Marra v. Martuscello

Filing 26

DECISION and ORDER: ORDERED that Magistrate Judge Peebles' Report-Recommendation (Dkt. No. 19 ) is ACCEPTED and ADOPTED in its entirety. ORDERED that the Petition (Dkt. No. 1 ) is DENIED and DISMISSED. ORDERED that a certificate of appealability shall be issued with respect to Petitioner's ineffective-assistance-of-counsel claim, because Petitioner has made a "substantial showing of the denial of a constitutional right" pursuant to 28 U.S.C. § 2252(c)(2). Signed by Chief Judge Glenn T. Suddaby on 9/11/17. (nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________
ISIDORO MARRA,
Petitioner,
9:14-CV-1171
(GTS/DEP)

v.
DANIEL MARTUSCELLO, JR.,
Respondent.
_____________________________________
APPEARANCES:

OF COUNSEL:

GIRVIN FERLAZZO, P.C.
Counsel for Petitioner
20 Corporate Woods Boulevard
Albany, New York 12211

DANIEL RUBIN, ESQ.

HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Respondent
120 Broadway
New York, New York 10271

ALYSON J. GILL, ESQ.
Assistant Attorney General

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this habeas corpus action filed by Isidoro Marra
(“Petitioner”) pursuant to 28 U.S.C. § 2254, is a Report-Recommendation by United States
Magistrate Judge David E. Peebles recommending that the Petition be denied and dismissed but
that a certificate of appealability be issued with regard to Petitioner’s ineffective-assistance-ofcounsel claim, because he has made a “substantial showing of the denial of a constitutional
right” with respect to that claim pursuant to 28 U.S.C. § 2253(c)(2). (Dkt. No. 19.) Both
Petitioner and Respondent have filed Objections to the Report-Recommendation (as well as
responses to the opposing Objections). (Dkt. Nos. 22, 23, 25.) For the reasons set forth below,

Magistrate Judge Peebles’ Report-Recommendation is accepted and adopted in its entirety; the
Petition is denied and dismissed; and a certificate of appealability shall be issued with respect to
Petitioner’s ineffective-assistance-of-counsel claim.
I.

RELEVANT BACKGROUND
Because this Decision and Order is intended primarily for the review of the parties (who

have demonstrated through their briefs an accurate understanding of the factual background of
Petitioner’s 2011 conviction for rape in the first degree pursuant to New York Penal Law §
130.35[2]), for the sake of brevity, the Court will not recite the factual background of
Petitioner’s conviction but will simply refer the parties to the relevant portions of Magistrate
Judge Peebles’ Report-Recommendation, which accurately recite that factual background. (Dkt.
No. 19, at Parts I and II.A.)
A.

Petitioner’s Claims

Generally, in his habeas corpus petition, Petitioner asserts the following three claims: (1)
his defense counsel at trial, George Aney, provided him with ineffective assistance of counsel by
(a) pursuing a defense theory based on a relying on a misunderstanding of what constitutes
“being physically helpless” under New York Penal Law § 130.35(2) (rather that pursuing other
available and more-suitable defenses), (b) failing, without any legitimately defensible strategic
reason, to call a key witness (Ronald Mauro) to testify at trial, (c) denigrating, during his
summation, a witness (Patty Putnam) whose testimony was the only trial testimony favorable to
Petitioner, and (d) committing other avoidable errors that prejudiced the outcome of the case,
including failing to counter the prosecution’s proffer of improper photographic evidence, and
failing to object when during summation the prosecutor made improper statements regarding
Petitioner’s alleged use of a condom at the time of the alleged crime; (2) Assistant Herkimer
2

County District Attorney Jeffrey S. Carpenter committed prosecutorial misconduct during the
trial by (a) submitting into evidence, and commenting on during his summation, irrelevant and
highly prejudicial photographs of the victim, and (b) purposefully avoiding asking any witness
whether there was any evidence that Petitioner was wearing a condom at the time of the alleged
crime and choosing instead to raise the issue for the first time during his summation; and (3) the
trial court denied Petitioner a fair trial by erroneously admitting into evidence irrelevant and
highly prejudicial photographs of the victim. (Dkt. No. 1; Dkt. No. 1, Attach. 1.)
B.

