Decicco v. Ercole

Filing 36

MEMORANDUM-DECISION AND ORDER: ORDERED, that Magistrate Judge Treece's December 22, 2010 Report-Recommendation (Dkt. No. 32 ) is ADOPTED in its entirety. ORDERED, that De Cicco's Petition for a Writ of Habeas Corpus (Dkt. No. 1 ) is DENI ED. ORDERED, that because De Cicco has not made a "substantial showing of the denial of a constitutional right" pursuant to 28 U.S.C. § 2253(c)(2), no certificate of appealability is issued with respect to any of DeCicco's claims. ORDERED, that the Clerk close this case. Signed by Judge Gary L. Sharpe on 11/3/11. (Attachments: # 1 Report-Recommendation) (served on petitioner by regular mail)(alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________
MARK DECICCO,
Plaintiff,

9:07-cv-1030
(GLS/RFT)

v.
ROBERT E. ERCOLE,
Defendant.
____________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Mark De Cicco
Pro Se
05-A-0017
Great Meadow Correctional Facility
Box 51
Comstock, NY 12821
FOR THE DEFENDANT:
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
New York Office
120 Broadway
New York, NY 10271

FREDERICK H. WEN
Assistant Attorney General

Gary L. Sharpe
District Court Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction

Plaintiff pro se Mark De Cicco1 brings this Petition for a Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254, alleging that his current
confinement in state custody is in violation of his federal constitutional
rights. (Compl., Dkt. No. 1.) De Cicco bases his habeas petition on the
following grounds: (1) ineffective assistance of counsel; (2) insufficient
evidence to support his conviction; (3) the verdict was against the weight of
the evidence; (4) the sentence was excessive; and (5) the prosecutor
violated Brady v. Maryland, 373 U.S. 83 (1963). (Compl., Dkt. No. 1; Dkt.
No. 32 at 1-2.) In a Report-Recommendation (R&R) dated December 22,
2010, Magistrate Judge Randolph F. Treece recommended that De Cicco’s
habeas petition be denied.2 (Dkt. No. 32.) Pending are De Cicco’s
objections to that R&R.3 (Dkt. No. 35.) For the reasons that follow, the
R&R is adopted in its entirety.
II. Background
In 2004, De Cicco was found guilty of Sodomy in the First Degree

1

Because plaintiff’s name is spelled multiple ways in different filings, the court uses the
spelling–De Cicco–offered by plaintiff himself.
2

The Clerk is directed to append the R&R to this decision, and familiarity therewith is
presumed.
3

The court will consider De Cicco’s untimely objections.

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(N.Y. Penal Law § 130.50(2)), Sodomy in the Third Degree (N.Y. Penal
Law § 130.40(2)) and Endangering the Welfare of a Child (N.Y. Penal Law
§ 260.10(1)) pursuant to a jury trial. (Dkt. No. 32 at 2.) On March 1, 2007,
the New York State Appellate Division, Third Judicial Department denied
De Cicco’s appeal and on May 4, 2007, his application for leave to appeal
was denied. People v. DeCicco, 38 A.D.3d 937 (3d Dep’t. 2007) lv. denied,
8 N.Y.3d 983 (2007).
III. Standard of Review
Before entering final judgment, this court routinely reviews all report
and recommendation orders in cases it has referred to a magistrate judge.
If a party has objected to specific elements of the magistrate judge’s
findings and recommendations, this court reviews those findings and
recommendations de novo. See Almonte v. N.Y. State Div. of Parole, No.
04-cv-484, 2006 WL 149049, at *6-7 (N.D.N.Y. Jan. 18, 2006). In those
cases where no party has filed an objection, or only a vague or general
objection has been filed, this court reviews the findings and
recommendations of the magistrate judge for clear error. See id.
IV. Discussion
De Cicco’s objections are limited to Judge Treece’s recommendation
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that the claims of ineffective assistance of counsel underlying his habeas
petition be denied.4 (See Dkt. No. 35.) In his objections, De Cicco
primarily reiterates the same factual and legal assertions contained in his
initial claim. (Dkt. No. 35.) Treating these factual rehashings as specific
objections, the court reviews them de novo. The remainder of Judge
Treece’s recommendations are reviewed for clear error. Upon a combined
review, the court adopts Judge Treece’s R&R in its entirety.
De Cicco first argues that his trial counsel was ineffective for failing to
file a subpoena duces tecum to obtain a check purportedly written to De
Cicco by the victim’s father. (Dkt. No. 35.) De Cicco alleges that the check
was remuneration for the burglarization of his home by the victim, and that
it shows motive on the part of the victim to fabricate charges against De
Cicco. (Id.) Unlike the ineffective assistance claim discussed below, De
Cicco failed to raise the instant allegation before the state courts. (Dkt. No.
32 at 11.)
For a state prisoner to bring a valid habeas petition, he must first

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While De Cicco’s habeas petition alleges three separate grounds for ineffective
assistance of counsel, he objects only to Judge Treece’s recommendations of denial relating to
two of those grounds. (See Dkt. No. 35.) Accordingly, Judge Treece’s recommendation that
De Cicco’s claim of ineffective assistance based on his counsel’s failure to obtain a more
specific date for the offenses alleged is reviewed for clear error.

