Wright v. Poole

Filing 37

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 21 Report and Recommendations. Having reviewed de novo Magistrate Judge Fox's R&R and the record on which it was based, the R&R is adopted in its entirety, and the Petition is dismissed. Because Pe titioner 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)(2); Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107, 111-13 (2d Cir. 2000). The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith, see Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court is respectfully directed to close this case. (Signed by Judge Kenneth M. Karas on 9/28/2012) The Clerks Office Has Mailed Copies. (fk)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

BRUCE WRIGHT,
Petitioner,
Case No. 02-CV -8669 (KMK)(MDF)
v.
SUPERINTENDENT POOLE,
Five Points Correctional Facility,

ORDER ADOPTING REPORT AND
RECOMMENDATION

Respondent.

KENNETH M. KARAS, District Judge:
On December 9, 1997, a jury in Dutchess County, New York, convicted Bruce Wright
("Petitioner") of second degree burglary. On September 29, 1998, the trial judge sentenced
Petitioner to twenty years in prison as a Persistent Violent Felony Offender. See People v.

Wright, 724 N.Y.S.2d 351 (App. Div. 2001). The Appellate Division affirmed Petitioner's
conviction, id., and the Court of Appeals denied Petitioner's request for leave to appeal. See

People v. Wright, 759 N.E.2d 382 (mem.) (N.Y. 2001). On October 30,2002, Petitioner,
proceeding prose, filed a petition for writ of habeas corpus with this Court under 28 U.S.C.

§ 2254 (the "Petition"). (Dkt. No. 1.) The Court referred the case to Magistrate Judge Mark D.
Fox pursuant to 28 U.S.C. § 636(b ). 1 Magistrate Judge Fox permitted the Petition to stay pending
for several years so that Petitioner could attempt to exhaust his state remedies by filing a
collateral appeal under New York Criminal Procedure Law section 440.10. (Dkt. No. 11.) On

1

This case was referred to Magistrate Judge Fox by Judge Colleen McMahon, to whom
this case initially was assigned. The case was reassigned to this Court on August 6, 2007. (Dkt.
No. 19.)

June 30, 2005, a New York trial court denied Petitioner's section 440.10 motion (Aff. in Answer
to a Petition for a Writ of Habeas Corpus ("Resp't Ex.") 42), and the Appellate Division denied
leave to appeal on December 1, 2005, (Resp't Ex. 47). Magistrate Judge Fox subsequently
issued a Report and Recommendation ("R&R") concluding that the Court should refuse to further
stay this proceeding and should deny the Petition in all respects. (Dkt. No. 21.) Petitioner
submitted timely objections to Magistrate Judge Fox's R&R. (Objections to Magistrate's R&R
("Obj.").) For the reasons set forth herein, the Court adopts the R&R in its entirety and dismisses
the Petition.
I. Background

The Court adopts the factual and procedural background of this case as set forth in the
R&R on pages 1-5, and assumes the Parties are familiar therewith.
II. Discussion
A. Standard of Review

I. Review of Magistrate Judge's Report & Recommendation
A district court reviewing a report and recommendation addressing a dispositive motion
"may accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge." 28 U.S.C. § 636(b)(l); see also Donahue v. Global Home Loans & Fin., Inc.,
No. 05-CV-8362, 2007 WL 831816, at *1 (S.D.N.Y. Mar. 15, 2007). Under 28 U.S.C.

§ 636(b)(l) and Federal Rule of Civil Procedure 72(b), parties may submit objections to the
magistrate judge's report and recommendation. The objections must be "specific" and "written,"
Fed. R. Civ. P. 72(b)(2), and must be made "[w]ithin 14 days after being served with a copy of
the recommended disposition," id.; see also 28 U.S.C. § 636(b)(l), plus an additional three days

2

when service is made pursuant to Federal Rule of Civil Procedure 5(b)(2)(c)-(f), see Fed. R. Civ.
P. 6(d).
Where a party submits timely objections to a report and recommendation, as Petitioner has
here (Dkt. No. 23), the district court reviews de novo the parts of the report and recommendation
to which the party objected. See 28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(b)(3); Donahue, 2007
WL 831816, at * 1. The district court "may adopt those portions of the ... report [and
recommendation] to which 'no specific written objection' is made, as long as the factual and legal
bases supporting the findings and conclusions set forth in those sections are not clearly erroneous
or contrary to law." Eisenberg v. New England Motor Freight, Inc., 564 F. Supp. 2d 224, 226
(S.D.N.Y. 2008) (quoting Fed.R.Civ.P. 72(b)(2)).
2. Review of Petition for Habeas Corpus Relief
Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), "[a]n application
for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State
court shall not be granted with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the 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 ofthe United States .... " 28 U.S.C. § 2254(d)(l). Thus, Petitioner is entitled
to habeas corpus relief only if he can show that "the state court 'unreasonably' applied law as
established by the Supreme Court in ruling on [P]etitioner's claim, or made a decision that was
'contrary to' it." Cousin v. Bennett, 511 F.3d 334,337 (2d Cir. 2008) (quoting 28 U.S.C.
§ 2254(d)(l)). "While 'the precise method for distinguishing objectively unreasonable decisions
from merely erroneous ones' is somewhat unclear, 'it is well-established in [the Second] Circuit
that the 'objectively unreasonable' standard of§ 2254(d)(1) means that petitioner must identify
3

