Davis v. Young
Filing
12
DECISION AND ORDER denying petition for writ of habeas corpus and dismissing the petition. Signed by Hon. Michael A. Telesca on 8/4/11. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
ALTON DAVIS,
DECISION AND ORDER
No. 10-CV-0392T
Petitioner,
-vsSUPERINTENDENT
CLINTON CORRECTIONAL FACILITY
Respondent.
________________________________
I.
Introduction
Pro se Petitioner Alton Davis (“Petitioner”) has filed a
timely petition for a writ of habeas corpus under 28 U.S.C. § 2254
challenging the constitutionality of his custody pursuant to a
judgment entered October 22, 2007, in New York State, Supreme
Court, Erie County (Hon. Russell P. Buscaglia), convicting him,
after a jury trial, of two counts of Assault in the Second Degree
(N.Y. Penal Law (“Penal Law”) §§ 120.05 [1], [2]);
Rape in the
First Degree (Penal Law § 130.35 [1]), Robbery in the First Degree
(Penal Law § 160.15 [3]), and Robbery in the Second Degree (Penal
Law § 160.10 [2][a]).
Petitioner was subsequently sentenced as a
persistent violent felony offender to an indeterminate term of
imprisonment of 25 years to life.
For the reasons stated below, habeas relief is denied and the
petition is dismissed.
-1-
II.
Factual Background and Procedural History
Under Indictment No. 00121-2007, Petitioner was charged with
two counts of Assault in the Second Degree (Penal Law §§ 120.05
[1], [2]), Rape in the First Degree (Penal Law § 130.35 [1]),
Robbery in the First Degree (Penal Law § 160.15 [3]), Robbery in
the Second Degree (Penal Law § 160.10 [2][a]), and two counts of
Burglary in the First Degree (Penal Law §§ 140.30 [2],[3]).
See
Ind. No. 00121-2007 dated 02/09/07 at Resp’t Ex. A.
In the summer of 2006, Wanda Young (“Young” or “the victim”)
and Petitioner met at a used furniture store where they were both
working at the time.
T.T. 397-399.
Young and Petitioner began
spending time together outside of the workplace, and Young would
invite Petitioner to her apartment where she lived alone.
399, 401.
T.T.
In the fall of 2006, Petitioner, whom Young considered
a friend, moved into Young’s apartment.
Young and Petitioner
agreed that Petitioner would rent one of the two bedrooms and pay
half of the rent, which amounted to $132.50 per month.
T.T. 558.
After he moved in, Petitioner began asking Young for sex.
refused
Petitioner’s
requests.
On
two
separate
Young
occasions,
Petitioner offered Young money for sex, and Young, who agreed to
have sex with him both times, received $10 on each occasion.1
1
At trial, Young testified that the last time she had sex with
Petitioner in exchange for money was “about a month” before January 6, 2007.
T.T. 404.
-2-
Despite their sexual episodes, Young regarded Petitioner as her
roommate and not her boyfriend.
T.T. 403, 406, 499, 504, 510.
Petitioner paid his share of the rent for the month of
October, but paid nothing for November or December.
In early
January 2007, Petitioner gave Young $200 for back-rent.
T.T. 406-
409.
On January 5, 2007 at around 9:00 or 10:00 p.m., Young used
marijuana and crack cocaine with a male friend at her apartment.
A few hours later, on January 6, 2007, at approximately 1:00 a.m.,
Petitioner
returned
to
the
apartment,
Petitioner to her friend as her roommate.
and
Young
introduced
Young’s friend left the
apartment. After the friend left, Petitioner looked at Young “like
something was wrong.” T.T. 410-412. Because she was frightened by
the manner in which Petitioner looked at her, Young left the
apartment with the intention of staying at a girlfriend’s house.
Young’s girlfriend refused to let Young stay with her, and Young
returned to her apartment around 2:00 or 3:00 a.m.
her bedroom and began to undress.
