Pham v. Kirkpatrick

Filing 20

DECISION AND ORDER: ORDERED that 1. The petition, Dkt. No. 1 , is DENIED AND DISMISSED; 2. No Certificate of Appealability ("COA") shall issue because petitioner failed to make a "substantial showing of the denial of a constitutiona l right" as 28 U.S.C. § 2253(c)(2)requires. Any further request for a Certificate of Appealability must be addressed to the Court of Appeals (FED. R. APP. P. 22(b)). Signed by Judge David N. Hurd on 9/21/16. (served on petitioner by regular mail)(alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

MARC PHAM,
Petitioner,
v.
9:15-CV-1370
(DNH)
M. KIRKPATRICK, Superintendent, Clinton
Correctional Facility,
Respondent.

APPEARANCES:

OF COUNSEL:

MARC PHAM
Petitioner, Pro Se
12-A-4342
Clinton Correctional Facility
P.O. Box 2001
Dannemora, New York 12929
HON. ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
Attorneys for Respondent
The Capitol
120 Broadway
New York, New York 10271

DENNIS A. RAMBAUD, ESQ.
Assistant Attorney General

DAVID N. HURD
United States District Judge
DECISION AND ORDER
I. INTRODUCTION
On September 18, 2015, petitioner Marc Pham ("Pham" or "petitioner") filed a petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Dkt. No. 1, Petition (" Pet."); Dkt.
No. 1-1, Affidavit in Support of Habeas Corpus Petition ("Pet. Aff."); Dkt. No. 1-2, Appendix A
("Appx. A"); Dkt. No. 1-3, Joint Appendix ("Joint Appx."); Dkt. No. 1-4, Memorandum of Law

("Pet. Mem.").1 Petitioner challenges his 2012 judgment of conviction, following a jury trial in
Albany County Court, of Rape in the First Degree, Criminal Sexual Act in the First Degree,
Criminal Contempt in the First Degree, Criminal Contempt in the Second Degree, and
Tampering with a Witness in the Fourth Degree. Pet. at 1. Petitioner raises six grounds for
habeas relief:
(1)

petitioner's right to confront witnesses was violated when the trial court received
into evidence the "complainant's statements to the sexual assault forensic
examiner accusing petitioner of raping and sexually assaulting her";

(2)

petitioner's right to due process was violated when the trial court admitted the
victim's statements to a witness as excited utterances;

(3)

the trial court improperly admitted hearsay testimony relating to the victim's
statements contained in a lost voice mail recording;

(4)

the evidence was insufficient to support his convictions for first degree criminal
sexual act and first degree contempt;

(5)

counsel was ineffective for failing to object to hearsay evidence of "prior bad
acts and uncharged crimes"; and

(6)

counsel was ineffective because he failed to object to the witness's testimony
relating to the "lost voice mail recording."

Respondent opposes the petition. Dkt. No. 12, Response; Dkt. No. 12-1,
Respondent's Memorandum of Law ("Resp. Mem."); Dkt. No. 12-2, State Court Records
("SR"); Dkt. No. 13 and 13-1, Transcripts ("T").2 For the reasons that follow, Pham's petition
is denied and dismissed.

1

The cited page numbers for the petition (Dkt. No. 1), petitioner's affidavit (Dkt. No. 1-1) and petitioner's
memorandum of law (Dkt. No. 1-4) refer to those generated by the Court's electronic filing system ("ECF"). The cited
page numbers for Appendix A (Dkt. No. 1-2) and the Joint Appendix (Dkt. No. 1-3) appear at the bottom right of each
page.
2

The cited page numbers for the response (Dkt. No. 12), respondent's memorandum of law (Dkt. No. 12-1),
and the transcripts (Dkt. Nos. 13 and 13-1), refer to those generated by ECF. The "SR" page numbers for the state
court records filed at Docket Number 12-2 appear at the bottom center of the page.

2

II. RELEVANT BACKGROUND
On November 4, 2011, an Albany County grand jury issued a Second Superseding
Indictment charging Pham with one count each of Rape in the First Degree (Penal
Law § 130.35(1)), Criminal Sexual Act in the First Degree (Penal Law § 130.50(1)), Criminal
Contempt in the First Degree (Penal Law § 215.51(b)(iv)), Tampering with a Witness in the
Fourth Degree (Penal Law § 215.10(a)), and two counts of Criminal Contempt in the Second
Degree (Penal Law § 215.50(3)). Dkt. No. 12-2, at SR 67-72. The charges stem from
petitioner's actions on the evening of September 18, 2011, when he forcibly engaged in
sexual intercourse with the mother of his two children, from whom he was estranged and
prohibited from contacting. Id.
Three months prior to trial, the twenty-six year old victim passed away due to an
unrelated heart attack. Dkt. No. 13-1, at T 3. Accordingly, she was unavailable to testify at
trial, but her sister and brother-in-law testified on behalf of the prosecution. According to the
victim's sister, Christine, the victim began dating Pham when she was fifteen years old. The
relationship was "on and off" again for approximately nine years. During that time, the victim
and petitioner had two children. Dkt. No. 13-1, at T 4-5, 30-31.
Christine and her husband, Maurice, testified that the couple's relationship was
"violent at times with fights and constant arguments," and that they often had to pick the
victim up in the middle of the night after she called to say that she and Pham had been
fighting. Dkt. No. 13-1, at T 6-7, 32-33. This turbulent relationship resulted in an order of
protection, dated September 27, 2010, which prohibited petitioner from having any contact
with the victim or his children until September 28, 2011. Dkt. No. 13, at T 323-323. A
second order of protection was served on petitioner on September 19, 2011, barring
3

