Green v. Lee

Filing 15

REPORT AND RECOMMENDATION. Accordingly, for all the foregoing reasons, I respectfully recommend that the petition be denied in all respects. In addition, because petitioner has not made a substantial showing of the denial of a constitutional right, I also recommend that a certificate of appealability not be issued. 28 U.S.C. § 2253. To warrant the issuance of a certificate of appealability, "petitioner must show that reasonable jurists could debate whether... the petition should have b een resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Middleton v. Attorneys Gen., 396 F.3d 207, 209 (2d Cir. 2005) (per curiam) (internal quotation marks and citation omitted , ellipsis in original); see also Love v. McCray, 413 F.3d 192, 195 (2d Cir. 2005) (per curiam). For the reasons set forth above, I conclude that there would be no difference of opinion among reasonable jurists that petitioner's federal rights w ere not violated. I further recommend that certification pursuant to 28 U.S.C. § 1915(a)(3) not be issued because any appeal from this Report and Recommendation, or any Order entered thereon, would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 445 (1962). re: 1 Petition for Writ of Habeas Corpus filed by Michael Green. Objections to R&R due by 1/25/2016. (Signed by Magistrate Judge Henry B. Pitman on 1/8/2016) Copies Mailed By Chambers. (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------X
MICHAEL GREEN,

:
Petitioner,

WILLIAM LEE,

14 Civ. 6344 (KPF)(HBP)

:

-against-

:

REPORT AND
RECOMMENDATION

:
Respondent.

:

-----------------------------------X

PITMAN, United States Magistrate Judge:

TO THE HONORABLE KATHERINE POLK FAILLA, United States
District Judge,

I.

Introduction

Petitioner, Michael Green, seeks, by his pro se petition, a writ of habeas corpus pursuant to 28 U.S.C. § 2254
vacating a judgment of conviction entered on October 19, 2009,
after a jury trial, by the Supreme Court of the State of New
York, New York County (Stone, J.), for one count of burglary in
the second degree, in violation of New York Penal Law Section
140.25(2).

Pursuant to that judgment, petitioner was sentenced

as a persistent violent felony offender to an indeterminate term
of imprisonment of twenty years to life.
incarcerated pursuant to the judgment.

Petitioner is currently

For the reasons set forth below, I respectfully recommend that the petition be denied.

II.

Facts

A.

Facts Giving Rise to
Petitioner's Conviction

The evidence offered at trial established the following
facts.
In the early afternoon of January 2, 2009, Kristy Eko
was in her bedroom with her fiancé, Chris Peins, in her Manhattan
apartment.

Eko was watching television while her fiancé slept.

Eko saw petitioner walk through her apartment, enter the bedroom
and approach her jewelry box.1

Eko woke up Peins as petitioner

was reaching for Eko's jewelry box, and petitioner ran from the
apartment, pursued by Peins.

Peins did not see petitioner in the

hallway outside the apartment, and Peins ran down the stairs to
the lobby.

Eko in the meantime called the lobby, spoke to the

building's handyman, who was standing in for the doorman, and
described what had happened.

After speaking with Eko, the

handyman checked a security monitor and observed an unfamiliar
individual, who turned out to be petitioner, in the building's

1

Peins had failed to lock the apartment's door after
bringing trash to the compactor chute earlier that day.
2

elevator.

The handyman questioned petitioner as he stepped off

the elevator and accompanied petitioner as he exited the building.

At that point, Peins exited the stairway and saw the

handyman and petitioner outside the building.

Peins and the

handyman then physically detained petitioner.

The handyman

subsequently called 911 while Peins held petitioner.
A few minutes later, several police officers arrived
and handcuffed petitioner.

The police interviewed Peins, the

handyman and Eko in the lobby of the building.

At one point, a

police officer gestured toward petitioner and asked Eko if
petitioner was the man she had seen in her apartment.
answered that he was.

B.

Eko

Petitioner was subsequently arrested.

State Court
Proceedings

Prior to trial, the Trial Court held a hearing pursuant
to Dunaway v. New York, 442 U.S. 200 (1979), and United States v.
Wade, 388 U.S. 218 (1967), to determine, respectively, whether
there was probable cause to arrest petitioner and whether Eko's
identification of petitioner as the perpetrator had been unduly
suggestive.

After hearing testimony from the police officer who

arrested petitioner, the Trial Court concluded that there was
probable cause for petitioner's arrest based on Peins's state-

3

ments to the police (H. Tr.2 73).

The Court also concluded that

Eko's identification of petitioner was not suggestive (H. Tr. 7475).
Assisted by counsel, petitioner appealed his conviction
to the Appellate Division of the Supreme Court for the First
Department.

Petitioner's appeal asserted six claims:

(1) the

District Attorney's charge to the grand jury on the elements of
burglary destroyed the integrity of the grand jury; (2) the Trial
Court improperly failed to require the prosecutor to proceed on a
single theory of burglary; (3) the prosecutor's closing argument
improperly shifted the burden of proof to petitioner and appealed
to the jury's fears; (4) the Trial Court failed to respond
properly to a question from the jury; (5) the Trial Court improperly failed to hold a pretrial hearing pursuant to People v.
Huntley, 15 N.Y.2d 72, 204 N.E.2d 179, 255 N.Y.S.2d 838 (1965),
to assess the voluntariness of petitioner's post-arrest statements; (6) the Trial Court erred in concluding that the pretrial
identification procedures were not suggestive (Brief for
Defendant-Appellant, undated (D.I. 13), at SR 3-4).