some increment of incorrectness beyond error in order to obtain habeas relief.'" Sarto v. Herbert,
497 F.3d 163, 169 (2d Cir. 2007) (quoting Torres v. Berbary, 340 F.3d 63, 68 (2d Cir. 2003)
(internal alterations omitted) (emphasis in original)). The state court's determination of factual
issues is presumed correct, and Petitioner has "the burden of rebutting the presumption of
correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(l); see also Hoi Man Yung

v. Walker, 468 F.3d 169, 176 (2d Cir. 2006).
B. Analysis
I. Petitioner's Objection to Magistrate Judge Fox's January 27, 2006 Order

Petitioner objects to Magistrate Judge Fox's decision to deny Petitioner's request for a
stay of these proceedings. (Obj.

~

2.) The Court construes Plaintiffs objection as a request to set

aside Magistrate Judge Fox's January 27, 2006 Order. (Dkt. No. 11.)2 Petitioner wanted a further
stay so that he could pursue a writ of error coram nobis in the Appellate Division, but Magistrate
Judge Fox recommended denial of that application in the January 27, 2006 Order. (R&R 2.) In
Petitioner's section 440.10 motion, the New York trial court had ruled that Points 5, 6, 9, and 10
were procedurally defaulted, because they were not raised in Petitioner's direct appeal. (Resp't
Ex. 42; R&R 2.) Petitioner apparently believes he can prevent these claims from being defaulted
in his federal habeas Petition by first pressing them by way of a writ of error coram nobis in the
Appellate Division. (R&R 2; Dkt. No. 11.) However, "the writ of error coram nobis lies in the

2

Pleadings submitted by pro se litigants are held to a lesser standard than those drafted
by practicing attorneys. See Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402 (2007) ("Even
in the formal litigation context, prose litigants are held to a lesser pleading standard than other
parties."). Because Petitioner is proceeding pro se, the Court construes his pleadings liberally so
as to interpret them to raise the strongest arguments that they suggest. See Triestman v. Fed.
Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006).

4

state appellate court only to vacate an order determining an appeal on the ground that the
defendant was deprived of the effective assistance of appellate counsel." Turner v. Artuz, 262
F.3d 118, 123 (2d Cir. 2001) (internal quotation marks and alterations omitted); see also Tinea v.

Heath, No. 09-CV-3357, 2012 WL 4328361, at *6 (E.D.N.Y. Sept. 19, 2012) (same). None of
the claims which Petitioner presses in this habeas proceeding is for ineffective assistance of
appellate counsel. It would therefore be futile to stay these proceedings while Petitioner pursues
a writ of error coram nobis. See Rhines v. Weber, 544 U.S. 269, 277-78 (2005) (noting that
"district courts should place reasonable time limits on a petitioner's trip to state court and back"
and "structur[e] the stay" in a manner consistent with "the timeliness concerns reflected in" the
AEDPA); Postley v. Rozum, No. 08-CV-4479, 2009 WL 5217074, at *4 (E.D. Pa. Dec. 30, 2009)
(applying Rhines and denying stay as futile where unexhausted claims clearly were procedurally
defaulted in state court); Morris v. Phillips, No. 04-CV-4597, 2006 WL 3694545, at *1 n.2
(E.D.N.Y. Dec. 13, 2006) (denying a stay to exhaust three claims in state court because pressing
the claims in state court "would be futile since they would be time-barred"). Accordingly,
Magistrate Judge Fox correctly denied Petitioner's request to further stay this proceeding. (R&R

2,4Y
Importantly, however, Magistrate Judge Fox also recommended that the Court deem the
Petition amended to include the claims raised in Petitioner's section 440.10 motion. (R&R 4.)

3

Petitioner now claims that Magistrate Judge Fox misunderstood his intentions and that
he actually wanted to use the writ of error coram nobis to assert that his appellate counsel was
ineffective for failing to raise Points 5, 6, 9, and 10 of his section 440.10 motion on direct
appeal. (Obj. ,-r 2.) Even if this is true, Petitioner's stay request should still be denied because,
as explained below, in subsection II(B)(5)(a), this assertion of ineffective assistance is plainly
meritless. See Rhines v. Weber, 544 U.S. 269, 277 (2005) (noting that a "district court would
abuse its discretion if it were to grant . . . a stay" so that a Petitioner could attempt to exhaust
claims which are "plainly meritless").
5

See Marin v. Cunningham, No. 05-CV-3245, 2007 WL 2479855, at *3 (E.D.N.Y. Aug. 27, 2007)
("Because petitioner is prose, I will deem his petition amended to assert the broader range of
ineffective assistance points that his state appellate lawyer may have attempted to raise in the
Appellate Division." (emphasis in original)); Clarke v. Goard, No. 07-CV-0366, 2007 WL
2324965, at* 1 (E.D.N. Y. Aug. 10, 2007) ("[I]n his reply memorandum of law, petitioner raised,
for the first time, an ineffective assistance of appellate counsel claim .... In light of petitioner's

pro se status, this court deems the petition amended to raise this claim .... "); Boyd v. Smith, No.
03-CV-5401, 2004 WL 2915243, at *5 n.5 (S.D.N.Y. Dec. 17, 2004) ("[T]he Court deems the
petition amended to include the ineffective assistance claim."). In his extensive objections to the
R&R, Petitioner does not object to this amendment and, indeed, appears to embrace it. (See Obj.
~~

