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,
Petitioner,
-v-

Civ. No. 9:07-CV-1030
(GLS/RFT)

ROBERT E. ERCOLE, Superintendent,
Green Haven Correctional Facility,
Respondent.
R

APPEARANCES:

OF COUNSEL:

MARK DECICCO
05-A-0017
Petitioner, pro se
Upstate Correctional Facility
P.O Box 2001
Malone, NY 12953
F

HON. ANDREW M. CUOMO
New York State Attorney General
Attorney for Respondent
120 Broadway
New York, NY 10271

FREDERICK H. WEN, ESQ.
Assistant Attorney General

RANDOLPH F. TREECE
United States Magistrate Judge
T

REPORT-RECOMMENDATION and ORDER
Pro se Petitioner Mark DeCicco brings this Petition for a Writ of Habeas Corpus, pursuant
to 28 U.S.C. § 2254, alleging that his present confinement in state custody is in violation of his
federal constitutional rights. DeCicco asserts the following grounds in support of his Petition: (1)
ineffective assistance of trial counsel for failing to (a) file a notice of alibi or pursue an alibi defense,
(b) obtain a more specific date for the offenses alleged in the indictment, and (c) produce a copy of
a personal check purportedly paid from the victim’s father to the Petitioner; (2) there was legally

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 Brady1 by failing to
produce the victim’s father’s checking account records. Dkt. No. 1, Pet.2 For the reasons set forth
below, this Court recommends that the Petition be denied.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On October 21, 2004, Mark DeCicco was found guilty of Sodomy in the First Degree (N.Y.
R

PENAL LAW § 130.50(2)), Sodomy in the Third Degree (N.Y. PENAL LAW § 130.40(2)),3 and
Endangering the Welfare of a Child (N.Y. PENAL LAW § 260.10(1)) pursuant to a jury trial held in
the New York State Supreme Court, Ulster County. See State Court R. [hereinafter “R.”], Ex. C,
R. on Appeal, at R-1.4 This conviction stems from the following summary of the testimony adduced
at trial.

F

Sometime near the end of June 2003, M.S., a sixteen-year-old boy, was kicked out of his
father’s house. R., Trial Tr. at pp. 216-18. M.S. called his nineteen-year-old brother, B.S., to ask
for help, and B.S. contacted some friends about temporary shelter for M.S. Id. at pp. 192 & 218.
Petitioner, whom B.S. had met a month earlier, agreed to let M.S. stay with him in his one-bedroom
apartment, located at 17 Down Street in the City of Kingston. Id. at pp. 192-94, 205-06, & 218-19.

T
1

See Brady v. Maryland, 373 U.S. 83 (1963) (holding that “the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution”).
2

Because Petitioner was convicted of a sex offense and included the name of his minor victim in his Petition,
the Honorable Gustave J. DiBianco, Retired United States Magistrate Judge, in accordance with New York’s Civil Rights
Law § 50-b, directed the Clerk of the Court to seal the Petition so as to maintain the confidentiality of the victim. To
further preserve confidentiality, this Court will only refer to the victim by his initials.
3

Since Petitioner’s conviction, the crime of sodomy has been renamed to “criminal sexual act.” See N.Y.
PENAL LAW §§ 130.50 & 130.40 (amended 2003).
4

The State Court Record was filed under seal to protect the victim’s confidentiality.

-2-

B.S. knew that Petitioner, then thirty-six years old, regularly smoked marijuana and drank alcohol
– specifically, Gatorade mixed with vodka – but felt comfortable letting his brother stay with
Petitioner because “[his] brother . . . didn’t drink or smoke marijuana . . . so even if it was . . .
offered to him, he would most likely not accept it.” Id. at pp. 194-97.
M.S. lived with Petitioner from July 7th until July 29th. Id. at p. 219. During that time, M.S.
saw Petitioner regularly mix Gatorade with alcohol and store it in the refrigerator. Id. at pp. 229-30.
R

M.S. testified that Petitioner offered him marijuana and alcohol “constantly,” which B.S. also
witnessed while visiting his brother. Id. at pp. 195-96 & 229-30. M.S. would sleep on Petitioner’s
couch in the living room, unless Petitioner had guests over; in those instances, because M.S. “would
take up too much space in the living room on the couch[,]” Petitioner would ask M.S. to sleep in
Petitioner’s bed. Id. at pp. 221-22.
M.S. testified that he was asked to sleep in Petitioner’s bed three times during the period he

F

lived there. Id. at p. 222. On the first occurrence, Petitioner told M.S. that he was having company
over, though M.S. claimed he never saw any guests. Id. at p. 223. M.S. said that he woke up later
that night and found Petitioner sleeping in bed with him close enough that M.S. felt Petitioner’s
breath on his back. Id.at pp. 223-24. Because he did not feel comfortable, M.S. got up and slept in
the living room for the rest of the night. Id. at p. 224. M.S. claimed that this occasion was the only
T

time he smoked marijuana with the Petitioner, and that every other time the Petitioner offered it to
M.S. he would refuse because he “didn’t know what could happen if [he] fell asleep.” Id. at p. 229.
The second and third times M.S. slept in Petitioner’s bed, he woke up and went into the living room
as soon as Petitioner came into the bedroom. Id. at pp. 224-25. M.S. also testified that Petitioner
came into the bathroom once when M.S. was showering and persistently asked, for about five