2

The Appel-

Respondent has submitted all relevant portions of the state
court record as a single filing, to wit, Docket Item ("D.I.") 13.
"H. Tr.," "T. Tr." refer to the transcript of the pretrial
hearing and petitioner's trial, respectively. Both of these
transcripts have been filed in this Court as part of D.I. 13.
4

late Division rejected all of petitioner's claims on April 23,
2013.

People v. Green, 105 A.D.3d 611, 963 N.Y.S.2d 257 (1st

Dep't 2013).
Petitioner sought leave to appeal to the New York Court
of Appeals asserting the same claims he raised before the Appellate Division.

The Court of Appeals denied leave to appeal on

July 31, 2013.

People v. Green, 21 N.Y.3d 1015, 994 N.E.2d 394,

971 N.Y.S.2d 498 (2013).
Shortly before filing his petition in this Court,
petitioner filed a motion in New York State Supreme Court seeking
to vacate his conviction pursuant to N.Y. Crim. Proc. L. §
440.10.

That motion asserted five claims:

(1) petitioner was

arrested without probable cause; (2) the Trial Court lacked
personal and subject matter jurisdiction because the complaining
witnesses did not sign affidavits in support of the criminal
complaint and the arresting officer did not verify the complaint;
(3) petitioner was deprived of his right to a preliminary hearing
and thereby denied due process; (4) the complaining witnesses
committed perjury before the grand jury; (5) petitioner is
actually innocent because the evidence was legally insufficient
to establish petitioner's guilt (Petitioner's Affirmation in
Support of Motion, dated July 24, 2014 (D.I. 13), at SR 181-97).

5

In response, the prosecution argued that the motion
should be denied because the claims were procedurally barred and,
in any event, meritless.

The prosecution first argued that the

claims were procedurally barred pursuant to N.Y. Crim. Proc. L. §
440.10(2)(b) and (c)3 because petitioner was aware of the bases
for these claims at the time of his direct appeal and failed to
raise them at that time.

In addition, the prosecution argued

that (1) the evidence presented at the Wade/Dunaway hearing

3

Section 440.10(2)(b) and (c) provide:
Notwithstanding the provisions of subdivision one,
the court must deny a motion to vacate a judgment when:
*

*

*

(b) The judgment is, at the time of the motion,
appealable or pending on appeal, and sufficient
facts appear on the record with respect to the
ground or issue raised upon the motion to permit
adequate review thereof upon such an appeal. This
paragraph shall not apply to a motion under
paragraph (i) of subdivision one of this section;
or
(c) Although sufficient facts appear on the record
of the proceedings underlying the judgment to have
permitted, upon appeal from such judgment,
adequate review of the ground or issue raised upon
the motion, no such appellate review or
determination occurred owing to the defendant's
unjustifiable failure to take or perfect an appeal
during the prescribed period or to his
unjustifiable failure to raise such ground or
issue upon an appeal actually perfected by him . .
. .
6

established that there was adequate probable cause for petitioner's arrest; (2) because the petitioner was prosecuted on an
indictment, there was no need for the complainants to sign
depositions in support of the felony complaint; (3) the jurisdictional claim failed because there was no flaw in the complaint
and, in any event, petitioner's indictment mooted any claim
concerning the sufficiency of the criminal complaint; (4) as a
matter of law, the denial of a preliminary hearing did not
constitute a denial of due process; (5) the absence of signed
depositions before the grand jury was immaterial because the
complaining witnesses actually testified before the grand jury
and (6) the actual innocence claim failed because it was based on
the victims' failure to sign depositions and the failure of the
prosecution to offer evidence that petitioner actually stole
property, neither of which established petitioner's innocence
(Affirmation in Response to the Defendant's CPL § 440.10 Motion,
dated Aug. 22, 2014 (D.I. 13), at SR 210-16).
The Trial Court rejected petitioner's 440.10 motion on
October 29, 2014.

The Court found that all of petitioner's

claims were either procedurally barred and/or lacked merit.
Petitioner argues that the arresting officer
lacked probable cause to arrest him. The only suppression issue litigated previously concerned the pre-trial
identification issue. Any other suppression issue is
procedurally barred now because petitioner did not
7