1, 5-9 (insisting that his section 440.10 motion is "part of the record," that he previously filed

an "application for an amended petition" to raise those claims, and addressing the merits of Points
5,6, 8, and 9 ofhis section 440.10 motion).) Accordingly, the Court follows Magistrates Judge
Fox's recommendation and deems the Petition amended to include all claims raised in
Petitioner's section 440.10 motion.
2. Petitioner's Request for a Stay of the Proceedings in this Court
By letter dated January 22, 2007, Petitioner requested another stay so that a state court
could address issues which would put Ground Four of his original Petition in the proper legal
context and perspective. (R&R 3.) Staying a habeas petition while a petitioner seeks to exhaust
unexhausted claims in state court "is only appropriate when the district court determines there
was good cause for the petitioner's failure to exhaust" and when the "unexhausted claims are
[not] plainly meritless." Rhines, 544 U.S. at 277. Here, Petitioner fails to satisfy either
requirement. Ground Four asserts certain irregularities in the Indictment upon which Petitioner
6

was convicted. As explained more extensively below, Ground Four is procedurally defaulted
because Petitioner did not assert it in his request for leave to appeal to the Court of Appeals. See

infra subsection II(B)(3)(b ).
Petitioner claims that he had "good cause" for failing to exhaust Ground Four because his
counsel on direct appeal was ineffective in failing to raise it. In order to show ineffectiveness of
appellate counsel, a petitioner must show that appellate counsel selected grounds for appeal
unreasonably, such as by "omitt[ing] significant and obvious issues while pursuing issues that
were clearly and significantly weaker." Clark v. Stinson, 214 F.3d 315,322 (2d Cir. 2000)
(internal quotation marks omitted); see also Tatum v. Lempke, No. 10-PR-3801, 2012 WL
1958941, at *3 (2d Cir. Jan. 1, 2012) (same); Gomez v. Brown, 655 F. Supp. 2d 332, 347
(S.D.N.Y. 2009) (same). For the reasons explained below, the Court finds that appellate counsel
was not ineffective, because the claims appellate counsel pressed were reasonable, though not
ultimately persuasive, while Petitioner's perceived irregularities in his Indictment are fanciful.

See infra subsection II{B)(3)(b). Likewise, even if Petitioner could find some other good cause
for failing to exhaust Ground Four, Rhines would still require that the Court deny Petititioner's
stay request because Ground Four is "plainly meritless." Rhines, 544 U.S. at 277. Finally, a stay
would be futile because a New York court would deny as procedurally defaulted any attempt to
collaterally attack Petitioner's conviction in state court based on Ground Four. See N.Y. Crim.
Proc. Law § 440.1 0(2)(c) ("[T]he court must deny a motion to vacate a judgment when ... no ...
appellate review or determination occurred owing to the defendant's unjustifiable failure ... to
raise such ground or issue upon an appeal .... "). Thus, this Court denies Petitioner's January 22,
2007 request to further stay this proceeding.

7

3. Original Petition for Writ of Habeas Corpus
The original habeas Petition is divided into five grounds for relief.
a. Ground One
The first ground is that the Appellate Division erred by allowing the state to file an
untimely supplemental brief and by denying Petitioner's request for reargument after affirming
his conviction. A federal court "shall entertain an application for a writ of habeas corpus in
behalf of a person in custody pursuant to the judgment of a State court only on the ground that he
is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C.
2254(a). Plaintiffs claims about the timing of submissions to the Appellate Division regard only
state procedural matters that do not arise from the Federal Constitution. Cf Goodwin v. Duncan,
668 F. Supp. 2d 509, 518 (W .D .N.Y. 2009) (holding that prosecution's failure to comply with
state witness notice provision was not cognizable in federal habeas petition because the rule is a
"creation of state statute" and did not arise from the federal constitution); Bracamonte v. Ryan,
No. 10-CV-164, 2010 WL 7284599, at *3 (D. Ariz. Oct. 22, 2010) (recommending denial of
habeas petition on procedural grounds where petitioner failed to submit timely supplemental brief
to state appellate court), adopted by No. 10-CV-164, 2011 WL 3566168 (D. Ariz. Aug. 15, 2011).
Accordingly, Ground One does not provide a basis for habeas relief. See Estelle v. McGuire, 502
U.S. 62,67-68 (1991) (noting that "it is not the province of a federal habeas court to reexamine
state-court determinations on state-law questions").
b. Grounds Two Through Four
Grounds Two through Four contain objections to the jury instructions, the admission of
certain eyewitness testimony, and the Indictment, respectively. Each must be dismissed because
of procedural default. "An application for a writ of habeas corpus on behalf of a person in
8

