Minton v. LaValley

Filing 20

OPINION & ORDER: The petition for writ of habeas corpus is denied. In addition, the Court declines to issue a certificate of appealability. Minton has not made a substantial showing of a denial of a federal right, and appellate review is therefore no t warranted. Love v. McCray, 413 F.3d 192, 195 (2d Cir. 2005).The Court also finds pursuant to 28 U.S.C. § 1915(a) (3) that any appeal from this order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962). The Clerk of Court shall dismiss this petition and close the case. Copies Sent By Chambers (Signed by Judge Denise L. Cote on 5/10/2012) (cd)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------X
:
TYRONE MINTON,
:
Petitioner,
:
:
-v:
:
THOMAS LaVALLEY, Superintendent of
:
Great Meadow Corr. Fac.,
:
:
Respondent.
:
----------------------------------------X

10 Civ. 5140 (DLC)
OPINION & ORDER

APPEARANCES:
For Petitioner:
Tyrone Minton, pro se
#05-A-6244
Upstate Correctional Facility
309 Bare Hill Road
Malone, NY 12953
For Respondent:
Rither Alabre
Bronx District Attorney’s Office
198 East 161st Street
Bronx, NY 10451

DENISE COTE, District Judge:
Petitioner Tyrone Minton (“Minton”) was convicted after a
jury trial in New York State Supreme Court of robbery in the
second degree, robbery in the third degree, grand larceny in the
fourth degree, and criminal possession of stolen property in the
fourth degree.

Minton, proceeding pro se, now brings this

petition for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2254, challenging his conviction on the following grounds:
(1) that the trial court erroneously granted the prosecution’s
reverse-Batson motion; (2) that the evidence was insufficient to
support his convictions for robbery in the second and third
degrees; (3) that he was denied due process of law and his
constitutional right to present a defense when the trial court
excluded a statement he made to police within minutes of his
arrest; (4) that his constitutional right to a fair trial was
violated by the cumulative effect of constitutional errors
occurring at trial; and (5) that he was denied effective
assistance of trial counsel.
The petition was referred to the Honorable James C. Francis
IV for a report and recommendation on April 11, 2011.

Judge

Francis’s careful and thorough report (“Report”), filed on
December 5, 2011, recommended that Minton’s petition be denied
in its entirety.

Minton’s objections to the Report were

received on January 10, 2012.

This Opinion adopts the Report’s

recommendation that the petition be dismissed.

BACKGROUND
The facts relevant to Minton’s petition are set forth in
the Report and summarized here.

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I.

The Crime
On August 16, 2004, John Brackett (“Brackett”) parked his

truck outside of a store in the Bronx.

Upon exiting the store

minutes later, Brackett was accosted by Minton, who took
Brackett’s keys and told Brackett to run.
As Brackett proceeded to look for help, he saw Minton pass
by him in Brackett’s truck.

Brackett haled a police cruiser.

The officers instructed Brackett to ride with them in the
backseat.

Brackett warned the officers that Minton was armed.

The officers soon located Brackett’s truck, pulled the
truck over, and removed and handcuffed Minton.

A search of the

truck revealed numerous personal items belonging to Brackett,
and a parking ticket issued to a black Toyota registered to a
“Michelle Chambliss”.

The address on the registration matched

Minton’s, and at trial an officer testified that he later
learned Minton’s wife’s name was Michelle.

No gun was recovered

from Minton or the truck.

II.

The Trial
On September 8, 2004, Minton was indicted on charges of

robbery in the first degree, robbery in the second degree,
robbery in the third degree, three counts of grand larceny in
the fourth degree, and two counts of criminal possession in the

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fifth degree.

Minton was tried before a jury in Bronx County

Supreme Court in September and October 2004.
During jury selection, the trial court seated a juror
against whom Minton belatedly sought to exercise a peremptory
challenge.

Defense counsel claimed that he had made an error in

exercising his peremptories and had intended instead to strike
juror Carmen Cantillo (“Cantillo”).

The prosecution made a

reverse-Batson motion, arguing that Minton had challenged three
Caucasian or Caucasian-looking jurors on the basis of race,
including Cantillo.

The trial court heard defense counsel’s

race-neutral explanation for striking two jurors, considered the
prosecutor’s response, and denied the prosecution’s reverseBatson challenge as to the two stricken jurors.

The trial court

granted the reverse-Batson motion, however, as to Cantillo,
noting the suspicious timing of the strike and finding defense
counsel’s race-neutral explanation not credible.

Cantillo was

seated on the jury.
At trial, Minton presented the defense that he had rented
the truck from Brackett, as he had rented other vehicles in the
past.

