Davidson v. Cunningham
Filing
15
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 8/29/2017. (Copy of order mailed to pro se petitioner by FCM by Chambers.) (Hammond, Daniel)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 16-CV-01125 (JFB)
_____________________
RICHARD DAVIDSON,
Petitioner,
VERSUS
SUPERINTENDENT CUNNINGHAM,
Respondent.
___________________
MEMORANDUM AND ORDER
August 29, 2017
___________________
JOSEPH F. BIANCO, District Judge:
degree assault (NYPL §§ 110/120.00(1)).
(Resp. Aff., ECF No. 7, at ¶ 8; see also T. 1
1402-03.) On July 2, 2013, the trial court:
(1) set aside the second-degree assault conviction pursuant to New York Criminal Procedure Law (“CPL”) § 330.30; (2) sentenced
petitioner to concurrent terms of seven and
one-half years and two and one-half years of
post-release supervision for the two weaponpossession convictions; and (3) sentenced petitioner to time served for his attempted assault conviction. (S. 2 at 6, 23.) Subsequently,
the Supreme Court, Appellate Division, Sec-
On March 7, 2016, Richard Davidson
(“petitioner” or “Davidson”) petitioned this
Court for a writ of habeas corpus, pursuant to
28 U.S.C. § 2254, challenging his conviction
in New York State Supreme Court (the “trial
court”) on eight grounds. Following a jury
trial, petitioner was convicted of the lesser included offense of second-degree assault
(New York Penal Law (“NYPL”)
§ 120.05[2]), two counts of second-degree
criminal possession of a weapon (NYPL
§ 265.03[1][b] and [3]), and attempted third
1
“T.” refers to the trial transcript. (ECF Nos. 7-1 to 72.)
2
3.)
“S.” refers to the sentencing transcript. (ECF No. 7-
1
I. BACKGROUND
ond Department (“Appellate Division”) reversed the trial court’s decision to set aside
the second-degree assault verdict and remanded the case to the trial court for resentencing, People v. Davidson, 122 A.D.3d
937, 938 (N.Y. App. Div. 2014), which resulted in a determinate term of four years of
imprisonment and two years of post-release
supervision served concurrently with his
other sentences. (Resp. Aff. ¶ 10).
The following facts are adduced from the
petition, respondent’s affidavit and memorandum in opposition, petitioner’s reply, petitioner’s supplemental affidavit in support of
his amendment to the petition, respondent’s
affidavit and memorandum in opposition to
supplemental papers, and the underlying record.
A. Factual Background
Petitioner challenges his conviction on
the following eight grounds: (1) the trial court
erred in denying a mistrial following the
question by the prosecutor to a defense witness that suggested that petitioner purchased
a silver handgun in Georgia; (2) the prosecutor committed misconduct during summation
in referencing petitioner’s post-arrest silence;
(3) the trial court erred in permitting the prosecutor’s peremptory challenges to remove
African-Americans from the jury panel in violation of Batson v. Kentucky, 476 U.S. 79
(1986); (4) the trial court improperly allowed
the People’s ballistics expert to testify with a
“reasonable degree of certainty” that the recovered shell casings were fired from the
same source; (5) the trial court issued an impermissible circumstantial-evidence charge
to the jury; (6) the Appellate Division erroneously reversed the trial court’s order to set
aside petitioner’s second-degree assault conviction, (Pet., ECF No. 1, at 6-12); (7) the indictment was defective because it was based
on legally insufficient evidence; and (8) petitioner was denied effective assistance of
counsel because counsel failed to move to
dismiss certain counts of the indictment, to
object to alleged trial-related prosecutorial
misconduct, and to effectively question a defense witness. (Aff. Supp. Petitioner’s
Amend. of Habear Pet. (“Pet. Amend.”), ECF
11, at 2; see also Resp. Aff. Opp’n Supp.,
ECF No. 13 (“Resp. Supp. Aff.”), at ¶ 10.)
For the reasons discussed below, the petition
is denied in its entirety.
1. Underlying Crime
On September 23, 2010, petitioner
punched Tony Hinds at Hinds’s workplace,
accused Hinds of having an affair with petitioner’s wife, and verbally threatened Hinds.
(T. 671-72.) Approximately two months
later, on November 21, 2010, petitioner again
appeared outside Hinds’s workplace. (Id. at
702, 754, 819-826.) He approached Hinds,
pulled a handgun from his pocket, and began
shooting. (Id. at 702-03, 824-27.) Multiple
bullets struck Hinds in the back of his legs as
he ran into the building. (Id. at 702-03, 708,
734, 748-53.) Petitioner pursued Hinds and
shot him again at close range. (Id. at 703,
824-27.) Petitioner then fled. (Id. 703-04,
828.) Hinds sustained multiple gunshot
wounds in his back, shoulder, and legs. (Id. at
1103-05.) Although he was bleeding heavily
when paramedics arrived, doctors diagnosed
only soft-tissue injuries that could be treated
by cleaning and dressing at the hospital. (Id.
at 568-71, 1114.)
2. Jury Selection
During jury selection, the People exercised peremptory challenges on eight African-American jurors, and petitioner raised
Batson objections. (Id. at 400-05.) First, the
People challenged Verace Skeete (id. at 201),
who had a pending charge with the Nassau
County District Attorney’s Office (id. at 792
80). The defense argued the prosecution violated Batson because four white individuals
who “had close relatives presently or in the
past prosecuted by this office” were not challenged. (Id. at 402-03.) The People argued
Skeete’s challenge was used because the
Nassau County DA’s Office was “currently
prosecuting him.” 3 (Id. at 414.)
city (id. at 234). Defense counsel alleged a
Batson violation based on the challenge to
Bailey because she stated “the prosecutor
treated her brothers fairly.” (Id. at 402.) The
People claimed they challenged Bailey because she was a nurse, an occupation the
DA’s office trains prosecutors not to look for
in jury selection. (Id. at 414-15.) Similarly,
the People pointed out that they challenged
another individual who was not AfricanAmerican “because she works within a hospital as a doctor.” (Id. at 415.) In addition,
the People perceived a “level of hostility”
from her body language—shrugging her arms
and rolling her eyes—“inside and outside the
courtroom.” (Id. at 414.)
Second, the People challenged Kimesha
McPherson (id. at 282), whose fiancé was
convicted of a felony by the Assistant District
Attorney handling the voir dire (id. at 22526). McPherson also stated that she did not
believe the court system, the ADA, or the
Nassau County DA’s office treated her fiancé
fairly. (Id. at 227-28.) Defense counsel argued the People violated Batson because they
did not challenge four white individuals
whose relatives either had been, or were in
the process of being, prosecuted by the office.
(Id. at 402-03.) The People claimed they
challenged McPherson “because her fiancé
was prosecuted only a year ago” by the same
ADA working on the instant case and “she
did not volunteer that information.” (Id. at
415-16.)
The People also challenged Wanda Capers (id. at 282), a police officer’s wife (id. at
229-30), who worked at a full-service law
firm that sometimes handles criminal matters
(id. at 230). The defense alleged a Batson violation because “[Capers’] husband is a police officer” and so “[c]learly pro-prosecution.” (Id. at 402.) The People reasoned,
however, that it challenged Capers because
“she works for a full-service law firm that includes criminal-type work . . . despite the fact
that her husband is in the NYPD.” (Id. at
418.) The People also noted that it also “got[]
rid of [a] white female” because “[s]he was
also a lawyer who had sat on a criminal jury
. . . [who] would have some knowledge of
criminal-type cases.” (Id. at 418.)
Third, the People challenged Noe Arastil
(id. at 281), a teacher and a native of Haiti (id.
at 275). The defense alleged a Batson violation because the People did not get anything
out of him that “deem[ed] him to be challenged.” (Id. at 402.) The People reasoned
the challenge was made because of potential
language issues, and Arastil’s body language
suggested he was not “receptive to what” the
prosecution was saying. 4 (Id. at 417-18.)
The People challenged Nkenge Fuller (id.
at 386), whose voir dire revealed that she witnessed a history of “ongoing domestic abuse”
toward her mother that resulted in regular
contact with police (id. at 350-51). The defense argued Fuller would be “pro-prosecu-
Fourth, the People challenged Carlene
Bailey (id. at 280), a nurse (id. at 414), whose
two brothers were convicted of crimes in the
3
4
The People noted that he sat with his arms crossed
while being questioned and he gave one word answers
to those questions. (T. 417.)
The record reflects that, although there were three
African-American prospective jurors in that round of
voir dire, Skreete was the only one challenged by the
prosecutor, with one being challenged by the defense
and one being seated as a juror. (T. 413-13.)
3
tion” because of her experience as “an individual who has been a victim.” (Id. at 40001.) The People reasoned Fuller’s experiences “hit[] too close to home” because “this
case does deal, to a certain extent, with the
way men treat women.” (Id. at 419-20.) In
addition, the People asserted that Fuller’s
body language—“she did not make eye contact” and “[s]he sat with her arms crossed”—
supported the challenge. (Id. at 420-21.)
as to Arastil and gave the defense an additional peremptory challenge because “all we
have on that situation is short answers and
[Arastil] folding his arms.” 5 (Id. at 431.)
2. Presentation of Evidence
At the outset of trial, during voir dire, the
court charged the jurors that “statements of
counsel are not evidence.” (Id. at 154.) The
court repeated its instruction prior to opening
statements, during trial, and during its final
charge. (Id. at 498-99, 805-06, 1316.)
Next, the People challenged Pasquale
Delva (id. at 387), who was unemployed (id.
at 346). Defense counsel alleged a Batson violation because Delva seemed “pro-prosecution.” (Id. at 400.) The People claimed Delva
was challenged because she was “an unemployed individual.” (Id. at 421.) In addition,
the People noted its peremptory challenge of
a white juror on the grounds of his unemployment. (Id. at 419.)
The People’s first witness was police officer Rita Bopp-Carroll. (Id. at 526.) Officer
Carroll testified to seeing the victim, Tony
Hinds, “sitting . . . on the floor . . . bleeding.”
(Id. at 531.) Hinds told the officer “he had
been shot.” (Id. at 532.) Second, the People
called Marc Pollack, a New York State Paramedic (id. at 563), who responded to the reported shooting (id. 568). Pollack testified to
seeing Officer Carroll rendering care to
Hinds, who “appeared to be suffering from
multiple gunshot wounds.” (Id. at 569.) The
People also called Dr. Venkadesh
Sasthakunar, who treated the victim at the
Nassau University Medical Center. (Id. at
1100.) Dr. Sasthkunar noted that Hinds suffered “multiple gunshot wounds.” (Id. at
1104-05.)
Finally, the People challenged Diane Nelson (id. at 388), whose husband was a pastor
in Brooklyn (id. at 357). Here, defense counsel argued that Nelson was “also seemingly
pro-prosecution” because her husband, like
the victim in petitioner’s case, was “a member of the clergy.” (Id. at 401.) The People
reasoned Nelson may judge the complainant
too strongly as a representation of her husband because of his alleged affair with the petitioner’s wife. (Id. at 421.)
In addition, the People called Tony
Hinds, the victim in this case, to testify. (Id.
at 650.) Hinds testified that, on November
21, 2010, petitioner arrived at his place of
work at 40 Lois Place, pulled out a gun, and
shot him multiple times. (Id. at 702-08.)
Hinds further testified that petitioner used a
silver handgun in the assault. (Id. at 703.)
The trial court found “the explanations of
the People regarding race-neutral reasons for
the peremptory challenges” acceptable and
denied the defendant’s Batson applications
with one exception. (Id. at 431.) The court
accepted the defendant’s Batson application
5
The trial court did not address the prosecutor’s concerns about Arastil’s language issues. It gave an additional peremptory challenge instead of re-seating the
juror because he had already been dismissed at the
time of the challenge. The government’s brief to the
Appellate Division indicated that the sworn jury was
composed of two African-Americans, two AsianAmericans, and eight Caucasians, with two AfricanAmerican alternate jurors also sworn. (See Resp.’s Br.
on Direct Appeal, ECF No. 7-15, at 8.) Although no
citation to the record was provided in the brief, opposing counsel did not dispute that assertion.
