Green v. Legoney

Filing 14

OPINION AND ORDER: For the foregoing reasons, the Petition is denied. The remaining issue is whether to grant a certificate of appealability (COA). For a COA to issue, a petitioner must make a substantial showing of the denial of a constitutional rig ht. A substantial showing does not require a petitioner to demonstrate that he would prevail on the merits, but merely that reasonable jurists could disagree as to whether the petition should have been resolved in a different manner or [whether] the issues presented were adequate to deserve encouragement to proceed further. Petitioner has made no such showing. Accordingly, I decline to grant a COA. The Clerk of the Court is directed to close this case. SO ORDERED. (Signed by Judge Shira A. Scheindlin on 10/25/2012) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-------------------------------------------------------)(
ERIC GREEN,
OPINION AND ORDER
Petitioner,
09 Civ. 0747 (SAS)
- againstPATRICIA LEGONEY, Superintendent of
Washington Correctional Facility,
Respondent.

-------------------------------------------------------)(
SHIRA A. SCHEINDLIN, U.S.D.J.:
I.

INTRODUCTION
Petitioner Eric Green brings this pro se habeas corpus petition

pursuant to section 2254 of Title 28 of the United States Code challenging his state
court conviction following a jury trial in New York State Supreme Court, New
York County.l Petitioner was convicted of three counts of Rape in the First
Degree 2 and one count of Sodomy in the Third Degree. 3 Petitioner was sentenced
to nine years of imprisonment, followed by five years of post-release supervision.4

See Petition for a Writ of Habeas Corpus ("Petition") at 1.
2

See New York Penal Law ("NYPL") § 130.35[1].

3

See id. § 130.40[3].

4

See Petition at 1.

On January 27, 2009,5 petitioner filed the instant Petition, challenging
his conviction on the following grounds: (1) the trial court’s instruction to the jury
on the charge of forcible rape violated petitioner’s right to a jury trial under the
Fifth, Sixth, and Fourteenth Amendments to the United States Constitution; (2) the
prosecutor’s summation deprived petitioner of a fair trial; (3) ineffective assistance
of trial counsel; and (4) petitioner’s sentence was harsh and excessive under the
Eighth Amendment to the United States Constitution. For the following reasons,
the Petition is denied.
II.

BACKGROUND
A.

The Offending Conduct
1.

The Events of August 12, 2003

5

Petitioner's conviction became final on March 17, 2008, the date the time to
seek a writ of certiorari to the Supreme Court expired. See Sup. Ct. R. 13;
Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001) (holding that section 2254’s
limitations periods does not begin to run until direct review in the state court
system is complete and either the certiorari proceedings or the time for seeking a
writ of certiorari has expired.) The instant Petition was timely filed on January 27,
2009. See 28 U.S.C. § 2244(d)(1)(A) (creating a one year statute of limitations for
habeas cases challenging state court judgments, running from the date on which the
judgment became final).
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In early July 2003, “NS”6 met petitioner at a day care center in
Manhattan at which they were both employed.7 After becoming acquainted, they
had consensual sexual intercourse in early August 2003.8 About one week later, on
August 12, 2003, NS accompanied petitioner and a co-worker, Tyrell, to the roof
of an apartment building, where petitioner suggested that NS have sexual
intercourse with Tyrell. When NS refused, petitioner choked her.9
Subsequently, NS accompanied Tyrell and petitioner downstairs to the
apartment of a friend of petitioner’s, Charles Hickman.10 NS, thinking that she was
going to have sex with petitioner, immediately entered Hickman’s bedroom. Once
she was there, though, petitioner demanded that she have sex with Tyrell.11 A

6

This Opinion will refer to the victim, a minor at the time of these events, by
her initials.

7

See Memorandum of Law in Opposition to the Petition for a Writ of Habeas
Corpus (“Opp. Mem.”) at 5 (citing Trial Transcript (“Tr.”) 5-9). This Opinion
cites to the parties’ briefing of the trial transcript, rather than the transcript itself,
because the transcript is under seal and the facts are undisputed.

8

See id. (citing Tr. 9-14; 188; 190).

9

See id. (citing Tr. 19-24; 26).

10

See id. at 6 (citing Tr. 24).

11

See id. (citing Tr. 30).
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short time later, Hickman entered the room, and NS had sexual intercourse with
him in an effort to gratify petitioner.12
NS, Tyrell, and Hickman then accompanied petitioner to his
grandmother’s house, where they met petitioner’s older brother, Earl Green.13
There, Earl Green demanded that NS perform oral sex on him, and threatened that
if she refused, he would “fuck her up.”14 NS, frightened, complied. Afterwards,
she went home.15
2.

