Perez v. Lempke

Filing 14

DECISION AND ORDER denying petition for writ of habeas corpus and dismissing the petition. Signed by Hon. Michael A. Telesca on 7/13/11. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JOSE PEREZ,
No. 10-CV-0303(MAT)
DECISION AND ORDER

Petitioner,
-vsJOHN LEMPKE,
Respondent.

I.

Introduction
Jose R. Perez (“Perez” or “Petitioner") brings this habeas

corpus application pursuant to 28 U.S.C. § 2254 alleging that he is
in Respondent’s custody at Five Points Correctional Facility in
violation of his federal constitutional rights. Petitioner was
convicted after a jury trial in Seneca County Court (Bender, J.) on
charges of third degree criminal possession of a weapon, second
degree attempted assault, endangering the welfare of a child, and
second degree harassment. The charges stemmed from an incident in
which Petitioner repeatedly struck his former girlfriend Bobbie Jo
Halstead (“Halstead”) with a wrench, in the presence of Halstead’s
young son, mother, and several witnesses.
II.

Factual Background
A.
In

The Prosecution’s Case at Trial
May

2007,

Nicole

Miner

(“Miner”)

was

at

Halstead’s

apartment with Petitioner, and Halstead was chatting with someone

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else. Halstead had stopped dating Petitioner about a month or two
prior earlier. Petitioner told Miner, “[T]his fucking bitch is done
messing with me for the last time . . . I don’t know what I am
going to do, but I am going to make her sorry. I am going to hurt
her.” T.276.1 Sometime later in that month or the next, Petitioner
called Halstead and threatened her.
Shortly

after

midnight

on

June

14,

2007,

Bernard

Tibbs

(“Tibbs”), drove Halstead and her four-year-old son home to the
apartment

that

Halstead

shared

with

her

mother,

Donna

Stone

(“Stone”). Petitioner was lying in wait. As soon as Halstead opened
her car door, he punched her in the head. When Halstead got out of
the car, Petitioner hit her in the ear, eye, and nose with a nickel
plated wrench or ratchet.

Hearing her daughter’s “awful scream,”

Stone ran outside.
During the attack, Tibbs held Halstead’s child because he did
not want him to get hurt. When Petitioner started to chase
Tibbs, threatening to kill him, Tibbs directed the child to run
into the apartment. The child was screaming throughout Petitioner’s
attack on Halstead.
Neighbor Deon Watkins (“Watkins”) was on his way to bed when
he heard Halstead screaming. Looking out his window, Watkins saw
the attack in progress. While Stone was attempting to persuade

1

Citations to “T.__” refer to pages from the transcript of Petitioner’s
trial.

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Petitioner to leave, Petitioner struck Halstead again with the
metal object. Petitioner left only after another neighbor, told
Petitioner that “he needed to get the heck out of there.” T.257.
While the police were inside Halstead’s apartment filling out
paperwork, Petitioner called Halstead’s cell telephone. Halstead’s
mother answered and instead of giving the phone to Halstead, placed
Petitioner

on

speaker-phone.

Petitioner

stated

that

deserved what she got and that he was going to kill her.
B.

Halstead
T.285.

The Defense Case

Kevin Erb (“Erb”) met Petitioner at the Seneca County Jail in
the Fall of 2007, while Erb was being held for a probation
violation. Erb recognized Petitioner from an incident three months
earlier based upon Petitioner’s hairstyle, which he described as
“long dreads.”
On June 14, 2007, while on his way to see a friend at the
apartment complex where Halstead and her mother lived, Erb saw
Petitioner grab a blond-haired woman by her hair and slap her two
or three times with an open hand. Erb said that he “wasn’t like
paying, like a lot of details [sic]” because he did not want to get
involved. T.368. Erb did not intervene because he did not want
anything to do with the police.
Willie