4
Next, Michael Bryan, Hinds’s employee, testified that he recognized petitioner as the man
approaching Hinds on November 21 from an
altercation in September, and to hearing gunshots shortly after seeing petitioner’s hands
moving. (Id. at 816, 822-25.) Later, Michael
Privnow, who lives nearby, also testified that
he heard approximately six or seven gunshots
on November 21, 2010. (Id. at 979, 985.)
which the court later denied (id. at 1233,
1236). Instead, the court allowed the defense
to draft a curative instruction that it read to
the jury (id. at 1236), instructing them that,
“despite the implication made during the
prosecution’s questions of Mathurin, there
has been no evidence that [petitioner] ever
purchased a gun” (id. at 1244-45). During
summation, the prosecutor stated “the defendant was calm” during his arrest and that
he “[w]asn’t yelling,” “screaming,” or “confused.” (Id. at 1303.) Defense counsel objected to the prosecution’s description, but
was overruled by the court. (Id.) At the end
of the trial, the court instructed the jurors that
“if two inferences can be drawn, one consistent with guilt or one consistent with lack
of guilt, you must give the inference consistent with lack of guilt to the defendant.”
(Id. at 1318-19.)
Finally, the People called Frank Miller, a
detective previously assigned to the ballistics
unit with the Firearm Identification Section,
as a ballistics expert. (Id. at 863-64.) During
his testimony, the trial court asked Miller if
he “form[ed] an opinion, with a reasonable
degree of certainty” as to whether seven shell
casings recovered from the scene were fired
from a common weapon. (Id. at 872-73.)
Miller “determined [the shell casings] were
fired by one common source firearm.” (Id.)
3. Verdict & Sentence
After calling all of its witnesses, the
prosecution moved to reduce one of the first
degree assault charges to the lesser included
crime of assault in the second-degree. (Id. at
1146-48.) The defense did not object to the
prosecution’s application, and the court
granted it. (Id. at 1147-48.)
The jury found petitioner guilty of the reduced count of second-degree assault (NYPL
§ 120.05[2]), two counts of second-degree
criminal possession of a weapon (NYPL
§ 265.03[1][b] and [3]), and attempted third
degree
assault
(NYPL
§ NYPL
§ 110/120.00(1). (T. 1402-03.) Petitioner
then moved to set aside the verdict pursuant
to CPL § 330.30. On July 2, 2013, the trial
court denied the motion to set aside in part
and granted the motion in part. (ECF No. 7
at 1.) For his weapon-possession convictions, petitioner was sentenced to concurrent
terms of seven and one-half years of imprisonment and two and one-half years of postrelease supervision, and to time served for his
attempted assault conviction. (Resp. Aff.
¶ 9.) The trial court set aside the second-degree assault conviction because the reduction
from first-degree assault improperly
During his case-in-chief, petitioner called
Filesta Mathurin as a witness. (Id. at 1185.)
On cross-examination, the prosecutor asked
Mathurin, “[D]id you ever see the silver
handgun [petitioner] had purchased in Georgia?” 6 (Id. at 1188.) Defense counsel objected to the question and moved to strike it.
(Id. at 1188-89.) The court sustained the objection and instructed the jury to disregard the
remark. (Id.)
Defense counsel also moved for a mistrial
on the basis of the question (id. at 1189),
6
Prior to the prosecutor’s question, the jury learned of
a “silver handgun” during Tony Hinds’ testimony
(T.703), but no witness had testified as to the origin of
that weapon.
5
leave applications. People v. Davidson, 25
N.Y.3d 950, 950 (2015).
amended the indictment and created a nonwaivable jurisdictional infirmity. (Id. ¶ 9.)
5. Collateral Challenge
4. Direct Appeal
On September 23, 2015, petitioner filed a
collateral challenge to his conviction under
C.P.L. § 440.10. (Resp. Supp. Aff. ¶ 6.) Petitioner argued that the indictment was defective because the People failed to offer sufficient evidence that petitioner possessed an
operable handgun as related to the second-degree criminal possession of a weapon charge.
(Id.) He also raised an ineffective of counsel
claim because of counsel’s alleged failure to
seek dismissal of the two second-degree
criminal possession of a weapon and the first
and third-degree assault counts in the indictment, and failure to object to the following
exchange during the People’s direct of Hinds:
On appeal, the Appellate Division reversed the trial court’s order to set aside the
second-degree assault, reinstated the verdict,
and remanded for re-sentencing. Davidson,
122 A.D.3d at 937. The court reasoned that
“the alleged amendment of the indictment
was not a non-waivable defect, and the defendant was required to make a timely objection at trial to preserve . . . a claim pursuant
to CPL 330.30(1).” Id. The petitioner was
then sentenced to a determinate term of four
years of imprisonment and two years of postrelease supervision served concurrently with
his other sentences. (Resp. Aff. ¶ 10.)
Meanwhile, petitioner argued on appeal
that: (1) the trial court erroneously denied defense counsel’s mistrial motion based on alleged prosecutorial misconduct; (2) the People improperly used its peremptory challenges in violation of Batson; (3) the trial
court erred by permitting the expert’s ballistics testimony; and (4) the trial court improperly gave a “two-inference” circumstantial
evidence charge to the jury. (Id. at ¶ 11.) The
Appellate Division rejected the claim of prosecutorial misconduct and the Batson claim on
the merits, and held that “[t]he defendant’s
remaining contentions are unpreserved for
appellate review” pursuant to C.P.L.
§ 470.05[2]. Davidson, 122 A.D.3d at 93940.
Q. Did you see the gun come in
through the door?
A. It was all dark. I didn’t put the
lights on. So, it was dark. So, he
pushed his hand in but then I saw the
smoke, I saw all the fire, all the after
shock of the discharge of the gun.
Q. You testified it was a silver handgun, correct?
A. Yes.
(T. 703; Pet. Amend. 3-5.) On November 12,
2015, the Nassau County Supreme Court denied petitioner’s motion, finding the claims
were “not supported by the record and should
have properly been raised in his appeal.”
People v. Davidson, Ind. No. 2550N-2010,
Mot. No. C-006, at 2 (Sup. Ct. Nassau
County Nov. 9, 2015 (Quinn, J.) (citing
C.P.L. § 440.10(2)(c)). Petitioner’s application for leave to appeal to the Appellate Division was denied on February 5, 2016, and his
initial leave to appeal to the Court of Appeals
Petitioner sought leave to appeal to the
New York State Court of Appeals from the
Appellate Division’s decision to reverse and
remand the trial court’s order to set aside and
the court’s affirmance of the convictions.
(Resp. Aff. ¶ 12.) In addition, petitioner indicated that he sought to raise every issue
raised on appeal before the Appellate Division. (Id.). The Court of Appeals denied both
6
from the Appellate Division’s denial was
withdrawn, effective May 4, 2016. (Resp.
Supp. Aff. ¶ 6.)
cated on the merits in State court proceedings unless the adjudication of
the claim—
B. Procedural History
(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
On March 7, 2016, petitioner filed the
first part of his pro se petition for writ of habeas corpus raising six claims pursuant to 28
U.S.C. § 2254. (ECF No. 1.) Respondent
filed its affidavit and memorandum of law in
opposition to the petition on May 2, 2016.
(ECF No. 7.) Petitioner then submitted a reply to respondent’s memorandum of law on
September 6, 2016. (ECF No. 12.)
(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
proceedings.
On July 11, 2016, this Court granted petitioner’s request to amend his habeas petition by filing supplemental claims; and, on
August 31, 2016, petitioner filed supplemental papers containing two additional
claims in support of the instant habeas petition. (ECF No. 11.) In turn, Respondent
filed an additional affidavit and memorandum of law in opposition to the supplemental
papers in support of the petition on September 16, 2016 (ECF No. 13), to which petitioner submitted his reply on October 11,
2016 (ECF No. 14). The Court has fully considered the parties’ submissions.
28 U.S.C. § 2554. “‘Clearly established Federal law’ means ‘the holdings, as opposed to
the dicta, of [the Supreme] Court’s decisions
as of the time of the relevant state-court decision.’” Green v. Travis, 414 F.3d 288, 296
(2d Cir. 2005) (quoting Williams v. Taylor,
529 U.S. 362, 412 (2000)).
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.
II. Standard of Review
To determine whether a petitioner is entitled to a writ of habeas corpus, a federal court
must apply the standard of review set forth
in 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), which provides, in relevant
part:
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 decision applied
clearly established federal law erroneously or
incorrectly. Rather, that application must
(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 adjudi7
claims as to the trial court’s denial of a mistrial due to alleged cross-examination-related
prosecutorial misconduct, Batson challenges,
and the Appellate Division’s reversal of the
trial court’s decision to set-aside the seconddegree assault conviction each lack merit,
and thus do not warrant federal habeas relief.
also be unreasonable.’” Gilchrist v. O’Keefe,
260 F.3d 87, 93 (2d Cir. 2001) (quoting Williams, 529 U.S. at 411). The Second Circuit
added that, while “‘[s]ome increment of incorrectness beyond error is required . . . the
increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.’” Id. (quoting Francis S.
v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).
Finally, “if the federal claim was not adjudicated on the merits, ‘AEDPA deference is not
required, and conclusions of law and mixed
findings of fact and conclusions of law are reviewed de novo.’” Dolphy v. Mantello, 552
F.3d 236, 238 (2d Cir. 2009) (quoting Spears
v. Greiner, 459 F.3d 200, 203 (2d Cir. 2006)).
A. Procedural Bar
1. Independent and Adequate State Ground
A petitioner’s federal claims may be procedurally barred from habeas review if they
were decided at the state level on “independent and adequate” state procedural
grounds. Coleman v. Thompson, 501 U.S.
722, 729–33 (1991); see, e.g., Michigan v.
Long, 463 U.S. 1032, 1041 (1983). A procedural rule is adequate if it is “firmly established and regularly followed by the state in
question.” Garcia v. Lewis, 188 F.3d 71, 77
(2d Cir. 1999). To be independent, the “state
court must actually have relied on the procedural bar as an independent basis for its disposition of the case” by “clearly and expressly stat[ing] that its judgment rests on a
state procedural bar.” Harris v. Reed, 489
U.S. 255, 261-65 (1989) (“[A] state court that
wishes to rely on a procedural bar rule in a
one-line pro forma order easily can write that
‘relief is denied for reasons of procedural default.’”); see, e.g., Allan v. Conway, No. 08–
CV–4894 (JFB), 2012 WL 7083, at *9
(E.D.N.Y. January 10, 2012) (“The appellate
court’s statement that petitioner’s claim was
‘unpreserved’ is sufficient to establish that it
was relying on a procedural bar as an independent ground in disposing of the issue.”);
Figueroa v. Grenier, No. 02 Civ.5444 DAB,
2005 WL 249001, at *8 (S.D.N.Y. February
3, 2005) (citing Harris, 489 U.S. at 265 n.12)
(same). In addition, a state court’s reliance
on an independent and adequate procedural
bar precludes habeas review even if the state
court also rejected the claim on the merits in
the alternative. See, e.g., Harris, 489 U.S. at
III. DISCUSSION
Petitioner argues that he is entitled to habeas relief because the trial court erred in:
(1) denying a mistrial due to alleged crossexamination-related prosecutorial misconduct; (2) allowing prosecutorial misconduct
during summation; (3) denying petitioner’s
Batson challenges; (4) allowing testimony
from the People’s ballistics expert; and (5) issuing a “two-inference” circumstantial-evidence charge to the jury. (Pet. 6-12; see also
Resp. Aff. ¶ 15.) He further contends that:
(1) the Appellate Division erroneously reversed the trial court’s order to set aside the
second-degree assault conviction; (2) the indictment was defective because it was based
on legally insufficient evidence; and (3) petitioner was denied effective assistance of
counsel. (Pet. 13; Pet. Amend. 3-5.)
For the reasons discussed below, the
Court denies the petition in its entirety. Petitioner’s claims as to the summation-related
prosecutorial misconduct, ballistics expert’s
testimony, improper jury instruction, ineffective assistance of counsel, and defective indictment are procedurally barred, and, in any
event, lack merit. In addition, petitioner’s
8
2. New York’s Preservation Doctrine
264 n. 10 (holding that “a state court need not
fear reaching the merits of a federal claim in
an alternative holding,” so long as the state
court “explicitly invokes a state procedural
bar rule as a separate basis for decision”); Glenn v. Bartlett, 98 F.3d 721, 725
(2d Cir. 1996) (same).