The Events of August 13, 2003

The next day, NS went to petitioner’s apartment, where she and
petitioner had consensual sexual intercourse in petitioner’s bedroom.16 Soon after,
NS overheard petitioner on the telephone inviting other people over. This made
NS angry, because petitioner had promised that they would be alone.17 Petitioner
demanded oral sex, but NS refused. Then, petitioner pushed NS off the bed and
forced his penis into her mouth. While so engaged, petitioner pressed the dull side

12

See id. (citing Tr. 31-33).

13

See id. (citing Tr. 34-35).

14

See id. (citing Tr. 36-40).

15

See id. (citing Tr. 36-40; 43).

16

See id. (citing Tr. 49).

17

See id. at 6-7 (citing Tr. 44-45; 54-55).
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of a knife against NS’s face and said that he would kill her if she “[told]
anybody.”18
Afterwards, Hickman entered the bedroom, and petitioner asked NS if
she would perform sexual favors on Hickman if Hickman performed oral sex on
her.19 NS began crying, because she wanted to go home, and got dressed.
Petitioner and Hickman then left the room.20 A few minutes later, two men entered
the room: a man later identified as Darmel Cox, and a man identified only by his
nickname, “Vad.” 21
After Cox and Vad arrived, petitioner returned to the bedroom, where
NS remained, removed NS’s pants, and threatened to throw them out the window if
NS did not have sex with Cox and Vad.22 Vad then raped NS. When Vad finished,
Cox then raped NS.23 Shortly afterwards, petitioner also raped NS.24 Petitioner
then allowed NS to leave, but not before warning her that if she told anyone, he

18

Id. at 7 (citing Tr. 59-61; 64-65).

19

See id. (citing Tr. 73; 76).

20

See id. (citing Tr. 76).

21

See id. (citing Tr. 73; 76-77; 215).

22

See id. (citing 79-81).

23

See id. (citing Tr. 84-87).

24

See id. at 7-8 (citing Tr. 86; 88-92; 101; 104).
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would “do it to [her] all over again.”25 NS then put on her clothes and took the
subway home.26
Once home, NS falsely told her mother that a man on the subway had
forced her back to his apartment at knife-point and raped her there.27 NS’s parents
took her to the emergency room at Montefiore Hospital, where she repeated her
story to police and medical personnel.28 Later that day, police officers told NS that
there were video cameras on the subway platform, and NS informed them that
petitioner was the one who had raped her.29
B.

Procedural History
On April 4, 2005, petitioner was convicted by a jury of three counts of

first degree rape and one count of sodomy in the third degree.30 Petitioner,
represented by new counsel, appealed his conviction to the Appellate Division,
First Department, raising the following claims: (1) the court’s instruction to the
jury on the first degree rape charge that the “forcible compulsion” element of first

25

See id. (citing Tr. 178).

26

See id. (citing Tr. 107-108; 179).

27

See id. (citing Tr. 113-114).

28

See id. (citing Tr. 116-118; 219-220; 255).

29

See id. (citing Tr. 120-121; 222-223).

30

See id. at 9 (citing Tr. 563-566.)
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degree rape included kidnapping, which was defined, in part, as the confinement of
an acquiescent person under the age of 16, deprived petitioner of his right to a jury
trial; (2) the prosecutor’s comments during summation, bolstering the victim’s
testimony and asking the jury to picture themselves in her place, deprived
petitioner of his right to a fair trial; (3) the petitioner’s sentence was excessive and
unduly harsh; and (4) the Clerk of Court improperly added a surcharge and fees to
petitioner’s sentence.
On September 8, 2007, the Appellate Division unanimously affirmed
petitioner’s conviction.31 The court found that petitioner’s claims regarding the
court’s charge and the prosecutor’s summation were unpreserved, and that even if
they were preserved, the court would have rejected them on the merits.32 As to the
jury instruction, the Appellate Division stated that “[t]he court made it abundantly
clear to the jury that defendant was charged with forcible rape, and there is no
reasonable possibility that the jury could have been misled into believing that the
victim’s age satisfied the element of force.”33 The Appellate Division also found
no basis for reducing petitioner’s sentence, and held his claim regarding fees to be

31

See People v. Green, 841 N.Y.S.2d 861 (1st Dep’t 2007).

32

See id.

33

Id.
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unavailing.34 On December 18, 2007, the New York Court of Appeals denied
petitioner’s motion for leave to appeal.35
III.

LEGAL STANDARDS
A.

