Moore v. The Attorney General of The State of New York
Filing
29
MEMORANDUM AND ORDER For the foregoing reasons, this Court finds that petitioner has demonstrated no basis for habeas relief under 28 U.S.C. § 2254. Accordingly, this petition for a writ of habeas corpus is denied in its entirety. Because petiti oner 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 Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this O rder would not be taken in good faith, and, therefore, in forma pauperis status is denied for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court shall close this case. Ordered by Circuit Judge VJ-Joseph F Bianco on 8/7/2019. (Bollbach, Jean)
Case 2:17-cv-00474-JFB Document 29 Filed 08/07/19 Page 1 of 23 PageID #: 1950
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 17-CV-0474 (JFB)
_____________________
ROBERT K. MOORE,
Petitioner,
VERSUS
THE ATTORNEY GENERAL OF THE
STATE OF NEW YORK
Respondent.
MEMORANDUM AND ORDER
August 7, 2019
JOSEPH F. BIANCO, Circuit Judge (sitting by
designation):
Robert
K.
Moore
(“petitioner”),
proceeding pro se, petitions this Court for a
writ of habeas corpus pursuant to 28 U.S.C.
§ 2254, challenging his conviction in New
York state court. (See Pet., ECF No. 1.) On
October 23, 2014, following a jury trial in the
Supreme Court of New York, Suffolk County,
petitioner was convicted of attempted murder
in the second degree, in violation of New York
Penal Law § 125.25(1), as amended by
§110.00, and assault in the first degree, in
violation of New York Penal Law § 120.10(1).
On January 7, 2015, petitioner was sentenced
to concurrent determinate terms of eighteen
years’ imprisonment followed by five years of
post-release supervision.
In the instant habeas action, petitioner
challenges his conviction, claiming that his
constitutional rights were violated on the
following grounds: (1) petitioner was denied
a fair trial when the trial court improperly
indicated during voir dire that defense counsel
may, as a matter of strategy, advise petitioner
not to testify; (2) trial counsel was ineffective
for failing to resubmit a motion requesting
reinspection of the grand jury minutes;
(3) remarks by the prosecutor during his
opening and closing statements constituted
prosecutorial misconduct; (4) the trial court
improperly permitted the prosecutor to ask
questions about the petitioner’s pre-arrest and
post-arrest silence; (5) the trial court
improperly rejected petitioner’s pre-trial
suppression request; (6) the prosecution did
not establish his guilt beyond a reasonable
doubt and the verdict was against the weight
of the evidence; (7) the sentence imposed
Case 2:17-cv-00474-JFB Document 29 Filed 08/07/19 Page 2 of 23 PageID #: 1951
violated his constitutional rights; and (8) the
integrity of the grand jury proceeding was
impaired by errors. (See Pet. at 5-19.) For the
reasons discussed below, petitioner’s request
for a writ of habeas corpus is denied.
(“Morgan”), threw to the side. (Tr. at 313,
597.) An unidentified man picked up the pipe
with a towel and carried it away from the
scene. (Tr. at 382, 717-18; Ex. 14.) Petitioner
then kicked Maithya in the ribs and side of the
head several times, while Maithya was still
unconscious on the ground. (Tr. at 243.)
Petitioner also lifted up Maithya’s upper body
and dropped him back to the ground multiple
times while he was still unconscious. (Tr. at
317-18.)
I. BACKGROUND
A. Facts
The following facts are adduced from the
instant petition, respondent’s answer, and the
underlying record.
Three witnesses called 911 between 4:55
and 4:57 a.m. to report this physical
altercation, some believing that Maithya had
been killed during the incident. (Tr. at 244-45,
442-43, 598-99.) 4 Police Officers Robert
Piccarillo and Christopher Dietrich responded
to the scene after receiving a call through
dispatch for a fight, which incorrectly reported
that the suspect had left the scene. (Tr. at 95100, 152-53.) When the officers arrived at the
gas station at approximately 5:01 a.m., they
saw petitioner attempting to lift the still
unresponsive Maithya from the ground and
telling him to get up. (Tr. at 62, 155, 173-74.)
The officers observed a laceration on
petitioner’s left cheek, but he did not tell them
what had happened. (Tr. at 156.) The officers
did not see any blood on petitioner’s clothing
or boots, nor did they find any weapons at the
scene. (Tr. at 175-77, 181-82.) No individuals
at the scene responded to the officers’ requests
for information. (Tr. at 100-01, 179.) The
officers learned that the gas station had video
surveillance. (Tr. at 161-62, 331.) However,
the video was unclear on the gas station
monitor and it was not until after downloading
the video and viewing it at the police station
On January 19, 2014, at approximately
4:40 a.m., petitioner, petitioner’s wife,
complainant Solomon Maithya (“Maithya”),
and other individuals were at the BP gas
station at 1501 Straight Path, Wyandach, New
York. 1 (Tr. at 235-41.) 2 Petitioner was
retrieving something from the trunk of his car
when Maithya approached him from behind,
pulled out a 2 ½ to 3-foot pipe from his pants,
and struck petitioner in the back of the head
with the pipe. (Tr. at 182-84, 287-89; Ex. 14. 3)
Maithya swung the pipe at petitioner again, but
missed. (Tr. at 289-90.) Petitioner then
approached his wife, spoke to her briefly, and
she drove away from the gas station. (Tr. at
241, 255-56.) Petitioner then turned his
attention back to Maithya, either punching
Maithya or striking him in the face with the
pipe, knocking him out. (Tr. at 239-40, 312,
596-97, 607-14.) While Maithya was then
lying motionless on the side of the curb,
petitioner punched him, stomped on his head
at least twice, and repeatedly pounded the pipe
into Maithya’s chest. (Tr. at 163-64, 242-50,
314-15.) Petitioner then dropped the pipe,
which another man, Darnell Morgan
1
During trial, it was explained that, in the
neighborhood, petitioner was commonly referred to as
“Israel” and Maithya was commonly referred to as
“Africa.” (Tr. at 217-18.)
Because the men moved behind a gas pump out of view
of the camera and the recording system skipped multiple
times due to its age and low quality, the video does not
capture the complete encounter between petitioner and
Maithya. (Tr. at 216-20.)
2
“Tr.” refers to the trial transcript. (ECF Nos. 12-10 –
12-12.)
4
The three 911 calls were made by Morgan, Curtis
Singleton (“Singleton”), and gas station employee Sean
Ali (“Ali), all of which were played for the jury and all
three callers testified at trial.
3
Ex. 14 refers to People’s Exhibit 14, which contains
segments from the gas station surveillance video.
2
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that the officers were able to see more clearly
what had occurred. (Tr. at 113, 125-26, 13142, 163, 344.)
petitioner as the person who had beaten
Maithya. (H. at 65-73, 91-98.) 5
Ultimately, Police Officer Carmine
Pellegrino and Sergeant Nicolosi arrested
petitioner five days after the incident, on
January 24, 2014. (Tr. at 392-94.) Petitioner
was cooperative and made no statements to
law enforcement on the ride to the precinct.
(Tr. at 417-20.) After arriving at the precinct
around 6:50 p.m., Sergeant Nicolosi observed
an injury to the rear of petitioner’s head and
when asked about the injury, petitioner
responded that he had been in a fight a couple
of days before. 6 (Tr. at 396-97.) Petitioner
was then taken to an interview room.
Detectives Paglino and James Hughes entered
the room around 8:07 p.m., and before they
said anything to petitioner, petitioner said,
“you guys must be assigned to homicide now.”
(Tr. at 692-93.) Detective Paglino noticed
injuries on petitioner’s face and asked him
what happened to his face; petitioner replied
that he slipped and fell on ice while shoveling
snow. (Tr. at 693.) The detectives then left
the room. (H. at 78-79.) Detective Paglino
reentered the room around 9:10 p.m. and read
petitioner his Miranda rights, including
information about waiving those rights. (H. at
78-82.)
Detective Paglino testified that
petitioner repeatedly interrupted his reading of
the Miranda rights, saying “I don’t do that, put
that away.” (H. at 79-82.) After Detective
Paglino finished advising petitioner of his
rights, petitioner refused to sign the card or
speak to the detective. (H. at 82.)
While still at the scene, Sergeant Semetsis
spoke with petitioner and asked about the cut
on his cheek, but petitioner responded that
nothing happened and that he was “okay.” (Tr.
at 336-37.) In addition, Sergeant Semetsis
observed petitioner to be in an altered mental
state. (Tr. at 336-38.) The police kept
petitioner at the scene for approximately an
hour to an hour and one-half, though they were
unsure whether he was a witness, victim, or
suspect. (Tr. at 180, 205-07, 338-39.) By the
time Sergeant Semetsis arrived at the scene,
Maithya was already in an ambulance. (Tr. At
332.)
Sergeant Semetsis was initially
informed that Maithya had not suffered a
serious physical injury, and eventually he told
petitioner he could leave. (Tr. 332-39).
