Mastowski v. Superintendent
Filing
33
DECISION AND ORDER denying petition for writ of habeas corpus and dismissing the petition. Signed by Hon. Michael A. Telesca on 10/18/11. (JMC) (Main Document 33 replaced on 10/18/2011) (RE).
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
DEXTER MASTOWSKI,
DECISION AND ORDER
No. 10-CV-0445T
Petitioner,
-vsSUPERINTENDENT
Respondent.
________________________________
I.
Introduction
Petitioner Dexter Mastowski (“Petitioner”), through counsel,1
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 August 19, 2003, in New York State,
County Court, Ontario County (Hon. Craig J. Doran), convicting him,
after a jury trial, of Assault in the First Degree (N.Y. Penal Law
(“Penal
Law”)
§
120.10(3)
(depraved
indifference
assault).
Petitioner was sentenced to a determinate prison term of seventeen
years, plus five years of post-release supervision.
For the reasons stated below, habeas relief is denied and the
petition is dismissed.
1
On May 28, 2010, Petitioner, acting pro se, filed a petition for a writ of
habeas corpus. Dkt. No. 1. On July 23, 2010, a Notice of Appearance was filed
by attorney Estelle Jana Roond on behalf of Petitioner. Dkt. No. 8. Through
counsel, Petitioner subsequently filed a supplemental memorandum of law in
support of his habeas petition (Dkt. No. 20) and a Reply/Response (Dkt. No. 31).
-1-
II.
Factual Background and Procedural History
A.
Introduction
An Ontario County Grand Jury indicted Petitioner with one
count
of
Assault
assault).
in
the
First
Degree
(depraved
indifference
The charges arose from an incident that occurred on
October 12, 2002, in which Petitioner violently shook his two-anda-half month old daughter Emily (“Emily” or “the victim”), causing
traumatic injuries to her.
B.
The Huntley Hearing
1.
The People’s Case
On October 12, 2002, Scott Upchurch, the Chief of Police in
Clifton Springs, New York, was informed of a serious physical
injury to a two-month-old infant.
The information was received
from the Child Abuse Hotline, and Chief Upchurch was informed that
the child was located at Strong Memorial Hospital.
day,
Chief
Upchurch
went
to
the
hospital
to
The following
investigate.
Chief Upchurch spoke separately with Petitioner alone in a waiting
room inside the hospital.
Hr’g Mins. [H.M.] 4-5.
Petitioner was
not overly responsive and gave only “yes” or “no” answers.
H.M. 5.
Chief Upchurch asked Petitioner to write down the events leading up
to Emily’s admission to the hospital, and Petitioner voluntarily
agreed to do so.
H.M. 6.
Petitioner then agreed to give a second written statement
after being advised of his Miranda warnings.
-2-
H.M. 6-9.
At no time
during the interview was Petitioner told that he was under arrest,
nor was he verbally or physically threatened in any way.
9–10.
H.M.
After Petitioner completed the second statement, they took
a break from questioning.
When Chief Upchurch asked to speak with
Petitioner after the break, Petitioner informed Chief Upchurch that
he had spoken with his brother and was advised to seek counsel.
H.M.
11.
At
Petitioner.
that
point,
Chief
Upchurch
stopped
talking
to
H.M. 12.
David Smith, of the Ontario County Sheriff’s Department,
testified that he was Petitioner’s uncle, but because the two were
close in age, they referred to each as brothers.
Smith
called
Petitioner
at
Strong
Memorial
H.M. 18-19.
Hospital
on
the
telephone on October 13, 2002 after Petitioner had spoken with
Chief Upchurch.
H.M. 21.
Smith, aware of allegations of shaken
baby syndrome, told Petitioner not to speak with the police and to
hire an attorney.
Also
on
H.M. 23.
October
12,
2002,
after
Petitioner
spoke
with
Chief Upchurch, Janice Mangini (“Mangini”), a case worker for the
Ontario County Department of Social Services, spoke with Petitioner
“in one of the interview rooms at the hospital on the same floor
that the baby was in” regarding Emily’s injuries.
H.M. 37-38.
Petitioner never indicated that he was unwilling to speak with
Mangini.
H.M. 44.
On October 15, 2002, Alisha Testa (“Testa”),
also of the Ontario County Department of Social Services, was
-3-
assigned to the case and spoke with Petitioner and his wife at
Strong Memorial Hospital.
2.
H.M. 51-52.
The Defense
Petitioner testified that he spoke to Chief Upchurch in a
locked interview room and that Upchurch told Petitioner that if he
admitted doing harm to Emily, she would be able to get better
medical care. H.M. 75-76. Petitioner also testified that Upchurch
told him that if he gave a statement, a court would be more lenient
with him.
H.M. 76.
Petitioner further stated that Chief Upchurch
did not advise him of his Miranda rights until he had written both
of his statements and Upchurch described the warnings as legal
“mumbo jumbo.”
3.
H.M. 78.
