Bjork v. Superintendent

Filing 18

MEMORANDUM DECISION AND ORDER: ORDERED, that the petition for a writ of habeas corpus (Dkt. No. 1) is DENIED and DISMISSED. ORDERED, that no Certificate of Appealability ("COA") shall issue because Petitioner has failed to make a "substantial showing of the denial of a constitutional right" as 28 U.S.C. § 2253(c)(2) requires. Signed by Senior Judge Lawrence E. Kahn on 8/7/17. (served on petitioner by regular mail)(alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
RAYMOND BJORK,
Petitioner,
-against-

9:15-CV-1097 (LEK)

SUPERINTENDENT,
Respondent.

MEMORANDUM-DECISION AND ORDER
I.

INTRODUCTION
Petitioner Raymond Bjork commenced this action by filing a petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254. Dkt. No. 1 (“Petition”). He raises the following substantive
grounds for habeas relief: his convictions were not supported by sufficient evidence; the
admission of certain testimony was prejudicial and denied him a fair trial; and his trial and
appellate counsel were ineffective. Pet. at 6–8. Respondent opposes the Petition, Dkt. No. 12
(“Answer”); see also Dkt. No. 12-1 (“Opposition”); Dkt. Nos. 12-2 to -5 (“Record”), and
Petitioner has submitted a traverse, Dkt. No. 16 (“Traverse”).1 For the reasons that follow, the
Petition is denied and dismissed.
II.

BACKGROUND
Following a jury trial in St. Lawrence County Court, Petitioner was convicted of two

counts of criminal sexual act in the first degree in violation of N.Y. Penal Law section 130.50(1),
sexual abuse in the first degree in violation of N.Y. Penal Law section 130.65(2), rape in the first

1

The cited page numbers for the Petition and Traverse refer to those generated by the
Court’s electronic filing system (“ECF”).

degree in violation of N.Y. Penal Law section 130.35(2), burglary in the second degree as a
sexually motivated felony in violation of N.Y. Penal Law sections 130.91, 140.25(2), and
unauthorized use of a vehicle in the third degree in violation of N.Y. Penal Law
section 165.01(1). Pet. at 1; Opp. at 12–13; People v. Bjork, 963 N.Y.S.2d 472, 475 (App. Div.
2013); Dkt. No. 15-6 (“Trial Transcript”) at SR 2014–16.2 The convictions stemmed from an
incident that occurred in February 2009 in Ogdensburg, New York. Bjork, 963 N.Y.S.2d at 475.
The Appellate Division described the incident as follows:
In February 2009, the victim, who had spent an evening drinking in
the City of Ogdensburg, St. Lawrence County, encountered defendant
at a bar. Defendant allegedly approached the victim and “brushed up
against her” repeatedly in spite of her efforts to rebuff him. The
victim became ill due to her intoxication, and [a witness], the
[witness’s spouse] and defendant took her to her home later that
night. The [witness] and defendant assisted the victim upstairs and
put her to bed, where the victim allegedly asked [the witness] to make
sure defendant left the house, and then fell asleep. The [witness]
testified that defendant refused to leave the house at her request and
did not do so until the [witness’s spouse] intervened. The [witness
and the witness’s spouse] offered defendant a ride to his home but, at
his request, dropped him off instead at a friend’s apartment that was
closer to the victim’s home. Sometime during the next hour, the
victim allegedly awoke to find defendant in her bed, having vaginal
intercourse with her.
Id. The specific facts are known to the parties and will be repeated only to the extent necessary to
address Petitioner’s claims.
On November 24, 2010, the trial court sentenced Petitioner as a second violent felony
offender to serve concurrent prison terms of fifteen years on the criminal sexual act counts,
fifteen years on the sexually motivated felony count, seven years on the sexual abuse count, and
2

The Trial Transcript appears at pages SR 1003–2072, and is located at Docket
Numbers 15-3 to -6.
2

one year for unauthorized use of a vehicle with fifteen years of post-release supervision. Id.; Trial
Tr. at SR 2066–68. The trial court also sentenced Petitioner to serve a consecutive prison term of
eighteen years on the rape count with twenty years of postrelease supervision. Trial Tr.
at SR 2067–68.
Petitioner, through appellate counsel, appealed. R. at SR 1–71. He argued that (1) the
first-degree criminal sexual acts were “multiplicitous”; (2) the evidence was insufficient to
support the convictions for first-degree criminal sexual act (Counts 1 and 2), first-degree sexual
abuse (Count 3), first-degree rape (Count 4), and second-degree burglary as a sexually motivated
felony (Count 5); (3) even if the charges were proved beyond a reasonable doubt, Petitioner
proved an affirmative defense under Penal Law section 130.10(1); (4) trial counsel was
ineffective; (5) the form and content of the verdict sheet constituted error per se; (6) the verdicts
with regard to Counts 1 to 6 were against the weight of the evidence; (7) Petitioner was denied
his right to a speedy trial, and (8) the sentence was harsh and excessive. Id.
On April 25, 2013, the Appellate Division, Third Department reversed Petitioner’s first
degree criminal sexual act convictions (Counts 1 and 2) and dismissed those charges. Bjork, 963
N.Y.S.2d at 480. The Appellate Division affirmed the conviction and sentence as modified. Id.
Petitioner, again through appellate counsel, sought leave to appeal to the New York Court of
Appeals, R. at SR 2082–96, which was denied on August 5, 2013, People v. Bjork, 995 N.E.2d
854 (N.Y. 2013). On February 24, 2014, the United States Supreme Court denied Petitioner’s pro
se petition for certiorari. Bjork v. New York, 134 S. Ct. 1306 (2014).
On August 28, 2014, Petitioner filed a pro se application for a writ of error coram nobis
in which he argued appellate counsel failed to provide effective assistance by failing to argue that
3

the grand jury proceeding was defective as a result of the prosecution’s failure to instruct the
grand jury on the affirmative defense set forth in Penal Law section 130.10(1), and the trial court
abused its discretion in allowing the People to re-present charges to the grand jury. R.
at SR 2152–2216. The state did not file opposition papers. On December 4, 2014, the Appellate
Division denied the petition, id. at SR 2217, and on May 7, 2015, the Court of Appeals denied
petitioner’s pro se application for leave to appeal, id. at SR 2252.
This action followed.
III.

