Harvey v. Capra

Filing 37

MEMORANDUM DECISION: ORDERED THAT the Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus is DENIED. ORDERED THAT the Court declines to issue a Certificate of Appealability. 28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 70 5 (2004) ("To obtain a certificate of appealability, a prisoner must 'demonstrat[e] that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues prese nted are adequate to deserve encouragement to proceed further.'" (quoting Miller-El, 537 U.S. at 327)). Any further request for a Certificate of Appealability must be addressed to the Court of Appeals. See FED. R. APP. P. 22(b); 2D CIR. R. 22.1. Signed by Judge James K. Singleton on 3/29/17. (served on petitioner by regular mail)(alh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
GREGORY HARVEY,
No. 9:14-cv-00577-JKS
Petitioner,
MEMORANDUM DECISION
vs.
MICHAEL CAPRA, Superintendent, Sing
Sing Correctional Facility,
Respondent.

Gregory Harvey, a New York state prisoner proceeding pro se, filed a Petition for a Writ
of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Harvey is in the custody of the
New York State Department of Corrections and Community Supervision and incarcerated at
Sing Sing Correctional Facility. Respondent has answered the Petition, and Harvey has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
On May 2, 2006, Harvey was charged with first-degree rape, third-degree assault,
second-degree unlawful imprisonment, and fourth-degree criminal mischief in connection with
an incident that took place at the Holiday Motel in the Town of Schuyler on March 13, 2006.
Upon request, Harvey was examined by the Rochester Psychiatric Center. The Center’s report
indicated that Harvey was unable to assist his attorney in his own defense. At a hearing before
the county court on the issue, Harvey denied that he was incompetent, but the court committed
him to the custody of the Office of Mental Hygiene.
In October 2006, the court received a report from Mid-Hudson Forensic Psychiatric
Center that determined that Harvey was fit to proceed. Defense counsel requested a competency
hearing, which was held on February 28, 2007. At the hearing, Harvey was warned after a

number of disruptions that he would be removed. Harvey then interjected that there was no
evidence of his crimes, that he had not been indicted, and that he would sue the court. Harvey
was forcibly removed from the courtroom, and the county court placed on the record that Harvey
was constantly shouting at the court while the court was attempting to speak as the cause for
removal. Dr. Phone Win, a forensic psychiatrist and pathologist at Mid-Hudson Psychiatric
Center testified that Harvey understood the charges against him and the trial process and was
mentoring other patients. He testified that Harvey understood the importance of working with
his attorney and his belief that Harvey was fit to proceed. The court deemed Harvey competent
to stand trial.
On May 21, 2007, the court held a hearing to determine if Harvey would be shackled
during the trial. Officer Barnes, a corrections officer, testified as to incident reports at the
facility housing Harvey, which referred to seven separate instances involving harassment,
threats, tampering, disorderly conduct, damage, and contraband. Sergeant Hart testified that, two
weeks prior to the hearing, Harvey refused to take his medicine and threatened in writing to kill
the sheriff and his family on the refusal form. The court also agreed to the prosecution’s request
that it take judicial notice of Harvey’s removal from the competency hearing. Harvey also
testified. He indicated that no other facility would take him due to his behavior, even though he
is supposed to be at a facility with a 24-hour medical staff and mental health counselor. Harvey
asserted that his rights were being violated and that he wished to file lawsuits against the facility.
When his attorney asked him if he could make assurances to the court that he could proceed to
trial without shackles, Harvey stated that he had no problem with court. The court stated that it
was concerned with Harvey’s previous appearance and with the recent specific threat. The court

