Alston v. Racette et al

Filing 16

REPORT AND RECOMMENDATIONS re: 2 Petition for Writ of Habeas Corpus filed by Donnell Alston. For the reasons set forth above, I recommend that Mr. Alston's petition for a writ of habeas corpus be denied. Pursuant to 28 U.S.C. § 636(b) (1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the C ourt, with extra copies delivered to the chambers of the Honorable Katherine P. Failla, Room 2103, 40 Foley Square, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review. Objections to R&R due by 6/9/2014. (Signed by Magistrate Judge James C. Francis on 5/22/2014) Copies Mailed By Chambers. (ja)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - -:
DONNELL ALSTON,
: 13 Civ. 4392 (KPF) (JCF)
:
Petitioner,
:
REPORT AND
:
RECOMMENDATION
- against :
:
STEVEN RACETTE,
:
:
Respondent.
:
- - - - - - - - - - - - - - - - - -:
TO THE HONORABLE KATHERINE P. FAILLA, U.S.D.J.:
Donnell Alston brings this petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in
New York State Supreme Court of robbery in the first degree in
violation of New York Penal Law § 160.15(4). He contends that: (1)
the trial court committed evidentiary errors, depriving him of a
fair trial under the Sixth and Fourteenth Amendments; (2) newly
discovered evidence has created a reasonable probability that he
would

have

been

acquitted;

and

(3)

he

received

ineffective

assistance of trial counsel when his attorney failed to adequately
cross-examine a witness.

For the reasons that follow, I recommend

that the petition be denied.
Background
A.

The Crime

In the fall of 2005, twenty-five year old Amy Spiegel worked
part-time in her mother’s store, “Funtiques.”
(“Tr.”) at 336-37).

(Trial Transcript

Funtiques was a small retail shop with one

entrance, with jewelry kept in a display case at the back.
340-41).

1

(Tr. at

On

November

26,

2005,

approximately 12:00 p.m.

Ms.

Spiegel

(Tr. at 338).

opened

the

store

At 2:00 p.m., a man

entered and inquired about some necklaces for his wife.
347).

at

(Tr. at

Ms. Spiegel described the man as African-American, “about

six feet, maybe a little taller, [with] a shaved head, a goatee and
[] wearing a black winter puffy jacket that came to about the
knee.”

(Tr. at 348).

He remained in the store for about 30-45

minutes, asking Ms. Spiegel questions and looking at jewelry in the
display case.

(Tr. at 347).

As Ms. Spiegal showed the jewelry to

him, he rested his hands on the display case.

(Tr. at 350).

During that time, there were no other customers in the store. (Tr.
at 348).

When the man turned to leave, Ms. Spiegel asked him his

name, and he responded, “Donnell.”

(Tr. at 351).

The man returned to the store at approximately 4:00 p.m. on
the same day.

(Tr. at 353).

At that time, there was only one

other customer in Funtiques, whom Ms. Spiegel described as “an
Asian girl in her mid twenties.”

(Tr. at 353).

Ms. Spiegel

briefly engaged the man in conversation.

(Tr. at 353).

few

he

minutes,

he

told

Ms.

Spiegel

that

had

After a

forgotten

his

cellphone in a coffee shop down the street, and he left to get it.
(Tr. at 354).
The man returned a few minutes later.

(Tr. at 355).

interim, no other African-American males entered Funtiques.
at 355).

The other customer was still in the store.

In the
(Tr.

(Tr. at 355).

At that point, the man told Ms. Spiegel he wanted to look at the
necklaces again.

(Tr. at 355).

She and the man returned to the
2

showcase, and Ms. Spiegel removed some pieces of jewelry.

(Tr. at

355-56). While the man was looking at the jewelry, he again placed
his hands on the glass. (Tr. at 356).
As Ms. Spiegel was putting a necklace back in the showcase,
the man reached over, grabbed the necklaces, and told her to get
down on the ground.

(Tr. at 357).

At the same time, he pushed

forward what appeared to be a gun in his pocket.

(Tr. at 357-58).

Ms. Spiegel crouched behind the showcase, as did the other
customer.
911.

(Tr. at 359).

After the man left the store, she dialed

(Tr. at 360).
On

December

15,

2005,

police

identified

the

petitioner,

Donnell Alston, as a suspect, based on fingerprints lifted from the
scene.

(Tr. at 223-24).

