McKelvey v. Bradt
Filing
24
MEMO ENDORSEMENT on 22 Report and Recommendations. ENDORSEMENT: The Court has read the Report and reviewed the response to opposition to the motion filed by petitioner on 6/20/2016. Finding no error in the Recommendation and no merit to the op position, I adopt the report as the court's opinion, accept the Recommendation and dismiss the petition. I find that no constitutional issue has been raised, so an appeal from this order would not be taken in good faith and decline to authorize in forma pauperis status for defendant on appeal. (Signed by Judge Colleen McMahon on 7/6/2016) Copies Mailed By Chambers. (kgo)
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various claims should be dismissed as procedurally barred, non-cognizable, and/or without merit.
For the reasons set forth below, I recommend that the Petition be dismissed in its entirety.
BACKGROUND
Factual Background
Based on the evidence presented by the prosecution at Petitioner’s trial, as summarized
below, Petitioner sexually assaulted three different women, who, for privacy purposes, are
referred to herein by their initials. 1
1.
Attack On W.B.
At about 10:30 p.m. on July 19, 2005, after having spent the day smoking crack, W.B.
left her friend’s apartment on West 144th Street between Seventh and Eighth Avenues. (See
Transcript of Trial, conducted Oct. 29, 2007, to Nov. 1, 2007 (“Trial Tr.”), at 67-68, 102-03.) As
W.B. walked north on Seventh Avenue, Petitioner approached her and asked if she “want[ed] to
make some extra money.” (Id., at 70-71, 104.) W.B. said “no” and continued to walk past
Petitioner. (See id., at 70-71, 104-05.) Petitioner then responded, “You’re going to anyway,” and
grabbed W.B. around the neck, saying “don’t even think about it or I will kick your ass.” (See
id., 70-72, 104-05.) Petitioner was six feet, two inches tall and weighed 210 pounds. (See id., at
214.) W.B. was five feet, three inches tall and weighed 103 pounds. (See id., at 72-73.)
Petitioner then led W.B. across Seventh Avenue, passing two police officers along the
way. (See id., at 71-73, 105.) The police officers did not notice W.B., despite her efforts to
make eye contact with them. (See id., at 71, 106.) After passing the officers, Petitioner put W.B.
in a headlock and warned her against trying to escape, threatening to “slap the shit out of [her]”
1
Respondent’s submissions to this Court were made under seal, given that they revealed
the identity of rape victims. For the same reason, this Court has directed that Plaintiff’s “Notice
of Motion” and attachment thereto (construed by this Court as his reply submission) (Dkt. 20) be
placed under seal.
2
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if she did not comply with his demands. (Id., at 73, 107.) Petitioner then dragged W.B. to a
church courtyard, verbally threatened W.B. again, and then slapped her. (See id., at 73-74.)
Petitioner directed W.B. down a staircase to a sunken area within the courtyard, where
another man was waiting, and told her to kneel down and remove her pants and shoes. (See id.,
at 74-75, 108, 130.) Fearing for her safety, W.B. complied. (See id.) Petitioner then anally,
vaginally, and orally raped her, taking turns with his unidentified accomplice. (See id., at 76-80,
111-12.) W.B. tried to escape up the staircase, but one of the men pulled her back down by her
legs, and Petitioner threatened to “fuck [her] up if [she] tried it again.” (Id., at 81, 130-32.)
Petitioner and the other man resumed their attack and, after about 20 or 25 minutes, Petitioner
ejaculated in W.B.’s mouth. (See id., at 81-82, 113-14.) The two men then fled the courtyard,
ordering W.B. to stay there for “a few minutes.” (Id., at 81-82.)
Still holding Petitioner’s semen in her mouth, W.B. walked directly to the 32nd Police
Precinct. (See id., at 82-83, 85-86, 114.) She told an officer that she had been raped and that she
still had one of her attacker’s semen in her mouth and underwear. (See id., at 85-86, 114-16.)
W.B. spat some of the semen into a plastic bag, and was told by the police to continue to hold the
remaining semen in her mouth while Police Officers Rashied Richardson and Richard Flaherty
took her to Harlem Hospital. (See id., at 86, 114, 253-55, 262-64, 344-45.) W.B. was eventually
examined by Dr. Joseph Bobrow, the obstetrician and gynecologist on duty at the time. (See id.,
at 329-32.) Bobrow performed an internal and external forensic examination, including with the
use of a “rape kit.” (Id., at 86, 121, 330-35.) Bobrow observed that W.B. had “minor abrasions
on her knees” that were consistent with protracted kneeling on a rough surface, but detected no
injuries to her vagina or anus that were consistent with forcible intercourse. (See id., at 333-35,
340.) Bobrow testified at trial, though, that it was “not uncommon for rape victims to not have
3
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any trauma to the genital area.” (Id., at 339.) When asked at trial if she recognized the man who
raped her, W.B. responded, “I’m not 100 percent sure, but [Petitioner] looks like [the attacker].”
(Id., at 83.)
2.
Attack on M.L.
Sometime between 11:00 p.m. and midnight on July 26, 2005, M.L. was sitting on a
bus-stop bench in front of Harlem Hospital, when she and Petitioner began to converse. (See id.,
at 174-75, 194-95, 197.) Eventually, they walked to a store where Petitioner bought M.L. a soda.
(See id., at 175, 196.) Petitioner then offered to buy M.L. something to eat at a nearby
restaurant. (See id., at 176, 197.) M.L. agreed, and they walked to the restaurant, only to
discover it was closed. (See id., at 177, 197.) Claiming that he had to stop at home, Petitioner
then led M.L. to the same sunken area within the church courtyard where, one week earlier, he
had raped W.B. (See id., at 177, 367.) As they reached the bottom of the staircase, Petitioner
grabbed M.L.’s hair, pressed a sharp object against her neck, and ordered her to remove her
clothes. (See id., at 177-78, 201-03.) M.L. told Petitioner that she would do whatever he
wanted, and pleaded with him not to hurt her. (See id., at 178.)
Petitioner ordered M.L. to perform oral sex on him; in response, M.L. “whimper[ed],”
and Petitioner struck her on the head. (See id., at 178-79.) After orally raping her, Petitioner
threw a condom at M.L. and ordered her to put it on him. (See id., at 179, 198.) M.L. complied
and Petitioner proceeded to rape her vaginally. (See id., at 179-80.) When he finished raping
M.L., Petitioner took off the condom and threw it on the ground. (See id., at 184, 198.) He then
pushed M.L. to the ground, emptied the contents of her pocketbook onto the ground, and told her
to count to 50 or 100 before leaving the courtyard. (See id., at 180.) Eventually, M.L. left and
headed to Harlem Hospital. (See id., at 180-81, 198.)
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M.L. arrived at the hospital and reported that she had been raped. (See id., at 181.)
Shortly thereafter, Police Officers Richard Flaherty and Carlos Matos met M.L. at Harlem
Hospital. (See id., at 181, 258, 267-68.) M.L. was eventually interviewed by Dr. Jenny Castillo,
who was on duty in the emergency room. (See id., at 150-51.) M.L. told Castillo that she had
been raped and complained of pain in her head and knees. (See id., at 152.) Castillo performed
an internal examination, including with the use of a rape kit, and found no signs of forcible
intercourse. (See id., at 155-59, 181, 199.) At trial, Castillo explained that many rape victims
show no signs of physical trauma, particularly if a lubricated condom is used. (See id., at 14550, 156-58, 162.)
Not long after M.L. had been examined, Detective David Rivera recovered a used
condom and an open condom wrapper from the church courtyard. (See id., at 41-43.) On
July 28, 2005, Irene Wong, a criminalist with the New York City Office of the Chief Medical
Examiner, tested the condom and found DNA from sperm cells that matched the DNA in the
semen that had been recovered from W.B.’s mouth. (See id., at 422-23.) In the following days,
M.L. worked with Detective Julia Collins to identify the man who raped her, but M.L. did not
recognize her assailant in any of the photographs of suspects that she viewed. (See id., at
182-83, 368.) At trial, though, M.L. identified Petitioner as the one who had raped her on July
26, 2005. (See id., at 183.)
3.
Attack on S.P.
At around midnight on or about May 26, 2006, S.P. left her friend’s apartment on
Seventh Avenue between 141st and 142nd Streets, where she and the friend had been smoking
crack together. (See id., at 287-89, 397-400.) Upon leaving the apartment, S.P. went to buy a
soda at a nearby store. (See id., at 289, 317.) On her way back to the apartment, S.P. was struck
5
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in the mouth by Petitioner, who was dressed in a black army fatigue jacket and a black hat. (See
id., at 289-91, 293, 317.) Petitioner put an orange box cutter to S.P.’s neck and said “shut the
fuck up, bitch . . . just walk.” (Id., at 290-91, 323-25.)
Petitioner forced S.P. to the back of a schoolyard, made her kneel in dog feces, put on a
condom, and forced her to perform oral sex on him. (See id., at 291, 297, 315, 323.) Petitioner
then told S.P. to turn around and pull her pants down. (Id., at 291.) Before S.P. did so, however,
Petitioner heard “some guys” enter the area, told S.P. to “sit there [and] count to 50,” and then
fled. (Id., at 292-94.) S.P. walked back to her friend’s apartment and told him what had
happened. (See id., at 297, 311, 401, 403.) Accompanied by her friend, S.P. then went to look
for a police officer. (See id., at 297.)
S.P. found a police van, told the officers inside that she had just been sexually assaulted,
and described the assailant. (See id., at 297, 311-14, 401.) After driving off for a minute, the
officers returned and said that they “didn’t see” S.P.’s attacker; the officers did not write a formal
incident report. (See id., at 297, 313-14, 401.) At trial, S.P. identified Petitioner as the man who
had assaulted her and forced her to perform oral sex on him. (See id., at 291.)
Procedural History
1.
Petitioner’s Arrest
On July 10, 2006, S.P. was shopping near 125th Street and Fifth Avenue when she
walked past Petitioner. (See id., at 299-300.) S.P. ran to a police car, where she found Officer
Anthony McNeil and his partner, Officer Park. (See id., at 211-12, 315.) Pointing at Petitioner,
S.P. told the officers, “[that] is the guy that raped me.” (See id., at 212, 300.) At that time, S.P.
told McNeil that the attack had occurred about two weeks earlier, although it had actually been
six weeks since the assault. (See id., at 233-35, 300.) McNeil then approached Petitioner and
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asked if he knew S.P., and Petitioner replied that “[h]e had never seen her in his entire life.”