Maithya was transported by ambulance to
Good Samaritan Hospital, and was later
transferred to Stony Brook University
Hospital due to the severity and complexity of
his injuries. (Tr. at 554-56.) As a result of this
incident, Maithya suffered several skull and
facial fractures, as well as bleeding between
the brain and skull and in the brain itself. (Tr.
at 545-49.) He was severely neurologically
impaired and was intubated to assist his
breathing. (Tr. at 545-46.) Maithya remained
at Stony Brook University Hospital for four
months. (Tr. at 512.)
Once Sergeant Semetsis was notified of
the seriousness of Maithya’s injuries, the
investigation was assigned to Detective Steven
Paglino. (Tr. at 221-22, 340-41, 347-48.)
Detective Paglino viewed the surveillance
video and spoke to witnesses who identified
On September 17, 2014, a suppression
hearing began in Suffolk County Supreme
Court during which members of law
enforcement testified regarding statements
made by petitioner and the identification of
petitioner. In a written decision dated October
1, 2014, the court found that petitioner’s
5
“H.” refers to the transcript of the pre-trial suppression
hearing. (ECF Nos. 12-7 to 12-9.)
Activity Log, which included routine booking
questions, to make sure that prisoners were not injured
while in police custody. (Tr. at 395.)
6
Office Pellegrino testified that Sergeant Nicolosi
asked about the injury while filling out a Prisoner
3
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statements were voluntary. (See Hearing
Court Decision, ECF No. 12-1, at 64-66.)
Specifically, the court found that petitioner’s
statement “you guys must be assigned to
homicide now” was “unsolicited and
voluntary,” and that his statement about the
source of his injuries was “not in response to
an accusatory question, but was an inquiry
meant to catalog the physical well being of the
defendant.” (Id. at 66.) Finally, the court held
that petitioner’s statements at the crime scene
in the presence of the police were “noncustodial and voluntarily offered,” as they
were made in the context of “non accusatory
questioning by the police.” (Id.)
B. Procedural History
1. State Procedural History
On December 4, 2015, petitioner appealed
his conviction to the Second Department of the
New York State Appellate Division, in which
he argued that: (1) the trial court committed
reversible error when it indicated during voir
dire that defense counsel may, as a matter of
strategy, advise petitioner not to testify; (2) it
constituted prosecutorial misconduct when the
prosecutor stated that petitioner’s pre-arrest
silence was indicative of “consciousness of
guilt” and argued that petitioner’s convictions
were necessary because “there comes a point
in time when society demands humanity”;
(3) the trial court committed reversible error
when it allowed the prosecutor, during his
redirect examination of a police officer, to ask
questions about the petitioner’s post-arrest
silence; (4) the trial court committed reversible
error when it failed to suppress post-arrest,
pre-Miranda statements made by petitioner to
law enforcement; (5) the prosecution failed to
prove petitioner guilty beyond a reasonable
doubt and his convictions were against the
weight of the evidence; and (6) petitioner’s
sentence was harsh and excessive. (See App.
Div. Br. at 24-58, ECF No. 12-1.) 8 Petitioner
then filed a supplemental pro se brief on
February 16, 2016, adding that: (1) it
constituted prosecutorial misconduct for the
prosecutor to allow petitioner to stand trial on
Detective Paglino’s perjured/hearsay grand
jury testimony; (2) trial counsel
was
ineffective for failing to resubmit a motion
requesting reinspection of the grand jury
minutes; and (3) the trial court committed
reversible error when it denied petitioner’s
motion to dismiss the indictment for the
prosecutor’s failure to charge the grand jury
with the justification defense. (See Suppl.
App. Div. Br. at 9-12, ECF No. 12-2.)
Petitioner was tried in Suffolk County
Supreme Court starting on October 7, 2014.
During the trial, the prosecution presented
testimony
from
Maithya,
multiple
eyewitnesses at the gas station, members of
law enforcement, and expert witnesses
involved in the investigation.
During
Maithya’s testimony, he repeatedly stated that
he was unable to remember significant
portions of the incident. (Tr. at 491-514.)
Ultimately, at the close of the trial, the jury
found petitioner guilty of attempted murder in
the second degree, in violation of New York
Penal Law § 125.25(1), as amended by
§110.00, and assault in the first degree, in
violation of New York Penal Law §120.10(1).
(Tr. at 924.) On January 7, 2015, petitioner
was sentenced to concurrent determinate terms
of eighteen years of imprisonment followed by
five years of post-release supervision. (S. at
20-21.) 7 The court emphasized that it “did not
fully appreciate” the extent of Maithya’s
injuries prior to trial, when it had offered a
three-year sentence, and said that “what’s fair
after trial is not the same thing that was fair
before trial.” (S. at 19-20.)
7
8
“S.” refers to the transcript of petitioner’s sentencing.
(ECF No. 12-14.)
The Court uses the pagination assigned by the
electronic case filing system when citing to the
Appellate Division brief and the supplemental
Appellate Division brief.
4
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On September 14, 2016, the appeal was
denied in its entirety, on both procedural and
substantive grounds. See generally People v.
Moore, 37 N.Y.S.3d 158 (2d Dep’t 2016). In
affirming petitioner’s conviction, the Second
Department rejected his argument relating to
the pre-trial suppression hearing, holding that
the statements were either “spontaneous or
voluntary . . . or not the product of custodial
interrogation.” Id. at 159. In rejecting
petitioner’s argument relating to the
sufficiency of the evidence, the Second
Department held that his challenge was
unpreserved for appellate review because “he
failed to move for a trial order of dismissal
specifically directed at the errors he now
claims.” Id. Additionally, in “viewing the
evidence in the light most favorable to the
prosecution,” there was legally sufficient
evidence to disprove the petitioner’s
justification defense beyond a reasonable
doubt. Id. Furthermore, when conducting its
independent review of the weight of the
evidence, the court “accord[ed] great
deference to the jury’s opportunity to view the
witnesses, hear testimony, and observe
demeanor.” Id. In reviewing the underlying
record, the court concluded that “the jury’s
rejection of the defendant’s justification
defense and its verdict of guilt were not against
the weight of the evidence.” Id.
Finally, the Second Department found that
the sentence imposed was not excessive, and
that petitioner’s other contentions were “either
without merit or do not warrant reversal.” Id.
at 159-60.
Petitioner sought leave to appeal to the
New York State Court of Appeals, which was
denied on November 21, 2016. See People v.
Moore, 28 N.Y.3d 1074 (2016).
2. The Instant Petition
On January 24, 2017, petitioner moved
before this Court for a writ of habeas corpus,
pursuant to 28 U.S.C. § 2254, on the grounds
that: (1) he was denied a fair trial when the trial
court improperly indicated during voir dire
that defense counsel may, as a matter of
strategy, advise petitioner not to testify;
(2) defense counsel was ineffective for failing
to resubmit a motion requesting reinspection
of the grand jury minutes; (3) the prosecutor
committed prosecutorial misconduct when he
made improper remarks at trial; (4) the
prosecutor elicited improper testimony
regarding petitioner’s silence regarding selfdefense; (5) the trial court improperly rejected
petitioner’s pre-trial suppression request;
(6) the prosecution did not establish his guilt
beyond a reasonable doubt and the verdict was
against the weight of the evidence; (7) the
sentence imposed was harsh and excessive;
and (8) the integrity of the grand jury
proceeding was impaired by particular
mistakes. (See Pet. at 5-19.) On April 13,
2017, respondent filed a reply in opposition to
the petition. (See Resp’t’s Br., ECF No. 12.) 9
Thereafter, on May 12, 2017, petitioner
submitted a reply in further support of his
petition. (See Pet’r’s Reply Br., ECF No. 17.)
The Second Department also rejected
petitioner’s argument that improper statements
by the prosecutor deprived petitioner of his
right to a fair trial. Id. The court found that,
“[t]o the extent that some of the prosecutor’s
remarks were improper, those remarks did not
deprive the defendant of a fair trial, and any
other error in this regard was harmless, as there
was overwhelming evidence of the
defendant’s guilt, and no significant
probability that any error contributed to the
defendant’s conviction.” Id.
The Court has fully considered the parties’
submissions, as well as the underlying record.
9
The Court uses the pagination assigned by the
electronic case filing system when citing to the
respondent’s brief and its accompany exhibits.
5
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legal principle from [the Supreme Court’s]
decisions but unreasonably applies that
principle to the facts of [a] prisoner’s case.”
Id. at 413.
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 that court
concludes in its independent judgment that the
relevant state-court decision applied clearly
established federal law erroneously or
incorrectly. Rather, that application must 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)).
(d) An application for a writ of habeas
corpus on behalf of a person in
custody pursuant to the judgment of a
State court shall not be granted with
respect to any claim that was
adjudicated on the merits in State
court proceedings unless the
adjudication of the claim—
(1) resulted in a decision that was
contrary to, or involved an
unreasonable
application
of,
clearly established Federal law, as
determined by the Supreme Court
of the United States; or
(2) resulted in a decision that was
based on
an unreasonable
determination of the facts in light
of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254. “‘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 statecourt decision.’” Green v. Travis, 414 F.3d
288, 296 (2d Cir. 2005) (quoting Williams v.
