Jones v. Racette
Filing
17
OPINION AND ORDER: For the foregoing reasons, the Petition is DENIED. The Clerk of Court is directed to close this case. SO ORDERED. (Signed by Judge J. Paul Oetken on 12/12/2016) Copies Mailed By Chambers. (ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MARVEL JONES,
Petitioner,
-v-
STEVEN RACETTE,
15-CV-7297 (JPO)
OPINION AND ORDER
Respondent.
J. PAUL OETKEN, District Judge:
Pro se Petitioner Marvel Jones has filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254, seeking review of his conviction, after a non-jury trial in New York State
Supreme Court, New York County, of second-degree assault and attempted first-degree assault,
and his sentence to two concurrent prison terms of twenty years to life. (Dkt. No. 1 (“Petition”).)
On February 5, 2016 the Attorney General of the State of New York filed an opposition to the
Petition. (Dkt. No. 12.) Petitioner filed a Reply on March 14, 2016. (Dkt. No. 16.) For the
reasons that follow, the Petition is denied.
I.
Background
A.
The Crimes and Trial
A New York County grand jury charged Jones with second-degree assault, N.Y. Penal
Law § 120.05(2), and attempted first-degree assault, id. §§ 110.00, 120.10. Jones waived a jury
trial and the Honorable Renee White found him guilty on February 2, 2011, of both charges.
(Dkt. No. 13 at 1.) On March 30, 2011, the court sentenced Jones, as a persistent violent felony
offender, to two concurrent prison terms of twenty years to life. (Id.) The Appellate Division,
First Department, affirmed Jones’ conviction, and the New York Court of Appeals denied his
application for leave to appeal. People v. Jones, 110 A.D.3d 493 (N.Y. App. Div. 1st Dep’t
2013), leave denied, 24 N.Y.3d 962 (2014).
1
The bench trial took place in February 2011. The victim and key witness, Yvette Parks,
testified that she lived with her husband, Jones’ younger brother, Lavaris Jones, in the home of
Jones’ mother in Manhattan. (Dkt. No. 14-5 at 47–49.) She testified that Jones also had lived
with them in 2008 and into 2009. (Id. at 49.) Parks testified that Jones had problems with “drug
addiction” that led to “arguing . . . fighting, [and] constant chaos in the household.” (Id.)
Parks testified that, on February 15, 2009, Jones’ mother told Jones he could no longer
continue living in the home. (Id. at 50–53.) Parks testified that, on the same day he was evicted
by his mother, Parks overheard Jones tell his brother Lavaris (Parks’ husband), that Parks was a
“bitch” and that Lavaris “better do something about that bitch, she’s ruining my life, I’m going to
get her.” (Id. at 51.)
Two days later, around noon, Parks testified that she was speaking to a friend on her cell
phone when Jones “jumped out” at her and began “scream[ing] very irately,” that Parks had
“ruin[ed] things for him,” and that he was going to “fuck [her] up.” (Id.) Parks recalled “a
silvery item” held between Jones’ fingers that she described as “flat,” although she conceded that
she “can’t really be sure of what [she] saw.” (Id. at 52.)
Parks testified that Jones “struck [her] in [her] face, then he hit [her] in [her] nose and the
blood began to run,” soaking her turtleneck sweater. (Id. at 51, 53.) Parks recalled that her
phone flew out of her hand and “fell apart, it was in pieces.” (Id. at 68.) She testified that she
ran from Jones towards the house, but the door was locked. (Id. at 53.) Jones then began to
punch Parks in her side as she made efforts to protect herself. (Id. at 54.) It was then that one of
Jones’ brothers appeared and Jones ran away. (Id. at 53.)
Police Officer David Aquino testified that he arrived on the scene after receiving a call
reporting an assault. (Id. at 91). Officer Aquino testified that he spoke to Parks at her home, and
described her as “shaken, crying” and with a “laceration to the right side of the face” as well as
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“blood coming down her face . . . down to her shirt.” (Id. at 92.) Officer Aquino testified that
Parks “kept mentioning Marvel Jones hit her with an unknown object,” which she said “could
have been a razor or knife” though “she didn’t know what it was.” (Id.) Officer Aquino and his
partner canvassed the area but did not locate Jones or any weapon. (Id. at 57–58.)