custody pursuant to the judgment of a State court shall not be granted unless it appears that the
applicant has exhausted the remedies available in the courts of the State." 28 U.S.C.
§ 2254(b)(l)(A). A petitioner's failure to exhaust his state remedies will not be excused unless he
can "demonstrate cause for the default and actual prejudice as a result of the alleged violation of
federal law, or demonstrate that failure to consider the claims will result in a fundamental
miscarriage of justice." Coleman v. Thompson, 501 U.S. 722,750 (1991); see also Bousley v.
United States, 523 U.S. 614, 622 (1998) ("Where a defendant has procedurally defaulted a claim
by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can
first demonstrate either cause and actual prejudice, or that he is actually innocent." (citations and
internal quotation marks omitted)).
In order to exhaust his state court remedies regarding Grounds Two through Four,
Petitioner was required to raise these claims in his leave application to the New York Court of
Appeals. See O'Sullivan v. Boerckel, 526 U.S. 838,848 (1999) (dismissing as procedurally
defaulted three habeas claims that petitioner "pressed before the Appellate Court of Illinois," but
failed to "include[] in his petition for leave to appeal to the Illinois Supreme Court"); see also
Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir. 2001) ("To satisfy§ 2254's exhaustion requirement, a
petitioner must present the substance of the same federal constitutional claim[s] that he now urges
upon the federal courts, to the highest court in the pertinent state." (citation and internal quotation
marks omitted)). Petitioner failed to do so. Along with his leave application, Petitioner
submitted a supplemental prose brief discussing Grounds Two through Four. (Resp't Exs. 35,
37; R&R 7 n.3.) But his leave application itself(submitted by appellate counsel) did not make
reference to the prose brief or to any ofthe issues raised therein. (Resp't Exs. 35, 37; R&R 7
n.3.) Instead, the leave application simply stated that "[t]he case presents the following issues
9

that warrant consideration by the Court of Appeals." (Resp't Ex. 35 at 1.) It then proceeded to
list three issues (numbered one through three). (!d. at 1-2.) This list did not include any of the
issues discussed in the attached prose brief. (Resp't Ex. 37.)
In Grey v. Hoke, 933 F.2d 117 (2d. Cir. 1991), a habeas petitioner submitted to the New

York Court of Appeals his Appellate Division brief, which raised three claims, and a letter
arguing only one of them in a letter application. The Second Circuit found that the two claims not
argued in the letter were not properly presented, proclaiming that the Court of Appeals has no
"duty to look for a needle in a paper haystack." Id. at 120 (internal quotation marks omitted); see
also Smith v. Duncan, 411 F.3d 340, 345 (2d Cir. 2005) ("Even if the original Appellate Division

briefs are submitted along with the leave application, New York's highest court has no duty to
look for a needle in a paper haystack." (internal quotation marks omitted)). While the Second
Circuit also has ruled that a habeas petitioner properly raised the issues in his Appellate Division
briefby simply submitting the brief to the Court of Appeals with the statement that "[t]he
appellant hereby requests leave to appeal to this Court," Galdamez v. Keane, 394 F.3d 68, 75 (2d
Cir. 2005), it so held only because the Petitioner there, unlike in Grey, did not "affirmatively
direct[] the Court of Appeal's attention away from claims contained in the attached briefs," id. at
76 (emphasis in original).
Here, Petitioner "affirmatively directed the Court of Appeal's attention away from the
claims in the attached [prose] brief[]," id., by stating in his leave application that "[t]he case
presents the following issues that warrant consideration by the Court of Appeals," and then failing
to mention any of the claims contained in the prose brief, (Resp't Ex. 35; R&R 7 n.3). This case
is thus like Grey: Petitioner diverted attention from the issues raised in attached brief by
exclusively discussing other issues in his application. This Court is thus inclined to follow
10

Magistrate Judge Fox's recommendation and find that Grounds Two, Three, and Four of the
original Petition are procedurally defaulted. See Jordan v. Lefevre, 206 F .3d 196, 198-99 (2d Cir.
2000) (holding that petitioner failed to exhaust all his claims where application to the Court of
Appeals focused on only one claim and made passing reference to other claims in attached brief
to the Appellate Division); Hayward v. Brown, No. 09-CV-6495, 2010 WL 2629037, at *28
(S.D.N.Y. July I, 2010) ("Second Circuit and district court decisions within the Circuit have
applied Grey and Jordan to situations where the defendant discussed one or more issues at length
and also referred to enclosed Appellant Division briefs, without specifically asking the Court of
Appeals to review other issues in the enclosed briefs.").
Petitioner objects to this recommendation. He seeks to overcome the procedural bar by
asserting that his appellate counsel was ineffective in failing to raise the now procedurally-barred
claims on direct appeal. (Obj.