Deferential Standard for Federal Habeas Review

This Petition is governed by the Antiterrorism and Effective Death Penalty
Act of 1996 (the “AEDPA”). The AEDPA provides that a federal court may not
grant a writ of habeas corpus to a prisoner in custody pursuant to the judgment of a
state court with respect to any claim, unless the state court’s adjudication on the
merits of that claim: “(1) was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the
United States;”36 or (2) “was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding.”37
A state-court decision is contrary to clearly established federal law, as
determined by the Supreme Court, in the following two instances:

34

See id.

35

See People v. Green, 850 N.Y.S.2d 394 (2007).

36

28 U.S.C. § 2254(d)(1).

37

Id. § 2254(d)(2).
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First, a state-court decision is contrary to this Court’s
precedent if the state court arrives at a conclusion opposite
to that reached by this Court on a question of law. Second,
a state-court decision is also contrary to this Court’s
precedent if the state court confronts facts that are
materially indistinguishable from a relevant Supreme Court
precedent and arrives at a result opposite to ours.38
With regard to the “unreasonable application” prong, the Supreme Court has
stated:
[A] state-court decision can involve an “unreasonable
application” of this Court’s clearly established precedent in
two ways. First, a state-court decision involves an
unreasonable application of this Court’s precedent if the
state court identifies the correct governing legal rule from
this Court’s cases but unreasonably applies it to the facts of
the particular state prisoner’s case. Second, a state-court
decision also involves an unreasonable application of this
Court’s precedent if the state court either unreasonably
extends a legal principle from our precedent to a new
context where it should not apply or unreasonably refuses
to extend that principle to a new context where it should
apply.39
In order for a federal court to find a state court’s application of
Supreme Court precedent to be unreasonable, the state court’s decision must have
been more than incorrect or erroneous. Rather, “[t]he state court’s application of

38

Williams v. Taylor, 529 U.S. 362, 405 (2000).

39

Id. at 407.
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clearly established law must be objectively unreasonable.”40 This standard “‘falls
somewhere between merely erroneous and unreasonable to all reasonable
jurists.’”41 While the test requires “‘[s]ome increment of incorrectness beyond
error, . . . the increment need not be great; otherwise habeas relief would be limited
to state court decisions so far off the mark as to suggest judicial incompetence.’”42
Furthermore, section 2254(d) applies to a defendant’s habeas petition even where
the state court order does not include an explanation of its reasoning.43
Where a state court’s decision is unaccompanied by an
explanation, the habeas petitioner’s burden still must be
met by showing there was no reasonable basis for the state
court to deny relief. This is so whether or not the state
court reveals which of the elements in a multipart claim it
found insufficient, for [section] 2254(d) applies when a
‘claim,’ not a component of one, has been adjudicated.44
40

Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (emphasis added). Accord
Renico v. Lett, 130 S. Ct. 1855, 1862 (2010) (stating that “[t]his distinction creates
‘a substantially higher threshold’ for obtaining relief than de novo review”)
(quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)); Williams, 529 U.S. at
409; Harris v. Kuhlman, 346 F.3d 330, 344 (2d Cir. 2003).

41

Overton v. Newton, 295 F.3d 270, 276 (2d Cir. 2002) (quoting Jones v.
Stinson, 229 F.3d 112, 119 (2d Cir. 2000)).

42

Francis v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (quoting Matteo v.
Superintendent, SCI Albion, 171 F.3d 877, 889 (3d Cir. 1999)).

43

See Harrington v. Richter, 131 S. Ct. 770, 784 (2011).

44

Id. (citing, inter alia, Sellan v. Kuhlman, 261 F.3d 303, 311-12 (2d Cir.
2001) (“[W]hen a state court fails to articulate the rationale underlying its rejection
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Section 2254(d) also applies where a state court does not explicitly state in its
opinion that it is adjudicating a claim on the merits.45 “When 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.”46
The deferential standard of review created by the AEDPA also
extends to state-court factual determinations. Such determinations are presumed to
be correct, and the burden falls on the petitioner to rebut them by clear and
convincing evidence.47
B.

Exhaustion Requirement
Section 2254 provides that a habeas petition by a state prisoner may

not be granted unless “the applicant has exhausted the remedies available in the
courts of the State.”48 In order to satisfy this exhaustion requirement, a prisoner
of a petitioner’s claim, and when that rejection is on the merits, the federal court
will focus its review on whether the state court’s ultimate decision was an
‘unreasonable application’ of clearly established Supreme Court precedent.”)).
45

See Harrington, 131 S. Ct. at 784.

46

Id. at 784-85.