(See id., at 213.)
McNeil took Petitioner into custody and brought him to the precinct, where Detective
Collins interviewed him and, with Petitioner’s consent, obtained swabs of his DNA. (See id.,
at 213, 369-70, 378-79.) Criminalist Wong then tested the DNA and found that it matched the
DNA in the semen from W.B.’s mouth and the condom recovered after the attack on M.L.
(See id., at 423-24.) On July 11, 2006, Officer McNeil executed a search warrant at Petitioner’s
apartment, recovering an orange box cutter and a “black army field jacket,” among other items.
(See id., at 219-22, 225-26.)
2.
Pretrial Proceedings
Shortly after Petitioner’s July 10, 2006 arrest, the prosecution filed a Felony Complaint
charging Petitioner with several crimes arising from the sexual assaults of W.B., M.L., and S.P.
(See Answer in Opposition to the Petition for a Writ of Habeas Corpus, dated Aug. 27, 2013
(“Answer”) (Dkt. 9), Ex. G, 2 at 38.) In that Felony Complaint, the prosecution stated that
Petitioner had attacked S.P. on June 23, 2006. (Id.)
On August 11, 2006, by New York County Indictment Number 4080/06, a grand jury
charged Petitioner with two counts of Rape in the First Degree; one count of Attempted Rape in
the First Degree; four counts of Criminal Sexual Act in the First Degree; three counts of Sexual
Abuse in the First Degree; and one count of Kidnapping in the Second Degree. (Answer, Ex. B,
at 3.) The Indictment, based on the information presented to the grand jury, specified that
Petitioner’s criminal conduct toward S.P. had occurred on May 26, 2006, and not on June 23,
2
While Respondent’s answer to the Petition is available on the public docket, the
Exhibits to that document were filed under seal.
7
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2006, as had been charged in the original Felony Complaint. (See Transcript of Pretrial
Proceedings, conducted Apr. 24, 2007 (“4/24/07 Tr.”), at 3-4.)
Petitioner moved to suppress the results of the DNA swab test, as well as certain
statements he made to the police, and, on April 23 and 24, 2007, a pretrial
Mapp/Dunaway/Huntley hearing was held before the Honorable Arlene Goldberg, J.S.C., in the
Supreme Court of New York, New York County. 3 (See Transcript of Pretrial Proceedings,
conducted Apr. 23-24, 2007 (“4/23/07 Tr.”), at 1-110; 4/24/07 Tr., at 1-40.) At the outset of that
hearing, Petitioner’s counsel raised the issue of the change in the date of Petitioner’s alleged
assault of S.P., as between the Felony Complaint and the Indictment, and asked that he be
provided with the opportunity to review any paperwork that could “illuminate th[e] distinction”
between the dates contained in each document. (4/23/07 Tr., at 9.) In response, the prosecutor
stated to the Court:
There is no other paper work, your Honor. I think it will be clear,
from the nature of the testimony, when the [Petitioner] is
ultimately placed under arrest, the victim has not even stated when
the incident took place. He’s under arrest before that. She doesn’t
remember when it took place. Originally she thought it was, I
think you’ll hear from the testimony, approximately a month prior
to the date that she points out the defendant on the street. Through
investigation of other witnesses – again, which are not relevant to
this hearing, it’s subsequent to the defendant being placed in
custody – we were able to narrow that date down significantly to
the date we believe it happened which was the evening of May 26,
2006 into May 27, 2006; but all of that investigation happens
subsequent to the defendant being placed in custody.
(Id., at 9-10.)
3
This hearing was held pursuant to: (1) Mapp v. Ohio, 367 U.S. 643 (1961), to
determine whether physical evidence sought to be used against Petitioner was obtained illegally;
(2) Dunaway v. New York, 442 U.S. 200 (1979), to determine whether there was probable cause
for Petitioner’s arrest; and (3) People v. Huntley, 15 N.Y.2d 72 (1965), to determine whether any
statements made by Petitioner should be suppressed.
8
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The court denied Petitioner’s suppression motion in its entirety, finding that there existed
probable cause for Petitioner’s arrest, that Petitioner had voluntarily waived his Miranda rights,
and that Petitioner had consented to the taking of the DNA swabs. (See 4/24/07 Tr., at 28-39.)
3.
Trial
a.
Testimony at Trial
On October 29 to November 1, 2007, Petitioner’s trial was held in the Supreme Court,
New York County, before the Honorable Edward McLaughlin, J.S.C. (See generally Trial Tr.)
At trial, a number of witnesses testified, as detailed above (see supra, at Background Section A),
regarding the sexual assaults against W.B., M.L., and S.P, including the three alleged victims
themselves, several New York City Police Department officers (Detectives Mark Brown, Julia
Collins, and David Rivera, and Police Officers Richard Flaherty, Anthony McNeil, and Rashied
Richardson), the two physicians who examined W.B. and M.L. after the assaults (Drs. Joseph
Bobrow and Jenny Castillo), a criminalist from the New York City Office of the Medical
Examiner (Irene Wong), and the friend whose house S.P. had visited both before and after she
was assaulted. (See Trial Tr.)
The defense called Police Officer Carlos Matos as its only direct witness. (Id., at
440-52.) On cross-examination of W.B., M.L., and S.P., Petitioner’s trial counsel tried to
suggest, through his questioning, that each of these claimed victims had actually consented to
have sex with Petitioner in exchange for money or drugs, and then falsely reported the incident
as rape after Petitioner failed to pay. (Id., at 98, 133-36, 207-08, 324-25.) On summation,
Petitioner’s counsel proffered such a defense – that defendant did not have sex with W.B., M.L.,
and S.P. forcibly or without their consent, but rather that he tricked them into performing
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consensual sexual acts in exchange for money to support their drug habits, despite the fact that
he never intended to pay them. (Id., at 468, 470-73, 482-83.)
b.
Verdict and Sentencing
On November 1, 2007, the jury returned a verdict of guilty on four counts of Criminal
Sexual Act in the First Degree, three counts of Sexual Abuse in the First Degree, two counts of
Rape in the First Degree, and one count of Attempted Rape in the First Degree. (Id., at 572-73.) 4
On December 13, 2007, Justice McLaughlin adjudicated Petitioner a persistent violent felony
offender based on a 1996 conviction for Kidnapping in the Second Degree and a 1990 conviction
for Assault in the Second Degree. (Transcript of Sentencing Proceeding, conducted Dec. 13,
2007, at 1-7.) The court then sentenced Petitioner to an aggregate term of imprisonment of
75 years to life. (Id., at 8-33.)
4.
Direct Appeal
In June 2010, Petitioner, through counsel, filed a direct appeal in the Appellate Division,
First Department. (See Answer, Ex. A (Petitioner’s Appellate Brief).) In his appellate brief,
Petitioner raised two claims: (1) that the verdict was against the weight of the evidence (id.,
at 10-19), and (2) that his sentence was excessive (id., at 20-23). Neither of the claims that
Petitioner raised on direct appeal are presented in his current habeas Petition.
On December 9, 2010, the Appellate Division unanimously affirmed Petitioner’s
conviction, finding first that “[t]he verdict was not against the weight of the evidence.”
(Answer, Ex. C, at 68 (Decision and Order of the Appellate Division); see also People v.
McKelvey, 911 N.Y.S.2d 627 (2010).) In that regard, the court noted that there was “no basis for
4
Justice McLaughlin had previous ruled, pursuant to the agreement of the parties, that he
would not submit the Kidnapping charge against Petitioner to the jury. (Id. at 428-29.)
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disturbing the jury’s credibility determinations as to each of the three incidents” (id.), and that
“[e]ach of the three victims provided credible testimony that established the element of force
beyond a reasonable doubt” (id.). As to Petitioner’s sentence, the Appellate Division held that
Petitioner’s claim that the trial court abused its discretion in pronouncing his sentence was
unpreserved, and it declined to review that claim in the interest of justice. (Id., at 68-69.)
By letter dated December 13, 2010, Petitioner sought leave to appeal to the New York
Court of Appeals. (See id., Ex. D.) The State opposed the leave application, stating that there
were no questions of law which merited further appellate review. (See id., Ex. E, at 2.) On
March 3, 2011, the Court of Appeals issued a certificate denying leave to appeal. See People v.
McKelvey, 16 N.Y.3d 833 (2011).
5.
Section 440.10 Motion to Vacate the Judgment
On September 2, 2011, Petitioner, acting pro se, moved to vacate the judgment of
conviction, pursuant to Section 440.10 of the New York Criminal Procedure Law. (See Answer,
Ex. G.) In that motion, Petitioner argued that: (1) the trial court lacked jurisdiction because the
Indictment returned by the grand jury charged that the assault against S.P. occurred on a different
date than that originally specified in the Felony Complaint; (2) the prosecutor had committed
misconduct in the grand jury proceedings by introducing perjured and unsworn testimony and
depriving Petitioner of his right to appear; (3) Petitioner’s constitutional rights under the Fourth,
Sixth, and 14th Amendments were violated when he was (a) arrested without probable cause,
(b) denied the opportunity to cross-examine the witness whose testimony led to the revision of
the date of the assault against S.P., and (c) denied due process due to prosecutorial misconduct in
the grand jury proceedings; and (4) Petitioner was deprived of effective assistance of counsel,
when his trial counsel failed (a) to object to the change of the date of the assault against S.P.,
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(b) to inquire as to why colposcopic testing was not performed on the complainants, 5 (c) to
secure the opportunity for Petitioner to appear before the grand jury, (d) to subpoena Petitioner’s
cell-phone records for May 26, 2006, and (e) introduce Petitioner’s videotaped police statement
into evidence.
The State filed an opposition to Petitioner’s Section 440.10 motion, arguing that
Petitioner’s claim regarding the amendment of the date of the S.P. assault had not been raised on
appeal, and was therefore procedurally barred pursuant to N.Y.C.P.L. § 440.10(2)(c). 6 (Answer,
Ex. H, at 2.) The State further contended that Petitioner’s ineffective-assistance-of-counsel
claims were meritless under both federal and state law. (Id., at 4-5 (citing Strickland v.
Washington, 466 U.S. 668 (1984); People v. Baldi, 54 N.Y.2d 137 (1981)).)