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concluded that, based on Harvey’s prior attitude and actions in the courtroom, Harvey would
remain shackled during trial for safety concerns. The court directed that Harvey’s writing hand
remain free and that he be supplied with a soft-tipped writing instrument. Prior to jury selection,
the court advised the jury that Harvey was in custody, had deputies around him, and was in
handcuffs. The court instructed the jurors that the fact Harvey was in custody was not evidence
and could not be considered evidence and that the jury must afford him the presumption of
innocence. The jury asked for, and received, the panel’s assurance that they could provide that
presumption.
During trial, the victim testified that she had been in a sexual relationship with Harvey
and was with him at the Holiday Motel on the evening of March 13. According to the victim,
Harvey went through her phone and found a man’s name in it, which caused them to argue.
Over a half-hour period, Harvey hit her numerous times, causing her to repeatedly hit the floor.
When she tried to dial 911, Harvey smashed her phone and threw her on the bed. The victim
testified that Harvey forced himself inside of her multiple times, while she kept saying “no.”
She asked to leave, but Harvey would not let her. She testified that she spent the night there
because she was scared and Harvey had threatened to hurt her kids. She testified that, the
following day, she remained in the room after Harvey left and the maid came. She replied “yes”
when the maid asked if she needed help, and told the maid what had happened. The maid called
a woman’s shelter, who arranged for a cab to take her to a safe place in Utica. The following
day, the victim was taken to the emergency room. Upon stipulation, the victim’s medical
records from the hospital were admitted as an exhibit. Upon cross-examination, the victim stated
that it was not until March 15, two days after the incident, that the maid came and she left the

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room. She testified that Harvey stayed in the room on March 14. Employees for the cab
company and the hotel testified that a cab company picked up the victim from the hotel on
March 15. A witness at the hotel testified that he had heard a woman crying from Harvey’s
room on the evening of March 13. A representative from Harvey’s employer testified that
Harvey’s time sheet indicated that he did not work on March 14. Finally, a law enforcement
officer testified that he interviewed the victim on March 15 and took her statement and photos of
her. The prosecution then rested. The defense then moved for dismissal of the rape charge on
the ground that it was not supported by physical evidence, and the medical records showed no
trauma to the vaginal area, and also moved to dismiss the unlawful imprisonment charge for lack
of evidence. The court denied the motion, finding that the arguments went solely to the weight
of the evidence. The defense then rested.
The jury found Harvey guilty of all counts of the indictment except for fourth-degree
criminal mischief. Harvey later appeared with counsel for sentencing and immediately swore at
the court and called the judge a racist. The court indicated that sentencing would continue
despite Harvey’s profanities. The court gave Harvey a sentence of 20 years’ imprisonment on
the first-degree rape conviction, with 5 years of post-release supervision. Harvey was sentenced
to 1-year imprisonment on each of the third-degree assault and unlawful imprisonment
convictions, to run concurrently with the rape sentence.
Through counsel, Harvey appealed his conviction, arguing that: 1) his shackling during
trial violated his constitutional rights; and 2) the verdict was against the weight of the evidence
and not supported by legally sufficient evidence. Harvey also submitted a pro se supplemental
brief, in which he argued that: 1) his trial counsel was ineffective; 2) the state police did not have

4

probable cause to arrest him; 3) the prosecutor withheld exculpatory information; and 4) the trial
judge was biased against him. On November 9, 2012, the Appellate Division of the New York
Supreme Court unanimously affirmed the judgment against Harvey in a reasoned opinion.
People v. Harvey, 953 N.Y.S.2d 439, 440 (N.Y. App. Div. 2012). Harvey sought in the New
York Court of Appeals review of the claims raised in both his counseled and supplemental
briefs. The Court of Appeals summarily denied leave on May 14, 2013.
The record indicates that Harvey then attempted to file a writ of error coram nobis in the
Appellate Division, but the motion papers were returned to him as improperly filed. The record
does not indicate that Harvey re-filed the papers in the Appellate Division. Rather, he sought
leave in the Court of Appeals to appeal the Appellate Division’s rejection of his motion papers,
which Respondent indicates was not received by the Court of Appeals.
Harvey then timely filed a pro se Petition for a Writ of Habeas Corpus to this Court on
May 12, 2014.
II. GROUNDS RAISED
In his pro se Petition before this Court, Harvey argues that: 1) his arrest and indictment
were illegal; 2) the prosecutor wrongfully withheld exculpatory evidence; 3) his trial and
appellate counsel were ineffective; and 4) he is actually innocent of the crimes of which he was
convicted.1