-3-

minutes, to see “how big” M.S. was, but M.S. refused. Id. at pp. 225-28.
At about 2:30 or 3:00 p.m. on July 29, 2003, M.S. left his job at Dunkin Donuts early
because he had a headache and returned to the Petitioner’s apartment. Id. at pp. 217 & 230-31.
Petitioner was home, and when M.S. told Petitioner that he had a headache, Petitioner offered M.S.
some aspirin. Id. at p. 231. Petitioner gave M.S. three white pills, two of them larger than the third,
which he said were stronger than aspirin and would make his headache go away faster. Id. at pp.
R

231 & 235-36. Though M.S. did not ask for anything to drink to help him swallow the pills,
Petitioner gave M.S. a Gatorade from the refrigerator. Id. at pp. 231 & 236. M.S. testified that he
intended to lay down on the couch, but Petitioner told him that he was having company over and that
M.S. would have to sleep in the bedroom again. Id. at p. 232.
M.S. fell asleep around 5:00 or 6:00 p.m. Id. at p. 233. M.S. testified that later in the night
he suddenly woke up and discovered that his boxers and shorts were pulled down and that Petitioner

F

was kneeling between his legs, performing oral sex on him. Id. Petitioner did not respond when
M.S. asked him what he was doing, and M.S. got up and left the apartment. Id. at pp. 233-34. M.S.
went to a local mall and spent the night sleeping between two trucks parked near the loading dock.
Id. at p. 234.
When the mall opened in the morning, M.S. ran into his friend J.D. and told him what had
T

happened. Id. at p. 235. J.D. told M.S. that M.S. could stay with him and his family in Woodstock.
Id. Later in the day, M.S. returned to Petitioner’s apartment to get his clothes, and gained access
to the apartment by climbing through the window. M.S. testified on cross-examination that
Petitioner did not give M.S. a key to the apartment and had told M.S. to enter through the window
when Petitioner was at work. Id. at pp. 250-54.

-4-

M.S. stayed in Woodstock for about three weeks. Id. at pp. 235 & 245. During the last week
of August 2003, M.S. moved to Family of Woodstock, a teen shelter, where he met with intake
worker Susan Doerbecker, who referred him to the police. Id. at pp. 237, 263, & 265. M.S. met
Detective Timothy Bowers of the Kingston Police Department at the police station and gave him a
statement of the events. Id. at pp. 237-38 & 261-65. The police arrested Petitioner around 5:15 p.m.
on August 25, 2003, and brought him to the police station. Id. at pp. 266 & 324-25.
R

Detective Bowers testified that, after Petitioner waived his Miranda rights at the police
station, he asked Petitioner if anything of a sexual nature occurred between Petitioner and M.S. Id.
at pp. 272-74. Petitioner answered that he and M.S. talked about penis size on the second night after
M.S. moved in, and that he asked M.S., “How big are you?” and “grabbed [M.S.’s] penis to measure
it against [his] wrist.” Id. at pp. 274-75. Petitioner stated that they then “put them away and [] went
to bed,” but the next night Petitioner asked M.S. if he wanted to show Petitioner his penis again, to

F

which M.S. said no. Id. at pp. 275-77. Petitioner also stated to Detective Bowers that he told M.S.
that he was bisexual. Id. at p. 277. Detective Bowers asked Petitioner about the day that M.S. came
home from work with a headache, and Petitioner claimed he was home and had given M.S. only half
of an 800 mg prescription Ibuprofen, swallowed the other half himself, took a muscle relaxer, and
went to bed. Id. at p. 278. He denied performing oral sex on M.S. that night. Id. at pp. 278-79.
T

Later that same day, the police returned to Petitioner’s apartment and seized a variety of prescription
medications and a photograph of an unrelated nude boy. Id. at pp. 307-17; R., Suppression and
Sandoval Hr’g, Tr., dated Oct. 19, 2004, at pp. 54-56. Petitioner’s counsel successfully excluded
the introduction of both the prescription medicine and the photograph into evidence. Trial Tr. at pp.
280-85 & 316-22; Suppression and Sandoval Hr’g Tr. at pp 58-61.

-5-

The Petitioner did not present any evidence in his case nor did he testify on his behalf. Trial
Tr. at p. 331. Petitioner made a general motion to dismiss the indictment for legal insufficiency at
the end of the prosecution’s case, which the court immediately denied. Id. at p. 394. The jury
convicted Petitioner on all counts, finding him guilty of First and Third Degree Sodomy and
Endangering the Welfare of a Child. Id. at pp. 407-08.
After the verdict was read, the Petitioner stated on the record his dissatisfaction with the trial.
R

Specifically, Petitioner stated that the trial judge signed a subpoena duces tecum for Petitioner’s cell
phone records, but he never received those records. Id. at pp. 416-19. Furthermore, Petitioner
claimed he sent a proposed subpoena duces tecum to the trial court and to his counsel for M.S.’s
father’s checking account in order to obtain a “check that was supposedly sent [by M.S.’s father]
to [Petitioner] which [he] cashed.” Id. at pp. 416-17. Lastly, Petitioner claimed that there were
other subpoenas he wanted to request of the court, but his counsel had neglected to do so, and that

F

Petitioner previously requested to have his counsel dismissed, but the court denied that request as
well. Id. The judge responded that the practice of the chambers is “not to respond directly to
requests that [are] made by defendants when they were represented by counsel.” Id. at p. 418.
Petitioner was sentenced to a determinate term of fifteen years in prison on his First Degree Sodomy
conviction, plus five years of post-release supervision; a concurrent indeterminate term of one and
T

one-third to four years in prison on his Third Degree Sodomy conviction; and a concurrent
determinate one-year prison term for Endangering the Welfare of a Child. R., Sentencing Hr’g, Tr.,
dated Dec. 20, 2004, at pp. 7-8.
Petitioner appealed the trial court’s judgment to the New York State Appellate Division,
Third Judicial Department, raising four claims: (1) his trial counsel was ineffective for failing to (a)