Taylor, 529 U.S. 362, 412 (2000)).
III. DISCUSSION
A. Procedural Requirements
1. Exhaustion
As a threshold matter, a district court shall
not review a habeas petition unless “the
applicant has exhausted the remedies available
in the courts of the State.” 28 U.S.C.
§ 2254(b)(1)(A). Although a state prisoner
need not petition for certiorari to the United
States Supreme Court to exhaust his claims,
see Lawrence v. Florida, 549 U.S. 327, 333
(2007), petitioner must fairly present his
federal constitutional claims to the highest
state court with jurisdiction over them, see
Daye v. Attorney Gen. of N.Y., 696 F.2d 186,
191 n.3 (2d Cir. 1982) (en banc). Exhaustion
of state remedies requires that a petitioner
A decision is “contrary to” clearly
established federal law, as determined by the
Supreme Court, “if the state court arrives at a
conclusion opposite to that reached by [the
Supreme Court] on a question of law or if the
state court decides a case differently than [the
Supreme Court] has on a set of materially
indistinguishable facts.” Williams, 529 U.S. at
412-13. A decision is an “unreasonable
application” of clearly established federal law
if a state court “identifies the correct governing
6
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Coleman v. Thompson, 501 U.S. 722, 729-33
(1991); see, e.g., Michigan v. Long, 463 U.S.
1032, 1041 (1983). The procedural rule at
issue is adequate if it is “firmly established and
regularly followed by the state in question.”
Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir.
1999) (internal quotation marks omitted). To
be independent, the “state court must actually
have relied on the procedural bar as an
independent basis for its disposition of the
case,” by “clearly and expressly stat[ing] that
its judgment rests on a state procedural bar.”
Harris v. Reed, 489 U.S. 255, 261-63 (1989)
(internal quotation marks omitted). A state
court’s reliance on an independent and
adequate procedural bar precludes habeas
review even if the state court also rejected the
claim on the merits in the alternative. See, e.g.,
id. at 264 n.10 (holding that “a state court need
not fear reaching the merits of a federal claim
in an alternative holding,” so long as the state
court “explicitly invokes a state procedural bar
rule as a separate basis for decision”); Glenn v.
Bartlett, 98 F.3d 721, 725 (2d Cir. 1996)
(same).
“‘fairly presen[t]’ federal claims to the state
courts in order to give the State the
‘“opportunity to pass upon and correct”
alleged violations of its prisoners’ federal
rights.’” Duncan v. Henry, 513 U.S. 364, 365
(1995) (alteration in original) (quoting Picard
v. Connor, 404 U.S. 270, 275 (1971)).
However, “it is not sufficient merely that
the federal habeas applicant has been through
the state courts.” Picard, 404 U.S. at 275-76.
On the contrary, to provide the State with the
necessary “opportunity,” the prisoner must
fairly present his claims in each appropriate
state court (including a state supreme court
with powers of discretionary review), alerting
that court to the federal nature of the claim and
“giv[ing] the state courts one full opportunity
to resolve any constitutional issues by
invoking one complete round of the State’s
established appellate review process.”
O’Sullivan v. Boerckel, 526 U.S. 838, 845
(1999); see also Duncan, 513 U.S. at 365-66.
“A petitioner has ‘fairly presented’ his claim
only if he has ‘informed the state court of both
the factual and the legal premises of the claim
he asserts in federal court.’” Jones v. Keane,
329 F.3d 290, 294-95 (2d Cir. 2003) (quoting
Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir.
1997)). “Specifically, [petitioner] must have
set forth in state court all of the essential
factual allegations asserted in his federal
petition; if material factual allegations were
omitted, the state court has not had a fair
opportunity to rule on the claim.” Daye, 696
F.2d at 191-92 (collecting cases). To that end,
“[t]he chief purposes of the exhaustion
doctrine would be frustrated if the federal
habeas court were to rule on a claim whose
fundamental legal basis was substantially
different from that asserted in state court.” Id.
at 192.
The procedural bar rule is based on the
“comity and respect” that state judgments
must be accorded. House v. Bell, 547 U.S.
518, 536 (2006). Its purpose is to maintain the
delicate balance of federalism by retaining a
state’s rights to enforce its laws and to
maintain its judicial procedures as it sees fit.
Coleman, 501 U.S. at 730-31. Generally, the
Second Circuit has deferred to state findings of
procedural default as long as they are
supported by a “fair and substantial basis” in
state law. Garcia, 188 F.3d at 78. However,
there is a “small category” of “exceptional
cases in which [an] exorbitant application of a
generally sound [procedural] rule renders the
state ground inadequate to stop consideration
of a federal question.” Lee v. Kemna, 534 U.S.
362, 376, 381 (2002). Nevertheless, principles
of comity “counsel that a federal court that
deems a state procedural rule inadequate
should not reach that conclusion lightly or
without clear support in state law.” Garcia,
2. Procedural Bar
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.
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3. Application
188 F.3d at 77 (citation and internal quotation
marks omitted).
First, the Court concludes that Ground Six
of petitioner’s habeas petition, arguing both
that there was insufficient evidence to support
his conviction and that the prosecution failed
to meet their burden of proof (Pet. at 16.), is
not properly exhausted. Within this argument,
petitioner contends that the trial court provided
a “faulty justification charge” to the jury and
that witnesses admitted to being “prepped by
the prosecution.” (Pet. at 15-16.) As the
government suggests, these arguments were
not presented to the state court as a basis for
this claim and are entirely record-based. It is
well-settled that “[t]o properly exhaust a claim
that relies on errors or omissions that are
apparent from the record of trial or pretrial
proceedings, petitioner must raise it on direct
appeal to the Appellate Division and then seek
leave to appeal to the Court of Appeals.”
Anthoulis v. New York, No. 11 Civ. 1908
(BMC), 2012 WL 194978, at *3 (E.D.N.Y.
Jan. 23, 2012). Accordingly, the Court finds
that this claim has not been adequately
exhausted as petitioner did not set forth “the
essential factual allegations” on direct appeal
and thus deprived the state court of a “fair
opportunity to rule on the claim.” See Daye,
696 F.2d at 191.
If a claim is procedurally barred, a federal
habeas court may not review it on the merits
unless the petitioner demonstrates both cause
for the default and prejudice resulting
therefrom, or if he demonstrates that the
failure to consider the claim will result in a
miscarriage of justice. Coleman, 501 U.S. at
750. A petitioner may demonstrate cause by
showing one of the following: “(1) the factual
or legal basis for a petitioner’s claim was not
reasonably available to counsel, (2) some
interference by state officials made
compliance with the procedural rule
impracticable, or (3) the procedural default
was the result of ineffective assistance of
counsel.” McLeod v. Graham, No. 10 Civ.
3778(BMC), 2010 WL 5125317, at *3
(E.D.N.Y. Dec. 9, 2010) (citing Bossett v.
Walker, 41 F.3d 825, 829 (2d Cir. 1994)).
Prejudice can be demonstrated by showing
that the “errors ‘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) (internal quotation mark omitted)
(quoting Rodriguez v. Mitchell, 252 F.3d 191,
203 (2d Cir. 2001)). A miscarriage of justice
is demonstrated in extraordinary cases, such as
where a “constitutional violation has probably
resulted in the conviction of one who is
actually innocent.” Murray v. Carrier, 477
U.S. 478, 496 (1986). To overcome a
procedural default based on a miscarriage of
justice, the petitioner must demonstrate that
“more likely than not, in light of the new
evidence, no reasonable juror would find him
guilty beyond a reasonable doubt.” House,
547 U.S. at 536-38.
Furthermore, petitioner’s sufficiency of
the evidence claim is procedurally barred
because the Second Department decided it on
“independent and adequate” procedural
grounds. See Coleman, 501 U.S. at 729-31.
The court rejected petitioner’s argument that
the evidence at trial was insufficient to support
his conviction, ruling that his challenge was
unpreserved for appellate review because “he
failed to move for a trial order of dismissal
specifically directed at the errors he now
claims.” Moore, 37 N.Y.S.3d at 159. Under
firmly established New York law, legal
insufficiency claims are not preserved unless
the motion for dismissal is “‘specifically
directed’ at the alleged error.” People v. Gray,
86 N.Y.2d 10, 19 (1995) (quoting People v.
Cona, 49 N.Y.2d 26, 33 (1979)).
“The burden of proving exhaustion lies
with the habeas petitioner.” Cartagena v.
Corcoran, No. 04-CV-4329 (JS), 2009 WL
1406914, at *3 (E.D.N.Y. May 19, 2002)
(citing Colon v. Johnson, 19 F. Supp. 2d 112,
120 (S.D.N.Y. 1998)).
8
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issue are the following:
Further, a state court’s statement that a
petitioner’s claim was unpreserved for
appellate review is sufficient to establish that
the court was relying on a procedural bar as an
independent ground in disposing of the issue.