On March 13, 2012, the trial court denied Petitioner’s Section 440.10 motion in its
entirety. (Answer, Ex. I.) The court held that “[t]he difference in the [S.P. assault] dates did not
deprive the Supreme Court of jurisdiction,” which was obtained “upon the filing of the
indictment,” because “[t]he law does not prevent the prosecutor from presenting evidence to the
grand jury that the crime occurred on a date different from the date alleged in the criminal court
complaint.” (Id., at 2 (citing N.Y.C.P.L. § 10.20(1); People v. Black, 705 N.Y.S.2d 696, 698
5
A colposcope is “a gynecological tool that magnifies and photographs where injuries or
trauma may be visible,” Gersten v. Senkowski, 426 F.3d 588, 594 (2d Cir. 2005), and can reveal
vaginal abrasions that would be invisible to the naked eye, see Batchilly v. Nance, No. 08cv7150
(GBD) (AJP), 2010 WL 1253921, at *39 (S.D.N.Y. Apr. 2, 2010), report and recommendation
adopted, No. 08cv7150 (GBD) (AJP), 2011 WL 1226260 (S.D.N.Y. Mar. 30, 2011).
6
The State also argued that Petitioner’s claim regarding the sufficiency of the evidence
was procedurally barred due to his failure to raise it on appeal. (Answer, Ex. H, at 2.) In this
regard, the State was apparently referring to Petitioner’s prosecutorial misconduct claim, as
Petitioner’s Section 440.10 motion did not include a challenge to the sufficiency of the evidence
leading to his conviction, but Petitioner did state that, due to the alleged introduction of perjured
and unsworn testimony before the grand jury, he “[q]uestion[ed] the sufficien[cy] of [the]
evidence” presented during that proceeding. (Id, Ex. G.)
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(3d Dep’t 2000) (holding that grand jury is free to make an independent determination as to
whether there is reasonable cause to believe that the defendant committed the crime charged,
even if there are defects in the felony complaint, and that a valid indictment supersedes the
felony complaint)).)
The trial court further held that Petitioner’s claim regarding the prosecutor’s subornation
of perjured or unsworn testimony before the grand jury was procedurally barred. (Answer, Ex. I,
at 3.) On this point, the court noted that the Appellate Division had found that Petitioner’s
conviction was not against the weight of the evidence (id.), and that, under state procedural law,
Petitioner “could not have raised, on a direct appeal from a judgment of conviction supported by
legally sufficient trial evidence, a claim that the indictment was based on false testimony”
(id. (citing N.Y.C.P.L. § 210.30(6); case citation omitted)). 7 Accordingly, the trial court found
that Petitioner could not raise “that same claim in a postjudgment motion.” (Id.) “In any event,”
the court stated, “the different dates contained in the criminal court complaint and in the
indictment do not provide a factual basis for concluding that the prosecutor suborned perjury at
the grand jury.” (Id., at 3-4 (citing N.Y.C.P.L. 440.30 (4)(b)).)
In disposing of Petitioner’s constitutional claims for violations of his rights under the
Fourth Amendment, the Confrontation Clause of the Sixth Amendment, and the Due Process
Clause of the 14th Amendment, the trial court found that: (1) Petitioner was barred from
relitigating any claims regarding the legality of his arrest, as such claims could have been raised
on appeal, and that, in any event, the police had probable cause to arrest him; (2) the right to
7
Under New York law, where the Appellate Division makes a determination that a
verdict was not “against the weight of the evidence” (as it did in this case), the court necessarily
also determines that the evidence was not legally “insufficient” to support the verdict. Parker v.
Ercole, 666 F.3d 830, 833 (2d Cir. 2012).
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confront witnesses did not apply in a pretrial proceeding; and (3) Petitioner was not denied due
process because any conflict between the dates in the Felony Complaint and the Indictment
merely created a factual question to be resolved by the jury. (Id., at 4-5.)
The court also rejected Petitioner’s ineffective-assistance-of-counsel claims, finding that
defense counsel would have had no legal basis upon which to challenge the validity of the
Indictment (id., at 5 (citing N.Y.C.P.L. § 440.30(4)(a))), that Petitioner’s conclusory statement
that his counsel failed to facilitate his appearance before the grand jury did not establish a Sixth
Amendment violation, and that counsel was not ineffective in failing to inquire of witnesses at
trial why colposcopic testing was not performed on the complaining witnesses, as Petitioner
provided no support for his contention that such testing would have shown that he did not
commit any crime (id). The court further held that counsel was not ineffective in failing to
subpoena certain of Petitioner’s cell-phone records, as the prosecution had actually subpoenaed
those records, only to learn that the records were unavailable because Petitioner’s service
provider had not preserved them. (Id., at 5-6.) Finally, the court noted that Petitioner’s
exculpatory statements, made on videotape to the police, were “inadmissible self-serving
hearsay,” and that counsel was therefore not ineffective for not offering the recording into
evidence. (Id., at 6.)
Petitioner sought leave to appeal to the Appellate Division from the trial court’s denial of
his Section 440.10 motion, attaching a memorandum of law in which he raised each of the issues
that were before the trial court. (See id., Ex. J.) The State opposed the application (see id.,
Ex. K), and, by Order dated October 11, 2012, the Appellate Division summarily denied leave to
appeal (see id., Ex. L). Petitioner moved to reargue the denial of leave (see id, Ex. M), and, by
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Order dated February 25, 2013, the Appellate Division denied the motion for reargument (see id.,
Ex. P).
6.
Petition for Writ of Habeas Corpus
On May 14, 2013, Petitioner, acting pro se, filed a petition for a writ of habeas corpus.
(See Pet.) In the Petition, Petitioner argues that his conviction should be reversed on the grounds
that:
(1)
The trial court lacked jurisdiction over his case, due to the
prosecutor’s presentation of evidence to the grand jury that
resulted in a variance in the date of the third attack as between the
Felony Complaint and the Indictment;
(2)
In the grand jury, the prosecutor (a) suborned perjury,
(b) introduced unsworn testimony, and (c) denied Petitioner his
right to appear;
(3)
Petitioner’s Fourth, Sixth and 14th Amendment rights were
violated because (a) his arrest was not supported by probable
cause, (b) he was not afforded an opportunity to confront the
witness who supplied the changed date of the S.P. assault, 8 and
(c) the prosecutor circumvented statutory requirements by
presenting evidence to the grand jury indicating that the assault of
S.P. took place on a different date than that specified in the Felony
Complaint;
(4)
Trial counsel was ineffective in failing (a) to investigate why
Petitioner was not permitted to testify in the grand jury and in
failing to move to dismiss the indictment on that basis, (b) to
question why the date for the third sexual assault differed between
the Indictment and the Felony Complaint, (c) to obtain Petitioner’s
cellular phone records for May 26, 2006, and (d) to question why
8
The basis of Petitioner’s Confrontation Clause claim is not entirely clear, but,
construing the Petition liberally, Petitioner seems to be contending that he was unable to confront
the witness who provided to the grand jury the revised date of the charged crimes against S.P.
because Petitioner was not, himself, given the opportunity to appear before the grand jury, and/or
because the witness was never called to testify at either the pretrial suppression hearing or trial.
(See Pet. ¶ 12, GROUND THREE (a).)
15
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the hospital did not perform colposcopic examinations of the
complaining rape victims.
(See generally id.)
DISCUSSION
I.
APPLICABLE LEGAL STANDARDS
Statute of Limitations
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a habeas petition
must be filed within a one-year limitations period beginning on the latest of four dates, usually
“the date on which the judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A); see also Williams v.
Artuz, 237 F.3d 147, 150-51 (2d Cir. 2001) (judgment becomes “final” for purposes of Section
2244 upon “the completion of direct appellate review in the state court system and either the
completion of certiorari proceedings in the United States Supreme Court, or – if the prisoner
elects not to file a petition for certiorari – [the expiration of] the time to seek direct review via
certiorari” (citations omitted)). Under AEDPA, moreover, “[t]he time during which a properly
filed application for State post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward” the one-year limitation period
established by subsection 2244(d). 28 U.S.C. § 2244(d)(2).
Exhaustion of State Judicial Remedies
As a general matter, a federal court may not consider a petition for a writ of habeas
corpus unless the petitioner has exhausted the remedies available in the state courts. 28 U.S.C.
§ 2254(b)(1)(A); see also Baldwin v. Reese, 541 U.S. 27, 29 (2004); Picard v. Connor, 404 U.S.
270, 275 (1971). To satisfy the exhaustion requirement, a habeas petitioner must have “fairly
presented” his claims to the state courts, thereby affording those courts the “‘opportunity to pass
16
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upon and correct’ alleged violations of . . . prisoners’ federal rights.” Picard, 404 U.S. at 275
(quoting Wilwording v. Swenson, 404 U.S. 249, 250 (1971)). A petitioner may accomplish this
in several ways, including by citing relevant provisions of the federal Constitution in his
appellate brief, see Davis v. Strack, 270 F.3d 111, 122-23 (2d Cir. 2001), or by relying on
“pertinent federal cases employing constitutional analysis,” Rustici v. Phillips, 308 F. App’x 467,
469 (2d Cir. 2009) (internal quotation marks and citation omitted).
Aside from setting out the federal nature of his claims, the petitioner must also, for
purposes of the exhaustion requirement, present those claims to “the highest court of the
pertinent state.” Larocco v. Senkowski, 65 F. App’x 740, 742 (2d Cir. 2003); Bossett v. Walker,
41 F.3d 825, 828 (2d Cir. 1994) (citation omitted). In New York, for a claim that can be raised
on direct appeal, a petitioner must first appeal his 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.” Galdamez v. Keane, 394 F.3d 68, 74 (2d Cir. 2005). A request for
leave to appeal to the Court of Appeals may be made by a letter submission that encloses the
briefs and other documents that were before the lower courts. See id. A court will deem the
exhaustion requirement satisfied where the “fair import” of the total application suggests a
request for review of the constitutional claims raised in those submissions. Id. at 75-77.
To exhaust a claim raised before the state trial court in a collateral post-conviction
motion, as in a motion made pursuant to Section 440.10 of the New York Criminal Procedure
Law, the petitioner must seek leave to appeal the denial of the motion. See Ture v. Racette,
No. 9:12-cv-1864-JKS, 2014 WL 2895439, at *4 (N.D.N.Y. June 26, 2014) (claim unexhausted
where petitioner did not seek to appeal denial of Section 440.10 motion); see also Klein v.