petitioner from having contact with the victim through March 20, 2012. Id. at T 331-333.
According to Christine, her sister and petitioner had no relationship f or a "significant period of
time" before petitioner sexually assaulted the victim on September 18, 2011. Dkt. No. 13-1,
at T 376.
On September 18, 2011, Maurice received a phone call from the victim. Maurice
testified that she was crying and very upset on the phone. She told Maurice that Pham "had
just raped her and he wouldn't leave the house." Dkt. No. 13-1, at T 8-10. Maurice
immediately left and drove to pick up the victim. Id. at T 10. After arriving at the victim's
house, Maurice observed petitioner putting his shirt back on as he entered through the back
door. Id. at T 11. The victim was crying and pacing around the house saying "I can't believe
you did this to me and why would you do this." She was calling petitioner a "bastard," a
"scumbag," and a "psycho." Id. at 11-12. Maurice ultimately grabbed petitioner and
slammed him to the ground, where he choked him "for like 30 seconds." Id. at T 13. At
some point, the victim called the police and Maurice sat with petitioner on the couch, waiting
for the authorities to arrive. Id. at T 13-14.
During this time, Christine noticed that her sister had called and lef t a voice mail. Id.
at T 33-34. Christine testified that when she listened to the voice mail, she could hear her
sister crying and screaming at Pham. According to Christine, her sister did not speak into the
phone directly, but she could hear her saying "How can you do that to me? Why did you do
that to me? You bastard." Id. at T 34-35, 43-44. After listening to the message, Christine
called her sister but there was no answer. Id. She then drove to her sister's house where
she saw the police talking to her. The victim told Christine that "she got raped." Id. at T 35,

4

44.
Officer Craig Whitney testified that he was the first officer at the scene. Dkt. No. 13, at
T 337-338. The victim told him what happened and she agreed to go to the hospital for
treatment and to have a sexual assault kit taken. Id. at T 342-343. After the victim left for
the hospital, Officer Whitney arrested Pham. Id. at T 345.
Dr. Lindsay Stokes, a resident physician at the hospital, testified that she performed a
sexual assault examination of the victim. Id. at T 353, 370. First, she took a complete
history, which included a recounting of the events that evening. According to Dr. Stokes, the
history is crucial to help diagnose and treat the patient, because it allows the examiner to
determine where the patient was physically injured and to assess any psychiatric issues the
person may have after being assaulted. Id. at T 358-360, 375,
Dr. Stokes went on to read her medical reports to the jury, which included the
statements the victim made to her during the sexual assault examination. Id. at T 372-374.
The victim told Dr. Stokes that Pham had come over that evening to pick up some of his
belongings. While he was there, he grabbed her and started kissing and licking her
face. She shouted at him to stop, but he "forced her to the floor and pulled off her pants and
underwear." Id. at T 380. She then told Dr. Stokes that petitioner proceeded to f orcibly
engage in sexual intercourse with her. Id.
Dr. Stokes also testified to performing a physical examination of the victim. Id. at T
381. She observed abrasions on the victim's right shoulder blade, as well as small dots
similar to bruises on her wrists, indicating that the area may have been subjected to
force. Id. While Dr. Stokes did not observe any tearing or bleeding to the victim's genital

5

area, she stated this was not inconsistent with the victim's account since "the majority of
sexual assaults" do not result in such injuries because the vaginal area is made of "tissue
that's meant to stretch." Id. at T 388-389. The victim was later released to her home with
her sister Christine. Id. at T 388.
Between September 19 and September 23, 2011, Pham called the victim over two
dozen times from jail. Dkt. No. 13-1, at T 42-43; Dkt. No. 14, Audio CDs. 3 The victim
refused to take all but two of the calls. Id. During the two phone calls, petitioner urged the
victim not to press charges and to tell the police she overreacted because they got into an
argument. Id. The victim said she would not say that, but ultimately told petitioner she did
not plan to talk to anybody. Id. She then told petitioner to stop calling her.
Finally, after the victim passed away in April 2012, Christine testified to visiting Pham
in jail to tell him that his kids were safe and that she and Maurice were going to take custody
of them. Dkt. No. 13-1, at T 36-37. According to Christine, petitioner seemed primarily
concerned with the rape case, and asked if she had spoken to the District Attorney. Id.
Pham did not testify at his trial. His only witness was a friend who testified that the
victim came to his house to pick petitioner up three or f our times during the month of
September 2011. The friend claimed their interactions were always "cordial." Id. at T 71-72.
On July 12, 2012, Pham was convicted of all charges against him.4 Id. at T 167-170.
He was sentenced on September 20, 2012 to an aggregate determinate prison term of

3

The telephone calls placed by petitioner to the victim were introduced into evidence and played for the jury.
Copies of the original CD recordings introduced at trial were filed as part of the State Court Record at Docket
Number 14.
4

The second count of second-degree criminal contempt was dismissed after the People moved to withdraw
it at the close of their direct case.