LEGAL STANDARD
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal

court may grant habeas corpus relief with respect to a claim adjudicated on the merits in state
court only if, based upon the record before the state court, the state court’s decision: (1) “was
contrary to, or involved an unreasonable application of, clearly established federal law, as
determined by the Supreme Court,” or (2) “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)(1)–(2); accord Cullen v. Pinholster, 563 U.S. 170, 181–82 (2011). This standard is
“highly deferential” and “demands that state-court decisions be given the benefit of the doubt.”
Felkner v. Jackson, 562 U.S. 594, 598 (2011) (per curiam) (quoting Renico v. Lett, 559 U.S. 766,
773 (2010)).
The Supreme Court has repeatedly explained that “a federal habeas court may overturn a
state court’s application of federal law only if it is so erroneous that ‘there is no possibility
fairminded jurists could disagree that the state court’s decision conflicts with th[e Supreme]
Court’s precedents.’” Nevada v. Jackson, 133 S. Ct. 1990, 1992 (2013) (per curiam) (quoting
4

Harrington v. Richter, 562 U.S. 86, 102 (2011)); accord Metrish v. Lancaster, 133 S. Ct. 1781,
1787 (2013).
Additionally, AEDPA forecloses “using federal habeas corpus review as a vehicle to
second-guess the reasonable decisions of state courts.” Parker v. Matthews, 132 S. Ct. 2148,
2149 (2012) (per curiam) (quoting Renico, 559 U.S. at 779). A state court’s findings are not
unreasonable under § 2254(d)(2) simply because a federal habeas court reviewing the claim in
the first instance would have reached a different conclusion. Wood v. Allen, 558 U.S. 290, 301
(2010). “The question under AEDPA is not whether a federal court believes the state court’s
determination was incorrect but whether that determination was unreasonable—a substantially
higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007). Finally, federal habeas courts
must presume that the state courts’ factual findings are correct unless a petitioner rebuts that
presumption with “clear and convincing evidence.” Id. at 473–74 (quoting § 2254(e)(1)).
IV.

DISCUSSION
A. Sufficiency of the Evidence
Petitioner argues that the evidence was legally insufficient to support the burglary, rape,

and sexual abuse convictions. Pet. at 6–7. With respect to the rape and abuse charges, Petitioner
argues the State failed to establish that the victim was physically helpless and did not consent to
intercourse, and that the state failed to disprove Petitioner’s affirmative defense that he was
unaware of the “facts or conditions responsible” for the victim’s incapacity to consent. Id. at 7.
Respondent argues that the legal sufficiency issue is barred because the Appellate Division relied
on an adequate and independent state ground to deny the claim and it lacks merit. Opp. at 21–27.
The Court agrees.
5

Petitioner raised both his sufficiency and weight claims on direct appeal. R. at SR 13–30,
42–52. Despite the Appellate Division’s finding that the sufficiency claim was unpreserved, it is
not clear from the court’s opinion that it relied on the preservation rule to bar review of that
claim. Bjork, 963 N.Y.S.2d at 476–79. The Appellate Division did not conduct a stand-alone
sufficiency analysis, but the court appears to have “implicitly” addressed Petitioner’s sufficiency
claims through its weight-of-the-evidence review, which “necessarily subsumed review of” the
sufficiency claim. See Parker v. Ercole, 666 F.3d 830, 834–35 (2d Cir. 2012) (stating that under
New York law, “a weight-of-the-evidence claim requires [a] more exacting review than an
insufficiency claim, because it entails a weighing of the evidence and an assessment of the
credibility of the State’s witnesses,” and that “to the extent the Appellate Division decided that
[the] conviction was not against the weight of the evidence, it necessarily decided that there was
sufficient evidence to support the verdict”). To the extent the Appellate Division rejected
Petitioner’s sufficiency claim, that decision is entitled to AEDPA deference and was not contrary
to or an unreasonable application of clearly established Supreme Court precedent.
In any event, the evidence supported the Appellate Division’s rejection of Petitioner’s
sufficiency claim. Evidence is sufficient to support a conviction whenever, “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.” Parker v. Matthews, 567 U.S. 37,
43 (2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This inquiry “does not focus
on whether the trier of fact made the correct guilt or innocence determination, but rather whether
it made a rational decision to convict or acquit.” Herrera v. Collins, 506 U.S. 390, 402 (1993).
“[I]t is the responsibility of the jury—not the court—to decide what conclusions should be drawn
6

from evidence admitted at trial.” Parker, 567 U.S. at 43 (quoting Cavazos v. Smith, 565 U.S. 1, 2
(2011) (per curiam)). Indeed, “a state-court decision rejecting a sufficiency challenge may not be
overturned on federal habeas unless the ‘decision was objectively unreasonable.’” Parker, 132 S.
Ct. at 2152 (quoting Cavazos, 565 U.S. at 2). Finally, “[§] 2254(d) gives federal habeas courts no
license to redetermine credibility of witnesses whose demeanor has been observed by the state
trial court, but not by them.” Marshall v. Lonberger, 459 U.S. 422, 434 (1983).
To sustain Petitioner’s conviction of sexual abuse in the first degree, the State had to
prove that he subjected the victim to sexual contact when the victim was “incapable of consent
by reason of being physically helpless.” N.Y. Penal Law § 130.65(2). As relevant here, “sexual
contact” means “any touching of the sexual or other intimate parts of a person for the purpose of
gratifying sexual desire of either party.” N.Y. Penal Law § 130.00(3). “Physically helpless”
means that “a person is unconscious or for any other reason is physically unable to communicate
unwillingness to an act.” Id. at § 130.00(7).
To sustain Petitioner’s conviction of rape in the first degree, the State had to prove he
engaged in sexual intercourse with the victim, who was incapable of consent by reason of being
physically helpless. Id. at § 130.35(2). Testimony that a victim “was asleep when the intercourse
occurred satisfies the element of physical helplessness.” People v. Krzykowski, 742 N.Y.S.2d
138, 140 (App. Div. 2002).
Here, the victim testified that she consumed numerous alcoholic beverages at several
establishments on the evening in question, later becoming “sick” and vomiting multiple times,
and was unable to “recall anything about getting into [her] house.” Trial Tr. at SR 1301–06,
1309–10. When she woke up in her bed, Petitioner was “on top of” her, her pants were “around
7