Love

(“Love”)

encountered

Tibbs

(one

of

the

eyewitnesses) at the Seneca County Jail in January of 2008. Tibbs
said that he had to testify against Petitioner. According to Love,

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Tibbs saw Petitioner slap Halstead. Tibbs then was chased by
Petitioner. Tibbs purportedly also told Love that at the time of
the incident, “no baby [was] there” and “there was no metal
object.” T.379. Love had several prior convictions, including
harassment, assault, and larceny.
The jury returned a verdict of guilty on all charges (Criminal
Possession of a Weapon in the Third Degree, Attempted Assault in
the

Second

Degree,

Endangering

the

Welfare

of

a

Child;

and

Harassment in the Second Degree). Petitioner was sentenced, as a
persistent felony offender, to concurrent prison terms of fifteen
years to life on the third-degree criminal possession of a weapon
and

attempted

second-degree

assault

counts,

one

year

on

the

endangering the welfare of a child count, and fifteen days on the
harassment count.
III. General Legal Principles Applicable to Habeas Petitions
A.

Title 28, Sections 2254(a) and 2254(d)

Habeas relief is only available to redress errors in a state
court criminal proceeding that are of a federal constitutional
magnitude. 28 U.S.C. § 2254(a). The Anti-terrorism and Effective
Death Penalty Act (“AEDPA”) amended 28 U.S.C. § 2254(d) to provide
that an 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 unless the adjudication of the claim

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resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or 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)(1), (2). See also Williams v.
Taylor, 529 U.S. 362, 405 (2000).
B.

Adequate and Independent State Ground Doctrine

It is a well-settled aspect of federal habeas jurisprudence
that if “a state prisoner has defaulted his federal claims in state
court pursuant to an independent and adequate state procedural
rule, federal habeas review of the claims is barred” absent (1) a
showing of cause for the default and actual prejudice attributable
thereto, or (2) a showing that failure to consider the claims will
result in a “fundamental miscarriage of justice.” Coleman v.
Thompson, 501 U.S. 722, 750 (1991). A state ground will create
procedural default sufficient to bar habeas review if the state
ground first was an “independent” basis for the decision; this
means that the last state court to consider the claim rendering a
judgment in the case clearly and expressly rested its judgment on
a state procedural bar.” In addition, the state procedural bar must
be “adequate” to support the judgment-that is, it must be based on
a rule that is “‘firmly established and regularly followed’ by the

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state in question.” Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999)
(quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)).
IV.

Analysis of the Petition
A.

Denial of the Right to Testify at the Grand Jury

Petitioner contends that he was denied his right to testify
before the grand jury. On appeal, the Appellate Division, Fourth
Department, of New York State Supreme Court found that there was no
evidence in the record that Petitioner or his attorney gave the
required written notice to the District Attorney that Petitioner
intended to testify before the grand jury. People v. Perez, 67
A.D.3d 1324, 1325 (App. Div. 4th Dept. 2009) (citations omitted).
The Fourth Department further found that to the extent Perez
contended that he was denied effective assistance of counsel on the
ground

that

his

attorney

failed

to

effectuate

his

intent

to

testify, there was no indication in the record that Perez conveyed
or attempted to convey his wish to testify to his attorney. Id.
(citation omitted).
Perez’s claim pertaining to the denial of the right to testify
at the grand jury does not present a federal question and is not
cognizable on federal habeas review. While indictment by grand jury
is guaranteed by the New York State Constitution, see N.Y, Const.
Art. 1, § 6; People v. Iannone, 45 N.Y.2d 589, 594 (N.Y. 1978)),
such a right is purely a state-created right. E.g., Velez v. People
of the State of New York, 941 F. Supp. 300, 315 (E.D.N.Y. 1996).