~

II.) As noted, a petitioner can overcome a procedural bar by

showing "cause for the default and actual prejudice." Coleman, 501 U.S. at 750. Good cause can
exist where "the procedural default is the result of ineffective assistance of counsel." Bossett v.
Walker, 41 F.3d 825, 829 (2d Cir. 1994) (internal quotation marks omitted). However, counsel
will only be found ineffective where his or her performance was so deficient that it "fell below an
objective standard of reasonableness," Strickland v. Washington, 466 U.S. 668, 688 (1984), and
where that deficiency caused the defendant prejudice, id. at 692.
A court must be careful not to second guess counsel's tactical choices "simply because the
chosen strategy has failed." United States v. Helgesen, 669 F.2d 69, 72 (2d Cir. 1982). "In the
appellate context, it is not enough for a petitioner claiming ineffective assistance to simply argue
that counsel did not raise certain non-frivolous arguments on appeal, as no duty to raise every
such argument exists." Jackson v. Morgenthau, No. 07-CV-2757, 2009 WL 1514373, at *11
II

(S.D.N.Y. May 28, 2009) (citing Evitts v. Lucey, 469 U.S. 387, 394 (1985)); see also Jones v.
Barnes, 463 U.S. 745, 752-54 (1983) (noting that where an attorney exercises reasonable
professional judgment in selecting the most promising issues to raise on appeal, a reviewing court
should not second guess thatjudgment); Sellan v. Kuhlman, 261 F.3d 303,317 (2d Cir. 2001)
("[The] process of winnowing out weaker arguments on appeal and focusing on those more likely
to prevail, far from being evidence of incompetence, is the hallmark of effective appellate
advocacy." (quoting Smith v. Murray, 477 U.S. 527, 536 (1986)) (internal quotation marks
omitted)). Thus, Petitioner must show that appellate counsel unreasonably selected the grounds
for appeal, such as by "omitt[ing] significant and obvious issues while pursuing issues that were
clearly and significantly weaker." Stinson, 214 F.3d at 322 (internal quotation marks omitted).
Petitioner apparently believes that his appellate counsel's ineffectiveness is established by
the mere fact that counsel did not raise some claims on direct appeal, thereby preventing
Petitioner from raising them now. (Obj.

~

11.) But, of course, the "good cause" exception would

swallow the procedural default rule if counsel were automatically ineffective simply for allowing
a procedural default to occur as to certain arguments. Instead, counsel may strategically
"winnow[] out weaker arguments on appeal" and focus the court's attention on those counsel
believes are "more likely to prevail." Murray, 477 U.S. at 536.
On direct appeal, Petitioner's lawyers focused on the weight and sufficiency of the
evidence, the trial judge's failure to qualify a defense witness as an expert in identifying forged
fingerprints, and the prosecutor's allegedly improper vouching for the credibility of the state's
witnesses. (Resp't Ex. 17.) As will be explained below, these claims are insufficient to form the
basis for federal habeas relief. See infra Subsection II(b)(3)(c). But the Court notes that these
claims were hardy frivolous. Likewise, it was reasonable for appellate counsel to focus the Court
12

of Appeals' attention on the prosecutor's alleged vouching given that the prosecutor's summation
was not a model of propriety.
By contrast, the arguments which Petitioner now insists that appellate counsel should have
raised (i.e., Grounds Two through Four of the Petition), are frivolous, bordering on
incomprehensible. Ground Two of the Petition asserts that the trial court wrongly "acknowledged
that direct evidence existed in the case at bar." (Dkt. No. 1, Petition at 12(b).) The court did so,
according to Petitioner, by giving "direct evidence instructions when they were not needed" since
"no[] [direct evidence] existed." (Dkt. No.1, Petition Mem. of Law at Ground Two.). But
because the state did present direct evidence in its case (R&R 4 ("Through direct and
circumstantial evidence, the State established ... that a second floor apartment over a garage had
been broken into and ransacked while the occupant was not present." (emphasis added)), it was
not improper for the judge to instruct the jury that it could consider direct evidence.
Ground Three objects to the testimony of Romuald and Maria Suchy. The Suchys were
the victim's neighbors. They testified that they saw the burglar leaving the garage. (R&R 4.)
While they provided a general description of the burglar and noted that he dropped a VCR, they
did not identify Petitioner as the culprit. (/d.) Petitioner insists that there was "no foundation"
for this testimony and that "the Court should have established specific parameters as to what
extent the witness would have been allowed to describe the perpetrator." (Dkt. No. 1, Petition at
12(c).) But Petitioner provides no specific, comprehensible reason for limiting or excluding this
obviously relevant eyewitness testimony.
Ground Four alleges a number of problems related to the Indictment. Specifically,
Petitioner asserts that: ( 1) he was not properly informed of the charges against him because he
was arrested on an unrelated charge and only later indicted for the burglary; (2) he was deprived
13

of his right to appear before the grand jury; (3) a felony complaint should have been filed; and (4)
the court did not have jurisdiction to proceed. (Dkt. No. I, Petition at 12(d).) But under New
York law, the state is allowed to proceed via an indictment rather than a complaint, see N.Y.
Crim. Proc. Law § 190.55(2)(c), and a defendant only has a right to testify before the grand jury
under limited circumstances, see id. § 190.50(5)(a), which Defendant does not allege existed.
Moreover, the Dutchess County court had jurisdiction to try Defendant, because the charged
crime occurred in Dutchess County. See People v. Greenberg, 678 N.E.2d 878, 879 (N.Y. 1997)
("Under our State Constitution and common law, a defendant has the right to be tried in the
county where the crime was committed .... "). 4
Accordingly, Petitioner has not demonstrated that the arguments omitted from his direct
appeal were "significant and obvious" or that those included were "clearly and significantly
weaker." Stinson, 214 F .3d at 322 (internal quotation marks omitted). Petitioner has thus failed
to show good cause for his default. Moreover, given the weakness of the defaulted claims,
Petitioner did not suffer prejudice due to appellate counsel's failure to include those claims in
Petitioner's leave application. Grounds Two through Four of the original Petition therefore
cannot provide the basis for federal habeas relief.
c. Ground Five
Ground Five reasserts the three arguments made in Petitioner's application for leave to
appeal to the New York Court of Appeals. (Dkt. No.1, Petition at 13.) First, he challenges the
weight and sufficiency of the evidence. A challenge to the weight of the evidence raises no