Harris, 667 F.2d 274, 283-84 (2d Cir. 1981); Ramos v. Walker, 88 F. Supp. 2d 233, 234 n.3
17
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(S.D.N.Y. 2000) (noting that “[a]n order denying a Section 440.10 [motion] is appealable to the
intermediate appellate court by leave of a judge thereof granted under Section 460.15[,] . . .
[although] [t]here is no provision in New York law for an appeal to the Court of Appeals from an
order denying leave to appeal from an order denying a Section 440.10 motion” (internal citations
omitted)).
Despite the exhaustion requirement set out in AEDPA, the statute also provides that the
federal court may proceed to deny an unexhausted habeas claim, if it is apparent that the claim is
without merit. 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be
denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies
available in the courts of the State.”).
Standard of Review Under AEDPA
If a petitioner’s federal constitutional claim has been adjudicated on the merits by the
state court, then the federal court must accord substantial deference to the state court’s decision
under the standard of review dictated by AEDPA. See 28 U.S.C. § 2254(d); Sellan v. Kuhlman,
261 F.3d 303, 311 (2d Cir. 2001) (noting that “adjudicated on the merits” means “a decision
finally resolving the parties’ claims, with res judicata effect, that is based on the substance of the
claim advanced, rather than on a procedural, or other, ground”). The relevant section of AEDPA
provides that
[a]n application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
claim – (1) resulted in a decision that 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) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
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28 U.S.C. § 2254(d). In addition, under AEDPA, where not manifestly unreasonable, a state
court’s factual findings are presumed correct, and can only be overcome by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1).
Under AEDPA, a state court’s decision is contrary to clearly established federal law
where the state court either applies a rule that contradicts governing law set forth in Supreme
Court precedent, or “confronts a set of facts that are materially indistinguishable from a
[Supreme Court] decision” and arrives at a different result. Williams v. Taylor, 529 U.S.
362, 405-06 (2000). An unreasonable application of clearly established federal law occurs when
the state court identifies the correct governing legal principle, but unreasonably applies that
principle to a “set of facts different from those of the case in which the principle was
announced.” Lockyer v. Andrade, 538 U.S. 63, 73-76 (2003). The state court’s decision “must
have been more than incorrect or erroneous”; rather, “[t]he state court’s application must have
been ‘objectively unreasonable.’” Wiggins v. Smith, 539 U.S. 510, 520-21 (2003) (quoting
Williams, 529 U.S. at 409). In order to be entitled to habeas relief, the petitioner must show that
“the state court’s ruling on the claim being presented in federal court was so lacking in
justification that there was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).
When this Court proceeds to consider a substantive claim that has not been decided by
the state courts on the merits, this Court must consider the claim under a de novo standard of
review. See Carvajal v. Artus, 633 F.3d 95, 111 n.12 (2d Cir. 2011), cert. denied 132 S.Ct. 265;
see also Bell v. Miller, 500 F.3d 149, 155 (2d Cir. 2007); Smith v. Fischer, 957 F. Supp. 2d
418, 434 (S.D.N.Y. 2013).
19
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II.
THE PETITION SHOULD BE DISMISSED.
As a threshold matter, this Court finds that the Petition was timely filed. On March 3,
2011, the New York Court of Appeals issued a certificate denying Petitioner leave to appeal
from the Appellate Division’s affirmance of his conviction. See McKelvey, 16 N.Y.3d at 833.
Accordingly, Petitioner’s conviction became final, and the one-year statute of limitations period
began to run, 90 days later, on June 1, 2011, i.e., on the date on which Petitioner’s time to seek a
writ of certiorari to the United States Supreme Court expired. See 28 U.S.C. § 2244(d)(1)(A);
Saunders v. Senkowski, 587 F.3d 543, 547 (2d Cir. 2009) (“[T]he limitations period for state
prisoners therefore begins to run only after the denial of certiorari or the expiration of time for
seeking certiorari.” (internal quotation marks and citation omitted)).
The limitations period then ran for 93 days, until September 2, 2011, when Petitioner
filed his collateral motion to vacate the conviction. (See Answer, Ex. G.) That motion was
pending until February 25, 2013, when the Appellate Division denied his motion for reargument.
See 28 U.S.C. § 2244(d)(2); Smalls v. Smith, No. 05cv5182 (CS), 2009 WL 2902516, at *8
(S.D.N.Y. Sept. 10, 2009) (“[T]he AEDPA Limitations Period is tolled while a petitioner seeks
reargument before the Appellate Division of a denial of leave to appeal a State trial court’s denial
of a Section 440.10 motion, because such reargument may properly be sought under New York
law.”). Petitioner filed the Petition 78 days later, on May 14, 2013. (See Pet.) As only 171 days
of the one-year limitations period had passed before the Petition was filed, its filing was timely.
Nevertheless, for the reasons set forth below, I recommend the dismissal of each of Petitioner’s
habeas claims.
20
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A.
Plaintiff’s Claims Relating to Alleged
Improprieties in the Grand Jury Proceedings
Several of Petitioner’s habeas claims rest, in whole or in part, on challenges to the
conduct of the grand jury proceedings that led to his indictment. For his first claim, Petitioner
alleges that, after he presented an alibi for the date shown in the Felony Complaint for the assault
of S.P., the prosecutor improperly “changed the date of occur[r]ence . . . at the grand jury
presentation,” thereby, according to Petitioner, depriving the trial court of jurisdiction to hear the
case. (Pet. ¶ 12, GROUND ONE (a).) Petitioner’s second claim rests squarely on charges of
prosecutorial misconduct with respect to the grand jury proceedings; with respect to that claim,
Petitioner alleges that the prosecutor permitted “unsworn and prejuried” [sic, perjured] testimony
to be heard by the grand jury and then denied Petitioners right to appear, “thus improperly
imped[]ing” the grand jury’s “investigatory function.” (Id., GROUND TWO (a).) Although, as
noted above, Petitioner’s third claim is not entirely clear, it appears that Petitioner is alleging, in
part, that he was deprived of his ability to confront a key witness in the grand jury proceedings
(see n.8, supra), and that the prosecutor violated Petitioner’s due process rights by
“circumvent[ing] the statutory requirements needed to achieve the ability to change the date of
occurrence” of the S.P. assault, presumably at the grand-jury level. (Id., GROUND THREE (a).)
Finally, as part of the ineffective-assistance-of-counsel claim that Petitioner asserts as his fourth
ground for habeas relief, Petitioner alleges that his trial counsel “failed to investigate why
[Petitioner] was not p[er]mitted to testify at the grand jury . . . and then refused to file the proper
paperwork to have the indictment dismissed after [Petitioner’s] right was disregarded,” and that
his counsel was ineffective for failing “to question the change of date of occur[r]ence.” (Id.,
GROUND FOUR (a).)
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Given their common underlying facts, this Court will address Petitioner’s grand-juryrelated claims first, and then address the portions of his third and fourth stated grounds for relief
that constitute his remaining claims. For the reasons discussed below, none of the claims
relating to the grand jury proceedings can withstand scrutiny, either because they rest directly on
state law and are not cognizable as federal violations, or because they are without merit.
1.
Petitioner’s First Two Grounds for Habeas
Relief Are Not Cognizable as Federal Claims.
Petitioner’s first habeas claim is that the trial court was deprived of jurisdiction over his
case due to a variance between the Felony Complaint and the Indictment. (Pet. ¶ 12, GROUND
ONE.) Specifically, Petitioner appears to contend that the Indictment against him was rendered
defective by the grand jury’s adoption of May 26, 2006, as the date for the charged crimes
involving S.P., rather than June 23, 2006, as stated in the Felony Complaint, and that the trial
court’s jurisdiction could not have been properly founded on a defective indictment. (Id.)
Petitioner does not state any federal, constitutional basis for this claim, and, when he raised the
same type of jurisdictional challenge in his Section 440.10 motion, he based his claim on state
law. 9 (See Answer, Ex. G, at 9, 13-16.)
Similarly, when Petitioner raised his second habeas claim in his Section 440.10 motion –
arguing that the prosecutor engaged in misconduct by (a) suborning perjury and introducing
unsworn testimony before the grand jury, and (b) denying Petitioner the right to appear before
the grand jury – his arguments again relied on state law, primarily citing those sections of the
9
In the part of his Section 440.10 motion that related to his claim that the Indictment was
jurisdictionally defective, Petitioner cited a single federal case, Sunal v. Large, 332 U.S. 174
(1947). (Answer, Ex. G, at 13). That case dealt with the availability of habeas corpus to
defendants who had not appealed their federal convictions, however, and not to the
constitutionality of a conviction that relied on an allegedly defective indictment.
22
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New York Criminal Procedure law governing grand jury proceedings and state court decisions
construing those statutes. (See id., at 16-19.) 10 Both in the state courts and here, Petitioner has
not identified any federal law or constitutional right upon which this prosecutorial-conduct claim
was based.
Violations of state law, however, do not provide a basis for federal habeas relief. See
Estelle v. McGuire, 502 U.S. 62, 68 (1991) (“In conducting habeas review, a federal court is
limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United
States.” (citations omitted).)) Moreover, Petitioner’s first two claims do not have viable federal
analogs. Simply put, there is no federal constitutional right to indictment by a grand jury in a
state criminal prosecution, see Alexander v. Louisiana, 405 U.S. 625, 633 (1972) (“Although the
Due Process Clause guarantees petitioner a fair trial, it does not require the States to observe the
Fifth Amendment’s provision for presentment or indictment by a grand jury.”); Fields v. Soloff,
920 F.2d 1114, 1118 (2d Cir. 1990) (“The Fifth Amendment right to indictment by a grand jury
was not incorporated by the Due Process Clause of the Fourteenth Amendment, and,
accordingly, does not pertain to the states.”), and, as a result, any “[c]laims of deficiencies in
state grand jury proceedings are not cognizable in a habeas corpus proceeding in federal court,”
Davis v. Mantello, 42 F. App’x 488, 490 (2d Cir. 2002).
Accordingly, even if stated in federal terms, Petitioner’s claim that the trial court was
deprived of jurisdiction due to the discrepancy between the Felony Complaint and the evidence
10
In the relevant section of his Section 440.10 motion, Petitioner again cited one federal
case, United States v. Hogan, 712 F.2d 757 (2d Cir. 1983), which was again inapposite. That
case did not involve allegations of prosecutorial misconduct in a state grand jury proceeding, but
rather addressed a federal grand jury proceeding, see id., where a defendant is accorded
constitutional rights not available in parallel state proceedings, see, e.g., Castaldi v. Poole,
No. 07-CV-1420 (RRM), 2013 WL 789986, at *6 (E.D.N.Y. Mar. 1, 2013).