47

See 28 U.S.C. § 2254(e)(1).

48

Id. § 2254(b)(1)(A).
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must have “‘fairly presented to an appropriate state court the same federal
constitutional claim that he now urges upon the federal courts,’”49 either in the
form of “explicit constitutional arguments” or simply by “alleging facts that fall
‘well within the mainstream of constitutional litigation.’”50 Fair presentation of a
claim, for exhaustion purposes, includes petitioning for discretionary review in the
state’s highest appellate court.51
When a habeas petition under the AEDPA contains both exhausted
and unexhausted claims, a district court “can offer the petitioner ‘the choice of
returning to state court to exhaust his claims or of amending or resubmitting the
habeas petition to present only exhausted claims.’”52 A district court may also deny
a petition on the merits, even if it contains an unexhausted claim.53 Finally, in
49

Turner v. Artuz, 262 F.3d 118, 123 (2d Cir. 2001) (quoting Klein v. Harris,
667 F.2d 274, 282 (2d Cir. 1981)).

50

Levine v. Commissioner of Corr. Servs., 44 F.3d 121, 124 (2d Cir. 1995)
(quoting Daye v. Attorney Gen., 696 F.2d 186, 192 (2d Cir. 1982) (en banc)).

51

See O’Sullivan v. Boerckel, 526 U.S. 838, 847-48 (1999). Accord Galdamez
v. Keane, 394 F.3d 68, 74 (2d Cir. 2005) (stating that in New York, exhaustion
requires that a “criminal defendant . . . first appeal his or her conviction to the
Appellate Division, and then . . . seek further review of that conviction by applying
to the Court of Appeals for a certificate granting leave to appeal”).

52

McKethan v. Mantello, 292 F.3d 119, 122 (2d Cir. 2002) (quoting Rose v.
Lundy, 455 U.S. 509, 510 (1982)).

53

See 28 U.S.C. § 2254(b)(2).
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limited circumstances, a district court may stay a mixed petition and hold it in
abeyance until it has been properly presented to the state courts.54
C.

Procedural Bar
Under the adequate and independent state ground doctrine, if the last

state court to render judgment clearly and expressly states that its judgment rests
on a state procedural bar, federal habeas review is precluded.55 Even if the state
court alternatively rules on the merits of the federal claim, federal habeas review is
precluded if an adequate and independent state ground would bar the claim in state
court.56 Federal habeas review of procedurally barred claims is foreclosed unless
the prisoner can demonstrate either: (1) “‘cause for the default and actual
prejudice;’” or (2) “‘that failure to consider the claims will result in a fundamental
miscarriage of justice.’”57 To show cause for a default, a prisoner must put forth

54

See Rhines v. Weber, 544 U.S. 269, 277-78 (2005).

55

See Jones v. Duncan, 162 F. Supp. 2d 204, 210 (S.D.N.Y. 2001) (citing
Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997)).

56

See, e.g., Harris v. Reed, 489 U.S. 255, 264 n.10 (1989); Garcia v. Lewis,
188 F.3d 71, 77-82 (2d Cir. 1999); Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir.
1996).

57

Glenn, 98 F.3d at 724 (quoting Coleman v. Thompson, 501 U.S. 722, 750
(1991)). Accord Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991); Epps v.
Commissioner of Corr. Servs., 13 F.3d 615, 617-18 (2d Cir. 1994).
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some objective factor, external to the defense, explaining why the claim was not
previously raised.58 The Supreme Court has provided little guidance as to what
constitutes “prejudice,” but it can be inferred that prejudice is shown when the
claim, if proven, would bear on the petitioner’s guilt or punishment.59 The
fundamental miscarriage of justice exception to the procedural bar rule is available
only upon a showing of actual innocence.60 Finally, a habeas petitioner may not
avoid the exhaustion requirement by waiting until federal habeas review to bring
claims properly raised in state court. While such claims are technically exhausted,
if they would be procedurally barred on the state level, they are deemed exhausted
and procedurally defaulted for the purposes of federal habeas review.61
D.

58

Ineffective Assistance of Counsel Under Strickland v. Washington

See Restrepo v. Kelly, 178 F.3d 634, 638 (2d Cir. 1999).

59

See Banks v. Dretke, 540 U.S. 668, 671 (2004) (stating that “prejudice
within the compass of the ‘cause and prejudice’ requirement exists when
suppressed evidence is ‘material’ for Brady purposes”).

60

See Murray v. Carrier, 477 U.S. 478, 496 (1986) (“[W]e think that in an
extraordinary case, where a constitutional violation has probably resulted in the
conviction of one who is actually innocent, a federal habeas court may grant the
writ even in the absence of a showing of cause for the procedural default.”).