6

twenty-two years, followed by fifteen years post-release supervision. Id. at 186-187.
Pham appealed his conviction to the Appellate Division, Third Department. Dkt. No.
12-2, at SR 1-63. On June 12, 2014, the Appellate Div ision affirmed his conviction, and the
New York Court of Appeals denied leave to appeal. People v. Pham, 118 A.D.3d 1159 (N.Y.
App. Div. 3d Dep't 2014), lv. denied, 24 N.Y.3d 1087 (2014).
III. The AEDPA Standard of Review
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal
court may only grant habeas corpus relief with respect to a claim adjudicated on the merits in
state court 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 of the United States; 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); Cullen v. Pinholster, 563 U.S. 170, 181
(2011); Premo v. Moore, 562 U.S. 115, 120-21 (2011); Schriro v. Landrigan, 550 U.S. 465,
473 (2007).
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) (internal quotation marks omitted)). 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, __ U.S. __, 133 S. Ct. 1990, 1992 (2013) (per curiam )

7

(quoting Harrington v. Richter, 562 U.S. 86, 102 (2011)); see Metrish v. Lancaster, __ U.S.
__, 133 S. Ct. 1781, 1787 (2013) (explaining that success in a habeas case premised
on § 2254(d)(1) requires the petitioner to "show that the challenged state-court ruling rested
on 'an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.'" (quoting Richter, 562 U.S. at 103)).
Additionally, AEDPA foreclosed "'using federal habeas corpus review as a vehicle to
second-guess the reasonable decisions of state courts.'" Parker v. Matthews, __ U.S. __,
132 S. Ct. 2148, 2149 (2012) (per curiam) (quoting Renico, 559 U.S. at 779). In other words,
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, 550 U.S. at
473.
Importantly, federal habeas courts must presume that the state court's factual findings
are correct unless a petitioner rebuts that presumption with "'clear and convincing
evidence.'" Schriro, 550 U.S. at 473-74 (quoting § 2254(e)(1)). Finally, "[w]hen a state court
rejects a federal claim without expressly addressing that claim, a federal habeas court must
presume that the federal claim was adjudicated on the merits[.]" Johnson v. Williams, __
U.S. __, 133 S. Ct. 1088, 1096 (2013).

8

IV. DISCUSSION
A. Petitioner's Right to Confront Witnesses
Pham claims in Ground One of his petition that his Sixth Amendment right to confront
witnesses was violated when the trial court allowed the prosecution to introduce the victim's
statements to Dr. Stokes the night she was raped. Pet. at 4.
Pham made this claim on direct appeal. The Appellate Division rejected the claim on
the merits, finding that admission of the victim's statements to Dr. Stoke did not implicate the
Confrontation Clause. Pham, 118 A.D.3d at 1162. Specifically, the Appellate Division held
that the victim's statements were made for the purpose of receiving medical treatment and
were therefore not testimonial. Id. In addition, the Appellate Division found the records
containing the statements fell under the hearsay exception regarding business
records. Id. ("Hospital records fall within the business records exception to the hearsay rule
as long as the information relates to diagnosis, prognosis or treatment." (citations omitted)).
The Appellate Division's decision was neither contrary to, nor an unreasonable
application of Supreme Court precedent. The Sixth Amendment provides, in relevant part,
that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him." U.S. Const. amend. VI. In Crawford v. Washington, 541 U.S. 36
(2004), the Supreme Court ruled that the Confrontation Clause prohibits admission of
"testimonial" statements of witnesses who do not appear at trial unless (1) the witness is
unavailable to testify and (2) the defendant had a prior opportunity to cross-examine the
witness. Crawford, 541 U.S. at 54.
The Supreme Court revisited the Crawford decision in the case of Melendez-Diaz v.

9

Massachusetts, which involved the introduction of forensic analysis reports which found that
a substance seized from a defendant was cocaine. Melendez-Diaz, 557 U.S. 305
(2009). The Court held that such reports were testimonial since they were primarily "'made
for the purpose of establishing or proving some fact'" at trial, and therefore the analysts who
prepared the reports were witnesses for purposes of the Sixth Amendment and therefore
required to testify. Id. at 310-311 (quoting Crawford, 541 U.S. at 51); see also Ohio v. Clark,
__ U.S. __, 135 S.Ct. 2173, 2180 (2015) (" Under our precedents, a statement cannot fall
within the Confrontation Clause unless its primary purpose was testimonial. 'Where no such
primary purpose exists, the admissibility of a statement is the concern of state and federal
rules of evidence, not the Confrontation Clause.'" (quoting Michigan v. Bryant, 562 U.S. at
359)).
However, the Supreme Court in Melendez-Diaz also noted in dicta that "medical
reports, created for treatment purposes . . . would not be testimonial" under the Court's
decision. Id. at 312 n.2. In fact, the Supreme Court has never treated statements made for
the purpose of medical diagnosis or treatment as testimonial, but has repeatedly noted that
out-of-court statements contained in medical records are "by their nature, made for a
purpose other than use in a prosecution." Michigan v. Bryant, 562 U.S. 344, 362 n.9. (2011);
Giles v. California, 554 U.S. 353, 376 (2008) (reiterating that "only testimonial statements are
excluded by the Confrontation clause. Statements . . . to physicians in the course of
receiving treatment would be excluded, if at all, only by hearsay rules." (emphasis in
original)); c.f. Ohio v. Clark, 135 S.Ct. at 2181 (holding that statements by a child to a
preschool teacher were non-testimonial; the primary purpose of the conversation was to