one ankle,” one of her legs was “over his shoulder,” and he was having intercourse with her. Id.
at SR 1316–17. She then “told him to get off.” Id.
Several witnesses testified as to their observations of the victim during the evening. One
witness testified that the victim was “very intoxicated,” “slurr[ed] her words[,] didn’t keep her
head up when she was talking[,] . . . [and] didn’t get out of [a] car.” Id. at SR 1483–84. Another
witness testified that the victim was “nauseous,” “got sick in [a] parking lot,” and appeared to be
“intoxicated,” “out of it,” and “stagger[ing].” Id. at SR 1495, 1499, 1504–06. The witness
testified that she “helped” the victim out of her car, into her house, and into her bedroom because
the victim “was having trouble walking.” Id. at SR 1506–07. The victim then “climbed into
bed . . . and just pretty much passed out” while fully clothed. Id. A police officer, Sergeant
August J. Bonno, testified that during his interview of the victim the following morning, the
victim’s eyes were bloodshot, she smelled of alcohol, and she was visibly upset and crying. Id.
at SR 1405.
Testing performed the morning after the incident revealed the victim’s blood alcohol
content was .09, which was higher than the legal limit for operating a motor vehicle. Trial Tr.
at SR 1431–32, 1437. A forensic scientist testified that testing indicated that DNA from perianal
and vaginal swabs taken from the victim was “consistent with” Petitioner’s DNA. Trial Tr.
at SR 1595, 1603–04, 1609–11. In light of the evidence, the Court, like the Appellate Division,
finds no reason to disturb the rape and sexual abuse convictions and rejects Petitioner’s
contention that the State did not meet its burden of proving that the victim was physically
helpless. Bjork, 963 N.Y.S.2d at 476.

8

To sustain Petitioner’s conviction of burglary in the second degree as a sexually
motivated felony, the State had to prove Petitioner knowingly entered or remained unlawfully in
the victim’s dwelling with intent to commit a crime therein, having committed the offense for the
purpose, in whole or substantial part, of his own direct sexual gratification. N.Y. Penal Law
§§ 130.91, 140.25(2). As relevant here, a person “enters or remains unlawfully” in or upon
premises when he is not licensed or privileged to do so. N.Y. Penal Law § 140.00(5). Petitioner
claims “the testimony established [he] was invited into [the] victim’s home, and . . . there was no
proof that defendant unlawfully entered the home after the fact.” Pet. at 6. However, the victim
testified that while at one of the establishments, she repeatedly told Petitioner to leave her alone,
stating, “Get away from me, leave me alone.” Trial Tr. at SR 1304, 1306. The victim told other
individuals that she “wasn’t interested” in Petitioner and that she had informed him to leave her
alone. Id. at SR 1308. A witness testified that after the victim was driven home, the victim
“climbed into bed . . . [and] just pretty much passed out.” Id. at SR 1507–08. However, while
putting the victim to bed and in the presence of Petitioner, the victim asked the witness to
“ma[ke] sure [Petitioner] left with [the witness].” Id. at SR 1510–12. The witness and Petitioner
“went back downstairs” and the witness “told [Petitioner] that [the victim] was in bed and that
[they] were to leave.” Id. at SR 1507–08. The witness asked Petitioner to leave “[b]ecause [the
victim] was passed out.” Id. at SR 1508. The witness’s spouse later “had [to] . . . go in [the
victim’s house] and get [Petitioner] . . . [b]ecause he didn’t want to leave” even after the witness
“told him repeatedly that [they] had to leave.” Id. at SR 1512. After Petitioner left the victim’s
house, he told the witness the door was locked, the witness checked the door, and upon finding
the door unlocked, the witness locked the door. Id. at SR 1514–15. The witness then dropped
9

Petitioner off at a friend’s house. Id. at SR 1516-18. The victim testified that during a telephone
call the morning after the incident, Petitioner admitted to the victim that he had returned to the
victim’s home, performed oral sex on her, and placed his fingers in the victim’s vagina; however,
the victim did not invite Petitioner into her house and did not open the door for him to enter her
house. Id. at SR 1341–42.3
Accordingly, the Appellate Division’s findings were reasonable in light of the evidence
and not contrary to clearly established Supreme Court precedent. Bjork, 963 N.Y.S.2d at 478–79.
To the extent Petitioner argues the jury should have credited his version of events, Pet. at 6;
Traverse at 5–7, “§ 2254(d) gives federal habeas courts no license to redetermine credibility of
witnesses whose demeanor has been observed by the state trial court, but not by them.” Marshall,
459 U.S. at 434; see also Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996) (“[A]ssessments of
the weight of the evidence or the credibility of witnesses are for the jury and not grounds for
reversal on appeal; we defer to the jury’s assessments of both of these issues.”).
In sum, Petitioner’s sufficiency of the evidence claims are denied because, on this record,
the Appellate Division’s apparent rejection of Petitioner’s sufficiency claims was reasonable and
was not contrary to clearly established Supreme Court precedent.4

