DeJesus v. Perez
Filing
17
OPINION AND ORDER re: 9 MOTION TO HOLD ACTION IN ABEYANCE. filed by Joshue DeJesus. By notice of motion dated May 10, 2016 (Docket Item ("D.I.") 9), petitioner seeks to stay consideration of his habeas corpus petition while he exha usts certain claims in state court. (As further set forth in this Order.) Accordingly, for all the foregoing reasons, petitioner's application to stay consideration of his habeas corpus petition while he exhausts claims in state court is denied. (Signed by Magistrate Judge Henry B. Pitman on 11/9/2016) Copies Sent By Chambers (cf)
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USDCSDNY
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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DOCUMENT
ELECTRONICALLY FILED
DOC#:
DA1E FIL~E~D:::-:-:l.J~o-v-:.
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(,-
JOSHUE DEJESUS,
Petitioner,
-against-
16 Civ. 2552
(LTS) (HBP)
OPINION
AND ORDER
ADA PEREZ,
Respondent.
-----------------------------------X
PITMAN, United States Magistrate Judge:
I.
Introduction
By notice of motion dated May 10, 2016 (Docket Item
("D.I.")
9), petitioner seeks to stay consideration of his habeas
corpus petition while he exhausts certain claims in state court.
For the reasons set forth below, the motion is denied.
II.
Facts
In September 2009, petitioner was convicted of murder
in the second degree following a jury trial in Supreme Court, New
York County (Affirmation in Opposition to Petitioner's Motion to
Stay Petition, dated June 14, 2016 (D. I. 13)
2).
("Resp. 's Aff. ") '!I
Petitioner, assisted by counsel, appealed his conviction to
the Appellate Division of the Supreme Court, First Department
(Resp. 's Aff. ~ 3).
Among other things, petitioner argued on
appeal that his rights under the Confrontation Clause of the
Sixth Amendment had been violated by the admission of testimony
suggesting that law enforcement had information that petitioner
was guilty of the murder even before the sole eyewitness to
testify at trial, Lenny Carrasco, had identified him to the
police (Resp. 's Aff.
~
3).
Petitioner also claimed that his
rights under the Confrontation Clause were violated by the
admission of testimony that Yanic Boras, or Johnny Bora, who did
not testify at trial, conveyed "firsthand knowledge of who shot"
the victim to the police (Resp. 's Aff.
~
3 (internal quotation
marks omitted)).
In a decision dated April 9, 2013, the Appellate
Division rejected petitioner's claims.
A.D.3d 476, 963 N.Y.S.2d 91
People v. DeJesus, 105
(1st Dep't. 2013).
In pertinent
part, the court found that the evidence concerning when petitioner became a suspect was offered for legitimate, nonhearsay
purposes.
People v. DeJesus, supra, 105 A.D.3d at 476, 963
N.Y.S.2d at 92-93.
Moreover, the testimony about Boras' state-
ment to the police was not specific and, therefore, did not
create a risk that the jury would infer that Boras' statement
inculpated petitioner.
People v. DeJesus, supra, 105 A.D.3d at
477, 963 N.Y.S.2d at 93.
2
Petitioner's appellate counsel successfully sought
leave to appeal to the New York Court of Appeals
4).
(Resp. 's Aff.
~
Counsel did not raise the claim concerning the testimony
about Boras' statement to the police (Resp. 's Aff.
~
4).
In a
decision dated March 31, 2015, the Court of Appeals affirmed the
Appellate Division's order.
People v. Garcia, 25 N.Y.3d 77, 30
N.E.3d 137, 7 N.Y.S.3d 246 (2015).
Petitioner, proceeding pro se, commenced this action on
March 28, 2016 (D.I. 1).
The petition asserted only one claim,
namely, that petitioner's "6th and 14th constitutional amendment
right [sic] to confrontation and to a fair trial" were violated
"by evidence that the police had identified petitioner as a
'specific suspect' hours before he was identified by prosecution
witness Carrasco"
(D.I. 1 at 6A).