10

protect the child from further harm, and not to gather evidence to prosecute the abuser); see
also Duhs v. Capra, 639 F. App'x 691 (2d Cir. 2016) (summary order) (holding that a
petitioner's rights under the Confrontation Clause were not violated by the admission of a
child's statement to a treating physician).
Here, the Appellate Division noted that "[d]etails of the abuse, even including the
perpetrator's identity, may be relevant to diagnosis and treatment when the assault occurs
within a domestic violence relationship because the medical provider must consider the
victim's safety when creating a discharge plan and gauging the patient's psychological
needs." Pham, 118 A.D.3d at 1162.
In line with this reasoning, Dr. Lindsay Stokes, who examined the victim in this case,
testified that "all of the information in the medical records was relevant to and gathered for
purposes of diagnosis or treatment." Id.; see also Dkt. No. 13, at T 353, 358-360, 370, 375.
Although a secondary purpose of the examination may have been to gather evidence for a
future prosecution, the Appellate Division noted that "the primary purpose of the examination
was to care for the patient's health and safety." Id.
Given the Supreme Court's repeated confirmation that statements made for the
primary purpose of receiving medical diagnosis and treatment are non-testimonial, the
Appellate Division's decision finding the victim's statements to Dr. Stokes did not implicate
the Confrontation Clause was neither contrary to, or an unreasonable application of,
established Supreme Court law. As such, Pham's first ground for habeas relief is denied and
dismissed.

11

B. Petitioner's Ineffective Assistance of Counsel Claims
Pham argues in grounds Five and Six that he is entitled to habeas relief because he
received ineffective assistance of counsel. Specifically, petitioner maintains his counsel was
ineffective because (1) he failed to object to the admission of "hearsay evidence of prior bad
acts and uncharged crimes" committed by petitioner towards the victim (Ground Five) and
(2) he failed to object "on hearsay and best evidence grounds" to the admission of the
victim's statements contained in a lost voice mail recording (Ground Six). Pet. at 7-8.
To demonstrate constitutionally ineffective assistance of counsel, a petitioner must
show "both deficient performance by counsel and prejudice." Premo v. Moore, 562 U.S. 115,
121-122 (2011) (quoting Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)); see also
Strickland v. Washington, 466 U.S. 668, 694 (1984). Deficient performance requires a
showing that counsel's performance fell below an objective standard of professional
reasonableness. Id.; Richter, 562 U.S. at 104.
"Strickland does not guarantee perfect representation, only a reasonably competent
attorney." Richter, 562 U.S. at 110 (quoting Strickland, 466 U.S. at 687) (internal quotation
marks and citation omitted). A petitioner must therefore 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 assuming a petitioner can establish counsel was deficient,
he still must demonstrate prejudice. Id. at 693-694. This requires more than showing "the
errors had some conceivable effect on the outcome," but that the counsel's errors were "so

12

serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687,
693. Meeting this burden is "never an easy task . . . [and] establishing that a state court's
application of Strickland was unreasonable under § 2254(d) is all the more difficult." Premo,
131 S. Ct. at 739-40 (citations and internal quotation marks omitted).
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, 556 U.S. at 123 (internal quotation marks and citation
omitted). 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, "the question is whether there is any
reasonable argument that counsel satisfied Strickland 's deferential standard." Id. Finally, it
bears noting that it is "difficult to establish ineffective assistance when counsel's overall
performance indicates active and capable advocacy." Richter, 562 U.S. at 111.
1. Failure to object to testimony concerning petitioner's prior bad acts
Pham maintains his trial counsel was ineffective for failing to object to unidentified
hearsay evidence introduced by the victim's sister and brother-in-law concerning his alleged
past abuse towards the victim. Pet. Mem. at 26-27. After considering the record in this case,
petitioner has not rebutted "'the strong presumption' that counsel's attention to certain issues
to the exclusion of others reflect[ed] trial tactics rather than 'sheer negligence.'" Richter, 562
U.S. at 109 (quoting Yarborough v. Gentry, 540 U.S. 1, 8 (2003)); accord United States v.

13

Cohen, 427 F.3d 164, 170-171 (2d Cir. 2005) ("[D]ecisions such as when to object and on
what grounds are primarily matters of trial strategy and tactics, and thus are virtually
unchallengeable absent exceptional grounds for doing so." (internal quotation marks
omitted)).
Prior to trial, the trial court ruled that evidence of Pham's prior bad acts against the
victim was admissible to understand the nature of his relationship with her. Therefore, any
objection during trial would have been futile, and would only have served to highlight
objectionable testimony to the jury. To be sure, during a Molineux hearing, the People
indicated that Christine and Maurice were prepared to testify about their observations of the
petitioner's relationship with the victim, including instances when they were called to the
victim's residence during, or shortly, after fights had occurred. Dkt. No. 13, at T 87-88.
The trial court ruled, over Pham's opposition, that the sister and brother-in-law could
testify about their "personal knowledge of the prior nature of the relationship" and about their
"personal observations and knowledge of the relationship between [petitioner and the
victim]." Id. at T 91. Specifically, the trial court noted that "if [the victim and petitioner] had a
history of violence, I believe the case law in New York State would allow the jury to hear that
proof as relevant to an understanding of the nature of the relationship" between them. Id. at
T 90.
During the trial, Maurice testified that the relationship between the victim and Pham
was "violent at times with fights and constant arguments." Dkt. No. 13-1, at T 6. Although he
admitted never personally observing any fights, he stated that the victim "would call [at] odd
hours in the morning stating that [she and petitioner] would be fighting and arguing" and ask
to be picked up. Id. When he would go to the victim's house, he testified that items were
14