See, e.g., Glenn v. Bartlett, 98 F.3d 721, 72425 (2d Cir. 1996). This is true even if the state
court held, in the alternative, that petitioner’s
claim failed on the merits. See Green v.
Travis, 414 F.3d 288, 293 (2d Cir. 2005)
(“[E]ven when a state court says that a claim is
‘not preserved for appellate review’ but then
rules ‘in any event’ on the merits, such a claim
is procedurally defaulted.”).
The Court: See, that brings an
interesting point. Remember, what
you need, if you were to find an
individual guilty, is that the People
have to prove their case beyond a
reasonable doubt. And we won’t get
into all the elements right now. What
[defense counsel] is getting at is that
he might - - you have two sides on the
trial attorneys here.
[Defense
counsel], after the People rest, may in
his opinion say, you know, I don’t
think they proved their case beyond a
reasonable doubt. So he may advise
his client don’t testify because they
didn’t prove their case. That’s a
tactic, that’s trial attorneys doing
what they do, what both of these
young men are very good at. And he
may make that decision on a tactical
basis. Can’t hold it against him or
against the defendant. We’re all in
agreement, right?
To overcome a procedural bar to his
sufficiency of the evidence claim, petitioner
must “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 claims will result in a
fundamental
miscarriage
of
justice.”
Coleman, 501 U.S. at 750. Here, petitioner has
not demonstrated any cause for the default or
provided any explanation for his failure to
properly exhaust all of his claims in state court,
nor that a fundamental miscarriage of justice
will take place if the Court fails to consider the
procedurally defaulted claims. Accordingly,
petitioner’s sufficiency of the evidence claim
is not reviewable by this Court. However,
assuming arguendo that this claim was
properly before this Court, it is without merit,
as set forth infra.
[All prospective jurors responded in
the affirmative.]
(Jury Selection Tr. at 185-86, ECF No. 12-13.)
The Court: Here’s the thing. Again,
remember, the prosecution has the
sole burden of proof. They have to
prove the elements of the two crimes
or either/or both of them beyond a
reasonable doubt. Both of these
young men are seasoned trial
attorneys, they are very good at what
they do. The prosecution - - they may
put on their case, the People may rest,
and [defense counsel] may advise his
client you know what? My opinion,
they didn’t prove the charges beyond
a reasonable doubt. So I’m advising
you not to testify. He may do that. As
a trial tactic. All right? It is perfectly
acceptable.
B. The Merits
The Court proceeds to address the merits
of each of petitioner’s claims, finding that
none provides a basis for habeas relief.
1. Statement During Voir Dire About
Strategic Decision Not To Testify
As noted above, petitioner claims that he
was denied a fair trial and his due process
rights were violated when the trial judge made
comments during voir dire about a defendant’s
strategic choice not to testify at trial. (Pet. at
5.) The comments made by the trial judge at
(Id. at 485-86.)
9
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a. Standard
Petitioner raised this claim on direct appeal
and it was rejected by the state court. Having
reviewed the record, the Court concludes that
petitioner has not demonstrated that the state
court’s rejection of this claim was contrary to
or an unreasonable application of clearly
established federal law.
Under the standard promulgated by
Strickland v. Washington, 466 U.S. 668
(1984), a petitioner is required to demonstrate
two elements in order to state a successful
claim for ineffective assistance of counsel:
(1) “counsel’s representation fell below an
objective standard of reasonableness,” and
(2) “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result
of the proceeding would have been different.”
Id. at 688, 694.
There is “no doubt that prejudicial
intervention by a trial judge could so
fundamentally impair the fairness of a criminal
trial as to violate the Due Process Clause.”
Daye v. Attorney General of State of N.Y., 712
F.2d 1566, 1570 (2d Cir. 1983). “The critical
question in determining whether the trial judge
was fundamentally unfair is twofold: (1) did
the trial judge’s interference ‘distract the jury
from a conscientious discharge of their
responsibilities to find the facts, apply the law,
and reach a fair verdict,’ and (2) ‘was the
overall conduct of the trial such that public
confidence in the impartial administration of
justice was seriously at risk.’” Copeland v.
Walker, 258 F. Supp. 2d 105, 135 (E.D.N.Y.
2003) (quoting Daye, 712 F.2d at 1572). It is
well settled that a trial court may not tell a jury
that a petitioner’s decision not to testify is
somehow evidence of guilt. See Griffin v.
California, 380 U.S. 609, 615 (1965).
However, in the instant case, this trial judge’s
comments during jury selection do not rise to
the level of impinging on petitioner’s
constitutional rights. It is clear that the
comments were made in the context of
confirming that prospective jurors should not
draw any adverse inference from the
petitioner’s potential decision not to testify at
trial. Accordingly, the Court, after carefully
reviewing the record of the jury selection
process, finds that these comments did not
render petitioner’s trial fundamentally unfair,
nor did they violate his due process rights.
In order to meet the first prong of the
Strickland test, “a defendant must show that
counsel’s representation ‘fell below an
objective standard of reasonableness’
determined
according
to
‘prevailing
professional norms’ . . . . Counsel’s
performance is examined from counsel’s
perspective at the time of and under the
circumstances of trial.” Murden v. Artuz, 497
F.3d 178, 198 (2d Cir. 2007) (quoting
Strickland, 466 U.S. at 688). AEDPA review
of an ineffective assistance of counsel claim is
“‘doubly deferential’ . . . because counsel is
‘strongly presumed to have rendered adequate
assistance and made all significant decisions in
the exercise of reasonable professional
judgment.’” Woods v. Etherton, 136 S. Ct.
1149, 1151 (2016) (quoting Cullen v.
Pinholster, 563 U.S. 170, 190 (2011)); Burt v.
Titlow, 571 U.S. 12, 13 (2013) (quoting
Strickland, 466 U.S. at 690).
In particular, “[a]ctions or omissions by
counsel that ‘might be considered sound trial
strategy’ do not constitute ineffective
assistance.” United States v. Best, 219 F.3d
192, 201 (2d Cir. 2000) (internal quotation
marks omitted) (quoting Strickland, 466 U.S.
at 689); see also Lynn v. Bliden, 443 F.3d 238,
247 (2d Cir. 2006) (“As a general rule, a
habeas petitioner will be able to demonstrate
that trial counsel’s decisions were objectively
unreasonable only if ‘there [was] no . . .
tactical justification for the course taken.’”
(quoting United States v. Luciano, 158 F.3d
2. Ineffective Assistance of Trial Counsel
Petitioner claims that he received
ineffective assistance of counsel because his
trial attorney failed to move to reinspect the
grand jury minutes. (Pet. at 6.)
10
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b. Application
655, 660 (2d Cir. 1998))). For that reason,
“[s]trategic choices made by counsel after
thorough
investigation . . . are
virtually
unchallengeable . . . and there is a strong
presumption that counsel’s performance falls
‘within the wide range of reasonable
professional
assistance.’”
Gersten
v.
Senkowski, 426 F.3d 588, 607 (2d Cir. 2005)
(quoting Strickland, 466 U.S. at 689-90).
Petitioner argues that his trial counsel was
constitutionally ineffective for failing to move
to reinspect the grand jury minutes in light of
the discrepancy between the contents of the
surveillance video and Detective Paglino’s
grand jury testimony. (Pet. at 6.) Specifically,
petitioner claims that Detective Paglino’s
grand jury testimony was perjurious, as he
stated that he observed petitioner striking
Maithya with a pipe, but the video did not
include that portion of the incident.
Accordingly, petitioner argues that, if trial
counsel had filed a motion to reinspect the
grand jury minutes, there was a reasonable
probability that the indictment may have been
dismissed.
Finally, in determining whether one or
more errors by trial counsel renders the
representation constitutionally deficient under
the first prong of Strickland, the Court “need
not decide whether one or another or less than
all of these . . . errors would suffice, because
Strickland directs us to look at the ‘totality of
the evidence before the judge or jury,’ keeping
in mind that ‘[s]ome errors [] have . . . a
pervasive effect on the inferences to be drawn
from the evidence, altering the entire
evidentiary picture. . . .’” Lindstadt v. Keane,
239 F.3d 191, 199 (2d Cir. 2001) (alterations
in original) (quoting Strickland, 466 U.S. at
695-96).
First, as pointed out by the respondent, the
video was shown to the members of the grand
jury, so they were able to view the contents
themselves. In addition, as discussed more
infra, Detective Paglino was subjected to
cross-examination at trial regarding these
alleged discrepancies in his grand jury
testimony, and therefore the trial jury was
made aware of this issue before rendering its
verdict. (Tr. at 725-29.) Further, defense
counsel could have reasonably concluded that
submitting a motion to reinspect the grand jury
minutes would not have resulted in the
dismissal of the indictment, particularly since
the trial judge had already reviewed the
minutes that included both Detective Paglino’s
testimony and the video surveillance.
The second prong of the Strickland
analysis focuses on prejudice to the petitioner.