61

See Coleman, 501 U.S. at 735 n. 1. Accord Woodford v. Ngo, 548 U.S. 81,
92-93 (2006).
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To succeed on a claim of ineffective assistance of counsel in violation
of the Sixth Amendment, a petitioner “must demonstrate (1) that his attorney’s
performance ‘fell below an objective standard of reasonableness,’ and (2) that
‘there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.’”62 “To satisfy the first prong –
the performance prong – the record must demonstrate that ‘counsel made errors so
serious that counsel was not functioning as the “counsel” guaranteed the defendant
by the Sixth Amendment.’”63 The inquiry under the performance prong is
“contextual” and “asks whether defense counsel’s actions were objectively
reasonable considering all the circumstances.”64 “In assessing the attorney’s
performance, a reviewing court must judge his conduct on the basis of the facts of
the particular case, ‘viewed as of the time of counsel’s conduct,’ and may not use
hindsight to second-guess his strategy choices.”65

62

Wilson v. Mazzuca, 570 F.3d 490, 501 (2d Cir. 2009) (quoting Strickland v.
Washington, 466 U.S. 668, 688, 694 (1984)). Accord Smith v. Spisak, 130 S. Ct.
676, 685 (2010).

63

Wilson, 570 F.3d at 502 (quoting Strickland, 466 U.S. at 687).

64

Purdy v. United States, 208 F.3d 41, 44 (2d Cir. 2000) (citing Strickland,
466 U.S. at 688).

65

Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (quoting Strickland,
466 U.S. at 690).
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In determining what constitutes objective reasonableness, courts look
to “‘[p]revailing norms of practice as reflected in American Bar Association
standards.’”66 Attorney errors that fall below an objective standard of
reasonableness “include omissions that cannot be explained convincingly as
resulting from a sound trial strategy, but instead arose from oversight, carelessness,
ineptitude, or laziness.”67 “‘Judicial scrutiny of counsel’s performance must be
highly deferential,’ and ‘a court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.’”68
“‘The proper measure of attorney performance remains simply reasonableness
under prevailing professional norms.’”69
To satisfy the second prong – the prejudice prong – a “defendant must
show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”70

66

Purdy, 208 F.3d at 44 (quoting Strickland, 466 U.S. at 688).

67

Wilson, 570 F.3d at 502 (citation omitted).

68

Knowles, 129 S. Ct. at 1420 (quoting Strickland, 466 U.S. at 689).

69

Id. (quoting Strickland, 466 U.S. at 688).

70

Strickland, 466 U.S. at 694 (emphasis added).
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In assessing prejudice, courts review the record to determine the impact of the
alleged ineffectiveness within the context of the entire trial.71 In other words, the
“question is whether there is a reasonable probability that, absent the errors, the
fact finder would have had a reasonable doubt respecting guilt.”72 Finally, a
finding of lack of prejudice may precede, or preempt, the quality of representation
inquiry. The Supreme Court has stated:
Although we have discussed the performance component of
an ineffectiveness claim prior to the prejudice component,
there is no reason for a court deciding an ineffective
assistance claim to approach the inquiry in the same order
or even to address both components of the inquiry if the
defendant makes an insufficient showing on one. In
particular, a court need not determine whether counsel’s
performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged
deficiencies. The object of an ineffectiveness claim is not
to grade counsel’s performance. If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course
should be followed. Courts should strive to ensure that
ineffectiveness claims not become so burdensome to
defense counsel that the entire criminal justice system
suffers as a result.73

71

See Berghuis v. Thompkins, 130 S. Ct. 2250, 2264 (2010) (“In assessing
prejudice, courts ‘must consider the totality of the evidence before the judge or
jury.’”) (quoting Strickland, 466 U.S. at 695).

72

Strickland, 466 U.S. at 694.

73

Id. at 697.
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Thus, if a court finds no prejudice, it need not engage in the often thorny inquiry
regarding the adequacy of counsel’s performance.
IV.

DISCUSSION
A.

Petitioner’s Exhausted Claims
1.

The Jury Charge Claim

Petitioner alleges that the trial court’s jury instructions violated his
constitutional right to a jury trial. Specifically, Petitioner alleges that the court
instructed the jury that first-degree rape requires a finding of “forcible
compulsion.”74 The court further instructed the jury that “forcible compulsion”
includes placing a person in imminent fear of kidnapping.75 Finally, the court
instructed the jury that kidnapping is defined as confining someone without their
consent, either through physical force, intimidation, or deception, or by any means
whatsoever, including acquiescence of the victim if the victim is a child less than
sixteen years old.76 Petitioner argues that because NS was only fifteen years old at

74

See Memorandum of Law in Support of Habeas Petition (“Pet. Mem.”) at

11.
75

See id.