On cross-examination of one of the arresting officers,

defense counsel sought to elicit the following statement made by
Minton as he was being placed in a police car:

“Why was I

arrested?

I borrowed the vehicle from this person. . . .

knows me.

He owes me money.

He

We used to smoke crack together.”

4

The trial court sustained the prosecution’s objection, ruling
that the statement was hearsay.

The trial court rejected

defense counsel’s arguments that the statement was an excited
utterance, or in the alternative, a declaration against penal
interest.
During the jury’s deliberations, one of the jurors,
referred to in the transcript as “Ms. Iris”, reported that she
had been approached at a bus stop by a woman she recognized from
the audience.

Ms. Iris also reported that she had been

approached that morning while standing in the courthouse line by
another person she had seen in the courtroom.

Ms. Iris had

reported the contacts to the other jurors, one of whom had also
been present at the bus stop when the interaction with the
stranger occurred.
The trial court and counsel agreed to individually
interview every member of the jury.

Each juror insisted that

they could continue to be fair and impartial.

Defense counsel

asked the trial court “whether it may be appropriate to tell Ms.
Iris that it appears” as if the first person who approached her
at the bus stop “was not one of [Minton’s] family members.”

The

trial court noted that the second contact with Ms. Iris was by
someone almost certainly associated with Minton, and that it
would not help Minton to highlight the issue.

5

Defense counsel

responded:

“I’ll follow the Court’s direction.

I don’t believe

there’s a need to address it any further.”
Minton was convicted of all charges but first degree
robbery.

On November 17, 2005, Minton was sentenced as a

persistent violent felony offender to an aggregate term of 20
years to life in prison.

Minton appealed his conviction to the

Appellate Division, First Department, which affirmed his
conviction on June 3, 2008.

People v. Minton, 52 A.D.3d 234

(N.Y. App. Div., 1st Dep’t 2008).

The New York Court of Appeals

denied leave to appeal on September 11, 2008.

People v. Minton,

11 N.Y.3d 791 (N.Y. 2008).
Minton filed this petition on July 6, 2010.

On July 12,

2010, Minton’s petition was stayed to permit him to exhaust
certain claims he had asserted in a petition for a writ of error
coram nobis in state court.

The stay was lifted on April 11,

2011, after Minton advised the Court by letter that the
Appellate Division, First Department had permitted him to
withdraw his petition for the writ of error coram nobis without
prejudice.

DISCUSSION
Where a state court has reached the merits of a federal
claim, habeas relief may not be granted unless the state court’s
decision was “contrary to or an unreasonable application of

6

clearly established federal law, as determined by the Supreme
Court of the United States” or “was based on an unreasonable
determination of facts in light of the evidence presented in the
State court proceeding.”

28 U.S.C. §§ 2254(d)(1), (d)(2).

State court factual findings “shall be presumed to be correct,”
and the petitioner “shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.”
28 U.S.C. § 2254(e)(1).
A district court “may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the
magistrate judge.”

28 U.S.C. § 636(b)(1)(C).

The court shall

conduct a de novo review of those sections of a report to which
a petitioner objects.

Minton objects to the Report’s

conclusions on two of his claims:

that the trial court

improperly sustained the prosecution’s reverse-Batson challenge,
and that he was denied effective assistance of trial counsel.
To accept those portions of the report to which no timely
objection has been made, “a district court need only satisfy
itself that there is no clear error on the face of the record.”
Wingate v. Bloomberg, No. 11 Civ. 188 (JPO), 2011 WL 5106009, at
*1 (S.D.N.Y. Oct. 27, 2011) (citation omitted).

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I.

The Prosecution’s Reverse-Batson Motion
Minton argues that the trial court violated his

constitutional right to an impartial jury when it granted the
prosecution’s motion under Batson v. Kentucky, 476 U.S. 79
(1986), and seated Cantillo on the jury.

Minton’s argument is

not cognizable on habeas review, and therefore his petition’s
first claim is denied.
“[T]he Constitution prohibits a criminal defendant from
engaging in purposeful discrimination on the ground of race in
the exercise of peremptory challenges.”
505 U.S. 42, 59 (1992).

Georgia v. McCollum,

“An accusation by the Government that

defense counsel has engaged in such discriminatory conduct has
come be known as a ‘reverse-Batson’ challenge.”

United States

v. Thompson, 528 F.3d 110, 115 (2d Cir. 2008).
When a defendant is deprived of the right to exercise a
peremptory challenge, that action does not violate a defendant’s
federal rights.
[P]eremptory challenges are not constitutionally
protected fundamental rights; rather, they are but one
state-created means to the constitutional end of an
impartial jury and a fair trial. . . . [T]he right to
a peremptory challenge may be withheld altogether
without impairing the constitutional guarantee of an
impartial jury and a fair trial.
McCollum, 505 U.S. at 57.