Young went to
Shortly thereafter, Petitioner,
who was in the kitchen, asked Young why she had eaten his candy bar
which has been in the refrigerator.
Petitioner then walked into
Young’s bedroom and the two engaged in an argument at which time
Young told Petitioner that he “was not [her] man.”
T.T. 412-414.
Thereafter, Petitioner punched Young on both sides of her face.
Young fell backwards onto her bed.
-3-
Petitioner then got on top of
Young and repeatedly continued to punch her with both fists on both
sides of her face.
Young turned over onto her stomach, and lifted
her arms and hands to protect her face.
Petitioner continued to
punch Young, and then pushed her face into the mattress.
Young
moved her right arm so she could reposition herself, at which time
Petitioner grabbed her arm, braced it with his body, told Young he
was going to break her arm, and then snapped it, breaking her arm.
T.T. 414-418.
T.T. 419.
Young immediately began screaming from the pain.
Petitioner then grabbed a chair and placed it in the
doorway to block Young from exiting the room.
Petitioner to let her call an ambulance.
Young pleaded with
Petitioner told Young he
could reset her arm, stating, “I know where it popped out.
I know
where I broke it, right at your elbow.” Petitioner then forcefully
jerked Young’s arm downward, causing her extreme pain.
421.
T.T. 420-
The downstairs neighbor, Eddie Atkinson (“Atkinson”), heard
the victim screaming, but went back to sleep after the screaming
stopped.
T.T. 567.
Petitioner then stood in front of the victim and stated,
“[s]ince I’m not going to get no sex no more, you might as well
pull off your clothes and let me get some now.”
T.T. 421-422.
The
victim, who was scared and in pain, told Petitioner she would let
him do anything so long as she could get to the hospital.
did not physically resist Petitioner.
-4-
Young
Petitioner took Young’s
clothes
off,
climbed
intercourse with her.
on
top
of
her,
and
engaged
in
sexual
T.T. 423-424.
Petitioner then dressed himself, and helped the victim with
her clothes.
Petitioner took the money that he had given Young for
the back-rent, which was on her night-stand, and walked with her
downstairs.
911.
He gave the victim her cell phone and told her to call
Young did so while Petitioner stood next to her.
Young told
911 personnel that she “fell down drunk and broke [her] arm.”
T.T.
424-425, 552.
The victim was taken to the hospital, and her broken arm was
put in a brace.
She was given pain medication, told to return in
two weeks, and then released.
Young went to have her prescription
filled and then returned home. When she returned to her apartment,
Petitioner was waiting for her and he asked her if her arm was
broken.
Atkinson had earlier let Petitioner into the building
around 6:00 a.m. after he heard Petitioner trying to kick in the
outside door.
Young told Petitioner that her arm was broken, and
pretended to be returning for her insurance benefit card so she
could go to the pharmacy.
She then left the apartment, called the
police, and reported the rape and assault.
T.T. 437-438, 568.
The police arrived and searched the apartment. Petitioner was
not found.
The police left and the victim called a male friend and
requested that he stay with her for safety.
The friend responded
and stayed for approximately ten to twenty minutes.
-5-
After the
friend left, Young propped the door to her apartment open with a
small shovel so that the friend could return.
Young grabbed a
knife and placed it on her kitchen table within reach of where she
was sitting.
Petitioner then crawled out from underneath the bed
in her bedroom with a hammer in his hand.
The victim froze in fear.
T.T. 439-442.
Petitioner slammed the apartment
door shut and started choking Young, pushing her against the
refrigerator.
Young bit Petitioner’s finger in an attempt to stop
him from choking her.
Petitioner then hit Young in the head with
the hammer and bit her left cheek.
Young’s face.
Blood began dripping down
Petitioner demanded that Young give him her pain
medication and her money.
Young complied, giving Petitioner the
pills from her jacket and $45 from her pocket.
fled.
Petitioner then
T.T. 443-447.
Seconds later, the same police officers who had earlier
searched the apartment, returned.
T.T. 447.
Atkinson, who had
heard the screaming, had called the police.