3

On direct appeal, the State noted that during a “controlled call” that took place the
morning after the incident, Petitioner admitted to the victim that she had not opened the door to
her home to let him into her home. Opp. at 10; Trial Tr. at SR 1365, 1367, 1381. An audio
recording of this telephone call was played, but not transcribed, at trial. Trial Tr. at SR 1365,
1367, 1381.
4

In light of the Court’s review of Petitioner’s sufficiency claims, the arguments
Petitioner asserted as possible attempts to show cause for procedural default, Pet. at 7; Traverse
at 2–3, are moot.
10

B. Admission of Sergeant Bonno’s Testimony
Petitioner argues that the admission of Sergeant Bonno’s testimony that the victim’s door
was or may have been “carded” was prejudicial and denied him a right to a fair trial. Pet. at 7.
Respondent argues the claim is procedurally barred because Petitioner did not present it in
federal constitutional terms in state court. Opp. at 28. Petitioner argues the claim is exhausted
and was “fairly presented” to the state courts. Traverse at 9–11.
An application for a writ of habeas corpus shall not be granted until a petitioner exhausts
all remedies available in state court unless “there is an absence of available State corrective
process” or “circumstances exist that render such process ineffective to protect the rights of the
applicant.” § 2254 (b)(1). The exhaustion requirement “is principally designed to protect the state
courts’ role in the enforcement of federal law and prevent disruption of state judicial
proceedings.” Jimenez v. Walker, 458 F.3d 130, 148–49 (2d Cir. 2006) (quoting Rose v. Lundy,
455 U.S. 509, 518 (1982)).
To properly exhaust a claim, a petitioner must do so both procedurally and substantively.
Procedural exhaustion requires that he raise all claims in state court before raising them in a
federal habeas corpus petition. Id. Substantive exhaustion requires that the petitioner “fairly
present” each claim for habeas relief “in each appropriate state court (including a state supreme
court with powers of discretionary review), thereby alerting that court to the federal nature of the
claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004). Petitioner must also use the proper procedural
vehicle so that the state court may pass on the merits of his claims. Dean v. Smith, 753 F.2d 239,
241 (2d Cir. 1985); Barton v. Fillion, No. 03-CV-1377, 2007 WL 3008167, at *5 (N.D.N.Y. Oct.
10, 2007). A petitioner satisfies the fair presentation requirement by:
11

(a) reliance on pertinent federal cases employing constitutional
analysis, (b) reliance 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.
Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011) (quoting Daye v. Attorney Gen. of N.Y., 696
F.2d 186, 194 (2d Cir.1982)).
In this case, Petitioner did not raise his claim that the admission of Sergeant Bonno’s
testimony denied him his federal constitutional right to a fair trial in any state court. R. Instead,
on appeal to the Appellate Division, he argued the evidence was insufficient to support his
conviction of burglary in the second degree as a sexually motivated felony, claiming, in part, the
admission of the testimony was “error and gravely prejudicial.” Id. at SR 20. Moreover,
Petitioner’s claim relied solely on New York Penal Law. Id. at 19–21. Thus, Petitioner failed to
alert the Appellate Division to the federal constitutional nature of the claim as required.
Similarly, Petitioner failed to alert the New York Court of Appeals to the federal
constitutional nature of his claim, making only a passing reference to a right to a “fair trial.”
Specifically, in his sufficiency challenge, Petitioner argued that the admission of Sergeant
Bonno’s testimony “goes directly to defendant’s right to a fair trial” and “implicates and impacts
upon defendant’s Constitutional right to a fair trial.” R. at SR 2090–91 (quoting People v.
Hamlin, 71 N.Y.2d 750 (1988)). However, Petitioner cited only one state court case to support
this assertion, and a passing reference to the right to “a fair trial” does not alert the Court of
Appeals to the federal nature of the claim as required. See, e.g., Adams v. Robertson, 520 U.S.
83, 89 n.3 (1997) (explaining that “passing invocations of ‘due process’” that “fail to cite the

12

Federal Constitution or any cases relying on the Fourteenth Amendment, but could have just as
easily referred to the due process guarantee of the [state constitution] . . . [do] not meet our
minimal requirement that it must be clear that a federal claim was presented.” (citations
omitted)); Maxwell v. Greiner, No. 04-CV-4477, 2008 WL 2039528, at *5 (E.D.N.Y. May 12,
2008) (“[P]etitioner’s passing reference to a constitutional right is insufficient in light of the fact
that his entire argument exclusively relies on and discusses New York state cases applying New
York state law.”).
Additionally, the challenge to the testimony, which was a part of Petitioner’s sufficiency
challenge, does not “call to mind a specific right protected by the constitution,” or allege “a
pattern of facts that is well within the mainstream of constitutional litigation.” Carjaval v. Artus,
633 F.3d 95, 104 (2d Cir. 2011) (noting a petitioner “must present his challenge in terms that are
‘likely to alert the state courts to the claim’s federal nature’”); see also Brown v. Senkowski, 152
F. App’x 15, 17–18 (2d Cir. 2005) (“[A]ny fair reading of petitioner’s application for leave to
appeal to the New York Court of Appeals indicates that petitioner’s application rested
exclusively on state law grounds,” thus “fail[ing] to alert the New York Court of Appeals as to
the federal constitutional nature of petitioner’s . . . claim.”); Cosby v. LaValley, No. 12-CV-704,
2014 WL 3734213, at *17 (N.D.N.Y. Jul. 28, 2014) (Kahn, J.) (holding that petitioner failed to
exhaust his state court remedies regarding his evidentiary claim where appellate counsel “cited
only New York State cases, and her argument contained no federal constitutional analysis,” and
noting “the mere claim based on an erroneous evidentiary ruling does not serve to exhaust the
claim for federal habeas corpus purposes”); Bristol v. Superintendent, No. 04-CV-1230, 2008
WL 2097160, at *5 (N.D.N.Y. May 19, 2008) (finding the petitioner’s claims regarding
13