As supporting facts for this
claim, petitioner stated, in part, that "[p]olice testimony at
[m]urder trial, about obtaining information from other person in
the course of the investigation violate [sic] petitioner['s]
confrontation clause"
(D.I. 1 at 6A).
Petitioner's memorandum of
law in support of his petition, however, also raises a claim
concerning the testimony about Boras' statement to the police
(D.I. 2 at 5-8).
Construing petitioner's motion leniently, see Haines v.
Kerner, 404 U.S. 519, 520-21
(1972)
3
(per curiam); Tracy v.
Freshwater,
623 F. 3d 90,
100-04
(2d Cir. 2010), petitioner seeks
to stay consideration of his petition in order to allow him to
exhaust two additional claims:
(1)
appellate counsel was inef-
fective for failing to exhaust the claim concerning the admission
of testimony about Boras' statement to the police and
(2)
the
merits of the claim concerning the admission of testimony about
Boras' statement to the police.
III.
Analysis
It is fundamental that a state prisoner seeking to
vacate his conviction on the ground that his federal constitutional rights were violated must first exhaust all available
state remedies.
465
(2009); Baldwin v. Reese,
v. Boerckel,
270,
28 U.S.C. § 2254(b); Cone v. Bell,
275
526 U.S.
838,
842
541 U.S. 27,
29
556 U.S.
(2004); O'Sullivan
(1999); Picard v. Connor,
(1971); Galdamez v. Keane,
449,
394 F. 3d 68,
72
404 U.S.
(2d Cir.
2005); Fama v. Commissioner of Corr. Servs., 235 F.3d 804,
808-09
(2d Cir. 2000)
If anything is settled in habeas corpus jurisprudence, it is that a federal court may not grant the
habeas petition of a state prisoner "unless it appears
that the applicant has exhausted the remedies available
in the courts of the State; or that there is either an
absence of available State corrective process; or the
4
existence of circumstances rendering such process
ineffective to protect the rights of the prisoner."
u.s.c. § 2254 (b) (1).
28
Aparicio v. Artuz, 269 F. 3d 78, 89 (2d Cir. 2001); accord Reed v.
Duncan, 326 F. App'x 582, 583 (2d Cir. 2009)
(summary order) . 1
Where a habeas petitioner has filed a "mixed petition,"
that is, a petition containing both exhausted and unexhausted
claims, a District Court has the discretion to stay consideration
of the exhausted claims while the petitioner exhausts his state
remedies with respect to the unexhausted claims.
Weber, 544 U.S. 269, 277-78
(2005).
Rhines v.
A stay to permit exhaustion
is appropriate if (1) the unexhausted claims are not meritless,
(2) the petitioner has good cause for failing to exhaust his
claims in state court and (3) the petitioner has not engaged in
intentional delay or abusive litigation tactics.
Assuming without deciding that a Rhines stay may be
granted where it is sought to exhaust claims that are not set
forth in the petition, McNeil v. Capra, 13 Civ. 3048
WL 4719697 at *6 (S.D.N.Y. Aug. 7, 2015)
(RA), 2015
(Abrams, D.J.)
(noting
that the propriety of granting a Rhines stay to exhaust unasserted claims is an open question in this Circuit), such a stay
1
A federal court can consider the merits of an unexhausted
claim asserted by a state prisoner, but only to deny the claim.
28 u.s.c. § 2254(b) (2)
5
is not warranted here because the un-asserted claims are
meritless.
Petitioner's claim that his appellate counsel was
ineffective for failing to raise before the New York Court of
Appeals the claim concerning the testimony about Boras' statement
to the police is meritless.
A criminal defendant in New York has
no right to appeal to the New York Court of Appeals; all such
appeals are discretionary.
Chalk v. Kuhlmann, 311 F.3d 525, 528
(2d Cir. 2002), citing N.Y. Crim. Proc. L.
§
460.20(2) (a),
(4).
A criminal defendant has no federal right to counsel with respect
to discretionary appeals.