raise it previously. In any event, petitioner has not
identified any suppression issue arising from his
factually unsupported assertion that he was arrested
without probable cause.
Petitioner contends that the trial court lacked
both in personam and subject matter jurisdiction because the complainants did not sign supporting depositions to support the felony complaint and because the
arresting officer did not verify the complaint. These
arguments are also procedurally barred because they
could have been raised on direct appeal, CPL
440.10[2][c]; People v. Cooks, 67 NY2d 100, 103-104
[1986], and are without merit. The arresting officer
signed the felony complaint, which contained a notice
that "false statements made herein are punishable as
class A misdemeanors," thus properly verifying the
complaint, CPL 100.30[1][d], and there is no requirement that complainants sign supporting depositions when
they have testified before the grand jury.
Petitioner further argues that the absence of
supporting depositions signed under the penalty of
perjury means that the complainants' grand jury testimony was perjured. This contention is procedurally
barred CPL 440.10[2][c]; People v. Cooks, supra, and
petitioner has provided no facts showing that any
testimony was untruthful.
Petitioner finally alleges that he is actually
innocent of the burglary charge. Petitioner has supplied no factual allegations supporting this claim and
no hearing is required. CPL 440.30[1][a], [4][b]. To
the extent that petitioner argues he is innocent of
burglary because no property was taken from the complainants, all that is required to commit burglary is
the intent to commit a crime in the premises. PL
§140.25; People v. Lewis, 5 NY3d 546 [2005].
Petitioner's motion is hereby denied in all respects.
(Decision and Order, dated Oct. 29, 2014 (D.I. 13), at SR 237-39
(footnote omitted)).
8

Petitioner sought leave to appeal the denial of his
440.10 motion to the Appellate Division (Notice of Application
and Affirmation in Support of Application, dated Dec. 12, 2014
(D.I. 13), at SR 240-47).

The Appellate Division denied leave to

appeal on March 19, 2015.

People v. Green, M-397, Ind. No.

114/2009 (1st Dep't Mar. 11, 2015) (reported at http:
//www.courts.state.ny.us/courts/AD1/calendar/appsmots/2015/March/
2015_03_19_mot.pdf (last visited Jan. 5, 2016)).
In his petition to this Court, petitioner appears to be
asserting the same claims he asserted in his 440.10 motion except
for his claim concerning the denial of a preliminary hearing
(Petition, dated July 26, 2014 (D.I. 1), at ¶ 13).4

4

Petitioner states his claims as follows:
(1) Probable cause of warrantless arrest by police of
the petitioner['s] did not exist to charge him of
burglary (2) the petitioner rights were violated where
he was arraigned absent jurisdiction (3) the integrity
of the grand jury were impaired of fraud by the people
[sic] who violate[d] due process of petitioner (4)
petitioner was actually innocent of the charge of
burglary and have [sic] not committed any felonious act
warranted [sic] his restriction of liberty (5) the
prosecutor have [sic] not established every element of
the offense charge of burglary in violation of
petitioner's 14th Amendment [sic].

(Petition, dated July 26, 2014 (D.I. 1), at ¶ 13).
9

III.

Analysis

A.

Procedurally
Barred Claims

A claim asserted in a habeas corpus petition may be
procedurally barred if (1) the claim has not been asserted in
state court proceedings in accordance with state procedural
requirements and (2) the state courts rely on that violation of
state procedural requirements to reject the claim.

As the Court

of Appeals for the Second Circuit has explained:
The independent and adequate state ground doctrine
first arose in the context of direct appeals to the
Supreme Court from final judgments of the state courts.
Under that doctrine the Supreme Court "will not review
a question of federal law decided by a state court if
the decision of that court 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, 111 S. Ct. 2546, 115 L.Ed.2d 640
(1991). Moreover, "[t]his rule applies whether the
state law ground is substantive or procedural." Id.
*

*

*

The doctrine also applies in the context of federal courts reviewing applications for a writ of habeas
corpus . . . . [I]nvoking principles of comity and
federalism . . . federal habeas courts faced with an
independent and adequate state ground of decision defer
in the same manner as does the Supreme Court on direct
review.
Garcia v. Lewis, 188 F.3d 71, 76 (2d Cir. 1999); see also Beard
v. Kindler, 558 U.S. 53, 55 (2009) ("A federal habeas court will

10

not review a claim rejected by a state court if the decision of
[the state] court rests on a state law ground that is independent
of the federal question and adequate to support the judgment."
(internal quotation marks omitted and brackets in original));
Cone v. Bell, 556 U.S. 449, 465 (2009) (same); Bierenbaum v.
Graham, 607 F.3d 36, 47 (2d Cir. 2010) (same); Cotto v. Herbert,
331 F.3d 217, 238 (2d Cir. 2003); Rhagi v. Artuz, 309 F.3d 103,
106 (2d Cir. 2002) (per curiam) ("[I]t is settled law that an
independent and adequate state law ground for a state court
conviction cannot be disturbed on habeas."), citing Coleman v.
Thompson, 501 U.S. 722, 729-31 (1991); Brown v. State of New
York, 04-CV-1087 (NG)(VVP), 2006 WL 3085704 at *2 (E.D.N.Y. Oct.
30, 2006) ("When a habeas corpus petitioner defaults a federal
claim in state court . . . by failing to preserve the claim for
state appellate review . . . , the independent and adequate state
ground doctrine bars federal habeas corpus review."); Rivera v.
Moscicki, 03 Civ. 5810 (SAS), 2005 WL 2347840 at *2 (S.D.N.Y.
Sept. 22, 2005) (Scheindlin, D.J.) ("A federal court generally
may not review a state court decision that expressly relies on a
procedural default as an independent and adequate state ground
for dismissal.").
Dismissal of a claim on the ground that consideration
of the merits is precluded by an adequate and independent state
11