On direct appeal, the Appellate Division
determined that petitioner’s claims as to the
alleged summation-related prosecutorial misconduct, the admitted ballistics expert’s testimony, and the circumstantial evidence jury
instruction were unpreserved pursuant to
New York’s contemporaneous objection rule,
codified at C.P.L. § 470.05(2). See Davidson,
122 A.D.3d at 940 (“The defendant’s remaining contentions are unpreserved for appellate
review (see CPL 470.05 [2]), and we decline
to review them in the exercise of our interest
of justice jurisdiction.”).
A federal habeas court may not review a
procedurally barred claim on the merits unless the petitioner can demonstrate “cause for
the default and actual prejudice as a result of
the alleged violation of federal law, or
demonstrate that failure to consider the
claim[] will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750.
A petitioner may demonstrate cause by showing one of the following: “(1) the factual or
legal basis for a petitioner’s claim was not
reasonably available to counsel, (2) some interference by state officials made compliance
with the procedural rule impracticable, or
(3) the procedural default was the result of ineffective assistance of counsel.” McLeod v.
Graham, No. 10 Civ. 3778, 2010 WL
5125317, at *3 (E.D.N.Y. Dec. 9, 2010) (citing Bossett v. Walker, 41 F.3d 825, 829 (2d
Cir. 1994)). Such prejudice can be demonstrated by showing that the error “worked to
his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Torres v. Senkowski, 316 F.3d 147, 152 (2d Cir. 2003) (citation omitted). A miscarriage of justice is
demonstrated in extraordinary cases, such as
where a “constitutional violation has probably resulted in the conviction of one who is
actually innocent.” Murray v. Carrier, 477
U.S. 478, 496 (1986). To overcome a procedural default based on a miscarriage of justice, the petitioner must demonstrate that
“more likely than not, in light of the new evidence, no reasonable juror would find him
guilty beyond a reasonable doubt.” House,
547 U.S. at 536.
“New York’s contemporaneous objection
rule provides that a party seeking to preserve
a claim of error at trial must lodge a protest
to the objectionable ruling ‘at the time of such
ruling . . . or at any subsequent time when the
[trial] court had an opportunity of effectively
changing the same.’” Whitley v. Ercole, 642
F.3d 278, 286 (2d Cir. 2011) (citing C.P.L.
§ 470.05(2))). “New York courts consistently
interpret § 470.05(2) to require that a defendant specify the grounds of alleged error in
sufficient detail so that the trial court may
have a fair opportunity to rectify any error.”
Garvey v. Duncan, 485 F.3d 709, 715 (2d Cir.
2007). Thus “[a] general objection is not sufficient to preserve an issue” because a “defendant must specifically focus on the alleged
error.” Id. at 714 (collecting state court authority); see also, e.g., McCall v. Capra, 102
F. Supp. 3d 427, 445 (E.D.N.Y. 2015) (“‘The
word objection alone [is] insufficient to preserve the issue for [appellate] review’ in the
New York state courts.” (quoting People v.
Tevaha, 644 N.E.2d 1342, 1342 (N.Y.
1994))); Umoja v. Griffin, No. 11 CV 0736,
2014 WL 2453620, at *21 (E.D.N.Y. May,
29 2014) (holding that petitioner’s claim was
procedurally barred despite “petitioner’s
counsel’s timely object[ions]” because
“counsel was not specific in his objections”); Adams v. Artus, No. 09–cv–1941,
9
F.3d at 104 (holding that “the contemporaneous objection rule is firmly established and
regularly followed New York procedural
rule”). The Appellate Division’s holding was
independent because it “clearly and expressly
stat[ed] that its judgment rests on a state procedural bar.” Reed, 489 U.S. 263; see also
Allan, 2012 WL 7083, at *9 (“The appellate
court’s statement that petitioner’s claim was
‘unpreserved’ is sufficient to establish that it
was relying on a procedural bar as an independent ground in disposing of the issue.”).
2012 WL 1077451, at *7 (E.D.N.Y. Feb. 24,
2012) (finding that because counsel “twice
only stated ‘Objection’ . . . these objections
did not likely meet the specificity required to
be preserved on appeal under New York’s
preservation rule.”).
The Second Circuit has “held repeatedly
that the contemporaneous objection rule is a
firmly established and regularly followed
New York procedural rule.” Downs v. Lape,
657 F.3d 97, 104 (2d Cir. 2011) (citing Whitley, 642 F.3d 278, 286-87 (2d Cir. 2011);
Richardson v. Greene, 497 F.3d 212, 219 (2d
Cir. 2007); Garvey, 485 F.3d at 718; Taylor
v. Harris, 640 F.2d 1, 2 (2d Cir. 1981) (per
curiam)). Furthermore, the Second Circuit
has “observed and deferred to New York’s
consistent application of its contemporaneous objection rules.” Garcia, 188 F.3d at 79;
see also Bossett, 41 F.3d at 829 n.2 (respecting state court’s application of § 470.05(2) as
an adequate bar to federal habeas review);
Fernandez v. Leonardo, 931 F.2d 214, 216
(2d Cir. 1991) (noting that failure to make objection at trial constitutes adequate procedural default under § 470.05(2)). Thus the
New York preservation doctrine provides an
independent and adequate ground for decision for the purposes of habeas review. See
id.; Glenn, 98 F.3d at 724–25 (finding that
failure to preserve issue for appeal was an adequate and independent state law ground precluding federal habeas review).
In particular, petitioner’s summation related prosecutorial misconduct claim was unpreserved despite defense counsel’s single
“objection” to the prosecution’s description
of petitioner’s demeanor because “[a]lthough
petitioner’s counsel[] timely objected to the
prosecutor’s comments at issue . . . counsel
was not specific in his objections.” Umoja,
WL 2453620, at *21; Adams, 2012 WL
1077451, at *7 (finding that because counsel
“twice only stated ‘Objection’ . . . these objections did not likely meet the specificity required to be preserved on appeal under New
York’s preservation rule”). Similarly, petitioner’s ballistics expert evidentiary claim
and jury instruction claim are unpreserved
because petitioner never objected (see T.
872-73, 1318-19), so “the [trial] court” did
not have an “opportunity of effectively
changing” the alleged errors, C.P.L.
§ 470.05(2). Thus, these unpreserved claims
are procedurally barred from federal habeas
review.
3. Summation-Related Prosecutorial Misconduct, Ballistics Expert’s Testimony, and
Jury-Instruction Claims
In addition, petitioner has not demonstrated cause for, or actual prejudice resulting
from, the default. First, he has offered no explanation for why he failed to contemporaneously object to these perceived errors at trial,
and thus has not shown “cause” for the procedural default. Second, he has not shown
prejudice because, as discussed below, each
of these claims fails on the merits and the evidence of his guilt was overwhelming. See
Here, the Appellate Division properly decided the summation-related prosecutorial
misconduct claim, ballistics expert evidentiary claim, and jury instruction claim on adequate state procedural grounds, holding that
these “contentions [were] unpreserved for appellate review” under § 470.05(2)). Davidson, 122 A.D.3d at 940; see Downs, 657
10
4. Ineffective Assistance of Counsel and Defective Indictment Claims
“[T]here is no dispute that Section 440.10 is
firmly established and regularly followed.”
Pierotti v. Walsh, 834 F.3d 171, 177 (2d Cir.
2016); see, e.g., Sweet, 353 F.3d at 140 (ruling that the state court’s use of 440.10(2)(c)
to deny a vacatur claim “procedurally defaulted [the vacatur claim] for the purposes of
federal habeas review”); Garcia v. Lee, 10CV05287 (JPO) (JLC), 2012 WL 3822137, at
*19 (S.D.N.Y. Aug. 28, 2012) (holding that
“C.P.L. 440.10(2)(c) [is] ‘a state law ground
that is independent of the federal question
and adequate to support the judgment’”)
(quoting Walker v. Martin, 562 U.S. 307, 315
(2011)).
Similarly, petitioner’s motion to vacate
his judgment of conviction on claims of ineffective assistance of counsel and defective indictment pursuant to C.P.L.R. § 440.10(h)
are procedurally barred on independent and
adequate state grounds. The Nassau County
Supreme Court denied petitioner’s motion in
its entirety and found that his claims were
“not supported by the record and should have
properly been raised in his appeal” pursuant
to C.P.L. § 440.10(2)(c). Davidson, Ind. No.
2550N-2010, Mot. No. C-006, at 2. Section
440.10(2)(c) requires the state court to deny
a motion to vacate a judgment when,
“[a]lthough sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from
such judgment, adequate review of the
ground or issue raised upon the motion, no
such appellate review or determination occurred owing to the defendant’s unjustifiable
failure [to raise the issue on direct appeal].”
N.Y. Crim. P. L. § 440.10(2)(c). “The purpose of this rule ‘is to prevent [Section]
440.10 from being employed as a substitute
for direct appeal when [the] defendant was in
a position to raise an issue on appeal . . . or
could readily have raised it on appeal but
failed to do so.’” Sweet v. Bennett, 353 F.3d
135, 139 (2d Cir. 2003) (quoting People v.
Cooks, 491 N.E.2d 676 (N.Y. 1986)).
Here, the state court based its decision to
deny petitioner’s ineffective assistance of
counsel and defective indictment claims on
§ 440.10(2)(c) and found neither claim to be
“supported by the record.” Davidson, Ind.
No. 2550N-2010, Mot. No. C-006 (Quinn,
J.), at 2. “[W]here the basis for an ineffective
assistance of counsel claim was clear from
the face of the record and thus could have
been raised on direct appeal, a defendant’s § 440.10 motion must be denied.”
Figueroa v. Heath, No. 10–CV–0121 (JFB),
2011 WL 1838781, at *6 (E.D.N.Y. May 13,
2011) (finding that “[t]he Second Circuit has
made clear that a denial of a § 440.10 motion
for failure to raise a claim on direct appeal
constitutes an ‘independent and adequate’
state procedural ground . . . [that] bars federal
habeas review of a petitioner’s claims”) (collecting cases). Because petitioner failed to
raise each claim on direct appeal, the state
court’s reliance on § 440.10(2)(c) to deny
them provides an independent and adequate
state procedural bar to habeas review. See
Murden v. Artuz, 497 F.3d 178, 196 (2d Cir.
2007) (“Where the basis for a claim of ineffective assistance of counsel is well established in the trial record, a state court’s reliance on subsection (2)(c) provides an independent and adequate procedural bar to federal habeas review.” (citing Sweet, 353 F.3d
Torres, 316 F.3d at 152; McLeod, 2010 WL
5125317, at *3; People v. Hudgins, No. 07–
CV–01862–(JFB), 2009 WL 1703266, at *6
(E.D.N.Y. June 18, 2009). Petitioner has also
failed to show this case would result in a miscarriage of justice if the Court failed to review the claims on the merits because he has
not demonstrated that “more likely than not
. . . no reasonable juror would find him guilty
beyond a reasonable doubt.” House, 547
U.S. at 536-38. Thus, these claims are procedurally barred.
11
arguments provides grounds for habeas relief
in the instant case.
at 140)); St. Helen v. Senkowski, 374 F.3d
181, 183 (2d Cir. 2004) (“[T]he failure to
have raised the claim on direct review now
forecloses further collateral review in state
court.”); Aparicio v. Artuz, 269 F.3d 78,
91 (2d Cir. 2001) (“New York does not otherwise permit collateral attacks on a conviction when the defendant unjustifiably failed
to raise the issue on direct appeal.”); Whitehead v. Haggett, 12-cv-04946 (AMD), 2017
WL 491651, at *8 (E.D.N.Y. Feb. 6, 2017)
(finding that, where a petitioner “unjustifiably failed to argue [an] ineffective assistance claim on direct appeal despite a sufficient record, and consequently waived the
claim under § 440.10(2)(c) . . . [the] claim is
procedurally defaulted for the purposes of
federal habeas review as well” (citing Sweet,
353 F.3d at 140)).
1. Prosecutorial Misconduct Claims
a. Legal Standard
“A criminal conviction ‘is not to be
lightly overturned on the basis of a prosecutor’s comments standing alone’ in an otherwise fair proceeding.” Gonzalez v. Sullivan, 934 F.2d 419, 424 (2d Cir. 1991) (quoting United States v. Young, 470 U.S. 1, 11
(1985)). “It is ‘a rare case’ in which a prosecutor’s improper comments are ‘so prejudicial that a new trial is required.’” United
States v. Newton, 369 F.3d 659, 680 (2d Cir.