The petitioner 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. A “reasonable
probability” means that the errors were of a
magnitude such that they “undermine[]
confidence in the [proceeding’s] outcome.”
Pavel v. Hollins, 261 F.3d 210, 216 (2d Cir.
2001) (quoting Strickland, 466 U.S. at 694).
“[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, 63-64 (2d Cir. 2005)
(quoting Strickland, 466 U.S. at 695).
The totality of the record shows that trial
counsel provided petitioner with effective
assistance. In particular, defense counsel
vigorously cross-examined Detective Paglino
about the conflicts between his grand jury
testimony and the contents of the video at the
pre-trial Huntley hearing and again at trial to
attack his credibility. (H. at 94-96; Tr. at 72530.) Therefore, the Court finds that defense
counsel’s decision not to file a motion to
reinspect the grand jury minutes was not
ineffective under the first prong of Strickland.
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CV-4114 (JFB), 2009 WL 1269754, at *17
(E.D.N.Y. May 6, 2009) (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 647
(1974)); accord United States v. Shareef, 190
F.3d 71, 78 (2d Cir. 1999) (“Remarks of the
prosecutor in summation do not amount to a
denial of due process unless they constitute
‘egregious misconduct.’”).
Even assuming arguendo that trial
counsel’s failure to move to reinspect the
grand jury minutes was an error that satisfied
the first prong of Strickland, petitioner cannot
establish that he suffered prejudice as a result
of that failure. There is no basis to conclude
that a motion to reinspect would have been
granted or that, if granted, it would have led to
dismissal of the indictment. Moreover, it is
well settled that a guilty verdict of a trial jury
cures a defect in the grand jury proceeding.
See, e.g., Dixon v. McGinnis, 492 F. Supp. 2d
343, 348 (S.D.N.Y. 2007) (denying ineffective
assistance of counsel claim despite counsel’s
failure to timely submit a motion to dismiss
indictment, which was “negligent at best,”
because trial jury’s guilty verdict cured any
defect and therefore petitioner could not
establish prejudice). Accordingly, the Court
concludes that petitioner’s ineffective
assistance of counsel claim is without merit.
Accordingly, to warrant relief, the Court
must conclude that the comments “so infected
the trial with unfairness as to make the
resulting conviction a denial of due process.”
Darden, 477 U.S. at 181 (internal quotation
marks omitted) (quoting Donnelly, 416 U.S. at
643). 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 (2nd 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.” Id. In
“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 United States v. Thomas, 377
F.3d 232, 245 (2d Cir. 2004)).
3. Prosecutorial Misconduct
Petitioner claims that certain remarks
made by the prosecutor during his opening
statement and summation constituted
prosecutorial misconduct. (Pet. at 8.) Having
reviewed this claim, the Court finds it
meritless.
a. 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)). 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)
(internal quotation marks omitted) (quoting
Darden v. Wainwright, 699 F.2d 1031, 1036
(11th Cir. 1983)). Instead, the prosecutor’s
comments
“must
represent ‘egregious
misconduct.’” Celleri v. Marshall, No. 07-
The Second Circuit recognized one of
those “rare cases” where prosecutorial error
was so egregious to provide relief in Floyd,
and in doing so “emphasize[d] that [its]
holding . . . [was] based on the cumulative
effect of the three alleged categories of
improper remarks,” and that the “case [did] not
12
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involve one, or a few isolated, brief episodes;
rather, it involve[d] repeated and escalating
prosecutorial misconduct from initial to
closing summation.” Floyd v. Meachum, 907
F.2d 347, 353 (2d Cir. 1990). In that case, “the
evidence against [the 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 . . . 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.
told the jury he would ask them at the end of
the trial to “send a clear message” and convict
petitioner, “because there comes a point in
time where society demands humanity.” (Tr.
at 21.) He repeated this assertion in the
summation, stating “there comes a point in
time where society demands humanity.” (Tr.
at 791.) In addition, petitioner challenges the
prosecutor’s comments regarding his prearrest silence. Specifically, during the opening
statement the prosecutor stated that petitioner
“didn’t say he acted in self-defense” (Tr. at
19), and during the summation noted that “he
never talked about self-defense” 10 (Tr. at 810).
Petitioner challenged these comments on
direct appeal, and the Second Department
rejected the claim, stating that “[t]o the extent
that some of the prosecutor’s remarks were
improper, those remarks did not deprive the
defendant of a fair trial, and any other error in
this regard was harmless, as there was
overwhelming evidence of the defendant’s
guilt, and no significant probability that any
error contributed to the defendant’s
conviction.” Moore, 37 N.Y.S.3d at 159. For
the reasons set forth below, the Court finds that
the state court’s determination was neither
contrary to, nor an unreasonable application
of, clearly established federal law and rejects
this claim on the merits.
First, it cannot be said that any of these
statements “infected the trial” in such a
manner as to deny petitioner’s due process
rights. The remarks made by the prosecutor
that “society demands humanity,” even
assuming arguendo they were made in error,
were not an egregious error. As an initial
matter, it is not at all clear that the prosecutor’s
statement that “society demands humanity”
was improper. See United States v. Pirro, 9 F.
App’x 45, 51 (2d Cir. 2001) (stating that “the
prosecutor’s argument to the jury that ‘justice
demands’ a conviction was perfectly
b. Application
Petitioner argues that his constitutional
rights were violated because of particular
remarks by the prosecutor during his opening
and closing statement that petitioner asserts
rendered his trial fundamentally unfair. First,
the prosecutor, during the opening statement,
10
The portion of petitioner’s prosecutorial misconduct
claim regarding his pre-arrest silence is addressed in
further detail in petitioner’s claim regarding improper
questioning about petitioner’s silence.
13
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at 245; see also United States v. Modica, 663
F.2d 1173, 1181 (2d Cir. 1981) (“[I]f proof of
guilt is strong, then the prejudicial effect of the
comments tends to be deemed insubstantial.”).
In sum, having reviewed the record,
petitioner’s prosecutorial misconduct claim
does not provide a basis for habeas relief.
legitimate”). Next, as discussed infra, the
prosecutor’s comments regarding petitioner’s
not stating to the police that his actions were
taken in self-defense, were permissible if
petitioner made other statements to the police.
Turning to the prosecutor’s request for the
jury to “send a message” with their conviction,
the Court finds this statement improper, but
does not find that the comment rose to the level
of prosecutorial misconduct entitling
petitioner to habeas relief. In particular,
petitioner has not shown prejudice given the
limited nature of the comment in the context
of the entire summation and the overwhelming
evidence against petitioner. 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 181-83. “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
(alteration in original) (quoting United States
v. Elias, 285 F.3d 183, 192 (2d Cir. 2002)
(further noting that “a court will not ignore
otherwise strong evidence of a defendant's
guilt on the basis of a single prejudicial
remark”)).
4. Pre- and Post-Arrest Silence Claim
Petitioner argues that the trial court erred
by allowing the prosecution to comment on his
pre-arrest silence and allowing the questioning
of a law enforcement witness regarding his
post-arrest silence. (Pet. at 8-9.)
Regarding his pre-arrest silence, petitioner
takes issue with the following comments made
by the prosecutor during his opening statement
and summation:
The defendant didn’t complain of any
injuries, he didn’t say he acted in self
defense.
(Tr. at 19.)
Consciousness of guilt. At the scene
he never talked about self-defense.
He never said, I got hit first. What
would you do?
(Tr. at 810.)
Petitioner also takes issue with the “trial
court allow[ing] the [p]rosecutor to ask
questions to [a] police officer concerning
[petitioner’s] post arrest silence . . . these
questions lead [the] jury to believe [petitioner]
was not justified.” (Pet. at 9.) Petitioner is
referring to the following exchange during the
re-direct examination of Police Officer
Pellegrino, discussing an exchange during
petitioner’s transport to the precinct:
In the instant matter, the improper
statement made by the prosecutor constituted
only a small portion of the summation “the
bulk of which focused instead on the weight of
the evidence against petitioner.” Figueroa v.
Heath, No. 10-CV-0131(JFB), 2011 WL
1838781, at *23 (E.D.N.Y. May 13, 2011); see
also United States v. Rivera, 22 F.3d 430, 437
(2d Cir. 1994) (stating that “[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.”)
Ultimately, the evidence of guilt was
overwhelming in this case, making any
potential prejudice from the prosecutor’s
remarks insubstantial. See Thomas, 377 F.3d
Question: Did [petitioner] ever say to
you that he acted in self-defense?
Answer: No.
Question: Did at any time he tell you
that the injuries were from a pipe?
14
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Answer: No.
here, a defendant chooses to make some
statements to the police, a prosecutor can
comment on the fact that the defendant lied or
did not mention certain key facts that he or she
later asserts at trial.
Question: At any time did he tell you
those injuries were caused by Africa?
Answer: No.
Finally, considering these brief statements
in the context of the trial in its entirety, there
was an overwhelming amount of evidence of
petitioner’s
guilt,
including
multiple
eyewitness accounts of the incident, video
surveillance that captured a portion of the
incident, photographs of injuries, and
corroborating 911 calls from the scene.