In any event, even if Ground Four had been preserved, Petitioner has not explained how
any of the alleged errors in the Indictment amounted to a violation of any federal right. See 28
U.S.C. § 2254(a).
4

14

constitutional claim and thus cannot form the basis for federal habeas relief. See Stallings v.
Heath, No. 11-CV-4894, 2012 WL 735399, at *18 (S.D.N.Y. Mar. 7, 2012) ("It is well-settled
that a weight of the evidence claim is not cognizable on federal habeas review."), adopted by No.
11-CV-4894, 2012 WL 1538513 (S.D.N.Y. May 2, 2012); Woullard v. Phillips, No. 04-CV-2225,
2007 WL 1958971, at *7 (S.D.N.Y. July 6, 2007) (same).
A challenge to the sufficiency of evidence does raise a constitutional claim, but Petitioner
has not met the "very heavy burden" required to establish it. Woullard, 2007 WL 1958971, at *5
(internal quotation marks omitted). To succeed, the Petitioner must establish that no "rational
trier of fact could have found the essential elements of the crime charged beyond a reasonable
doubt." Jackson v. Virginia, 443 U.S. 307,319 (1979). Moreover, "[t]he resolution of issues of
credibility ... is exclusively the province of the jury, whose determination may not be overturned
lightly." Gaston v. Rivera, 462 F. Supp. 2d 383, 392 (W.D.N.Y. 2006); see also United States v.
Khan, 53 F.3d 507, 514 (2d Cir. 1995) ("[T]he credibility of witnesses is the province of the jury
and we simply cannot replace the jury's credibility determinations with our own.").
Here, Petitioner challenges the jury's assessment of credibility. In addition to finding
Petitioner near the spot where some of the stolen goods were recovered, the prosecution relied on
a latent fingerprint of Petitioner which police officers testified they lifted from a stolen VCR.
(R&R 9.) All experts agreed that the latent print matched Petitioner's. (!d.) But Petitioner
argued that the print was not in fact lifted from the VCR. (!d.) The jury was entitled to credit the
officers' testimony as to the source of the latent print. At the very least, it was not an
"unreasonable application of clearly established[] federal law" for the New York courts to so find.
See 28 U.S.C. § 2254(d)(l).

15

Second, Petitioner complains that, while the trial court qualified a prosecution witness, Lt.
Rossetti, as an expert in identifying forged fingerprints, it did not similarly qualify a defense
witness, Mr. Holik. A habeas court reviewing the exclusion of testimony must "determine
whether the excluded testimony was material to the presentation of the defense so as to deprive
the defendant of fundamental fairness," "whether the exclusion was an error of constitutional
dimension, and whether the constitutional error was harmless beyond a reasonable doubt."
Rosario v. Kuhlman, 839 F.2d 918, 924 (2d Cir. 1988); see also Taylor v. Curry, 708 F.2d 886,
891 (2d Cir. 1983) ("Erroneous evidentiary rulings do not automatically rise to the level of
constitutional error sufficient to warrant issuance of a writ of habeas corpus. Rather, the writ
would issue only where petitioner can show that the error deprived her of a fundamentally fair
trial." (emphasis in original)).
Petitioner has not met this heavy burden. His expert was not prevented from testifying.
Instead, Petitioner's only complaint is that the trial court failed to qualify him as an expert in
forged finger prints. At trial, Petitioner moved to qualify Mr. Holik as "an expert in the area of
fingerprint comparison, analysis, and lifting." (R&R 11-12.) The prosecution did not object.

(!d.) When the prosecution, in rebuttal, sought to qualify Lt. Rossetti as an expert in forged
fingerprints, defense counsel objected because Holik had not been so recognized. (R&R 10.)
But, there was no basis for this objection because the defense had not sought to qualify Holik as
such. (R&R 11.) And even when Petitioner later called Holik on surrebuttal, he did not attempt
to qualify him as an expert in forged prints. (R&R 12.) At any rate, Mr. Holik was permitted to
testify about his experience and his views regarding the possibility that the latent print was
forged. (R&R 11-12.) Because Petitioner's expert was neither prohibited from testifying nor

16

denied a requested qualification, Magistrate Judge Fox is correct that the trial judge's conduct
was not "fundamentally unfair." (R&R 12.)
Third, Petitioner asserts that the prosecutor improperly vouched for the credibility of the
officers in summation. The Second Circuit has "repeatedly warned prosecutors not to vouch for
their witnesses' truthfulness." United States v. Modica, 663 F.2d 1173, 1179 (2d Cir. 1981 ); see

also United States v. Carr, 424 F.3d 213, 227 (2d Cir. 2005) ("It is well established that
prosecutors may not vouch for their witnesses' truthfulness." (internal quotation marks omitted)).