2004) (quoting Floyd v. Meachum, 907 F.2d
347, 348 (2d Cir. 1990)); see also United
States v. Shareef, 190 F.3d 71, 78 (2d Cir.
1999) (“[P]rosecutorial misconduct is a
ground for reversal only if it causes the defendant ‘substantial prejudice.’”); Johnson v.
Conway, No. 08–CV–3302 (DLI), 2010 WL
3942897, at *6 (E.D.N.Y. Oct. 6, 2010) (noting that “the propriety of comments made by
a prosecutor during summation generally
does not present a meritorious federal question”). For prosecutorial misconduct to
amount to constitutional error, “it is not
enough that the prosecutor’s remarks were
undesirable or even universally condemned.” Darden v. Wainwright, 477 U.S.
168, 181 (1986). Instead, the prosecutor’s
comments “must represent ‘egregious misconduct.’” Celleri v. Marshall, No. 07–CV–
4114 (JFB), 2009 WL 1269754, at *17
(E.D.N.Y. May 6, 2009) (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 642 (1974));
see also Shareef, 190 F.3d at 78 (“Remarks
of the prosecutor in summation do not
amount to a denial of due process unless they
constitute ‘egregious misconduct.’”).
Therefore, the Court can review these
claims only if petitioner shows cause for the
default and prejudice resulting therefrom, or
shows that a miscarriage of justice would result if the Court did not review the claims. As
discussed above, however, petitioner has
made no such showing. As such, these claims
are procedurally barred. Nevertheless, in an
abundance of caution, the Court has analyzed
all of petitioner’s procedurally defaulted
claims and determined that they fail on the
merits, as discussed below.
B. Merits Analysis
Petitioner raises eight grounds for habeas
relief: (1) prosecutorial misconduct during a
cross-examination; (2) prosecutorial misconduct during summation; (3) Batson violations; (4) the erroneous admission of ballistics expert testimony; (5) the issuance of a
two-inference charge to the jury; (6) the Appellate Division’s erroneous reversal of the
trial court’s order setting aside the second-degree assault conviction; (7) insufficiency of
the evidence in the indictment; and (8) ineffective assistance of counsel. None of these
To warrant relief, the Court must conclude that the comments “so infected the trial
12
based on the cumulative effect of the three alleged categories of improper remarks,” and
that the “case [did] not involve one, or a few
isolated, brief episodes; rather, it involve[d]
repeated and escalating prosecutorial misconduct from initial to closing summation.”
907 F.2d at 348. In that case, “the evidence
against [petitioner] was not heavy,” id. at
356, and the prosecutor: (1) made “references
to the Fifth Amendment [that] could well
have been interpreted by the jury as a comment on Floyd’s failure to testify,” id. at 353;
(2) “repeated remarks that the Fifth Amendment was ‘a protection for the innocent’ and
not ‘a shield’ for ‘the guilty’ [that] incorrectly
stated the law by diluting the State’s burden
of proof beyond a reasonable doubt and undermining the presumption of innocence,” id.
at 354; (3) “impermissibly asked the jury to
pass on her personal integrity and professional ethics before deliberating on the evidence, thereby implying that she personally
vouched for [a key witness’s] credibility,”
id.; and, (4) “characterized [the defendant],
who did not testify, as a liar literally dozens
of times throughout her opening and closing
summations,” id., and, “[e]ven more troubling, many of the prosecutor’s remarks erroneously equated Floyd’s alleged lies with
proof of guilt beyond a reasonable doubt,” id.
at 355. The Second Circuit held that “under
the totality of the circumstances presented
here, that the cumulative effect of the prosecutor’s persistent and clearly improper remarks amounted to such egregious misconduct as to render Floyd’s trial fundamentally
unfair.” Id. at 353.
with unfairness as to make the resulting conviction a denial of due process.” Darden, 477
U.S. at 181 (quoting Donnelly, 416 U.S. at
647). However, “not every trial error or infirmity which might call for the application
of supervisory powers correspondingly constitutes a ‘failure to observe that fundamental
fairness essential to the very concept of justice.’” Donnelly, 416 U.S. at 642 (quoting Lisenba v. California, 314 U.S. 219, 236
(1941)). Rather, a petitioner must show that
he “suffered actual prejudice because the
prosecutor’s comments . . . had a substantial
and injurious effect or influence in determining the jury’s verdict.” Bentley v. Scully, 41
F.3d 818, 824 (2d Cir. 1994). Factors considered in determining such prejudice include
“(1) the severity of the prosecutor’s conduct;
(2) what steps, if any, the trial court may have
taken to remedy any prejudice; and
(3) whether the conviction was certain absent
the prejudicial conduct” (the “Bentley factors”). Id. at 824. This test applies to improper questions in examining witnesses as
well as to improper comments made in summation. See United States v. Melendez, 57
F.3d 238, 241 (2d Cir. 1995) (summation); United States v. McCarthy, 54 F.3d 51,
55-56 (2d Cir. 1995) (cross-examination).
Moreover, “[w]hen analyzing the severity
of alleged misconduct, the court examines the
prosecutor’s statements in the context of the
entire trial.” Miller v. Barkley, No. 03 Civ.
8580 (DLC), 2006 WL 298214, at *2
(S.D.N.Y. Feb. 8, 2006) (citing Thomas, 377
F.3d at 244); see Jackson, 763 F.3d at
146 (“The habeas court must consider the
record as a whole . . . because even a prosecutor’s inappropriate or erroneous comments
or conduct may not be sufficient to undermine the fairness of the proceedings when
viewed in context.”). In Floyd, for example,
the court recognized one those “rare cases”
where prosecutorial misconduct was so egregious to warrant reversal, and, in doing so,
“emphasize[d] that [its] holding . . . [was]
b. Application
Here, petitioner argues two instances of
prosecutorial misconduct: (1) the prosecutor’s question to defense witness Mathurin
regarding the purchase of a silver handgun in
Georgia (T. 1188); and (2) his summation
comment that petitioner “was calm” during
13
his arrest and “[w]asn’t yelling,” “screaming,” or “confused” (id. at 1303). As set forth
below, petitioner has not met the standard
outlined by the Second Circuit in Bentley for
either claim or both claims collectively.
Next, the trial court’s remedy to this comment minimized any prejudice from the prosecutor’s question. Not only did the trial court
sustain petitioner’s objection before the witness answered and strike the question from
the record (T. 1188), it also allowed petitioner to draft a curative instruction for the
jury, instructing them that “despite the implication made during the prosecution’s questions of Filesta Mathurin, there has been no
evidence that [petitioner] ever purchased a
gun” (id. at 1244-45). See also Davidson,
122 A.D.2d at 939 (noting that the trial court
“promptly cut off the inquiry and offered a
proper curative instruction that served to
ameliorate any prejudicial effect that may
have resulted”). Furthermore, the trial court
repeatedly instructed the jury that attorney
statements are not evidence (id. at 154-55,
498-99, 805-06, 1316), and the jury is presumed to have followed this instruction, see
Weeks v. Angelone, 528 U.S. 225, 234
(2000). Accordingly, the “trial judge instructions” were sufficient to eliminate “any potential threat to petitioner’s constitutional
rights” and prejudice from the prosecutor’s
question. Thompson, 2007 WL 2020185, at
* 16; see also United States v. Rivera, 971
F.2d 876, 885 (2d Cir. 1992) (concluding that
the trial court’s instructions cured any prejudice arising from prosecutorial error); United
States v. Cruz, 797 F.2d 90, 93 n.1 (2d Cir.
1986) (holding that in light of the record, the
argument as a whole, and the curative instructions, prosecutor’s statement that “[t]he defense . . . has to convince you,” although improper, did not require reversal).
i. Cross-Examination Question
The prosecutor’s question to Mathurin—
“[D]id you ever see the silver handgun he had
purchased in Georgia?” (id. at 1188)—did
not “so infect[] the trial with unfairness as to
make the resulting conviction a denial of due
process,” Darden, 477 U.S. at 181. First, although the prosecutor’s question was improper, 7 it was not sufficiently severe to warrant habeas relief. Though the question improperly suggested petitioner had purchased
a silver hangun in Georgia, the People had
previously offered evidence through Hinds’s
testimony that petitioner possessed a silver
handgun, which he fired at Hinds. (T. 703.)
In light of this testimony, the prosecutor’s
single reference to the origins of the handgun
was not so egregious as to warrant relief under the first Bentley factor. Indeed, courts
have declined to find even more provocative
comments sufficiently severe to warrant habeas relief. See, e.g., Darden, 477 U.S. at 169
(holding that the prosecutor’s comments referring to the defendant as an “animal,” and
implying that “the death penalty would be the
only guarantee against a future similar act”
did not warrant a finding of prosecutorial
misconduct); Toro v. Herbert, No. 01-CV3386 (JBW), 2003 WL 22992059, at *6
(E.D.N.Y. Sept. 29, 2003) (holding that reference to a petitioner as a “cold-blooded murderer” was not “sufficiently egregious—
whether in isolation or when accumulated
[with other improper comments]—to have
denied petitioner a fair trial”).
Finally, under the third Bentley factor, petitioner has not shown that his conviction was
uncertain absent the prosecutor’s question.
As the Second Circuit has noted, “[o]ften, the
7
The question was improper because it assumed facts
not in evidence, as no witness had testified that the defendant purchased a handgun in Georgia. Further, the
prosecutor allegedly lacked a good faith basis to ask
this particular witness that question. (See T. 1224.)
14
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).
existence of substantial prejudice turns upon
the strength of the government’s case: if
proof is strong, then the prejudicial effect of
the comments tends to be deemed insubstantial; if proof of guilt is weak, then improper
statements are more likely to result in reversal.” United States v. Modica, 663 F.2d 1173,
1181 (2d Cir. 1981); see also Bentley, 41
F.3d at 824-25 (holding that a petitioner
failed to demonstrate a prejudice where there
was “compelling evidence in the prosecution’s case . . . [and] the prosecutor’s summation comments were both brief and isolated”); Bradley v. Meachum, 918 F.2d 338,
343 (2d Cir. 1990) (“The clear evidence of
guilt demonstrates that [petitioner] was not
prejudiced by the prosecutor’s improper remarks.”). Here, “compelling evidence in the
prosecution’s case” was presented at trial for
a jury to conclude beyond a reasonable doubt
that petitioner was guilty, and there is no significant probability that this “isolated” question contributed to petitioner’s conviction, or
“had a substantial or injurious effect on the
jury’s verdict.” Bentley, 41 F.3d at 825. Specifically, Hinds testified that on November
21, 2010, petitioner arrived at his place of
work, pulled out a gun, and shot him multiple
times. (Id. at 702-08.) Hinds further testified
to petitioner using a silver handgun. (Id. at
703.) In addition, Michael Bryan, an employee of Hinds, testified that he witnessed
the shooting and recognized petitioner
shooter. (Id. at 816, 822-25.) Privnow, who
lives nearby, also testified that he heard approximately six or seven gunshots on November 21, 2010. (Id. at 979, 985.) The People offered medical, photographic, and physical evidence to establish that Hinds suffered
multiple gunshot wounds (id. at 529-32, 56870, 702-04, 748-53, 1104-06), as well as ballistics evidence that the shell casings recovered from the scene came from a common
firearm (id. 872-73.) The Court, therefore,
concludes that the evidence of petitioner’s
guilt was overwhelming. See, e.g., Chrysler
In short, the prosecutor’s question about
the gun was not egregious, the trial court adequately remedied any prejudice, and the evidence of petitioner’s guilt was overwhelming even without the impermissible remark.
This case is thus a far cry from Floyd, where
misconduct permeated the trial and plainly
affected the fairness of the trial process itself.