Therefore, the Court concludes that, even if
references to petitioner’s failure to speak about
self-defense in his pre- and/or post-arrest
statements amounted to an error by the
prosecution, the error is harmless considering
the overwhelming evidence of petitioner’s
guilt. Accordingly, the Court finds that this
claim does not provide a basis for habeas
relief.
Question: At any point did he say he
got into a fight because of what Africa
did?
Answer: No.
(Tr. at 429.) The prosecutor also referenced in
his summation petitioner’s failure to mention
self-defense in his post-arrest statements to the
police. (Tr. at 810-11.)
As a threshold matter, although cognizable
under state law, “the Supreme Court has held
that the use of a defendant’s pre-arrest silence
for impeachment purposes does not offend any
constitutional guarantees.” Jones v. Bradt,
No. 6:13-CV-6260(MAT), 2015 WL 506485,
at *13 (W.D.N.Y. Feb. 6, 2015) (citing Jenkins
v. Anderson, 447 U.S. 231, 239 (1980)). Thus,
arguments regarding the prosecutor’s
comments on pre-arrest silence are not
cognizable on a habeas petition. 11 With
respect to the post-arrest situation, “[i]t is well
settled that an inference of guilt may not be
drawn from a failure to speak or to explain
when a person has been arrested.” United
States v. Mullings, 364 F.2d 173, 175 (2d Cir.
1966) (citations omitted); accord Doyle v.
Ohio, 426 U.S. 610, 618-19 (1976). However,
“[t]he right to remain silent does not include
the right to make false denials.” Hernandez v.
Senkowski, Nos. CV 98-5270 RR, CV 99-169
RR, 1999 WL 1495443, at *22 (E.D.N.Y. Dec.
29, 1999) (citing Brogan v. United States, 522
U.S. 398 (1998)); see also Anderson v.
Charles, 447 U.S. 404, 408-09 (1980) (Doyle
does not preclude a prosecutor from
commenting on inconsistent statements by a
defendant to the police). Therefore, where, as
5. Failure to Suppress Statements
Petitioner contends that the “[t]rial court
committed error when it failed to suppress
custodial statements made by [petitioner]
finding that [petitioner] was advised of his
constitutional rights.” (Pet. at 15.) The state
court denied this claim on the merits, finding
that “the County Court properly denied those
branches of his omnibus motion which were to
suppress certain statements he made to law
enforcement officials. The statements were
either spontaneous and voluntary . . . or not the
product of custodial interrogation.” Moore, 37
N.Y.S.3d at 159. The Court finds that the state
court’s determination was neither contrary to,
nor an unreasonable application of federal law,
nor was it an unreasonable determination of
the facts in light of the record.
11
Even if cognizable under federal law, the claim
regarding pre-arrest silence would fail for the same
reasons that the post-arrest silence claim fails (as
discussed infra).
15
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a. Standard
to express questioning, but also to any words
or actions on the part of the police (other than
those normally attendant to arrest and custody)
that the police should know are reasonably
likely to elicit an incriminating response from
the suspect.” Id. at 300-01. An “incriminating
response” is “any response—whether
inculpatory
or
exculpatory—that
the
prosecution may seek to introduce at trial.” Id.
at 301 n.5. Accordingly, “[w]here statements
are spontaneous—that is, where they are not
the result of questioning or its functional
equivalent—Miranda warnings
are
not
necessary and the statements are not
protected.” United States v. Noble, No. 07 Cr.
284 (RJS), 2008 WL 1990707, at *7 (S.D.N.Y.
May 7, 2008); accord Miranda, 384 U.S. at
478 (“Volunteered statements of any kind are
not barred by the Fifth Amendment and their
admissibility is not affected by our holding
today.”); Wolfrath v. LaVallee, 576 F.2d 965,
973 n.6 (2d Cir. 1978) (“[S]ince the statement
which was litigated below was a gratuitously
volunteered statement, Miranda itself is
inapplicable, for spontaneous statements
which are not the result of ‘official
interrogation’ have never been subject to its
strictures”).
The Fifth Amendment of the United States
Constitution provides, in relevant part, that
“[n]o person . . . shall be compelled in any
criminal case to be a witness against
himself.”
U.S. CONST. amend. V.
Recognizing that a custodial interrogation
creates “inherently compelling pressures
which work to undermine the individual’s will
to resist and to compel him to speak where he
would not otherwise do so freely,” the
Supreme Court held in Miranda that “the
prosecution may not use statements, whether
exculpatory or inculpatory, stemming from
custodial interrogation of the defendant unless
it demonstrates the use of procedural
safeguards effective to secure the privilege
against self-incrimination.” Miranda v.
Arizona, 384 U.S. 436, 444, 467 (1966). “In
particular, prior to the initiation of
questioning, [law enforcement] must fully
apprise the suspect of the State’s intention to
use his statements to secure a conviction, and
must inform him of his rights to remain silent
and to ‘have counsel present . . . if [he] so
desires.’” Moran v. Burbine, 475 U.S. 412,
420 (1986) (alterations in original) (quoting
Miranda, 384 U.S. at 468-70). “Miranda’s
warning requirements, however, apply only to
‘custodial interrogation.’”
Georgison v.
Donelli, 588 F.3d 145, 155 (2d Cir. 2009)
(quoting United States v. Newton, 369 F.3d
659, 668 (2d Cir.2004)). “This determination
has two parts: (a) there must be an
interrogation of the defendant, and (b) it must
be while she is in ‘custody.’” United States v.
FNU LNU, 653 F.3d 144, 148 (2d Cir. 2011).
The Supreme Court has also recognized an
exception to Miranda for statements collected
through routine booking questions 12 that
“appear reasonably related to the police’s
administrative concerns.” Pennsylvania v.
Muniz, 496 U.S. 582, 601-02 (1990). Routine
booking questions include “those designed to
elicit an arrestee’s pedigree, such as the
arrestee’s name, aliases, date of birth, address,
place of employment, and marital status.”
United States v. Chandler, 164 F. Supp. 3d
368, 387 (E.D.N.Y. 2016). Additionally,
questions about an arrestee’s medical
condition may be “part of [a] booking
The Supreme Court defined interrogation
for purposes of Miranda in Rhode Island v.
Innis, 446 U.S. 291 (1980). In Innis, the
Supreme Court held that “[t]he term
‘interrogation’ under Miranda refers not only
12
This exception is known as the “routine booking
question exception,” “booking exception,” or “pedigree
exception.” See Rosa v. McCray, 396 F.3d 210, 214,
221-22 (2d Cir. 2005).
16
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that the trial court properly denied the motion,
finding that the statement was “either
spontaneous and voluntary . . . or not the
product of custodial interrogation.” Moore, 37
N.Y.S.3d at 159 (citations omitted). After an
extensive review of the record, the Court
concludes that the trial court’s determination
regarding this particular statement was not
contrary to, or an unreasonable application of,
clearly established federal law, nor was it
based on an unreasonable determination of the
facts in light of the evidence presented.
procedure designed to fulfill the government’s
obligation to provide medical attention if
necessary.” United States v. Bishop, 66 F.3d
569, 572 n.2 (3d Cir. 1995)
However, “recognizing a booking
exception to Miranda does not mean . . . that
any question asked during the booking process
falls within that exception. Without obtaining
a waiver of the suspect’s Miranda rights, the
police may not ask questions, even during
booking, that are designed to elicit
incriminatory admissions.” Rosa v. McCray,
396 F.3d 210, 222 (2d Cir. 2005) (quoting
Muniz, 496 U.S. at 602 n.14). Routine
booking questions may not fall within the
pedigree exception if the police should have
known that asking the questions was
“reasonably likely to elicit an incriminating
response.” Id. (quoting Innis, 446 U.S. at 30102). The determination of whether a booking
question falls within the pedigree exception to
Miranda requires careful consideration of
“both the question itself and its relationship to
the suspected crime.”
United States v.
Sezanayev, No. 17 Cr. 262 (LGS), 2018 WL
2324077, at *12 (S.D.N.Y. May 22, 2018); see
also United States v. Burns, 684 F.2d 1066,
1068, 1076 (2d Cir. 1982) (assuming without
deciding that pedigree exception did not apply
to questions about “history of drug use, past
record, and personal finances,” where
defendant was charged with possession of
heroin with intent to distribute); United States
v. Valentine, 657 F. Supp. 2d 388, 394
(W.D.N.Y. 2009) (finding that pedigree
exception did not apply to identity questions
where officers “had a strong suspicion that [the
defendant] was an illegal alien in possession of
fraudulent documents concerning his
identity”).