1

In a filing dated more than two weeks after his Petition, Harvey summarily states
that he was “wrongfully convicted as a[] mentally ill incompetent to stand trial.” Likewise,
Harvey first mentions his shackling in his Traverse. His Petition, however, does not challenge
the trial court’s determinations that he was competent to stand trial and required to be shackled
and does not refer to those issues in any way. The Court does not ordinarily consider grounds
raised after the initial Petition. “The petition must (1) specify all the grounds for relief available
to the petitioner; (2) state the facts supporting each ground; [and] (3) state the relief
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III. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254(d), this Court cannot grant relief unless the decision of the state court was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” § 2254(d)(1), or “was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding,” § 2254(d)(2). A statecourt decision is contrary to federal law if the state court applies a rule that contradicts controlling
Supreme Court authority or “if the state court confronts a set of facts that are materially
indistinguishable from a decision” of the Supreme Court, but nevertheless arrives at a different
result. Williams v. Taylor, 529 U.S. 362, 406 (2000).
To the extent that the Petition raises issues of the proper application of state law, they are
beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.
Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was
correctly applied). It is a fundamental precept of dual federalism that the states possess primary
authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62,
67-68 (1991) (a federal habeas court cannot reexamine a state court’s interpretation and application

requested . . . .” Rules Governing Section 2254 Cases in the U.S. Dist. Courts, Rule 2(c) (2012)
(emphasis added). To the extent that Harvey wishes to raise additional grounds, the proper
procedure would be to file a motion to amend the petition under Federal Rule of Civil Procedure
15. In this case, however, such motion would futile because the amendment would not relate
back to the initial filing and would, therefore, be barred by the one-year limitation period of 28
U.S.C. § 2244(d)(1). See Mayle v. Felix, 545 U.S. 644, 655-64 (2005) (discussing at length the
interplay between Habeas Rule 2(c) and Fed. R. Civ. R. P. 15). In any event, Harvey did not
present to the state courts any claim challenging the competency determination, and it is
therefore unexhausted. Accordingly, the Court will not consider the trial court’s findings that
Harvey was competent and should be shackled at trial.
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of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state court knew and
correctly applied state law), overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002).
In applying these standards on habeas review, this Court reviews the “last reasoned decision”
by the state court. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991); Jones v. Stinson, 229 F.3d 112,
118 (2d Cir. 2000). Where there is no reasoned decision of the state court addressing the ground or
grounds raised on the merits and no independent state grounds exist for not addressing those
grounds, this Court must decide the issues de novo on the record before it. See Dolphy v. Mantello,
552 F.3d 236, 239-40 (2d Cir. 2009) (citing Spears v. Greiner, 459 F.3d 200, 203 (2d Cir. 2006));
cf. Wiggins v. Smith, 539 U.S. 510, 530-31 (2003) (applying a de novo standard to a federal claim
not reached by the state court). In so doing, the Court presumes that the state court decided the
claim on the merits and the decision rested on federal grounds. See Coleman v. Thompson, 501 U.S.
722, 740 (1991); Harris v. Reed, 489 U.S. 255, 263 (1989); see also Jimenez v. Walker, 458 F.3d
130, 140 (2d Cir. 2006) (explaining the Harris-Coleman interplay); Fama v. Comm’r of Corr.
Servs., 235 F.3d 804, 810-11 (2d Cir. 2000) (same). This Court gives the presumed decision of the
state court the same AEDPA deference that it would give a reasoned decision of the state court.
Harrington v. Richter, 131 S. Ct. 770, 784-85 (2011) (rejecting the argument that a summary
disposition was not entitled to § 2254(d) deference); Jimenez, 458 F.3d at 145-46. Under the
AEDPA, the state court’s findings of fact are presumed to be correct unless the petitioner rebuts this
presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537
U.S. 322, 340 (2003).

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IV. DISCUSSION
A.