Police searched for Mr. Alston until May

11, 2006, when he was apprehended in Brooklyn and brought to a
police precinct.

(Tr. at 226).

There, Ms. Spiegel viewed a line-

up, following which Mr. Alston was arrested.
B.

(Tr. at 234-35).

Trial & Sentencing

Trial commenced on April 18, 2007 before the Honorable William
Wetzel and a jury.

(Memorandum of Law in Opposition to Petition

for a Writ of Habeas Corpus (“Resp. Memo.”) at 3).

The jury could

not reach a unanimous verdict, and Justice Wetzel declared a
mistrial on April 20, 2007.

(Resp. Memo. at 3).

On September 24, 2007, a second jury trial began before the
Honorable Charles H. Solomon.
Spiegel

testified

as

(Tr. at 194).

described

above.

The

testimony from Police Officer Penelope Seaman.
3

At that trial, Ms.
jury

also

heard

At the time of the

incident, Officer Seaman was a member of the New York City Police
Department’s

Evidence

Collection

fingerprint evidence at the scene.

Unit,

and

she

collected

(Tr. at 258, 260-61).

The

prosecutor asked Officer Seaman whether she could “determine how
long a fingerprint has been on a surface or how fresh a fingerprint
is.”

(Tr. at 263).

Plaintiff’s trial counsel, Andrea Moleterri,

objected, arguing that the question called for an expert opinion
from a lay witness.

(Tr. at 263).

In response, Justice Solomon

asked Officer Seaman whether it was possible to determine how long
a print has been on a surface, to which she replied, “[i]f it comes
up immediately, it’s been there -- it’s -- it was just placed
there.”

(Tr. at 263-64).

She further explained that if a

fingerprint is very “vibrant” or “vivid” when it is pulled from a
surface, it is “extremely fresh.”

(Tr. at 264).

Justice Solomon

then overruled the objection. (Tr. at 264-65). Officer Seaman was
then asked to describe the fingerprints she lifted from the scene
of the crime, to which she responded, “Outstanding.

Jackpot.

I

won the lotto. They were nice and fresh, extremely fresh, vibrant,
brilliant.”
Prior

(Tr. at 266).
to

cross-examination,

Ms.

Moleterri

was

granted

a

sidebar, during which she reiterated her objection to Officer
Seaman’s testimony regarding the freshness of the prints.
274-81).

(Tr. at

She argued that Officer Seaman testified as to her

opinion regarding a subject outside the ken of the jury, that she
had not been qualified as an expert, and that she had not given any
scientific basis for her opinion.
4

(Tr. at 275-77).

When her

objection

was

again

overruled,

Ms.

Moleterri

asked

for

an

opportunity to recall the witness for cross-examination after noon,
to provide her with time to research the scientific bases for
Officer Seaman’s testimony. (Tr. at 277). Justice Solomon granted
this request.

(Tr. at 281).

In the afternoon, the prosecutor was permitted to continue his
direct examination of Officer Seaman. (Tr. at 311). At that time,
the witness testified that “[t]he quality of [a] print[] is whether
or not it’s a new/fresh print.”

(Tr. at 315).

Ms. Moleterri

objected and was again overruled.

(Tr. at 315).

Officer Seaman

continued, explaining that the more recently a fingerprint is left,
the more vibrant the print is when it is lifted from the surface.
(Tr. at 316). In response, Ms. Moleterri reiterated her objections
and argued that the witness had no formal training in the subject
of fingerprint dating and that the described method is not accepted
in the scientific community.

(Tr. at 317-20).

On cross-examination, Officer Seaman acknowledged that there
is no scientific way to date a fingerprint.

(Tr. at 325).

She

further testified that she had never received any formal training
in determining the age of fingerprints.

(Tr. at 326).

But she

also testified that, based upon their brilliance, the fingerprints
at the crime scene had been left within the 12-hour period prior to
their being lifted.

(Tr. at 329).

During the next recess, Ms. Moleterri requested a mistrial due
to Officer Seaman’s testimony, or, in the alternative, that her
testimony be stricken either in its entirety or specifically as to
5

fingerprint dating.

(Tr. at 411-14).

