, 38 (2001) (stating that the court “[has]
recognized that the prosecution, even when it
did not initially seek to introduce such proof,
may introduce evidence of prior crimes to refute defendants’ contentions at trial”). In Rojas, for example, where a defendant was
charged with assault, the Appellate Division
held that the trial court properly admitted evidence of defendant’s prior crimes where the
defense counsel had “strongly suggested, if
App. Div. 2003) (“The court properly exercised its discretion in admitting expert testimony regarding gang customs and rituals.
This testimony was explanatory of defendant’s actions and unusual statements at the
time of the crime and was relevant to his motive.”).
not argued, that the jury should acquit defendant because, having done nothing wrong,
he was abused and mistreated, culminating in
a scuffle with guards who surrounded him in
his cell.” Rojas, 97 N.Y.2d at 39. Since the
defense argued that defendant’s confinement
was unjustified, the Appellate Division held
that the trial court properly permitted the People to supply a justification and to refute defendant’s misleading contentions, reasoning
“[h]ad the court allowed defendant’s misleading assertion to remain unrefuted or unexplained, the jury would have been invited
to acquit defendant based on the erroneous
belief that he was unjustly confined and mistreated.” Id.
Here, like in Rojas, the trial court
properly admitted evidence of petitioner’s
gang affiliation to rebut his claim that he had
no motive for the crime, a claim that would
have been materially misleading to the jury
without the gang evidence. See Rojas, 97
N.Y.2d at 39. Indeed, like in Scott, the gang
affiliation evidence was “highly probative of
the defendant’s motive.” 70 A.D.3d at 977.
Thus, under Rojas and Scott, the People were
permitted to produce evidence that petitioner
was a gang member and that gang members
could advance their status in the gang by assaulting corrections officers. Accordingly,
the trial court did not err in admitting such
details pertaining to petitioner’s gang affiliation.
Furthermore, as noted by the Appellate
Division in affirming petitioner’s conviction,
appellate courts in New York have held that,
where evidence of a defendant’s gang affiliation helps elucidate motive for a crime, such
evidence is admissible. See Murray, 984
N.Y.S.2d at 418 (citing, inter alia, People v.
Scott, 70 A.D.3d 977, 977 (N.Y. App. Div.
2010)). In Scott, for instance, the Appellate
Division held that the trial court properly exercised its discretion in admitting the testimony of an expert witness on gangs, gangrelated customs, and violent gang practices
where defendant was being tried for murder.
The Appellate Division found this evidence
to be “highly probative of the defendant’s
motive, as well as explanatory of the defendant’s actions and, thus, critical to the jury’s
understanding of the relationship between the
defendant and the victim.” 70 A.D.3d at 977;
see also People v. Cain, 16 A.D.3d 288, 288
(N.Y. App. Div. 2005) (“Testimony from
surviving victim and from expert witness
concerning defendant’s membership in gang,
as well as customs, hierarchies and violent
practices of gang, was admissible since it was
highly probative of defendant’s motive.”);
People v. Avila, 303 A.D.2d 165, 166 (N.Y.
In short, the admission of the gang affiliation evidence was not erroneous under New
York state law and, therefore, did not violate
petitioner’s due process rights as required to
entitle him to habeas relief. See Wade, 333
F.3d at 59 n. 7; Davis, 270 F.3d at 123-24.
2. Adequacy of the Limiting Instructions
Petitioner claims that the trial court failed
to provide adequate limiting instructions to
the jury. This claim also lacks merit.
As the Second Circuit has held, “a state
prisoner making a claim of improper jury instructions faces a substantial burden.” Del
Valle v. Armstrong, 306 F.3d 1197, 1200 (2d
Cir. 2002). A petitioner must establish that
“‘the ailing instruction by itself so infected
B. Bolstering Claim
the entire trial that the resulting conviction violat[ed] due process,’ not merely [that] ‘the
instruction is undesirable, erroneous, or even
universally condemned.’” Id. at 1201 (quoting Henderson v. Kibbe, 431 U.S. 145, 154
(1977)); see also Middleton, 541 U.S. at
437 (explaining that “not every ambiguity,
inconsistency, or deficiency in a jury instruction rises to the level of a due process violation”). In addition, “any allegedly erroneous
jury instruction should be reviewed in light of
the ‘well-established proposition that a single
instruction to a jury may not be judged in artificial isolation, but must be viewed in the
context of the overall charge.’” Huber v.