-6-

file a notice of alibi or pursue an alibi defense; and (b) obtain a more specific date for the offenses
in the indictment; (2) his First Degree Sodomy conviction was based on legally insufficient
evidence; (3) his First and Third Degree Sodomy convictions were against the weight of the
evidence; and (4) the sentence was excessive. R., Ex. A, Pet’r Appellate Br. On March 1, 2007, the
Third Department unanimously affirmed the judgment and conviction of the trial court. See People
v. DeCicco, 830 N.Y.S.2d 837 (N.Y. App. Div, 3d Dep’t 2007). Specifically, the Appellate Division
R

found Petitioner’s claim that his First Degree Sodomy conviction was based on legally insufficient
evidence was not preserved for review because Petitioner failed to move to dismiss that count of the
indictment on that ground. Id. at 838. Nevertheless, the court stated that, “were we to consider that
argument, we would find it without merit.” Id. The Appellate Division similarly rejected
Petitioner’s other claims by “find[ing] them equally without merit.” See id. at 839. Petitioner’s
application for leave to appeal to the New York State Court of Appeals was denied on May 4, 2007.

F

See People v. DeCicco, 869 N.E.2d 663 (N.Y. 2007).
On September 28, 2007, DeCicco filed the instant Federal Habeas Corpus Petition pursuant
to 28 U.S.C. § 2254. In it, he raises the same four claims made before the Third Department.
Furthermore, he raises for the first time two additional claims: (1) his trial counsel was ineffective
for failing to produce a copy of a personal check from M.S.’s father; and (2) the prosecutor violated
T

Brady by “failing to produce the subpoena duces tecum for [M.S’s father’s] checking account.” See
Pet. at pp. 4-5, 7, & Supp’l Pages 2-5 (emphasis added). Respondent concedes this Petition has been
timely made. See Dkt. No. 9, Resp’t Mem. of Law, at pp. 11-12.

-7-

II. DISCUSSION
A. Standard of Review
Under the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110
Stat. 1214 (1996) (“AEDPA”), a federal court may not grant habeas relief to a state prisoner on a
claim unless the state court adjudicated the merits of the claim and such adjudication either

R

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(d); see also Hawkins v. Costello, 460 F.3d 238 (2d Cir. 2006); DeBerry v.
Portuondo, 403 F.3d 57, 66 (2d Cir. 2005); Miranda v. Bennett, 322 F.3d 171, 177-78 (2d Cir.
2003); Boyette v. Lefevre, 246 F.3d 76, 88 (2d Cir. 2001).
The petitioner bears the burden of proving by a preponderance of the evidence that he is “in
custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §

F

2254(a); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997); Rivera v. New York, 2003 WL 22234679,
at *3 (S.D.N.Y. Aug. 28, 2003); see also Estelle v. McGuire, 502 U.S. 62, 68 (1991) (“[F]ederal
habeas corpus relief does not lie for errors of state law.”). The AEDPA also requires that “a
determination of a factual issue made by a State court shall be presumed to be correct [and t]he
applicant shall have the burden of rebutting the presumption of correctness by clear and convincing

T

evidence.” 28 U.S.C. § 2254(e)(1); see also DeBerry v. Portuondo, 403 F.3d at 66; Boyette v.
LeFevre, 246 F.3d at 88 (quoting § 2254(e)(1)) (internal quotations omitted).
The Second Circuit has provided additional guidance concerning application of this test,
noting that:
[u]nder AEDPA, we ask three questions to determine whether a federal court may
grant habeas relief: 1) Was the principle of Supreme Court case law relied upon in
the habeas petition “clearly established” when the state court ruled? 2) If so, was the
-8-

state court’s decision “contrary to” that established Supreme Court precedent? 3) If
not, did the state court’s decision constitute an “unreasonable application” of that
principle?
Williams v. Artuz, 237 F.3d 147, 152 (2d Cir. 2001) (citing Williams and Francis S. v. Stone, 221
F.3d 100, 108-09 (2d Cir. 2000)).
B. Claims Regarding a Personal Check From M.S.’s Father
Prior to seeking federal habeas relief, a petitioner must exhaust available state remedies, or
demonstrate that there is either an absence of available state remedies or that such remedies cannot
R

adequately protect petitioner’s rights.5 Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir. 2001) (quoting
28 U.S.C. § 2254(b)(1)); Ellman v. Davis, 42 F.3d 144, 147 (2d Cir. 1994). This exhaustion
requirement recognizes “respect for our dual judicial system and concern for harmonious relations
between the two adjudicatory institutions.” Daye v. Attorney Gen. of New York, 696 F.2d 186, 191
(2d Cir. 1982). Though both federal and state courts are charged with securing a state criminal
defendant’s federal rights, the state courts must initially be given the opportunity to consider and

F

correct any violations of federal law. Id. “The 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.” Glover v. Bennett, 1998 WL 278272, at *1
(N.D.N.Y. May 21, 1998) (quoting Daye v. Attorney Gen. of New York, 696 F.2d at 192).6

T

5

28 U.S.C. § 2254(b) and (c) provide, in part, as follows:

(b)(1) 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 unless it appears that: (A) the applicant has
exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available
State corrective process; or (ii) circumstances exist that render such process ineffective to protect the
rights of the applicant. . . .
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts
of the State, within the meaning of this section, if he has the right under the law of the State to raise,
by any available procedure, the question presented.
6

Because the AEDPA’s restriction on federal habeas power was premised upon the duty of state courts to
uphold the Constitution and faithfully apply federal laws, the AEDPA’s review standards apply only to federal claims
(continued...)