Exhaustion

As Respondent correctly contends, a number of Harvey’s claims are unexhausted. This
Court may not consider claims that have not been fairly presented to the state courts. 28 U.S.C. §
2254(b)(1); see Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing cases). Exhaustion of state
remedies requires the petition to fairly present 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). A petitioner must alert the state courts to the fact that
he is asserting a federal claim in order to fairly present the legal basis of the claim. Id. at 365-66.
An issue is exhausted when the substance of the federal claim is clearly raised and decided in the
state court proceedings, irrespective of the label used. Jackson v. Edwards, 404 F.3d 612, 619 (2d
Cir. 2005). To be deemed exhausted, a claim must also have been presented to the highest state
court that may consider the issue presented. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
In New York, to invoke one complete round of the State’s established appellate process, a criminal
defendant must first appeal his or her conviction to the Appellate Division and then seek further
review by applying to the Court of Appeals for leave to appeal. Galdamez v. Keane, 394 F.3d 68,
74 (2d Cir. 2005). Further, “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,’ the federal habeas court should
consider the claim to be procedurally defaulted.” Clark v. Perez, 510 F.3d 382, 390 (2d Cir. 2008)
(citation omitted); see also Grey v. Hoke, 933 F.2d 117, 121 (2d Cir. 2001).

8

Here, Harvey did not assert in constitutional terms his claim that the indictment was illegal.
Likewise, he did not raise at all to the state courts his actual innocence claim. Because it appears
that these unexhausted claims are based on the record, they could have been raised on direct appeal
but were not; consequently, Harvey cannot bring a motion to vacate as to such claims. N.Y. CRIM.
PROC. LAW § 440.10(2)(c) (“[T]he court must deny a motion to vacate a judgment when[,][a]lthough
sufficient facts appear on the record of the proceedings underlying the judgment to have permitted,
upon appeal from such judgment, adequate review of the ground or issue raised upon the motion,
no such appellate review or determination occurred owing to the defendant's unjustifiable failure to
take or perfect an appeal . . . .”). Accordingly, they may be deemed exhausted but procedurally
defaulted. Clark, 510 F.3d at 390; Grey, 933 F.2d at 121.
Harvey did not properly raise before the state court his claim that appellate counsel was
ineffective. Although he attempted to file a coram nobis motion, the Appellate Division returned
it to him without considering it due to filing defects, which the record does not indicate Harvey
fixed. But because Harvey can still bring a coram nobis motion in the Appellate Division, his claim
is not procedurally defaulted. But even if Harvey could still exhaust this claim in state court, the
Court declines to stay the Petition and allow Harvey to return to state court to satisfy the exhaustion
requirements. See Zarvela v. Artuz, 254 F.3d 374, 380-83 (2d Cir. 2001). Harvey has not requested
that this Court stay and hold his Petition in abeyance. Moreover, the Supreme Court has held that
it is an abuse of discretion to stay a mixed petition pending exhaustion where: 1) the petitioner has
not shown good cause for failing to exhaust all available state court remedies; and 2) the
unexhausted claim is “plainly meritless.” Rhines v. Weber, 544 U.S. 269, 277 (2005).

9

Despite Harvey’s failure to exhaust his claims, this Court nonetheless may deny his claims
on the merits and with prejudice. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas
corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the
remedies available in the courts of the State.”). This is particularly true where the grounds raised
are meritless. See Rhines, 544 U.S. at 277. Accordingly, this Court declines to dismiss these claims
solely on exhaustion grounds and instead reach the merits of the claims as discussed below.
B.

Merits
In any event, even if Harvey had fully exhausted his claims before the state courts, he still

would not be entitled to relief on them. For the reasons discussed below, the Court denies relief on
the merits of his unexhausted claims. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of
habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust
the remedies available in the courts of the State.”). As further discussed below, the Court also
denies relief on the merits of his exhausted claims.
1.