Schriver, 140 F. Supp. 2d 265, 282 (E.D.N.Y.
2001) (quoting Cupp v. Naughten, 414 U.S.
141, 146-47 (1973).
Petitioner also argues that the People’s
rebuttal witness on gang affiliation constituted improper bolstering. Respondent argues this claim is procedurally barred because petitioner failed to preserve this challenge for appellate review. As set forth below, the Court agrees.
1. Applicable Law
Failure to Exhaust
As a threshold matter, a district court
shall not review a habeas petition unless “the
applicant has exhausted the remedies available in the courts of the State.” 28 U.S.C.
§ 2254(b)(1)(A). Although a state prisoner
need not petition for certiorari to the United
States Supreme Court to exhaust his claims,
see Lawrence v. Florida, 549 U.S. 327, 333
(2007), he still must fairly present his federal
constitutional claims to the highest state court
having jurisdiction over them, see Daye v. Attorney Gen. of N.Y., 696 F.2d 186, 191 n.3
(2d Cir. 1982) (en banc). Exhaustion of state
remedies requires that a petitioner ‘“fairly
presen[t]’ federal claims to the state courts in
order to give the State the ‘opportunity to
pass upon and correct’ alleged violations of
its prisoners’ federal rights.” Duncan v.
Henry, 513 U.S. 364, 365 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971))
(alteration in original).
Petitioner plainly has not met this high
burden in light of the law set forth above on
the admissibility of gang affiliation evidence
to prove motive and the detailed instructions
provided by the trial court that comport with
this law. Specifically, as noted above, evidence of gang affiliation is admissible to
prove motive, see, e.g., Scott, 70 A.D.3d at
977; Cain, 16 A.D.3d at 288, and the trial
court clearly instructed the jury that it could
only consider such evidence for motive, not
for propensity or as proof of guilt or innocence (T. 1744-45 (“It is on the issue of motive that I admitted evidence of the Defendant
Murray’s possible gang affiliation. . . .
Whether you find as a jury that Mr. Murray
was or was not a gang member, is not dispositive of his guilt or innocence. If you find that
Mr. Murray was a gang member, you may not
consider that as evidence of a propensity to
commit crimes.”)). The instructions were
thus consistent with New York law and did
not violate due process. See Del Valle, 306
F.3d at 1200.
However, “it is not sufficient merely that
the federal habeas applicant has been through
the state courts.” Picard, 404 U.S. at 275-76.
To provide the State with the necessary “opportunity,” the prisoner must “fairly present”
his claims in each appropriate state court (including a state supreme court with powers of
discretionary review), alerting that court to
the federal nature of the claim and “giv[ing]
the state courts one full opportunity to resolve
any constitutional issues by invoking one
Grey v. Hoke, 933 F.2d 117, 120 (2d Cir.
1991)). Therefore, “[f]or exhaustion purposes, ‘a federal habeas court need not require that a federal claim be presented to a
state court if it is clear that the state court
would hold the claim procedurally barred.’”
Keane, 118 F.3d at 139 (quoting Hoke, 933
F.2d at 120).
complete round of the State’s established appellate review process.”
Boerckel, 526 U.S. 838, 845 (1999); see also
Duncan, 513 U.S. at 365-66. “A petitioner
has ‘fairly presented’ his claim only if he has
‘informed the state court of both the factual
and legal premises of the claim he asserts in
federal court.’” Jones v. Keane, 329 F.3d
290, 294-95 (2d Cir. 2003) (quoting Dorsey
v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997)).
“Specifically, [petitioner] must have set forth
in state court all of the essential factual allegations asserted in his federal petition.”
Daye, 696 F.2d at 191-92 (citing Picard, 404
U.S. at 276; United States ex rel. Cleveland
v. Casscles, 479 F.2d 15, 19-20 (2d Cir.
1973)). To that end, “[t]he chief purposes of
the exhaustion doctrine would be frustrated if
the federal habeas court were to rule on a
claim whose fundamental legal basis was
substantially different from that asserted in
state court.” Id. at 192 (footnote omitted).
However, “exhaustion in this sense does
not automatically entitle the habeas petitioner
to litigate his or her claims in federal court.
Instead, if the petitioner procedurally defaulted [on] those claims, the prisoner generally is barred from asserting those claims in a
federal habeas proceedings.” Woodford v.