In short, a prosecutor may not express his or her "personal belief or opinion as to the truth or
falsity of any testimony." Modica, 663 F .2d at 1178 (internal quotation marks omitted).
However, "a criminal conviction is not to be lightly overturned on the basis of a prosecutor's
comments standing alone." United States v. Young, 470 U.S. 1, 11 (1985). "In order to grant
relief," a court must find that "the prosecutor's comments constituted more than mere trial error,
and were instead so egregious as to violate the defendant's due process rights." Tankleffv.

Senkowski, 135 F.3d 235, 252 (2d Cir. 1998). 5
This Court makes no such finding. In summation, the defense counsel suggested that the
police officers committed perjury when they testified that they lifted the latent print from the
VCR. (R&R 13.) In response, the prosecutor said, "I submit to you that" the officers "were
straightforward and frank" and had "no motive" to lie. (R&R 13.) He continued:
I submit to you that Vincent Rossetti ... is a different type of expert than the
others and you should be careful ... before you mix him with the others. He's the
head of the New York State Police Forensic Unit. His job depends on verifying
when fingerprints have been tampered with and he testifies in court ... he is

5

Actually, because this is a habeas review of a state court conviction, this Court would
have to find that it was "unreasonable" for the New York courts not to find the prosecutor's
comments so egregious as to violate Petitioner's due process rights. See 28 U.S.C. § 2254(d)(l).
17

somebody who has been qualified in many cases to do this kind of examination.
So when I asked Mr. Rossetti to come down here in response to the claim that [the
fingerprint] was manufactured, I submit to you that he's not merely comparing
prints, he's looking to see ifthere is any irregularity. And do you think that if
there was any problem under the microscope ... that he would somehow stand up
for these officers?
(R&R 13-14.) These comments do not rise to the level of objectionable vouching. "[W]hen the
defense counsel ... attack[ s] ... the credibility of the government agents, the prosecutor is
entitled to reply with rebutting language suitable to the occasion." United States v. Thai, 29 F.3d
785, 807 (2d Cir. 1994) (internal quotation marks omitted). Rebuttal language is "not improper"
where it "relie[s] on evidence in the case to corroborate" the witness' testimony, or "ask[s] the
jurors to draw inferences based on their common sense that would lead to the conclusion that [the
government's witness] had no motive to lie." United States v. Eltayib, 88 F.3d 157, 173 (2d Cir.
1996).
This is precisely what the prosecutor did by focusing on Lt. Rossetti's qualifications,
experience, and lack of motivation to lie. And although "[t]he well-advised prosecutor will
sidestep all uses of the pronoun '1'," "the phrase 'I submit"' is permissible, because it "expresses
not a personal belief but a contention, an argument, which, after all, is what a summation to a jury
is meant to be." /d.; see also United States v. Rivera, 22 F.3d 430, 438 (2d. Cir. 1994) (finding
the prosecutor's use of the phrase "I submit to you that" acceptable in light of defense counsel's
accusations that a government witness fabricated his testimony).
None of this justifies the prosecutor's statement that "when I asked Mr. Rossetti to come
down here in response to the claim that [the fingerprint] was manufactured, I submit to you that
he's not merely comparing prints, he's looking to see if there is any irregularity." (R&R 14.) One
could argue that by mentioning that he "asked" Lt. Rossetti to testify, the prosecutor implied that

18

he hand picked Rossetti, because he holds him in such high regard or believes him to be truthful.
This statement, however, is too ambiguous to rise to the level of"egregious[ness]" required by
the Second Circuit. Tankleff, 135 F.3d at 252. Indeed, when the summation is viewed as a whole,
it was not unreasonable for the state court to reject Petitioner's vouching claim. See Eltayib, 88
F.3d at 173 (noting that certain phrases where prosecutor uses pronoun "I" do "not automatically
wreck the case," unless "summation viewed as a whole ... reflect[s] improper vouching"
(internal quotation marks omitted) (alteration in original)).
4. Supplemental Petition for Writ of Habeas Corpus
Petitioner's supplemental petition was intended to inform the Court of his efforts to obtain
additional evidence to support Ground Four of his initial petition. (R&R I 5.) Because Ground
Four of the initial Petition has been procedurally defaulted, see supra subsection ll(B)(3)(b), the
Court denies the supplemental petition.
5. Petitioner's Section 440.10 Motion to Vacate the Judgment
a. Points Five, Six, Nine, and Ten
The state court found that Points Five, Six, Nine, and Ten of Petitioner's section 440. I 0
motion had been procedurally defaulted. (See Resp't Ex. 42.) "[A]n adequate and independent
finding of procedural default" by "the last state court rendering a judgment in the case," "will bar
federal habeas review of the federal claim." Harris v. Reed, 489 U.S. 255, 262 ( 1989).
Accordingly, Petitioner's habeas claims on these same points must be dismissed.
Petitioner again asserts that his procedural default is excused, because his counsel was
ineffective in allowing it to occur. (Obj. ~~ 4-8.) But again, despite conclusory allegations that
his appellate counsel acted unreasonably (id.

