Alston v. Racette et al
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
- - - - - - - - - - - - - - - - - -:
: 13 Civ. 4392 (KPF) (JCF)
- against :
- - - - - - - - - - - - - - - - - -:
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
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.
In the fall of 2005, twenty-five year old Amy Spiegel worked
part-time in her mother’s store, “Funtiques.”
(“Tr.”) at 336-37).
Funtiques was a small retail shop with one
entrance, with jewelry kept in a display case at the back.
approximately 12:00 p.m.
(Tr. at 338).
At 2:00 p.m., a man
entered and inquired about some necklaces for his wife.
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
(Tr. at 348).
He remained in the store for about 30-45
minutes, asking Ms. Spiegel questions and looking at jewelry in the
(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.
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).
briefly engaged the man in conversation.
(Tr. at 353).
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.
The other customer was still in the store.
(Tr. at 355).
At that point, the man told Ms. Spiegel he wanted to look at the
(Tr. at 355).
She and the man returned to the
showcase, and Ms. Spiegel removed some pieces of jewelry.
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
(Tr. at 359).
After the man left the store, she dialed
(Tr. at 360).
Donnell Alston, as a suspect, based on fingerprints lifted from the
(Tr. at 223-24).
Police searched for Mr. Alston until May
11, 2006, when he was apprehended in Brooklyn and brought to a
(Tr. at 226).
There, Ms. Spiegel viewed a line-
up, following which Mr. Alston was arrested.
(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.
(Tr. at 194).
testimony from Police Officer Penelope Seaman.
At that trial, Ms.
At the time of the
incident, Officer Seaman was a member of the New York City Police
fingerprint evidence at the scene.
(Tr. at 258, 260-61).
prosecutor asked Officer Seaman whether she could “determine how
long a fingerprint has been on a surface or how fresh a fingerprint
(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
(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).
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.
won the lotto. They were nice and fresh, extremely fresh, vibrant,
(Tr. at 266).
sidebar, during which she reiterated her objection to Officer
Seaman’s testimony regarding the freshness of the prints.
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.
(Tr. at 275-77).
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
(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).
objected and was again overruled.
(Tr. at 315).
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).
further testified that she had never received any formal training
in determining the age of fingerprints.
(Tr. at 326).
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
(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).
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.
(Tr. at 438-
Ms. Peng remained on the floor until he left the store.
Defense counsel declined to cross-examine Ms. Peng, no
further witnesses were called, and both the prosecution and defense
(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.
permission to withdraw as counsel for Mr. Alston.
dated Nov. 20, 2007 (“Tr. 11/20/07”) at 4, 7).
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
(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
(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
(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
(Tr. 3/4/08 at 4-5).
On April 1, 2008, the petitioner and Mr. Katz appeared for
(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
(Tr. 4/1/08 at 15).
Motion to Vacate
On May 18, 2009, the petitioner, represented by the Office of
the Appellate Defender, moved to vacate his conviction under New
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
(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
(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
[petitioner’s] facial features were  softer [and] . . . the
[petitioner] was  heavier . . . .” (Tr. 2/8/10 at 25).
examination, Ms. Peng clarified that until the robber told her to
get on the floor, she had not seen the man’s face.
(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.
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.
held that Mr. Katz, although remiss in his duty to investigate, was
not ineffective for failing to file a motion to vacate.
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).
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).
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
(440 Decision at 15).
First, the court reasoned
that Ms. Peng, “by her own admission,” saw the perpetrator’s face
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.”
(440 Decision at 15-16).
opportunity to view the man contrasted with the “extremely long
period of time” that Ms. Spiegel spent with him on the day of the
(440 Decision at 16).
The man and Ms. Spiegel had
interacted for almost an hour in a “relaxed setting” before the
(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.
Decision at 16).
Thus, according to the court, in “stark contrast to Ms. Peng’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).
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.”
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.
Granting Leave dated Nov. 23, 2010, attached as Exh. I to Answer).
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
(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
prosecution to elicit a prior consistent statement to bolster Ms.
Spiegel’s credibility, allowing Ms. Spiegel to testify about her
delivering an inadequate and untimely instruction striking Officer
(Appellate Brief at 41-52).
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.
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
identification, having spoken with the petitioner on three separate
occasions on the day of the robbery.
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
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.
The petitioner thereafter sought leave to appeal to the New
York Court of Appeals, requesting review of the newly discovered
(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.
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
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
Id. (alteration in original) (quoting
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
inconsistent with the holding in a prior decision” of the Supreme
Harrington v. Richter, __ U.S. __, __, 131 S. Ct. 770, 786
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.”
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
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.’”
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
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
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.’”
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
Lee v. Kemna, 534 U.S. 362, 376 (2002) (quoting James
v. Kentucky, 466 U.S. 341, 348 (1984)).
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.’”
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).
examine each claim in turn.
“numerous harmful evidentiary errors.”
(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).
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
conceptions of justice,”
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
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
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
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]”
testimony by Officer Seaman regarding the “freshness” of the
fingerprints found inside Funtiques.
(Pet. at 6).
argues that the testimony was expert opinion by a lay witness that
lacked any scientific foundation.
(Pet. at 7-8).
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).
petitioner maintains that the trial court erroneously allowed the
prosecutor to introduce prior consistent statements to bolster Ms.
(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).
exhausted but are procedurally barred from federal habeas corpus
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
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.
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).
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.
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.
(Pet. at 13-17).
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
“‘[N]ewly discovered evidence only warrants habeas relief
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)).
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.
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.
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
(Pet. at 19).
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
That is the appropriate course here.
In order to make out a claim for constitutionally ineffective
“‘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
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
“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
The decisions whether to cross-examine a witness
and “to what extent and in what manner, are . . . strategic in
Dunham v. Travis, 313 F.3d 724, 732 (2d Cir. 2002)
Nothing in the record could have indicated to Ms. Moleterri that
Ms. Peng would not identify the petitioner as the man who committed
Thus, it was sound strategy for her not to risk
having Ms. Peng confirm Ms. Spiegel’s identification testimony.
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
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.
AMES C. FRANCIS IV
ITED STATES MAGISTRATE JUDGE
New York, New York
May 22, 2014
Copies mailed this date to:
Great Meadow Correctional Facility
P.O. Box 51
Comstock, New York 12821
Joanna Hershey, Esq.
Assistant Attorney General
Office of the Attorney General
New York, New York 10271
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?