Green v. Lee

Filing 20

OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION: re 15 Adopting Report and Recommendation. For the foregoing reasons, the Report is adopted in full, and the Petition is DENIED. Since Green 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 f or 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 this case. SO ORDERED. (Signed by Judge Katherine Polk Failla on 3/31/2016) Copies Mailed By Chambers. (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
MICHAEL GREEN,
:
:
Petitioner,
:
:
v.
:
:
WILLIAM LEE,
:
:
Respondent. :
:
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: March 31, 2016
______________

14 Civ. 6344 (KPF) (HBP)
OPINION AND ORDER
ADOPTING REPORT AND
RECOMMENDATION

KATHERINE POLK FAILLA, District Judge:
Petitioner Michael Green, 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”) on July 30, 2014, against Superintendent William Lee of
the Green Haven Correctional Facility in Stormville, New York. Green’s Petition
seeks review of his New York State Supreme Court 1 conviction for burglary in
the second degree, in violation of New York Penal Law § 140.25(2). United
States Magistrate Judge Henry B. Pitman issued a Report and
Recommendation dated January 8, 2016 (the “Report”), recommending that the
Petition be denied. The Court has considered both Judge Pitman’s
comprehensive Report and Green’s timely objections to it, and finds that the
Report should be adopted in full. Accordingly, the Petition is denied.

1

Unless otherwise indicated, references in this Opinion to the “Supreme Court” are to the
New York State Supreme Court, New York County, and not the United States Supreme
Court.

BACKGROUND 2
The facts and procedural history of the instant action are set forth in
detail in the Report. (See Dkt. #15). The Court therefore provides only a brief
summary of the relevant background.
Green was arrested in January 2009 after two eyewitnesses positively
identified him as the man who had entered their apartment, walked into the
bedroom, and reached for a jewelry box, before being chased out by one of the
witnesses. (Report 2-3). Prior to Green’s 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 (i) whether probable cause existed to
arrest Green, and (ii) whether the second eyewitness identification of Green was
improperly suggestive. (Id. at 3). The trial court found that probable cause
supported Green’s arrest, and the eyewitness identification was not unduly
suggestive. (Id. at 3-4).
A jury convicted Green of one count of burglary in the second degree,
and Green was sentenced as a persistent violent felony offender, pursuant to
New York Penal Law § 70.10, to an indeterminate sentence of 20 years’ to life
imprisonment. (Report 1). Green appealed his conviction to the Appellate
Division of the Supreme Court, First Judicial Department, and on April 23,
2013, the Appellate Division rejected Green’s appeal in its entirety. (Id. at 4-5).
Green sought and was denied leave to appeal the Appellate Division’s decision

2

In addition to citing to Green’s Petition (“Pet.,” Dkt. #1), the Report (Dkt. #15), and
Green’s Objections to the Report (“Obj.,” Dkt. #19), this Opinion draws on information
contained in the State Record (“S.R.”) and State Transcripts (“S.T.,” both at Dkt. #13).

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to the New York Court of Appeals. (Id. at 5). In July 2014, Green filed a
motion in the Supreme Court seeking to vacate his conviction pursuant to New
York Criminal Procedure Law § 440.10. (Id. at 5). The Court found, however,
that none of Green’s claims warranted relief, as they were each procedurally
barred, meritless, or both. (Id. at 7). Green sought leave to appeal the denial
of his § 440.10 motion, and the Appellate Division denied leave on March 19,
2015. (Id. at 9).
Green filed his instant petition for habeas corpus relief, pursuant to 28
U.S.C. § 2254, on July 30, 2014. (Dkt. #1). On October 20, 2014, the Court
referred Green’s Petition to Magistrate Judge Pitman for a Report and
Recommendation. (Dkt. #4). Judge Pitman granted Lee an extension of time to
respond to Green’s Petition (Dkt. #10), and Lee then filed his response on
March 19, 2015 (Dkt. #13). Judge Pitman issued his Report on January 8,
2016, recommending that Green’s Petition be denied in all respects. (Dkt.
#15). Green requested, and this Court granted, an extension of his time to file
objections to the Report. (Dkt. #17, 18). The Court received Green’s objections
on March 1, 2016. (Dkt. #19).
DISCUSSION
A.

Applicable Law
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

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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. Arn, 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).
B.

Analysis
1.