See 907 F.2d at 356-57 (noting that prosecutor’s remarks, “which included both inflammatory comments and erroneous statements
of law, and which implicated [petitioner’s]
specific constitutional right to remain silent,
diverted the jury from the charges on which
[petitioner] was being tried, and from the fundamental principles by which a jury must discharge its duty”). Accordingly, based upon
the record, this Court cannot conclude that
the decision of the Appellate Division with
respect to the cross examination question was
“contrary to, or involved an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the
United States” or “was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). Thus petitioner’s request for habeas relief on this claim
is denied.
ii. Improper Summation Comments
In summation, the prosecutor commented
on petitioner’s arrest that he “[w]asn’t yelling. Wasn’t screaming. He was calm. He
wasn’t confused . . . because he knew why the
police were there . . . [and] why he was being
placed under arrest.” (T. 1303.) The Court
concludes that this comment also does not
warrant habeas relief.
15
83. “Where the specific remarks the prosecutor makes neither ‘touch upon [n]or bolster
the most potent of the government’s evidence,’ a court will not generally overturn a
verdict.” Miller, 2006 WL 298214, at *3
(quoting Elias, 285 F.3d at 192) (further noting that “a court will not ignore otherwise
strong evidence of a defendant’s guilt on the
basis of a single prejudicial remark” (citing Thomas, 377 F.3d at 245)). Such is the
case here. Habeas relief is not warranted because “the prosecutor’s statements were brief
and constituted only a small portion of [the]
summation,” Figueroa, 2011 WL 1838781,
at *6, and they did not amount to a significant
part of the State’s argument,” Miller, 2006
WL 298214, at *3. See also Escobar v. Senkowski, No. 02–cv–8066 (LAK/THK), 2005
WL 1307939, at *15 (S.D.N.Y. May 26,
2005) (“To render a trial fundamentally unfair . . . a prosecutor’s improper comments
during summation must be more than ‘short
and fleeting,’ but must instead be ‘so numerous and, in combination, so prejudicial that a
new trial is required.’” (quoting Tankleff v.
Senkowski,135 F.3d 235, 253 (2d Cir.
1998))); United States v. Rivera, 22 F.3d 430,
437 (2d. Cir. 1994) (“A prosecutor’s statements during summation, if improper, will
result in a denial of due process rights only if,
in the context of the entire summation, they
cause the defendant substantial prejudice.”).
In the context of this prosecutor’s sixty-fourpage summation, “the bulk of which focused
. . . on the weight of evidence against petitioner,” the brief remark that petitioner was
calm, not yelling or screaming, and not confused at the time of his arrest did not cause
substantial prejudice. See Figueroa, 2011
WL 1838781, at *6. Furthermore, even factoring in the improper cross-examination
question, this case still does not present “one
of those rare cases where the improper comments in a prosecutor’s summation were so
numerous and . . . so prejudicial” that habeas
relief is warranted. See Floyd, 907 F.2d at
The Second Circuit was faced with similar comments in United States v. Young, 630
Fed. App’x. 52, 54 (2d Cir. 2015), where the
prosecutor’s closing “emphasized the defendant’s non-reaction [when confronted
with incriminating evidence], claiming it was
evidence of his guilt.” The Second Circuit
did not address whether the comment was erroneous because
even assuming without deciding that
the district court erred in allowing
these isolated comments, the error
was harmless. The prosecutor’s comments were peripheral to the government’s case. In any event, “[r]emarks
of the prosecutor in summation do not
amount to a denial of due process unless they constitute egregious misconduct.”
Id. (citing Shareef, 190 F.3d at 78 (alteration
in original)). Like in Young, this Court need
not determine whether the prosecutor’s comments here were erroneous under the Fifth
Amendment because, even assuming they
were, they still do not warrant relief under the
Bentley factors. First, although the court did
not sustain the objection to this remark on petitioner’s demeanor, the comment does not
qualify as severe under the relevant case authority. See, e.g., Darden, 477 U.S. at 169
(reference to defendant as an “animal” and
citing death penalty as only deterrent to future misconduct); Toro, 2003 WL 22992059,
at *6 (reference to a petitioner as a “coldblooded murderer”); see also Young, 630
Fed. App’x at 54.
Furthermore, petitioner has not shown
that his conviction was uncertain but for the
comment on his calm demeanor under the
third factor. As noted above, even where a
prosecutor has made improper comments, habeas relief is not warranted unless those remarks rendered the trial, as a whole, “fundamentally unfair.” Darden, 477 U.S. at 18116
348; see also Johnson, 2010 WL 3942897, at
*6 (noting that “the propriety of comments
made by a prosecutor during summation generally does not present a meritorious federal
question”). On the contrary, as noted above,
the proof of guilt was strong in this case,
making any potential prejudice from the
prosecutor’s remarks minimal. See Thomas,
377 F.3d at 245; see also Modica, 663 F.2d at
1181 (“[I]f proof of guilt is strong, then the
prejudicial effect of the comments tends to be
deemed insubstantial.”).
juror”; and (3) “if the nonmoving party proffers a race-neutral explanation, the trial court
must determine whether the moving party has
carried his or her burden of proving that the
strike was motivated by purposeful discrimination.” Galarza v. Keane, 252 F.3d 630,
635-36 (2d Cir. 2001). (citing Batson, 476
U.S. at 96–98).
Under the second step, the prosecution’s
“explanation need not rise to the level justifying exercise of a challenge for cause,” but
must offer more of an explanation than a simple denial that the challenges were based on
discrimination. Id. at 97-98. The “race-neutral explanation need not be ‘persuasive, or
even plausible’ for the non-movant to meet
his obligation at step two of the Batson procedure and thereby advance the inquiry to the
third step.” Messiah v. Duncan, 435 F.3d
186, 195 (2d Cir. 2006) (quoting Purkett v.
Elem, 514 U.S. 765, 768 (1995)); see
also United States v. Thomas, 320 F.3d 315,
320 (2d Cir. 2003) (holding that prosecutor
defending Batson challenge is “not required,
when challenged, to persuade the court that
its race-neutral reasons for striking jurors are
valid or tactically sound; it is enough that
they are the government’s reasons”). The
Second Circuit has indicated that “[n]egative
experience with law enforcement, age, life
experience, type of employment, demeanor,
and inattentiveness have all been found to be
acceptable race-neutral bases for peremptory
challenges.” Moore v. Walker, No. 99-2754,
2000 WL 1721120 (Table), at *2 (2d Cir.
Nov. 16, 2000) (summary order) (collecting
cases). 8
In sum, in light of all of the Bentley factors, this Court finds that the prosecutor’s
summation statements were not severe and
did not cause petitioner to suffer any actual
prejudice that would have had an injurious effect or influence on the jury’s verdict. Thus,
there is no basis for habeas relief on this prosecutorial misconduct claim.
2. Batson Challenges
a. Legal Standard
In Batson, the Supreme Court set forth a
three-part test for a trial court evaluating
whether peremptory challenges were exercised in a discriminatory manner: (1) “a trial
court must decide whether the party challenging the strike has made a prima facie showing that the circumstances give rise to an inference that a member of the venire was
struck because of his or her race”; (2) “[i]f the
party making the Batson challenge establishes a prima facie case, the trial court must
require the nonmoving party to proffer a raceneutral explanation for striking the potential
8
See, e.g., Mullins v. Bennett, 228 F. App’x 55, 56 (2d
Cir. 2007) (noting “the general recognition of employment as a race-neutral reason for exclusion”); Messiah, 435 F.3d at 195 (prosecutor properly challenged
juror because he “had been prosecuted ten years earlier
. . . and because he had four relatives in state prison);
United States v. Rudas, 905 F.2d 38, 40-41 (2d Cir.
1990) (upholding prosecution’s peremptory challenge
of Hispanic venireperson, who expressed belief that
police officer had once used excessive force against
him); Black v. Rock, 103 F. Supp. 3d 305, 316
(E.D.N.Y. 2015) (holding that the prosecutor’s reasoning for excluding two jurors because of their “lack of
employment” was “not facially discriminatory”); Devorce v. Phillips, 04-CV-6155 (KMK) (MDF), 2013
WL 4406008, at *25 (S.D.N.Y. Aug. 7 2013) (finding
17
Nevertheless, “[t]he force of a prosecutor’s explanation for challenging a minority
member of a venire is obviously weakened
substantially by evidence that non-minority
members to whom the same explanation applies were not challenged.” United States v.
Alvarado, 951 F.2d 22, 25 (2d Cir. 1991); see
also Thomas, 320 F.3d at 318 (“‘Support for
the notion that there was purposeful discrimination in the peremptory challenge may lie
in the similarity between the characteristics
of jurors struck and jurors accepted. Where
the principal difference between them is race,
the credibility of the prosecutor’s explanation
is much weakened.’”); Jordan v. Lefevre, 293 F.3d 587, 594 (2d Cir. 2002) (“‘The
relative plausibility or implausibility of each
explanation for a particular challenge, assessed in light of the prosecution’s acceptance of jurors with similar circumstances, may strengthen or weaken the assessment of the prosecution’s explanation as
to other challenges and thereby assist the
fact-finder in determining overall intent.’”
(quoting Alvarado, 923 F.2d at 256)); see
also Miller-El v. Dretke, 545 U.S. 231, 232
(2005) (“If a prosecutor’s proffered reason
for striking a black panelist applies just as
well to a white panelist allowed to serve, that
is evidence tending to prove purposeful discrimination.”). However, “[d]ecisions in
other circuits have observed that an explanation for a peremptory challenge, though
weakened, is not automatically to be rejected
simply because it applies to a non-minority
venireperson who was not challenged” because “the prosecutor had put forward other
reasons, in addition to the trait shared with
the unchallenged jurors.” 9 Alvarado, 951
F.2d at 25.
“Throughout the Batson procedure, the
burden of proving that a strike was exercised
on an impermissible discriminatory ground
remains with the movant.” Messiah, 435 F.3d
at 195; see Farino v. Ercole, No. 07CV3592
(ADS), 2009 WL 3232693, at *23 (E.D.N.Y.
Sept. 30, 2009) (explaining that “the only
burden the prosecution bears during the Batson analysis” is whether it “offered race neutral explanations for the peremptory strikes”).
Thus, the third step “requires a trial judge to
make an ultimate determination on the issue
of discriminatory intent based on all the facts
and circumstances.” Id. (quoting Jordan v.
Lefevre, 206 F.3d 196, 200 (2d Cir. 2000)).
The Second Circuit has held “that a trial
judge has a ‘duty at the third stage [of
the Batson inquiry] to determine the credibility of the [non-moving party’s] proffered
[race-neutral] explanations’ for peremptorily
striking jurors.” Id. (quoting Lefevre, 206
that the prosecutor’s peremptory challenge because of
the juror’s “religious reservations . . . as far as making
a judgment” was race-neutral); Barbara v. Goord, No.
98–CV4569, 2001 WL 1776159, at *6 (E.D.N.Y. Dec.
27, 2001) (“Prosecutors routinely challenge [jurors
whose family members had been recently prosecuted
by the authorities], regardless of race, fearing bias
against the authorities.”); Green, 414 F.3d at 300
(“[T]he unfavorable demeanor of a venireperson has
been held to be a race-neutral explanation for a peremptory challenge.”).
(S.D.N.Y. May 17, 2011); see, e.g., United States v.
Novaton, 271 F.3d 968, 1004 (11th Cir. 2001), cert.
denied, 535 U.S. 1120 (2002); Matthews v. Evatt, 105
F.3d 907, 918 (4th Cir. 1997) (“Batson is not violated
whenever two veniremen of different races provide the
same responses and one is excused and the other is not
. . . because counsel must be entitled to make credibility determinations in exercising peremptory challenges.”); United States v. Spriggs, 102 F.3d 1245,
1255 (D.C. Cir. 1997); United States v. Stewart, 65
F.3d 918, 926 (11th Cir. 1995) (“We recognize that
failing to strike a white juror who shares some traits
with a struck black juror does not itself automatically
prove the existence of discrimination.”).
9
“The uneven application of a facially race-neutral explanation does not, by itself, necessarily establish the
invalidity of the explanation.” Robinson v. Smith, No.