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Moreover, claims based on alleged defects in grand jury proceedings
are not reviewable in a petition for habeas corpus relief. See
Lopez v. Riley, 865 F.2d 30, 32-33 (2d Cir. 1989)

(citing United

States v. Mechanik, 475 U.S. 66, 67 (1986)). This specifically
includes a claim that a defendant was deprived of his right to
testify before the grand jury. Brown Woods, No. 07 Civ. 10391
(JGK),

2010

WL

2605744,

at

*2

(S.D.N.Y.

June

9,

2010).

The

rationale is that conviction by a petit jury transforms any defect
with the grand jury proceeding into harmless error because the
trial conviction establishes not only probable cause to indict but
also proof of guilt beyond a reasonable doubt. Lopez, 865 F.2d at
32-33 (citation omitted).
Because Petitioner was convicted after a jury trial at which
the prosecution proved his guilt beyond a reasonable doubt, any
error with regard to his right to testify at the grand jury
proceeding was rendered harmless. See id.
B.

Erroneous Admission of Evidence of Petitioner’s Prior Bad
Acts

Petitioner contends that the trial court erred in allowing the
prosecution to elicit testimony from Halstead’s friend, Miner,
regarding threats Petitioner made against Halstead prior to the
attack. At trial, Miner testified that in May 2007, she was at
Halstead’s apartment with Petitioner, while Halstead was talking
with another person. At the time, Petitioner told Miner, “[T]his
fucking bitch is done messing with me for the last time . . . I
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don’t know what I am going to do, but I am going to make her sorry.
I am going to hurt her.” T.276. Miner also testified that in May or
June 2007, she was with Halstead when Halstead received calls on
her cell phone from petitioner. Halstead would hold up her phone so
that Miner could hear the conversation, too. Miner recognized
Petitioner’s voice. Petitioner accused Halstead of having sex with
other men and threatened her. T.279.
The

trial

court

instructed

the

jury

that

the

testimony

concerning threatening statements by Petitioner regarding Halstead
was not offered as an attempt to prove that Petitioner possessed a
propensity or disposition to commit criminal or other bad acts. The
court emphasized that, if the jury found the evidence to be true,
it could not be considered to establish criminal propensity.
Rather, the court explained, the evidence was offered solely to
show that Petitioner had a motive to commit the offenses alleged in
the indictment. See T.440-41.
On

direct

appeal,

the

Appellate

Division

rejected

this

evidentiary claim, holding that the trial court properly exercised
its discretion in admitting testimony regarding threats made by
Petitioner to Halstead for the purpose of establishing motive and
to

provide

background

information

concerning

the

relationship

between Petitioner and Halstead. People v. Perez, 67 A.D.3d at 1326
(citations omitted). The Appellate Division observed that “[u]nlike
evidence of general criminal propensity, evidence that a particular

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victim was the focus of a defendant’s continuing aggression may be
highly relevant[.]” Id. (quotation and citation omitted).
Federal courts, generally, cannot consider challenges to a
state court’s evidentiary rulings. See Estelle v. McGuire, 502 U.S.
62, 67-68 (1991) (“[I]t is not the province of a federal habeas
court

to

reexamine

state-court

determinations

on

state-law

questions.”). Even where a petitioner describes an evidentiary
error as unduly prejudicial, it must be recognized that “not all
erroneous admissions of [unduly prejudicial] evidence are errors of
constitutional dimension.” Dunnigan v. Keane, 137 F.3d 117, 125
(2d Cir. 1998). Here, the trial court’s ruling was correct as a
matter of New York state law.
People v. Molineux, 168 N.Y. 264 (N.Y. 1901), sets forth the
rule that evidence of prior crimes or bad acts is admissible to
prove a specific crime if it tends to establish motive, intent,
absence of mistake or accident, a common scheme or plan between the
commission of two or more crimes, or the identity of the person
charged with the commission of the crime. Accord, e.g., People v.
Till, 87 N.Y.2d 835, 837 (N.Y. 1995) (evidence of uncharged crimes
may be introduced at trial “when the evidence is relevant to a
pertinent issue in the case other than a defendant’s criminal
propensity to commit the crime charged” and if the probative value
of the evidence outweighs any prejudice to the defendant.). The
evidence regarding the threats made by Petitioner to Halstead