Illegal arrest and indictment (Ground 1)

Harvey first argues that his conviction should be reversed because: a) he was arrested
without probable cause; and 2) the grand jury process was defective. His wrongful arrest claim is
foreclosed by the Supreme Court’s decision in Stone v. Powell, 428 U.S. 465 (1976). Under Stone,
“where the State has provided an opportunity for full and fair litigation of a Fourth Amendment
claim,[2]” federal habeas corpus relief will not lie for a claim that evidence recovered through an

2

The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or affirmation, and particularly
10

illegal search or seizure was introduced at trial. Id. at 482. The Stone v. Powell doctrine applies to
all Fourth Amendment claims, including claims of illegal stops, arrests, searches, or seizures based
on less than probable cause, and it applies regardless of the nature of the evidence sought to be
suppressed. Cardwell v. Taylor, 461 U.S. 571, 572-73 (1983) (per curiam).
The Second Circuit has made clear that all Stone requires is that the State provide a petitioner
the opportunity to litigate his Fourth Amendment claim. See McPhail v. Warden, Attica Corr.
Facility, 707 F.2d 67, 69-70 (2d Cir. 1983). In order to receive habeas review of a Fourth
Amendment claim, a petitioner must demonstrate either that the State failed to provide any
“corrective procedures” by which Fourth Amendment claims could be litigated, or that the State had
such procedures in place but that the petitioner was unable to avail himself of those procedures
“because of an unconscionable breakdown in the underlying process.” Capellan v. Riley, 975 F.2d
67, 70 (2d Cir. 1992). A “mere disagreement with the outcome of a state court ruling is not the
equivalent of an unconscionable breakdown in the state’s corrective process,” and thus is insufficient
to give this Court authority to review Fourth Amendment claims. Id. at 72. That New York has in
place such procedures is well-settled. See id. at 70 & n.1. Harvey has not asserted the existence of
an unconscionable breakdown of that process, nor has he alleged any facts that would demonstrate
such a breakdown in this case. Harvey therefore cannot prevail on his challenge to the legality of
his arrest.

describing the place to be searched, and the persons or things to be seized.
U.S. CONST. amend. IV.
11

Harvey fares no better with respect to the grand jury proceedings because his subsequent
conviction forecloses any potential relief with respect to such claim. For federal constitutional
purposes, a jury conviction transforms any defect in the grand jury’s charging decision into harmless
error because the trial conviction establishes probable cause to indict and also proof of guilt beyond
a reasonable doubt. See, e.g., United States v. Mechanik, 475 U.S. 66, 67 (1986) (“[T]he petit jury’s
verdict of guilty beyond a reasonable doubt demonstrates a fortiori that there was probable cause
to charge the defendants with the offenses for which they were convicted. Therefore, the
convictions must stand despite the [grand jury] rule violation.”). In Lopez v. Riley, the Second
Circuit relied on Mechanik in holding that “[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 v. Riley,
865 F.2d 30, 32 (2d Cir. 1989); see also Davis v. Mantello, 42 F. App’x 488, 490-91 (2d Cir. 2002)
(“[C]laims of deficiencies in state grand jury proceedings are not cognizable in a habeas corpus
proceeding in federal court.” (citing cases)). Harvey is therefore not entitled to relief on his claim
that the indictment was defective.
2.

Prosecutorial misconduct (Ground 2)

Harvey next contends that the prosecutor wrongfully withheld exculpatory Brady3and
Rosario4 material. Under Rosario, codified in CPL § 240.45, the prosecution must turn over to the
defendant all written or recorded testimony of any person the prosecutor intends to call as a witness.