Magistrate Judge Peebles’ Report-Recommendation

Generally, in his Report-Recommendation, Magistrate Judge Peebles made the following
four findings of fact and/or conclusions of law: (1) that, with respect to Petitioner’s claim that
the prosecutor committed misconduct during the trial, the claim is both unexhausted (in that
Petitioner failed to fairly present it to the Court of Appeals for review) and procedurally
defaulted, and Petitioner cannot demonstrate cause for the default and prejudice or that failure to
consider the claim will result in a miscarriage of justice; (2) that, with respect to Petitioner’s
claim that the trial court denied Petitioner a fair trial, the photographs referenced by Petitioner
were properly admitted into evidence and relevant not only to the issue of the victim's
helplessness, but also to the prosecution's theory that, by undressing the victim and having
sexual intercourse with her while she was sleeping, defendant caused bruising and red marks to
the victim’s body that is inconsistent with consensual intercourse; (3) that, with respect to
Petitioner’s claim that his trial counsel was ineffective, at most Petitioner has established that
trial counsel’s misunderstanding that merely being asleep does not constitute “being physically
helpless” under New York Penal Law § 130.35(2) amounts to constitutionally deficient

3

representation,1 which is insufficient because Petitioner has not demonstrated that he was
prejudiced as a result of the deficient representation under Strickland v. Walsh, 466 U.S. 668
(1984); and (4) that, because Petitioner has made a “substantial showing of the denial of a
constitutional right” pursuant to 28 U.S.C. § 2252(c)(2), the Court should issue a certificate of
appealability as to Petitioner’s ineffective-assistance-of-counsel claim. (Dkt. No. 19, at Part III.)
C.

Objections to the Report-Recommendation and Responses Thereto
1.

Petitioner’s Objections

Generally, in his Objections, Petitioner asserts the following two arguments: (1) by
narrowly focusing on trial counsel’s misunderstanding of New York Penal Law §130.35,
Magistrate Judge Peebles failed to consider the cumulative effects of all of trial counsel’s errors;
and (2) most significantly, Magistrate Judge Peebles erred in finding that Petitioner failed to
establish prejudice under Strickland, because the issue was not whether there was sufficient
evidence adduced at trial from which the jury could have found that the victim was physically
helpless but whether there was a reasonable probability that, by forgoing a hapless “merely
sleeping” defense and focusing instead on the element of vaginal penetration, the outcome of the
trial would have been different (i.e., at most Petitioner would have been convicted of a lesserincluded offense). (Dkt. No. 22.)

1

In support of his finding that being “physically helpless” includes being merely
asleep, Magistrate Judge Peebles cited, inter alia, N.Y. Penal Law § 130.00(7) (defining
“physical helpless” to mean “that a person is unconscious or for any other reason is physically
unable to communicate unwillingness to act”) and New York v. Greene, 13 A.D.3d 991, 992
(N.Y. App. Div., 3d Dept. 2004) (finding that the testimony of the victim “established that she
was asleep when defendant penetrated and began raping her, which is sufficient to prove
physical helplessness under the statute”). (Dkt. No. 19, at 40.)
4

2.

Respondent’s Response to Petitioner’s Objections

Generally, in his response to Petitioner’s Objections, Respondent argues that the Court
should reject Petitioner’s argument that Magistrate Judge Peebles failed to consider the
“cumulative effects” of trial counsel’s errors when the Magistrate Judge thoroughly reviewed
Petitioner’s claims and found that trial counsel committed only one error, correctly determining
that there was no merit to any of the other alleged errors. (Dkt. No. 23, at 9 [attaching page “8”
of Respondent’s Objections and Response].)
3.

Respondent’s Objections

Generally, in his Objections, Respondent asserts the following two arguments: (1)
Magistrate Judge Peebles erred by finding that trial counsel’s representation of Petitioner was
constitutionally deficient (in that it was based on a misunderstanding of what constitutes “being
physically helpless” under New York Penal Law § 130.35[2]), because in fact, while “physical[]
helpless[ness]” may include sleep (e.g., if a victim were in a deep sleep as a result of barbiturate
consumption), it need not always include sleep, and is a question of fact for a jury;2 and (2)
because Magistrate Judge Peebles incorrectly found that trial counsel’s representation of
Petitioner was constitutionally deficient, he also erred in recommending that the Court should
issue a certificate of appealability as to Petitioner’s ineffective-assistance-of-counsel claim.
(Dkt. No. 23.)