Emergency medical personnel arrived and transported Parks to a nearby hospital. (Id. at
55–56, 93.) There, doctors applied liquid sutures to her wound. (Id. at 55.) Parks testified that,
approximately seven months later, she returned to the hospital for a lightening process to prevent
dark scarring. (Id.) Parks also testified that her ribs were so “badly bruised” that she had to stay
in bed for a week. (Id. at 56.)
On cross-examination, Officer Aquino testified that he filled out an “Aided Report”
worksheet in which he did not indicate the use of any weapon, instead noting only that “the
complainant was punched in the face.” (Id. at 96–97.) Office Aquino further testified that he
filled out a “complaint report worksheet,” in which he again did not indicate the use of a weapon
in the assault. (Id. at 98–99.) Officer Aquino testified that he, in fact, checked a box on the form
explicitly indicating that no weapon was used in the commission of the crime. (Id. at 99–100.)
He also did not indicate the use of a weapon in the section titled “crime data or modus operandi,”
where he testified he would normally indicate the use of a weapon. On redirect, Officer Aquino
stated that he did not know what object was used and that he did not recover a weapon. (Id. at
64–65.)
During the cross-examination of Parks at trial, counsel for Jones sought to elicit
testimony that would tend to challenge Parks’ memory of that day. For example, he asked her
whether she remembered the color of the bag she was carrying as well as the type and color of
the phone she was using. (Id. at 66–67.) The trial court judge sustained objections to this line of
questioning as not relevant. (Id.)
3
Throughout the cross-examination of Parks, Jones continuously interrupted the
proceedings to request that he be allowed to represent himself pro se. After the trial court
sustained an objection to counsel’s question as to whether the incident “happened within the
blink of an eye,” Jones interjected, “Excuse me, your Honor, I object. I would like to go pro se.”
(Id. at 68.) The trial court responded that it was “not going to deal with that right now in the
middle of cross-examination,” and instructed counsel to continue. (Id. at 68–69.) Jones then
requested to be removed from the courtroom, to which the trial court responded that Jones has
“an absolute right to be here, but if you -- this trial will not stop.” (Id. at 69.) In response, Jones
again “request[ed] to go pro se.” (Id.) The trial court’s response was to inform Jones that he
may leave the courtroom, but that trial would proceed regardless and that, instead of interrupting
a cross-examination to entertain a motion to proceed pro se, the court would hear Jones at the
conclusion of Parks’ testimony. (Id.) Jones again responded, “I wish to go pro se.” (Id.)
Jones renewed his request to be removed from the courtroom and to proceed pro se as his
counsel was asking Parks about the treatment of her wound at the hospital. (Id. at 80–82.) Jones
noted that he wanted to be removed, that he wanted to represent himself, and that he wanted to
question the witness himself. (Id.) The trial court denied his application to represent himself at
that time, and directed Jones’ counsel to consult with him regarding any questions Jones desired
his counsel to ask Parks. (Id.) Parks’ testimony continued with questions from Jones’ counsel.
(Id.) After Parks stepped down, Jones repeated his request to represent himself yet again, and
the trial court took a recess to allow Jones’ counsel to discuss the matter with Jones. (Id. at 85.)
Following the recess, a court officer informed the court that Jones “decided not to join
us.” (Id.) Counsel indicated that he and Jones spoke during the recess, that Jones wished to
represent himself, that Jones refused to return to the courtroom, and that he had explained to
Jones that the trial would proceed in his absence. (Id. at 85–86.) The trial court explained that it
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wished to “make sure his rights are fully protected” and that if it found that Jones understood the
proceedings, it might allow him to represent himself. (Id. at 86.)