Although it is undisputed that defendant
was in custody when he made the statement at
issue, the Court agrees with the state court that
this statement was not the product of
interrogation. The evidence presented at the
hearing supported a finding that petitioner
spoke voluntarily when the detectives entered
the interview room, before they asked him
anything. Thus, this statement was admissible
even though Miranda warnings had not yet
been provided to petitioner. See United States
v. Colon, 835 F.2d 27, 30 (2d Cir. 1987)
(defendant’s statement was spontaneous, and
thus Miranda warnings were not required,
where defendant “was not questioned,
confronted with evidence, or even encouraged
to be honest and tell the facts”); Wolfrath, 576
F.2d at 973 n.6 (“since the statement which
was litigated below was a gratuitously
volunteered statement, Miranda itself is
inapplicable, for spontaneous statements
which are not the result of ‘official
interrogation’ have never been subject to its
strictures”).
The other statements at issue are the
following: (1) a statement petitioner made,
recorded by Sergeant Nicolosi, while Sergeant
Nicolosi was filling out a prisoner activity log
documenting
prisoner’s
injuries,
that
petitioner had gotten into a fight a couple of
days prior; and (2) the statement by petitioner
that visible injuries to his face were due to a
fall on ice in response to Detective Paglino
asking what happened to petitioner’s face.
Respondent argues, in part, that the statements
b. Application
Petitioner claims that the trial court erred
in denying the motion to suppress his
statement to Detectives Paglino and Hughes
that “you guys must be assigned to homicide
now.” (H. at 77.) The Appellate Division held
17
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relief based on trial error unless they can
establish that it resulted in ‘actual prejudice.’”
Brecht, 507 U.S. at 637 (citing United States
v. Lane, 474 U.S. 438, 449 (1986)). Thus,
“[h]abeas relief is not appropriate when there
is merely a ‘reasonable probability’ that trial
error contributed to the verdict.” Bentley, 41
F.3d at 824 (citing Brecht, 507 U.S. at 637).
were “not self-incriminating” and the
questions were part of routine booking and a
prisoner’s physical injuries at time of booking
are a valid administrative concern. (Res’p’s
Br. at 31.)
As noted above, the determination of
whether a booking question falls within the
pedigree exception to Miranda requires
careful consideration of “both the question
itself and its relationship to the suspected
crime.” Sezanayev, 2018 WL 2324077, at *12.
The state court, after conducting an
evidentiary hearing (including evaluating
credibility and the totality of the
circumstances), found that the standard
booking question regarding injury, which took
place five days after the incident in question,
was not designed to elicit an incriminating
response. This Court finds no basis, in light of
the record as a whole, to disturb that finding
on habeas review.
Here, the overwhelming evidence of
petitioner’s guilt renders any improper
admission of petitioner’s statements harmless
error under Brecht. Aside from petitioner’s
statements regarding the cause of his injuries,
multiple eyewitnesses testified at trial
regarding petitioner continuing to assault the
victim, including hitting and striking him with
a pipe, when the victim was unconscious on
the ground (Tr. at 241-46, 634-36), video
surveillance from the gas station corroborating
portions of the eyewitness’ testimony (Tr. at
163-64), testimony and video corroborating
the fact that petitioner could have left the scene
safely with his wife (Tr. at 241, 255-56, 261),
and multiple 911 calls from eyewitnesses (Tr.
at 244-45, 598-99). As a result, the Court is
not convinced that petitioner’s statements,
even if improperly admitted, had any
substantial or injurious influence on the jury’s
verdict. In sum, the Court concludes that this
claim does not warrant habeas relief.
However, even assuming that petitioner’s
constitutional rights had been violated by not
suppressing these post-arrest statements
regarding the source of his injuries, under the
Brecht standard of review, petitioner’s claim
warrants no relief. The Brecht standard of
harmless error review applies regardless of
whether petitioner’s rights were violated due
to Miranda violations. The Supreme Court
has held “that in § 2254 proceedings a court
must assess the prejudicial impact of
constitutional error in a state-court criminal
trial under the . . . standard set forth in Brecht
. . ., whether or not the state appellate court
recognized the error and reviewed it for
harmlessness [under the Chapman standard].”
Fry v. Piller, 551 U.S. 112, 121-22 (2007).
The Brecht standard asks “whether the error
‘had a substantial and injurious effect or
influence in determining the jury’s verdict,’”
Brecht v. Abrahamson, 507 U.S. 619, 637
(1993) (quoting Kotteakos v. United States,
328 U.S. 750, 776 (1946)), and shifts the
burden of proof from the state to the petitioner.
Bentley v. Scully, 41 F.3d 818, 824 (2d Cir.
1994). Petitioners “are not entitled to habeas
6. Sufficiency of the Evidence Claims
Petitioner argues that he is entitled to
habeas relief because there was insufficient
evidence to support the jury’s verdict. (Pet. at
15-16.)
a. 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 New
York, 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
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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, 11516 (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” (internal
quotation mark omitted) (quoting Jackson,
443 U.S. at 324)). Even when “faced with a
record of historical facts that supports
conflicting inferences [a court] must
presume—even if it does not affirmatively
appear in the record—that the trier of fact
resolved any such conflicts in favor of the
prosecution, and must defer to that resolution.”
Wheel v. Robinson, 34 F.3d 60, 66 (2d Cir.
1994) (quoting Jackson, 443 U.S. at 326).
effect the commission of such crime.” N.Y.
Penal Law § 110.00. The New York Court of
Appeals has consistently held that the intent to
kill can be inferred from both a defendant’s
conduct and surrounding circumstances. See
People v. Bracey, 41 N.Y.2d 296, 301 (1977);
see also Bossett v. Walker, 41 F.3d 825, 830
(2d Cir. 1994) (“[A] conviction may be based
upon circumstantial evidence and inferences
based upon the evidence, and the jury is
exclusively responsible for determining a
witness’ credibility.”). Finally, “[a] person is
guilty of assault in the first degree when:
[w]ith intent to cause serious physical injury to
another person, he causes such injury to such
person . . . by means of a deadly weapon or a
dangerous instrument.” N.Y. Penal Law
§ 120.10(1).
b. Application
Petitioner argues that the evidence was
legally insufficient to support his convictions
for attempted murder in the second degree and
assault in the first degree. 13 Specifically,
petitioner claims that, throughout the trial,
witnesses were inconsistent and conceded that
they were “prepped by the prosecution,” and
that the trial court gave a “faulty justification
charge.” (Pet. at 15-16.)
When considering the sufficiency of the
evidence of a state conviction, “[a] federal
court must look to state law to determine the
elements of the crime.” Quartararo v.
Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999).
Accordingly, the Court looks to New York law
for the elements of attempted murder in the
second degree and assault in the first degree.
Viewing the facts in the light most
favorable to the prosecution, the Court finds
that based on the evidence in the underlying
record, a rational trier of fact could have
certainly rejected petitioner’s justification
defense and found proof beyond a reasonable
doubt of guilt. As discussed above, the jury
was presented with eyewitness testimony,
video surveillance that corroborated witness
testimony, photos of the victim’s substantial
injuries, and medical evidence establishing the
In New York, “[a] person is guilty of
murder in the second degree when, with intent
to cause the death of another, he causes the
death of such person.” N.Y. Penal Law
§ 125.25(1), as amended by N.Y. Penal Law
§ 110.00. “A person is guilty of an attempt to
commit a crime when, with intent to commit a
crime, he engages in conduct which tends to
York Criminal Procedure Law § 470.15(5), whereas a
legal sufficiency claim is based on federal due process
principles.”), and the Court cannot consider a purely
state law claim on federal habeas review, see Lewis v.
Jeffers, 497 U.S. 764, 780 (1990) (“[F]ederal habeas
corpus relief does not lie for errors of state law. . . .”).
Therefore, this claim is not reviewable.
13
In the alternative, petitioner also asserts that the
verdict was against the weight of the evidence. A
“weight of the evidence” claim, however, is based on
state law, see Correa v. Duncan, 172 F. Supp. 2d 378,
381 (E.D.N.Y. 2001) (“A ‘weight of the evidence’
argument is a pure state law claim grounded in New
19
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statement was made by the trial judge after the
jury had requested that he re-read the portions
of the jury charge that explained the elements
of each charged crime. (Tr. at 872.) The trial
judge agreed to re-read those portions of the
instructions, and told the jury that he would reread the justification instruction after rereading the elements of the charged crimes.
(Id.) Accordingly, when the trial judge
reached the lack of justification as an element
of murder in the second degree, he instructed
the jury to “hold [that] in [their] head[s] for a
moment,” because he intended to instruct on
justification after completing his other
instructions. (Id. at 874-75.) The Court finds
nothing in the trial court’s statement that
suggested to the jury that they should reject
petitioner’s justification defense.
injuries suffered, all of which could rationally
support a guilty verdict.
Regarding petitioner’s claim that there
were inconsistencies among the witnesses’
testimony, the Court notes that “[a]ll issues of
credibility . . . must be resolved in favor of the
jury’s verdict.” United States v. Riggi, 541
F.3d 94, 108 (2d Cir. 2008). In addition, as the
Second Circuit has explained, “it is wellsettled that when reviewing the sufficiency of
the evidence we ‘defer to the jury’s assessment
of witness credibility and the jury’s resolution
of conflicting testimony.’” United States v.
