Alston v. Racette et al

Filing 23

OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION: For the foregoing reasons, the Report is adopted in full, and the Petition is DENIED. The Clerk of Court is directed to mark the case as closed. Since Petitioner has not made a substantial showi ng of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c). Pursuant to 28 U.S.C. § 1915(a)(3), any appeal from this Order would not be taken in good faith and therefore in forma paup eris status is denied for the purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court shall dismiss the Petition and close the case. (Signed by Judge Katherine Polk Failla on 9/9/2014) Copies Mailed By Chambers. (tn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
DONNELL ALSTON,
:
:
Petitioner,
:
:
v.
:
:
SUPERINTENDENT STEVEN RACETTE,
:
:
Respondent. :
:
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: September 9, 2014
______________

13 Civ. 4392 (KPF) (JCF)
OPINION AND ORDER
ADOPTING REPORT AND
RECOMMENDATION

KATHERINE POLK FAILLA, District Judge:
Petitioner Donnell Alston (“Petitioner”), who is proceeding pro se and is
currently incarcerated, filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 (the “Petition” or “Pet.”) on June 24, 2013, against
Superintendent Steven Racette of the Great Meadow Correctional Facility in
Comstock, New York. In it, Petitioner seeks review of his New York State
Supreme Court conviction for Robbery in the First Degree, in violation of New
York Penal Law § 160.15(4). United States Magistrate Judge James C. Francis
IV issued a Report and Recommendation dated May 22, 2014 (the “Report”),
recommending that the Petition be denied. The Court has considered both the
Report and Petitioner’s July 7, 2014 Objection to the Report (the “Objection” or

“Obj.”), and finds that the Report should be adopted in full.1 Accordingly, the
Petition is denied.
BACKGROUND
The facts and procedural history of the instant action are set forth in the
Report. (See Dkt. #16). Nonetheless, a brief summary of the relevant facts is
useful to this Court’s analysis.
Petitioner was arrested on May 11, 2006, in connection with a November
26, 2005 robbery of a retail store named Funtiques. (Report 1-3). Petitioner
was identified as a suspect based upon fingerprints lifted from the scene, as
well as an eyewitness identification at a line-up. (Id. at 3). Trial commenced
on April 18, 2007, and a mistrial was declared on April 20, 2007, after the jury
was unable to reach a unanimous verdict. (Id.). A second jury trial began on
September 24, 2007, after which Petitioner was found guilty of Robbery in the
First Degree, in violation of New York Penal Law § 160.15(4).
The prosecution’s evidence was as follows: Amy Spiegel was the sole
employee on duty at Funtiques on November 26, 2005. A man whom Spiegel
identified at trial as Petitioner visited the store on two separate occasions that
day to inspect jewelry for his wife; he gave his name as “Donnell.” (Report 1-3).
The man left the store, and returned a third time to look again at the jewelry.

1

The Court has also considered Respondent’s timely-filed opposition to the Objection,
dated July 31, 2014. (See Dkt. #21). Petitioner filed a reply to Respondent’s opposition
dated August 19, 2014. (Dkt. #22). However, that reply was neither sanctioned nor
timely filed. Accordingly, the Court rejects that submission. The Court reviewed the
reply submission in order to raise pro se Petitioner’s strongest arguments, but found
that the submission reasserted arguments raised in the Objection, as well as asserted
new arguments not properly before this Court; thus, it need not be considered here.