often misplaced, and the house was messy "like someone was in there fighting and [the
victim] would be crying and her hair would be all messy." Id. at T 7. Christine also testified
that she never observed Pham fight with the victim, but she frequently saw the
"aftermath." Id. at T 32. Christine testified to receiving "numerous" calls from her sister in
the middle of the night, asking to be picked up after a fight with petitioner. Id. at T 33.
In its summary opinion, the Appellate Division only addressed Pham's underlying
claim, finding the "[t]estimony from the victim's sister and brother-in-law concerning the
turbulent nature of [petitioner's] relationship with the victim was relevant and probative
evidence on the issues of intent and forcible compulsion and provided necessary background
regarding their history." Pham, 118 A.D.3d at 1160-1161. The Appellate Division did not
specifically address petitioner's ineffective assistance claim related to his counsel's failure to
object to the admission of this testimony. Id.
Where, as here, "a federal claim has been presented to a state court and the state
court has denied relief, it may be presumed that the state court adjudicated the claim on the
merits in the absence of any indication or state-law procedural principles to the
contrary." Harrington v. Richter, 562 U.S. 86, 99 (2011) ("Where a state court's decision is
unaccompanied by an explanation, the habeas petitioner's burden still m ust be met by
showing there was no reasonable basis for the state court to deny relief."); see also Johnson
v. Williams, 133 S. Ct. at 1096 ("When a state court rejects a federal claim without expressly
addressing that claim, a federal habeas court must presume that the federal claim was
adjudicated on the merits . . . . ").
Accordingly, the question in this case then becomes whether the Appellate Division

15

unreasonably concluded that Pham's counsel was not ineffective for failing to object to the
alleged hearsay evidence – not whether counsel's failure to object to hearsay evidence
amounted to ineffective assistance in the first instance. See Richter, 562 U.S. at 101 ("The
pivotal question is whether the state court's application of the Strickland standard was
unreasonable."). Upon review, the Appellate Division's decision was not contrary to, or an
unreasonable application of Strickland.
First, Pham does not identify the portions of the testimony to which he believes his
counsel should have objected. Moreover, considering the trial court's prior Molineux ruling,
any objections by petitioner's counsel to the testimony would have been overruled. Finally,
any objections by petitioner's counsel would likely have had the effect of eliciting additional,
potentially damaging testimony, and only served "to highlight for the jury the argument that
counsel found objectionable." Bierenbaum v. Graham, 607 F.3d 36, 57-58 (2d Cir. 2010).
Therefore, counsel's decision to refrain from objecting likely reflected reasoned "trial tactics
rather than 'sheer neglect.'" Richter, 562 U.S. at 109 (quoting Yarborough v. Gentry, 540
U.S. 1, 8 (2003)). For these reasons, it was not unreasonable for the Appellate Division to
find that petitioner failed to show his counsel was deficient under Strickland.
Since Pham failed to establish his trial counsel's performance was deficient under the
first prong of Strickland, the second prong (i.e., prejudice) need not be
addressed. Strickland, 466 U.S. at 697 (holding there is no reason to "address both
component[s] of the [Strickland] inquiry if the defendant makes an insufficient showing on
one"). Petitioner's claim of ineffective assistance of counsel based on counsel's failure to
object to hearsay evidence of petitioner's prior bad acts is therefore denied and dismissed.

16

2. Failure to object to testimony concerning the lost voice mail recording
In Ground Six of the petition, Pham argues his counsel was ineffective because he
failed to object to the admission of Christine's testimony concerning the voice mail her sister
left her the night of the assault. Pet. at 7-8.
Pham made the same claim on direct appeal, arguing that his counsel should have
objected to the testimony on best evidence grounds because the voice mail was deleted, and
also on hearsay grounds. SR at 44. The Appellate Division dismissed the claim stating that,
since "the hearsay and best evidence objections would not have been fruitful, defendant was
not deprived of effective assistance due to counsel's failure to make such objections." Pham,
118 A.D.3d at 1163.
Upon review, the Appellate Division did not unreasonably apply Strickland in
dismissing Pham's claim. At trial, Christine testified that she was at her mother-in-law's
house the night of the assault. While she was there, she received a missed call and voice
mail message from her sister. Dkt. No. 13-1, at T 34. According to Christine, when she
listened to the voice mail, she could hear her sister "screaming at [petitioner]" and that she
sounded "[v]ery upset, sad, mad." Id. She testified that she could hear her sister yelling
"How can you do that to me? Why did you do that to me? You bastard." Id. at 35. Christine
tried to call her sister back, but there was no answer. Christine then left, and drove to her
sister's house. Id. During cross-examination, Christine acknowledged that she assumed her
sister was yelling at petitioner, and that the voice mail was accidentally deleted from her
phone after she failed to continue to save it. Id. at 44-45.
Generally, state court rulings on evidentiary matters are matters of state law and "are