Ngo, 548 U.S. 81, 93 (2006) (citing Gray v.
Netherland, 518 U.S. 152, 162 (1996); Coleman, 501 U.S. at 744-51).
The procedural bar rule in the review of
applications for writs of habeas corpus is
based on the comity and respect that state
judgments must be accorded. See House v.
Bell, 547 U.S. 518, 536 (2006). Petitioner’s
federal claims also may be procedurally
barred from habeas corpus review if they
were decided at the state level on adequate
and independent grounds. See Coleman, 501
U.S. at 729-33.
Like the failure to exhaust a claim, the
failure to satisfy the state’s procedural requirements deprives the state courts of an opportunity to address the federal constitutional
or statutory issues in a petitioner’s claim. See
Coleman v. Thompson, 501 U.S. 722, 731-32
(1991). “[A] claim is procedurally defaulted
for the purposes of federal habeas review
where ‘the petitioner failed to exhaust state
remedies and the court to which the petitioner
would be required to present his claims in order to meet the exhaustion requirement
would now find the claims procedurally
barred.’” Reyes v. Keane, 118 F.3d 136, 140
(2d Cir. 1997) (quoting Coleman, 501 U.S. at
735) (emphasis omitted). Where the petitioner “can no longer obtain state-court review of his present claims on account of his
procedural default, those claims are now to be
deemed exhausted.” DiGuglielmo v. Smith,
366 F.3d 130, 135 (2d Cir. 2004) (citing Harris v. Reed, 489 U.S. 255, 263 n.9 (1989);
Once it is determined that a claim is procedurally barred under state rules, a federal
court may still review such a claim on its
merits if the petitioner can demonstrate both
cause for the default and prejudice resulting
therefrom, or if he can demonstrate that the
failure to consider the claim will result in a
miscarriage of justice. Id. at 750 (citations
omitted). A miscarriage of justice is demonstrated in extraordinary cases, such as where
a constitutional violation results in the conviction of an individual who is actually innocent. Murray v. Carrier, 477 U.S. 478, 496
nor a miscarriage of justice. That is, he has
not even attempted to provide an explanation
for his failure to raise this argument at trial,
and, even if he had, he has not made a showing of prejudice, given the strong evidence of
guilt discussed below. See Coleman, 501
U.S. at 750; McLeod v. Graham, No. 10 Civ.
3778, 2010 WL 5125317, at *3 (E.D.N.Y.
Dec. 9, 2010 (noting that, to show cause, a
petitioner must establish that “(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”); Torres v.
Senkowski, 316 F.3d 147, 152 (2d Cir.
2003) (noting that, to show prejudice, a petitioner must establish that the error “worked
to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions”). Thus, this claim is procedurally barred. 3
Here, although petitioner adequately exhausted his bolstering claim by raising it on
appeal to the Appellate Division, see Murray,
984 N.Y.S.2d 417, and in his petition to the
New York State Court of Appeals, see People
v. Murray, 24 N.Y.3d 1087 (2014), the claim
is procedurally barred from habeas corpus review based on procedural default.
As the Appellate Division indicated on
direct appeal, petitioner procedurally defaulted on his bolstering claim by failing to
preserve it for appellate review pursuant to
N.Y. C.P.L. § 470.05. Murray, 984
N.Y.S.2d at 418. Under that provision, ‘“a
general objection is not sufficient to preserve
an issue’” for appeal.
§ 470.05. This rule constitutes an independent and adequate state ground to deny relief. Richardson v. Green, 497 F.3d 212, 218,
220 (2d Cir. 2007) (quoting Garvey v. Duncan, 485 F.3d 709, 714 (2d Cir. 2007)). Because petitioner did not object on bolstering
grounds at trial, and because the Appellate
Division relied on this independent and adequate state procedural rule to reject this
claim, petitioner’s bolstering claim is procedurally barred. See id. Furthermore, petitioner has not demonstrated cause and prejudice resulting from this procedural default,
C. Insufficiency of the Evidence Claim
Petitioner claims that the evidence presented at trial was legally insufficient to establish his guilt. 4 For the reasons set forth below, the Court concludes that this claim is
In any event, the claim fails on the merits. Given
petitioner’s repeated denials of gang affiliation during
his testimony, it was proper for the trial court to allow
a rebuttal witness (with proper qualifications) to provide additional testimony regarding gang signs, symbols, and practices. See People v. Harris, 442 N.E.2d
1205, 1209 (1982) (holding that trial court properly
admitted witness’s testimony on rebuttal to refute defendant’s direct testimony); see also Scott, 70 A.D.3d
at 977 (gang affiliation evidence admissible to prove
motive); Cain, 16 A.D.3d at 288 (same); Avila, 303
A.D.2d at 166 (same).