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(Id.). At that time, the only other people in Funtiques were Spiegel and a
customer named Christine Peng. (Id. at 3, 6). Spiegel testified that Petitioner
grabbed some jewelry, ordered her to get down on the ground, and “pushed
forward” what appeared to be a gun. (Id. at 3).
The prosecution introduced evidence from a fingerprint analyst with the
New York City Police Department; the analyst testified that the fingerprints she
had lifted from the jewelry case, which were later tied to Petitioner, were
“fresh.” (Report 5-6). The trial court judge instructed the jury to disregard the
officer’s testimony to the extent it suggested the fingerprints were left recently,
though it did not declare a mistrial. (Id.). Peng also testified, but was not
asked to identify Petitioner as the suspect at trial, nor was she cross-examined
by the defense. (Id. at 6). Petitioner was subsequently found guilty. On April
1, 2008, Petitioner was adjudicated a persistent felony offender pursuant to
New York Penal Law § 70.10, and sentenced an indeterminate term of 20 years’
to life imprisonment. (Id. at 7).
At a subsequent hearing, defense counsel reported to the trial court that
Peng had contacted counsel to inform her that Peng did not believe Petitioner
was the man she had seen in Funtiques that day. (Report 6-7). Petitioner
moved to vacate his sentence on May 18, 2009, pursuant to New York Criminal
Procedure Law § 440.10, arguing that Peng’s statements constituted newlydiscovered evidence and that he had been deprived of the effective assistance of
counsel as a result of his prior counsel’s failure to investigate. (Id. at 8). The
trial court held a hearing thereafter, at which Peng testified that during the
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attempted robbery, she had seen only three quarters of the perpetrator’s face
for a moment, and had done so only after he had ordered her to get down on
the floor. (Id.).
Petitioner’s § 440.10 motion was ultimately denied on September 24,
2010. (Report 9). In an 18-page opinion, the state trial court found that Peng’s
testimony did constitute newly-discovered evidence, and that trial
counsel — though remiss in his failure to investigate — had not been
constitutionally ineffective. (Id.). The court also determined that Peng’s
testimony did not create a probability of acquittal, in light of her admittedly
limited opportunity to view the perpetrator’s face, in contrast with Spiegel’s
opportunity to see Petitioner on the day of the robbery for an “extremely long
period of time.” (Id. at 9-10). Moreover, the court noted, Spiegel testified that
Petitioner had identified himself as “Donnell” prior to returning to the store for
the robbery. (Id.).
Petitioner sought leave to appeal the court’s ruling on the § 440.10
motion, and on November 23, 2010, the Appellate Division granted his
application and directed that the appeal be consolidated with Petitioner’s direct
appeal. (Report 11). The Appellate Division unanimously affirmed Petitioner’s
conviction and the denial of his § 440.10 motion on January 5, 2012. People v.
Alston, 936 N.Y.S.2d 41, 42 (1st Dep’t 2012). Petitioner was denied leave to
appeal to the New York Court of Appeals by decision dated March 26, 2012.
People v. Alston, 944 N.Y.S.2d 483 (2012).

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THE STANDARD OF REVIEW
A court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by a magistrate judge. See 28 U.S.C. § 636(b)(1); Fed.
R. Civ. P. 72(b); Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989). A court may
accept those portions of a report to which no “specific, written objection is
made,” as long as the factual and legal bases supporting the findings are not
clearly erroneous. See Greene v. WCI Holdings Corp., 956 F. Supp. 509, 513
(S.D.N.Y. 1997) (quoting Fed. R. Civ. P. 72(b)); see also Thomas v. Am, 474 U.S.
140, 149 (1985). A magistrate judge’s decision is clearly erroneous only if the
district court is “left with the definite and firm conviction that a mistake has
been committed.” Easley v. Cromartie, 532 U.S. 234, 235, 242 (2001) (quoting
United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
To the extent that a petitioner makes specific objections to a magistrate
judge’s findings, the reviewing court must undertake a de novo review of the
objections. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); United States v.
Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). Pro se filings are read liberally
and interpreted “to raise the strongest arguments that they suggest.” Pabon v.
Wright, 459 F.3d 241, 248 (2d Cir. 2006) (internal quotation marks and citation
omitted). However, where objections are “conclusory or general,” or where the
petitioner “simply reiterates his original arguments,” the report should be
reviewed only for clear error. Walker v. Vaughan, 216 F. Supp. 2d 290, 292
(S.D.N.Y. 2002) (internal quotation marks and citation omitted).

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DISCUSSION
A.

Petitioner’s Grounds for Habeas Relief
Petitioner raises three grounds for habeas relief: (i) the trial court

committed various evidentiary errors, thereby depriving him of a fair trial in
violation of the Sixth and Fourteenth Amendments; (ii) Peng’s testimony raised
a reasonable probability that he would have been acquitted; and (iii) Petitioner
was deprived of the effective assistance of counsel at trial because his counsel
failed to cross-examine Peng. (Petition 6-18).
B.