17

not reviewable by a habeas court unless the errors alleged are so prejudicial as to constitute
fundamental unfairness." Rosario v. Kuhlman, 839 F.2d 918, 924-925 (2d Cir. 1988); see
also Toland v. Walsh, No. 9:02-CV-0399 (GLS/VEB), 2008 W L 820184, *10 (N.D.N.Y. Mar.
26, 2008) ("The Second Circuit Court of Appeals has noted that in order for a petitioner to
prevail on these claims, he would have to show that 'the erroneously admitted evidence,
[when] viewed objectively in light of the entire record before the jury, was sufficiently material
to provide the basis for conviction or to remove a reasonable doubt that would have existed
on the record without it.'" (quoting Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985))).
Here, the Appellate Division ruled that the victim's statements were admissible as
excited utterances - an exception under New York's hearsay rules. Id. As for failing to object
to Christine's statements on best evidence grounds, the Appellate Division stated that
secondary evidence "is permissible where there is proof 'that the loss or destruction of the
[original] document has been sufficiently explained and that the mishap was an innocent
one.'" Id. (quoting People v. Joseph, 86 N.Y.2d 565 (1995)).
During the trial, Christine explained that she listened to and saved her sister's voice
mail several times, but that it was "automatically deleted." Id. Since Christine testified that
"she was unaware that the deletion would occur," the Appellate Division concluded that any
"best evidence objections would not have been fruitful" and that Pham "was not deprived of
effective assistance due to counsel's failure to make such objections." Id.
Based on the facts above and the reasoning laid out by the Appellate Division, the trial
court would have likely rejected any objection by counsel to Christine's testimony concerning
the victim's voice mail under New York's prevailing evidentiary and hearsay rules. Therefore,
Pham's counsel did not act objectively unreasonably by failing to object to the testimony, and
18

petitioner has not demonstrated his counsel's performance was deficient under the Strickland
standard. Instead, the Appellate Division's finding that petitioner's counsel satisfied
Strickland's deferential standard was reasonable, and petitioner's claim is denied and
dismissed. See Richter, 562 U.S. at 105.
C. Petitioner's Remaining Claims are Unexhausted and Procedurally Barred
1. These claims were not fairly presented in state court
Generally, a federal court may not issue a writ of habeas corpus unless a petitioner
has exhausted all remedies available in state court. 28 U.S.C.A. § 2254(b). This
requirement is not satisfied unless each federal claim is "fairly presented" to the state
courts. § 2254(b), (c); see also Baldwin v. Reese, 541 U.S. 27, 29 (2004) (holding that a
petitioner seeking federal habeas relief must raise all claims in state court prior to raising
them in the habeas corpus petition, and he m ust "fairly present" each federal claim in the
appropriate state court, "thereby alerting that court to the federal nature of the claim"). This
is to ensure that the state is given the "opportunity to pass upon and correct alleged
violations of its prisoners' federal rights." Picard v. Connor, 404 U.S. 270, 275 (1971)
(citations omitted).
In order to satisfy the exhaustion requirement, state prisoners must present their
claims to a state's highest court in a petition for discretionary review. See O'Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999) (noting that tho properly exhaust federal claims, a state
prisoner "must give the state courts one full opportunity to resolve any constitutional issues
by invoking one complete round of the State's established appellate review
process."). Habeas corpus petitioners bear the burden of demonstrating that they have
exhausted available state remedies. Irvis v. Haggat, No. 9:12-CV-1538 (FJS/TWD), 2015
19

WL 6737031, at *6 (N.D.N.Y. Nov. 3, 2015) (citing Colon v. Johnson, 19 F.Supp.2d 112,
119-20 (S.D.N.Y. 1998)).
Here, Pham failed to exhaust Grounds Two, Three, and Four by failing to present
these claims to the appropriate state court for review. For instance, in Ground Two of the
habeas petition, petitioner argues his constitutional due process rights were violated when
the trial court allowed Maurice to introduce statements the victim made to him shortly after
the assault occurred. Pet. at 4-5. Prior to trial, the trial court ruled that " all things being
equal, depending on the questions," the statements were admissible under New York's
excited utterance hearsay exception. Dkt. No. 13, at T 103-108.
Although Pham argued on direct appeal that the victim's statements to Maurice did not
constitute excited utterances under New York's exception to the hearsay rules, he never
raised this claim in federal constitutional terms. Petitioner did not reference Supreme Court
or federal court precedent in support of this claim on direct appeal, but simply characterized
the claim as a violation of state evidentiary law. Petitioner's only possible reference to a
constitutional claim was a single sentence in his Appellate Division brief that "[t]he harmless
error standard for a hearsay violation is that for constitutional error." SR at 40, citing People
v. Johnson, 1 N.Y.3d 302, 308, n.5 (2003).
However, Pham's "brief reference in his state court brief[ to Johnson] to set forth New
York's harmless error standard did not give the Appellate Division any notice that a federal
constitutional issue was being raised" in relation to the admission of the victim's excited
utterances under New York's evidentiary rules. Glisson v. Mantello, 287 F. Supp.2d 414, 420
(S.D.N.Y. 2003); Lewis v. Marshall, 612 F. Supp.2d 185, 196-197 (N.D.N.Y. 2009) (finding
petitioner's claim that admission of certain audio tapes violated his constitutional right to a fair
20