( 197 4) .
Ross v. Moffitt, 417 U.S. 600,
610-11
Because a criminal defendant has no federal right to
counsel with respect to discretionary appeals, a criminal defendant has no right to the effective assistance of counsel with
respect to a discretionary appeal.
586, 587-88 (1982)
Wainwright v. Torna, 455 U.S.
(per curiam); Pena v. United States, 534 F.3d
92, 95 (2d Cir. 2008)
(~curiam);
Stephanski v. Superintendent
of Upstate Corr. Facility, 433 F. Supp. 2d 273, 288
(W.D.N.Y.
2006) .
To the extent petitioner is seeking a stay to exhaust
his claim concerning the admission of testimony about Boras'
statement to the police, the claim fails because it is procedurally barred.
In order to exhaust a claim, "a petitioner must
6
present his federal constitutional claims to the highest court of
the state before a federal court may consider the merits of the
petition."
Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991)
(internal quotation marks omitted); see also O'Sullivan v.
Boerckel, supra, 526 U.S. at 847-48; Smith v. Duncan, 411 F.3d
340, 345 (2d Cir. 2005).
Exhaustion requires that a prisoner
must even pursue discretionary state appellate remedies before he
can raise a claim in a habeas corpus proceeding.
Baldwin v.
Reese, supra, 541 U.S. at 29; O'Sullivan v. Boerckel, supra, 526
U.S. at 846-48.
Petitioner did not raise any claim concerning
the admission of testimony about Boras' statement to the police
before the New York Court of Appeals and that claim is, therefore, unexhausted.
Because petitioner's claim concerning the admission of
testimony about Boras' statement to the police is based on the
record of petitioner's trial and could have been raised on direct
appeal, petitioner has no procedural vehicle available to him to
exhaust the claim.
As the Court of Appeals for the Second
Circuit explained in Spence v. Superintendent, Great Meadow
Correctional Facility, 219 F.3d 162, 170 (2d Cir. 2000):
New York permits only one application for direct review,
. and having failed to raise the claim on
direct appeal [petitioner] may not seek collateral
relief in New York courts, see N.Y.Crim. Proc. Law§
440.10(2) (c) (McKinney 1994); Strogov v. Attorney Gen.,
7
191 F. 3d 188, 193 (2d Cir. 1999); Washington, 996 F.2d
at 1447; Grey, 933 F.2d at 120.
Because [petitioner]
failed to raise his claim in the ordinary appellate
process and can no longer do so, it is procedurally
defaulted.
See also Clark v. Perez, 510 F.3d 382, 392 (2d Cir. 2008)
("[A]
motion to vacate based on facts visible on the trial record must
be dismissed where the defendant unjustifiably failed to raise
the issue on direct appeal."); Jones v. Keane,
329 F.3d 290, 296
(2d Cir. 2003); Aparicio v. Artuz, supra, 269 F. 3d at 90-91;
Black v. McGinnis, 99 Civ. 755
(S.D.N.Y. Mar. 1, 2001)
(MBM), 2001 WL 209916 at *4
(Mukasey, D.J.).
Because petitioner no longer has a state remedy available to him with respect to his claim concerning the admissibility of testimony about Boras' statement to the police, the claim
is deemed exhausted.
Woodford v. Ngo, 548 U.S. 81, 92-93
(2006);
Gray v. Netherland, 518 U.S. 152, 161 (1996); Brown v. Senkowski,
152 F. App'x 15, 18 (2d Cir. 2005)
Artuz, 99 Civ. 2401
2000)
(summary order); Nevarez v.
(LBS), 2000 WL 718450 at *3 (S.D.N.Y. June 5,
(Sand, D.J.); Hurd v. Stinson, 99 Civ. 2426 (LBS), 2000 WL
567014 at *7
(S.D.N.Y. May 10, 2000)
(Sand, D.J.).