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.”), and
the Court cannot consider a purely state law claim on
federal habeas review, see Lewis v. Jeffers, 497 U.S.
764, 780 (1990) (“[F]ederal habeas corpus relief does
not lie for errors of state law. . . .”). Therefore, this
claim is not reviewable. See Urruita v. Greene, No.
05-CV-6153 CJS, 2007 WL 2484305, at *2
(W.D.N.Y. Aug. 28, 2007) (“Since a ‘weight of the evidence claim’ is purely a matter of state law, it is not
cognizable on habeas review.”).
Petitioner also asserts that the verdict was against the
weight of the evidence. A “weight of the evidence”
claim, however, is based on state law, see Correa v.
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).
The law governing habeas relief from a
state conviction based on insufficiency of the
evidence is well established. A petitioner
‘“bears a very heavy burden”’ when challenging evidentiary sufficiency in a writ of
habeas corpus. Einaugler v. Supreme Court
of N.Y., 109 F.3d 836, 840 (2d Cir.
1997) (quoting Quirama v. Michele, 983
F.2d 12, 14 (2d Cir. 1993)). A criminal conviction in state court will not be reversed if,
“after viewing the evidence in the light most
favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307,
319 (1979); see also Policano v. Herbert, 507 F.3d 111, 115-16 (2d Cir.
2007) (stating that “[i]n a challenge to a state
criminal conviction brought under 28 U.S.C.
§ 2254 . . . the applicant is entitled to habeas
corpus relief if it is found that upon the record
evidence adduced at the trial no rational trier
of fact could have found proof of guilt beyond a reasonable doubt” (quoting Jackson,
443 U.S. at 324)). 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 resolved 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).
In this case, petitioner argues that his conviction was not based on legally sufficient evidence. The Appellate Division rejected this
claim on the merits, holding that, viewing the
evidence in the light most favorable to the
prosecution, the evidence “was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt” and that “the verdict of guilt was not against the weight of the
evidence.” Murray, 984 N.Y.S.2d at 418.
Therefore, AEDPA deference applies. For
the reasons set forth below, the Court concludes that the Appellate Division’s ruling
was not contrary to, or an unreasonable application of, clearly established federal law. Nor
was it an unreasonable determination of the
1. Assault Convictions
First, the evidence was sufficient to support petitioner’s conviction for assault in the
second degree on all six counts. Under NYPL
§ 120.05(3), a person is guilty of assault in
the second degree when “with intent to prevent a peace officer, a police officer, or employee of any entity governed by the public
service law in the course of performing an essential service, from performing a lawful
duty . . . he or she causes physical injury to
such peace officer, police officer . . . or employee of an entity governed by the public
service law.” In Vera v. Woods, No. 06-CV1684 (JFB), 2008 WL 2157112 at *9
(E.D.N.Y. May 21, 2008), for example, the
court upheld a second-degree assault conviction against a sufficiency of the evidence
Petitioner cannot prevail on a claim of legally insufficient evidence unless he can
show that, viewing the evidence in the light
most favorable to the prosecution, ‘“no rational trier of fact could have found proof of
guilt beyond a reasonable doubt.”’ Flowers
v. Fisher, 296 F. App’x 208, 210 (2d Cir.
2008 (quoting Jackson, 433 U.S. at 324).
Madden, Berrios, and Polastina. Officer
Madden’s testimony established that, during
his attempt to transport inmates by foot
through the tier, petitioner failed to comply
with his commands and, instead, threw
punches and kicks at him and at the two other
officers, Officers Berrios and Polastina, who
had come to assist him in controlling petitioner. (See id. at 870-86.)
challenge where a petitioner was only identified by one eyewitness who testified to seeing
the petitioner strike the victim with a bat. The
Second Circuit has emphasized that “the testimony of a single, uncorroborated eyewitness is generally sufficient to support conviction.” United States v. Danzey, 594 F.2d 905,
916 (2d Cir. 1979); see also Bentley v.