09 Civ. 8222(GBD)(AJP), 2011 WL 1849093, at *20
18
Rice v. Collins, 546 U.S. 333, 341-42 (2006).
Thus, “[t]o secure habeas relief [under Batson], petitioner must demonstrate that a state
court’s finding of the absence of purposeful
discrimination was incorrect by clear and
convincing evidence, 28 U.S.C. § 2254(e)(1),
and that the corresponding factual determination was ‘objectively unreasonable’ in light
of the record before the court.” Miller-El, 537
U.S. at 348. Accordingly,
F.3d at 200) (brackets in original)). Ordinarily, the outcome determinative issue at step
three of the Batson procedure is “‘whether
counsel’s race-neutral explanation for a peremptory challenge should be believed.’” Id.
(quoting McKinney v. Artuz, 326 F.3d 87, 98
(2d Cir. 2003)). As the Supreme Court has
explained,
[t]he trial court has a pivotal role in
evaluating Batson claims. Step three
of the Batson inquiry involves an
evaluation of the prosecutor’s credibility, and “the best evidence [of discriminatory intent] often will be the
demeanor of the attorney who exercises the challenge.” In addition,
race-neutral reasons for peremptory
challenges often invoke a juror’s demeanor (e.g., nervousness, inattention), making the trial court’s
firsthand observations of even greater
importance. In this situation, the trial
court must evaluate not only whether
the prosecutor’s demeanor belies a
discriminatory intent, but also
whether the juror’s demeanor can
credibly be said to have exhibited the
basis for the strike attributed to the juror by the prosecutor.
when reviewing a Batson challenge
in the context of a habeas petition, a
trial court’s conclusion that a peremptory challenge was not exercised in a
discriminatory manner is entitled to a
presumption of correctness, except, inter alia, to the extent that the
trial court did not resolve the factual
issues involved in the challenge or if
the finding is not fairly supported by
the record.
Galarza, 252 F.3d at 635.
b. Application
Petitioner claims the trial court erred in
“permitting the impaneling of a jury which
was . . . biased against [him]” due to alleged
Batson violations. (Pet. 9.) The Appellate
Division held that “[t]he Supreme Court
properly denied the defendant’s Batson challenges,” and that its “determination that the
facially neutral explanations provided by the
prosecutor for excluding these prospective
jurors were not pretextual . . . is supported by
the record.” Davidson, 122 A.D.3d at 939.
Snyder v. Louisiana, 552 U.S. 472, 477
(2008) (citations omitted).
Because “these determinations of credibility and demeanor lie ‘peculiarly within a
trial judge’s province,’” reviewing courts
generally must “defer to [the trial court] ‘in
the absence of exceptional circumstances.’” Id. (citing Hernandez v. New York,
500 U.S. 352, 365-66 (1991) (plurality opinion)). Further, even though “[r]easonable
minds reviewing the record might disagree
about the prosecutor’s credibility [regarding
a prospective juror’s demeanor], . . . on habeas review that does not suffice to supersede
the trial court’s credibility determination.”
The Court concludes that the state courts’
determinations were not unreasonable applications of clearly established federal law. On
the contrary, the trial court properly applied
the Batson analysis with respect to each of the
challenged jurors. After defense counsel
raised a Batson challenge and set forth a
19
prima facie case, the court required the prosecutor to proffer race-neutral reasons for each
strike. As to jurors Skeete and McPherson,
the prosecutor’s reasons for the strike involved experiences with law enforcement,
which have been recognized as a valid, raceneutral reason for striking a juror. See Moore,
2000 WL 1721120 (Table), at *2. First, the
People challenged Skeete because the Nassau
County DA’s Office was “currently prosecuting him.” (T. 414.) Similarly, McPherson
was challenged because “she did not volunteer information” that “her fiancé was prosecuted” by the same ADA working on the instant case. (Id. at 415-16.) McPherson also
believed the DA’s office, and by extension
the ADA handling petitioner’s case, did not
treat her fiancé fairly. (Id. at 227-28.) Like
the prosecutor’s challenge of a juror in Messiah, the prosecutor here “could reasonably
have believed that a panelist who had been
prosecuted—even if only for a comparatively
minor offense—by the very authority prosecuting [the defendant] . . . might be unduly
sympathetic to the defendant and hostile to
the prosecutor.” 435 F.3d at 195; see also
Rudas, 905 F.2d at 40-44 (upholding prosecution’s peremptory challenge of venireperson who expressed belief that police officer
had once used excessive force against him).
The defense argued these strikes violated
Batson because white jurors with relatives
who either had been, or were currently being,
prosecuted were not challenged. (T. 402-04,
424-25.) Unlike those white jurors, however, Skeete himself was currently being
prosecuted by the office personally, and
McPherson’s fiancé was prosecuted by the
same ADA handling the instant case. Thus,
while the white jurors were somewhat similarly situated, “the prosecutor [] put forward
other reasons, in addition to the trait shared
with the unchallenged jurors,” Alvarado, 951
F.2d at 25, to establish that “the principal difference between them” was not race. See
Thomas, 320 F.3d at 318.
As to jurors Fuller and Bailey, the prosecutor’s reasons for the strikes included demeanor, another recognized race-neutral reason. See Green, 414 F.3d at 300. The prosecution challenged Fuller in part because “she
did not make eye contact,” “sat with her arms
crossed,” and consequently felt “she was already not engaging in the process.” (T. 42021.) Similarly, Bailey was challenged, in
part, because the prosecution perceived a
“level of hostility” from her body language
“inside and outside the courtroom.” See
McCrory v. Henderson, 82 F.3d 1243, 124748 (2d Cir. 1996) (peremptory challenges
“may legitimately be based . . . on the prosecutor’s observations of the prospective juror”); Brown, 973 F.2d at 121 (finding that a
juror’s hostile demeanor is a race-neutral reason to use a strike); Rivera v. Fischer, No. 04CV-2394 (JFB), 2006 WL 1084912, at *6
(E.D.N.Y. Apr. 25, 2006) (finding the state
court’s acceptance of the prosecutor’s reason
for striking three jurors because “they had
their arms crossed during the entire proceeding” was not unreasonable). Determinations
regarding the juror’s demeanor are entitled to
“great deference,” as the trial court is in the
unique position to observe the demeanor of
the juror and to evaluate the credibility of the
prosecutor’s race-neutral reason.
See
Snyder, 552 U.S. at 477 (holding that the
Court defers to the trial court’s “determinations of credibility and demeanor”); Hernandez, 500 U.S. at 365-66. On an independent
review of the record, the Court finds no reason, and petitioner provides none, to question
the trial court’s conclusion regarding this
race-neutral reason. 10 See Rice, 546 U.S. at
126.
10
In addition, the People challenged prospective juror
Arastil, a teacher and native of Haiti, in part because
he sat with his arms crossed while being questioned
and gave one word answers that suggested he was not
20
Next, the prosecution’s reason for challenging jurors Fuller and Nelson included
their life experiences. See Moore, 2000 WL
1721120 (Table), at *2. Along with her demeanor, the prosecutor challenged Fuller because of a belief that her past experience of
witnessing ongoing domestic abuse toward
her mother, which led to regular contact with
police, would “hit[] too close to home” since
petitioner’s case implicated “the way men
treat women.” (T. 419-20.) Similarly, the
People challenged Nelson because her husband, like the victim, was a pastor, and so the
prosecutor felt she may judge the victim too
strongly as a representation of her husband
due to the victim’s affair with petitioner’s
wife. (Id. at 421.) The trial court properly
concluded that these reasons were race-neutral, see Devorce, 2013 WL 4406008, at *25
(finding that the prosecutor’s peremptory
challenge because of the juror’s “religious
reservations . . . as far as making a judgment”
was race-neutral); Johnson v. Perez, No. 08–
CV–00522(MAT), 2011 WL 5187853, at *3
(W.D.N.Y. Nov. 1, 2011) (holding that the
prosecution “‘sustained his burden to show
that he has a facially neutral reason’ based
upon the fact that the prospective juror’s sister had been the victim of domestic abuse”),
and there is no basis to question its credibility
determination at step three. See Rice, 546
U.S. at 126.
Moore, 2000 WL 1721120 (Table), at *2.
First, Bailey was challenged because she is a
nurse—a profession the DA’s office trains
prosecutors to avoid in jury selection. (T.
414-15.) Bailey’s strike was supported by
the prosecution’s strike of a doctor in the
same round who was not African-American
“because she works within a hospital as a
doctor.” (T. 415.) Likewise, Capers was
challenged because she worked in a full-service law firm that handled criminal matters,
and the People also struck “a [white] lawyer
who sat on a criminal jury . . . [who] would
have some knowledge of criminal-type
cases.” (Id. at 418.) Finally, the People challenged Delva because she was unemployed,
(id. at 421), and a white juror, Brandon Silver, was also challenged for this reason (id. at
419). These explanations were racially neutral, see Mullins, 228 F. App’x at 56 (noting
“the general recognition of employment as a
race-neutral reason for exclusion”); Black,
103 F. Supp. 3d at 316 (holding that the prosecutor’s reasoning for excluding two jurors
because of their “lack of employment” was
“not facially discriminatory”), and, in light of
the People’s treatment of similarly-situated
white jurors, the trial court did not err in crediting them, see Jordan, 293 F.3d at
594 (“‘The relative plausibility or implausibility of each explanation for a particular
challenge, assessed in light of the prosecution’s acceptance of jurors with similar circumstances, may strengthen or weaken the
assessment of the prosecution’s explanation
as to other challenges and thereby assist the
Finally, the prosecutor’s reason for striking jurors Bailey, Capers, and Delva included
their employment or lack thereof. See
“receptive” to what the prosecution was saying. (T.
417-18.) The trial court sustained the Batson objection
as to Arastil and awarded petitioner an additional peremptory challenge as a remedy. This remedy was adequate to cure any harm to petitioner, especially in
light of the fact that there were other African-Americans on the jury. See Caston v. Costello, 74 F. Supp.
2d 262, 271 (E.D.N.Y. 1999) (“If reinstatement of the
improperly challenged venirepersons is not possible
because they have already been discharged, a court
may call additional jurors to the venire and grant the
defendant additional peremptory challenges.” (citing
McCrory, 82 F.3d at 1247)). Therefore, the fact that
the trial court granted the defense motion as to this juror in an abundance of caution does not undermine its
determination as to the sufficiency of the prosecutor’s
explanation for the exercise of the other peremptory
challenges.
21
Procedure Law was not cognizable on habeas
review). Specifically, the Appellate Division
reversed the Supreme Court’s grant to setaside petitioner’s second-degree assault conviction pursuant to C.P.L. § 330.30(1) because “[i]n considering a motion to set aside
or modify a verdict pursuant to C.P.L.
330.30(1), a trial court may only consider
questions of law, not fact,” and “a trial court
may only consider claims of legal error under
to C.P.L. 330.30(1) where those claims are
properly preserved for appellate review.”
Davidson, 122 A.D.3d at 938 (citations omitted). The Appellate Division continued:
fact-finder in determining overall intent.’”
(quoting Alvarado, 923 F.2d at 256)).
In short, petitioner has not demonstrated
that the “state court’s finding of the absence
of purposeful discrimination was incorrect by
clear and convincing evidence . . . and that
the corresponding factual determination was
‘objectively unreasonable’ in light of the record.” Miller-El, 537 U.S. at 348. Thus, this
Court finds that petitioner has failed to
demonstrate that the denial of his Batson claim in state court involved an unreasonable application of federal law, or an unreasonable determination of the facts. Accordingly, petitioner’s Batson claims do not
warrant relief.
Contrary to the Supreme Court’s determination, the alleged amendment
of the indictment was not a nonwaivable defect, and the defendant was
required to make a timely objection at
trial to preserve, for the Supreme
Court’s consideration, a claim pursuant to C.P.L. 330.30(1) that the indictment was impermissibly amended
(citing cases). As the defendant failed
to object at trial, he “waived” any
challenge to the reduction of the
count alleging assault in the first degree (People v. Ford, 62 NY2d at
279), and the Supreme Court was
without authority to set aside the verdict on that ground (citing cases).