This apparent salve, however, proves to be cold comfort
to most petitioners because it has been held that when
"the petitioner failed to exhaust state remedies and
the court to which the petitioner would be required to
present his claims in order to meet the exhaustion
requirement would now find the claims procedurally
8
barred," federal habeas courts also must deem the
claims procedurally defaulted.
Aparicio v. Artuz, supra, 269 F.3d at 90, quoting Coleman v.
Thompson, 501 U.S. 722, 735 n.1 (1991); Norwood v. Hanslmaier,
No. 93 CV 3748, 1997 WL 67669 at *2 (E.D.N.Y. Feb. 11, 1997); see
also Coleman v. Thompson, supra, 501 U.S. at 731-32; Castille v.
Peoples, 489 U.S. 346, 350 (1989); Teague v. Lane, 489 U.S. 288,
297-98
(1989).
Thus, petitioner's claim concerning the admission
of testimony about Boras' statement to the police cannot provide
a basis for habeas relief because it is procedurally barred. 2
Petitioner could theoretically overcome the procedural
bar by demonstrating either (1) cause for and prejudice from
petitioner's failure to assert his claim concerning testimony
about Boras' statement to the police before the New York Court of
Appeals or (2) that a failure to consider the claim would result
in a fundamental miscarriage of justice.
2
Schlup v. Delo, 513
Any attempt to raise the claims concerning the admission of
testimony about Boras' statement to the police would also be
barred by New York Criminal Procedure Law Section 440.10 (2) (a),
which requires the denial of a motion to vacate a conviction if
"[t]he ground or issue raised upon the motion was previously
determined on the merits upon an appeal from the judgment." See
also Cardoza v. Rock, 731 F. 3d 169, 176 n.4 (2d Cir. 2013);
Dorsey v. Irvin, 56 F.3d 425, 426 (2d Cir. 1995).
Here, the
merits of petitioner's claim concerning the admission of testimony about Boras' statement to the police was already addressed
on the merits by the Appellate Division and cannot now be reasserted.
9
U.S. 298, 324-27 (1995); Coleman v. Thompson, supra, 501 U.S. at
748-50; Harris v. Reed, 489 U.S. 255, 262
Travis, 414 F.3d 288, 294
(1989); Green v.
(2d Cir. 2005).
However,
"because [a
habeas] petitioner does not have the right to counsel on a
discretionary appeal, an error by counsel during such a discretionary appeal cannot be considered as cause that can excuse
procedural default."
Chalk v. Kuhlmann, supra, 311 F.3d at 528,
citing Coleman v. Thompson, supra, 501 U.S. at 756-57; accord
DiGuglielmo v. Smith, 366 F.3d 130, 135 (2d Cir. 2004)
curiam) .
(per
In addition, in order to establish a fundamental
miscarriage of justice, petitioner would have to show that he is
actually innocent of the crime of which he was convicted.
States v. Olano, 507 U.S. 725, 736 (1993)
United
("In our collat-
eral-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)
may avoid [a procedural] default .
("A habeas petitioner
. by showing .
. that
failure to consider the claim will result in miscarriage of
justice, i.g., the petitioner is actually innocent."); accord
Johnson v. Bellnier, 508 F. App'x 23, 25 (2d Cir. 2013)
order); Sanchez v. Lee, 508 F. App'x 46, 48
(summary order) .
(summary
(2d Cir. 2013)
Petitioner offers no evidence to demonstrate
that he is actually innocent.
Thus, petitioner has not made
10
either of the showings that is necessary to overcome a procedural
bar.
Therefore, because petitioner's claim of ineffective
assistance of counsel is meritless and the claim concerning the
admission of testimony about Boras' statement to the police is
procedurally barred, petitioner has failed to satisfy the first
criterion for a Rhines stay.
IV.
Conclusion
Accordingly, for all the foregoing reasons, petitioner's application to stay consideration of his habeas corpus
petition while he exhausts claims in state court is denied.
Dated:
New York, New York
November 9, 2016
SO ORDERED
United States Magistrate Judge
Copies transmitted to:
All parties
11
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