The trial court called another recess and directed counsel to speak again with Jones and to
reiterate that the trial would continue in his absence if he did not return. (Id. at 86–87.) Jones
continued to absent himself from court following this second recess. (Id. at 87.) Counsel for
Jones again indicated that Jones wanted to represent himself and that he would appear in the
courtroom. (Id.) Another recess was taken. (Id.) Jones continued to absent himself from court
and the proceedings recommenced. (Id. at 87–89.) The People completed their case and the
court broke for lunch. (Id. at 110.) After lunch, counsel for Jones informed the court that Jones
“declined to go pro se” and that “he desired not to come back into the courtroom.” (Id.)
During the trial the defense called no witnesses, presented no evidence, and Jones did not
testify. (Id. at 82.)
On February 2, 2011, the court, after considering the credibility of the witnesses and the
exhibits introduced into evidence, found that the People had proved beyond a reasonable doubt
that Petitioner was guilty of second-degree assault and attempted first-degree assault. (Id. at
147–48.)
B.
Sentencing
For a class C violent felony (attempted first-degree assault, N.Y. Penal Law §§ 110.00,
120.10), the statutory sentencing range is sixteen years to life imprisonment for a persistent
violent felony offender. See id. §§ 70.08(2)–(3). For a class D felony (second-degree assault, id.
§ 120.05(2)) the statutory range is twelve years to life for a persistent violent felony offender.
5
See id. §§ 70.08(2)–(3). On March 30, 2011, the court sentenced Jones, as a mandatory violent
persistent felony offender, to concurrent prison terms of twenty years to life. (Id. at 162.)
C.
The Direct Appeal and Coram Nobis Petition
On direct appeal to the Appellate Division, First Department, Jones presented four
arguments: first, that the evidence was legally insufficient to establish that he used a weapon to
inflict serious physical injury and that the verdict was against the weight of the evidence; second,
that the trial court’s prohibition of Jones’ counsel’s cross-examination of Parks regarding her
recollection of the incident was prejudicial; third, that the trial court committed error through its
treatment of Jones’ requests to represent himself during the trial; and fourth, that the sentence
imposed was excessive and should be reduced in the interest of justice. (See Dkt. No. 14 at 3–
58.)
On October 10, 2013, the First Department unanimously affirmed Jones’ conviction,
considering and rejecting each of his arguments. Jones, 110 A.D.3d 493. Jones’ application for
leave to appeal to the Court of Appeals was denied on September 2, 2014. (Dkt. No. 14-1 at 21.)
Thereafter, Jones filed a pro se coram nobis petition, arguing that his appellate counsel
was ineffective for failing to argue that trial counsel was itself ineffective. The District Attorney
opposed the motion and Jones filed a reply. (Id. at 46–55; 56–65.) The First Department
summarily denied Jones’ motion on December 3, 2015. (Id. at 66.) Jones’ leave application to
the Court of Appeals is currently pending.
D.
The Habeas Petition
Jones filed a pro se habeas petition with this Court on September 9, 2015, rearguing the
same four points made to the First Department in his direct appeal. (Dkt. No. 1.) First, Jones
argues that the evidence was legally insufficient and the verdict was against the weight of the
evidence. (Id. at 6–8.) Second, he argues that the trial court unduly restricted cross-examination
6
of Parks. (Id. at 8–9.) Third, he argues that the trial court erred in delaying consideration of his
request to proceed pro se. (Id. at 10–11.) And finally, he argues that his sentence of twenty
years to life was excessive and that the prosecutor improperly relied on misinformation and
acquitted conduct in arguing for the maximum. (Id. at 11–13.)
II.
Discussion
For a federal district court to grant a writ of habeas corpus under 28 U.S.C. § 2254, the
Petitioner must satisfy a “‘difficult to meet’ and ‘highly deferential standard for evaluating statecourt rulings, which demands that state-court decisions be given the benefit of the
doubt.’” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citations omitted). The Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”) provides that a federal district court may
grant “a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a
State court . . . with respect to any claim that was adjudicated on the merits in State court” if (1)
the adjudication of that claim “resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme
Court” or (2) it “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
state court’s decision is “contrary to” clearly established federal law “if the state court ‘applied a
rule that contradicts’ that precedent, or reached a different result than the Supreme Court on facts
that are ‘materially indistinguishable.’” Mannix v. Phillips, 619 F.3d 187, 195 (2d Cir. 2010)
(alterations omitted) (quoting Williams v. Taylor, 529 U.S. 362, 405–06 (2000)). As long as the
state court decision applied the correct legal rule to the facts of a petitioner’s case, it is not
subject to habeas review, even if the federal court would have reached a different conclusion if it
were to apply the rule itself. Williams, 529 U.S. at 406.