testimony were unexhausted, noting the claims “rested entirely on state law” and “[t]he record
suggests that Petitioner did not alert the state courts to the federal nature of these claims because
the Appellate Division rejected them based solely on state law without reference to the federal
constitution or to federal law”).
In sum, Petitioner did not give the Appellate Division or the Court of Appeals notice that
he was raising a federal constitutional issue in relation to the admission of Sergeant Bonno’s
testimony regarding “carding.” His claim that the testimony was prejudicial and denied him a
right to a fair trial is therefore unexhausted.
There is no remaining avenue for Petitioner to properly exhaust his claim in state court.
He cannot now file a direct appeal or leave application in order to exhaust the claim because a
defendant is “entitled to one (and only one) appeal to the Appellate Division,” and one
application for leave to appeal to the Court of Appeals. Aparicio v. Artuz, 269 F.3d 78, 91 (2d
Cir. 2001). Nor can he now file a motion to vacate pursuant to N.Y. Crim. Proc. Law section
440.10(2)(c), because the facts that would support Petitioner’s federal right to a fair trial claim
were apparent on the record, and “New York does not otherwise permit collateral attacks on a
conviction when the defendant unjustifiably failed to raise the issue on direct appeal.” Id. (citing
N.Y. Crim. Proc. Law § 440.10(2)(c)); see also Clark v. Perez, 510 F.3d 382, 393 (2d Cir. 2008)
(holding that “even if no state court had applied section 440.10(2)(c) to Clark’s claim, the district
court itself should have done so in the first instance pursuant to the exhaustion requirement for
federal habeas”). Since no remaining avenue exists in which Petitioner could properly present his
claim to the state courts, it is deemed exhausted but also procedurally defaulted. Coleman, 501
U.S. at 731–32; Aparicio, 269 F.3d at 89–90.
14

Procedurally defaulted claims are not subject to habeas review unless a petitioner shows
cause for the default and actual resulting prejudice, or that the denial of habeas relief would result
in a fundamental miscarriage of justice. E.g., House, 547 U.S. at 536–39 (“In an effort to
‘balance the societal interests in finality, comity, and conservation of scarce judicial resources
with the individual interest in justice that arises in the extraordinary case,’ the Court has
recognized a miscarriage-of-justice exception.” (quoting Schlup, 513 U.S. at 324)); see also
Dunham, 313 F.3d at 730 (“[A]ctual innocence means factual innocence, not mere legal
insufficiency.” (alteration in original)). To establish cause, a petitioner must show that some
objective external factor impeded his ability to comply with the relevant procedural rule. Maples
v. Thomas, 565 U.S. 266, 280 (2012) (citing Coleman, 501 U.S. at 753). If a petitioner fails to
establish cause, a court need not decide whether he suffered actual prejudice, because federal
habeas relief is generally unavailable as to procedurally defaulted claims unless both cause and
prejudice are demonstrated. Murray v. Carrier, 477 U.S. 478, 496 (1986) (discussing the “causeand-prejudice standard”); Stepney v. Lopes, 760 F.2d 40, 44–45 (2d Cir. 1985) (same).
Petitioner does not assert any basis for finding cause to excuse the default of his claim.
Pet.; Traverse. Since Petitioner has not shown cause, the Court need not decide whether he will
suffer actual prejudice before foreclosing habeas review. Murray, 477 U.S. at 496; Bossett v.
Walker, 41 F.3d 825, 828–29 (2d Cir. 1994) (concluding that the petitioner did not satisfy the
cause and prejudice showing where he failed to properly exhaust his federal claim in state court).
Finally, Petitioner makes no showing that he is actually innocent. He raises several
technical arguments regarding his conviction, but he has not proffered any new evidence that
would make a reasonable jury doubt his guilt. See Poindexter v. Nash, 333 F.3d 372, 380–81 (2d
15

Cir. 2003) (noting that “the concept of actual innocence is distinct from the concept of legal
innocence,” and a petitioner whose “argument is a technical one” does not raise “a claim of
‘actual innocence’ as that term is used . . . in habeas jurisprudence generally” (alterations
omitted)); Williams v. Brown, No. 08-CV-10044, 2010 WL 850182, at *3 (S.D.N.Y. Mar. 11,
2010) (rejecting actual innocence claim where “[t]he evidence adduced by [the petitioner] solely
concerns certain alleged procedural irregularities . . . none of which casts any doubt on [his]
underlying guilt”).
Without a showing of cause and prejudice, or a fundamental miscarriage of justice, the
Court cannot consider these claims. Accordingly, the Court rejects Petitioner’s claim that the
admission of Sergeant Bonno’s testimony regarding “carding” was unduly prejudicial and denied
him a right to a fair trial.5
C.

Ineffective Assistance of Trial Counsel Claims

Petitioner argues that he was denied the effective assistance of trial counsel because his
attorney failed to renew his motion to dismiss, object to certain “inadmissible testimony” from a
witness, object to “bolstering” testimony, “memorize the ‘prompt outcry’ instruction before
trial,” and “object to the manner in which the prosecutor attempted to impeach [a defense
5