“Because peremptory challenges are

within the States’ province to grant or withhold, the mistaken
denial of a state-provided peremptory challenge does not,

8

without more, violate the Federal Constitution.”
Illinois, 556 U.S. 148, 158 (2009).

Rivera v.

Consequently, Minton’s

claim arising from the decision to seat juror Cantillo must be
denied.

See, e.g., Nieves-Andino v. Conway, No. 08 Civ. 5887

(NRB), 2010 WL 1685970, at *9 (S.D.N.Y. April 20, 2010); Garcia
v. Graham, No. 07 Civ. 3790 (JG), 2008 WL 2949383, at *7
(E.D.N.Y July 31, 2008); Machiote v. Ercole, No. 06 Civ. 13320
(DAB)(JCF), 2008 WL 169348, at *12 (S.D.N.Y. Jan. 18, 2008)
(collecting cases).

II. Sufficiency of the Evidence
Minton next argues that his conviction on the second- and
third-degree robbery counts was based on legally insufficient
evidence.

The Report recommends that Minton’s legal

insufficiency claim be denied; Minton has filed no objection to
this recommendation.

Having reviewed the Report for clear

error, its recommendation is adopted and Minton’s legal
insufficiency claim is denied.

III.

Post-Arrest Statement
Minton next claims that the trial court’s decision not to

admit his exculpatory post-arrest statement violated his due
process right to a fair trial and his Sixth Amendment right to

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present a defense.

Minton does not object to the Report’s

recommendation that this claim be denied.1
The Report correctly concludes that Minton’s post-arrest
statement2 constitutes self-serving hearsay.

The Report also

correctly found that the only constitutional inquiry remaining
was whether this application of New York’s hearsay rule was
arbitrary or disproportionate to the purposes it is designed to
serve.

As the Report found, Minton’s exculpatory statement was

made under circumstances casting serious doubt upon its
reliability, and the application of New York’s hearsay rule to
bar its admission cannot be considered arbitrary or
disproportionate to the hearsay rule’s purpose of preventing the
admission of unreliable evidence at trial.

Minton’s claim

related to the exclusion of his post-arrest statement is denied.

IV.

Cumulative Constitutional Errors
Minton’s fourth claim is that his constitutional right to a

fair trial was violated by the cumulative effect of
constitutional errors at trial.

These alleged errors include

1

The Report noted the respondent’s argument that Minton’s claim
is procedurally barred, but declined to address the procedural
issue because of the claim’s failure on the merits. See Greiner
v. Wells, 417 F.3d 305, 317 n.14 (2d Cir. 2005).
2

“Why was I arrested? I borrowed the vehicle from this person .
. . . He knows me. He owes me money. We used to smoke crack
together.”

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the admission of certain evidence offered by the prosecution,
the trial court’s handling of improper contacts between one or
more persons associated with the Minton and the juror Ms. Iris,
and the exclusion of Minton’s post-arrest statement.

Minton

does not object to the Report’s conclusion that his claim of
cumulative constitutional error is procedurally barred from
habeas review by adequate and independent state grounds.
As the Report notes, Minton failed to comply with New
York’s contemporaneous objection rule.

C.P.L. § 470.05(2).

The

Appellate Division expressly stated that Minton “did not
preserve his argument that he was constitutionally entitled to
introduce his exculpatory statement, his challenges to evidence
elicited by the People, or his argument concerning the court’s
handling of an incident that occurred during jury
deliberations,” and declined to review these claims.
A.D.3d at 235.3

Minton, 52

Minton has demonstrated neither his actual

innocence nor cause for the procedural default.

Similarly,

Minton does not suggest that New York courts fail to

3

The Appellate Division noted: “As an alternative holding, we
also reject each of these claims on the merits.” The Second
Circuit has directed federal courts to find that a habeas claim
has been decided on the merits when the state court holds a
claim to be “either unpreserved for appellate review or without
merit.” Jimenez v. Walker, 458 F.3d 130, 146 (2d Cir. 2006)
(emphasis supplied). Here, by contrast, the Appellate Division
stated plainly that its holding rested on a state procedural bar
and that the claim was without merit. It is therefore
appropriate to dismiss the claim as procedurally barred.
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systematically embrace the contemporaneous objection rule.
Garvey v. Duncan, 485 F.3d 709, 720 (2d Cir. 2007).