Justice Solomon denied the

request for a mistrial, but did instruct the jury as follows:
You heard testimony on Monday from Police Officer Seaman
that in her opinion the three latent fingerprints which
she lifted from the glass counter inside 162 Allen Street
were left there recently, and at one point in her
testimony she said that it was her opinion that those
fingerprints were left there within the preceding hours.
I’m instructing you that this testimony cannot be
considered by the jury. I’m striking it from the record.
Officer Seaman was not qualified to give her opinion on
this subject, and her opinion is not part of the record
and cannot be considered by the jury.
(Tr. at 443-44).
The jury also heard the testimony of Christine Peng, the
customer present in Funtiques during the incident.

(Tr. at 434).

She recounted that, while she was browsing, a man entered the store
and was helped by the storekeeper.

(Tr. at 435).

Ms. Peng

described the man as a “tall, black male . . . [d]ark skinned.”
(Tr. at 436).

Soon after entering, the man raised his voice and

told the shopkeeper and Ms. Peng to get on the floor.
39).

(Tr. at 438-

Ms. Peng remained on the floor until he left the store.

at 441).

(Tr.

Defense counsel declined to cross-examine Ms. Peng, no

further witnesses were called, and both the prosecution and defense
rested.

(Tr. at 442-43, 446).

The jury found the petitioner guilty of robbery in the first
degree, and the court adjourned the case for sentencing.

(Tr. at

565, 571).
At

the

initial

sentencing

hearing,

Ms.

Moleterri

permission to withdraw as counsel for Mr. Alston.
dated Nov. 20, 2007 (“Tr. 11/20/07”) at 4, 7).
6

asked

(Transcript

She represented

that she had received a telephone call from Ms. Peng, who informed
her that Ms. Moleterri “didn’t do a good job because [she] didn’t
ask [Ms. Peng] if she could identify [the petitioner] on cross
examination.” (Tr. 11/20/07 at 3). Ms. Peng related that, had she
been asked to make an identification, she would have stated that
she did not recognize Mr. Alston as the man who committed the
crime.

(Tr. 11/20/07 at 3).

Based on that information, Ms.

Moleterri stated that it would be appropriate to file a motion to
vacate the conviction.

(Tr. 11/20/07 at 3-5).

However, as the

attorney who failed to cross-examine Ms. Peng, Ms. Moleterri felt
she could not file the motion herself because her effectiveness was
in question.

(Tr. 11/20/07 at 3-4).

Moleterri and adjourned the case.

The court relieved Ms.

(Tr. 11/20/07 at 7).

On March 4, 2008, Herschel Katz appeared as new counsel for
Mr. Alston.
2).

(Transcript dated March 4, 2008 (“Tr. 3/4/08”) at 1-

He explained that, despite Ms. Peng’s comments, he did not

believe that there was a colorable basis for moving to vacate the
conviction.

(Tr. 3/4/08 at 4-5).

On April 1, 2008, the petitioner and Mr. Katz appeared for
sentencing.

(Transcript dated April 1, 2008 (“Tr. 4/1/08”) at 2).

Justice Solomon sentenced the petitioner as a persistent violent
felony offender to an indeterminate prison term of twenty years to
life.

(Tr. 4/1/08 at 15).
C.

Motion to Vacate

On May 18, 2009, the petitioner, represented by the Office of
the Appellate Defender, moved to vacate his conviction under New
7

York Criminal Procedure Law (“CPL”) § 440.10.

(Motion dated May

18, 2009 (“440 Motion”), attached as Exh. A to Answer). The motion
alleged that Mr. Katz, by failing to contact Ms. Peng after her
call to Ms. Moleterri, had provided the petitioner with ineffective
assistance, and that the statements constituted newly discovered
evidence.

(440 Motion at ¶¶ 5, 13-15).

The court ordered a

hearing, at which Ms. Peng testified that she was in Funtiques when
the incident occurred.
2/8/10”) at 4).

(Transcript dated Feb. 8, 2010 (“Tr.

She was looking at lamps on the wall when the

perpetrator entered, and noticed him because the store was small.
(Tr. 2/8/10 at 5).

At some point, the man told Ms. Peng and the

shopkeeper to get on the floor.

(Tr. 2/8/10 at 5).

Ms. Peng then

proceeded to the back of the store and got down behind the jewelry
counter.

(Tr. 2/8/10 at 5-6).

As she did so, she saw a “three

quarters profile of [the perpetrator’s] face” from approximately
two feet away.

(Tr. 2/8/10 at 6).

When the police arrived on the

scene, Ms. Peng described the man as “about 6 feet, African
American man, probably in his later 20s, early 30s,” “dark-skinned”
with “defined like features (sic).”