23
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presented to the grand jury would provide him with no cognizable basis for habeas relief. See
Cameron v. Cunningham, No. 13cv5872 (KPF) (GWG), 2014 WL 1259672, at *9 (S.D.N.Y.
Mar. 27, 2014), report and recommendation adopted, 2014 WL 4449794 (S.D.N.Y. Sept. 9,
2014) (dismissing petitioner’s claim that trial court lacked jurisdiction due to grand jury defects
on the basis that claim did not raise a federal constitutional issue); Fabre v. Taylor,
No. 08cv5883 (DLC) (AJP), 2009 WL 162881, at *18 (S.D.N.Y. Jan. 20, 2009), report and
recommendation adopted, 2009 WL 1457169 (May 26, 2009) (“[Petitioner’s claim that the
evidence presented to the grand jury was insufficient to indict him . . . is not cognizable on
habeas review.”).
Similarly, the rule that deficiencies in grand jury proceedings do not violate any federal
constitutional right applies to claims of perjury, see May v. Warden, No. 07cv2176 (BSJ)
(GWG), 2010 WL 1904327, at *3 (S.D.N.Y. May 10, 2010), and thus any federal claim that
Petitioner may be trying to assert regarding the prosecutor’s alleged subornation of perjury
before the grand jury also cannot be considered in this proceeding. By logical extension, the
same would be true for any claim that the prosecutor engaged in misconduct by presenting
unsworn testimony to the grand jury. See id. Petitioner also cannot maintain a federal claim that
he was denied the right to testify before the state grand jury, as “it is well established that
defendants have no [federal] constitutional right to appear before a grand jury.” Webb v.
LaClair, No. 10cv7603 (PGG) (HBP), 2014 WL 4953559, at *6 (S.D.N.Y. Sept. 30, 2014)
(quoting United States v. Ruiz, 894 F.2d 501, 505 (2d Cir. 1990)); see also King v. Grenier,
No. 02cv5810 (DLC) (AJP), 2008 WL 4410109, at *47 (S.D.N.Y. Sept. 26, 2008), report and
recommendation adopted, 2009 WL 2001439 (S.D.N.Y. July 8, 2009), aff’d, 453 F. App’x 88
24
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(2d Cir. 2011); Brown v. Connell, No. 04cv10152 (PAC) (GWG), 2006 WL 1132053, at *6
(Apr. 28, 2006), report and recommendation adopted, 2006 WL 1880546 (July 5, 2006).
Thus, not only did Petitioner fail to raise and exhaust, in the state courts, any federal
variants of his first two habeas claims, but any such claims would have been unfounded. At
bottom, Petitioner’s first two claims are solely state-law claims, not cognizable here.
In any event, Petitioner was convicted by the petit jury under the reasonable doubt
standard, and, therefore, any claimed error in the grand jury proceedings or in the Indictment was
harmless as a matter of law. See Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989) (“[T]he petit
jury’s subsequent guilty verdict means . . . that the defendants . . . are in fact guilty as charged
beyond a reasonable doubt. Measured by the petit jury’s verdict, then, any error in the grand jury
proceeding . . . was harmless beyond a reasonable doubt.” (citing United States v. Mechanik,
475 U.S. 66, 70 (1986))); Campbell v. Lee, No. 11cv4438 (PKC) (AJP), 2013 WL 5878685,
at *17 (S.D.N.Y. Oct. 11, 2013) (“For federal constitutional purposes, a jury conviction
transforms any defect connected with the grand jury’s charging decision into harmless error
because the trial conviction establishes probable cause to indict and also proof of guilt beyond a
reasonable doubt.”), report and recommendation adopted, No. 11cv4438 (JPO), 2014 WL
6390287 (Nov. 17, 2014).
Accordingly, I recommend that Petitioner’s first and second habeas claims be dismissed
as non-cognizable.
25
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2.
Petitioner’s Federal Claims Relating to the
Grand Jury Proceedings Are Without Merit.
Liberally construed, 11 the Petition does raise three federal, constitutional claims relating
to the grand jury proceedings: (a) a Sixth Amendment claim (raised as part of Petitioner’s third
stated ground for habeas relief) alleging that Petitioner was deprived of his right to confront, in
the grand jury proceedings, any witness who supplied the revised date of the assault against S.P.;
(b) a 14th Amendment claim (also raised as part of Petitioner’s third ground for relief) that
Petitioner’s right to due process was violated when the prosecution allegedly “circumvent[ed] the
statutory requirements” governing the procedure for changing that date from what had been
reflected in the Felony Complaint; and (c) a Sixth Amendment claim (raised as part of
Petitioner’s fourth ground for relief) that Petitioner’s trial counsel was constitutionally
ineffective for failing to challenge defects in the grand jury proceedings. None of these claims,
however, have merit.
a.
Claimed Confrontation Clause Violation
(With Respect to Grand Jury Proceedings)
As noted above, Petitioner raised a Confrontation Clause claim in his Section 440.10
motion (see supra, at Background Section B(5)), but – as is now true with his habeas Petition –
the precise parameters of that claim were unclear. In particular, Petitioner did not specify in his
Section 440.10 motion whether he was claiming that this Confrontation Clause rights were
violated in the grand jury proceedings, at the pretrial suppression hearing, or at trial. The trial
court apparently construed the claim to relate to the suppression hearing, as, in dismissing
11
As Petitioner is proceeding pro se, his Petition must be afforded a liberal construction.
See Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (“It is well settled that pro se litigants
generally are entitled to a liberal construction of their pleadings, which should be read to raise
the strongest arguments that they suggest.” (internal quotation marks and citation omitted)).
26
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Petitioner’s claim, the court ruled only that Petitioner had no right to cross-examination at such a
hearing. (See Answer, Ex. I, at 4.) Thus, the state court did not address whether Petitioner’s
Confrontation Clause rights could have been violated with respect to the grand jury proceedings,
as Petitioner may have been alleging and may be trying to allege here. Nonetheless, even on this
Court’s de novo review, any Confrontation Clause claim relating to the grand jury would be
subject to dismissal for failure to rest on any recognized federal right.
Under the Confrontation Clause of the Sixth Amendment, a criminal defendant has “the
right . . . to be confronted with the witnesses against him.” U.S. Const. Amend. VI. The
Supreme Court has held that the Confrontation Clause is violated when an out-of-court
declarant’s testimonial statement is admitted against a criminal defendant, unless the witness is
unavailable to testify and the defendant had a prior opportunity for cross-examination.
See Crawford v. Washington, 541 U.S. 36, 68 (2004). A grand jury proceeding, however, is not
an adversarial proceeding, and thus the Confrontation Clause is not applicable in this context.
See United States v. Rodriguez, 777 F. Supp. 297, 298 (S.D.N.Y. 1991) (“A grand jury
proceeding is an ex parte investigation, not an adversary hearing.” (citing United States v.
Calandra, 414 U.S. 338, 343-44 (1974)); People v. Copney, 969 N.Y.S.2d 898, 900 (Sup. Ct.,
Kings Cnty. 2013) (“Since grand jury proceedings are not adversary proceedings, the right to
confrontation contained in the Sixth Amendment is not implicated as there is no right to crossexamination.” (internal citations omitted)); see also Maryland v. Craig, 497 U.S. 836, 845
(1990) (“The central concern of the Confrontation Clause is to ensure the reliability of the
evidence against a criminal defendant by subjecting it to rigorous testing in the context of an
adversary proceeding before the trier of fact.”).
27
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Accordingly, any Confrontation Clause claim that Petitioner may be seeking to raise with
respect to the grand jury proceedings is meritless and should be dismissed.
b.
Claimed Due Process Violation
Petitioner also alleges that his rights under the Due Process Clause of the 14th
Amendment were violated when the prosecutor, in advising the grand jury of the date on which
S.P. was attacked, flouted unspecified “statutory requirements.” (Pet. ¶ 12, GROUND
THREE (a).) Petitioner made this same argument in his Section 440.10 motion (see Answer,
Ex. G, at 9, 24), and, in denying that motion on the merits, the trial court held that Petitioner
“was not denied procedural due process” (id., Ex. I, at 5). The court further noted that “the
indictment provided [Petitioner] with sufficient notice of the date of the charges for the third
sexual assault,” and that “[a]ny conflict in evidence about the date of that assault created a
factual question for the jury to resolve . . . .” (Id.) Petitioner exhausted his due-process claim
by seeking leave to appeal to the Appellate Division (id., Ex. J), and, by its denial of leave (id.,
Ex. L), the Appellate Division left in place the trial court’s decision. This Court now reviews the
trial court’s decision under the deferential standard of review set out in AEDPA.
While a state criminal defendant’s federal due process rights are violated in the
“exceptional case” where the indictment fails to provide the defendant with notice of the crimes
for which he is charged, see Edwards v. Mazzuca, No. 00cv2290, 2007 WL 2994449, at *5
(S.D.N.Y. Oct. 15, 2007), there is no indication here that Petitioner is actually seeking to
challenge the sufficiency of the Indictment on that basis. More specifically, Petitioner has
provided no basis for contesting the finding of the trial court that the Indictment provided
adequate notice that he was being charged, in that instrument, with specified crimes that
allegedly occurred on specified dates.
28
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Petitioner’s pleading is vague as to any other basis for his 14th Amendment claim,
offering no support for any defined, procedural irregularity that was contrary to statute or could
have offended due process. Further, as discussed above, defects in grand jury proceedings are
generally rendered harmless by the petit jury’s conviction. (See supra, at Discussion
Section II(A)(1); see also Lopez, 865 F.2d at 32-33.) Overall, even liberally construing the
Petition, there is no basis for this Court to conclude that the trial court’s rejection of Petitioner’s
due-process claim was contrary to, or represented an unreasonable application of federal law,
28 U.S.C. § 2254(d), and the claim should therefore be dismissed.
c.