See

As such,

this claim is procedurally barred, and the Report’s
recommendation that it be denied is adopted.

V.

Ineffective Assistance of Counsel
Finally, Minton argues that his habeas petition should be

granted because he was denied effective assistance of counsel at
trial.

In his petition, Minton cites seven grounds for finding

that trial counsel was ineffective.

The Report concludes that

Minton cannot show that he received constitutionally ineffective
assistance with respect to any of the grounds cited.

Minton has

filed objections to the Report’s conclusions in connection with
Minton’s specific claims that trial counsel was ineffective for
failing (1) to challenge the prosecution’s prima facie showing
during the argument of the reverse-Batson motion, (2) to object
to the admission of certain out-of-court statements, and (3) to
move for a trial order of dismissal.

The Report’s

recommendation that Minton’s ineffective assistance of counsel
claim be denied is adopted.
The Supreme Court has established a two-part test for
evaluating claims of ineffective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 687 (1984); accord
Bennett v. United States, 663 F.3d 71, 84 (2d Cir. 2011).

12

“First, the defendant must show that counsel’s performance was
deficient.

This requires showing that counsel made errors so

serious that counsel was not functioning as the ‘counsel’
guaranteed by the Sixth Amendment.”
687.

Strickland, 466 U.S. at

“Second, the defendant must show that the deficient

performance prejudiced the defense.”

Id.

While the defendant

must prove both deficient performance and prejudice, “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.”

Id. at 697.

The Strickland standard is highly demanding, and rigorous.
Bennett, 663 F.3d at 85.

With respect to the first prong, the

court must “indulge a strong presumption that counsel's conduct
falls within the wide range of reasonable professional
assistance,” as “[t]here are countless ways to provide effective
assistance in any given case.”

Strickland, 466 U.S. at 689.

Moreover, “[a]ctions and/or omissions taken by counsel for
strategic purposes generally do not constitute ineffective
assistance of counsel.”
(2d Cir. 2009).

Gibbons v. Savage, 555 F.3d 112, 122

The performance inquiry examines the

reasonableness of counsel’s performance “from counsel’s
perspective at the time” and “considering all the
circumstances.”

Strickland, 466 U.S. at 688, 689.

13

The petitioner’s burden with respect to prejudice is
similarly stringent.

He must show a “reasonable probability

that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.”

Id. at 694; accord

United States v. Caracappa, 614 F.3d 30, 46 (2d Cir. 2010).

In

applying this standard, “[a] reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694; accord Wilson v. Mazzuca, 570 F.3d
490, 507 (2d Cir. 2009).

“[T]he ultimate focus of inquiry must

be on the fundamental fairness of the proceeding whose result is
being challenged.”

Strickland, 466 U.S. at 696.

Minton’s argument that trial counsel was ineffective in
failing to challenge the prosecution’s prima facie showing
during the Batson inquiry is meritless.

As discussed in the

Report, the trial court committed no error in granting the
prosecution’s reverse-Batson motion.
The Report correctly concludes that Minton was not
prejudiced by trial counsel’s failure to renew his motion for a
trial order of dismissal after the defense case and after the
conclusion of all the evidence.

The Appellate Division reviewed

Minton’s legal insufficiency and weight of evidence claims on
the merits, and rejected them.

Minton, 52 A.D.3d at 234-35.

The Report also correctly concludes that Minton was not
prejudiced by his attorney’s failure to object to certain out-

14

of-court statements offered into evidence by the prosecution,
given the strength of

other evidence against Minton.

Minton does not object to the Report's conclusion that the
remaining grounds cited by Minton do not support an ineffective
assistance cl
erroneous.

The Report's analysis is not clearly

Accordingly, the Report's recommendation that

Minton's ineffective as

stance claim be denied is adopted.

CONCLUSION
The petit

for writ of habeas corpus is denied.

addition, the Court
appealability.

In

lines to issue a certificate of

Minton has not made a substantial showing of a

denial of a federal right, and appellate review is therefore not
warranted.

Love v. McCray, 413 F.3d 192, 195 (2d Cir. 2005).

The Court also finds pursuant to 28 U.S.C.

§

1915(a) (3) that any

appeal from this order would not be taken in good faith.
v. United States, 369 U.S. 438, 445 (1962).

The Clerk

of Court shall dismiss this petition and close the case.
SO ORDERED:
Dated:

New York, New York
May 10, 2012

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COPIES SENT TO:

Tyrone Minton
05-A-6244
Upstate Correctional Facility
309 Bare Hill Road
Malone NY 12953
l

Rither Al
Esq.
Bronx County District Attorney/s
Office
198 East 16
Street
Bronx NY 10451
I

1