-9-

The writ of habeas corpus requires that petitioners “fairly presented” their claims to the state
courts before the federal system can issue the writ. See Jimenez v. Walker, 458 F.3d 130, 148-49
(2d Cir. 2006); see also Coleman v. Thompson, 501 U.S. 722, 731 (1991) (noting the exhaustion
requirement, codified at 28 U.S.C. § 2254(b)(1), is “grounded in principles of comity; in a federal
system, the States should have the first opportunity to address and correct alleged violations of [a]
state prisoner’s federal rights.”).
R

“In developing and refining the ‘fairly present’ standard, the Supreme Court has concentrated
on the degree of similarity between the claims that a petitioner presented to the state and federal
courts.” Jackson v. Edwards, 404 F.3d 612, 619 (2d Cir. 2005). A claim has been “fairly presented”
if the state courts are apprised of “both the factual and the legal premises of the claim [the petitioner]
asserts in federal court.” Daye v. Attorney Gen. of the State of New York, 696 F.2d at 191; Morales
v. Miller, 41 F. Supp. 2d 364, 374 (E.D.N.Y. 1999). “Although the petitioner need not have cited

F

‘book and verse on the federal constitution,’ he must have articulated ‘the substantial equivalent’
of the federal habeas claim.” Colon v. Artuz, 174 F. Supp. 2d 108, 114-15 (S.D.N.Y. 2001) (quoting
Picard v. Connor, 404 U.S. 270, 278 (1971)); see also Daye v. Attorney Gen. of New York, 696 F.2d
at 194. Thus, “the nature or presentation of the claim must have been likely to alert the court to the
claim’s federal nature.” Daye v. Attorney Gen. of New York, 696 F.2d at 192; Morales v. Miller, 41
T

F. Supp. 2d at 374.
A petitioner may fairly present the constitutional nature of his claim by
(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance

6

(...continued)
which have been actually adjudicated on the merits in the state court. Washington v. Shriver, 255 F.3d 45, 52-55 (2d
Cir. 2001). Accordingly, deference is not mandated under section 2254(d) if a state court decides the case on a
procedural basis, rather than on the merits. See Sellan v. Kuhlman, 261 F.3d 303, 309-10 (2d Cir. 2001).

-10-

on state cases employing constitutional analysis in like fact situations, (c) assertion
of the claim in terms so particular as to call to mind a specific right protected by the
Constitution, and (d) allegation of a pattern of facts that is well within the
mainstream of constitutional litigation.
Daye v. Attorney Gen. of New York, 696 F.2d at 194; see also Smith v. Duncan, 411 F.3d 340, 348
(2d Cir. 2005).
In the present case, the Respondent asserts that Petitioner has not properly exhausted four
of his claims: 1) weight of the evidence; 2) excessive sentence; 3) ineffectiveness of trial counsel;
and 4) Brady violations regarding M.S.’s father’s check. Resp’t Mem. of Law at pp. 12-15. In his
R

direct appeal to the Appellate Division, Petitioner raised both a weight of the evidence claim and
an excessive sentence claim. See Ex. A, Pet’r Appellate Br., at pp. 11-13. Respondent argues,
however, that Petitioner raised these claims only in “state statutory and case law terms” instead of
presenting a genuine issue of federal law. Id. at p. 14. This Court need not decide whether these
two claims are exhausted because, as explained below, both claims are based solely on state law

F

claims and are not cognizable in federal habeas petitions. However, Petitioner’s claim that his trial
counsel was ineffective for failing to produce a copy of a check from M.S.’s father, and Petitioner’s
claim that the prosecutor violated Brady by failing to produce a check, were not presented to the
state courts in any form and thus are unexhausted. On August 17, 2009, Petitioner filed a Motion
to Stay the Proceeding in order to present these unexhausted claims to the state courts through a

T

motion to vacate his judgment of conviction pursuant to Section 440.10 of New York’s Criminal
Procedural Law. Dkt. Nos. 22, Pet’r Motion To Stay & 24, Pet’r Reply. By an Order, dated
November 24, 2009, Petitioner’s Motion was denied for lack of good cause and as unduly delaying
final resolution of Petitioner’s federal claims. Dkt. No. 25.
Although a federal court may not grant a writ of habeas corpus on a claim that has not been
exhausted, the court has the discretion to deny such a petition. See 28 U.S.C. § 2254(b)(2); see
-11-

also Marziale v. Walker, 2000 WL 33767753, at *3 (N.D.N.Y. May 4, 2000). Additionally, the
Supreme Court has held that when a “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,” federal courts on habeas review must
also deem the claim procedurally defaulted. Coleman v. Thompson, 501 U.S. at 735 n.1 (quoted in
Sweet v. Bennett, 353 F.3d 135, 139 (2d Cir. 2003)). In other words, “[a]n unexhausted claim that
R

can no longer be exhausted is deemed procedurally defaulted.” Andrews v. Downstate Corr.
Facility, 2009 WL 3587280, at *2 (E.D.N.Y. Oct. 27, 2009) (citing Aparicio v. Artuz, 269 F.3d at
90).
New York law requires a state court to deny a motion to vacate a judgment based on a
constitutional violation when the defendant unjustifiably fails to argue the violation on direct appeal,
despite sufficient facts in the record. N.Y. CRIM. PROC. LAW § 440.10(2)(c).7 Here, Petitioner’s