procedural ground is appropriate where the last reasoned state
court decision expressly relies on a state procedural bar:
In Harris [v. Reed, 489 U.S. 255 (1989)], the Court
held that "a procedural default does not bar consideration of a federal claim on either direct or habeas
review unless the last state court rendering a judgment
in the case clearly and expressly states that its
judgment rests on a state procedural bar." Harris, 489
U.S. at 263, 109 S. Ct. 1038 (internal quotation marks
omitted). We apply the Long/Harris presumption to the
last "reasoned state judgment" . . . . See Ylst v.
Nunnemaker, 501 U.S. 797, 803, 111 S. Ct. 2590, 115
L.Ed.2d 706 (1991).
Jones v. Stinson, 229 F.3d 112, 118 (2d Cir. 2000); see also
Galarza v. Keane, 252 F.3d 630, 637 (2d Cir. 2001) ("We have
repeatedly stated that in order for federal habeas review to be
procedurally barred, a state court must actually have relied on a
procedural bar as an independent basis for its disposition of the
case, and the state court's reliance on state law must be unambiguous and clear from the face of the opinion.").
"Even where the state court has ruled on the merits of
a federal claim 'in the alternative,' federal habeas review is
foreclosed where the state court has also expressly relied on the
petitioner's procedural default."

Murden v. Artuz, 497 F.3d 179,

191 (2d Cir. 2007), quoting Green v. Travis, 414 F.3d 288, 294
(2d Cir. 2005); accord Harris v. Reed, 489 U.S. 255, 264 n.10
(1989); Galmadez v. Keane, 394 F.3d 68, 77 (2d Cir. 2005); Glenn
v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996).
12

However, even where the last reasoned decision of the
state court expressly rejects a federal constitutional claim on a
state procedural ground, federal habeas corpus review will not be
precluded if (1) the state procedural ground is not independent
and adequate, see Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir.
2006); Monroe v. Kuhlman, 433 F.3d 236, 241-42 (2d Cir. 2006);
Cotto v. Herbert, supra, 331 F.3d at 238-39; (2) there is cause
for and prejudice from petitioner's failure to assert his claims
in accordance with state procedural law or (3) a failure to
consider the claim would result in a fundamental miscarriage of
justice.

Schlup v. Delo, 513 U.S. 298, 318-22, 324-27 (1995);

Coleman v. Thompson, supra, 501 U.S. at 748-50; Harris v. Reed,
supra, 489 U.S. at 262; Green v. Travis, supra, 414 F.3d at 294.
A state law bar is not "adequate" when it is not
"firmly established and regularly followed . . . or . . . despite
being firmly established, [there] was an exorbitant application
of a generally sound rule."

Wright v. Duncan, 500 F. App'x 36,

37 (2d Cir. 2012) (summary order) (internal quotation marks and
citations omitted).

The Court of Appeals for the Second Circuit

has, however, expressly and repeatedly held that the provisions
of New York Criminal Procedure Law Section 440.10(2)(c) precluding a defendant from mounting a collateral attack in state court
on the basis of claims that could have been raised on direct
13

appeal is an adequate and independent ground to deny federal
habeas review.

Clark v. Perez, 510 F.3d 382, 393 (2d Cir. 2008)

("We conclude that the district court erred in holding that the
state court's application of section 440.10(2)(c) did not constitute an adequate state procedural bar to Clark's federal habeas
petition."); Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001)
("[T]here can be no doubt that the state court's decision on
[p]etitioner's . . . claim rested on an adequate and independent
state bar" where petitioner failed to raise his claim on direct
appeal in accordance with § 440.10(2)(c).); accord Nelson v. New
York, 10 Civ. 9021 (KPF)(HBP), 2014 WL 4449774 at *20 (S.D.N.Y.
Sept. 10, 2014) (Failla, D.J., adopting Report and Recommendation
of Pitman, M.J.); Felton v. Mazzuca, 98 Civ. 4567 (RJS), 2012 WL
4462009 at *7 (S.D.N.Y. Sept. 27, 2012) (Sullivan, D.J.); see
also Davis v. Mantello, 42 F. App'x 488, 490 (2d Cir. 2002)
(summary order).
A habeas petitioner can establish "cause" by showing
that "some objective factor, external to Petitioner's defense,
interfered with his ability to comply with the state's procedural
rule."

Gutierrez v. Smith, 702 F.3d 103, 111 (2d Cir. 2012).

A

habeas petitioner can establish prejudice by showing that "[t]he
error must have resulted in 'substantial disadvantage, infecting
[the] entire trial with error of constitutional dimensions.'"
14

Gutierrez v. Smith, supra, 702 F.3d at 112 (brackets in original), quoting Murray v. Carrier, 477 U.S. 478, 494 (1986).
Finally, to establish a fundamental miscarriage of
justice, a habeas petitioner must show that a constitutional
violation probably resulted in his conviction despite his actual
innocence.