Upon entering the
apartment, Officer Oliver Hemphill of the Buffalo Police Department
(“BPD”) discovered Young injured and covered in blood.
T.T. 590.
The victim was transported to the hospital, where she told hospital
personnel the truth about her injuries. Young received stitches to
-6-
her head, a rape test kit was performed upon her,2 and photographs
were taken of her injuries.
Detective
Nicole
Jones
T.T. 677.
of
the
BPD
went
to
the
victim’s
apartment after Young was taken by ambulance to the hospital.
Detective Jones secured the scene and requested assistance from the
Evidence Collections Unit.
T.T. 605-606.
Detective Jones also
went to the hospital and interviewed Young, taking a statement from
her and noting her injuries, which included a gash on her forehead,
a bite mark on her cheek, a swollen jaw, scratches and bruises
about her face, and her arm in a sling.
T.T. 607-608.
Jones also took a statement from Atkinson.
Detective
T.T. 606, 608.
After a jury trial, Petitioner was found guilty of all counts
of the indictment, except the two counts charging burglary in the
first degree.
T.T. 862-863.
He was subsequently sentenced as a
persistent violent felony offender to an indeterminate term of
imprisonment of 25 years to life for each of the five counts, each
to be served concurrently.
Sentencing Mins. [S.M.] 12; see also
Certificate of Conviction-Imprisonment at Resp’t Ex. A.
The Appellate Division, Fourth Department unanimously affirmed
the judgment of conviction on November 13, 2009, and leave to
2
Sperm was detected in the victim’s vagina. T.T. 694. The sperm
fraction of the vaginal DNA swab matched the DNA profile obtained from
Petitioner. T.T. 695.
-7-
appeal was denied.
People v. Davis, 67 A.D.3d 1397 (4th Dep’t
2009), lv. denied, 13 N.Y.3d 938 (2010).
No collateral motions were filed.
This habeas corpus petition followed, wherein Petitioner seeks
relief on the following grounds: (1) ineffective assistance of
counsel;
(2)
that
the
trial
court
erred
in
permitting
the
prosecutor to elicit the testimony of a police detective on redirect examination concerning pre-trial statements made by the
victim that bolstered her trial testimony; and (3) the verdict was
against the weight of the evidence.
See Pet. ¶ 22A-D (Dkt. No. 1).
III. General Principles Applicable to Habeas Review
A.
The AEDPA Standard of Review
Under the Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”), a federal court may grant habeas relief to a state
prisoner only if a claim that was “adjudicated on the merits” in
state court “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,” 28 U.S.C. § 2254(d)(1),
or if it “was based on an
unreasonable determination of the facts in light of the evidence
presented in the state court proceeding.” § 2254(d)(2).
A state
court decision is “contrary to” clearly established federal law “if
the state court arrives at a conclusion opposite to that reached by
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[the Supreme Court] on a question of law or if the state court
decides a case differently than [the Supreme Court] has on a set of
materially indistinguishable facts.”
362, 413 (2000).
Williams v. Taylor, 529 U.S.
The phrase, “clearly established Federal law, as
determined by the Supreme Court of the United States,” limits the
law governing a habeas petitioner’s claims to the holdings (not
dicta) of the Supreme Court existing at the time of the relevant
state-court decision.
Williams, 529 U.S. at 412;
accord Sevencan
v. Herbert, 342 F.3d 69, 73-74 (2d Cir. 2002), cert. denied, 540
U.S. 1197 (2004).
A
state
court
decision
is
based
on
an
“unreasonable
application” of Supreme Court precedent if it correctly identified
the governing legal rule, but applied it in an unreasonable manner
to the facts of a particular case.
also id. at 408-10.
Williams, 529 U.S. at 413;
see
“[A] federal habeas court is not empowered to
grant the writ just because, in its independent judgment, it would
have decided the federal law question differently.”
Artuz, 269 F.3d 78, 94 (2d Cir. 2001).
Aparicio v.