F

claims that his trial counsel was ineffective for failing to produce a copy of a personal check from
the victim’s father, and that the prosecution committed a Brady violation for failing to produce a
subpoena duces tecum for M.S.’s father’s checking account, could and should have been brought
on direct appeal. Petitioner’s claims regarding this check and checking account were established
in the record, as the Petitioner himself went to great lengths to explicitly place his subpoena request
T

for M.S.’s father’s checking account on the record immediately following the jury’s verdict against
him. See Trial Tr. at pp. 416-17. Petitioner has not offered a reason, and we see none, that suggests
Petitioner and his appellate counsel would have needed a new evidentiary hearing pursuant to a

7

The purpose of this rule is to prevent Section 440.10 from “being employed as a substitute for direct appeal
when [the] defendant was in a position to raise an issue on appeal . . . or could readily have raised it on appeal but failed
to do so.” People v. Cooks, 491 N.E.2d 676, 678 (N.Y. 1986).

-12-

440.10 motion to develop these claims. Thus, this Court finds that these claims could have been
raised on direct appeal. Petitioner cannot now file a second appeal with the Third Department as
to these claims because a criminal defendant is “entitled to one (and only one) appeal” to the
Appellate Division. Aparicio v. Artuz, 269 F.3d at 91. Therefore, these claims are deemed
exhausted but procedurally barred for purposes of his habeas application. Spence v. Superintendent
Great Meadow Corr. Facility, 219 F.3d 162, 170 (2d Cir. 2000); Strogov v. Attorney Gen. of State
R

of New York, 191 F.3d 188, 193 (2d Cir. 1999) (failure to raise a claim based upon matters contained
within record on direct review to Appellate Division constitutes procedural default of such claim);
Senor v. Greiner, 2002 WL 31102612, at *10 (E.D.N.Y. Sept. 18, 2002).
When a claim in a federal habeas petition is procedurally barred, it cannot be heard by the
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

F

the claims will result in a fundamental miscarriage of justice.”8 Coleman v. Thompson, 501 U.S. at
750; Ramirez v. Attorney Gen. of State of New York, 280 F.3d 87, 94 (2d Cir. 2001); Fama v.
Comm’r of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000) (citing Coleman); King v. Greiner, 210
F. Supp. 2d 177, 182 (E.D.N.Y. 2002) (stating the court is precluded from considering unexhausted
claims “unless petitioner can establish cause to excuse the default and prejudice, or actual
T

innocence”).
To establish legal cause for his or her procedural default, a petitioner must show that some
objective external factor impeded his or her ability to comply with New York’s procedural rules.

8

This final exception, however, is intended for the “extraordinary case, 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); see
also Lebron v. Mann, 40 F.3d 561, 564 (2d Cir. 1994).

-13-

Murray v. Carrier, 477 U.S. at 488; Restrepo v. Kelly, 178 F.3d 634, 638 (2d Cir. 1999). Examples
of external factors include interference by officials, ineffective assistance of counsel, or that “the
factual or legal basis for a claim was not reasonably available” at trial nor on direct appeal. Murray
v. Carrier, 477 U.S. at 488. Here, Petitioner has not demonstrated nor stated any fact that would
support a finding of legal cause for his procedural default sufficient to meet this standard. Because
he cannot establish such cause, this Court need not decide whether he also suffered actual prejudice
R

as to this claim because federal habeas relief on the basis of a procedurally defaulted claim is
unavailable unless both cause and prejudice are demonstrated. See, e.g., Stepney v. Lopes, 760 F.2d
40, 45 (2d Cir. 1985); Pou v. Keane, 977 F. Supp. 577, 581 (N.D.N.Y. 1997) (citing Stepney).
Moreover, Petitioner has not established that a fundamental miscarriage of justice would occur if
the Court could not adjudicate his Habeas Petition such that Petitioner is actually innocent of the

F

crimes he was convicted of. Where there is no basis in the record for overlooking the procedural
default, the barred claims are precluded from habeas review as well. Therefore, this Court
recommends that the Petitioner’s claims that he was denied effective assistance of counsel from a
failure to obtain a copy of a check from M.S.’s father given to the Petitioner, and that the
prosecution committed a Brady violation for failing to produce M.S.’s father’s checking account
records, be denied as procedurally defaulted.

T

C. Weight of the Evidence and Harsh and Excessive Sentence
Petitioner claims that the guilty verdicts for the First and Third Degree Sodomy convictions
were against the weight of the evidence. Pet. at p. 7. This claim is not cognizable under federal
habeas analysis because it alleges a violation of state law. See Dunnigan v. Keane, 137 F.3d 117,
125 (2d Cir. 1998); Higgins v. Artus, 2010 WL 3119510, at *5 n.3 (N.D.N.Y. Aug. 6, 2010); see

-14-

also 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 York Criminal Procedure Law § 470.15[5].”).
Because Petitioner has not raised a claim alleging a violation of federal law, his weight of the
evidence claim should be denied.
Petitioner also argues that his sentence was “harsh and excessive.” Pet. at p. 7. When a
petitioner’s sentence is within the statutory range of the corresponding crime he was convicted of,
R

no federal constitutional issue cognizable on habeas review is presented. See White v. Keane, 969
F.2d 1381, 1383 (2d Cir. 1992) (“No federal constitutional issue is presented where, as here, the
sentence is within the range prescribed by state law.”); see also Garrett v. Smith, 2006 WL 2265094,
at *12 (E.D.N.Y. Aug. 8, 2006) (“It is well settled that an excessive sentence claim may not be
raised as grounds for habeas corpus relief if the sentence is within the range prescribed by state