~~

6-7), Petitioner has not shown that the arguments

omitted from his direct appeal were "significant and obvious" and likely to succeed, nor that
19

those included were "clearly and significantly weaker." Stinson, 214 F.3d at 322 (internal
quotation marks omitted).
Indeed, Petitioner's claims here lack any merit. Points Five and Nine both allege that trial
counsel was ineffective, because he failed to move to suppress the fingerprint evidence. (See
Resp't Ex. 42 at 4.) But the record shows that trial counsel did seek suppression of this evidence.

(!d. at 13.) Point Six alleges that the trial court improperly amended the Indictment. (!d. at 4.)
But the amendment simply corrected the typographical error of listing a statute as section 145.25
rather than section140.25 (!d. at 8), and no constitutional foul resulted therefrom, see LanFranco

v. Murray, 313 F.3d 112, 119 (2d Cir. 2002) (explaining that there was no constitutional violation
where an amendment to the indictment corrected an obvious typographical error in the date).
Point Ten claims that the trial court erred in sentencing Petitioner as a "persistent violent felony
offender." (Resp't Ex. 42 at 4.) This claim is meritless, however, since that determination
merely involved a straightforward mathematical calculation. (Resp 't Ex. 16, People v. Wright,
Ind. No. 103/1997 (Dutchess Cnty. Ct. Sept. 24, 1998).) Because Points Five, Six, Nine, and Ten
lack any merit, appellate counsel's failure to raise them was reasonable and did not prejudice
Petitioner. Therefore, appellate counsel was effective, and Petitioner has not shown good cause
for his procedural defaults.
b. Points One, Three, and Eight
Points One, Three, and Eight all stem from Petitioner's erroneous belief that two separate
indictments were brought against him. But the state court found Petitioner's belief
unsubstantiated and dismissed these claims. (Resp't Ex. 42 at 6.) Because there is nothing
unreasonable about this factual finding, this Court dismisses them.

20

c. Point Two
Point Two alleges ineffective assistance of trial counsel. To establish this claim,
Petitioner must show that his attorney fell below an "objective standard of reasonableness," and
thereby prejudiced Petitioner. See Strickland, 466 U.S. at 688. Petitioner alleges that his counsel
committed several errors. First, Petitioner asserts that his attorney should not have called
Detective Hendryk because Hendryk helped establish that a crime was committed. (Resp't Ex. 39
at 13.) But Detective Hendryk also testified that Mr. Suchy, a neighbor who saw the perpetrator,
was twice unable to pick Petitioner out of a line-up. (R&R 20.) Moreover, the fact that a crime
was committed had already been established by the prosecution. (R&R 4.) Accordingly,
counsel's decision to call Detective Hendryk was a "strategic choice" that was "well within the
range of professionally reasonable judgments." Strickland, 466 U.S. at 699. Second, Petitioner
contends that counsel failed "to investigate ... who was [Petitioner's] complainant/accuser, thus
denying Petitioner "the opportunity to confront his accuser." (Resp't Ex. 39 at 1.) Petitioner does
not allege that counsel failed to cross-examine the prosecution's witnesses, or failed to object to
hearsay evidence. Instead, Petitioner apparently believes that there is a legal requirement that in
order to prosecute a crime the state must have a "complainant," who must meet specific legal
criteria among which are having either called the police or walked into the police station. (/d. at
14 ("Mr. Suchy couldn't have legally been the defendant's complainant! Simply because Mr.
Suchy did not call the police or nor [sic] did Mr. Suchy walk in the police station to make a
complaint against the defendant.").) Petitioner's attorney was hardly ineffective for failing to
embrace Petitioner's view of the law. Third, Petitioner faults his counsel for failing to pursue the
fanciful problems with the Indictment and the trial court's jurisdiction which formed the basis for
Ground Four of the Petition. (Id. at 1 (attorney failed to investigate "when the action
21

commenced"); id. at 4 (attorney never supplied defendant with the Indictment); id. at 15 (attorney
did not determine whether the court had jurisdiction, nor demand that the state file a criminal
complaint).) The Court has already noted that these claims are baseless. See supra subsection
II(B)(3)(b). Accordingly, Petitioner's attorney was not ineffective for failing to pursue them.
d. Point Seven
Point Seven alleges that the prosecution acted unethically by charging Petitioner with
possession of a controlled substance without intending to prosecute the charge. Because this
claim does not raise an issue of federal law, it must be dismissed. See 28 U.S.C. § 2254(a).
III. Conclusion
Having reviewed de novo Magistrate Judge Fox's R&R and the record on which it was
based, the R&R is adopted in its entirety, and the Petition is dismissed.
Because Petitioner has not made a substantial showing of the denial of a constitutional
right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c)(2); Lucidore v. N.Y.
State Div. of Parole, 209 F .3d 107, 111-13 (2d Cir. 2000). The Court certifies, pursuant to 28
U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith, see
Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Clerk of the Court is respectfully directed to close this case.
SO ORDERED.
Dated:

September~~ , 20 12
White Plains, New York

22

Service List (By Mail):
Mr. Bruce Wright (98-A-6125)
Greenhaven Correctional Facility
P.O. Box 4000
Stormville, New York 12582-0010
Bridget R. Steller, Esq.
Assistant District Attorney
236 Main Street
Poughkeepsie, New York 12601