Rather, “[t]he state
court’s application must reflect some additional increment of
incorrectness such that it may be said to be unreasonable.”
Id.
This increment “need not be great; otherwise, habeas relief would
be limited to state court decisions so far off the mark as to
suggest judicial incompetence.” Francis S. v. Stone, 221 F.3d 100,
111 (2d Cir. 2000) (internal quotation marks omitted).
-9-
Under 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);
see
also Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003) (“The
presumption of correctness is particularly important when reviewing
the trial court’s assessment of witness credibility.”), cert.
denied sub nom. Parsad v. Fischer, 540 U.S. 1091 (2003).
A state
court’s findings “will not be overturned on factual grounds unless
objectively unreasonable in light of the evidence presented in the
state-court proceeding.”
Miller-El v. Cockrell, 537 U.S. 322, 340
(2003).
B.
Exhaustion and Procedural Default
“An application for a writ of habeas corpus on behalf of a
person in custody pursuant to a 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)(1)(A);
see, e.g., O’Sullivan v. Boerckel, 526
U.S. 838, 843-44 (1999);
accord, e.g., Bossett v. Walker, 41 F.3d
825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995).
“The
exhaustion requirement is not satisfied unless the federal claim
has been ‘fairly presented’ to the state courts.” Daye v. Attorney
General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc), cert. denied,
464 U.S. 1048 (1984).
However, “[f]or exhaustion purposes, ‘a
-10-
federal habeas court need not require that a federal claim be
presented to a state if it is clear that the state court would hold
the claim procedurally barred.’”
Grey v. Hoke, 933 F.2d 117, 120
(2d Cir. 1991) (quoting Harris v. Reed, 489 U.S. 255, 263, n.9
(1989) (other citations omitted).
Under such circumstances, a
habeas petitioner “no longer has ‘remedies available in the courts
of the State’ within the meaning of 28 U.S.C. Section 2254(b).”
Id.
When a petitioner no longer has “remedies available” in the
state courts, because he is procedurally barred by state law from
raising such claims, the habeas court may deem the claims exhausted
but procedurally defaulted. Id. at 120-21 (quoting Pesina v.
Johnson, 913 F.2d 53, 54 (2d Cir. 1990)).
The procedural bar that gives rise to the finding that the
claim should be deemed exhausted works a forfeiture and precludes
litigation of the merits of the claim absent a showing of cause for
the procedural default and prejudice resulting therefrom or by
demonstrating that failure to consider the claim will result in a
fundamental miscarriage of justice (i.e., actual innocence).
Wainwright v. Sykes, 433 U.S. 72, 87-91 (1977);
Whitley, 505 U.S. 333 (1992).
-11-
See
see also Sawyer v.
IV.
Petitioner’s Claims
1.
Ineffective Assistance of Counsel (Ground One)
Petitioner argues, for the first time in the habeas petition,
that he received ineffective assistance of trial counsel based on
the following:
that counsel failed to obtain a copy of the grand
jury minutes; and that an improper association existed between
counsel and the trial court judge that undermined the integrity of
the proceedings. See Pet. ¶ 22A. As discussed below, Petitioner’s
ineffective assistance of trial counsel claim provides no basis for
habeas relief.
(A)
Trial Counsel Failed to Obtain a Copy of the Grand Jury
Minutes
Petitioner argues that he received ineffective assistance of
trial counsel based on counsel’s alleged failure to obtain a copy
of the grand jury minutes.
See Pet. ¶ 22A.
Because Petitioner
raises this claim for the first time in the habeas petition, it is
unexhausted.
See 28 U.S.C. § 2254(b).
Nonetheless, because
Petitioner no longer has a state court forum within which to raise
this
record-based
claim,
procedurally defaulted.
the
Court
deems
it
exhausted
but
See Grey, 933 F.2d at 120; see also
Ramirez v. Att’y General, 280 F.3d 87, 94 (2d Cir. 2001) (even
where federal claim has not been fairly presented to the state
courts,
it
will
be
deemed
exhausted
procedural bar under state law).