Green’s Grounds for Habeas Relief

Green’s Petition raises five grounds for habeas relief: (i) the arresting
officers lacked probable cause to arrest him; (ii) the state court lacked personal
and subject matter jurisdiction; (iii) the grand jury proceedings were
compromised by due process violations; (iv) Green was actually innocent of the

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offense of which he was convicted; and (v) the State failed to establish every
element of the offense of conviction. (Pet. ¶ 13). Judge Pitman addressed each
of these arguments in turn.
2.

The Report

Judge Pitman began his analysis by discussing the standard for finding a
habeas petitioner’s claims procedurally barred. As Judge Pitman explained in
detail, “[d]ismissal of a claim on the ground that consideration of the merits is
precluded by an adequate and independent state procedural ground is
appropriate where the last reasoned state court decision expressly relies on a
state procedural bar.” (Report 12 (citing Jones v. Stinson, 229 F.3d 112, 118
(2d Cir. 2000))). A petitioner seeking to overcome a state court decision that
relies upon an adequate and independent state procedural ground must show
either “[i] cause for and prejudice from petitioner’s failure to assert his claims
in accordance with state procedural law or [ii] [that] a failure to consider the
claim would result in a fundamental miscarriage of justice.” (Id. at 13 (citing
cases)). Judge Pitman then applied this standard to Green’s Petition, finding
that the trial court had expressly relied on New York Criminal Procedure Law
§ 440.10(2)(c) to deny Green’s claims regarding (i) personal and subject matter
jurisdiction, and (ii) flaws in the grand jury proceeding. (Id. at 15). 3 Because

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N.Y. Crim. Proc. L. § 440.10(2)(c) requires a court to deny a motion to vacate a
judgment when:
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

5

Green failed to show cause and prejudice relating to his failure to raise these
claims in his state court appeal, and additionally made no showing of a
potential fundamental miscarriage of justice, Judge Pitman found Green’s
jurisdiction and grand jury-related claims to be procedurally barred. (Id. at 1516).
Considering next the claim that Green’s arrest lacked probable cause in
contravention of the Fourth Amendment, Judge Pitman found that Stone v.
Powell, 428 U.S. 465 (1976), precluded relief. (Report 16). Stone v. Powell and
its progeny sharply circumscribe a federal court’s ability to consider Fourth
Amendment claims on habeas review, requiring either that the state failed to
provide a corrective procedure for the asserted violation, or that the petitioner
was prevented from using a provided procedure due to an “unconscionable
breakdown in the underlying process.” (Id. at 17 (quoting Baker v. Bennet, 235
F. Supp. 2d 298, 306-07 (S.D.N.Y. 2002))). The Second Circuit has held that
New York’s procedure provides for sufficient review of Fourth Amendment
claims; thus, because the record reflects no “unconscionable breakdown” of
that procedure, Judge Pitman found Green’s Fourth Amendment claim
unsuccessful. Judge Pitman acknowledged in a footnote Lee’s argument that
Green’s Fourth Amendment claim was also procedurally barred, but found that
because Stone v. Powell clearly precluded the Fourth Amendment claim, he
need not address the procedural bar argument. (Id. at 20 n.5).

during the prescribed period or to his unjustifiable failure to raise
such ground or issue upon an appeal actually perfected by him[.]

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Finally, Judge Pitman addressed Green’s remaining claims on the merits.
After explaining the standard for habeas relief under the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), which requires either (i) a
contrary or unreasonable application of clearly established federal law, or
(ii) an unreasonable determination of fact, Judge Pitman found that neither of
Green’s remaining claims presented a ground for relief. (Report 22-28).
Specifically, Judge Pitman found that Green failed to meet the extremely high
bar set for actual innocence claims — assuming such claims could even
exist — as Green offered no support beyond his bare assertion of innocence.
(Id. at 23-25). As for Green’s contention that the State failed to present
sufficient evidence to support his conviction, Judge Pitman found that the
evidence at trial would have permitted a reasonable juror to find Green guilty of
burglary. (Id. at 22-28). In light of his findings, Judge Pitman concluded by
recommending that Green’s Petition be denied in full.
3.

Review of Green’s Objections

Green asserts several objections to the Report. The Court reviews
Green’s arguments and finds, for the reasons stated in this section, that none
of them provides a basis for rejecting or modifying Judge Pitman’s thorough
Report.
a.