Scully, 41 F.3d 818, 825 (2d Cir. 1994) (stating that eyewitness testimony and identification constituted a major portion of overwhelming evidence of guilt); see also King v.
Greiner, 210 F. Supp. 2d 177, 185 (E.D.N.Y.
2002) (holding that a petitioner’s claim of legally insufficient evidence lacked merit in
light of eyewitness identification); Huber v.
Schriver, 140 F. Supp. 2d 265, 277 (E.D.N.Y.
2001) (holding that the testimony of one eyewitness defeated a petitioner’s claim of legally insufficient evidence).
Several officers also testified to injuries
sustained in these encounters. Officer Berrios testified that he sustained injuries that required medical attention (id. at 1040-41), Officer Madden testified that he needed surgery
on his left knee (id. at 888-90), and Officer
Polastina testified to suffering from a torn rotator cuff on his left arm (id. at 1075). Their
testimony was also supported by medical and
photographic evidence documenting their injuries from the assault. (See, e.g., id. at 89091 (photographs admitted showing facial cuts
Madden sustained from April 28 incidents);
id. at 1105-06 (doctor testifying about injuries to Officer Mele’s right knee); id. at 1149
(medical records of Officer Polastina admitted showing results of M.R.I. on his left
shoulder consistent with his testimony).)
In this case, the prosecution presented evidence to support petitioner’s assault convictions because the prosecution provided testimony of not just one eyewitness, which was
sufficient under Woods, but rather multiple
witnesses who testified that they personally
observed each assault. Officer Mele, Officer
Cotter, and Sergeant Davis each testified to
being physically attacked and injured by petitioner on January 23, 2009 in their course of
performing a search of petitioner’s tier for
contraband; this incident resulted in three of
petitioner’s second degree assault charges.
Specifically, Officer Cotter testified to being
grabbed and struck by petitioner in the upper
body area, resulting in bruised calves and a
groin injury. (T. 175-77, 231, 260.) Sergeant
Davis and Officer Mele both testified that
they required medical treatment for their injuries that resulted from the January 23, 2009
altercation with petitioner. (Id. at 347, 380,
485-86.) The other three assault convictions
arose from the April 28, 2009 incident. Multiple officers testified that they personally observed these assaults, including Officers
Such evidence is plainly sufficient to support the conviction. See Woods, 2008 WL
2157112 at *9; Danzey, 594 F.2d at 916. Indeed, given that so many eyewitnesses testified to the assaults and medical evidence was
presented to corroborate those eyewitness accounts, the Court concludes that the evidence
of guilt on the assault charges was not just
sufficient but overwhelming. See, e.g.,
Chrysler v. Guiney, 806 F.3d 104, 120 (2d
Cir. 2015); Persad v. Conway, 368 F. App’x
265, 266 (2d Cir. 2010); United States v.
Farmer, 583 F.3d 131 (2d Cir. 2009).
the New York Court of Appeals upheld a
sixth-degree conspiracy conviction against a
sufficiency of the evidence challenge where,
inter alia, the defendant’s co-conspirators
testified about the agreement they had with
him. Likewise, here, multiple eyewitnesses
testified that petitioner, after communicating
with another inmate against the corrections
facility’s rules, handed the inmate a “slung,”
as well as a cup of water with a bottle of lotion, which the inmate poured across the floor
between himself and an officer. (See T. 54868, 660-71.) Such evidence is clearly sufficient to support the conviction. See People v.
Camarre, 171 A.D.2d 1070, 1070 (N.Y. App.
Div. 1991) (noting that evidence is sufficient
to support a defendant’s conviction of sixth
degree conspiracy “if it shows that defendant
and another had a tacit prearranged agreement—a shared specific intent—to commit
the crime” and stating that “proof of the intent
and the agreement can be inferred from circumstantial facts. . . .”); Woods 2008 WL
2157112 at *9; Danzey, 594 F.2d at 916.
2. Promoting Prison Contraband Charge
Second, the evidence was sufficient to
support petitioner’s promoting prison contraband conviction in the second degree. Under
NYPL § 205.20, “a person is guilty of promoting prison contraband in the second degree when . . . being a person confined in a
detention facility, he knowingly and unlawfully makes, obtains or possesses any contraband.” In Finley v. Graham, No. 12 Civ.