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if
it
is
subject
to
a
Here, Petitioner cannot return to state court because he has
already taken the one direct appeal and one application for leave
to appeal to the New York Court of appeals to which he is entitled.
See N.Y. Court R. 500.20.
It is true that “New York courts have
held that some ineffective assistance claims are ‘not demonstrable
on the main record’ and are more appropriate for collateral or
post-conviction attack, which can develop the necessary evidentiary
record.”
Sweet v. Bennett, 353 F.3d 135, 139 (2d Cir. 1983)
(quotation and citation omitted)). However, this claim pertains to
matters that are readily discernable on the trial record and could
have been, but unjustifiably was not, raised on direct appeal.
Thus, collateral review of this claim (by way of a N.Y. Crim. Proc.
Law (“CPL”) § 440.10 motion) is foreclosed. See CPL § 440.10(2)(c)
(barring review if a claim could have been raised on direct
review).
Because Petitioner no longer has remedies available in
the state courts, his claim is deemed exhausted and procedurally
defaulted.
See Grey, 933 F.2d at 120.
Petitioner’s procedurally defaulted claim may be reviewed by
this Court only if he can demonstrate cause for the default and
actual prejudice resulting therefrom, or that the failure to
consider the claim will result in a fundamental miscarriage of
justice.
Murray v. Carrier, 477 U.S. 478, 485, 496 (1986).
Petitioner has not alleged cause and prejudice to overcome the
procedural default, nor has he endeavored to demonstrate that this
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Court’s failure to review the claim will result in a miscarriage of
justice.
Accordingly,
Petitioner’s
claim
that
he
received
ineffective assistance of trial counsel based on counsel’s failure
to obtain
a copy of the grand jury minutes is dismissed as
procedurally defaulted.
(2)
Improper Association between Trial Counsel and Trial
Court Judge
Petitioner contends that he received ineffective assistance of
counsel as a result of an improper association between counsel and
the trial court judge.
See Pet. ¶ 22A.
Because Petitioner raises
this claim for the first time in the habeas petition, it too is
also unexhausted.
However, unlike the ineffective assistance of
counsel claim discussed above at section IV, 1(1), this claim
involves matters dehors the record which could still be raised in
a motion for vacatur in state court.
dismisses
the
claim
on
the
merits,
Nonetheless, the Court
pursuant
to
28
U.S.C.
§ 2254(b)(2).3
3
The standard of review federal district courts are to consider when
reviewing unexhausted claims is not settled in this Circuit.
Severino v.
Phillips, No. 05 Civ. 475, 2008 U.S. Dist. LEXIS 122313, *33 (S.D.N.Y. Aug. 25,
2008). Most courts in this Circuit which have addressed this issue have opined
that unexhausted claims are to be dismissed when the court finds them to be
“patently frivolous.”
Severino, 2008 U.S. Dist. LEXIS 122313 at *33 (citing
Brown v. State of New York, 374 F.Supp.2d 314, 318 (W.D.N.Y.2005)) (citation
omitted).
A minority of district courts, however, have concluded that the
dismissal of such claims is warranted when the court determines that “it is
perfectly clear that the petitioner does not raise even a colorable federal
claim.” Severino, 2008 U.S. Dist. LEXIS 122313 at *33 (internal quotations and
citations omitted). Petitioner’s claims are subject to dismissal regardless of
the standard utilized.
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To establish that he was deprived of his Sixth Amendment right
to the effective assistance of trial counsel, a petitioner must
show that (1) his attorney’s performance was deficient, and that
(2) this deficient performance prejudiced his defense.
Strickland
v. Washington, 466 U.S. 668, 687 (1984). Deficiency is measured by
an
objective
standard
of
reasonableness,
and
prejudice
is
demonstrated by a showing of a “reasonable probability” that, but
for counsel’s unprofessional errors, the result of the trial would
have been different. Id. at 694.
“A reasonable probability is a
probability sufficient to undermine confidence in the outcome of
the
proceeding.”