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clearly was relevant for purposes of completing the narrative of
events and establishing his motive to attack Halstead. See Till, 87
N.Y.2d at 837 (holding that testimony of prior bad acts may be
admitted into evidence, after a finding by the court that the
probative

value

outweighs

any

undue

prejudice

caused

by

its

admission, when “needed as background material” or to “complete the
narrative

of

the

episode”

that

established

a

motive

for

and

provided the jury with a thorough appreciation for the interwoven
events leading up to the defendant’s criminal conduct) (citing,
inter alia, People v. Montanez, 41 N.Y.2d 53, 58 (N.Y. 1976)
(noting that the trial court has the discretion to admit some
evidence

of

other

crimes

when

it

is

needed

as

background

material)and People v. Gines, 36 N.Y.2d 932, 932-33 (N.Y. 1975)
(complainant properly permitted to testify that defendant had raped
her

incident

to

and

immediately

following

the

robbery;

such

testimony was admissible to complete the narrative of events and to
establish the complainant’s opportunity to identify defendant as
her assailant )). Perez has failed to demonstrate an error of state
law, much less an error of constitutional dimension in the trial
court’s Molineux ruling.
Moreover, “the issue of whether an admission of uncharged
crimes can ever constitute a violation of the Due Process Clause
has not been decided by the Supreme Court.”

Jones v. Conway, 442

F. Supp. 2d 113, 131 (S.D.N.Y. 2006) (citing Estelle v. McGuire,

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502 U.S. at 75 n. 5 (“[W]e express no opinion on whether a state
law would violate the Due Process Clause if it permitted the use of
‘prior crimes’ evidence to show propensity to commit a charged
crime.”). Given that the Supreme Court has not held that the use of
uncharged

crimes

would

violate

the

Due

Process

Clause,

the

Appellate Division’s rejection of this claim cannot be said to be
contrary to or an unreasonable application of clearly established
Supreme Court law.
C.

Claims Regarding the Sufficiency of the Evidence as to
the Verdict on the Count Charging Third Degree Possession
of Weapon

Petitioner contends that the evidence was legally insufficient
to prove beyond a reasonable doubt that he possessed or exercised
dominion or control over a weapon. This issue was found by the
Appellate Division to be unpreserved for appellate review.
“[T]here can be no doubt that New York case law requires that
a sufficiency objection be specifically made to the trial court in
the form of a motion to dismiss at trial.” Donaldson v. Ercole,
No. 06–5781–pr, 2009 WL 82716, at *1 (2d Cir. Jan. 14, 2009)
(unpublished opn.) (citing People v. Hines, 97 N.Y.2d 56, 736
N.Y.S.2d

643,

repeatedly

held

762

N.E.2d

that

an

329,

333

indictment

(N.Y.
may

be

2001)

(“[W]e

dismissed

have

due

to

insufficient evidence only where the sufficiency issues pursued on
appeal were preserved by a motion to dismiss at trial. Indeed, even
where a motion to dismiss for insufficient evidence was made, the

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preservation requirement compels that the argument be specifically
directed at the alleged error.”) (citations and internal quotation
marks omitted in original)).
Here, defense counsel failed to renew his motion for a trial
order

of

dismissal,

thereby

failing

to

preserve

the

legal-insufficiency claim. Accordingly, as Respondent argues, the
Appellate Division’s decision denying the claim based upon the lack
of a specific, contemporaneous objection rested upon a state law
ground that was “independent of the federal question and adequate
to support the judgment[,]” Coleman v. Thompson, 501 U.S. at 729.
Because of the independent and adequate state procedural bar,
the Court cannot review the sufficiency of the evidence claim
unless Perez can show cause and prejudice, or that a fundamental
miscarriage of justice would occur should this Court decline to
consider the claim. Perez has not adduced cause, prejudice, or
facts to support the miscarriage of justice exception. Therefore,
the claim is dismissed.
Petitioner also argues that the guilty verdict with respect to
the