3

Brady v. Maryland, 373 U.S. 83 (1963). The term “Brady” is a shorthand
reference to the rules of mandatory discovery in criminal cases under federal law.
4

People v. Rosario, 173 N.E.2d 881 (N.Y. 1961). The term “Rosario” is a
shorthand reference to the rules of mandatory discovery in criminal cases under New York law.
12

173 N.E.2d at 883. Rosario claims, however, are state law claims, not founded on either the federal
constitution or federal laws, which are not cognizable in a federal habeas proceeding. See, e.g.,
Young v. McGinnis, 411 F. Supp. 2d 278, 329 (E.D.N.Y. 2006); Randolph v. Warden, Clinton Corr.
Facility, No. 04 CIV. 6126, 2005 WL 2861606, at *5 (S.D.N.Y. Nov. 1, 2005) (“the failure to turn
over Rosario material is not a basis for habeas relief as the Rosario rule is purely one of state law”).
Harvey’s Brady claim also must fail. “To establish a Brady violation, a petitioner must show
that (1) the undisclosed evidence was favorable to him; (2) the evidence was in the state’s possession
and was suppressed, even if inadvertently; and (3) the defendant was prejudiced as a result of the
failure to disclose.” Mack v. Conway, 476 F. App’x 873, 876 (2d Cir. 2012) (citing Strickler v.
Greene, 527 U.S. 263, 281-82 (1999)). In his pro se supplemental appellate brief, Harvey argued
that the prosecutor failed to disclose that the State waived the victim’s DWI fine in exchange for her
“false testimony,” the trial testimony of law enforcement was “impeaching testimony” because the
victim did not file a police report against him, the prosecutor failed to provide the defense a copy
of the felony hearing transcript, and the prosecutor failed to provide evidence that he coached the
victim to lie at trial.
None of Harvey’s claims have merit. He provides no evidence that the prosecution waived
the victim’s DWI fine, and the record reflects that the victim testified that she had already paid $500
of the $790 that she owed and was continuing to make payments. He also does not contend that the
prosecution withheld any evidence with respect to the law enforcement testimony. Harvey also
states that a county court judge informed him that the felony hearing transcript did not exist; it
therefore could not be suppressed, and, indeed, any hearing would have occurred in his presence and
with his full knowledge. Finally, he provides no evidence whatsoever to suggest that the victim lied

13

at trial or that the prosecutor persuaded her to do so. He therefore is not entitled to relief on this
ground.
3.

Ineffective assistance of counsel (Ground 3)

Harvey next faults trial and appellate counsel for a variety of reasons. To demonstrate
ineffective assistance of counsel under Strickland v. Washington, a defendant must show both that
his counsel’s performance was deficient and that the deficient performance prejudiced his defense.
466 U.S. 668, 687 (1984). A deficient performance is one in which “counsel made errors so serious
that counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment.” Id. The
Supreme Court has explained that, if there is a reasonable probability that the outcome might have
been different as a result of a legal error, the defendant has established prejudice and is entitled to
relief. Lafler v. Cooper, 132 S. Ct. 1376, 1385-86 (2012); Glover v. United States, 531 U.S. 198,
203-04 (2001); Williams, 529 U.S. at 393-95. Thus, Harvey must show that his counsel’s
representation was not within the range of competence demanded of attorneys in criminal cases, and
that there is a reasonable probability that, but for counsel’s ineffectiveness, the result would have
been different. See Hill v. Lockhart, 474 U.S. 52, 57 (1985). An ineffective assistance of counsel
claim should be denied if the petitioner fails to make a sufficient showing under either of the
Strickland prongs. See Strickland, 466 U.S. at 697 (courts may consider either prong of the test first
and need not address both prongs if the defendant fails on one).
New York’s test for ineffective assistance of counsel under the state constitution differs
slightly from the federal Strickland standard. “The first prong of the New York test is the same as
the federal test; a defendant must show that his attorney’s performance fell below an objective
standard of reasonableness.” Rosario v. Ercole, 601 F.3d 118, 123 (2d Cir. 2010) (citing People v.