Id.
To
succeed,
a
petitioner
challenging
counsel’s representation must overcome a “strong presumption that
[his attorney’s] conduct falls within the wide range of reasonable
professional assistance.”
Id. at 689.
A reviewing court “must
judge the reasonableness of counsel’s challenged conduct on the
facts of the particular case, viewed as of the time of counsel’s
conduct.”
Id.
Petitioner cannot meet the standard set forth in
Strickland.
Petitioner alleges, without citing any supporting facts or
pointing to any evidence whatsoever, that he received ineffective
assistance of counsel based upon an improper association between
his
attorney
and
the
trial
court
judge.
See
Pet.
¶
22A.
Petitioner does not explain the nature of this alleged improper
association, nor does he even suggest how or in what way this
-15-
alleged improper association affected his attorney’s performance
and/or the outcome of his trial.
Petitioner simply contends, by
way of vague, conclusory assertion, that “my counsel was not doing
what he was supposed to do.
made
me
feel
I
was
not
Him and the Judge was friend.
getting
judge
right.”
Pet.
Petitioner has failed to assert a viable habeas claim.
¶
That
22A.
His claim
provides no foundation upon which a claim of ineffective assistance
of counsel can be made, and a federal court may not grant habeas
relief
based
speculation.
upon
unsubstantiated
conclusions,
opinions,
or
Wood v. Bartholomew, 516 U.S. 1, 8 (1995) (federal
courts should not grant “habeas relief on the basis of little more
than speculation with slight support”);
see Osinoiki v. Riley,
CV-90-2097, 1990 U.S. Dist. LEXIS 13327, at *6-7 (E.D.N.Y. Sept.
28,
1990)
(conclusory
statements
based
on
inadequate to satisfy petitioner’s burden”);
speculation
“are
Skeete v. People of
New York State, No. 03-CV-2903, 2003 U.S. Dist. LEXIS 20675, *5
(E.D.N.Y.
Nov.
17,
2003)
(vague,
unsupported
allegations
of
constitutional violations and errors during petitioner’s state
trial did not assert a viable habeas claim.).
Petitioner’s claim
that he received ineffective assistance of trial counsel based upon
an improper association between his trial attorney and the trial
court judge –- which is vague, conclusory in nature, and based on
nothing more than rank speculation –- is meritless and is therefore
dismissed.
-16-
In
sum,
the
Court
finds
that
Petitioner’s
ineffective
assistance of counsel claim, as a whole, provides no basis for
habeas relief, and is dismissed in its entirety.
2.
Trial Court Error (Ground Two)
In ground two of the petition, Petitioner appears to argue, as
he did on direct appeal, that the trial court erred in permitting
the prosecutor to elicit testimony of Detective Jones on redirect
examination concerning pre-trial statements made by the victim that
bolstered her trial testimony.
See Pet. ¶ 22B; see also Pet’r Br.
on Appeal, Point One at Resp’t Ex. B.
The Appellate Division,
Fourth Department rejected this claim, finding that:
We agree with defendant that Supreme Court
erred . . . .
Although the prosecutor’s
redirect examination was far too extensive to
be justified under the opening the door
theory, the erroneous admission of the
testimony is harmless.
The evidence of
defendant’s guilt is overwhelming, and there
is no significant probability that defendant
would have been acquitted but for the error.”
Davis,
67
A.D.3d
at
1397
(internal
citations
and
quotations
omitted) (alterations in original). As discussed below, this claim
provides no basis for habeas relief.
“On
federal
conviction,
enunciated
courts
in
habeas
are
Brecht
v.
review
to
apply
of
the
Abrahamson,
a
state
harmless
507
U.S.
court
criminal
error
standard
619
(1993),
in
ascertaining whether a petitioner alleging trial court error is
-17-
entitled
to
the
relief
he
seeks.”
Moss
v.
Phillips,
No.