(Tr. 2/8/10 at 6-7).

Ms. Peng testified that when she saw the petitioner at trial,
she had never seen him before.

(Tr. 2/8/10 at 16).

She then read

her sworn affidavit into the record, testifying that the petitioner
and

the

robber

[petitioner]

had

looked
a

much

“extremely
lighter

different[,]

.

.

.

the

complexion[,]

.

.

.

the

[petitioner’s] facial features were [] softer [and] . . . the
[petitioner] was [] heavier . . . .” (Tr. 2/8/10 at 25).
8

On cross-

examination, Ms. Peng clarified that until the robber told her to
get on the floor, she had not seen the man’s face.
32-35).

(Tr. 2/8/10 at

In addition, once on the floor, she kept her head down and

did not see his face again.

(Tr. 2/8/10 at 37-38).

She only knew

he had left the store when she heard the store door close.

(Tr.

2/8/10 at 38).
Ms. Moleterri also testified at the hearing.

She stated that

she did not ask Ms. Peng to identify the man in the store because
she did not know what Ms. Peng would say.

(Transcript dated March

10, 2010 at 15-16).
On September 24, 2010, the court issued an eighteen-page
written decision denying the petitioner’s motion.

Justice Solomon

held that Mr. Katz, although remiss in his duty to investigate, was
not ineffective for failing to file a motion to vacate.

(Decision

and Order dated Sept. 24, 2010 (“440 Decision”), attached as Exh.
G to Answer, at 13).

He noted that an attorney is “not required to

make a motion that [he] feels does not have a legal basis.”
Decision at 13).

(440

Justice Solomon found that Ms. Peng’s testimony

did constitute newly discovered evidence because it “came to light
after [the petitioner] was convicted and could not have been
produced at trial by the defense even with due diligence.”
Decision at 14-15).

(440

However, he determined that this new evidence

did not “create[] a probability that had it been received at trial,
the resulting verdict would have been more favorable to [the
petitioner].”

(440 Decision at 15).

First, the court reasoned

that Ms. Peng, “by her own admission,” saw the perpetrator’s face
9

for only fifteen to twenty seconds, “at a point when the robber had
what Ms. Peng believed was a gun pointed at her and when the robber
was yelling at her to get on the floor.”

(440 Decision at 15).

Moreover, Ms. Peng admitted that she had not paid any attention to
the man before he ordered her to the floor.

(440 Decision at 15).

Accordingly, the court found that Ms. Peng had “observed [the
robber] for a very brief period of time under circumstances that
were extremely stressful.”
Justice

Solomon

(440 Decision at 15-16).

further

noted

that

Ms.

Peng’s

brief

opportunity to view the man contrasted with the “extremely long
period of time” that Ms. Spiegel spent with him on the day of the
robbery.

(440 Decision at 16).

The man and Ms. Spiegel had

interacted for almost an hour in a “relaxed setting” before the
robbery.

(440 Decision at 17).

In addition, the man identified

himself to Ms. Spiegel as “Donnell,” and when he later returned to
the store, he acknowledged that he had been there earlier.

(440

Decision at 16).
Thus, according to the court, in “stark contrast to Ms. Peng’s
very

brief

observations

of

[the

perpetrator],”

Ms.

Spiegel’s

identification of the petitioner was “accurate, reliable and based
upon her opportunity to observe [the perpetrator] for a lengthy
period of time under circumstances extremely conducive to her
making a later identification.”

(440 Decision at 17).

Ms.

Spiegel’s identification, in conjunction with the fingerprint
evidence, led the court to conclude that Ms. Peng’s testimony
“simply would not have affected the outcome of the trial.”
10

(440

Decision at 18).
The petitioner sought leave to appeal the court’s ruling
pursuant to CPL § 460.15, and on November 23, 2010, the Appellate
Division granted the application and ordered the appeal to be
consolidated with the petitioner’s direct appeal.

(Certificate

Granting Leave dated Nov. 23, 2010, attached as Exh. I to Answer).
D.

The Appeal

The petitioner thereafter appealed to the Appellate Division,
First Department from both the judgment of conviction and the
Supreme Court’s denial of his 440 motion.

He contended that the

conviction should be vacated based on Ms. Peng’s failure to
identify him.