9055 (KMK)(PED), 2014 WL 10965412, at
*14 (S.D.N.Y. August 26, 2014), for example, the court upheld a second-degree conviction for promoting prison contraband against
a sufficiency of the evidence challenge where
several other inmates testified that petitioner
participated in phone calls made from cell
phones smuggled into the prison. Phone records also showed that such cell phones were
in use while petitioner was incarcerated. Id.
The evidence in this case is similarly strong.
Two officers testified to witnessing petitioner, on March 2, 2009, hand Lerner a sock
with a block of soap inside while Lerner was
outside of his cell during recreational time,
and there is no dispute that such an item is
considered prison contraband. (T. 545-46,
552-53, 558, 580-82, 584, 666-67.) The
slung itself was also admitted into evidence.
(Id. at 714.) Such evidence is clearly sufficient to support the conviction. See Woods,
2008 WL 2157112 at *9; Finley, 2014 WL
10965412, at *14.
4. Obstructing Governmental
Finally, the evidence was plainly sufficient to support petitioner’s conviction for
obstructing governmental administration
conviction in the second degree. Under
NYPL § 195.05,
a person is guilty of obstructing governmental administration when he intentionally obstructs, impairs or perverts the administration of law or
other governmental function or prevents or attempts to prevent a public
servant from performing an official
function, by means of intimidation,
physical force or interference, or by
means of any independently unlawful
act, or by means of interfering,
3. Conspiracy Charge
Third, petitioner’s conspiracy conviction
in the sixth degree was supported by sufficient evidence. Under NYPL § 105.00, “a
person is guilty of conspiracy in the sixth degree when, with intent that conduct constituting a crime be performed, he agrees with one
or more persons to engage in or cause the performance of such conduct.” In People v.
Flanagan, 71 N.E.3d 541, 554 (N.Y. 2017),
not contrary to, or an unreasonably application of, clearly established federal law. See 28
U.S.C. § 2254(d)(1).
whether or not physical force is involved, with radio, telephone, television or other telecommunications systems owned or operated by the
state. . . .”
D. Vindictive and Harsh Sentence Claims
Petitioner also claims that the sentence
imposed by the trial court was vindictive,
harsh, and excessive. For the reasons set forth
below, the Court concludes that (1) petitioner’s vindictiveness claim is procedurally
barred and, in any case, fails on the merits,
and (2) his harsh and excessive sentence
claim is also meritless.
In People v. Baltes, 75 A.D.3d 656, 659
(N.Y. App. Div 2010), for example, the court
held that the evidence supported a conviction
for second-degree obstructing governmental
administration where a witness testified that
defendant was belligerent, uncooperative,
and refused a direct request from an officer.
The same is true here. An eyewitness officer
testified that, during his attempt to transport
inmates by foot through the tier, petitioner
failed to comply with the officer’s commands
and, instead, threatened the officer. (Id. at
873-76.) The officer also testified that petitioner resisted the requests of two other officers who had come to assist in controlling petitioner. (Id. at 873-76.) Multiple witnesses
further testified that petitioner ignored multiple requests to “give [the officer his] hand” to
be handcuffed by tucking his arms under his
chest and clenching his fists. (Id. at 887, 96263, 986.) This evidence is clearly sufficient
to support his conspiracy conviction. See Baltes, 75 A.D.3d at 659; Woods 2008 WL
2157112 at *9; Danzey, 594 F.2d at 916.
1. Judicial Vindictiveness
Respondent argues this claim is procedurally barred because petitioner failed to preserve this challenge for appellate review, and,
in any event, that it lacks merit. For the reasons set forth below, this Court agrees.
i. Procedural Bar
Like the bolstering claim, petitioner’s judicial vindictiveness claim is barred based on
procedural default. Petitioner exhausted his
state remedies regarding this claim by raising
it on direct appeal to the Appellate Division,
and the New York State Court of Appeals denied petitioner’s leave to appeal. See Murray,
24 N.Y.3d 1087; Murray, 984 N.Y.S.2d at
418. However, the Appellate Division on direct appeal held that this claim was procedurally barred because it was not preserved at the
trial level. See Murray, 984 N.Y.S.2d at 418.
Therefore, this Court concludes that this
claim is procedurally barred from federal habeas review for the same reasons as the bolstering claim. See Richardson, 497 F.3d at
220. Furthermore, again like the bolstering
claim, petitioner has not demonstrated cause
or prejudice resulting from this procedural
default, nor a miscarriage of justice. See
In sum, the Court concludes that the evidence was legally sufficient to establish that
a rational trier could find petitioner guilty beyond a reasonable doubt of six counts of assault in the second degree, one count of promoting prison contraband in the second degree, one count of conspiracy in the sixth degree, and one count of obstructing governmental administration in the second degree.