3. Reversal of Motion to Set Aside SecondDegree Assault Conviction
Petitioner’s claim that the Appellate Division erred in reversing the trial court’s order to set aside the second-degree assault
conviction involves a question of state law
and, therefore, is not cognizable on federal
habeas
review.
See 28
U.S.C.
§ 2254(a) (“[A] district court shall entertain
an application for a writ of habeas corpus . . .
only on the ground that [the petitioner] is in
custody in violation of the Constitution or
laws or treaties of the United States.”); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)
(“[I]t is not the province of a federal habeas
court to reexamine state-court determinations
on state-law questions.”); see, e.g., Leath v.
Smith, No. 14-CV-2804 (WFK), 2015 WL
5730577, at *7 (E.D.N.Y. Sept. 28, 2015)
(holding that petitioner’s § 330.30 motion to
vacate his conviction “does not implicate federal law because it rests purely on enforcement of a state statutory right, and is as such
not cognizable on habeas review”); O’Halloran v. Gonyea, No. 11–CV–346, 2015 WL
93716, at *20 (N.D.N.Y. Jan. 7, 2015) (holding that petitioner’s claim that amendment of
an indictment violated New York Criminal
Id. Thus the Appellate Division’s decision to
reverse the trial court’s order—based entirely
“on [a] state law question[]”—does not warrant habeas relief. Estelle, 502 U.S. at 67-68.
5. Ballistics Expert’s Testimony
a. Legal Standard
It is well-settled that “[e]rroneous evidentiary rulings do not automatically rise to the
level of constitutional error sufficient to warrant issuance of a writ of habeas corpus.” Taylor v. Curry, 708 F.2d 886, 891 (2d
22
The Court disagrees. First, the testimony
was not erroneous under state—or even federal—law, as courts routinely allow such testimony. See, e.g., United States v. Gil, No.
16-524-cr, 2017 WL 689719, at *1 (2d Cir.
Feb. 21, 2017) (finding “no manifest error in
the district court’s decision to allow the government’s expert to testify that he reached his
conclusions to a reasonable degree of certainty in the field of ballistics”); United
States v. Ashburn, 88 F. Supp. 3d 239, 249
(E.D.N.Y. 2015) (holding that “the court will
limit [the ballistics expert] to stating that his
conclusions were reached to a ‘reasonable
degree of ballistics certainty’ or a ‘reasonable
degree of certainty in the ballistics field’”);
People v. Wilson, 121 A.D.3d 923, 923-24
(N.Y. App. Div. 2014) (holding that “the expert, who had . . . knowledge in the field of
ballistics, was properly allowed to testify as
to his opinion . . . with a reasonable degree of
scientific certainty”); People v. Middleton, 54
N.Y.2d 42, 49 (N.Y. 1981) (“[T]he test is not
whether a particular procedure is unanimously indorsed by the scientific community, but whether it is generally acceptable as
reliable.”); People v. Givens, 30 Misc. 3d
475, 478 (1980) (“This Court was unable to
find any cases where firearms and toolmark
identification was found to be unreliable or
no longer scientifically acceptable. Nor were
there instances where the testimony was
ruled to be inadmissible.”). Therefore, there
is no basis to conclude that the trial court’s
admission of the ballistics evidence was erroneous.
Cir. 1983); see also Estelle, 502 U.S. at
67 (“Habeas 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 demonstrate
that the error deprived him of his right to “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 determining whether a state court’s alleged evidentiary error deprived petitioner of
a fair trial, federal habeas courts engage in a
two-part analysis, examining (1) whether the
trial court’s evidentiary ruling was erroneous
under state law, and (2) whether the error
amounted to the denial of the constitutional
right to a fundamentally fair trial. See Wade
v. Mantello, 333 F.3d 51, 59-60 & n.7 (2d
Cir. 2003); Ramos v. Phillips, No. 104-CV1472-ENV. 2006 WL 3681150, at *6
(E.D.N.Y. Dec 12, 2006).
b. Application
Here, petitioner argues the trial court improperly permitted the People’s ballistics expert to testify that he formed an opinion “with
a reasonable degree of certainty” in his field
of expertise as to whether the shell casings
admitted into evidence were fired from a
common weapon. (T. 872-73.) Instead, petitioner argues that the witness should only
have been permitted to testify that it was
“more likely than not” that the shell casing
were fired from a common source. (See Pet.
9; Appellant’s Br. on Direct Appeal, ECF No.
7-14, at 62.)
Furthermore, even if the trial court’s admission of the expert testimony was erroneous under state law, there is no basis for the
Court to conclude that this error substantially
harmed petitioner and thus deprived him of
his constitutional right to a fair trial. The ballistics expert’s opinion that the shell casings
came from a common weapon with a “reasonable degree of certainty” was not critical
23
to proving petitioner’s guilt beyond a reasonable doubt because, even without that testimony, the evidence of petitioner’s guilt was
overwhelming in that it was based on several
witnesses’ firsthand accounts of the assault
(see, e.g., T. 702-08, 816, 822-25, 979, 985)
and medical, photographic, and physical evidence corroborating those accounts (id. at
529-32, 568-70, 702-04, 1104-06), as discussed above.
level of a due process violation”). In addition, “any allegedly erroneous jury instruction should be reviewed in light of the ‘wellestablished 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)).
For these reasons, the Court concludes
that the admission of the ballistics expert’s
testimony was neither contrary to, nor an unreasonable application of, clearly established
federal law. Therefore, habeas relief is denied on this issue.
In this case, the trial court’s “two-inference” instruction on circumstantial evidence
was not erroneous and certainly did not constitute a due process violation. The relevant
section of the jury instruction reads: “With
regards to circumstantial evidence, if two inferences can be drawn, one consistent with
guilt or one consistent with lack of guilt, you
must give the inference consistent with lack
of guilt to the defendant.” (T. 1318-19.)
Prior to the instruction, the trial court explained the difference between direct and circumstantial evidence with an example (id. at
1316-18), and went on to repeatedly explain
that “the People have the burden of proving
. . . beyond a reasonable doubt, each and
every element of the crimes charged, and the
defendant’s commission thereof” in order to
find the defendant guilty (id. at 1322-23).
6. Improper Jury Instruction Claim
Petitioner argues that the “two-inference”
jury instruction was erroneous and entitles
him to relief. Jury instructions violate due
process if they “fail[] to give effect to [the]
requirement” that the prosecution must prove
every element of a charged offense beyond a
reasonable doubt.
See Middleton v.
McNeil, 541 U.S. 433, 437 (2004) (per curiam). However, “a state prisoner making a
claim of improper jury instructions faces a
substantial burden.” Del Valle v. Armstrong,
306 F.3d 1197, 1200 (2d Cir. 2002). A petitioner must establish that “‘the ailing instruction by itself so infected the entire trial that
the resulting conviction violat[ed] due process,’ not merely [that] ‘the instruction is undesirable, erroneous, or even universally condemned.’” Id. at 1201 (quoting Henderson v.
Kibbe, 431 U.S. 145, 154 (1977)); see
also Middleton, 541 U.S. at 437 (explaining
that “not every ambiguity, inconsistency, or
deficiency in a jury instruction rises to the
This instruction was not improper. Although the court’s instruction differed from
the New York Criminal Jury Instructions on
circumstantial evidence, 11 such an inconsistency does not render an instruction erroneous so long as it accurately conveys the
correct legal principle. See United States v.
George, 779 F.3d 113, 117 (2d Cir. 2015)
(“A jury instruction is erroneous if it either
fails adequately to inform the jury of the law
or misleads the jury as to the correct legal
11
The New York Criminal Jury Instruction on
circumstantial evidence provides that the jury must
find the defendant guilty “[i]f the only reasonable
inference . . . is that the defendant is guilty of a charged
crime, and that inference is established beyond [a]
reasonable doubt.” C.J.I.2D (N.Y.).
24
7. Ineffective Assistance of Counsel
standard.”). Here, the instruction did just that
because it instructed the jury to resolve inferences stemming from circumstantial evidence in petitioner’s favor, and, in any event,
the other instructions were clear that the People bore the burden of proof. In addition,
“[b]oth the Second Circuit and the New York
Appellate Division have held that the ‘two inferences’ charge” does not “violate[] a defendant’s constitutional rights.” Garvin v.
Artest, No. 08 Civ. 05285(PAC)(FM), 2012
WL 1428904, at *5 (S.D.N.Y. Apr. 25, 2012)
(holding that “though undesirable [, the
charge] adequately conveyed the prosecution’s burden to the jury and was not contrary
to, or an unreasonable application of, clearly
established Supreme Court precedent.” (citing Jones v. Poole, 403 Fed. App’x 617, 61920 (2d Cir. 2010)); see also United States v.
Inserra, 34 F.3d 83, 91 (2d Cir. 1994) (entire
charge “fairly conveyed to the jury the concept of proof beyond a reasonable doubt” despite inclusion of two inference instruction);
People v. Ellis, 202 A.D.2d 301, 301 (N.Y.
App. Div. 1994) (“[T]he two inference instruction does not constitute reversible error
where, as here, the charge as a whole conveyed the prosecutor’s burden of proving defendant’s guilt beyond a reasonable doubt.”).
There is “no clearly established due process
rule, as determined by the Supreme Court,
[that] proscribes such references in jury
charges.” See Miller v. Phillip, 813 F. Supp.
2d 470, 483 (quoting Jones v. Poole, No. 07
Civ. 6587, 2009 WL 2633669 (S.D.N.Y.
Aug. 26, 2009)).
a. Legal Standard
Under the standard promulgated
in Strickland, 466 U.S. 668 (1984), a defendant is required to demonstrate two elements
in order to state a successful claim for ineffective assistance of counsel: (1) that “counsel’s representation fell below an objective
standard of reasonableness,” id. at 688; and
(2) that “there is a reasonable probability that,
but for counsel’s unprofessional errors, the
result of the proceeding would have been different,” id. at 694.
The first prong requires a showing that
counsel’s performance was deficient. However, “[c]onstitutionally effective counsel
embraces a ‘wide range of professionally
competent assistance,’ and ‘counsel is
strongly presumed to have rendered adequate
assistance and made all significant decisions
in the exercise of reasonable professional
judgment.’” Greiner v. Wells, 417 F.3d 305,
319 (2d Cir. 2005) (quoting Strickland, 466
U.S. at 690). The performance inquiry examines the reasonableness of counsel’s actions
under all circumstances, keeping in mind that
a “‘fair assessment of attorney performance
requires that every effort be made to eliminate the distorting effects of hindsight.’” Id. (quoting Rompilla v. Beard, 545
U.S. 374, 408 (2005)). In assessing performance, a court “must apply a ‘heavy measure
of
deference
to
counsel’s
judgments.’” Id. (quoting Strickland, 466 U.S. at
691). For instance, a “lawyer’s decision not
to pursue a defense does not constitute deficient performance if, as is typically the case,
the lawyer has a reasonable justification for
the decision,” DeLuca v. Lord, 77 F.3d 578,
588 n.3 (2d Cir. 1996), and “‘strategic
choices made after thorough investigation of
law and facts relevant to plausible options are
virtually unchallengeable,’” id. at 588 (quoting Strickland, 466 U.S. at 690). “However,
In sum, the trial court’s instructions clearly gave the jury adequate information on how to assess both circumstantial
and direct evidence, and clearly instructed the
jury that petitioner’s guilt needed to be established beyond a reasonable doubt. Therefore,
habeas relief is not warranted on this issue.
25
prosecutor asked Hinds to confirm that he
“testified it was a silver handgun” (T. 703);
(2) question Mathurin about Hinds’s alleged
assault of petitioner on September 23, 2010,
(the basis for petitioner’s attempted assault
conviction); and (3) seek dismissal of the two
second-degree criminal possession of a
weapon counts, as well as the first and thirddegree assault counts in the indictment. As
set forth below, each claim lacks merit.
‘strategic choices made after less than complete investigation are reasonable precisely to
the extent that reasonable professional judgments support the limitations on investigation.’” Id. (quoting Strickland, 466 U.S. at
690-91).
The second prong focuses on prejudice to
the petitioner, who is required to show that
there is “a reasonable probability that, but for
counsel’s unprofessional errors, the result of
the proceeding would have been different.”