(Brief for Defendant-Appellant (“Appellate Brief”),

attached as Exh. J to Answer, at 26-36).

In addition, he argued

that the judgment should be reversed because the trial court
committed

several

evidentiary

errors,

namely,

permitting

the

prosecution to elicit a prior consistent statement to bolster Ms.
Spiegel’s credibility, allowing Ms. Spiegel to testify about her
mother’s

habit

of

cleaning

the

jewelry

case

each

day,

and

delivering an inadequate and untimely instruction striking Officer
Seaman’s

inadmissible

“freshness.”
On

testimony

regarding

the

fingerprints’

(Appellate Brief at 41-52).

January

5,

2012,

the

Appellate

Division

unanimously

affirmed the judgment of conviction, finding that Ms. Peng’s postjudgment statements did not create any reasonable probability of
changing the result, as required to vacate a judgment pursuant to
CPL § 440.10 based upon newly discovered evidence.
11

People v.

Alston, 91 A.D.3d 448, 449, 936 N.Y.S.2d 41, 42 (1st Dep’t 2012).
The court reasoned that, despite some inconsistencies in her
testimony,

Ms.

Spiegel

had

made

an

“unusually

reliable”

identification, having spoken with the petitioner on three separate
occasions on the day of the robbery.
42.

Id. at 448, 936 N.Y.S.2d at

Ms. Peng’s identification, based on a limited opportunity to

observe the perpetrator, was insufficient to support a reasonable
probability of a different outcome. Id. at 448-49, 936 N.Y.S.2d at
42.

The Appellate Division further held that the trial court’s

instruction that the jury disregard the stricken testimony of
Officer Seaman was sufficient to prevent prejudice.
936 N.Y.S.2d at 42.

Id. at 449,

Lastly, the court found the petitioner’s

remaining evidentiary claims to be unpreserved and found no basis
to review them in the interest of justice.

Id.

The petitioner thereafter sought leave to appeal to the New
York Court of Appeals, requesting review of the newly discovered
evidence claim.

(Letters dated Feb. 2, 2012 and Feb. 27, 2012,

attached as Exh. N to Answer).

On March 26, 2012, the Court of

Appeals denied leave to appeal.

People v. Alston, 18 N.Y.3d 954,

944 N.Y.S.2d 483 (2012) (Table).
Mr. Alston then filed the instant petition.
Discussion
A.

Standard for Habeas Corpus Review

Under the Antiterrorism and Effective Death Penalty Act (the
“AEDPA”), 28 U.S.C. § 2254(d),
[a]n application for a writ of habeas corpus on behalf of
a person in custody pursuant to the judgment of a State
12

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.
“The ‘contrary to’ and ‘unreasonable application’ clauses [of
§ 2254(d)] have independent meanings.”

Douglas v. Portuondo, 232

F. Supp. 2d 106, 111 (S.D.N.Y. 2002) (citing Jones v. Stinson, 229
F.3d 112, 119 (2d Cir. 2000)).

“Under the ‘contrary to’ clause, a

federal habeas court may grant the writ if the state court arrives
at a conclusion opposite to that reached by [the Supreme] Court on
a question of law or if the state court decides a case differently
than

[the

Supreme]

Court

has

on

a

set

of

materially

Id. (alteration in original) (quoting

indistinguishable facts.”
Jones, 229 F.3d at 119).

To determine if a decision is an

unreasonable application of clearly established federal law under
the AEDPA, “a habeas court must determine what arguments or
theories supported or . . . could have supported, the state court’s
decision; and then it must ask whether it is possible fairminded
jurists

could

disagree

that

those

arguments

or

theories

are

inconsistent with the holding in a prior decision” of the Supreme
Court.

Harrington v. Richter, __ U.S. __, __, 131 S. Ct. 770, 786

(2011).

The AEDPA “preserves authority to issue the writ in cases

where there is no possibility fairminded jurists could disagree
that the state court’s decision conflicts with [Supreme Court]
precedents” but “goes no farther.”
13

Id. at __, 131 S. Ct. at 786.

In order for a federal court to review a state court decision
at all, the petitioner must first have exhausted available state
court remedies.

See 28 U.S.C. § 2254(b)(1); Duckworth v. Serrano,

454 U.S. 1, 3 (1981) (per curiam); Aparicio v. Artuz, 269 F.3d 78,
89 (2d Cir. 2001).

Exhaustion requires that the factual and legal

basis for each claim be fairly presented to the highest available
state court, and that the petitioner use “‘all available mechanisms
to secure appellate review of the denial of [his] claim.’”