trial was unexhausted; the petitioner's "entire argument before the state courts [was] that the
tapes . . . were inadmissible under state law."); c.f., Jones v. Annucci, 124 F. Supp.3d 103,
116 (N.D.N.Y. 2015) (finding petitioner failed to exhaust his ineffective assistance of counsel
claims because "he did not present them as federal constitutional issues and cited only to
state law rather than the federal standard"); Kimbrough v. Bradt, 949 F. Supp.2d 341, 362-63
(N.D.N.Y. 2013) (finding petitioner's claim that his aggregate sentence violated due process
was unexhausted; the petitioner never presented this claim to the state court in constitutional
terms, but instead relied only on state law). Accordingly, Ground Two of the habeas petition
is unexhausted.
Similarly, in Ground Three of the habeas petition, Pham argues the trial court
improperly allowed Christine to testify about the voice mail her sister left her the night of the
assault. Pet. at 5-6. On direct appeal, petitioner only argued his counsel's ineffectiveness in
failing to object to the admission of this testimony on New York's best evidence and hearsay
grounds. SR at 42-48. Petitioner argues for the first time in this habeas petition that the
State's failure to preserve the voice mail violated his constitutional rights to a fair trial. Id.
Pham never raised this claim in state court. Petitioner's only reference to a potential
constitutional claim on appeal was his request, in the alternative, that the "Appellate Division
consider the issue of "the erroneous receipt of the testimony . . . in the interests of
justice . . . because the receipt violated [petitioner's] right to a fair trial." SR at 48. However,
this alternative request was only made because petitioner's counsel had not preserved the
underlying issue for appellate review because he failed to object to the testimony at
trial. Accordingly, this request did not raise a federal due process claim, but simply invoked
the Appellate Division's discretion to review unchallenged errors in the interest of justice as
21

permitted by New York's Crim. Proc. Law § 470.15(6)(a). SR at 48. Therefore, Ground
Three of the petition is unexhausted.
Finally, Pham maintains in Ground Four of the habeas petition that the evidence was
legally insufficient to support his conviction for first degree criminal sexual act and first
degree criminal contempt. Pet. at 6-7. On direct appeal, petitioner only argued that his
conviction of first degree criminal contempt was against the weight of the evidence.
Petitioner did not argue his conviction for first degree criminal sexual act was against the
weight of the evidence. Nor did petitioner raise a legal sufficiency challenge to either his
criminal contempt or criminal sexual act convictions during any stage of appellate review.
Although "it is not necessary for a habeas petitioner to cite 'book and verse' of the
Constitution" in order to exhaust a federal claim in state court, Daye v. Att. Gen. of State of
New York, 696 F.2d 186, 192 (2d Cir. 1982), exhaustion does require that the petitioner
"'fairly present' his constitutional claim to the state courts, which he accomplishes 'by
presenting the essential factual and legal premises of his federal constitutional claim to the
highest state court capable of reviewing it.'" Jackson v. Conway, 763 F.3d 115, 133 (2d Cir.
2014) (quoting Rosa v. McCray, 396 F.3d 210, 217 (2d Cir. 2015)).
"In developing and refining the 'fairly present[ed]' standard, the Supreme Court has
concentrated on the degree of similarity between the claims that a petitioner presented to the
state and federal courts." Smith v. Duncan, 411 F.3d at 349 (quoting Jackson v. Edwards,
404 F.3d 612, 619 (2d Cir. 2005)); Duncan, 513 U.S. at 366 (stating that because the state
and federal inquiries were "no more than somewhat similar" rather than "virtually identical,"
the petitioner did not fairly present his due process claim when he argued to the state
appellate court that the trial court's failure to sustain an objection was a "miscarriage of
22

justice.").
As relevant here, although sufficiency and weight of the evidence claims are related,
"each requires a discrete analysis." People v. Bleakley, 69 N.Y.2d 490, 495 (1987). The
Second Circuit in Parker v. Ercole recently noted that New York's "weight-of-the-evidence
claim requires 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." Parker, 666
F3d 830, 833 (2d Cir. 2012) (citing Bleakley, 69 N.Y.2d at 495). In fact, "[t]he difference in
standards is more than semantic; it can be outcome-dispositive." Lopez v. Sup't Five Points
Corr. Fac., No. 1:14-CV-4615, 2015 W L 1300030 at *12 (S.D.N.Y. Mar. 23, 2015) (citing
cases holding the evidence was legally sufficient but reversed as against the weight of the
evidence).
Recent cases which have examined the nature of the weight of the evidence and
sufficiency claims have concluded that "a weight claim cannot stand in for a constitutional
sufficiency claim when considering whether a habeas petitioner has exhausted state court
remedies because the two claims are no more than somewhat similar." Lopez, 2015 WL
1300030 at *16; see also Shuler v. Artus, 9:15-CV-0399 (DNH), 2016 WL 698106, at * 4-5
(finding petitioner's legal sufficiency claim was unexhausted; petitioner's weight of the
evidence claim on appeal did not "fairly present" a legal sufficiency claim to state court);
Williams v. Marshall, No. 1:09-CV-7411, 2011 W L 2175810 at *8-9 (S.D.N.Y. Mar. 30, 2011)
(concluding that even if petitioner pleaded a constitutional sufficiency claim in his habeas
petition, such claim was not exhausted in state court; raising a state law weight of the
evidence claim did not "fairly present" the constitutional sufficiency claim in state court) (citing
DiSimone v. Phillips, 461 F.3d 181, 190 (2d Cir. 2006)); Thomas v. Fischer, No. 1:05-CV23