Glenn, 312 F.3d 58, 64 (2d Cir. 2002) (quoting
United States v. Bala, 236 F.3d 87, 93-94 (2d
Cir. 2000)). Accordingly, the Court rejects
petitioner’s suggestion that the jury’s
determination of guilt is based on insufficient
evidence due to inconsistencies between the
witnesses’ testimony.
Even assuming there was an error in the
jury instruction, jury instructions only 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). “[A] state prisoner
making a claim of improper jury instructions
faces a substantial burden.” DelValle v.
Armstrong, 306 F.3d 1197, 1200 (2d Cir.
2002). The 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 1200-01 (quoting
Henderson v. Kibbe, 431 U.S. 145, 154,
(1977)); see also Middleton, 541 U.S. at 437
(explaining that “not every ambiguity,
inconsistency, or deficiency in a jury
instruction rises to the level of a due process
violation”).
Furthermore, “[a] single
instruction to a jury may not be judged in
artificial isolation, but must be viewed in the
context of the overall charge.” Middleton, 541
U.S. at 437 (internal quotation marks omitted)
(quoting Boyde v. California, 494 U.S. 370,
378 (1990).
The Court likewise rejects petitioner’s
claim that there was insufficient evidence to
establish guilt because the witnesses were all
prepared by the prosecution. The Court notes
that the respondent opposes this claim, both as
procedurally defaulted and on the merits,
stating that “the witnesses did not admit to
having the prosecutor tailor their testimony.”
(Resp’t’s Br. at 34.) The Court finds nothing
in the underlying record to support petitioner’s
contention that the prosecution’s witnesses
were prepared in a manner that caused
petitioner’s conviction to be based on
insufficient and/or unreliable evidence.
The Court turns to petitioner’s argument
regarding the allegedly faulty justification
charge. Petitioner takes issue with the fact that
“during charging the elements of justification
[the trial judge] instructed the jury to find
[petitioner] guilty by telling the jury to hold #3
in [their] head for a moment where #3 was that
[petitioner] was not justified.” (Pet. at 16.)
Contrary to petitioner’s assertion, a review of
the transcript reveals that the trial judge did not
instruct the jury to find petitioner guilty during
his justification instruction. The at-issue
20
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Further, although it is clear that a petitioner
may not be punished for going to trial, see
Bordenkircher v. Hayes, 434 U.S. 357, 363
(1978), there is no evidence here that the trial
court imposed a harsher sentence because
petitioner chose to proceed to trial. Petitioner
argues that the fact that his sentence exceeded
the state court’s pre-trial plea offer
demonstrates that the trial court’s sentence
was vindictive. However, “the mere fact that
the sentence imposed following trial is greater
than the offer made during plea negotiations,
does not indicate that a petitioner has been
punished for exercising his right to proceed to
trial.” Walker v. Walker, 259 F. Supp. 2d 221,
226 (E.D.N.Y. 2003) (citing United States v.
Araujo, 539 F.2d 287, 292 (2d Cir. 1976).
Petitioner also argues that the trial court’s
statement that “sadly, what is fair after trial,
now that I know the extent, now that I know
everything that happened, now that I have seen
the videotape and that we saw Mr. Maithya’s
testimony, I’m afraid that what is fair after trial
is not the same thing that was fair before trial,”
(S. 20), evidences vindictive sentencing.
These statements show only that the trial
court’s sentence properly reflected the
evidence presented at trial, and do not suggest
that the sentence was punishment for the
decision to proceed to trial.
In this case, the Court finds that the trial
court’s instructions on justification were not
erroneous and certainly not a due process
violation. The state court’s ruling was not
contrary to, or an unreasonable application of,
clearly established federal law. Accordingly,
the Court finds that petitioner’s sufficiency of
the evidence claim (including the arguments
regarding the jury charge) does not warrant
habeas relief.
7. Sentencing Claim
Petitioner claims that his eighteen-year
sentence violates his constitutional rights
because it is “harsh and excessive,” that it was
augmented because he chose to proceed to
trial, and that the judge at sentencing
erroneously found that he showed no remorse
and failed to take into consideration a petition
showing support for petitioner. (Pet. at 16-17.)
When a petitioner is claiming that his
sentence is harsh and excessive, for purposes
of habeas review, “[n]o federal constitutional
issue is presented [if] . . . the sentence is within
the range prescribed by state law.” White v.
Keane, 969 F.2d 1381, 1383 (2d Cir. 1992);
accord Alfini v. Lord, 245 F. Supp. 2d 493, 502
(E.D.N.Y. 2003).
Here, petitioner’s sentence was within the
permissible range prescribed by New York
state law, and thus there is no federal question
for habeas review. As discussed above,
petitioner was convicted of attempted murder
in the second degree and assault in the first
degree, both class B felonies. See N.Y. Penal
Law § 125.25(1), §110.00; § 120.10(1). He
was sentenced as a prior felony offender, due
to a prior conviction of criminal sale of a
controlled substance in the third degree. (S. at
11-12.) According to New York state law, at
the time his sentencing, petitioner was facing
a maximum term of twenty-five years of
imprisonment. Thus, petitioner’s sentence of
eighteen years was within the statutorily
prescribed range and raises no constitutional
concerns. See N.Y. Penal Law § 70.06(6)(a).
On the issue of remorse, after petitioner
stated that he had remorse for his actions, the
trial court responded, “Yeah. Everybody is
going to suffer, both [the victim’s and
petitioner’s] families. I wish that Robert
Moore was there that night. This Robert
Moore sounds like he wouldn’t have done
what you did.” (S. at 18.)
In short, a review of the sentencing
transcript reveals that the trial court
acknowledged that proceeding to trial was
petitioner’s absolute right, that the court had
reviewed all of the documents submitted on
petitioner’s behalf, and that the sentence was
based on a multitude of factors, including the
facts presented at trial, and petitioner’s prior
convictions, without any suggestion that
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petitioner had no remorse. (S. at 18-21.)
Accordingly, this claim does not provide a
basis for habeas relief in this case.
issue in the grand jury during the crossexamination of Detective Paglino:
Question: So it’s your testimony
today that the portions of the video
you saw, you never saw the pipe in
Mr. Moore’s hand, is that correct?
8. Grand Jury Claims
Petitioner claims that he is entitled to
habeas relief because of errors during the
grand jury presentation. First, as previously
analyzed in the Court’s discussion of
petitioner’s prosecutorial misconduct claim,
petitioner argues that Detective Paglino’s
perjured testimony in the grand jury made the
indictment fundamentally flawed. 14 (Pet. at
17.) Second, petitioner argues that he is
entitled to relief due to the prosecution’s
failure to “charge the grand jury with the
justification defense.” (Pet. at 18-19.)
Answer: That’s correct.
Question: Now, you had an
opportunity to testify before the grand
jury, correct?
Answer: Correct.
Question: And when you testified
before the grand jury you had an
opportunity to tell them what
happened during your investigation.
Generally, “claims of deficiencies in a
state grand jury proceeding cannot support a
collateral attack under 28. U.S.C. § 2254.”
Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989);
see also Warren v. Ercole, No. 07 CV 3175
(JG), 2007 WL 4224642, at *10 (E.D.N.Y.
Nov. 27, 2007) (stating that “claims based on
the sufficiency of the evidence presented to the
grand jury are not cognizable under federal
law”). Indeed, “[i]f federal grand jury rights
are not cognizable on direct appeal where
rendered harmless by a petit jury, 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. In any event, the Court
finds that any errors in Detective Paglino’s
grand jury testimony had no prejudicial effect,
as the grand jury viewed the video themselves.
Further, the trial jury was made aware of this
Answer: Correct.
*
*
*
Question: And on that day you were
asked this question. ‘Question: on
that video can you tell us what you
observed? Answer: I observed
Solomon, Africa, strike Robert
Moore, Israel, on the back of the head
with some sort of silver pipe, some
object. At which time after, Israel got
his wits about him, he went after him,
they got into a fight, he eventually
took possession of that pipe, and used
it to beat Africa.’
*
*
*
Question: Do you recall saying that?
Answer: I do.
14
This claim is argued more cohesively in petitioner’s
supplemental brief in conjunction with the state court
direct appeal. In the supplemental brief, petitioner
argued that, during the grand jury presentation,
Detective Paglino stated that he viewed surveillance
video of the incident and saw petitioner strike the victim
with a pipe, but then at the suppression hearing
Detective Paglino said he did not see petitioner with the
pipe in his hands. (See Suppl. App. Div. Br. at 8-10.)
In response, the People argued on appeal that at the
suppression hearing, Detective Paglino explained that
his grand jury testimony was based on both the video
surveillance and what he learned from interviewing
eyewitnesses, and that the grand jury viewed the video
itself so any testimony describing the video did not
prejudice petitioner. (See People’s Reply to Suppl.
App. Div. Br. at 5-9, ECF No. 12-4.)
22
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