United States v. Olano, 507 U.S. 725, 736 (1993) ("In

our collateral-review jurisprudence, the term 'miscarriage of
justice' means that the defendant is actually innocent."); Sweet
v. Bennett, 353 F.3d 135, 141 (2d Cir. 2003) ("A habeas petitioner may avoid [a procedural] default . . . by showing . . .
that failure to consider the claim will result in miscarriage of
justice, i.e., the petitioner is actually innocent."); accord
Johnson v. Bellnier, 508 F. App'x 23, 25 (2d Cir. 2013) (summary
order); Sanchez v. Lee, 508 F. App'x 46, 48 (2d Cir. 2013)
(summary order).
The Trial Court expressly relied on N.Y. Crim. Proc. L.
§ 440.10(2)(c) to deny the claims in petitioner's 440.10 motion
concerning the Trial Court's purported lack of personal and
subject matter jurisdiction and perjury before the grand jury.
Petitioner does not even attempt to show cause for or prejudice
from his failure to assert these claims in conformity with New
York's procedural requirements, and his conclusory claim of
actual innocence, with no supporting evidence whatsoever, is
15

insufficient to overcome the procedural bar.

Schlup v. Delo, 513

U.S. 298, 329 (1995) (In order to overcome a procedural bar on
the basis of actual innocence, a petitioner must "persuade[] the
district court that, in light of the new evidence, no juror,
acting reasonably, would have voted to find him guilty beyond a
reasonable doubt."); accord McQuiggin v. Perkins, 569 U.S. ---,
--- 133 S.Ct. 1924, 1928 (2013).
Thus, petitioner's claim that the Trial Court lacked
personal and subject matter jurisdiction and his claim alleging
perjury before the Grand Jury fail because they are procedurally
barred.

B.

Petitioner's Fourth
Amendment Claim Is
Barred by Stone v.
Powell and its Progeny

Petitioner's claim that his arrest was not supported by
probable cause is barred by Stone v. Powell, 428 U.S. 465 (1976),
and its progeny.
The Fourth Amendment to the United States Constitution
is the source of federal protection against baseless arrests; the
Fourth Amendment requires that there be probable cause to believe
that an individual has committed a crime before that individual
can be arrested.

Devenpeck v. Alford, 543 U.S. 146, 152 (2004);

16

Gerstein v. Pugh, 420 U.S. 103, 111-12 (1975).

Thus, peti-

tioner's false arrest claim is a Fourth Amendment claim.

See,

e.g., Edwards v. Fischer, 01 Civ. 9397 (LAK)(THK), 2002 WL
31833237 at *2 (S.D.N.Y. Dec. 16, 2002) (Katz, M.J.).

Such

claims, however, cannot, ordinarily, provide a basis for habeas
relief.
The limited scope of review available in habeas proceedings for alleged Fourth Amendment violations was explained by
the Honorable Richard M. Berman, United States District Judge, in
Baker v. Bennett, 235 F. Supp. 2d 298, 306-07 (S.D.N.Y. 2002):
In Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037,
49 L.Ed.2d 1067 (1976), the Supreme Court established
that "where the 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, 96 S. Ct. 3037; Capellan v.
Riley, 975 F.2d 67, 70 (2d Cir. 1992). A federal court
"ha[s] no authority to review the state record and
grant the writ simply because [it] disagree[s] with the
result reached by the state courts" on a Fourth Amendment issue. Gates v. Henderson, 568 F.2d 830, 840 (2d
Cir. 1977); see also Torres v. Irvin, 33 F. Supp. 2d
257, 264 (S.D.N.Y. 1998) ("A petition for a writ of
habeas corpus must be dismissed where it seeks simply
to relitigate a Fourth Amendment claim."). The only
way a federal court can review such a claim is where
"the state has provided no corrective procedures at
all," or the state has provided a corrective mechanism,
but the defendant is precluded from using that mechanism "because of an unconscionable breakdown in the
underlying process." Capellan, 975 F.2d at 70 (citing
Gates, 568 F.2d at 839); Torres, 33 F. Supp. 2d at 264.

17

See also Hall v. Griener, 00 Civ. 5517 (WHP)(HBP), 2004 WL 350759
at *2-*3 (S.D.N.Y. Feb. 24, 2004) (Pitman, M.J.) (Report &
Recommendation), adopted in an unpublished Order dated June 8,
2004; Valtin v. Hollins, 248 F. Supp. 2d 311, 317 (S.D.N.Y. 2003)
(Marrero, D.J.); Torres v. Irvin, 33 F. Supp. 2d 257, 264
(S.D.N.Y. 1998) (Cote, D.J.).
The Court of Appeals for the Second Circuit has held
that New York's procedure for reviewing Fourth Amendment claims
is adequate.

See Capellan v. Riley, 975 F.2d 67, 70 n.1 (2d Cir.

1992); see also Jones v. Brandt, 09 Civ. 1035 (SAS), 2013 WL
5423965 at *10 n.142 (S.D.N.Y. Sept. 26, 2013) (Scheindlin,
D.J.); Crispino v. Allard, 378 F. Supp. 2d 393, 413 (S.D.N.Y.
2005) (Sweet, D.J.).

New York's procedure has expressly been

found to be an adequate vehicle to litigate Fourth Amendment
claims asserting that a petitioner was arrested without probable
cause.