Strickland, 466 U.S. at 694. “Reasonable
probability” means that the errors were of a
magnitude such that they “undermine confidence in the outcome.” Pavel v. Hollins, 261
F.3d 210, 226 (2d Cir. 2001) (quoting Strickland, 466 U.S. at 694). “An error by counsel,
even if professionally unreasonable, does not
warrant setting aside the judgment of a criminal proceeding if the error had no effect on
the judgment.” Lindstadt v. Keane, 239 F.3d
191, 204 (2d Cir. 2001) (quoting Strickland,
466 U.S. at 691). However, “[u]nlike the determination of trial counsel’s performance
under the first prong of Strickland, the determination of prejudice may be made with the
benefit of hindsight.” Hemstreet v. Greiner,
491 F.3d 84, 91 (2d Cir. 2007) (citations
omitted). “[T]he question to be asked in assessing the prejudice from counsel’s errors
. . . is whether there is a reasonable probability that, absent the errors, the factfinder
would have had a reasonable doubt respecting guilt.” Henry v. Poole, 409 F.3d 48, 6364 (2d Cir. 2005) (quoting Strickland, 466
U.S. at 695). The party alleging ineffective
assistance of counsel bears the burden of establishing both deficient performance and
prejudice. United States v. Birken, 336 F.3d
95, 100 (2d Cir. 2004).
With respect to the first Strickland prong,
petitioner has failed to demonstrate that
counsel’s performance fell below an objective standard of reasonableness. As to petitioner’s argument that counsel should have
objected to the question about the gun, there
are strategic reasons that an attorney might
“forgo objections: the conclusion that additional objections might have annoyed the
judge or jury; the possibility that the prosecutor, given enough rope, would alienate the
jury; the desire not to call attention to unfavorable evidence or to highlight unfavorable
inferences.” Taylor v. Fischer, No. 05 Civ.
3034 (GEL), 2006 WL 416372, at *5
(S.D.N.Y. Feb. 21, 2006). Thus, even if this
question was objectionable, counsel is not
necessarily deficient for declining to object to
it, especially given that counsel objected to
many other comments during jury-selection,
direct, redirect, cross-examinations, and summation, which suggests a level of strategy in
deciding when to object. See Quinones v.
Miller, 224 Fed. App’x 44, 49 (2d Cir. 2007)
(finding that counsel could have made “a
strategic decision not to object, believing that
an objection would only serve to highlight the
statement to the jury (citing United States v.
Grunberger, 431 F.2d at 1062, 1068-69 (2d
Cir. 1970))). The same is true for his lawyer’s decision not to ask Mathurin about
Hind’s alleged assault of petitioner on September 23, 2010, as that decision also qualifies as a strategic one and was not unreasonable in light of Mathurin’s admission that she
b. Application
Here, petitioner claims that he was denied
effective assistance of trial counsel because
his attorney failed to (1) object when the
26
guilt was overwhelming, as discussed above,
and, therefore, the trial court properly denied
petitioner’s motion to dismiss the assault and
possession counts. Accordingly, he cannot
satisfy the second prong of Strickland. As
such, his ineffective assistance of counsel
claim lacks merit and does not entitle him to
habeas relief.
was not “actually physically present with [petitioner] that day.” See Comfort v. LaValley,
No. 9:10-CV-677 FJS/ATB, 2011 WL
7640153, at *8 (N.D.N.Y. June 9, 2011)
(“Determining the questions to ask during
cross-examination and how to proceed during
trial are key parts of an attorney’s trial strategy.”); Chatmon v. Mance, No. 07-CV-9655
KMK GAY, 2011 WL 5023243, at *11
(S.D.N.Y. Oct. 20, 2011) (“The decision not
to call a particular witness is typically a question of trial strategy that appellate courts are
ill-situated to second-guess.” (quoting United
States v. Luciano, 158 F.3d 655, 660 (2d Cir.
1998))). Meanwhile, petitioner’s claim that
his lawyer should have moved to dismiss certain counts in the indictment is clearly refuted
by the trial record because defense counsel
did move for dismissal of both the assault and
weapon possession charges at trial. (See T.
1170-74.)
8. Insufficiency of the Evidence
a. Legal Standard
The law governing habeas relief from a
state conviction based on insufficiency of the
evidence is well established. A petitioner
“‘bears a very heavy burden’” when challenging 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)); Ponnapula v.
Spitzer, 297 F.3d 172, 179 (2d Cir.
2002) (“[W]e review the evidence in the light
most favorable to the State and the applicant
is entitled to habeas corpus relief only if no
rational trier of fact could find proof of guilt
beyond a reasonable doubt based on the evidence adduced at trial.”). A criminal conviction will stand so long as “a reasonable mind
Nonetheless, even assuming that petitioner was able to show that counsel’s performance was deficient, petitioner cannot show
that he was prejudiced as a result. Petitioner
has not satisfied the second Strickland prong
because there is no reasonable probability
that the proceedings would have yielded a
different outcome if his attorney had performed the actions at issue. On the question
about the color of the handgun, there are only
two bases for an objection to the prosecutor’s
question: that it was leading or that it assumed facts not in evidence. Both of these
defects could have easily been corrected by
simply rephrasing the question, so counsel’s
failure to object to this question did not prejudice petitioner, as the evidence would have
likely been admitted anyway. His decision
not to ask Mathurin about Hinds’s assault on
September 23, 2010, meanwhile, did not prejudice petitioner because Mathurin had no direct personal knowledge of such an assault,
and so such questioning, if the court had allowed it, would have added little to petitioner’s case. Furthermore, the evidence of
27
‘might fairly conclude guilt beyond a reasonable doubt.’” United States v. Strauss, 999
F.2d 692, 696 (2d Cir. 1993) (quoting United
States v. Mariani, 725 F.2d 862, 865 (2d Cir.
1984)). Even when “‘faced with a record of
historical facts that supports conflicting inferences [a court] must presume—even if it does
not affirmatively appear in the record—that
the trier of fact 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).
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 Fed. App’x 208, 210 (2d Cir.
2008) (quoting Jackson, 433 U.S. at 324).
When considering the sufficiency of the evidence of a state conviction, “[a] federal court
must look to state law to determine the elements of the crime.” Quartararo v.
Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999).
In addition, “[c]laims of deficiencies in
state grand jury proceedings are not cognizable in a habeas corpus proceeding in federal
court.” Lopez v. Riley, 865 F.2d 30, 32–33
(2d Cir. 1989); Davis v. Nassau, 524 F. Supp.
2d 182, 192 (E.D.N.Y. Nov. 29, 2007)
(“[A]lleged defects in a grand jury proceeding cannot provide grounds for habeas relief.”). “[C]laims based on the sufficiency of
the evidence presented to the grand jury are
not cognizable under federal law.” Warren v.
Ercole, 07-CV-3175 (JG), 2007 WL
4224642, at *10 (E.D.N.Y. Nov. 27, 2007);
see Fabre v. Taylor, No. 08cv5883 (DLC)
(AJP), 2009 WL 162881, at *18 (S.D.N.Y.
Jan. 20, 2009), report and recommendation
adopted, 2009 WL 1457169, at *1 (May 26,
2009) (holding that a “petitioner’s claim that
the evidence presented to the grand jury was
insufficient to indict him . . . is not cognizable
on habeas review”). Even if there were error,
“[a]ny error in the grand jury proceeding connected with the charging decisions [is] harmless beyond a reasonable doubt.” United
States v. Mechanik, 475 U.S. 66, 70 (1986).
Indeed, “federal grand jury rights are not cognizable on direct appeal where rendered
harmless by a petit jury, [and] similar claims
concerning a state grand jury proceeding are
a fortiori foreclosed in a collateral attack
brought in a federal court.” Lopez, 865 F.2d
at 32 (citing Mechanik, 475 U.S. at 70).
b. Application
As a threshold matter, petitioner’s argument that the grand jury indictment was defective because of insufficient evidence is
meritless and barred from federal habeas review. As noted above, it is “well-settled that
claims based on the sufficiency of the evidence presented to a state Grand Jury are not
cognizable under federal law and thus are not
reviewable in a habeas corpus petition.”
Walker v. Brown, No. 08–CV1254, 2009 WL
2030618, at *7 (E.D.N.Y. July 10, 2009)
(collecting cases). Even if there were error in
the grand jury proceeding, the jury’s conviction of petitioner transforms any defect into
harmless error. See Lopez, 865 F.2d at 32.
Furthermore, New York State law holds that
a conviction after trial bars review of the sufficiency of the grand jury evidence. C.P.L.
§ 230.30(6) (“The validity of an order denying any motion made pursuant to this section
is not reviewable upon an appeal from an ensuing judgment of conviction based upon legally sufficient trial evidence.”); see also
People v. Whitley, 83 A.D.3d 1107, 1108
(N.Y. App. Div. 2011) (“Since the defendant’s guilt was proven beyond a reasonable
doubt at trial, there can be no appellate review of the issue of whether a prima facie
case was presented to the grand jury.” (citing
28
cause he was identified by only one eyewitness, Hinds, the Court also finds that argument unpersuasive. As a threshold matter,
“[t]he Second Circuit has emphasized that
‘the testimony of a single, uncorroborated
eyewitness is generally sufficient to support
conviction.’” Martin, 2010 WL 1740432 at
*9 (quoting United States v. Danzey, 594
F.2d 905, 916 (2d Cir. 1979); see also Bentley, 41 F.3d at 825 (stating that eyewitness
testimony and identification constituted a
major portion of overwhelming evidence of
guilt); 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). Therefore, based on Hinds’s testimony
alone, the jury could have convicted petitioner. In any event, another witness testified
to seeing petitioner shoot Hinds on November 23, 2010. (See T. 816-27.) As such, petitioner is not entitled to habeas relief on his
insufficiency of the evidence argument.
cases)). Therefore, petitioner’s defective indictment claim based on insufficiency of evidence does not warrant habeas relief.
However, in an abundance of caution,
this Court will review petitioner’s claim as a
challenge to sufficiency of the evidence presented at trial. Petitioner argues that there
was insufficient evidence to convict on two
counts of second-degree criminal possession
of a weapon (NYPL § 265.03[1][b] and [3])
because no weapon was presented in evidence, and so no evidence existed that petitioner possessed an operable weapon. First,
petitioner’s claim that the state would be unable to prove the weapon possession charge
because no weapon was recovered is meritless. See Salmon v. Hansen, No. 1:10–CV–
32 (MAD/RFT), 2011 WL 6010913, at *10
(N.D.N.Y. Dec. 1, 2011) (“New York courts
have upheld convictions for criminal possession of a weapon . . . when the evidence supporting the charge was simply testimony of
the victim or a witness describing the alleged
weapon.” (collecting state authority)); Fabre,
2009 WL 162881, at *18, report and recommendation adopted, 2009 WL 1457169, at *1
(finding that “the State’s failure to recover a
weapon from Fabre’s person or home would
not have impacted whether the State could
have proven its case beyond a reasonable
doubt” for “committing second degree
weapon possession” (collecting state authority)). Second, evidence of the gun’s operability was established by the victim’s testimony that petitioner shot him (T. 703-04,
707-10), other witness testimony of hearing
gunshots (id. at 825, 985), and ballistics evidence (id. at 872-73). Finally, the victim’s
injuries were plainly consistent with gunshot
wounds. (Id. at 529-32, 568-70, 702-04,
1104-06.) Thus, the Court finds defendant’s
argument unpersuasive.
IV.
CONCLUSION
For the reasons set forth above, this Court
finds that petitioner has demonstrated no basis for relief under 28 U.S.C. § 2254. Therefore, the petition for a writ of habeas corpus
is denied. Because petitioner has failed to
make a substantial showing of a denial of a
constitutional right, no certificate of appealability
shall
issue.
See 28
U.S.C.
§ 2253(c)(2). The Clerk of the Court shall
close this case.
SO ORDERED.
________________________
Joseph F. Bianco
United States District Judge
Next, to the extent petitioner inaccurately
suggests that the evidence is insufficient be-
Date:
29
August 29, 2017
Central Islip, NY
*
*
*
Petitioner is proceeding pro se. Respondent
is represented by Laurie K. Gibbons of the
Nassau County District Attorney’s Office,
262 Old Country Road, Mineola, NY 11501.
30
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