F

law.”) (quoting White). In New York, a conviction of Sodomy in the First Degree, which is
classified as a class B violent felony, can range from a determinate prison sentence of five to twentyfive years. N.Y. PENAL LAW §§ 130.50(2) & 70.02(1)(a), 2(a) & (3)(a). Petitioner’s aggregate
fifteen-year prison sentence is within the range prescribed by New York State law. Thus,
Petitioner’s excessive sentence claim is not cognizable on habeas review and should be denied.
D. Ineffective Assistance of Trial Counsel

T

DeCicco alleges that he received ineffective assistance from his trial counsel. Pet. at p. 5.
Petitioner’s ineffective assistance claim is focused on his trial counsel’s alleged failure to: 1) file a
notice of alibi or pursue an alibi defense; 2) obtain a more specific date for the offenses alleged in
the indictment; and 3) produce a copy of a personal check that was allegedly given to Petitioner from
M.S.’s father. As stated above, Petitioner’s claim relating to a purported check from M.S.’s father

-15-

was raised for the first time in this instant Petition, and is deemed exhausted but procedurally barred.
His remaining claims have been adjudicated on the merits by the New York state courts. In
Petitioner’s direct appeal to the Third Department, the court stated it had “considered defendant’s
remaining arguments and [found] them equally without merit.” People v. DeCicco, 830 N.Y.S.2d
at 839. This statement is a sufficient demonstration that the Appellate Division adjudicated
Petitioner’s claims of ineffective assistance of counsel on the merits. See, e.g., Sellan v. Kuhlman,
R

261 F.3d 303, 314 (2d Cir. 2001) (finding an appellate court’s one-word decision that a coram nobis
petition was “denied” constituted an “adjudication on the merits” because there was “no basis for
believing that the Appellate Division rejected the claim on non-substantive grounds.”). Therefore,
because these claims have been adjudicated on the merits by a New York state court, they are
analyzed under AEDPA’s deferential standard of review. See Torres v. Berbary, 340 F.3d 63, 68
(2d Cir. 2003); Sellan v. Kuhlman, 261 F.3d at 311-12 (finding that when a state court rejects a claim

F

on the merits, the “federal court will focus its review on whether the state court’s ultimate decision
was an unreasonable application of clearly established Supreme Court precedent”) (internal citation
and quotation marks omitted).
To establish a deprivation of a Sixth Amendment right to effective assistance of trial counsel,
a petitioner must show that: (1) his attorney’s performance was deficient such that it fell below an
T

objective standard of reasonableness measured by the prevailing professional norms; and (2) this
deficient performance prejudiced his defense. Bell v. Cone, 535 U.S. 685, 695 (2002) (citing
Strickland v. Washington, 466 U.S. 668, 687-88 (1984)); see also Aeid v. Bennett, 296 F.3d 58, 6263 (2d Cir. 2002); Brown v. Artuz, 124 F.3d 73, 79-80 (2d Cir. 1997); Rattray v. Brown, 261 F.

-16-

Supp. 2d 149, 157 (E.D.N.Y. 2003).9 Prejudice is demonstrated by a showing of a “reasonable
probability” that, but for counsel’s unprofessional errors, the result of the trial would have been
different. Strickland v. Washington, 466 U.S. at 694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. In determining the reasonableness of
counsel’s conduct, courts must “indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance; that is, the defendant must overcome the
R

presumption that, under the circumstances, the challenged action ‘might be considered sound trial
strategy.’” Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
First, Petitioner claims that his trial counsel was ineffective for failing to seek a more specific
date for the alleged offenses. Specifically, Petitioner’s complaints stem from the inconsistency
between M.S.’s initial contact with the police, where M.S. reported that the incident occurred on
July 25, 2003, and the indictment, which states that the alleged acts occurred on or about July 29,

F

2003. See R., Ex. A, Pet’r Appellate Br., at pp. 7-9 . The record shows, however, that Petitioner’s
trial counsel did in fact seek and obtain a more specific date for the alleged offense.
At the arraignment, Petitioner’s initial counsel, Daniel Gaffney, expressed his concern to the
prosecution that “there may well be a typo in the indictment” due to the inconsistency between the
stated incident dates, and he requested to have the date clarified. R., Arraignment Hr’g, Tr., dated
T

Oct. 16, 2003, at pp. 2-3. Pursuant to this request, the prosecution submitted a discovery
affirmation, similar to a bill of particulars, which repeated and firmly established the date stated in
the indictment, July 29, 2003, as the date of the alleged incident. R., Ex. C, Discovery Affirmation
of Emmanuel C. Nneji, Esq., dated October 23, 2003. During the suppression hearing, Stuart
9
In Williams v. Taylor, the Supreme Court declared that “the rule set forth in Strickland qualifies as ‘clearly
established Federal law[.]’” 529 U.S. 362, 391 (2000); see also Sellan v. Kuhlman, 261 F.3d at 309.