Claimed Ineffective Assistance of Counsel
(With Respect to the Grand Jury Proceedings)
Petitioner’s fourth ground for habeas relief is that he received ineffective assistance of
trial counsel in violation of his Sixth Amendment rights. Petitioner contends, inter alia, that his
counsel’s performance was constitutionally inadequate because counsel failed to secure
Petitioner’s right to appear before the grand jury and failed to “question the change of [the] date
of occurrence” of the attack on S.P., from the date stated in the Felony Complaint to the date
stated in the Indictment. (Pet. ¶ 12, GROUND FOUR (a).) Petitioner raised this claim in his
Section 440.10 motion, citing to federal law in support of his arguments. (Answer, Ex. G, at 2530.) In denying that motion, the trial court rejected all of Petitioner’s ineffective-assistance-ofcounsel claims on the merits, finding, in relevant part, that counsel had no legal basis to
challenge the validity of the indictment based on the change in the date that the crime was
alleged to have occurred, and that Petitioner’s conclusory assertion that counsel did not facilitate
his appearance before the grand jury did not establish a constitutional violation. (Id., Ex. I, at 56.) Petitioner exhausted his ineffective-assistance claims by raising them in his application for
leave to appeal to the Appellate Division (id., Ex. J), which, as set out above, summarily denied
29
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such leave (id., Ex. L). The trial court’s rejection of these claims is reviewed here under
AEDPA.
For AEDPA purposes, Strickland v. Washington, 466 U.S. 668 (1984), sets out the
“clearly established federal law” regarding a defendant’s constitutional right to the effective
assistance of counsel, see, e.g., Harrington, 562 U.S. at 101 (habeas petitioner must establish that
Strickland was applied unreasonably by state courts). To prevail on an ineffective assistance
claim under Strickland, a habeas petitioner must generally show that: (1) his counsel’s
performance “fell below an objective standard of reasonableness,” and (2) he suffered prejudice
as a result. Id. at 688, 691, 694. As to the first prong of this test, there is a strong presumption
that counsel’s conduct fell within the range of reasonably professional assistance. See id. at 689
(“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.”). With regard to prejudice, the petitioner must demonstrate “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694.
Where deference under AEDPA is required, a petitioner “must do more than show that he
would have satisfied Strickland’s test if his [ineffective-assistance] claim were being analyzed in
the first instance, because under § 2254(d)(1), it is not enough to convince a federal habeas court
that, in its independent judgment, the state court applied Strickland incorrectly.” Bell v. Cone,
535 U.S. 685, 698-99 (2002). “Rather, [the petitioner] must show that the [state court] applied
Strickland to the facts of his case in an objectively unreasonable manner.” Id. at 699. “[T]he
question is not whether counsel’s actions were reasonable. The question is whether there is any
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reasonable argument that counsel satisfied Strickland’s deferential standard.” Harrington,
562 U.S. at 105.
Here, Petitioner is apparently seeking to claim that he had state-law rights with respect to
the adequacy of the Indictment against him and the conduct of the grand jury proceedings, and
that his trial counsel was ineffective for failing to take action to protect those rights. While “the
Sixth Amendment right to the effective assistance of counsel can be violated if counsel failed to
raise a significant and obvious state law claim,” LanFranco v. Murray, 313 F.3d 112, 118-19
(2d Cir. 2002), Petitioner has not shown, in this instance, that his counsel failed to raise
meritorious state-law arguments.
As for Petitioner’s claim that his trial counsel should have challenged the discrepancy
between the Felony Complaint and the Indictment, New York law offers no ground for such a
challenge. Rather, the law provides that, while a felony complaint serves as the basis for the
commencement of a criminal action, see N.Y.C.P.L. § 100.10(5), that instrument is superseded,
and thus rendered legally irrelevant for purposes of challenging a subsequent conviction, by the
grand jury’s decision to indict, see Brown v. Perlman, No. 03cv2670 (RJH), 2006 WL 2819654,
at *6 (S.D.N.Y. Sept. 29, 2006) (“[T]he grand jury indictment superceded any prior accusatory
actions, rendering any alleged pre-indictment deficiencies irrelevant.”); People v. Smith,
757 N.Y.S.2d 491, 491 (2d Dep’t 2003) (“[E]ven if the felony complaint was defective, it was
superseded by a valid indictment, rendering any claim regarding a purported defect in the felony
complaint academic.”). In deciding whether to issue an indictment, the grand jury is free to
make an “independent determination that there is legally sufficient evidence that crimes have
been committed and reasonable cause to believe that the defendant committed the crimes
charged,” regardless of what information appears in the initial accusatory instrument. Black,
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705 N.Y.S.2d at 698 (citing People v. Wicks, 76 N.Y.2d 128, 133 (1990)). Indeed, New York
law does not prohibit the grand jury from returning an indictment even on charges that were not
included in a prior felony complaint. See N.Y.C.P.L. § 190.65(2).
For these reasons, there is no basis under New York law upon which Petitioner’s counsel
could have successfully challenged the validity of the Indictment against him due to the
presentation of evidence in the grand jury proceedings that differed from the accusations set out
in the Felony Complaint. As any argument based on the erroneous premise that the information
presented to a grand jury or included in an indictment must exactly match that contained in a
felony complaint would have been meritless, Petitioner’s trial counsel could not have been
ineffective for failing to raise this issue. See Forbes v. United States, 574 F.3d 101, 106 (2d Cir.
2009) (“It is well established that ‘[t]he failure to include a meritless argument does not fall
outside the wide range of professionally competent assistance to which [a defendant is]
entitled.’” (quoting Aparicio, 269 F.3d at 99)).
Petitioner also cannot establish that he is entitled to habeas relief based on the trial
court’s rejection of his claim that his counsel was ineffective for failing to secure his state-law
right to appear and testify before the grand jury. In New York, a criminal defendant does have a
statutorily created right to appear and testify before a grand jury. See N.Y.C.P.L. § 190.50(5);
see also King, 2008 WL 4410109, at *47. Several courts in this Circuit have found, however,
that defense counsel’s failure to secure that right does not violate the Sixth Amendment. See,
e.g., Webb, 2014 WL 4953559, at *7; King, 2008 WL 4410109, at *47; Acosta v. Couture,
No. 99cv9727 (LMM) (RLE), 2003 WL 272052, at *8 (S.D.N.Y. June 21, 2002), report and
recommendation adopted, (Jan. 23, 2003); see also Davis. v. Mantello, 42 F. App’x 488, 491 n.1
(2d Cir. 2002) (holding that petition did not assert an ineffective-assistance claim, and noting, in
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dicta, that the New York courts have consistently held that the failure to ensure that a defendant
is able to testify before the grand jury does not amount to ineffective assistance of counsel).
Typically, courts have based their holdings in this regard on one of two rationales: (1) that the
United States Supreme Court’s holding in United States v. Mechanik, 475 U.S. 66, 70 (1986),
which states that a defendant’s conviction beyond a reasonable doubt cures any defect in an
earlier grand jury proceeding, forecloses any possibility of actual prejudice, see, e.g., Montalvo v.
Annetts, No. 02cv1056 (LAK) (AJP), 2003 WL 22962504, at *24 (S.D.N.Y. Dec. 17, 2003); or
(2) that the New York courts have themselves consistently determined that the failure to secure a
defendant’s right to testify before the grand jury does not constitute ineffective assistance, see,
e.g., King, 2008 WL 4410109, at *47 (citing Davis, 42 F. App’x at 491 n.1).
As has been noted by at least one court in this District, however, there are
“inadequac[ies]” with each of these lines of analysis. See Washington v. Walsh, No. 10cv7288
(RJS) (JCF), 2015 WL 4154103, at *26 (S.D.N.Y. Mar. 30, 2011), report and recommendation
adopted, 2015 WL 4154103 (July 9, 2015). First, “the New York Court of Appeals has
explicitly declined to adopt Mechanik, finding that New York law ‘provides for dismissal [of an
indictment] upon the mere possibility of prejudice’ and allows a defendant to raise claims of
defects in his grand jury proceedings ‘even after a plea of guilty.’” Id. at *26 (quoting People v.
Wilkins, 68 N.Y.2d 269, 277 n.7 (1986)). “Thus, while defects in a petitioner’s grand jury
proceedings are not themselves cognizable on habeas review pursuant to Mechanik,” that case
does not prevent courts from finding “that a trial counsel’s failure to raise objections to such
defects in state proceedings causes prejudice sufficient to constitute ineffective assistance of
counsel under Strickland, even when the petitioner has been convicted after a jury trial.” Id.
Second, the federal standard set out in Strickland “operates independently of state constitutional
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protections,” and the fact that the New York courts have consistently determined that the failure
to secure a defendant’s right to testify before the grand jury does not violate the right to counsel
does not necessarily mean that the appropriate federal standard was reasonably applied in each
case. Id. Yet, even accepting that it may be possible for a habeas petitioner to establish that he
was denied the right to counsel based on his attorney’s failure to secure his statutory right to
appear before the grand jury, Petitioner alleges no facts demonstrating that the Strickland
standard was unreasonably applied in this case.
Under Strickland, Petitioner can establish a violation of the right to counsel by showing
that his counsel failed to raise a significant and obvious state law claim, and that there is a
reasonable probability that the outcome of the proceedings would have been different had
counsel done so. See Strickland, 466 U.S. at 688, 691, 694; LanFranco, 313 F.3d at 118-19.
Even assuming that counsel’s failure to ensure that Petitioner appeared before the grand jury
amounted to constitutionally deficient performance, the Petition contains no argument as to how
or why Petitioner’s presence before the grand jury would have changed the result of those
proceedings. Given “the low burden of proof for obtaining an indictment,” Dixon v. McGinnis,
492 F. Supp. 2d 343, 348 (S.D.N.Y. 2007), this Court is not persuaded that Petitioner’s
testimony would have outweighed the substantial evidence available to the prosecution at the
time of the grand jury, which included DNA evidence, the statements of the three victims, and
physical evidence recovered during the search of Petitioner’s apartment. (See supra, at
Background Section A(1-3), B(1).) In this regard, while the petit jury’s guilty verdict may not
automatically foreclose a finding that Petitioner was prejudiced by his trial counsel’s
performance, see Washington, 2015 WL 4154103, at *26, Petitioner’s “subsequent conviction by
a petit jury under the reasonable doubt standard makes it highly unlikely he could have
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convinced the grand jury of the absence of probable cause,” Santiago v. McGinnis,
No. 00cv5870 (LBS), 2002 WL 31946709, at *5 (E.D.N.Y. Oct. 21, 2002).