7
Under most circumstances, “a federal habeas court may not reach the merits if the state
court’s rejection of a federal claim ‘rests on a state law ground that is independent of the federal
question and adequate to support the judgment.’” Clark v. Perez, 510 F.3d 382, 390 (2d Cir.
2008) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)). “This rule applies whether
the state law ground is substantive or procedural.” Coleman, 501 U.S. at 729.
Under the AEDPA, “a determination of a factual issue made by a State court shall be
presumed to be correct. The [Petitioner] shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). “The presumption of
correctness is particularly important when reviewing the trial court’s assessment of witness
credibility.” Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003).
A.
Sufficiency of the Evidence and the Verdict
Jones argues that the evidence adduced at trial was legally insufficient and that the
verdict was against the weight of the evidence. (Petition at 6–8.)
As a preliminary matter, Jones cannot prevail on his argument that the verdict was
against the weight of the evidence, as “the argument that a verdict is against the weight of the
evidence states a claim under state law, which is not cognizable on habeas corpus.” McKinnon v.
Superintendent, Great Meadow Corr. Facility, 422 F. App’x 69, 75 (2d Cir. 2011); see also
Smith v. Lee, No. 11 Civ. 530, 2014 WL 1343066, at *10 (E.D.N.Y. Mar. 31, 2014) (“It is well
settled that a ‘weight of the evidence’ claim is distinct from a[n] ‘insufficiency of the evidence’
claim and is a state claim . . . that is not reviewable in a federal habeas proceeding.” (citing
McKinnon, 422 F. App’x at 75)).
As to Jones’ claim that the evidence was legally insufficient, the Due Process Clause of
the Fourteenth Amendment prohibits conviction “except upon proof beyond a reasonable doubt
of every fact necessary to constitute the crime with which [the defendant] is charged.” In re
8
Winship, 397 U.S. 358, 364 (1970). Petitioner is, therefore, “entitled to habeas corpus relief if it
is found that upon the record evidence adduced at the trial no rational trier of fact could have
found proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 324 (1979)
(footnote omitted).
For Jones to prevail, this Court must determine that there was legally insufficient
evidence for a trier of fact to find that the prosecution proved the substantive elements of the
crimes at issue as defined by state law. See Green v. Abrams, 984 F.2d 41, 44–45 (2d Cir. 1993).
In evaluating the sufficiency of the evidence, this Court must “view[ ] the evidence in the light
most favorable to the prosecution.” Jackson, 443 U.S. at 319. Indeed, the Supreme Court has
“unambiguously instruct[ed] that a reviewing court ‘faced with a record of historical facts that
supports conflicting inferences must presume—even if it does not affirmatively appear in the
record—that the trier of fact resolved any such conflicts in favor of the prosecution, and must
defer to that resolution.’” Cavazos v. Smith, 132 S. Ct. 2, 6, (2011) (per curiam) (quoting
Jackson, 443 U.S. at 326). A petitioner challenging the sufficiency of evidence on habeas thus
bears a “very heavy burden.” Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir. 2002) (quoting
Quirama v. Michele, 983 F.2d 12, 14 (2d Cir. 1993)).
Here, Jones’ conviction for attempted first-degree assault requires proof that he, “with
intent to commit a crime . . . engage[d] in conduct which tends to effect the commission of such
crime,” N.Y. Penal Law § 110.00; namely, “[w]ith intent to cause serious physical injury to
another person, he causes such injury to such person or to a third person by means of a deadly
weapon or a dangerous instrument,” id. § 120.10(1). Jones’ second-degree assault conviction
requires proof that he, “[w]ith intent to cause physical injury,” caused such injury “by means of a
deadly weapon or a dangerous instrument.” Id. § 120.05(2). Where a “dangerous instrument” is
“any instrument [or] article” which, “under the circumstances in which it is used, attempted to be
9
used, or threatened to be used, is readily capable of causing death or other serious physical
injury.” Id. § 10.00(13). And where “physical injury” means “impairment of physical condition
or substantial pain.” Id. § 10.00(9).