weapons-possession

count

was

against

the

weight

of

the

evidence. His “weight of the evidence” claim derives from New York
Criminal Procedure Law (“C.P.L.”) § 470.15(5), which permits an
appellate court in New York to reverse or modify a conviction where
it determines “that a verdict of conviction resulting in a judgment
was, in whole or in part, against the weight of the evidence.” N.Y.

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Crim. Proc. Law § 470.15(5). A “weight of the evidence” argument is
a pure state law claim grounded in the criminal procedure statute,
whereas a legal sufficiency claim is based on federal due process
principles. People v. Bleakley, 69 N.Y.2d 490, 495 (N.Y. 1987).
Since a “weight of the evidence claim” is purely a matter of
state law, it is not cognizable on habeas review. See 28 U.S.C.
§ 2254(a) (permitting federal habeas corpus review only where the
petitioner has alleged that he is in state custody in violation of
“the Constitution or a federal law or treaty”); Estelle v. McGuire,
502 U.S. at 68 (“In conducting habeas review, a federal court is
limited to deciding whether a conviction violated the Constitution,
laws, or treaties of the United States.”); see also Maldonado v.
Scully,

86

F.3d

32,

35

(2d

Cir.1996)

(dismissing

habeas

petitioner’s claim attacking the weight of the evidence; noting
that “assessments of the weight of the evidence or the credibility
of witnesses are for the jury and not grounds for reversal on
appeal”).
D.

Prosecutorial Misconduct During Summation

Defendant contends that the cumulative effect of several
instances of alleged prosecutorial misconduct on summation deprived
him of a fair trial. On appeal, the Appellate Division held that
inasmuch

as

defense

counsel

failed

to

object

to

any

of

the

prosecutor’s allegedly inappropriate remarks, Perez’s contention
was unpreserved for review. People v. Perez, 67 A.D.3d at 1326

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(citing People v. Smith, 32 A.D.3d 1291, 1292 (App. Div. 4th Dept.
2006) (failure to object to prosecutorial misconduct on summation
renders claim unpreserved for appellate review).
Respondent argues that the comments to which no objection was
made

are

not

subject

to

habeas

review

because

the

Appellate

Division relied on the contemporaneous objection rule to dismiss
them. It is well-settled that “federal habeas review is foreclosed
when a state court has expressly relied on a procedural default as
an independent and adequate state ground, even where the state
court has also ruled in the alternative on the merits of the
federal claim.” Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir.
1990). Courts in this circuit have consistently held that a state
court’s reliance on defendant’s failure to object contemporaneously
to a prosecutor’s allegedly improper summation constitutes an
adequate and independent state ground for deciding the claim. See,
e.g., Velasquez, 898 F.2d at 9 (holding that state court’s reliance
on

contemporaneous

objection

rule

was

as

an

independent

and

adequate state ground which barred habeas review of claims of
prosecutorial misconduct).
Under the circumstances presented here, “[t]he decision of the
state court, having rested on ‘independent and adequate state
grounds,’ is necessarily beyond the reach of federal habeas corpus
review.” Brunson v. Tracy, 378 F. Supp.2d 100, 106 (E.D.N.Y. 2005)
(quoting Cotto v. Herbert, 331 F.3d 217, 238 (2d Cir. 2003) and

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citing Garcia v. Lewis, 188 F.3d 71, 79 (2d Cir. 1999) (“[W]e have
observed and deferred to New York’s consistent application of its
contemporaneous objection rules.”) (citations omitted)).
Perez cannot demonstrate cause and prejudice, or that a
fundamental miscarriage of justice will occur if this Court does
not

review

the

prosecutorial

misconduct

claims.