Green Is Not Entitled to Relief Based on a Lack of
Personal or Subject Matter Jurisdiction at His
Arraignment

Green contends that Judge Pitman erred in finding that his jurisdictional
arguments were procedurally barred. Green cites United States v. Tran, 234

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F.3d 798 (2d Cir. 2000), overruled on other grounds by United States v. Thomas,
274 F.3d 655 (2d Cir. 2001), for the proposition that where a lower court
proceeded without jurisdiction, “an [a]ppellate [c]ourt MUST notice such a flaw
even if the issue was raised neither in the [d]istrict [c]ourt nor on [a]ppeal.”
(Obj. 4 (quoting Tran, 234 F.3d at 807) (emphasis in brief)). Hence, Green
argues, Judge Pitman was required to review his jurisdictional challenge on the
merits, regardless of whether Green presented that argument in his direct
appeal. (Id.).
The cases upon which Green relies for his contention that a reviewing
court must satisfy itself of a lower court’s subject matter jurisdiction all deal
with matters on direct appeal, not arguments raised in a § 2254 petition. (See
Obj. 4 (citing United States v. Tran, 234 F.3d at 807; United States v. Foley, 73
F.3d 484, 487 (2d Cir. 1996), overruled in part on other grounds by Salinas v.
United States, 522 U.S. 52 (1997); Mitchell v. Maurer, 293 U.S. 237, 239
(1934))). While arguments regarding a lower court’s lack of subject matter
jurisdiction may be raised at any time on direct appeal, in a § 2254 habeas
proceeding, arguments based on a trial court’s lack of jurisdiction may be
procedurally barred. See, e.g., Chapman v. Bradt, No. 07 Civ. 6583 (MAT),
2015 WL 1211683, at *10-11 (W.D.N.Y. Mar. 17, 2015) (finding petitioner’s
claim that the trial court lacked jurisdiction procedurally barred); Perez v.
Ercole, No. 09 Civ. 1985 (SLT), 2010 WL 5475649, at *12 (E.D.N.Y. Dec. 30,

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2010) (same); Brown v. Schriver, No. 96 Civ. 1902 (EHN), 1997 WL 793096, at
*2 (E.D.N.Y. Nov. 25, 1997) (same). 4
Green’s jurisdictional argument additionally fails for a separate reason:
His Petition presents no new basis for his contention that he was arraigned
absent jurisdiction, leaving only the state-law arguments previously considered
and rejected by the Supreme Court. In his state collateral proceeding, Green
argued that 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 failed to verify the complaint.
(S.R. 181, 183-84, 187-90). In addition to finding this claim procedurally
barred, the Supreme Court found Green’s assertion meritless, stating that the
signed complaint satisfied the verification requirements of New York Criminal
Procedure Law § 100.31(1)(d), and that under New York law, “there is no
requirement that complainants sign supporting depositions when they have
testified before the grand jury.” (S.R. 238-39). Green’s purported jurisdictional
flaws are statutory, and it is well-established that “federal habeas corpus relief

4

Cf. Darby v. South Carolina, No. CA 3:08-2931-CMC-JRM, 2009 WL 1743663, at *9
(D.S.C. June 16, 2009)
Since a state defines the subject matter jurisdiction of its courts, a
challenge on the basis of lack of subject matter jurisdiction is a
quintessential question of state law. Thus, the frequently quoted
maxim[] that a criminal defendant can raise the issue of lack of
subject matter jurisdiction at any time should actually be phrased
“at any time he is in state court.” In other words, it is up to [state]
courts to resolve issues as to whether or not subject matter
jurisdiction exists. This court does not review determinations of
state law made by [state] courts. See Pulley v. Harris, 465 U.S. 37,
104 S.Ct. 871, 79 L.Ed.2d 29 (1984) (“[A] federal court may not
issue a writ of habeas corpus on the basis of a perceived error of
state law.”).

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does not lie for errors of state law.” Estelle v. McGuire, 502 U.S. 62, 67 (1991)
(quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)). The Second Circuit has
further stated that even if a federal court deems a “state court’s interpretation
of its state statute as unwise, or even as jurisdictional overreaching, this does
not entitle [a petitioner] to habeas relief.” Carvajal v. Artus, 633 F.3d 95, 107
(2d Cir. 2011). Thus, because Green’s jurisdictional argument is grounded in a
matter of state law, it cannot be considered by this Court on habeas review.
See Barrington v. Lee, No. 10 Civ. 6098 (ALC), 2015 WL 6526168, at *3
(S.D.N.Y. Oct. 28, 2015) (declining to consider a § 2254 petitioner’s
jurisdictional claim because it was grounded in state law).
b.