Johnson v. Graham, 09 Civ. 5838 (SAS)(KNF), 2010 WL

3855286 at *4 (S.D.N.Y. Oct. 1, 2010) (Scheindlin, D.J.).
Because New York's procedure for litigating Fourth
Amendment claims is adequate, petitioner's Fourth Amendment claim
is cognizable here only if petitioner can show that there was "an
unconscionable breakdown in the underlying process."

Capellan v.

Riley, supra, 975 F.2d at 70, citing Gates v. Henderson, 568 F.2d
830, 840 (2d Cir. 1977) (en banc).
18

"An unconscionable breakdown

occurs when the state court fails to conduct a reasoned inquiry
into the petitioner's claim."

Valtin v. Hollins, supra, 248 F.

Supp. 2d at 317, citing Papile v. Hernandez, 697 F. Supp. 626,
633 (E.D.N.Y. 1988); see also Vega v. Artuz, 97 Civ. 3775
(LTS)(JCF), 2002 WL 252764 at *12 (S.D.N.Y. Feb. 20, 2002)
(Swain, D.J.) ("some sort of 'disruption or obstruction of a
state proceeding' is typical of [an unconscionable breakdown]"),
quoting Capellan v. Riley, supra, 975 F.2d at 70 .
Although petitioner disagrees with the result reached
by New York's courts, he has failed to show that the state court
failed to conduct a reasoned inquiry.

The Trial Court heard

testimony from the police officer who arrested petitioner, and on
the basis of that testimony concluded that there was probable
cause to arrest petitioner based on the statements of Peins who
claimed to be a witness to the burglary (H. Tr. 73).

This

conclusion is entirely consistent with the case law interpreting
the Fourth Amendment and does not remotely suggest an unconscionable breakdown of state process.

See generally Panetta v.

Crowley, 460 F.3d 388, 395 (2d Cir. 2006) ("[I]t is well-established that a law enforcement official has probable cause to
arrest if he received his information from some person, normally
the putative victim or eyewitness, unless the circumstances raise

19

doubt as to the person's veracity." (internal citation and marks
omitted)).
Accordingly, because petitioner has not shown an
unconscionable breakdown in the procedure provided by New York to
vindicate his Fourth Amendment rights, petitioner's claim that he
was arrested without probable cause does not provide a basis for
habeas relief.5

5

Respondent also claims that petitioner's Fourth Amendment
arrest claim is procedurally barred based on a statement in the
decision denying petitioner's 440.10 motion. Specifically, the
decision denying that motion states, in pertinent part:
"Petitioner argues that the arresting officer lacked probable
cause to arrest him. The only suppression issue litigated
previously concerned the pre-trial identification issue. Any
other issue related to suppression is procedurally barred now
because petitioner did not raise it previously" (Decision and
Order, dated Oct. 29, 2014 (D.I. 13), at SR 238). However, the
Trial Court described the omnibus pretrial hearing as being, in
part, a Dunaway hearing, and the Trial Court made an express
finding at the conclusion of that hearing that there was probable
cause to arrest petitioner (H. Tr. 1, 73). Respondent does not
address this inconsistency in the record; rather, he just ignores
it. Because petitioner's claim concerning his arrest is plainly
barred by Stone v. Powell, supra, I find that it is unnecessary
to resolve this conflict in the record and unnecessary to address
respondent's procedural bar argument.
20

C.

The Merits of
Petitioner's Remaining Claims

1.

Standard of Review

A federal court may grant a writ of habeas corpus to a
state prisoner where the state court's adjudication of the
petitioner's federal claim on the merits:
(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.
28 U.S.C. § 2254(d).
A decision is "contrary to" clearly established federal
law, as determined by the Supreme Court, "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 confronts
facts that are materially indistinguishable from a relevant
Supreme Court precedent and arrives at a result opposite to [the
Supreme Court's]."
(2000).

Williams v. Taylor, 529 U.S. 362, 405

A decision is an unreasonable application of clearly

established federal law if a "state court identifies the correct
governing legal principle from [the Supreme Court's] decisions
but unreasonably applies that principle to the facts of the
21

prisoner's case."

Williams v. Taylor, supra, 529 U.S. at 413;

accord Cullen v. Pinholster, 563 U.S. 170, 182 (2011); Lockyer v.
Andrade, 538 U.S. 63, 75 (2003).

Moreover, a "federal habeas

court may not issue the writ simply because that court concludes
in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or
incorrectly.
able."

Rather, that application must also be unreason-

Williams v. Taylor, supra, 529 U.S. at 411; accord

Lockyer v. Andrade, supra, 538 U.S. at 75.
The standard for relief under the Antiterrorism and
Effective Death Penalty Act ("AEDPA") "is difficult to meet,
because the purpose of AEDPA is to ensure that federal habeas
relief functions as a guard against extreme malfunctions in the
state criminal justice systems, and not as a means of error
correction."