Mayen

v. Artist, No. 06 Civ. 14261, 2008 WL 2201464, at *4 (S.D.N.Y. May
23, 2008) (alteration in original) (quoting Klein v. Harris, 667
F.2d 274, 282 (2d Cir. 1981)); see also 28 U.S.C. § 2254(c);
Galdamez v. Keane, 394 F.3d 68, 72-73 (2d Cir. 2005); Torres v.
McGrath, 407 F. Supp. 2d 551, 557 (S.D.N.Y. 2006).

“In order to

have fairly presented his federal claim to the state courts the
petitioner must have informed the state court of both the factual
and the legal premises of the claim he asserts in federal court.”
Daye v. Attorney General of New York, 696 F.2d 186, 191 (2d Cir.
1982) (en banc); accord Jones v. Keane, 329 F.3d 290, 294-95 (2d
Cir. 2003).
Finally, even when a claim is not exhausted, a district court
may reach the merits to deny the petition.

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.”); see also Lurie v.
Wittner, 228 F.3d 113, 124 (2d Cir. 2000).
Habeas corpus review is further limited in that a “claim
14

resolved on independent and adequate state procedural grounds is
generally not subject to review on habeas.”

Dunn v. Sears, 561 F.

Supp. 2d 444, 452 (S.D.N.Y. 2008) (citing Coleman v. Thompson, 501
U.S. 722, 729-30 (1991)).

A state procedural bar qualifies as an

“independent and adequate” state law ground if “‘the last state
court rendering a judgment in the case clearly and expressly states
that its judgment rests on a state procedural bar.’”

Olba v.

Unger, 637 F. Supp. 2d 201, 207 (S.D.N.Y. 2009) (quoting Levine v.
Commissioner of Correctional Services, 44 F.3d 121, 126 (2d Cir.
1995)). A state procedural rule will generally be adequate to
preclude habeas review if it is “‘firmly established and regularly
followed.’”

Lee v. Kemna, 534 U.S. 362, 376 (2002) (quoting James

v. Kentucky, 466 U.S. 341, 348 (1984)).

Additionally, “[f]or

exhaustion purposes, ‘a federal habeas court need not require that
a federal claim be presented to a state court if it is clear that
the state court would hold the claim procedurally barred.’”

Grey

v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (quoting Harris v. Reed,
489 U.S. 255, 263 n.9 (1989)).

Nonetheless, “[f]ederal review [of

procedurally barred claims] is permissible if the petitioner can
demonstrate any one of the following circumstances: (1) actual
innocence of the crime charged; (2) cause for the procedural
default resulting in prejudice; or (3) that the procedural bar that
the state court applied is not adequate.”

Dunn, 561 F. Supp. 2d at

452-53 (internal citations omitted).
The petitioner timely filed his petition pursuant to the
AEDPA’s statute of limitations.

28 U.S.C. § 2244(d)(1).
15

I will

examine each claim in turn.
B.
The

Evidentiary Issues

petitioner

asserts

that

the

“numerous harmful evidentiary errors.”

trial

court

committed

(Petition (“Pet.”) at 6).

Generally, state evidentiary rulings are a matter of state law
not subject to habeas review.

Collins v. Artus, No. 08 Civ. 1936,

2009 WL 2633636, at *4 (S.D.N.Y. Aug. 26, 2009).

Thus, habeas

relief is only available if the petitioner can show that an
erroneous evidentiary ruling was “so pervasive as to have denied
him a fundamentally fair trial,” Severino v. Phillips, No. 05 Civ.
475, 2008 WL 4067421, at *12 (S.D.N.Y. Aug. 25, 2008) (quoting
Collins v. Scully, 755 F.2d 16, 18 (2d Cir. 1985)), or “so
extremely

unfair

that

conceptions of justice,”

its

admission

violates

fundamental

Dunnigan v. Keane, 137 F.3d 117, 125 (2d

Cir. 1998) (internal quotation marks omitted), overruled on other
grounds by Perry v. New Hampshire, __ U.S. __, 132 S. Ct. 716
(2012).

Additionally, the challenged evidence must have been

“‘sufficiently material to provide the basis for conviction or to
remove a reasonable doubt that would have existed on the record
without it.’”