-17-

Borrero, Petitioner’s subsequently obtained trial counsel, again noted the discrepancy between stated
dates of the incident, and again requested a more definite date to which the incident allegedly
occurred. Suppression and Sandoval Hr’g Tr., dated Oct. 19, 2004, at pp. 57-58. Thus, the
Petitioner’s claim that his trial counsel failed to obtain a more specific date for the alleged offenses
is without merit because his counsel, in fact, specifically pointed out inconsistencies in the stated
dates and forced the prosecution to submit a discovery affirmation that confirmed the indictment’s
R

date. Furthermore, Petitioner’s trial counsel attempted to impeach M.S. on cross-examination
regarding the inconsistent statement. See Trial Tr. at pp. 244-45. Therefore, Petitioner cannot meet
the first prong of Strickland – that his counsels’ performances were deficient as objectively
unreasonable – because his lawyers, in fact, did what the Petitioner claims they failed to do. See
United States v. Arena, 180 F.3d 380, 396 (2d Cir. 1999) (“Failure to make a meritless argument
does not amount to ineffective assistance.”) (citations omitted). The Appellate Division’s rejection

F

of this claim was neither contrary to, nor based on an unreasonable application of, federal law, and
this Court recommends that this claim be denied.
Secondly, Petitioner claims that his attorneys were ineffective for failing to file a notice of
alibi or pursue an alibi defense. This Court has examined the record and finds this claim is likewise
without merit. As described above, Petitioner’s initial attorney appeared at Petitioner’s arraignment
T

and asked for a clarification on the date of the incident listed on the indictment. Arraignment Hr’g
Tr. at pp. 2-3. He also successfully requested a tolling of the notice of alibi deadline until the date
discrepancy could be resolved, stating that he was prepared with an alibi for July 25th, but not for
July 29th. Id. During the suppression hearings, Petitioner’s subsequent attorney, Mr. Borrero, told
the court that Petitioner wanted to present Randy Cook, who was incarcerated at the time in Ulster

-18-

County Jail, as an alibi witness, but that Mr. Borrero did not serve an alibi notice on the prosecution
because, as he stated to the court, “based upon conversations between myself and my client, I had
many reservations about doing so.” Suppression and Sandoval Hr’g Tr. at pp. 79-80. Mr. Borrero
also relayed to the court Petitioner’s request for a subpoena duces tecum for Petitioner’s own cell
phone records, which Petitioner claimed would be alibi evidence. Id. at pp. 70-71. When pressed
by the trial court to explain how these cell phone records would provide Petitioner with an alibi
R

defense, however, Mr. Borrero explained that the records would purportedly show that M.S. was in
Woodstock, New York, at the time of the alleged offenses, and that the evidence was not alibi
evidence but would be used to impeach M.S. on the stand. Id. at pp. 71-79. The concession that the
cell phone records were not alibi evidence was repeated by Petitioner’s appellate counsel on his
direct appeal to the Appellate Division. See R., Ex. A, Pet’r Appellate Br., at p.6 (“[A]lthough not
technically alibi evidence . . . .”).

F

Petitioner cannot show his trial counsels’ performance was objectively unreasonable.
Petitioner admitted to the police, upon his arrest, that he was home the day of the alleged incident
and gave M.S. prescription-strength Ibuprofen. See Trial Tr. at pp. 277-79. Counsel cannot be
ineffective for failing to file a notice of alibi or pursue an alibi defense when doing so would be
creating, in counsels’ professional opinion, a false, fabricated alibi. See Shaw v. Artuz, 2001 WL
T

1645933, at *1 (S.D.N.Y. Dec. 21, 2001) (“Counsel made a tactical decision not to call [alibi
defense] witnesses . . . . [which] was well within the range of tactical strategy that is left to the
professional judgment of defense counsel.”) (citing Strickland v. Washington, 466 U.S. at 689).
Petitioner’s defense counsel could have reasonably decided that the jury would not have believed
Petitioner’s attempt to present an alibi through Randy Cook’s testimony, especially considering

-19-

Petitioner’s statements to the police that he was with M.S. that night, and that the jury might react
negatively toward Petitioner if presented with conflicting accounts. See Henry v. Poole, 409 F.3d
48, 65 (2d Cir. 2005) (“[I]t is generally acknowledged that an attempt to create a false alibi
constitutes evidence of the defendant’s consciousness of guilt. . . . Many jurors regard a false alibi
as an admission of guilt.”) (internal quotation marks and citations omitted).

Furthermore,

Petitioner’s attorneys did not err by failing to file a notice of alibi regarding Petitioner’s cell phone
R

records, which clearly did not constitute alibi evidence. Petitioner’s defense counsels’ failure to file
a notice of alibi or pursue an alibi defense therefore falls within the wide range of professional
assistance considered reasonable by Strickland. See, e.g., 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 655, 660 (2d Cir. 1998) (per curiam)).

F

Because Petitioner cannot show his trial counsels’ performance fell below objective standards of
reasonableness pertaining to either obtaining a more specific date of the alleged offenses or pursuing
an alibi defense, this Court recommends Petitioner’s claim be denied.
E. Legally Insufficient Evidence
Petitioner claims his conviction of Sodomy in the First Degree was based upon legally
T

insufficient evidence. Pet. at p. 7. In his Appellate Brief, he further expanded the argument that no
“rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Ex. A, Pet’r Appellate Br., at p. 9 (citing People v. Contes, 60 N.Y.2d 620, 621 (1983)).
New York Penal Law § 130.50, as it stood at the time of Petitioner's conviction, stated the elements
of Sodomy in the First Degree as the following: “A person is guilty of sodomy in the first degree

-20-

when he or she engages in deviate sexual intercourse with another person. . . who is incapable of
consent by reason of being physically helpless.” Petitioner argues that the prosecution failed to
present sufficient evidence to prove that, as a result of M.S.’s consumption of drugs or alcohol, M.S.
was physically helpless and thus incapable of consenting to deviate sexual intercourse with
Petitioner. On Petitioner’s direct appeal, the Third Department held that Petitioner failed to preserve
for review his claim that his conviction of Sodomy in the First Degree was legally insufficient.
R

Specifically, the court found that Petitioner failed to move to dismiss that count of the indictment
on that specific ground. People v. Decicco, 830 N.Y.S.2d at 838 (citing People v. Gray, 652 N.E.2d
919 (N.Y. 1995)).
Federal Courts will not review a “question of federal law decided by a state court if the
decision of that court rests on a state law ground that is independent of the federal question and
adequate to support the judgment . . . whether the state law ground is substantive or procedural.”