2

In support of this argument, Respondent cites New York v. Manning, 81 A.D.3d
1181, 1181 (N.Y. App. Div., 3d Dept. 2011) (“It is well established that physical helplessness is
defined broadly and may include a sleeping victim. . . . Whether or not a victim was physically
helpless at the time of the sexual conduct is a question of fact for the jury.”); William C.
Donnino, Supplemental Practice Commentary, McKinney’s Consolidated Laws of New York,
Penal Law § 130 (“The definition of ‘physically helpless’ would apply to a person who is in a
deep sleep as a result of barbiturates or who is a paralytic.”). (Dkt. No. 23, at 7 [attaching page
“6” of Respondent’s Obj.].)
5

4.

Petitioner’s Response to Respondent’s Objections

Generally, in his response to Respondent’s Objections, Petitioner argues that there is no
merit to Respondent’s Objection (that Petitioner’s trial counsel set forth a legitimate argument
regarding whether the victim was “physically helpless” under New York Penal Law § 130.35[2])
for the following three reasons: (1) the New York Appellate Division, Third Department, has
twice ruled that proof of sleep alone is sufficient to meet the burden of proving physical
helplessness;3 (2) Respondent has failed to cite a single case in which a defendant was acquitted
of a crime involving the element of physical helplessness, because the victim, although sleeping,
was deemed not to be physically helpless; and (3) because Respondent previously raised this
argument in on page 22 of his initial response to Petitioner’s petition, the Court should subject
this finding by Magistrate Judge Peebles to merely clear-error review, and finding that it easily
survives that review. (Dkt. No. 25.)
II.

APPLICABLE LEGAL STANDARDS
A.

Standard Governing Review of a Report-Recommendation

When a specific objection is made to a portion of a magistrate judge's reportrecommendation, the Court subjects that portion of the report-recommendation to a de novo
review. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be “specific,” the objection
must, with particularity, “identify [1] the portions of the proposed findings, recommendations, or

3

In support of this argument, Petitioner cites New York v. DeCicco, 38 A.D.3d 937,
937 (N.Y. App. Div. 3d Dept. 2007) (“[E]vidence . . . that the victim was asleep . . . was
sufficient to permit the jury to conclude that the victim was physically helpless at the time of the
criminal act”), and New York v. Beecher, 225 A.D.2d 943, 945 (N.Y. App. Div. 3d Dept. 1996)
(“[T]he victim’s testimony that he was asleep when the first sexual contact took place
established his physical helplessness.”). (Dkt. No. 25, at 2.)
6

report to which it has an objection and [2] the basis for the objection.” N.D.N.Y. L.R. 72.1(c).4
When performing such a de novo review, “[t]he judge may . . . receive further evidence. . . .” 28
U.S.C. § 636(b)(1). However, a district court will ordinarily refuse to consider evidentiary
material that could have been, but was not, presented to the magistrate judge in the first
instance.5 Similarly, a district court will ordinarily refuse to consider argument that could have
been, but was not, presented to the magistrate judge in the first instance. See Zhao v. State Univ.
of N.Y., 04-CV-0210, 2011 WL 3610717, at *1 (E.D.N.Y. Aug. 15, 2011) (“[I]t is established
law that a district judge will not consider new arguments raised in objections to a magistrate
judge's report and recommendation that could have been raised before the magistrate but were
not.”) (internal quotation marks and citation omitted); Hubbard v. Kelley, 752 F. Supp.2d 311,
312-13 (W.D.N.Y. 2009) (“In this circuit, it is established law that a district judge will not
4

See also Mario v. P&C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002)
(“Although Mario filed objections to the magistrate's report and recommendation, the statement
with respect to his Title VII claim was not specific enough to preserve this claim for review. The
only reference made to the Title VII claim was one sentence on the last page of his objections,
where he stated that it was error to deny his motion on the Title VII claim ‘[f]or the reasons set
forth in Plaintiff's Memorandum of Law in Support of Motion for Partial Summary Judgment.’
This bare statement, devoid of any reference to specific findings or recommendations to which
he objected and why, and unsupported by legal authority, was not sufficient to preserve the Title
VII claim.”).
5

See Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir. 1994) (“In
objecting to a magistrate's report before the district court, a party has no right to present further
testimony when it offers no justification for not offering the testimony at the hearing before the
magistrate.”) [internal quotation marks and citations omitted]; Pan Am. World Airways, Inc. v.
Int'l Bhd. of Teamsters, 894 F.2d 36, 40, n.3 (2d Cir. 1990) (finding that district court did not
abuse its discretion in denying plaintiff's request to present additional testimony where plaintiff
“offered no justification for not offering the testimony at the hearing before the magistrate”); cf.
U. S. v. Raddatz, 447 U.S. 667, 676, n.3 (1980) (“We conclude that to construe § 636(b)(1) to
require the district court to conduct a second hearing whenever either party objected to the
magistrate's credibility findings would largely frustrate the plain objective of Congress to
alleviate the increasing congestion of litigation in the district courts.”); Fed. R. Civ. P. 72(b),
Advisory Committee Notes: 1983 Addition (“The term ‘de novo’ does not indicate that a
secondary evidentiary hearing is required.”).
7

consider new arguments raised in objections to a magistrate judge's report and recommendation
that could have been raised before the magistrate but were not.”) (internal quotation marks
omitted).
When only a general objection is made to a portion of a magistrate judge's
report-recommendation, the Court subjects that portion of the report-recommendation to only a
clear error review. Fed. R. Civ. P. 72(b)(2),(3); Fed. R. Civ. P. 72(b), Advisory Committee
Notes: 1983 Addition; see also Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3
(N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007
(2d Cir. 1999). Similarly, when an objection merely reiterates the same arguments made by the
objecting party in its original papers submitted to the magistrate judge, the Court subjects that
portion of the report-recommendation challenged by those arguments to only a clear error
review.6 Finally, when no objection is made to a portion of a report-recommendation, the Court
subjects that portion of the report-recommendation to only a clear error review. Fed. R. Civ. P.
72(b), Advisory Committee Notes: 1983 Addition. When performing such a “clear error”
review, “the court need only satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.” Id.7

6

See Mario, 313 F.3d at 766 (“Merely referring the court to previously filed papers
or arguments does not constitute an adequate objection under either Fed. R. Civ. P. 72(b) or
Local Civil Rule 72.3(a)(3).”); Camardo v. Gen. Motors Hourly-Rate Emp. Pension Plan, 806 F.
Supp. 380, 382 (W.D.N.Y. 1992) (explaining that court need not consider objections that merely
constitute a "rehashing" of the same arguments and positions taken in original papers submitted
to the magistrate judge); accord, Praileau v. Cnty. of Schenectady, 09-CV-0924, 2010 WL
3761902, at *1, n.1 (N.D.N.Y. Sept. 20, 2010) (McAvoy, J.); Hickman ex rel. M.A.H. v. Astrue,
07-CV-1077, 2010 WL 2985968, at *3 & n.3 (N.D.N.Y. July 27, 2010) (Mordue, C.J.); Almonte
v. N.Y.S. Div. of Parole, 04-CV-0484, 2006 WL 149049, at *4 (N.D.N.Y. Jan. 18, 2006) (Sharpe,
J.).
7

See also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July
31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge's]
report to which no specific objection is made, so long as those sections are not facially
erroneous.”) (internal quotation marks and citations omitted).
8

After conducting the appropriate review, the Court may “accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. §
636(b)(1)(C).
B.

Standard Governing Review of Petitioner’s Habeas Corpus Petition
Pursuant to 28 U.S.C. § 2254(d)

Because Magistrate Judge Peebles has accurately recited the legal standard governing
review of Petitioner’s habeas corpus petition pursuant to 28 U.S.C. § 2254(d), the standard is
incorporated by reference in this Decision and Order, which (again) is intended primarily for the
review of the parties. (Dkt. No. 19, at Part III.A.)
III.

ANALYSIS
After carefully reviewing all of the papers in this action, including Magistrate Judge

Peebles’ thorough Report-Recommendation, the Court agrees with each of the recommendations
made by Magistrate Judge Peebles. Magistrate Judge Peebles employed the proper legal
standards, accurately recited the facts, and correctly applied the law to those facts. (Dkt. No. 19,
at Parts II and III.) As a result, the Court accepts and adopts Magistrate Judge Peebles’ ReportRecommendation in its entirety for the reasons stated therein, as well as the reasons stated by the
parties in their responses to one another’s Objection, which are summarized above in Parts I.C.2.
and I.C.4. of this Decision and Order. (Dkt. No. 19, at Parts II and III; Dkt. No. 23, at 9
[attaching page “8” of Respondent’s Objections and Response]; Dkt. No. 25.) To those reasons,
the Court adds the following three points.
First, regarding Petitioner’s Objections, the Court finds that, when the ReportRecommendation is read in its totality, it is clear that Magistrate Judge Peebles was of the
correct opinion that, had Petitioner’s trial counsel focused at trial on the element of vaginal