Id. (quoting Johnson v. Ross, 955 F.2d 178, 181 (2d

Cir. 1992)); see Collins, 755 F.2d at 19 (challenged evidence must
be “crucial, critical, highly significant” (internal quotation
marks omitted)).

The materiality of the evidence should be

reviewed “in light of the entire record.”

Dunnigan, 137 F.3d at

125 (internal quotation marks omitted).
The petitioner first challenges the admission of “extensiv[e]”
16

testimony by Officer Seaman regarding the “freshness” of the
fingerprints found inside Funtiques.

(Pet. at 6).

Mr. Alston

argues that the testimony was expert opinion by a lay witness that
lacked any scientific foundation.
petitioner

argues

that

the

(Pet. at 7-8).

trial

court’s

Next, the

“[u]ntimely

and

incomplete instruction was insufficient to prevent undue prejudice”
resulting from that testimony.

(Pet. at 9).

Third, he contends

that the trial court committed reversible error when it permitted
Ms. Spiegel to testify about her mother’s habit of regularly
cleaning the display cases “without first establishing any prior
instances of the purported habit.”

(Pet. at 9).

Fourth, the

petitioner maintains that the trial court erroneously allowed the
prosecutor to introduce prior consistent statements to bolster Ms.
Spiegel’s credibility.

(Pet. at 10).

Mr. Alston failed to exhaust his state remedies with respect
to these claims.

While he raised the purported evidentiary errors

on direct appeal to the Appellate Division, he did not seek leave
to appeal on any of these issues.

He is now foreclosed from

exhausting those claims because he is entitled to only a single
application for leave to appeal.

CPL § 460.20; see People v.

Nelson, 55 N.Y.2d 743, 743-44, 447 N.Y.S.2d 155, 155-56 (1981).
The

petitioner’s

evidentiary

claims

must

therefore

be

deemed

exhausted but are procedurally barred from federal habeas corpus
review.

See Grey, 933 F.3d at 120-21.

The merits of a procedurally defaulted claim may not be
reviewed by a federal court unless the petitioner shows cause for
17

the default and actual prejudice resulting from it, or that failure
to consider the defaulted claim would result in a “fundamental
miscarriage of justice.”

Coleman, 501 U.S. at 749-50; see Murray

v. Carrier, 477 U.S. 478, 496 (1986) (fundamental miscarriage of
justice exception requires showing of actual innocence).
In this case, Mr. Alston has failed to establish either.

He

has offered no reason for his failure to assert these claims.
Furthermore, his evidentiary arguments are aimed at the sufficiency
of the evidence, not his factual innocence.

(Pet. at 6-11).

As an

instrument for avoiding procedural default, “[a]ctual innocence
means factual innocence, not mere legal insufficiency.” Bousley v.
United States, 523 U.S. 614, 623 (1998).

Accordingly, the Court

may not address the merits of the petitioner’s evidentiary claims.
C.

Newly Discovered Evidence

Mr. Alston next argues that Ms. Peng’s testimony at the
hearing on the 440 motion, in which she stated that the petitioner
looked “extremely different” from the man who robbed Funtiques,
constitutes newly discovered evidence.
1.

(Pet. at 13-17).

Exhaustion

Mr. Alston exhausted his state remedies and is not precluded
from habeas corpus review on this ground.

He raised this claim

before the state Supreme Court, in the Appellate Division, and in
his application for leave to appeal to the New York Court of
Appeals.
2.

Merits

“‘[N]ewly discovered evidence only warrants habeas relief
18

where

it

bears

detention;

the

on

the

constitutionality

existence

merely

of

newly

of

the

applicant’s

discovered

evidence

relevant to the guilt of a state petitioner is not a ground for
relief on federal habeas corpus.’”

Balkman v. Poole, 725 F. Supp.

2d 370, 375 (W.D.N.Y. 2010) (alteration in original) (quoting Mapp
v. Clement, 451 F. Supp. 505, 511 (S.D.N.Y. 1978)).

“‘Federal

courts are not forums in which to relitigate state trials.’”
Herrera v. Collins, 506 U.S. 390, 401 (1993) (quoting Barefoot v.
Estelle, 463 U.S. 880, 887 (1983)).
This is not the first court to consider Ms. Peng’s testimony.
In connection with the 440 motion, both the Supreme Court and the
Appellate Division opined that her testimony, while contrary to to
Ms. Spiegel’s, did not create a reasonable likelihood that Mr.
Alston would have received a more favorable verdict. Ms. Peng only
briefly saw the face of the robber while he was in the store, and
the next time she saw the petitioner was several years later.