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show that he has “exhausted the remedies available in the courts of the
State; or that there is either an absence of available State corrective
process; or the existence of circumstances rendering such process
ineffective to protect the rights of the prisoner.” Aparicio v. Artuz, 269 F.3d
78, 89 (2d Cir. 2001) (quoting 28 U.S.C. § 2254(b)(1)). Where the
petitioner “failed to exhaust state remedies and the court to which the
petitioner would be required to present his claims in order to meet the
exhaustion requirement would now find the claims procedurally barred . . .
there is a procedural default for purposes of federal habeas” review.
Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); see also Sweet v.
Bennett, 353 F.3d 135, 139 (2d Cir. 2003).
In New York, a state court must “deny a motion to vacate a judgment
based on a constitutional violation where the defendant unjustifiably failed
to argue the constitutional violation on direct appeal despite a sufficient
record.” Id. (citing N.Y. Crim. Proc. Law § 440.10(2)(c)). Petitioners are
entitled to “one (and only one) appeal to the Appellate Division and one
request for leave to appeal to the Court of Appeals.” Aparicio, 269 F.3d at
91 (citing N.Y. Crim. Proc. Law § 450.10(1); N.Y. Ct. R. § 500.10(a)).
While De Cicco raised a claim of ineffective assistance of counsel
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on direct appeal before the Third Department, he made no mention of his
trial counsel’s failure to obtain a check purportedly written to him by the
victim’s father. (Dkt. No. 32 at 11.) This issue could have been raised by
De Cicco on direct appeal, however, as evidenced by his explicit reference
to the check on the trial record. (Dkt. No. 32 at 12.)
Because De Cicco could not now file a second appeal with the Third
Department, his ineffective assistance claim based on his trial counsel’s
failure to obtain the check is deemed procedurally barred. A procedurally
barred habeas claim cannot be heard by a federal reviewing court “unless
the prisoner 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 claims will result in a fundamental miscarriage of justice.”
Coleman, 501 U.S. at 750. De Cicco offers no facts or arguments in
support of a finding of cause for the default or actual prejudice.
Furthemore, he has not established the threat of a fundamental miscarriage
of justice should the court not adjudicate his habeas petition. Accordingly,
the court adopts the recommendation by Judge Treece that De Cicco’s
claim that his trial counsel was ineffective for failing to obtain a check
purportedly written to De Cicco by the victim’s father be denied as
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procedurally defaulted.5
De Cicco next argues that his trial counsel was ineffective for failing
to file a notice of alibi or adequately pursue an alibi defense. (Dkt. No. 35.)
This claim was considered by the Third Department on direct appeal and
found to be “without merit.” People v. DeCicco, 38 A.D. 3d 937, 938 (3d
Dep’t. 2007).
Where a state court claim is adjudicated on the merits, a federal court
shall not grant an application for a writ of habeas corpus unless the
adjudication: “(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.” Torres v. Berbary, 340
F.3d 63, 67-68 (2d Cir. 2003) (citing 28 U.S.C. § 2254(d)). It is well settled
that to establish a claim for ineffective assistance of counsel, a petitioner
must show that: (1) counsel’s “representation fell below an objective

5

De Cicco additionally appears to raise a new ineffective assistance of counsel claim in
his objections by alleging that his trial counsel failed to introduce into evidence the victim’s
work schedule for July 29, 2003. (Dkt. No. 35 at 6.) This is the first time, however, that De
Cicco has raised this argument, and as such, that claim is also dismissed as procedurally
defaulted.

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standard of reasonableness”; and (2) that “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Bell v. Cone, 535 U.S. 685, 695 (2002) (citing
Strickland v. Washington, 466 U.S. 668 (1984)). There is a strong
presumption of reasonableness, and a defendant “must overcome the
presumption that, under the circumstances, the challenged action might be
considered sound trial strategy.” Strickland, 466 U.S. at 689 (internal
quotation marks and citation omitted).
At De Cicco’s arraignment, his initial trial counsel successfully
requested a tolling of the notice of alibi deadline until a discrepancy relating
to the date of the incident could be resolved. (Dkt. No. 32 at 18.) While De
Cicco argues that his subsequent attorney, Stuart Borrero, Esq., failed to
obtain records from his cell phone carrier that could be used as alibi
evidence, Borrero did, in fact, notify the court of De Cicco’s desire to obtain
such records. (Id. at 19.) When the court questioned the utility of the
documents, however, Borrero admitted that the records would be used to
impeach the credibility of the victim, not as alibi evidence. (Id.) The same
admission was later made by De Cicco’s appellate counsel. (Id.) De Cicco
also claims that his counsel was ineffective for failing to present Randy
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Cook, a fellow inmate, as an alibi witness. (Dkt. No. 35.) Borrero told the
court, however, that based upon conversations with De Cicco, he had
reservations about presenting Cook as an alibi witness. (Dkt. No. 32 at
18.)
It is “generally acknowledged that an attempt to create a false alibi
constitutes evidence of the defendant’s consciousness of guilt,” Henry v.
Poole, 409 F.3d 48, 65 (2d Cir. 2005) (quotation marks and citation
omitted). Because Borrero could have reasonably decided that to call
Randy Cook as an alibi witness would risk De Cicco’s credibility in the eyes
of the jury, his representation did not fall below an objective standard of
reasonableness. Accordingly, the state court’s decision was not contrary
to, nor did it involve an unreasonable application of, the Supreme Court’s
clearly established ineffective assistance of counsel case law. As such, the
court adopts Judge Treece’s recommendation that De Cicco’s claim that
his trial counsel was ineffective for failing to pursue an alibi defense be
denied.
The remainder of Judge Treece’s R&R is devoid of clear error, and as
such, is adopted in its entirety.
V. Conclusion
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WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge Treece’s December 22, 2010
Report-Recommendation (Dkt. No. 32) is ADOPTED in its entirety; and it is
further
ORDERED that De Cicco’s Petition for a Writ of Habeas Corpus (Dkt.
No. 1.) is DENIED; and it is further
ORDERED that because De Cicco has not made a “substantial
showing of the denial of a constitutional right” pursuant to 28 U.S.C. §
2253(c)(2), no certificate of appealability is issued with respect to any of De
Cicco’s claims; and it is further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
November 3, 2011
Albany, New York

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