Greene v. Fisher, 565 U.S. ---, ---, 132 S. Ct. 38,

43 (2011) (internal quotation marks omitted); accord Metrish v.
Lancaster, 569 U.S. ---, ---, 133 S. Ct. 1781, 1786-87 (2013);
see Burt v. Titlow, 571 U.S. ---, ---, 134 S. Ct. 10, 16 (2013)
(The "AEDPA erects a formidable barrier to federal habeas relief
for prisoners whose claims have been adjudicated in state
court.").
"'[C]learly established Federal law'" for purposes of
§ 2254(d)(1) includes only "'the holdings, as opposed
to the dicta, of this Court's decisions.'" Howes v.
22

Fields, 565 U.S. –––, –––, 132 S. Ct. 1181, 1187, 182
L.Ed.2d 17 (2012) (quoting Williams v. Taylor, 529 U.S.
362, 412, 120 S. Ct. 1495, 146 L.Ed.2d 389 (2000)).
And an "unreasonable application of" those holdings
must be "'objectively unreasonable,'" not merely wrong;
even "clear error" will not suffice. Lockyer v.
Andrade, 538 U.S. 63, 75–76, 123 S. Ct. 1166, 155
L.Ed.2d 144 (2003). Rather, "[a]s a condition for
obtaining habeas corpus from a federal court, a state
prisoner 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. –––, –––, 131 S. Ct. 770, 786–787,
178 L.Ed.2d 624 (2011).
White v. Woodall, 572 U.S. ---, ---, 134 S. Ct. 1697, 1702 (2014)
(brackets in original); accord Smith v. Artus, 610 F. App'x 23,
26 (2d Cir. 2015) (summary order).

"[R]eview under § 2254(d)(1)

is limited to the record that was before the state court that
adjudicated the prisoner's claim on the merits."

Greene v.

Fisher, supra, 132 S. Ct. at 44, citing Cullen v. Pinholster,
supra, 131 S. Ct. at 1398.

2.

Assuming Such a
Claim Exists,
Petitioner Has
Not Stated an
Actual-Innocence Claim

Although petitioner does not explain the basis for the
claim, he asserts that he is entitled to habeas relief because he
is actually innocent.

Petitioner previously asserted this claim

23

in his 440.10 motion, and the Court rejected, finding that no
hearing was required because "petitioner supplied no factual
allegations supporting this claim" (Decision and Order, dated
Oct. 29, 2014 (D.I. 13), at SR 239).
"[A] claim of 'actual innocence' is not itself a
constitutional claim, but instead a gateway through which a
habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits."

Herrera v. Collins,

506 U.S. 390, 404 (1993); McQuiggin v. Perkins, supra,

133 S.

Ct. at 1928; Johnson v. Bellnier, 508 F. App'x 23, 26 (2d Cir.
2013) (summary order).

Neither the Supreme Court nor the Court

of Appeals for the Second Circuit has ever concluded that a
habeas court can entertain a free-standing claim of actual
innocence, such as that asserted here.

Rivers v. Smith, 13-CV-

549 (NGG)(LB), 2015 WL 8489963 at *21 (E.D.N.Y. Dec. 8, 2015).
If such a claim exists, a habeas petitioner would have
to meet an extremely heavy burden to prevail.

As the Honorable

Nicholas G. Garaufis, United States District Judge, has explained:
[T]he Supreme Court has stated that, even assuming a
freestanding claim of actual innocence were cognizable,
the threshold showing of evidence would be "extraordinarily high," Herrera, 506 U.S. at 417, and indeed,
would require a petitioner to exceed the Schlup standard for traditional "gateway" actual innocence claims,
which requires a demonstration of evidence such that no
24

reasonable juror would be able to find the petitioner
guilty. House v. Bell, 547 U.S. 518, 554-55 (2006)
(citing Schlup v. Delo, 513 U.S. 298 (1995)).
Rivers v. Smith, supra, 2015 WL 8489963 at *22.
Beyond his bare assertion that he is actually innocent,
petitioner offers nothing in support of this claim.6

He does not

identify any lacunae in the prosecution's case nor does he offer
any exculpatory evidence, either new nor old.

Even if I assume

that a free-standing actual innocence claim can provide a basis
for habeas relief, given the total lack of either evidence or
argument to support this claim, the Trial Court's rejection of
petitioner's actual-innocence claim was not contrary to clearly
established federal law.

3.

The Evidence Was
Unquestionably
Sufficient to
Prove Petitioner's Guilt

Petitioner's final claim is that "the prosecutor [did]
not establish every element of the offense . . . of burglary in
violation of petitioner's 14th Amendment" (Petition, dated July
26, 2014 (D.I. 1), at ¶ 13).

Again petitioner offers no explana-

6

Petitioner's entire statement of this claim consists of the
statement "Petitioner was actual[ly] innocen[t] of the charge of
burglary and ha[s] not committed any felonious act warrant[ing]
his restriction of liberty" (Petition, dated July 26, 2014, (D.I.
1), at ¶ 13).
25

tion of this claim.

However, construing this claim in conjunc-

tion with petitioner's 440.10 motion, his argument appears to be
that he is not guilty of burglary because there was no evidence
that he actually took money or property from Eko's apartment
(Affirmation in Support of Motion, dated July 2014 (D.I. 13), at
SR 195-96).

The Trial Court rejected this aspect of petitioner's

440.10 motion, stating, "To the extent that petitioner argues he
is innocent of burglary because no property was taken from the
complainant, all that is required to commit burglary is the
intent to commit a crime in the premises.