No Unconscionable Breakdown of Procedure Prevented
Green from Raising His Fourth Amendment Claim in
State Court

Green next objects to Judge Pitman’s recommended dismissal of his
Fourth Amendment claim, arguing that the trial court’s inconsistent
characterization of Green’s omnibus pretrial hearing indicates “an
unconscionable breakdown in the underlying process.” (Obj. 6). From this,
Green reasons that Stone v. Powell does not preclude him from raising a Fourth
Amendment claim on habeas review.
Judge Pitman recognized that the State Record did indeed characterize
Green’s pretrial hearing inconsistently: While the trial court described the
proceeding as a Dunaway hearing and made an express finding that probable
cause existed to arrest Green, the Supreme Court’s decision denying Green’s
§ 440.10 motion stated that, “Petitioner argues that the arresting officer lacked

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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.” (Report 20 n.5 (quoting S.R. 238)). Judge Pitman found it
unnecessary to resolve this apparent contradiction, however, because Stone v.
Powell precluded Green’s Fourth Amendment claim regardless of whether that
claim was procedurally barred. The Court agrees with Judge Pitman’s
analysis.
Green argues that the Supreme Court’s failure to consider his probable
cause argument was itself an unconscionable breakdown in the process for
reviewing his Fourth Amendment claim. (Obj. 6). However, “once it is
established that a petitioner has had an opportunity to litigate his or her
Fourth Amendment claim … the court’s denial of the claim is a conclusive
determination that the claim will never present a valid basis for federal habeas
relief.” Graham v. Costello, 299 F.3d 129, 134 (2d Cir. 2002). In the present
case, Green received an opportunity to litigate his Fourth Amendment claim:
The trial court heard testimony from the arresting police officer, who explained
that Green’s arrest was pursuant to eyewitness testimony from the burglary
victim, thereby presenting Green with an opportunity to challenge the officer’s
version of events. (S.T. 73-74). That a reviewing court then found Green’s
Fourth Amendment claim procedurally barred does not negate the prior
“reasoned inquiry” conducted by the trial court. Cf. Capellan v. Riley, 975 F.2d
67, 71 (2d Cir. 1992) (“Even if [Petitioner] were correct in his allegation that the

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Appellate Division erroneously decided this issue, a petitioner cannot gain
federal review of a fourth amendment claim simply because the federal court
may have reached a different result. Indeed, if we were to read [Stone v. Powell]
as requiring us to focus on the correctness of the outcome resulting from the
application of adequate state court corrective procedures, rather than on the
existence and application of the corrective procedures themselves, we would be
assuming, implicitly at least, that state courts were not responsible forums in
which to bring constitutional claims such as is presented herein.” (emphasis in
original, internal citations omitted)). Consequently, the Court adopts Judge
Pitman’s analysis regarding Green’s Fourth Amendment claim.
c.

Judge Pitman Did Not Err in Addressing the Remainder
of Green’s Claims

In addition to the objections already addressed, Green makes a number
of assertions in opposition to the Report that either repeat arguments made in
his Petition, or state only general legal conclusions. In regard to these
objections, the Court reviews the Report for clear error, and finds none.
Specifically, Judge Pitman correctly concluded that (i) denial of Green’s
§ 440.10 motion rested on an adequate and independent state ground;
(ii) Green had not made a showing of actual innocence; and (iii) the evidence at
trial was sufficient to support the jury’s guilty verdict. Because Green makes
no new argument in reference to any of these claims, the Court adopts Judge
Pitman’s finding and conclusions. See Walker, 216 F. Supp. 2d at 292.

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CONCLUSION
For the foregoing reasons, the Report is adopted in full, and the Petition
is DENIED.
Since Green 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 this
case.
SO ORDERED.
Dated:

March 31, 2016
New York, New York

__________________________________
KATHERINE POLK FAILLA
United States District Judge

A copy of this Order was mailed by Chambers to:
Michael Green, 09A5340
Green Haven Correctional Facility
PO Box 4000
Stormville, NY 12582

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