Even if this claim was properly before the Court, it would be rejected. Petitioner’s
claim that the testimony was prejudicial and violated his federal right to a fair trial presents a
question of state evidentiary law that generally is not subject to federal habeas review. See
Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (“[F]ederal habeas corpus relief does not lie for
errors of state law.’” (quoting Estelle v. McGuire, 502 U.S. 62, 67 (1991)). Federal courts may
issue a writ of habeas corpus based upon state evidentiary errors only if the petitioner
demonstrates that there was an error by the state court and that the “state court’s erroneous
conclusions about New York evidence law were so egregious as to implicate the Fourteenth
Amendment’s guarantee of due process,” which is one of “fundamental fairness,” and is
“defined . . . very narrowly.” Evans v. Fischer, 712 F.3d 125, 133 (2d Cir. 2013) (quoting
Dowling v. United States, 493 U.S. 342, 352 (1990)).
16

witness].” Pet. at 7. The Appellate Division rejected these claims on appeal, and that conclusion
was not contrary to, or an unreasonable application of, clearly established Supreme Court
precedent.
To demonstrate ineffective assistance of counsel, a petitioner must show that counsel’s
performance fell below an objective standard of professional reasonableness, and that but for
counsel’s alleged errors, the result of the proceedings would have been different. Premo, 562
U.S. at 121–22; Strickland v. Washington, 466 U.S. 668, 694 (1984). “Strickland does not
guarantee perfect representation, only ‘a reasonably competent attorney.’” Richter, 562 U.S. at
110 (quoting Strickland, 466 U.S. at 687). A petitioner must overcome “a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional assistance . . . [and]
that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’”
Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Even if a
petitioner can establish that counsel was deficient, he still must show that he suffered prejudice.
Id. at 693–94.
Meeting this burden is “never an easy task . . . [and] [e]stablishing that a state court’s
application of Strickland was unreasonable under § 2254(d) is all the more difficult.” Premo, 562
U.S. at 122; see also Burt v. Titlow, 134 S. Ct. 10, 16 (2013) (noting that “AEDPA erects a
formidable barrier” to federal habeas review of claims that have been adjudicated in state court).
When reviewing a state court’s decision under § 2254, “‘[t]he question is not whether a federal
court believes the state court’s determination’ under the Strickland standard ‘was incorrect but
whether that determination was unreasonable—a substantially higher threshold.’” Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)).
17

Federal habeas courts “must guard against the danger of equating unreasonableness under
Strickland with unreasonableness under § 2254(d)” because “[w]hen § 2254(d) applies, the
question is not whether counsel’s actions were reasonable.” Richter, 562 U.S. at 105. Instead,
“[t]he question is whether there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.” Id.
In this case, as the Appellate Division found, “[v]iewed as a whole, the record reveals that
counsel . . . made appropriate pretrial motions, pursued a credible—though ultimately
unsuccessful—theory of defense, conducted vigorous cross-examination of the People’s
witnesses, and otherwise provided defendant with meaningful representation.” Bjork, 963
N.Y.S.2d at 479. For example, counsel filed a motion to dismiss counts four, five, and six of the
indictment pursuant to CPL § 30.30(1), which was “essentially a speedy trial motion.” Trial Tr.
at SR 997–1002. Counsel properly agreed to the judge’s questioning of potential jurors regarding
Petitioner’s “failure to testify,” and to certain jury charges, id. at SR 1007, requested the
preclusion of prior convictions, which was, in part, successful, id. at SR 1009–13, actively
participated in jury selection, e.g., id. at SR 1031, 1080–81, 1089, pursued a credible defense
strategy, made numerous objections, noted exceptions, and made cogent opening and closing
statements, e.g., id. at SR 1297–99, 1308, 1355, 1337–38, 1504–05, 1508, 1510, 1866–68,
1980–81. Moreover, counsel made a number of other motions on Petitioner’s behalf, including a
motion to declare a mistrial pursuant to N.Y. Crim. Proc. Law section 280.20(1), Trial Tr. at
SR 1555–58, a motion to dismiss all counts of the indictment, id. at SR 1748–50, a motion to
include a missing witness charge, id. at SR 1754–55, and a “renew[ed]” motion to dismiss “all
counts of the indictment,” id. at SR 1838–42. “[I]t is difficult to establish ineffective assistance
18

when counsel’s overall performance indicates active and capable advocacy.” Richter, 562 U.S.
at 111.
1. Renewed Motion to Dismiss
Petitioner first claims that counsel was ineffective when he failed to renew his trial
motion to dismiss following the State’s presentation of rebuttal testimony and “thereby failed to
preserve the [ ]sufficiency claim for appeal.” Pet. at 7. Respondent argues that even if Petitioner
could show that counsel had no strategic or other legitimate reason for not renewing his dismissal
motion, he cannot establish that counsel’s failure to preserve the sufficiency claim prejudiced his
case. Opp. at 35. In the context of a habeas petition, the question is not whether counsel’s failure
to object constituted ineffective assistance, but whether the Appellate Division unreasonably
concluded that it was not ineffective assistance. See Richter, 562 U.S. at 101 (“The pivotal
question is whether the state court’s application of the Strickland standard was unreasonable.”).
Here, the Appellate Division denied Petitioner’s claim that he was denied effective assistance of
counsel when trial counsel failed to renew the motion to dismiss after the State’s presentation of
rebuttal evidence. Bjork, 963 N.Y.S.2d at 479. The Appellate Division found that Petitioner
received effective assistance of counsel and noted that he “concedes that this single failure [to
renew his trial motion to dismiss] was not sufficiently egregious and prejudicial to deprive him
of that right.” Id. Additionally, Petitioner cannot show prejudice because the court effectively
reviewed the sufficiency claim when it reviewed his weight of the evidence claim. Accordingly,
and in light of Petitioner’s failure to demonstrate that he was prejudiced, the Appellate Division’s
finding was reasonable and supported by the record.