In this case, the evidence adduced at trial is sufficient to support the trial court’s
determination that Jones committed the crimes for which he was convicted.
The trial court could have found beyond a reasonable doubt that Jones had an intent to
cause serious physical injury to Parks, a finding necessary to support a conviction of attempted
first-degree assault (as well as mere physical injury, which is a requisite finding for seconddegree assault). Parks testified that Jones threatened to “get her” after Jones’ mother kicked him
out of the house. (Dkt. No. 14-5 at 49-51.) She testified that Jones followed through on that
threat and that he employed the use of an object described as silvery and flat, leading to
significant injury to Parks’ face. (Id. at 51-53) Parks testified that the blood filled her sweater,
that she received liquid sutures at the hospital after the incident that required a follow-up visit,
and that she required a week of bedrest to heal from the bruising to her ribs caused by Jones’
assault. (Id. at 51–56.) The alleged assault was only halted by the appearance of Jones’ brother.
(Id. at 53.) The trial court had ample evidence from which to conclude that Jones intended to
seriously injure Parks, and under the deferential standard of review described in Jackson, this
Court cannot determine that the evidence was insufficient with respect to this element. 1
1
Jones’ reliance on People v. Gilford, 65 A.D.3d 840 (N.Y. App. Div. 1st Dep’t 2009), is
misplaced. Jones argues that in Gilford the court found that where the defendant’s knife caused
only “superficial” injury to the victim’s abdomen, the defendant did not cause “serious physical
injury” to the victim sufficient to support a conviction of first-degree assault. (Dkt. No. 16 at
10–11 (citing Gilford, 65 A.D.3d at 841).) But the court in Gilford confirmed that, as here,
where the defendant’s conduct “evinced an intent to cause serious physical injury,” attempted
assault in the first degree is a valid conviction. Gilford, 65 A.D.3d at 841.
10
The trial court could also have found beyond a reasonable doubt that Jones used a deadly
weapon or a dangerous instrument, which is a finding necessary to support both a conviction of
attempted first-degree assault and second-degree assault. In rejecting Jones’ claim that the trial
evidence was legally insufficient as to this element, the First Department held that “[t]he
evidence supports a reasonable inference that [Petitioner] cut the victim’s face with a razor
blade, as opposed to merely punching her, and that he did so with the intent to cause serious
physical injury.” Jones, 110 A.D.3d at 493. This Court agrees with that determination. Parks
testified that she noticed “a silvery item” that she described as “flat” (Dkt. No. 14-5 at 52), and
her wounds required liquid sutures and warranted follow-up treatment (id. at 55). The trial court
could have rationally concluded from this testimony that Jones used a dangerous instrument.
Jones’ remaining arguments—including the responding officer’s failure to identify the
use of a weapon in the forms he used to record the incident and the failure of medical personnel
to record the use of a weapon in the medical record (see Dkt. No. 16 at 8–9)—are unavailing as
they go to the weight of the evidence, which the Court cannot consider. See McKinnon, 422 F.
App’x at 75. In viewing the evidence in the light most favorable to the prosecution, as this Court
is required to do, the trial court could have found the essential elements of both crimes beyond a
reasonable doubt. See Cavazo, 132 S. Ct. at 6.
B.
Cross-Examination of Park
Jones’ second alleged ground for habeas relief is that the court erred in precluding Jones’
counsel from questioning Parks regarding the color of her cellphone to support Jones’ theory that
Parks’ memory was unreliable or that the object in Jones’ hand during the assault was a fragment
of the cell phone and not a razor blade or knife. (Dkt. No. 1 at 8–9.)
The First Department refused to address these claims. It held that, because Jones “made
an offer of proof at trial that was completely different from the theory of relevance he asserts on
11
appeal, his claim that the court unduly restricted his cross-examination of the victim is
unpreserved.” Jones, 110 A.D.3d at 493. The First Department further found that “Defendant’s
constitutional argument is unpreserved for the same reason, as well as the additional reason that
defendant never asserted a constitutional right to pursue the line of inquiry at issue.” Id.