Therefore, the Court finds that petitioner’s
sufficiency of the evidence claim is without
merit, and thus, the state court’s ruling was
McLeod v. Graham, 2010 WL 5125317, at
*3; Torres, 316 F.3d at 152.
There is no evidence that petitioner’s sentence was vindictive and thus violated his
right to a fair trial. Petitioner contends that
his fair trial right was violated when the trial
court imposed a harsher jail sentence of 13
years’ incarceration after his conviction than
his proposed pre-trial plea offer sentence of 3
1/2 years of incarceration. However, a trial
court’s imposition of a higher sentence than
that recommended in a plea offer does not, in
and of itself, establish actual vindictiveness.
See Naranjo, 2003 WL 1900867, at *10 (citing Corbitt, 439 U.S. at 219, 223). In other
words, a discrepancy between an offered plea
bargain and the actual sentence alone does
not make out a claim of constitutionally impermissible vindictive sentencing. See Bailey v. Artuz, No. 94-CV-1240 (GJD/RSP),
1995 WL 684057, at *2 (N.D.N.Y. Nov. 15,
1995); Pabon v. Hake, 763 F. Supp. 1189,
1194-95 (E.D.N.Y. 1991) (holding that petitioner was not vindictively sentenced when
only evidence of vindictive sentencing that
petitioner presented was that the sentence he
received was greater than promised sentence
he rejected as part of plea bargain); see
United States v. Araujo, 539 F.2d 287, 292
(2d Cir. 1976) (“[L]enience to those who exhibit contrition by admitting guilt does not
carry a corollary that the [j]udge indulges a
policy of penalizing those who elect to stand
trial.”) (internal citation omitted); Bonner, 2006 U.S. Dist. LEXIS 6925, at *25-26
(holding that the imposition of a seventy-five
year sentence when defendant was offered
plea bargain of seven years did not establish
a violation of defendant’s Sixth Amendment
right to trial by jury); People v. Durkin, 518
N.Y.S.2d 38 (App. Div. 1987) (holding that
the fact that the trial court’s sentence is
greater than the People’s offer does not automatically establish that defendant has been
punished for asserting his right to a jury trial).
Beyond showing that a discrepancy exists between the plea bargain offered to him and the
Even if petitioner’s judicial vindictiveness claim was not procedurally barred, it
still lacks merit. Petitioner claims that the
trial court, by the sentences it imposed, penalized him for exercising his right to a trial
because he received a harsher jail sentence
after his conviction than his proposed plea offer sentence. Petitioner contends, on these
grounds, that his right to a fair trial was violated.
A petitioner may not be punished for going to trial. The Sixth Amendment guarantees
the right to a trial by jury, and a court may not
penalize a person for exercising a right guaranteed under the Constitution. See Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct.
663, 54 L.Ed.2d 604 (1978) (“To punish a
person because he has done what the law
plainly allows him to do is a due process violation of the most basic sort.”). However,
plea bargains, which often require a defendant to choose between going to trial and
pleading guilty to receive a reduced sentence,
are an important and constitutional part of the
criminal justice system. See Corbitt v. New
(1978) (“[T]here is no per se rule against encouraging guilty pleas.”). “The criminal process, like the rest of the legal system, is replete with situations requiring ‘the making of
difficult judgments’ as to which course to follow. Although a defendant may have a right,
even of constitutional dimensions, to follow
whichever course he chooses, the Constitution does not always forbid requiring him to
choose.” Bonner v. Smith, No. 05-CV-4209
(JG), 2006 WL 463499, at *25-26, 2006 WL
463499 (E.D.N.Y. Feb. 24, 2006) (quoting McGautha v. California, 402 U.S. 183,
213 (1971)); see also Brady v. United
States, 397 U.S. 742, 750-51 (1970).
deference applies. The Court concludes that
the Appellate Division’s holding that petitioner’s sentence was not harsh and excessive
was not contrary to, or an unreasonable application of, clearly established federal law.
actual sentence he received, petitioner has not
offered any evidence of vindictive sentencing.