19

2. Failure to Object to Inadmissible Testimony
Petitioner next claims that counsel was ineffective for failing to object to “inadmissible
testimony” from the victim regarding “what [the victim] did after the victim instructed
[Petitioner] to leave.” Pet. at 7. Petitioner does not specify the testimony to which he objects,
making it difficult to review his claim. Indeed, as noted by Respondent, Opp. at 36–37, Petitioner
fails to identify the alleged “inadmissible testimony” and does not identify the legal basis on
which the evidence was inadmissible.6 The Court finds Petitioner’s argument too vague to state a
claim for habeas relief. See, e.g., Brown v. New York, No. 04-CV-1087, 2006 WL 3085704,
at *7 (E.D.N.Y. Oct. 30, 2006) (denying habeas relief where the petitioner made vague and
conclusory allegations); Skeete v. New York, No. 03-CV-2903, 2003 WL 22709079, at *2
(E.D.N.Y. Nov. 17, 2003) (“[V]ague, conclusory and unsupported claims do not advance a viable
claim for habeas corpus relief.”). Accordingly, the claim is denied as too vague to warrant relief
and, therefore, is dismissed.
3. Failure to Object to “Bolster[ed]” Testimony
Petitioner claims trial counsel was ineffective for failing to object to a witness’s
“bolstering testimony about the ‘carding’ experiment.” Pet. at 7. But a claim of alleged improper
bolstering is not cognizable on federal habeas review. “[A]lthough bolstering is a practice
prohibited in various states, including New York, the practice is not forbidden by the Federal
Rules of Evidence and is not sufficiently prejudicial to deprive a defendant of his due process
right to a fair trial.” Campbell v. Poole, 555 F. Supp. 2d 345, 371 (W.D.N.Y. 2008) (quoting
6

Respondent addresses an argument Petitioner made on direct appeal, which was that
counsel was ineffective for failing to object to “inadmissible testimony” from another witness
because the testimony was allegedly elicited by leading questions. Opp. at 36–37.
20

Vega v. Berry, 90-CV-7044, 1991 WL 73847, at *1 (S.D.N.Y. April 29, 1991)). “It has been
observed that ‘this Circuit has never regarded the practice of bolstering as inimical to trial
fairness.’” Id. (quoting Orr v. Schaeffer, 460 F. Supp. 964, 967 (S.D.N.Y. 1978); accord Harris v.
Hollins, 95-CV-4376, 1997 WL 633440, at *3 (S.D.N.Y. Oct.14, 1997) (“The concept of
‘bolstering’ really has no place as an issue in criminal jurisprudence based on the United States
Constitution. It is at most a New York State rule or policy, . . . [v]iolation of [which] does not
rise to a constitutional level.” (quoting Ayala v. Hernandez, 712 F.Supp. 1069, 1074 (E.D.N.Y.
1989) (alterations in original))).
Moreover, even if the claim were cognizable, the Appellate Division found that
Petitioner’s “claim that his counsel should have made various objections is unsupported by any
showing that these objections were meritorious or that counsel had no strategic reason for failing
to make them and counsel did make many successful objections in the course of the trial.” Bjork,
963 N.Y.S.2d at 479. Based on a review of the Record, the Court concludes that the Appellate
Division did not unreasonably find that trial counsel committed no error by refraining from
objecting during the challenged testimony. Petitioner’s claim is therefore denied.
4. Failure to “Memorize” the “Prompt Outcry” Instruction
Petitioner argues that he received ineffective assistance of trial counsel because trial
counsel “failed to memorize the ‘prompt outcry’ instruction before trial.” Pet. at 7. Respondent
argues that there is no authority to support Petitioner’s argument and that trial counsel properly
requested “the precise language of the proposed instruction in order to determine whether it was
objectionable.” Opp. at 39 (citing Strickland, 466 U.S. at 690). Respondent also argues that

21

Petitioner “failed to establish a reasonable probability that he was prejudiced by counsel’s
conduct.” Opp. at 39.
The Appellate Division’s rejection of this claim was reasonable. Bjork, 963 N.Y.S.2d
at 479. During the charge conference, which occurred outside the presence of the jury, the
prosecutor requested that the judge provide the “prompt outcry” instruction. Trial Tr.
at SR 1848–50. Trial counsel stated he was “not familiar with what the prompt outcry charge
says.” Id. at SR 1850. In response, the trial judge read the proposed jury charge word-for-word to
counsel. Id. at SR 1851. Trial counsel objected to the charge, which was overruled. Id. Petitioner
has made no showing that his trial counsel’s performance was deficient during this episode.
5. Failure to Object to Attempted Impeachment of Defense Witness J.T.
Petitioner argues that trial counsel rendered ineffective assistance of counsel by failing to
object to the manner in which the prosecutor “attempted to impeach [defense witness J.T.]”
Pet. at 7. On direct appeal, Petitioner argued that the prosecutor “did not lay the proper
foundation” to “attack[] her credibility based on the fact that she had not reported her
observations to the police earlier.” R. at SR 35. Petitioner relied on People v. Dawson, 406
N.E.2d 771 (N.Y. 1980), to support his argument that the prosecutor failed to establish that the
witness was aware of the exact charges against Petitioner and failed to establish that the witness
had reason to recognize that she possessed exculpatory information or that she “had a reasonable
motive for acting to exonerate [Petitioner].” R. at SR 35–36. In Dawson, the Court of Appeals
explained that a
“District Attorney may lay a ‘proper foundation’ for . . .
cross-examination [concerning a failure to come forward at an earlier
date] by first demonstrating that the witness was aware of the nature
22

of the charges pending against the defendant, had reason to recognize
that he possessed exculpatory information, had a reasonable motive
for acting to exonerate the defendant and, finally, was familiar with
the means to make such information available to law enforcement
authorities.”
406 N.E.2d at 777 n.4 (emphasis added). Petitioner further argued that “if [trial] counsel had
objected, the objection would have been sustained.” R. at SR 35.
The Appellate Division’s rejection of this claim, Bjork, 963 N.Y.S.2d at 479, was
reasonable. The Record supports the court’s conclusion that the prosecutor laid adequate
foundation for J.T.’s testimony, eliciting the following: J.T. was the Petitioner’s cousin with
whom she associated, Trial Tr. at SR 1817, 1823, J.T. was aware of the “accus[ations]” against
the Petitioner since his arrest, id. at SR 1834, and J.T. did not contact the police with information
regarding the incident that she possessed, id. at SR 1834–35. While the prosecutor did not
question J.T. regarding her “familiar[ity] with the means to make such information available to
law enforcement authorities,” trial counsel reasonably could have refrained from objecting due to
the possibility that the prosecutor could have easily questioned the witness regarding “the means
to make such information available to law enforcement authorities” and, as a result, undermined
the witness’s credibility. Dawson, 406 N.E.2d at 777 n.4. Accordingly, Petitioner’s claim that
trial counsel was ineffective by failing to object to the manner in which the prosecutor attempted
to impeach J.T. is without merit.
In sum, Petitioner has failed to show that trial counsel’s performance fell below an
objective standard of professional reasonableness, or that he was prejudiced by any such
deficiency. Therefore, for the reasons set forth above, the ineffective assistance of trial counsel
claim is denied and dismissed.
23