On

the other hand, Ms. Spiegel identified the petitioner as the man
who robbed the store after spending considerable time with him
prior to the incident.

Therefore, the determination of the state

courts was not unreasonable, and habeas relief is not warranted.
D.

Ineffective Assistance of Counsel

Finally, the petitioner argues that Ms. Moleterri, his trial
counsel, provided ineffective assistance when she chose not to
cross-examine Ms. Peng.

(Pet. at 18).

He asserts that, had Ms.

Moleterri asked Ms. Peng whether she could identify the petitioner
as the man who committed the robbery, she would have responded in
19

the negative.

(Pet. at 19).

1.

Exhaustion and Procedural Bar

The petitioner’s claim for ineffective assistance of trial
counsel was not exhausted. Although Mr. Alston asserted a claim of
ineffective assistance with respect to Mr. Katz, he never did so
with repect to Ms. Moleterri, and thus cannot raise it for the
first time on habeas corpus review.

Nevertheless, a court may

reach the merits of an unexhausted claim that is plainly meritless
in order to deny that claim.

28 U.S.C. § 2254(b)(2); see Terrence

v. Senkowski, No. 97 Civ. 3242, 1999 WL 301690, at *5 n.4 (S.D.N.Y.
May 12, 1999) (exercising discretion to dismiss unexhausted but
meritless claims).
2.

That is the appropriate course here.

Merits

In order to make out a claim for constitutionally ineffective
assistance

of

counsel,

the

petitioner

must

satisfy

the

“‘rigorous,’” “‘highly demanding’” test articulated in Strickland
v. Washington, 466 U.S. 668 (1984).

Pavel v. Hollins, 261 F.3d

210, 216 (2d Cir. 2001) (quoting Lindstadt v. Keane, 239 F.3d 191,
199 (2d Cir. 2001), and Kimmelman v. Morrison, 477 U.S. 365, 382
(1986)).

He must first establish that his counsel’s performance

was deficient, meaning that it “fell below an objective standard of
reasonableness according to prevailing professional norms.” United
States v. Arteca, 411 F.3d 315, 320 (2d Cir. 2005); see Strickland,
466 U.S. at 687, 690.

Second, the petitioner must “affirmatively

prove” that his attorney’s deficient performance prejudiced the
outcome

of

the

case.

Strickland,
20

466

U.S.

at

687,

693.

“Surmounting Strickland’s high bar is never an easy task.” Padilla
v. Kentucky, 559 U.S. 356, 371 (2010).
Here, Mr. Alston’s argument is without merit.

The actions of

his trial counsel were well within an objective standard of
reasonableness.

The decisions whether to cross-examine a witness

and “to what extent and in what manner, are . . . strategic in
nature.”

Dunham v. Travis, 313 F.3d 724, 732 (2d Cir. 2002)

(alteration

in

original)

(internal

quotation

marks

omitted).

Nothing in the record could have indicated to Ms. Moleterri that
Ms. Peng would not identify the petitioner as the man who committed
the robbery.

Thus, it was sound strategy for her not to risk

having Ms. Peng confirm Ms. Spiegel’s identification testimony.
Conclusion
For the reasons set forth above, I recommend that Mr. Alston’s
petition for a writ of habeas corpus be denied.

Pursuant to 28

U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal
Rules of Civil Procedure, the parties shall have fourteen (14) days
from this date to file written objections to this Report and
Recommendation.

Such objections shall be filed with the Clerk of

the Court, with extra copies delivered to the chambers of the
Honorable Katherine P. Failla, Room 2103, 40 Foley Square, and to
the chambers of the undersigned, Room 1960, 500 Pearl Street, New
York, New York 10007.

Failure to file timely objections will

preclude appellate review.

21

Respectfully submitted,

~C·~J
AMES C. FRANCIS IV
ITED STATES MAGISTRATE JUDGE

Dated:

New York, New York
May 22, 2014

Copies mailed this date to:
Donnell Alston
08-A-2925
Great Meadow Correctional Facility
P.O. Box 51
Comstock, New York 12821
Joanna Hershey, Esq.
Assistant Attorney General
Office of the Attorney General
120 Broadway
New York, New York 10271

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