In light of Petitioner’s failure to demonstrate that his inability to testify before the grand
jury caused him actual prejudice, this Court certainly cannot conclude that the trial court
unreasonably applied the Strickland standard in denying Petitioner’s claim. See 28 U.S.C.
§ 2254(d); Harrington, 562 U.S. at 105 (noting that review under AEDPA of state court’s
application of Strickland is “doubly” deferential). Accordingly, this ineffective-assistance claim
should be dismissed.
B.
Petitioner’s Remaining Claims
Petitioner’s remaining habeas claims include (1) a Fourth Amendment claim, alleging
that there was no probable cause for his arrest, and (2) a Confrontation Clause claim which could
be liberally construed to relate to the suppression hearing held in Petitioner’s case or to his trial
(both of these claims being raised in Petitioner’s third stated grounds for habeas relief), as well
as (3) additional claims of ineffective assistance of counsel (as raised in his fourth stated ground
for relief). Each of these claims should also be dismissed.
1.
Alleged Fourth Amendment Violation
As part of his third stated ground for habeas relief, Petitioner alleges that his arrest
violated the Fourth Amendment because the fact that S.P.’s statement regarding the date of the
assault was later “proven to be fraudulent” vitiated the probable cause for his arrest, which was
based on S.P.’s identification. (Pet. ¶ 12, GROUND THREE (a).) Yet, even if Petitioner is
correct that he was arrested without probable cause (which he has not shown), 12 his Fourth
12
Contrary to Plaintiff’s argument, the fact that information upon which an officer relied
in connection with an arrest later turned out to be false has no bearing on whether there was
probable cause for that arrest. See Stansbury v. Wertman, 721 F.3d 84, 89 (2d Cir. 2013)
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Amendment claim is procedurally barred and, in any event, does not provide a cognizable basis
for federal habeas relief.
Petitioner raised this claim in his Section 440.10 motion, and sought to appeal from the
denial of that motion. (Answer, Ex. G, at 19-20; Ex. J.) The trial court, however, in the lastreasoned decision of the state courts, rejected it on state-law procedural grounds, holding that
Petitioner was barred under N.Y.C.P.L. § 440.10(2)(c) from litigating his challenge to the
legality of his arrest in a collateral motion because he could have raised such a claim on direct
appeal. (Answer, Ex. I, at 4.) Federal habeas review is not available where a claim has been
decided by a state court, and the state court’s decision “rests on a state law ground that is
independent of the federal question and adequate to support the judgment.” Coleman v.
Thompson, 501 U.S. 722, 729 (1991).
To determine that the state-law ground on which the state court rested was “truly an
independent basis for decision” rather than “merely a passing reference, . . . such reliance on
state law must be clear from the face of the opinion.” Fama v. Comm’r of Corr. Servs., 235 F.3d
804, 809 (2d Cir. 2000) (emphasis added) (quoting Coleman, 501 U.S. at 732 (internal quotation
marks omitted)); see also Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997) (to preclude federal
review, “the last state court to render judgment must ‘clearly and expressly state[] that its
judgment rest[ed] on a state procedural bar’” (alterations in original) (citation omitted)). To be
deemed adequate, the state procedural rule on which the court’s decision was based must be a
rule that is “firmly established and regularly followed” by the state in question, see Ford v.
Georgia, 498 U.S. 411, 423-24 (1991) (internal quotation marks and citation omitted), and must
(holding that, in evaluating probable cause, a court must consider only those facts known to the
officer at the time of the arrest).
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not have been “misapplied in [the petitioner’s] case in particular,” Cotto v. Herbert, 331 F.3d
217, 240 (2d Cir. 2003) (internal quotation marks and citation omitted).
Here, it is clear from the face of the trial court’s opinion that the court relied on the
procedural bar found in N.Y.C.P.L. § 440.10(2)(c) to dispose of Petitioner’s Fourth Amendment
claim. Moreover, the court’s decision reflected a regularly followed New York rule that does not
appear to have been misapplied in the circumstances presented, given that Petitioner was
afforded a suppression hearing, the record of which was presumably available for direct appeal.
See Garcia v. Lee, No. 10cv5287 (JPO) (JLC), 2012 WL 3822137, at *19 (S.D.N.Y. Aug. 28,
2012) (finding that there is “no question” that § 440.10(2)(c) is firmly established and regularly
followed (citing People v. Cooks, 67 N.Y.2d 100, 103-04 (1986))), report and recommendation
adopted, No. 10cv5287 (JPO), 2014 WL 406209 (Feb. 3, 2014). Petitioner’s Fourth Amendment
claim is therefore procedurally barred from habeas review, and Petitioner has not demonstrated
that he can overcome the procedural bar. 13
13
A habeas petitioner can overcome a procedural bar to review by showing (1) both
“cause” for the procedural default and “prejudice” resulting from the alleged constitutional error,
or (2) that the failure to address the claim on habeas would result in a “fundamental miscarriage
of justice.” Coleman, 501 U.S. at 750. “Cause” for a procedural default is established when
“some objective factor external to the defense” impeded the petitioner’s efforts to comply with
the state’s procedural rule, Murray v. Carrier, 477 U.S. 478, 488 (1986), and “prejudice”
requires a petitioner to demonstrate that the alleged constitutional error worked to his “actual and
substantial disadvantage,” United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in
original). To establish a “fundamental miscarriage of justice,” the petitioner must show that “a
constitutional violation has probably resulted in the conviction of one who is actually innocent.”
Carrier, 477 U.S. at 496. In this instance, Petitioner has certainly failed to show any probability
that this Court’s failure to review his claim would result in a fundamental miscarriage of justice,
given that he has offered no new evidence of actual innocence. In addition, Petitioner has not
asserted any “cause” for his failure to raise his Fourth Amendment claim on direct appeal. Nor,
based on this Court’s analysis of the merits of such a claim (as discussed below), could Petitioner
show the requisite “prejudice.” See, e.g., McDowell v. Heath, No. 09cv7887 (RO) (MHD), 2013
WL 2896992, at *25 (S.D.N.Y. June 13, 2013) (“Petitioner also cannot establish actual prejudice
[as would be necessary to overcome a procedural default] because this . . . claim has no merit.”).
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In any event, Petitioner’s claim would be subject to dismissal under Stone v. Powell,
428 U.S. 465 (1976), in which the Supreme Court held that, where a state “has provided an
opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be
granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional
search or seizure was introduced at his trial.” Id. at 494; see also Briggs v. Phillips,
No. 02cv9340 (SAS) (AJP), 2003 WL 21497514, at *6 (S.D.N.Y. June 30, 2003) (“[Petitioner’s]
claim that the police lacked probable cause to arrest him is a Fourth Amendment claim that is not
cognizable on habeas review.”), report and recommendation adopted, (July 23, 2003). Powell
dictates that a state petitioner may obtain federal habeas review of a Fourth Amendment claim
only if: (1) the state has provided no corrective procedures to redress Fourth Amendment
violations; or (2) the petitioner was precluded from utilizing such corrective procedures by an
“unconscionable breakdown in that process.” Gates v. Henderson, 568 F.2d 830, 840 (2d Cir.
1977).
In this case, Petitioner does not and cannot contend that the state failed to provide
adequate remedial procedures to address his Fourth Amendment claim, as New York provided a
procedure for litigating Fourth Amendment claims (a procedure that has been considered and
found adequate by the Second Circuit), and Petitioner in fact took advantage of that procedure. 14
(See Pretrial Tr., at 2-39; Graham v. Costello, 299 F.3d 129, 134 (2d Cir. 2002) (“[O]nce it is
established that a petitioner has had an opportunity to litigate his or her Fourth Amendment
claim (whether or not he or she took advantage of the state’s procedure) . . . the claim will never
14
Although the Fourth Amendment claim that Petitioner raised at the
Mapp/Dunaway/Huntley hearing was based on a slightly different theory than the one he
presents in the Petition (see 4/24/07 Tr., at 20-28), that hearing offered Petitioner the opportunity
to litigate any challenge to the legality of his arrest.
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present a valid basis for federal habeas relief.”); Capellan v. Riley, 975 F.2d 67, 70 n.1 (2d Cir.
1992) (“[T]he federal courts have approved New York’s procedure for litigating Fourth
Amendment claims . . . as being facially adequate.” (internal quotation marks and citation
omitted)).) In addition, the Petition contains no facts suggesting that an unconscionable
breakdown in the process by which he was afforded a pretrial suppression hearing denied him a
full and fair opportunity to litigate any Fourth Amendment violation. Thus, even if Petitioner’s
arrest was unlawful, this fact would not give rise to a cognizable ground for federal habeas relief.
For all these reasons, Petitioner’s Fourth Amendment claim should be dismissed.
2.
Alleged Confrontation Clause Violation
(at Pretrial Hearing or at Trial)_______
Also as part of his third habeas claim, as noted above, Petitioner has arguably claimed
that, either at the suppression hearing or at trial, he was denied the right to confront the witness
who supposedly provided the new date for the assault against S.P.
To the extent that Petitioner seeks to claim that his right to confront witnesses was
violated during the pretrial suppression hearing, his claim is plainly meritless. The trial court
held that “[t]he right to confrontation under Crawford . . . does not apply at a pretrial suppression
hearing, where guilt is not an issue and hearsay evidence is admissible.” (Answer, Ex. I, at 4
(citations omitted).) As the U.S. Supreme Court has not held otherwise, the trial court’s decision
cannot be found to have been either contrary to, or an unreasonable application of federal law, as
determined by the Supreme Court. See Smith v. Hulihan, No. 11cv2948 (HB) (AJP), 2011 WL
4058764, at *23 (S.D.N.Y. Sept. 13, 2011) (“The First Department’s decision rejecting Smith’s
confrontation clause claim was not contrary to or an unreasonable application of Supreme Court
precedent because the Supreme Court has never applied the Confrontation Clause to a pre-trial
suppression hearing.”), report and recommendation adopted, 2012 WL 4928904 (Oct. 17, 2012).
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To the extent that Petitioner is contending that his right to confrontation was violated at
trial, the trial court did not directly address the claim, and thus the deferential AEDPA standard
may not apply. Even on de novo review, however, any such claim necessarily fails, as Petitioner
has not identified any testimonial statement from an out-of-court declarant that was introduced
during the trial. See Williams v. Illinois, 132 S. Ct. 2221, 2256 (2012) (noting that Confrontation
Clause only bars the use of testimonial statements that meet the definition of hearsay). At trial,
S.P. and her friend each testified regarding their own recollection of the date that S.P. was
assaulted (Trial Tr., at 287, 399-400), and Officer McNeil testified that the different date listed in
the Felony Complaint was based on S.P.’s initial recounting of the incident (id. at 233-44).