76

See id. See also Opp. Mem. at 33 (quoting Tr. 531.)
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the time of the offending conduct, this instruction was tantamount to a directed
verdict, depriving him of his constitutional right to a jury trial.77
The Appellate Division held that this claim was unpreserved.78 New
York’s contemporaneous objection rule mandates that a challenge to a criminal
court’s ruling or instruction must be raised through a specific and timely objection
in order to be preserved for appeal.79 The rule is an adequate and independent rule
of procedure80 that petitioner violated by waiting until his trial was over to raise his
objection to the jury charge. Accordingly, the Appellate Division’s decision rests
on an independent and adequate state ground barring federal habeas review.81

77

See Pet. Mem. at 11.

78

See Green, 841 N.Y.S.2d at 861.

79

See New York Criminal Procedure Law (“CPL”) § 470.05(2).

80

See Whitley v. Ercole, 642 F.3d 278, 286–87 (2d Cir. 2011).

81

See Fama v. Commissioner of Corr. Servs., 235 F.3d 804, 810-11 (2d Cir.

2000).
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Petitioner does not allege that there is cause for his default,82 nor has
he made a factual showing that he is actually innocent.83 Because petitioner cannot
satisfy either the cause and prejudice or actual innocence standard, the procedural
bar is unexcused. Consequently, there is no need to address whether petitioner’s
claim raises a valid question of federal constitutional rights, nor is there need to
engage in harmless error analysis, although either inquiry would likely supply an
independent basis for denying relief. The claim is denied.
2.

The Summation Claim

Petitioner also alleges that two statements made by the prosecutor
during her summation deprived him of his constitutional right to a fair trial. First,
Petitioner alleges that the prosecutor’s statement that NS had consistently told the
same story at several fora, including the District Attorney’s office, improperly
injected the prosecutor’s personal beliefs about NS’s veracity into the record.84

82

If petitioner intends to supply the “cause” through his Strickland claim, the
effort is unavailing, because the Strickland claim is itself procedurally defaulted, as
discussed below. See Edwards v. Carpenter, 529 U.S. 446, 453 (2000) (stating
that “an ineffective-assistance-of-counsel claim asserted as cause for the
procedural default of another claim can itself be procedurally defaulted . . . .”).

83

See Schlup v. Delo, 513 U.S. 298, 324 (1995).

84

See Pet. Mem. at 16-17.
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Second, Petitioner alleges that the prosecutor improperly inflamed the jury when
she asked the jurors to picture themselves in NS’s situation.85
The Appellate Division held that this claim, too, was unpreserved.86
Petitioner acknowledges that he did not move for a mistrial at the close of
summations.87 Petitioner did raise a general objection to the prosecutor’s statement
that NS’s testimony was consistent,88 but a general objection is insufficiently
specific to comply with New York’s contemporaneous objection rule.89 As such,
this claim is also procedurally barred. Once more, petitioner does not attempt to
show cause and prejudice, nor has he proven his actual innocence. The claim is
denied.
B.

Petitioner’s Unexhausted Claims
1.

The Ineffective Assistance of Counsel Claim

85

See id. at 17.

86

See Green, 841 N.Y.S.2d at 861.

87

See Pet. Mem. at 18.

88

See Opp. Mem. at 27 (citing Tr. 474.)

89

See People v. Rivera, 73 N.Y.2d 941, 942 (1989) (holding that defendant’s
objection to prosecutor’s summation was not properly preserved by defendant’s
general objection); see also People v. Galloway, 940 N.Y.S.2d 699, 702 n.2 (3d
Dep’t 2012) (collecting cases).
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Petitioner next brings an ineffective assistance of trial counsel claim.
The gravamen of this claim is that petitioner’s trial counsel failed to lodge
objections to the prosecutor’s summation and the trial court’s charge to the jury,
and further failed to make a motion to dismiss at petitioner’s request.90 Two of the
three bases for petitioner’s Strickland claim rehash grounds for error he presented
to the Appellate Division. However, this is the first time he has brought a claim
under Strickland. This leads directly to the issue of whether the claim is subject to
a state procedural bar. If so, it may be deemed exhausted and procedurally
defaulted.91
Under New York law, attacks on a conviction that are based on errors
found in the record must be raised on direct appeal, rather than through collateral
proceedings.92 Because petitioner’s Strickland claim was reviewable based on the

90

See Pet. Mem. 20-21.