3010, 2007 WL 1988273 at * 3 (S.D.N.Y. Jul. 6, 2007) (concluding petitioner "did not 'fairly
present' a federal insufficiency claim when he relied on an 'against-the-weight-ofthe-evidence' claim," because the standards are not "so similar" that by presenting one, the
petitioner could be said to have "fairly presented" the other) (quoting Jackson v. Edwards,
404 F.3d at 621)).
Here, the Appellate Division noted that Pham only challenged his conviction of
criminal contempt in the first degree as against the weight of the evidence. Pham, 118
A.D.3d at 1160. The Appellate Division rejected petitioner's weight of the evidence claim
without any mention of the standards governing the sufficiency of the evidence. Id. Based
on a review of petitioner's appellate brief, and the Appellate Division's analysis of his claim as
solely raising a weight of the evidence argument, the Court finds that petitioner did not "fairly
present" a legal sufficiency claim in state court5, and that Ground Four of his habeas petition
is unexhausted.
2. These claims are procedurally defaulted
Pham's remaining claims are also procedurally defaulted because there is no
remaining avenue by which he can properly exhaust them in state court. Aparicio v. Artuz,
5

In Liberta v. Kelly, 839 F.2d 77, 80 n.1 (2d Cir. 1988), the Second Circuit remarked in a footnote that "New
York courts, when reviewing the evidence in support of a criminal conviction, have consistently adhered to a standard
that is virtually identical to the standard set forth in Jackson v. Virginia, 443 U.S. 307, 319." Some courts have
concluded, based in part on the Liberta footnote, that by raising a weight of the evidence claim, petitioners
necessarily have raised a sufficiency claim. See, e.g., Horne v. Perlman, 433 F. Supp. 2d 292, 300 (W.D.N.Y. 2006);
Howie v. Phillips, No. 1:03-CV-9757, 2004 WL 2073276 at *4 (S.D.N.Y. Sept. 17, 2004).
More recently in Parker v. Ercole, 666 F.3d 830, 833 (2d Cir. 2012), the petitioner raised both a sufficiency
claim and a weight claim on direct appeal. The Appellate Division ruled that the sufficiency claim was unpreserved
and declined to review it in the interest of justice, and rejected the weight of the evidence claim on the merits. The
Second Circuit noted that a weight claim "requires 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 found that "to
the extent the Appellate Division decided that Parker's conviction was not against the weight of the evidence, it
necessarily decided that there was sufficient evidence to support the verdict." Id.
In contrast, however, Pham never even hinted at a sufficiency claim on direct appeal, and the Appellate
Division never mentioned the standards governing the sufficiency of the evidence. Pham, 118 A.D.3d 1159.

24

269 F.3d 78, 90-91 (2d Cir. 2001) ("When a claim has never been presented to a state court,
a federal court may theoretically find that there is an 'absence of available State corrective
process' under § 2254(b)(1)(B)(I) if it is clear that the unexhausted claim is procedurally
barred by state law and, as such, its presentation in the state f orum would be futile").
The facts supporting Pham's remaining claims were apparent on the record and
should have been raised on direct appeal. However, petitioner can no longer file a direct
appeal or leave application to exhaust these claims because a defendant is "entitled to one
(and only one) appeal to the Appellate Division" and "New York does not otherwise permit
collateral attacks on a conviction when the defendant unjustifiably failed to raise the issue on
direct appeal." Aparicio, 269 F.3d at 91 (citing CPL § 440.10 (2)(c)); see 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.); Sweet v. Bennett, 353 F.3d
135, 140-41 (2d Cir. 2003) (applying CPL § 440.10 (2)(c) to claims raised for the first time in
federal habeas petition).
Procedurally defaulted claims are not subject to habeas review unless a petitioner can
show cause for the default and actual resulting prejudice, or that the denial of habeas relief
would result in a fundamental miscarriage of justice, i.e., that he is actually innocent. House
v. Bell, 547 U.S. 518, 536-39 (2006); Schlup v. Delo, 513 U.S. 298, 327 (1995); see Dunham
v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) ("Actual innocence means factual innocence, not
mere legal insufficiency." (citation omitted)).
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,
25

___U.S.____, 132 S. Ct. 912, 922 (2012); Coleman v. Thompson, 501 U.S. 722, 753
(1991). 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. See Murray v. Carrier,
477 U.S. 478, 496 (1986) (referring to the “cause-and-prejudice standard”); Stepney v.
Lopes, 760 F.2d 40, 45 (2d Cir. 1985).
In this case, Pham has not alleged cause and prejudice for his default, and an
independent review of the record reveals none. Nor has petitioner raised a claim of actual
innocence such that failure to review his claims would result in a miscarriage of
justice. Accordingly, based on a close review of the habeas petition and finding no basis to
excuse petitioner's procedural default, this Court is barred from reviewing petitioner's
remaining claims.6 Grounds Two, Three, and Four of the habeas petition are therefore
denied and dismissed.
V. CONCLUSION
Therefore, it is
ORDERED that
1. The petition, Dkt. No. 1, is DENIED AND DISMISSED;
2. No Certificate of Appealability ("COA") shall issue because petitioner failed to make
a "substantial showing of the denial of a constitutional right" as 28 U.S.C. § 2253(c)(2)

6

Even if the remaining claims were not procedurally defaulted, the Court finds petitioner's claims lack merit
and that the Appellate Division's decision was neither contrary to, nor an unreasonable application of, relevant
Supreme Court precedent.

26

requires.7 Any further request for a Certificate of Appealability must be addressed to the
Court of Appeals (FED. R. APP. P. 22(b)); and
3. The Clerk of the Court shall serve copies of this Decision and Order upon the
parties in accordance with the Local Rules.
IT IS SO ORDERED.

Dated: September 21, 2016
Utica, New York.

7

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); See Richardson v. Greene, 497 F.3d 212, 217 (2d Cir.
2007) (holding that, if the court denies a habeas petition on 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" (citation omitted)).

27