F

Cotto v. Herbert, 331 F.3d 217, 238 (2d Cir. 2003) (citing Coleman v. Thompson, 501 U.S. 722, 729
(1991)). A procedural default from a decision based on an independent and adequate state law
ground will bar habeas review of a federal claim when “the last state court rendering a judgment in
the case ‘clearly and expressly’ states that its judgment rests on a state procedural bar.” Tankleff v.
Senkowski, 135 F.3d 235, 247 (2d Cir. 1998) (quoting Coleman v. Thompson, 501 U.S. at 735).
T

In holding that these claims were not preserved for appellate review, the Third Department,
on Petitioner’s direct appeal, decided the claims on state procedural rules independent of any federal
question. The Third Department went on, however, to state that “[n]evertheless, were we to consider
[Petitioner’s] argument, we would find it without merit. . . . [because] the People were not required
to prove that the victim’s sleep was drug or alcohol induced.” People v. Decicco, 830 N.Y.S.2d at

-21-

838. Rather, evidence showed that M.S. was “asleep and awoke to find [Petitioner] sodomizing him,
which was sufficient to permit the jury to conclude that the victim was physically helpless at the
time of the criminal act.” Id. at 838-39. The bar on habeas review resulting from a procedural
default applies where the state court issues an alternative holding addressing a procedurally
defaulted claim on the merits. See, e.g., Harris v. Reed, 489 U.S. 255, 264 n.10 (1989); Galdamez
v. Keane, 394 F.3d 68, 77 (2d Cir. 2005). Thus, the Third Department’s alternative examination of
R

the merits of Petitioner’s claim does not excuse the explicit invocation of a procedural bar such that
federal courts can review the claim.
A procedural bar is “adequate” for purposes of habeas review if it is based on a rule that is
“‘firmly established and regularly followed’ by the state in question.” Garcia v. Lewis, 188 F.3d
at 77 (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)). New York’s preservation
requirement – that in order to preserve an issue for appeal, the defendant must specifically focus on

F

the alleged error such that the defendant “make[s] his or her position known to the [trial] court,”
People v. Gray, 652 N.E.2d at 921 – is firmly established and regularly followed, as shown by
relevant case law. See, e.g., Garvey v. Duncan, 485 F.3d 709, 714-15 (2d Cir. 2007) (“New York’s
highest courts uniformly instruct that to preserve a particular issue for appeal, defendant must
specifically focus on the alleged error.”) (citing People v. Grey, 652 N.E.2d at 919). Therefore, as
T

the state law ground relied on for this claim was independent of the federal question and adequate
to support the decision of the state court, Petitioner’s claim that his First Degree Sodomy conviction
was legally insufficient is barred from federal habeas review.
As stated before, a federal court cannot review a claim that has been procedurally defaulted
absent the Petitioner demonstrating cause for his default and resulting prejudice, or presenting

-22-

evidence to show that he is “actually innocent” of the crime of which he was found guilty. Here,
Petitioner does not argue cause for the default and resulting prejudice, nor does this Court see any
basis in the record for such an argument. To the extent Petitioner alleges that the procedural bar
resulted from ineffective assistance of counsel, this Court finds no evidence for that claim in the
record. As examined above, this Court finds no merit in Petitioner’s claims that his trial counsel
provided ineffective assistance. Furthermore, the record supports the conclusion that Petitioner’s
R

counsel actively participated throughout the trial, such as by objecting to trial testimony, extensively
cross-examining and challenging the credibility of the prosecution’s witnesses, and by successfully
excluding bottles of prescription medications and a photograph of a nude boy from trial. See Trial
Tr. at pp. 209-12, 222-25, 257-58, 279-285, 289-90, & 318-23; Suppression and Sandoval Hr’g Tr.
at pp. 58-61. Petitioner has also not alleged nor established his situation as one of actual innocence
or a rare case where a fundamental miscarriage of justice would occur if the Court could not

F

adjudicate his claim. Therefore, this Court recommends Petitioner’s claim that his conviction for
Sodomy in the First Degree was based on legally insufficient evidence be denied as procedurally
barred from federal review.
III. CONCLUSION
For the reasons stated herein, it is hereby
T

RECOMMENDED, that the Petition for a Writ of Habeas Corpus (Dkt. No. 1) be
DENIED; and it is further
RECOMMENDED, that because the Court finds Petitioner 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 should issue with respect to any of Petitioner’s claims. See 28 U.S.C. § 2253(c)(2) (“A

-23-

certificate of appealability may issue . . . only if the applicant has made a substantial showing of the
denial of a constitutional right.”); see also Lucidore v. New York State Div. of Parole, 209 F.3d 107,
112 (2d Cir. 2000), cert. denied 531 U.S. 873 (2000); and it is further
ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation and
Order upon the parties to this action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file
R

written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court.
FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing
Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. §
636(b)(1); FED. R. CIV. P. 72, 6(a), & 6(e).

F

Date: December 22, 2010
Albany, New York

T

-24-