91

See Coleman, 501 U.S. at 735 n. 1.

92

See Dunham v. Travis, 313 F.3d 724, 729 (2d Cir. 2002) (“In New York, a
criminal defendant may not raise in a § 440 motion a claim that could have been
raised on direct appeal.”); CPL § 440.10(2)(C) (requiring courts to deny a motion
to vacate the judgment where “sufficient facts appear on the record” for the claim
to have been raised and decided on direct appeal). See also People v. Morales, No.
3676–99, 2010 WL 1664909, at *5 (Sup. Ct. N.Y. Co. Apr. 27, 2010) (stating that
“[i]t is well-settled . . . that a defendant’s claim is not a proper subject of a CPL
440.10 motion where it is based on the record and defendant could have raised it
on direct appeal but failed to do so.”).
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trial court record, it should have been raised on direct appeal. Counsel’s failure to
lodge objections to the prosecution’s summation and the jury charge presents a
“paradigmatic example of a trial record that plainly establishes the basis for an
argument that counsel’s performance was deficient and prejudicial,” because
“[c]ounsel’s failure to object is preserved in the trial record . . . .”93 The trial
transcript was also sufficiently developed to permit review of petitioner’s
contention that his counsel failed to make a motion to dismiss: the transcript shows
that counsel made a motion to dismiss at the close of the evidence.94
Petitioner brought an appeal as of right, and his petition for
discretionary review by the New York Court of Appeals was denied.95 New York
does not permit collateral attack on a criminal conviction which the defendant
unjustifiably failed to challenge on direct appeal. Petitioner’s Strickland claim is
therefore subject to an adequate and independent state procedural bar, and, as a

93

Sweet v. Bennett, 353 F.3d 135, 141 (2d Cir. 2003). Accord Reyes v. Keane,
118 F.3d 136, 139 (2d Cir. 1997) (holding that trial counsel’s failure to object to
jury charge was not proper basis for a section 440 motion to vacate judgment).

94

See Opp. Mem. at 27 (citing Tr. 434.)

95

See New York Court Rules § 500.20(a)(2), CPL § 450.10(1). See also
People v. Terry, 845 N.Y.S.2d 145, 145 (3d Dep’t 2007).
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consequence, I deem it to be exhausted and procedurally defaulted for the purposes
of federal habeas review.96
The holding of Massaro v. United States is not to the contrary.97 In
Massaro, the Supreme Court held that, for the purposes of a habeas petition under
section 2255, the failure to raise an ineffective assistance of counsel claim on direct
appeal does not give rise to a procedural default.98 As the Second Circuit has
recognized, Massaro’s holding was limited to proceedings initiated under section
2255.99 Comity and federalism, as well as the explicit exhaustion requirement
found in section 2254, mandate the result that for the purposes of section 2254
proceedings, a petitioner may not side-step the state judicial system by waiting
until his day in federal court to claim ineffective assistance of counsel.100
96

Cf. Reyes, 118 F.3d 136 at 139.

97

Massaro v. United States, 538 U.S. 500 (2003).

98

See id. at 508.

99

See Sweet, 353 F.3d at 140.

100

See Murray, 477 U.S. at 489 (“The principle of comity that underlies the
exhaustion doctrine would be ill served by a rule that allowed a federal district
court ‘to upset a state court conviction without an opportunity to the state courts to
correct a constitutional violation,’ and that holds true whether an ineffective
assistance claim is asserted as cause for a procedural default or denominated as an
independent ground for habeas relief.”) (quoting Darr v. Burford, 339 U.S. 200,
204 (1950)).
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The remaining question is whether petitioner can meet either the cause
and prejudice or the actual innocence standard with respect to this claim. Once
more, petitioner has not made any allegations explaining the cause for his default.
No objective, external factor prevented petitioner from raising his ineffective
assistance claim on direct appeal. Petitioner was represented by counsel during his
direct appeal, which negates the likelihood that ineffective appellate counsel
caused the default of petitioner’s ineffective trial counsel claim.101 Appellate
counsel’s inadvertence in failing to raise an ineffective assistance of trial counsel
claim does not constitute cause,102 and petitioner offers no evidence of

101

In Martinez v. Ryan, 132 S.Ct. 1309, 1315 (U.S. 2012), the Supreme Court
held that when ineffective assistance of counsel claims must be raised in an initial
review collateral proceeding, a procedural default of such claims does not bar
federal habeas review in the face of either inadequate or absent appellate counsel.
Martinez does not apply to the facts, for two reasons. First, Martinez’s holding is
expressly limited to cases where Strickland claims may only be brought through
initial review collateral proceedings. See id. at 1319. Here, petitioner’s claim
could have been brought on direct appeal. Second, even if Martinez extended to
Strickland claims brought on direct appeal, it would still be inapposite. The
holding of Martinez rests on the equitable ground that it is unfair to forever deny a
defendant review of his ineffective assistance of trial counsel claim when he lacked
the benefit of the legal development that effective appellate counsel could have
provided. See id. at 1317-318. Petitioner’s claim, though, is record-based, and the
underlying legal theory it presents was developed by able counsel during
petitioner’s appeal to the Appellate Division.