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Turner, 840 N.E.2d 123 (N.Y. 2005)). The difference is in the second prong. Under the New York
test, the court need not find that counsel’s inadequate efforts resulted in a reasonable probability
that, but for counsel’s error, the outcome would have been different. “Instead, the ‘question is
whether the attorney’s conduct constituted egregious and prejudicial error such that the defendant
did not receive a fair trial.’” Id. at 123 (quoting People v. Benevento, 697 N.E.2d 584, 588 (N.Y.
1998)). “Thus, under New York law the focus of the inquiry is ultimately whether the error affected
the ‘fairness of the process as a whole.’” Id. (quoting Benevento, 697 N.E.2d at 588). “The efficacy
of the attorney’s efforts is assessed by looking at the totality of the circumstances and the law at the
time of the case and asking whether there was ‘meaningful representation.’” Id. (quoting People
v. Baldi, 429 N.E.2d 400, 405 (N.Y. 1981)).
The New York Court of Appeals views the New York constitutional standard as being
somewhat more favorable to defendants than the federal Strickland standard. Turner, 840 N.E.2d
at 126. “To meet the New York standard, a defendant need n ot demonstrate that the outcome of the
case would have been different but for counsel’s errors; a defendant need only demonstrate that he
was deprived of a fair trial overall.” Rosario, 601 F.3d at 124 (citing People v. Caban, 833 N.E.2d
213, 222 (N.Y. 2005)). The Second Circuit has recognized that the New York “meaningful
representation” standard is not contrary to the federal Strickland standard. Id. at 124, 126. The
Second Circuit has likewise instructed that federal courts should, like the New York courts, view
the New York standard as being more favorable or generous to defendants than the federal standard.
Id. at 125.
Harvey’s ineffective assistance claims must fail, however, even under the more favorable
New York standard. He first contends that trial and appellate counsel should have raised his

15

Brady/Rosario claims. But as discussed above, those underlying claims are without merit. Counsel
therefore cannot be deemed ineffective for failing to raise them. See Aparicio v. Artuz, 269 F.3d 78,
99 (2d Cir. 2001) (holding that it is not ineffective counsel to fail to raise meritless claims). He
likewise argues that appellate counsel was ineffective for failing to brief his challenge to the legal
sufficiency of the evidence presented during the grand jury proceedings. The record, however,
shows that Harvey himself raised that claim in his pro se supplemental brief. He therefore cannot
establish that he was prejudice by his attorney’s failure to raise on direct appeal arguments that he
himself raised and were subsequently rejected. See Liggan v. Senkowski, No. 11 Civ. 1951, 2013
WL 3853401, at *32 (S.D.N.Y. July 26, 2013) (Report & Recommendation) (collecting cases and
finding no ineffective assistance of appellate counsel claim survives where petitioner himself raised
the claim through a pro se supplemental submission). Harvey is therefore not entitled to relief on
any argument advanced in support of his ineffective assistance claims.
4.

Actual innocence (Ground 4)

Finally, Harvey argues that he is actually innocent of the crimes of which he was convicted.
While a federal habeas petitioner may assert a claim of actual innocence to overcome a procedural
bar to review, Schlup, 513 U.S. at 326, or to overcome the AEDPA’s one-year statute of limitations,
McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013), the Supreme Court has not resolved whether
a non-capital prisoner may be entitled to habeas relief based on a freestanding claim of actual
innocence, McQuiggin, 133 S.Ct. at 1931; see House v. Bell, 547 U.S. 518, 554-55 (2006); Dist.
Attorney’s Office v. Osborne, 557 U.S. 52, 71-72 (2009). The Supreme Court has instead declined
to answer the question, noting that where a “[p]etitioner has failed to make a persuasive showing
of actual innocence[,] . . . the Court has no reason to pass on, and appropriately reserves, the