Petitioner’s counsel had the opportunity to (and, in fact, did) cross-examine each of these
witnesses regarding the conflict between S.P.’s initial report and the contrary testimony
presented at trial. (Trial Tr., at 233-51, 320-22, 406.) None of these witnesses testified as to
statements made by an out-of-court declarant, and neither S.P. nor her friend even implied that
their stated recollections of the date of the attack had been affected by information obtained from
any third party, not present at trial. Under these circumstances, where no statement of
testimonial hearsay was introduced at trial and the defendant had the opportunity to crossexamine the witnesses who testified against him, the Confrontation Clause was not violated.
Accordingly, whether based on the grand jury proceedings (as discussed at
Section II(A)(2)(a) above), the suppression hearing, or trial, Petitioner’s Confrontation Clause
claim should be dismissed.
3.
Additional Claims of Ineffective Assistance of Counsel
In addition to the ineffective-assistance-of-counsel claims discussed above, Petitioner
also alleges, as part of his fourth habeas claim, that his trial counsel was ineffective for failing to
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obtain Petitioner’s cell phone records from May 26, 2006, the date S.P. was assaulted, and for
failing to question certain witnesses as to why colposcopic examinations were not performed on
the complaining rape victims. (Pet. ¶ 12, GROUND FOUR (a).) Petitioner exhausted these
ineffective-assistance claims by raising them in his Section 440.10 motion, and in his application
for leave to appeal from the trial court’s denial of that application. (See Answer, Ex. G, J.) The
claims were each rejected on the merits by the trial court, which held that counsel could not have
obtained Petitioner’s cell phone records, as his service provider did not preserve the records for
the date in question, and that Petitioner’s argument that a colposcopic test would have proved his
innocence was unsupported, as medical testimony at trial established that victims of rape often
suffer no injuries to their genitals. (Id., Ex. I, at 5-6.) Under the applicable AEDPA standard of
review, these claims should be dismissed.
a.
Counsel’s Failure To Subpoena Petitioner’s Phone Records
Petitioner contends that his trial counsel was ineffective for failing to subpoena his cellphone records, as, according to Petitioner, these records would have shown that Petitioner was
actually in Brooklyn on the night that (according to the Indictment), he was alleged to have
assaulted S.P. (Pet. ¶ 12, GROUND FOUR (a); Answer, Ex. G, at 28.) In some cases, trial
counsel’s failure to investigate evidence corroborating an alibi can amount to deficient
performance. See Espinal v. Bennett, 588 F. Supp. 2d 388, 399-401 (E.D.N.Y. 2008), aff’d,
342 F. App’x 711 (2d Cir. 2009). Here, however, likely due to S.P.’s expected testimony, as
well as the similarity of her allegations to the two other complaints of rape to which Petitioner
was linked by DNA evidence, counsel chose not to dispute the fact that Petitioner actually had
engaged in sexual acts with S.P., and instead attempted to suggest to the jury that any such
conduct was consensual. Counsel’s strategic choice not to assert an alibi defense based on
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Petitioner’s phone records, and instead to argue that Petitioner had engaged in consensual sexual
conduct with S.P., does not constitute deficient performance. See Knowles v. Mirzayance,
556 U.S. 111, 124 (2009) (“[S]trategic choices made by counsel after a thorough investigation of
law and facts relevant to plausible options are virtually unchallengeable.” (quoting Strickland,
466 U.S. at 690)); see also Henry v. Poole, 409 F.3d 48, 61 (2d Cir. 2005) (“[I]t is generally
acknowledged that an attempt to create a false alibi constitutes evidence of the defendant’s
consciousness of guilt.” (internal quotation marks and citations omitted)).
Moreover, even if Petitioner were able to show that his trial counsel’s failure to seek out
cell-phone records to corroborate Petitioner’s alibi defense was objectively unreasonable, this
claim would still lack merit due to the apparent unavailability of the records that Petitioner
claims his attorney should have subpoenaed. In this regard, the trial court rejected Petitioner’s
claim on the basis that the prosecutor had subpoenaed the relevant records, only to learn that
Petitioner’s service provider had not preserved them. (Answer, Ex. I, at 6.) Clearly, Petitioner
cannot establish that he suffered actual prejudice due to his attorney’s failure to subpoena
particular records if no such records could have been obtained, and the trial court’s finding that
Petitioner’s counsel was not ineffective for not seeking to procure these records was therefore a
reasonable application of Strickland.
b.
Counsel’s Failure To Cross-Examine Witnesses
Regarding Lack of Colposcopic Examinations__
Petitioner also claims that his trial counsel’s failure “to question . . . why the one test that
would have proven [his innocence] was not performed” amounted to constitutionally deficient
performance. (Pet. ¶ 12, GROUND FOUR (a).) In his Section 440.10 motion, Petitioner argued
that colposcopic testing would have shown that neither W.B. nor M.L. had suffered any vaginal
injuries, and that his counsel unreasonably failed to inquire – presumably during cross42
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examination of Drs. Bobrow and Castillo – why such testing had not been performed. (Answer,
Ex. G, at 27-28.) The trial court, in denying this aspect of Petitioner’s motion, held that
Petitioner had provided no support for his allegation that colposcopic testing would have shown
that he did not sexually assault the victims, and noted that medical testimony had established that
rape victims often do not suffer abrasions to their genitals. (Id., Ex. I, at 5.) For the following
reasons, this holding by the trial court was a reasonable application of the Strickland standard.
First, any failure by trial counsel to inquire explicitly as to why a colposcopic
examination was not performed does not establish deficient performance. At trial, Drs. Bobrow
and Castillo gave testimony that was seemingly favorable to Petitioner, when they stated that
their examinations of W.B. and M.L., respectively, revealed no genital injuries. (Trial Tr.,
at 155-56, 159, 335-37.) Petitioner’s counsel confirmed on cross-examination that these
physicians had detected no injuries (id. at 157-60; 337-41), and, when the witnesses then testified
that the examinations were made without the aid of a colposcope (id., at 156, 335; see also id.,
at 159 (Dr. Castillo confirming that her examination of M.L. was not performed with “any other
equipment besides just [her] own naked eye”)), counsel did not pursue the matter further.
Having obtained arguably exculpatory testimony regarding the results of the doctors’ visual
examinations, the objective reasonableness of counsel’s decision in this regard is apparent.
While Petitioner claims that cross-examination as to the lack of colposcopic testing would have
demonstrated his innocence, he does not explain why this is so, and it seems at least equally
likely that the jury would have drawn the opposite inference from such questioning. In
particular, cross-examination on the subject of colposcopic examination may have suggested to
the jury that, while examination by the naked eye did not reveal any vaginal tears or abrasions,
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the claimed victims may indeed have suffered microscopic injuries that would have been
revealed by a colposcope.
Moreover, Petitioner cannot establish, as also required under Strickland, that he suffered
any prejudice from his counsel’s failure to question Drs. Bobrow and Castillo as to why
colposcopic examinations were not performed. The jury heard the doctors testify that they did
not find evidence that W.B. and M.L. had suffered physical injuries, and, in finding Petitioner
guilty beyond a reasonable doubt of raping these complainants, the jury apparently chose to
credit the medical testimony that rape victims often show no such injuries. Petitioner offers no
plausible argument as to why further cross-examination on the absence of colposcopic testing
would have likely altered the jury’s verdict. Indeed, in the face of strong evidence of guilt,
including the eye-witness testimony of three victims, it seems highly unlikely that the jury would
have acquitted Petitioner, had the doctors merely gone on to suggest, during their crossexamination, that colposcopic examinations may have confirmed their visual findings. As
Petitioner has not, and cannot, show that he suffered actual prejudice as a result of his trial
counsel’s failure to inquire as to why the witnesses did not perform colposcopic examinations,
there is no basis for this Court to conclude that the trial court’s rejection of Petitioner’s
ineffective-assistance claim was contrary to, or constituted an unreasonable application of, the
Strickland standard.
Having reviewed all of the alleged deficiencies in the representation provided by
Petitioner’s trial counsel, both individually and in the aggregate, see Lindstadt v. Keane,
239 F.3d 191, 199 (2d Cir. 2001), I recommend that the Court dismiss Petitioner’s habeas claims
for ineffective assistance of counsel for lack of merit.
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CONCLUSION
For all of the foregoing reasons, I recommend that the Petitioner’s Petition for a writ of
habeas corpus be DISMISSED in its entirety. Further, I recommend that the Court decline to
issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1)(A), because
Petitioner has not “made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2).
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil
Procedure, the parties shall have fourteen (14) days from service of this Report to file written
objections. See also Fed. R. Civ. P. 6 (allowing three (3) additional days for service by mail).
Such objections, and any responses to objections, shall be filed with the Clerk of Court, with
courtesy copies delivered to the chambers of the Honorable Colleen McMahon, United States
Courthouse, 500 Pearl Street, Room 2550, New York, New York 10007, and to the chambers of
the undersigned, United States Courthouse, 500 Pearl Street, Room 1660, New York, New York
10007. Any requests for an extension of time for filing objections must be directed to
Judge McMahon. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL
RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW.
See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d
1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v.
Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d
Cir. 1983).
If Petitioner does not have access to cases cited herein that are reported only on Westlaw,
he may request copies from Respondents’ counsel. See Local Civ. R. 7.2 (“Upon request,
counsel shall provide the pro se litigant with copies of [cases and other authorities cited therein
45
Case 1:13-cv-03527-CM-DCF Document 22 Filed 05/23/16 Page 46 of 46
that are unpublished or reported exclusively on computerized databases] as are cited in a decision
of the Court and were not previously cited by any party.").
Dated: New York, New York
May 23, 2016
Respectfully submitted,
DEBRA FREEMAN
United States Magistrate Judge
Copies to:
Hon. Colleen McMahon, U.S.D. J.
Mr. Phillip McKelvey
07A6980
Attica Correctional Facility
Box 149
Attica, NY 14011
Michelle Maerov, Esq.
Assistant Attorney General
State of New York
120 Broadway
New York, NY 10271
46
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