Because

the

procedural default remains unexcused, these claims will not be
reviewed on the merits.
E.

Sentencing as a Persistent Felony Offender in Violation
of the Sixth Amendment

The Second Circuit has held that the New York Court of Appeals
reasonably applied clearly established Supreme Court precedent in
holding that New York Penal Law § 70.10 does not run afoul of the
Sixth Amendment’s guarantee to a criminal defendant of a trial-byjury. Portalatin v. Graham, 624 F.3d 69, 73, 90-94 (2d Cir. 2010)
(en banc), reversing Besser v. Walsh, 601 F.3d 163, 189 (2d Cir.
2010). Based upon the authority of Portalatin v. Graham, 624 F.3d
69,

Petitioner’s

claim

challenging

the

constitutionality

his

sentencing as a persistent felony offender under P.L. § 70.10 must
be denied. See Gibson v. Artus, No. 08-1576, 2010 WL 4342198, at *2
(2d Cir. Nov.3, 2010) (unpublished opinion) (“We recently upheld
New York’s persistent felony offender statute . . .

explaining

that in the enactment of that statute, ‘predicate felonies alone
expand the indeterminate sentencing range within which [a] judge
has the discretion to operate, and that discretion is cabined only
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by an assessment of defendant’s criminal history.’ Under the
circumstances, the claim that New York’s persistent felony offender
statute violated petitioner’s right to a jury trial under the Sixth
Amendment is without merit.”) (quoting Portalatin, 624 F.3d at 94).
F.

Harshness and Excessiveness of the Sentence

In conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution, laws or
treaties of the United States. 28 U.S.C. § 2254(a). When Perez
appealed his sentence in the state courts, he urged the Appellate
Division to exercise its discretionary authority to review factual
questions and reduce the length of his sentence in the interests of
justice.
It is well settled that a habeas petitioner’s challenge to the
length

of

his

prison

term

does

not

present

a

cognizable

constitutional issue if the sentence falls within the statutory
range. See Townsend v. Burke, 334 U.S. 736, 741 (1948) (“The
[petitioner’s] sentence being within the limits set by the statute,
its severity would not be grounds for relief here even on direct
review of the conviction, much less on review of the state court’s
denial of habeas corpus.”); White v. Keane, 969 F.2d 1381, 1383
(2d Cir.1992) (“No federal constitutional issue is presented where,
as here, the sentence is within the range prescribed by state
law.”).

Petitioner,

having

been

adjudicated

as

a persistent

felony offender, was required to be sentenced to an indeterminate

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life term, with the minimum sentence ranging from fifteen to
twenty-five years. See N.Y. Penal Law § 70.00(3)(a)(i). Since
Petitioner received the minimum sentence authorized by law for
persistent felony offenders, his claim that his sentence was harsh
and excessive does not present a federal constitutional issue
amenable to habeas review. Accord, e.g., White v. Keane, 969 F.2d
at 1383; Fielding v. LeFevre, 548 F.2d 1102, 1108 (2d Cir. 1977);
Underwood v. Kelly, 692 F. Supp. 146 (E.D.N.Y. 1988), aff’d, 875
F.2d 857 (2d Cir.), cert. denied, 493 U.S. 837 (1989).
V.

Conclusion
For the reasons stated above, Jose Perez’s petition for a writ

of habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and the
Petition is dismissed. Because Petitioner has failed to make a
substantial showing of a denial of a constitutional right, the
Court

declines

to

issue

28 U.S.C. § 2253(c)(2).

a

certificate

of

appealability.

See

The Court hereby certifies, pursuant to

28 U.S.C. § 1915(a)(3), that any appeal from this judgment would
not be taken in good faith and therefore denies leave to appeal in
forma pauperis.
SO ORDERED.
S/Michael A. Telesca
___________________________________
MICHAEL A. TELESCA
United States District Judge
DATED:

July 13, 2011
Rochester, New York

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