“[W]hen a petitioner fails to raise his federal claims in compliance with relevant state
procedural rules, the state court’s refusal to adjudicate the claim ordinarily qualifies as an
independent and adequate state ground for denying federal review.” Cone v. Bell, 556 U.S. 449,
465 (2009). However, a “‘state law ground is only adequate to support the judgment and
foreclose review of a federal claim if it is firmly established and regularly followed in the state,’
and application of the rule would not be ‘exorbitant.’” Bierenbaum v. Graham, 607 F.3d 36, 47
(2d Cir. 2010) (internal quotation marks omitted) (quoting Garvey v. Duncan, 485 F.3d 709,
713-14 (2d Cir. 2007)). A state court’s finding of procedural default “will bar federal habeas
review of the federal claim, unless the habeas petitioner can show ‘cause’ for the default and
‘prejudice attributable thereto,’ or demonstrate that failure to consider the federal claim will
result in a ‘fundamental miscarriage of justice.’” Harris v. Reed, 489 U.S. 255, 262 (1989)
(citations omitted); see Gutierrez v. Smith, 702 F.3d 103, 111-12 (2d Cir. 2012).
The First Department’s refusal to consider Jones’ claim based on his failure to present a
theory of relevance on appeal that was consistent with the offer of proof at trial, “is well settled
under New York law,” which instructs “that the failure to specifically alert a trial court to the
basis for an objection—including making an offer of proof where required—bars appellate
review.” Rivera v. Miller, No. 2 Civ. 6773, 2003 WL 21321805, at *14 (S.D.N.Y. June 10,
2003); see Jones, 110 A.D.3d at 493 (citing People v. Brown, 298 A.D.2d 176 (N.Y. App. Div.
1st Dep’t 2002)).
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And even if this Court were to consider this claim, there was no error in the First
Department’s alternative holding that Jones “was not deprived of his right to cross-examine
witnesses and present a defense.” Jones, 110 A.D.3d at 493 (citing Crane v. Kentucky, 476 U.S.
683, 689–90 (1986); Delaware v. Van Arsdall, 475 U.S. 673, 678–79 (1986)). The alternative
merits determination by the First Department is, in any event, binding on this Court on habeas
review unless contrary to, or an unreasonable application of, federal law as decided by the
Supreme Court. 28 U.S.C. § 2254(d)(1); see Harrington v. Richter, 562 U.S. 86, 102–03 (2011)
(noting that in order to obtain 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.”).
A criminal defendant, under federal law, is entitled to present a defense that includes
“the basic right to have the prosecutor’s case encounter and ‘survive the crucible of meaningful
adversarial testing.’” Crane, 476 U.S. at 690–91 (quoting United States v. Cronic, 466 U.S. 648,
656 (1984)). This includes the right to confrontation of opposing witnesses so as “to secure for
the opponent the opportunity of cross-examination.” Van Arsdall, 475 U.S. at 678 (quoting
Davis v. Alaska, 415 U.S. 308, 315–16 (1974)) (internal quotation mark omitted).
But “[i]t does not follow, of course, that the Confrontation Clause of the Sixth
Amendment prevents a trial judge from imposing any limits,” including the imposition of
“reasonable limits on . . . cross-examination based on concerns about, among other
things, . . . interrogation that is . . . only marginally relevant.” Id. at 679; see also Michigan v.
Lucas, 500 U.S. 145, 149 (1991); Crane, 476 U.S. at 690 (1986). Here, the trial court sustained
objections to questions regarding the color of the bag Parks was carrying as well as the type and
color of the phone Parks was using. (Dkt. No. 14-5 at 66–67.) The trial court explicitly noted
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that such information was “irrelevant.” (Id. at 66.) Counsel for Jones was afforded a reasonable
opportunity to question Parks concerning all other relevant details surrounding the case. (See
generally id. at 61–85.)