9:03-CV-1496, 2008 U.S. Dist. LEXIS 39680, *28 (N.D.N.Y. May 15,
2008) (citation omitted).
A petitioner is not entitled to federal
habeas relief based on a claimed error of the state court unless
the error actually prejudiced his defense, i.e., the error “‘had
[a] substantial and injurious effect or influence in determining
the jury’s verdict.’”
Brecht, 507 U.S. at 637 (1993) (quotation
omitted).
Here, the Appellate Division, Fourth Department determined
that the trial court erred in admitting Detective Jones’s testimony
on redirect examination concerning pre-trial statements made by the
victim that bolstered her trial testimony, but that such error was
harmless.
See Davis, 67 A.D.3d at 1397.
This Court agrees that
any error in the admission of the testimony at issue was harmless.
Under Brecht, the erroneously admitted testimony cannot be said to
have had a “substantial and injurious effect” on the jury’s verdict
considering that the prosecution’s case relied primarily on the
victim’s rousing and graphic testimony, which detailed the brutal
acts of assault, rape, and robbery perpetrated against her by
Petitioner.
Additionally, the physical and scientific evidence
presented in the case supported and corroborated the victim’s
version of events.
As a result, this Court cannot find that
Petitioner’s trial was “fundamentally unfair” due to the error and
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habeas relief is not warranted for this claim.
The claim is
therefore dismissed in its entirety.4
3.
Verdict Against the Weight of the Evidence (Grounds Three
and Four)
In grounds three and four the petition, Petitioner argues, as
he did on direct appeal, that the verdict was against the weight of
the evidence.
See Pet. ¶ 22C, D.
The Appellate Division, Fourth
Department rejected these claims on the merits.
A.D.3d
at
1398.
As
discussed
below,
these
See Davis, 67
claims
are
not
cognizable by this Court on habeas review.
A “weight of the evidence” claim derives from CPL § 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.”
CPL § 470.15(5).
Thus, a “weight of the
evidence” argument is a pure state law claim grounded in the
criminal procedure statute. People v. Bleakley, 69 N.Y.2d 490, 495
(1987).
In contrast, a legal insufficiency claim is based on
federal due process principles.
Id.
4
The Court notes, and as Respondent has correctly pointed out, the
supporting fact section of ground two of the habeas petition also appears to
challenge the weight of the evidence. See Resp’t Mem. of Law at 11; Pet. ¶ 22B.
To the extent, if any, Petitioner raises this claim as a challenge to the weight
of the evidence, said claim is not cognizable by this Court on habeas review (see
discussion below at section IV, 3) and is dismissed on that basis.
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Because Petitioner’s weight of the evidence claims implicate
only state law, they are not cognizable in this federal habeas
proceeding.
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”);
Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (habeas
corpus review is not available where there is simply an alleged
error of state law);
Ex parte Craig, 282 F. 138, 148 (2d Cir.
1922) (holding that “a writ of habeas corpus cannot be used to
review the weight of evidence . . .”), aff’d, 263 U.S. 255 (1923).
Therefore, Petitioner’s weight-of-the-evidence claims are dismissed
as not cognizable.
V.
Conclusion
For the reasons stated above, the petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. No. 1) is denied,
and the petition is dismissed.
Because Petitioner has failed to
make “a substantial showing of a denial of a constitutional right,”
28 U.S.C. § 2253(c)(2), the Court declines to issue a certificate
of appealability. See, e.g., Lucidore v. New York State Div. of
Parole, 209 F.3d 107, 111-113 (2d Cir. 2000).
The Court also
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 as a poor person.
United States, 369 U.S. 438 (1962).
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Coppedge v.
Petitioner must file any notice of appeal with the Clerk’s
Office, United States District Court, Western District of New York,
within thirty (30) days of the date of judgment in this action.
Requests to proceed on appeal as a poor person must be filed with
United States Court of Appeals for the Second Circuit in accordance
with the requirements of Rule 24 of the Federal Rules of Appellate
Procedure.
IT IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
August 4, 2011
Rochester, New York
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