The Report
Judge Francis thoroughly considered and rejected each of these grounds

for relief. First, Judge Francis found that Petitioner had failed to exhaust his
state court remedies with respect to his evidentiary claims, since he did not
seek leave to appeal the Appellate Division’s determination of these issues.
(Report 17). Second, Judge Francis determined, in line with the two other New
York State courts to have considered this very issue, that Peng’s testimony did
not create a reasonable likelihood that Petitioner would have been acquitted,
given the strength of the other eyewitness testimony presented at trial. (Id. at
18-19). Lastly, Judge Francis held that Petitioner had not been deprived of the
effective assistance of counsel, since decisions regarding whether to crossexamine a witness are ‘“strategic in nature’” and well within an objective
standard of reasonableness. (Id. at 21 (quoting Dunham v. Travis, 313 F.3d
724, 732 (2d Cir. 2002))).

6

Petitioner challenges Judge Francis’s determinations as to each of the
three grounds for relief, yet does so by largely reiterating the same arguments
raised before, and rejected by, Judge Francis. Where appropriate, the Court
has reviewed Petitioner’s claims de novo and finds no error in Judge Francis’s
careful and thorough decision.
C.

Review of Petitioner’s Claims
1.

Evidentiary Claim

Petitioner reasserts his arguments going to the merits of his evidentiary
claims, but fails to discuss the Report’s finding that Petitioner had failed to
exhaust his state court remedies with respect to these claims. (Compare
Report 17 with Obj. 12 (discussing the reliability of fingerprint and eyewitness
evidence generally, and disputing the trial court’s evidentiary rulings on this
basis)). The Report first noted that state court evidentiary rulings are not
properly raised in federal habeas corpus petitions unless the rulings were so
erroneous to have deprived Petitioner of a fair trial. (Report 16 (citing Collins v.
Artus, No. 08 Civ. 1936 (PKC) (JCF), 2009 WL 2633636, at *4 (S.D.N.Y. Aug.
26, 2009) (noting that state evidentiary rulings are generally a matter of state
law not subject to habeas review))).
The Report did not reach that issue, however, because Petitioner had not
sought leave to appeal his evidentiary claims to the New York Court of Appeals,
and the Court thus had no jurisdiction to consider those claims. (Report 1718). As Judge Francis found, the merits of a procedurally defaulted claim may
not be reviewed by a federal court unless the petitioner shows cause for the
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default and actual prejudice resulting from it, or that failure to consider the
defaulted claim would result in a “fundamental miscarriage of justice.” (Id.
(quoting Coleman v. Thompson, 501 U.S. 722, 749-50 (1991); citing Murray v.
Carrier, 477 U.S. 478, 496 (1986) (fundamental miscarriage of justice exception
requires showing of actual innocence))). Petitioner had also failed to offer a
reason for the failure to assert his evidentiary claims on appeal, and has
instead submitted arguments that go more to the sufficiency of the evidence
than to his actual innocence. (Id. at 18). Petitioner’s Objection cures neither
defect. Accordingly, the Court has reviewed the Report for clear error and finds
there to be none.
2.