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question whether federal courts may entertain convincing claims of actual innocence.” Herrera v.
Collins, 506 U.S. 390, 427 (1993) (O’Connor, J., concurring). Although the Second Circuit has also
not ruled on whether a claim of actual innocence is cognizable on habeas review, see Friedman v.
Rehal, 618 F.3d 142, 159 (2d Cir. 2010) (citing Osborne, 557 U.S. at 71, and noting that whether
an actual innocence claim is cognizable is an open question), it has “come close” to granting habeas
relief on grounds of actual innocence, see DiMattina v. United States, 949 F. Supp. 2d 387, 417
(E.D.N.Y. 2013) (citing cases).
Assuming, but not deciding, that a freestanding actual innocence claim is cognizable in a §
2254 proceeding, the Supreme Court has described the threshold showing of evidence as
“extraordinarily high.” Herrera, 506 U.S. at 417. “The sequence of the Court’s decisions in
Herrara and Schlup—first leaving unresolved the status of freestanding claims and then establishing
the gateway standard—implies at the least that Herrara requires more convincing proof of
innocence than Schlup.” House, 547 U.S. at 555.
Measured against this standard, Harvey has fallen short of establishing his actual innocence.
He points to no evidence that exonerates him of the crime, but rather challenges the credibility and
value of the evidence against him. Construed liberally, Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(per curiam), the Petition therefore argues that the evidence against him is legally insufficient to
sustain his convictions. As articulated by the Supreme Court in Jackson, the constitutional standard
for sufficiency of the evidence is whether, “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) (emphasis in the
original); see McDaniel v. Brown, 558 U.S. 120, 132-33 (2010) (reaffirming this standard). This

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Court must therefore determine whether the New York court unreasonably applied Jackson. In
making this determination, this Court may not usurp the role of the finder of fact by considering how
it would have resolved any conflicts in the evidence, made the inferences, or considered the evidence
at trial. Jackson, 443 U.S. at 318-19. Rather, when “faced with a record of historical facts that
supports conflicting inferences,” this 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 defer
to that resolution.” Id. at 326.
It is a fundamental precept of dual federalism that the States possess primary authority for
defining and enforcing the criminal law.

See Engle v. Isaac, 456 U.S. 107, 128 (1982).

Consequently, although the sufficiency of the evidence review by this Court is grounded in the
Fourteenth Amendment, it must take its inquiry by reference to the elements of the crime as set forth
in state law. Jackson, 443 U.S. at 324 n.16. A fundamental principle of our federal system is “that
a state court’s interpretation of state law, including one announced on direct appeal of the challenged
conviction, binds a federal court sitting in habeas corpus.” Bradshaw, 546 U.S. at 76; see West v.
AT&T, 311 U.S. 223, 236 (1940) (“[T]he highest court of the state is the final arbiter of what is state
law. When it has spoken, its pronouncement is to be accepted by federal courts as defining state law
. . . .”). “Federal courts hold no supervisory authority over state judicial proceedings and may
intervene only to correct wrongs of constitutional dimension.” Sanchez-Llamas v. Oregon, 548 U.S.
331, 345 (2006) (quoting Smith v. Philips, 455 U.S. 209, 221 (1982)) (internal quotation marks
omitted).
Here, Harvey attacks the value of the evidence against him, primarily claiming that the
witness lacks credibility because there was no corroborating medical evidence that she was raped.

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But this Court is precluded from either re-weighing the evidence or assessing the credibility of
witnesses. See Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996) (dismissing habeas claim because
“assessments of the weight of the evidence or the credibility of witnesses are for the jury and not
grounds for reversal on appeal” and deferring to the jury’s assessments of the particular weight to
be accorded to the evidence and the credibility of witnesses). Under Jackson, this Court’s role is
simply to determine whether there is any evidence, if accepted as credible by the trier of fact,
sufficient to sustain conviction. See Schlup v. Delo, 513 U.S. 298, 330 (1995). In this case, the
testimony and evidence presented at trial were more than sufficient to support Harvey’s conviction,
particularly given the deference required under Jackson. Accordingly, Harvey is not entitled to
relief on this ground in any event.
V. CONCLUSION
Harvey is not entitled to relief on any ground raised in his Petition.
IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for a Writ
of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of
Appealability. 28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) (“To obtain a
certificate of appealability, a prisoner must ‘demonstrat[e] that jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.’” (quoting Miller-El,

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537 U.S. at 327)). Any further request for a Certificate of Appealability must be addressed to the
Court of Appeals. See FED. R. APP. P. 22(b); 2D CIR. R. 22.1.
Dated: March 29, 2017.
/s/ James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge

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