“Combining the standard for restricting cross-examination with the AEDPA standard, in
order to grant [a] habeas petition we would have to conclude not only that the trial court abused
its ‘broad discretion’ by precluding cross-examination . . . but also that the Appellate Division
could not reasonably have determined that the [evidence] would have been excludable had the
trial court properly applied ‘standard rules of evidence concerning admissibility’” Watson v.
Greene, 640 F.3d 501, 510 (2d Cir. 2011) (quoting Wade v. Mantello, 333 F.3d 51, 62 (2d Cir.
2003)). The Court cannot so conclude.
C.
Jones’ Request to Proceed Pro Se
Jones’ third ground for habeas relief is that the trial court erred in delaying consideration
of his request to proceed pro se. (Dkt. No. 1 at 10–11.) The First Department found that Jones
“did not properly preserve his claim that the court erred in delaying its consideration of his
request to proceed pro se—asserted for the first time during cross-examination of the victim—
until after the victim’s testimony had concluded.” Jones, 110 A.D.3d at 493. Moreover, it found
that Jones “abandoned [his claim to represent himself] when, through counsel, [Jones] withdrew
his request to represent himself.” Id. For the reasons discussed above, the First Department’s
finding of procedural default “bar[s] federal habeas review of the federal claim, unless the
habeas petitioner can show ‘cause’ for the default and ‘prejudice attributable thereto,’ or
demonstrate that failure to consider the federal claim will result in a ‘fundamental miscarriage of
justice.’” Harris, 489 U.S. at 262 (1989) (citations omitted).
Here, the First Department relied on both preservation and abandonment, each of which
is an independent and adequate state procedural rule that bars habeas relief. See Kemp v. New
14
York, No. 07 Civ. 6996, 2009 WL 306258, at *9 (S.D.N.Y. Feb. 9, 2009) (“The Second Circuit
has recognized that New York’s preservation rule typically constitutes an independent and
adequate state procedural ground on which the Appellate Division may deny a criminal
defendant's appeal.”) (citing Garcia v. Lewis, 188 F.3d 71, 76–77, 79 (2d Cir. 1999)); Bailey v.
Ercole, No. 6 Civ. 5811, 2007 WL 4707738, at *8 (S.D.N.Y. Aug. 17, 2007) (“As a procedural
mechanism, abandonment is firmly established and regularly enforced in New York courts.”).
In any event, Petitioner fails to establish a violation of his Sixth Amendment right to
represent himself. See Faretta v. California, 422 U.S. 806, 819–20 (1975) (“The right to defend
is given directly to the accused . . . .”). The Second Circuit has made clear that “the right to
proceed pro se ‘is unqualified only if exercised before the commencement of trial.’” United
States v. Matsushita, 794 F.2d 46, 51 (2d Cir. 1986) (quoting United States v. Brown, 744 F.2d
905, 908 (2d Cir. 1984)). “After a trial has begun, a criminal defendant’s right to represent
himself ‘is sharply curtailed.’” United States v. Pickett, 34 (2d Cir. 2010) (quoting United States
v. Stevens, 83 F.3d 60, 67 (2d Cir.1996)). When asserted during trial, “[t]he prejudice to the
legitimate interests of the defendant must be balanced against the potential disruption of the
proceedings in progress.” Matsushita, 794 F.2d at 51.
“In weighing the prejudice to the legitimate interests of the defendant, the court should
consider ‘the defendant’s reasons for the self-representation request, the quality of counsel
representing the party, and the party’s prior proclivity to substitute counsel.’” Pickett, 387 F.
App’x at 34 (quoting Matsushita, 794 F.2d at 51)). Here, the trial court considered Jones’ reason
for self-representation—his desire to pose certain question to Parks—and allowed Jones an
opportunity to convey those question to his counsel. (Dkt. No. 14-5 at 80–81.) After Parks’
testimony, the trial court sought to provide Jones an opportunity to present additional arguments
15
on the matter, but Jones continued to absent himself from the courtroom until his attorney
informed the trial court that Jones declined to go pro se. (Id. at 85–89.)