9

penetration rather than the element of “physical[] helpless[ness],” the outcome of the trial would
have been the same. (See, e.g., Dkt. No. 19, at 3 [citing the trial transcript in which the victim
testified that Petitioner penetrated her vagina with his penis], 47 [noting that “there was
independent witness testimony . . . from the victim herself . . . that [the victim] was asleep
during the time petitioner had sexual intercourse with her”] [emphasis added].) Moreover,
Magistrate Judge Peebles clearly understood, considered, and rejected the other alleged errors of
Petitioner’s trial counsel. (Id. at 36, 47-48, n.9.)
Second, regarding Respondent’s Objections, the Court finds that the case cited by
Respondent indeed says that the definition of physical helplessness “may include a sleeping
victim,” and that whether a victim was physically helpless at the time of the sexual conduct is a
question of fact for the jury. See, supra, note 2 of this Decision and Order. However, the case in
no way suggests that the definition of physical helplessness does not include a sleeping victim,
or that a jury may somehow find a victim not physically helpless despite finding that the victim
was asleep at the time of the sexual conduct. Indeed, in the case, the Third Department ruled
that evidence that a victim was asleep on a couch was legally sufficient to permit the jury to
conclude that the victim was physically helpless at the time of the sexual abuse. New York v.
Manning, 81 A.D.3d 1181, 1181 (N.Y. App. Div., 3d Dept. 2011).
Moreover, the practice commentary cited by Respondent indeed observes that the
definition of “physically helpless” would apply to a person “who is in a deep sleep as a result of
barbiturates.” See, supra, note 2 of this Decision and Order. However, as a matter of simple
logic, the fact that the definition of “physically helpless” would apply to a person in a deep sleep
as a result of barbiturates does not mean that the definition would not also apply to a person in a
lighter sleep that was not the result of barbiturates. This is because the definition could apply to
10

persons who are merely asleep–whether the sleep was adduced by drugs or not. Indeed, the
definition does apply to such persons, according to numerous cases.8
Third, and finally, while the Court agrees with Petitioner that the Court should subject
Magistrate Judge Peebles’ finding regarding “physical[] helpless[ness]” under New York Penal
Law § 130.35(2) to merely clear-error review (because Respondent previously asserted his
Objection regarding the issue of “physical[] helpless[ness]” on page 22 of his response to
Petitioner’s petition), the Court finds that Magistrate Judge Peebles’ finding would, and does,
survive even a de novo review.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Peebles’ Report-Recommendation (Dkt. No. 19) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that the Petition (Dkt. No. 1) is DENIED and DISMISSED; and it is further
ORDERED that a certificate of appealability shall be issued with respect to Petitioner’s
ineffective-assistance-of-counsel claim, because Petitioner has made a “substantial showing of
the denial of a constitutional right” pursuant to 28 U.S.C. § 2252(c)(2).
Dated: September 11, 2017
Syracuse, New York
____________________________________
HON. GLENN T. SUDDABY
Chief United States District Judge

8

In addition to relying on the three cases cited above in notes 1 and 3 of this
Decision and Order, the Court relies on the following five cases: New York v. Smith, 16 A.D.3d
1033, 1034 (N.Y. App. Div., 4th Dept. 2005), aff’d, 6 N.Y.3d 827 (N.Y. 2006); New York v.
Manning, 81 A.D.3d 1181, 1181 (N.Y. App. Div., 3d Dept. 2011); New York v. Krzykowski, 293
A.D.2d 877, 879 (N.Y. App. Div., 3d Dept. 2002); New York v, Irving, 151 A.D.2d 605, 605-06
(N.Y. App. Div., 2d Dept. 1989); and New York v. Copp, 169 Misc.2d 757, 759 (Rochester City
Ct. 1996). Because of these cases, the Court need not, and thus does not, address the issue of
whether sleep is a form of unconsciousness, thus expressly falling within the statutory definition
of “physical[] helpless[ness].” See N.Y. Penal Law § 130.00(7) (defining “physical helpless” to
mean “that a person is unconscious or for any other reason is physically unable to communicate
unwillingness to act”) [emphasis added].
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