PL § 140.25; People v.

Lewis, 5 NY3d 546 [2005]" (Decision and Order dated Oct. 29, 2014
(D.I. 13), at SR 239).
Petitioner was convicted of the crime of burglary in
the second degree in violation of New York Penal Law Section
140.25(2).

That statute defines the crime as follows:
A person is guilty of burglary in the second degree
when he knowingly enters or remains unlawfully in a
building with intent to commit a crime therein, and
when:
*

*

*

2. The building is a dwelling.
The Penal Law defines a "dwelling" as "a building which is
usually occupied by a person lodging therein at night."
Penal L. § 140.00(3).

26

N.Y.

A habeas petitioner asserting that the evidence was
insufficient to sustain the conviction faces a heavy burden.

In

reviewing a claim that evidence was legally insufficient,
the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable
doubt. This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve
conflicts in the testimony, to weigh the evidence, and
to draw reasonable inferences from basic facts to
ultimate facts.
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (citations and
emphasis omitted); accord United States v. Mi Sun Cho, 713 F.3d
716, 720 (2d Cir. 2013) ("The question is not whether this
[C]ourt believes that the evidence at trial established guilt
beyond a reasonable doubt, but rather, whether any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt." (internal quotations marks and
citations omitted; emphasis and alteration in original));
Policano v. Herbert, 507 F.3d 111, 116 (2d Cir. 2007) ("'[A]
petitioner bears a very heavy burden in convincing a federal
habeas court to grant a petition on the grounds of insufficiency
of the evidence.'" (alteration in original)), quoting Fama v.
Comm'r of Corr. Servs., 235 F.3d 804, 811 (2d Cir. 2000); Davis
v. Greene, 04 Civ. 6132 (SAS), 2008 WL 216912 at *6 (S.D.N.Y.
Jan. 22, 2008) (Scheindlin, D.J.) (same).
27

The evidence offered at trial, viewed in the light most
favorable to the prosecution, showed that petitioner entered
Eko's apartment without permission and intended to steal Eko's
property (T. Tr. 224-32, 256-57).

The evidence further showed

that the apartment was a "dwelling" because the apartment was the
residence of Eko and her fiancé (T. Tr. 214, 217, 254, 261-62,
274).

The foregoing testimony established the elements of the

crime; as the Trial Court correctly held, the fact that petitioner did not actually take currency or property is immaterial.
Thus, the Trial Court's rejection of petitioner's
sufficiency-of-the-evidence claim was not an unreasonable application of clearly established federal law.

IV.

Conclusion

Accordingly, for all the foregoing reasons, I respectfully recommend that the petition be denied in all respects.
In addition, because petitioner has not made a substantial showing of the denial of a constitutional right, I also
recommend that a certificate of appealability not be issued.
U.S.C. § 2253.

28

To warrant the issuance of a certificate of

appealability, "petitioner must show that reasonable jurists
could debate whether . . . the petition should have been resolved
in a different manner or that the issues presented were adequate
28

to deserve encouragement to proceed further."

Middleton v.

Attorneys Gen., 396 F.3d 207, 209 (2d Cir. 2005) (per curiam)
(internal quotation marks and citation omitted, ellipsis in
original); see also Love v. McCray, 413 F.3d 192, 195 (2d Cir.
2005) (per curiam).

For the reasons set forth above, I conclude

that there would be no difference of opinion among reasonable
jurists that petitioner's federal rights were not violated.
I further recommend that certification pursuant to 28
U.S.C. § 1915(a)(3) not be issued because any appeal from this
Report and Recommendation, or any Order entered thereon, would
not be taken in good faith.

See Coppedge v. United States, 369

U.S. 438, 445 (1962).

V.

OBJECTIONS

Pursuant to 28 U.S.C. § 636(b)(1)(c) and Rule 72(b) of
the Federal Rules of Civil Procedure, the parties shall have
fourteen (14) days from receipt of this Report to file written
objections.

See also Fed. R. Civ. P. 6(a).

Such objections (and

responses thereto) shall be filed with the Clerk of the Court,
with courtesy copies delivered to the Chambers of the Honorable
Katharine Polk Failla, United States District Judge, 40 Foley
Square Pearl Street, Room 2103, New York, New York 10007, and to
the Chambers of the undersigned, 500 Pearl Street, Room 750, New
29

York, New York 10007.

Any requests for an extension of time for

filing objections must be directed to Judge Failla.

FAILURE TO

OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF
OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW.

Thomas v. Arn,

474 U.S. 140, 155 (1985); United States v. Male Juvenile, 121
F.3d 34, 38 (2d Cir. 1997); 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, 57-59
(2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-238 (2d
Cir. 1983).
Dated:

New York, New York
January 8, 2016
Respectfully submitted,

/

~fl./-1/L-2_--zc~

) ~;r .

HENRY PITMAN
United States Magistrate Judge
Copies mailed to:
Mr. Michael Green
DIN 09-A-5340
Green Haven Correctional Facility
594 Route 216
Stormville, New York 12582-0010
Paul B. Lyones, Esq.
Thomas B. Litsky, Esq.
Assistant Attorneys General
State of New York
120 Broadway
New York, New York 10271
30