The trial court did not improperly delay its consideration of Jones’ request to represent
himself, made for the first time during the cross-examination of a key witness and abandoned
after the close the State’s case. The trial court explicitly addressed Jones’ stated concerns
regarding questions he desired put to the witness and provided an appropriate time and place for
Jones to fully raise and discuss his motion to represent himself. The right to self-representation
“is not a license to abuse the dignity of the courtroom,” and Clark v. Perez, 510 F.3d 382, 395
(2d Cir. 2008) (quoting Faretta, 422 U.S. at 834 n.46)). Jones’ claim for relief on this ground is
denied.
D.
Sentencing
Finally, Jones argues that his concurrent sentences of twenty years to life are excessive
and that the court improperly relied on misinformation about Jones’ prior criminal history in
imposing the sentence. (Dkt. No. 1 at 11–13.)
First, challenges to the term of a sentence are not cognizable on habeas review if the
sentence falls within the statutory range, unless they raise an issue of federal or constitutional
law. See, e.g., Lewis v. Jeffers, 497 U.S. 764, 780 (1990). “No federal constitutional issue is
presented where, as here, the sentence is within the range prescribed by state law.” White v.
Keane, 969 F.2d 1381, 1383 (2d Cir. 1992). Jones received concurrent sentences of twenty years
to life. He does not argue that the sentence falls outside of the statutory range. Accordingly, the
excessive sentence claim fails. See John v. Griffen, No. 13 Civ. 922, 2014 WL 866277, at *15
(S.D.N.Y. Mar. 4, 2014) (“Because Petitioner’s underlying sentence did not exceed the
maximum prescribed, Petitioner’s excessive sentence claim is inappropriate for habeas relief.”).
The claim for relief on this ground is denied.
16
As to Jones’ claim that the prosecutor relied on incorrect information about his prior
criminal history, the First Department found that “[t]he record does not establish that defendant’s
sentence was based on any improper criteria” and “perceive[d] no basis for reducing the
sentence.” Jones, 110 A.D.3d at 493–94. Jones here argues that the “prosecutor stretched the
truth when he encouraged the court to rely on what he characterized as two additional violent
crimes, even though one was not classified as violent, and the other was never proven at trial.”
(Dkt. No. 1 at 12.) In its opposition, the State admits that the misdemeanor assault for which
Jones was convicted is not a “violent” assault under the state sentencing scheme, but argues that
the prosecutor was instead using the term “violent” in its colloquial sense, in which “any assault
is a ‘violent’ crime.” (Dkt. No. 13 at 29.)
It is certainly the case that, under New York law, a sentencing court may not consider
conduct for which a defendant has been acquitted. See People v. Varlack, 259 A.D.2d 392, 394
(N.Y. App. Div. 1st Dep’t 1999); People v. Coward, 100 A.D.2d 628, 628 (N.Y. App. Div. 2d
Dep’t 1984). Moreover, “[m]isinformation or misunderstanding that is materially untrue
regarding a prior criminal record, or material false assumptions as to any facts relevant to
sentencing, renders the entire sentencing procedure invalid as a violation of due process.”
United States v. Malcolm, 432 F.2d 809, 816 (2d Cir. 1970). But the statements by the
prosecutor were not materially untrue and the trial court was entitled to consider information
regarding charged and pending conduct in determining an appropriate sentence. See People v.
Gonzalez, 242 A.D.2d 306, 306–07 (App. Div. 2d Dep’t 1997) (“It was within the court’s
discretion to consider the defendant’s prior criminal history, including crimes for which he has
never been tried or convicted as long as the information regarding such crimes was reliable and
accurate” (citations omitted)). Simply put, “the sentencing proceedings [were not] so permeated
with improper considerations and prejudicial references as to deprive the defendant of due
17
process of law.” People v. Bejarano, 287 A.D.2d 727, 727–28 (App. Div. 2nd Dep’t 2001). The
claim for relief on this ground is denied.
III.
Conclusion
For the foregoing reasons, the Petition is DENIED. The Clerk of Court is directed to
close this case.
SO ORDERED.
Dated: December 12, 2016
New York, New York
____________________________________
J. PAUL OETKEN
United States District Judge
COPY MAILED TO PRO SE PARTY BY CHAMBERS.
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