Furthermore, the judge never stated or
implied that petitioner’s sentence was based
on his failure to accept the prosecutor’s plea
offer. See Naranjo, 2003 WL 1900867, at
*10 (denying habeas claim based on disparity
between pre-trial offer of five to ten years and
ultimate sentence of twenty-five to fifty
years; such difference did not establish claim
of actual vindictiveness because judge never
suggested that sentence based on refusal of
plea offer). There is also no evidence that the
judge threatened petitioner with a more severe sentence if he elected to go to trial,
which would “establish a per se violation of
the defendant’s Sixth Amendment right to a
trial. . . .” Fielding v. Lefevre, 548 F.2d 1102,
1106 (2d Cir.1977) (citations omitted); see
also Izaguirre v. Lee, 856 F. Supp. 2d 551,
577 (E.D.N.Y. 2012) (holding that petitioner
established entitlement to a presumption of
vindictiveness where the trial court followed
through on pre-trial threat to impose a nonmandatory statutory maximum if defendant
went to trial).
When a petitioner is claiming that his sentence is harsh and excessive, for purpose of
habeas review, “[n]o federal constitutional issue is presented [if] . . . the sentence is within
the range prescribed by state law.” White v.
Keane, 969 F.2d 1381, 1383 (2d Cir.
1992); see also Santiago v. Riley, 92–cv–
2302 (DRH), 1993 WL 173625, at *4
(E.D.N.Y. May 14, 1993) (“Where the sentence imposed by a state trial judge is within
the statutorily prescribed range, the constitution is not implicated and there is no federal
question for habeas corpus review.”); Underwood v. Kelly, 692 F. Supp. 146, 152
Here, petitioner’s sentence was within the
permissible range prescribed by New York
state law, and thus there is no federal question
for habeas review. See White, 969 F.2d at
1383. Specifically, a sentence for each crime
fell within the range prescribed by New York
statutory law. The most serious charge, Assault in the Second Degree, is a Class D Violent Felony. See NYPL § 120.05(3). According to NYPL § 70.06(6)(c) at the time of sentencing, for a Class D Violent Felony “the
term must be at least three years and must not
exceed seven years.” Petitioner was sentenced to either six or seven years’ incarceration for his various assault convictions, which
are within the prescribed statutory range. Furthermore, since the assault convictions arose
from separate incidents, the trial court also
properly imposed consecutive sentences for
those convictions. See NYPL § 70.25. Moreover, for petitioner’s obstructing governmental administration in the second degree
charge, NYPL § 195.05, and promoting
prison contraband in the second degree
charge, NYPL § 205.20, both of which are
In sum, the Court finds that the Appellate
Division’s conclusion that petitioner’s judicial vindictiveness claim fails on the merits
and was neither contrary to, nor an unreasonable application of, clearly established federal law. Nor was it based on an unreasonable determination of the facts. Therefore, petitioner’s application for habeas corpus relief
on this ground is denied.
2. Harsh and Excessive Sentence
Petitioner contends that the 14-year sentence imposed on him for the crimes of which
he was convicted was unduly harsh and excessive. The Appellate Division found that
petitioner’s sentence was not excessive. Murray, 984 N.Y.S.2d at 418. Therefore, AEDPA
Office, 262 Old Country Road, Mineola, NY
Class A Misdemeanors, he was properly sentenced to one year of incarceration, which is
within the statutory guidelines range. See
NYPL § 70.15. (“When such a sentence is
imposed the term shall be fixed by the court,
and shall not exceed one year.”). Finally, for
conspiracy in the sixth degree, which is a
Class B Misdemeanor, NYPL § 105.00, “the
term . . . shall not exceed three months.”
NYPL § 70.25. Because petitioner’s sentence
of 90 days’ imprisonment on that count is
within the statutorily prescribed range, it
raises no constitutional concerns. Therefore,
petitioner’s harsh and excessive sentence
claim is without merit.
In sum, petitioner’s claims for improper
bolstering and vindictive sentencing are procedurally barred, and, in any event, all his
claims are without merit. Thus, this Court
concludes that petitioner has demonstrated no
basis for habeas relief under 28 U.S.C.
§ 2254. Accordingly, the petition for a writ
of habeas corpus is denied in its entirety. 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 close this case.
JOSEPH F. BIANCO
United States District Judge
Dated: August 28, 2017
Central Islip, New York
Petitioner is proceeding pro se. Respondent
is represented by Madeline Singas, District
Attorney, Nassau County District Attorney’s
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