102

See Murray, 477 U.S. 478 at 488 (stating that “the mere fact that counsel
failed to recognize the factual or legal basis for a claim, or failed to raise the claim
despite recognizing it, does not constitute cause for a procedural default”).
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inadvertence. Indeed, it appears that petitioner is seeking to bypass the state
judicial process by repackaging his state appeal as an ineffective assistance of
counsel claim. Exhaustion and procedural default, which have replaced the
deliberate bypass rule of Fay v. Noia,103 were designed to prevent precisely this
sort of maneuver. Because petitioner has offered no evidence of actual innocence,
he is likewise not entitled to the fundamental miscarriage of justice exception to
the procedural bar.104 Petitioner’s procedural default on this claim is therefore not
excused, and the claim is denied.
2.

The Eighth Amendment Claim

Petitioner’s final claim is that his sentence is excessive under the
Eighth Amendment. Because this claim was never presented to the state courts, it
is unexhausted. But because no state forum remains for this claim, is deemed
exhausted and procedurally barred. However, in the interests of judicial economy,
I will dispose of this claim on the merits.105 “[I]t is well settled that ‘[n]o federal

103

See Fay v. Noia, 372 U.S. 391 (1963) (“We therefore hold that the federal
habeas judge may in his discretion deny relief to an applicant who has deliberately
by-passed the orderly procedure of the state courts and in so doing has forfeited his
state court remedies.”).

104

See Bousley, 523 U.S. at 623.

105

See Dunham v. Travis, 313 F.3d 724, 729-730 (2d Cir. 2002) (discussing
Lambrix v. Singletary, 520 U.S. 518, 523 (1997)) (stating that “hurdling” the
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constitutional issue is presented where . . . the sentence is within the range
prescribed by state law.’”106 Petitioner’s sentence is well within the range
prescribed by state law.107 Therefore, his Eighth Amendment claim is denied.
V.

CONCLUSION
For the foregoing reasons, the Petition is denied. The remaining issue

is whether to grant a certificate of appealability (“COA”). For a COA to issue, a
petitioner must make a “substantial showing of the denial of a constitutional
right.”108 A “substantial showing” does not require a petitioner to demonstrate that
he would prevail on the merits, but merely that reasonable jurists could disagree as
to whether “the petition should have been resolved in a different manner or
[whether] the issues presented were ‘adequate to deserve encouragement to
proceed further.’”109 Petitioner has made no such showing. Accordingly, I decline
procedural bar is justified when the merits of a habeas claim are easily resolvable
against the habeas petitioner.) Accord 28 U.S.C. § 2254(b)(2) (authorizing judges
to deny mixed petitions on the merits).
106

Ross v. Gavin, Civ. No. 95-2448, 1996 WL 346669, at *1 (2d Cir. June 25,
1996) (quoting White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992)).

107

See NYPL § 70.00(2)(b) (setting the maximum term for a Class B felony,
such as first degree rape, at twenty five years.)

108

28 U.S.C. § 2253(c)(2).

109

Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle,
463 U.S. 880, 893 n.4 (1983) (quotation marks and citation omitted)). Accord
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to grant a COA. The Clerk of the Court is directed to close this case.

SO ORDERED:

Shira A. Scheindlin
U.S.DJ.

Dated:

New York, New York
October 25,2012

Middleton v. Attorneys Gen. ofthe States ofNew York and Pennsylvania, 396 F.3d
207, 209 (2d Cir. 2005) (denying COA where reasonable jurists could not debate
whether the district court's dismissal of the petition was correct).
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-AppearancesPetitioner (Pro Se):
Eric Green
DIN# 05-A-3275
Washington Correctional Facility
72 Lock 11 Lane, P.O. Box 180
Comstock, New York, 12821-0180
For Respondent:
Lisa Fleischmann
Lea L. La Ferlita
Assistant Attorneys General
120 Broadway, 22 nd Floor
New York, New York, 10271
[phone]

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