Newly-Discovered Evidence Claim

Petitioner raises several objections to the Report with respect to this
claim, none of which is meritorious. First, Petitioner contends that Judge
Francis failed to “conduct a critical analysis of the evidence,” principally by
“ignor[ing] the fundamental inconsistencies” in an eyewitness’s testimony.
(Obj. 3; see also id. at 5-6 (discussing reliability of eyewitness testimony
generally)). Quite simply, “[a] habeas corpus petition is not a vehicle to
relitigate every issue previously determined in state court.” Garcia v. Burge,
No. 07 Civ. 2974 (HB) (FM), 2009 WL 102142, at *4 (S.D.N.Y. Jan. 15, 2009)
(citing Herrera v. Collins, 506 U.S. 390, 401 (1993)). Petitioner made no claims
with respect to the reliability of Spiegel’s testimony in his Petition, and Judge
Francis was under no obligation — and was indeed precluded from —
conducting a “critical analysis of the evidence” on this basis.
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Next, Petitioner reasserts his arguments with respect to the newlydiscovered evidence, arguing that it raised a reasonable likelihood of acquittal.
(See Obj. 4-8). In this regard, Petitioner largely reiterates the arguments
considered by Judge Francis. Nonetheless, the Court has reviewed the claim
de novo and determines that it must be rejected. This Court is now the fourth
court to consider whether Peng’s testimony raised a reasonable probability of
an acquittal. The state trial court held a hearing on the issue, at which it had
the opportunity to judge Peng’s credibility and weigh the sufficiency of her
testimony in comparison with the other evidence adduced at trial. (Report 911). The court went on to issue an 18-page decision finding that Peng’s
testimony did not raise a reasonable likelihood of acquittal. (Id.). Its decision
was affirmed by the Appellate Division, and reviewed again by Judge Francis.
(Id. at 11-12). Judge Francis noted the many reasons why Peng’s testimony
failed to raise a reasonable likelihood of acquittal, namely that (i) Spiegel had a
better opportunity, over a longer time period, to identify Petitioner; (ii) Spiegel
testified that Petitioner identified himself by name on the day of the robbery;
and (iii) there was fingerprint evidence linking Petitioner to Funtiques. (Id. at
19).
More importantly, Petitioner has failed to demonstrate that he suffered
an independent constitutional violation in his state court criminal proceeding,
as is required to make out a claim for habeas relief. Herrera, 506 U.S. at 400
(“Claims of actual innocence based on newly discovered evidence have never
been held to state a ground for federal habeas relief absent an independent
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constitutional violation occurring in the underlying state criminal proceeding.”
(internal citation omitted)). Accordingly, this claim provides no basis for
habeas relief.
3.

Ineffective Assistance of Counsel Claim

Lastly, Petitioner raises only perfunctory and conclusory objections to
the Report’s finding that he was not deprived of ineffective assistance of
counsel. (See Obj. 8 (“trial counsel, provide ineffective assistance when she
chose not to cross-examine Ms. Peng”); see also id. (“However, I disagree with
the R&R decision”)). The Court has accordingly reviewed the Report for clear
error and finds none.
A petitioner alleging ineffective assistance of appellate counsel must
prove both that appellate counsel was objectively unreasonable in failing to
raise a particular issue on appeal, and that absent counsel’s deficient
performance in omitting certain claims or failing to adequately argue claims
that were raised, there is a reasonable probability that the petitioner’s appeal
would have been successful. Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.
1994) (citing Strickland v. Washington, 466 U.S. 668, 688 (1984)).
Preliminarily, Petitioner failed to exhaust his ineffectiveness claim and this
Court may not consider the issue as a result.2 More importantly, even if the
Court had jurisdiction to review this claim, Judge Francis correctly noted that

2

Petitioner asserts for the first time in his Objection that his counsel’s failure to
introduce expert testimony at trial regarding the reliability of fingerprint evidence
constituted ineffective assistance of counsel. (Obj. 9-11). This newly-asserted claim is
plainly not exhausted and not properly before this Court.

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decisions regarding whether to cross-examine a witness are ‘“strategic in
nature’” and well within an objective standard of reasonableness. (Id. at 21
(quoting Dunham, 313 F.3d at 732)). See generally Strickland, 466 U.S. at 69091 (“strategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable; and strategic
choices made after less than complete investigation are reasonable precisely to
the extent that reasonable professional judgments support the limitations on
investigation”). Counsel’s failure to cross-examine a witness did not constitute
ineffective assistance of counsel, and cannot form a ground for habeas relief.
CONCLUSION
For the foregoing reasons, the Report is adopted in full, and the Petition
is DENIED. The Clerk of Court is directed to mark the case as closed.
Since Petitioner has not made a substantial showing of the denial of a
constitutional right, a certificate of appealability will not issue. See 28 U.S.C.
§ 2253(c). Pursuant to 28 U.S.C. § 1915(a)(3), any appeal from this Order
would not be taken in good faith and therefore in forma pauperis status is
denied for the purpose of any appeal. Coppedge v. United States, 369 U.S. 438,
444-45 (1962). The Clerk of Court shall dismiss the Petition and close the
case.
SO ORDERED.
Dated: September 9, 2014
New York, New York
A copy of this Order was mailed by Chambers to:
Donnell Alston
08A2925
Greatmeadow Correctional Facility
P.O. Box 51
Comstock, NY 12821

__________________________________
KATHERINE POLK FAILLA
United States District Judge
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