D. Ineffective Assistance of Appellate Counsel Claims
Petitioner claims his appellate counsel was ineffective because he failed to make the
following arguments: (1) the indictment should have been dismissed because the prosecutor did
not instruct the grand jury regarding the affirmative defense set forth in Penal Law
section 130.10(1),7 “impair[ing]” the “integrity” of the proceeding, and (2) the trial court abused
its discretion in allowing the State to represent to the grand jury charges upon which a prior jury
had been deadlocked. Pet. at 8; Traverse at 14–15. Respondent argues Petitioner cannot
demonstrate that appellate counsel omitted significant and obvious issues while pursuing issues
that were clearly and significantly weaker. Opp. at 44–45. Respondent also argues the claims are
not cognizable on federal habeas review and, in any event, lack merit. Id. at 41–50.
The Strickland test applies to claims of ineffective assistance of appellate counsel. To
prevail, a petitioner must demonstrate that: (1) appellate counsel’s performance fell below an
objective standard of professional reasonableness, and (2) but for appellate counsel’s
“unprofessional errors,” the results of the proceedings would have been different. Smith v.
Robbins, 528 U.S. 259, 285–86 (2000). When challenging the effectiveness of appellate counsel,
a petitioner may establish constitutionally inadequate performance if he shows counsel “omitted
significant and obvious issues while pursuing issues that were clearly and significantly weaker.”
Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). “A petitioner must show more than
counsel’s failure to raise a non-frivolous argument, because counsel is required to use
7

NY Penal Law section 130.10(1) provides, “In any prosecution under this article in
which the victim’s lack of consent is based solely upon his or her incapacity to consent because
he or she was mentally disabled, mentally incapacitated or physically helpless, it is an affirmative
defense that the defendant, at the time he or she engaged in the conduct constituting the offense,
did not know of the facts or conditions responsible for such incapacity to consent.”
24

professional judgment when deciding to concentrate on a few key issues while eliminating
weaker arguments, and is not required to advance every argument urged by the petitioner.” Hines
v. Stallone, No. 16-CV-1078, 2017 WL 445387, at *9 (N.D.N.Y. Feb. 1, 2017) (citing Evitts v.
Lucey, 469 U.S. 387, 394 (1985)).
Petitioner raised these claims in his coram nobis petition, R. at SR 2152–2216., and they
were rejected by the Appellate Division, id. at SR 2217. Petitioner has failed to demonstrate the
alleged errors in the grand jury proceedings were significant and obvious issues that appellate
counsel omitted in favor of issues that were clearly and significantly weaker. The Record shows
appellate counsel submitted a sixty-seven page brief, raising numerous relevant issues. Id.
at SR 1–71. Petitioner’s appeal was partially successful—the Appellate Division reversed his
criminal sexual act convictions because they were based on uncorroborated admissions. Bjork,
963 N.Y.S.2d at 476.
Moreover, Petitioner’s claims of alleged errors in the grand jury proceedings are not
cognizable on habeas review. Indeed, “alleged errors in a grand jury proceeding, including
sufficiency of the evidence presented, are not cognizable on habeas review.” Vassar v. Artus,
No. 08-CV-41, 2016 WL 3632712, at *6 (N.D.N.Y. June 29, 2016). Even assuming the existence
of a federal right to indictment by a grand jury, any error in grand jury proceedings is necessarily
cured by the subsequent conviction by a petit jury on the charges in the indictment. Campbell,
440 F. Supp. 2d at 142–43. A petit jury’s subsequent guilty verdict means not only that there was
probable cause to believe that a petitioner was guilty as charged, but also that a petitioner is in
fact guilty as charged beyond a reasonable doubt. United States v. Mechanik, 475 U.S. 66, 70
(1986).
25

Thus, the Appellate Division’s rejection of these claims was reasonable and was not
contrary to clearly established Supreme Court precedent. See Gant v. Walsh, No. 07-CV-2427,
2008 WL 2697319, at *11 (E.D.N.Y. July 3, 2008) (noting that “courts have consistently held
that counsel’s failure to ensure that the defendant testifies before the grand jury does not amount
to ineffective assistance of counsel” and that “any error in the grand jury proceeding connected
with the charging decisions is harmless beyond a reasonable doubt”). Accordingly, Petitioner’s
ineffective assistance of appellate counsel claim is dismissed.
V.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that the petition for a writ of habeas corpus (Dkt. No. 1) is DENIED and

DISMISSED; and it is further
ORDERED, that no Certificate of Appealability (“COA”) shall issue because Petitioner
has failed to make a “substantial showing of the denial of a constitutional right” as 28 U.S.C.
§ 2253(c)(2) requires;8 and it is further
ORDERED, that the Clerk serve a copy of this Decision and Order on the parties.

8

See, e.g., Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (“[Section] 2253(c) permits
the issuance of a COA only where a petitioner has made a ‘substantial showing of the denial of a
constitutional right.’”); Richardson v. Greene, 497 F.3d 212, 217 (2d Cir. 2007) (“Where, as
here, the denial of the habeas petition is based upon procedural grounds, the certificate of
appealability must show that jurists of reason would find debatable two issues: (1) that the
district court was correct in its procedural ruling, and (2) that the applicant has established a
valid constitutional violation.”).
26

IT IS SO ORDERED.

DATED:

August 07, 2017
Albany, New York

27