The Suppression Decision
The hearing court held that Petitioner was not in custody when
he spoke with Chief Upchurch and that the questions asked were
investigatory rather than accusatory. The hearing court found that
Petitioner’s written statements were admissible. The hearing court
also held that the conversation between Petitioner and Deputy Smith
was
personal
and
not
the
result
of
police
interrogation.
Regardless, the hearing court held that Petitioner was not in
custody
because
the
conversation
took
place
over
the
phone.
Accordingly, the court denied Petitioner’s request to suppress his
statements to Deputy Smith.
See Resp’t Ex. A.
-4-
The
hearing
court
also
determined
that
the
statements
Petitioner made to caseworkers Mangini and Testa were admissible
because they were voluntarily made and the child protective service
case workers were not law enforcement officials. See Resp’t Ex. A.
C.
The Trial
1.
The People’s Case
On October 12, 2002, registered nurse Barbara Mellor-Conley,
Dr. Katherine O’Hanlon, and Dr. Laura Kierston Church were working
in the emergency room at FF Thompson Hospital in Canandaigua,
New York.
Trial Trans. [T.T.] 341-342, 371, 480-482.
At around
2:00 p.m., Petitioner and his wife brought in their two-month-old
daughter, Emily.
The baby appeared to have either a head injury or
a neurological problem and was pale and bluish.
The baby’s eyes
were both deviated to the right and her right arm and leg were
stiff.
T.T. 343-344, 351, 372-373, 482, 486.
The soft spot on
Emily’s head was bulging, indicating brain swelling or bleeding.
T.T. 487.
return.
Emily was given oxygen and her natural color began to
T.T. 349-350.
She was then intubated, and nine minutes
later she went into cardiac arrest.
T.T. 354.
After thirty
seconds of chest compressions, Emily’s heart began to beat again.
T.T. 355.
Nurse Mellor-Conley and Dr. O’Hanlon asked Petitioner if
anything had happened to the baby or if Petitioner had shaken the
baby and Petitioner said “no.”
T.T. 357, 381-384.
-5-
Emily was then
airlifted to Strong Memorial Hospital in Rochester, New York.
T.T. 358, 377-378.
Nurse Mellor-Conley then called the New York
State Child Abuse Hotline and reported Emily’s injuries. T.T. 358.
Later in the afternoon, Drs. Heidi Connelly and Karen Powers,
who specialized in pediatric intensive care at Strong Memorial
Hospital, began to treat Emily.
In addition to the previously
noted conditions, the doctors also noted that Emily’s eyes had
massive retinal hemmorrhages. T.T. 581-583, 586, 644, 647-648. An
initial CAT scan revealed that there was severe swelling in Emily’s
brain.
A later scan showed that the swelling had subsided, but
there was a significant subdural hematoma composed of fresh blood.
T.T. 644, 674-675.
Again, both Petitioner and his wife denied knowing what had
caused Emily’s injuries. With the exception of some vomiting after
receiving her first vaccines two weeks earlier, Emily’s parents
described Emily as a healthy and normal infant. T.T. 587, 595-596,
608,
648-649,
683-684.
Dr.
Powers
called
Emily’s
regular
pediatrician, Dr. Kristen Franks-Bissell, for a medical history.
According to Dr. Franks-Bissell, Emily did not have any medical
problems and appeared to be a normal, healthy baby.
T.T. 438-439.
Dr. Franks-Bissell gave Emily her vaccinations in late September.
T.T. 485. On October 2, 2002, Petitioner called Dr. Franks-Bissell
because Emily was vomiting. T.T. 449-450. Petitioner was directed
-6-
to monitor Emily and call back if the condition did not improve.
T.T. 451.
Drs. Powers and Connelly performed numerous tests on Emily
while she was at Strong Memorial Hospital to rule out potential
causes for her condition.
T.T. 582, 586, 589-590, 643-644.
They
were able to rule out metabolic and blood disorders, asphyxia,
infectious diseases and viruses, and congenital defects. T.T. 585586, 597-598, 625, 650-651, 653, 660, 693-94.
Having ruled out
these potential causes, the doctors concluded that Emily had been
violently
swelling
shaken,
of
her
causing
brain,
massive
and
a
retinal
massive
resulted in severe neurological injury.
hemorrhages,
subdural
severe
hematoma
that
T.T. 581-583, 598-602,
615, 623-624, 626, 648-649, 651, 653, 656-57.
Dr. Connelly also
reported the situation to Child Protective Services. T.T. 596-598.
The following day, caseworker Mangini and Chief Upchurch went
to Strong Memorial to investigate the reports of child abuse.
T.T.
496-497,
560.
At
about
noon,
Chief
Upchurch
spoke
to
Petitioner alone in a conference room in the pediatric care unit.
Chief Upchurch asked Petitioner to write down what had happened on
October
12,
2002,
prior
T.T. 498-500, 516-517.
to
bringing
Emily
to
the
hospital.
Petitioner wrote that in the morning Emily
had been fussy after her feeding and that he had walked around with
her, bouncing her up and down in an effort to calm her down.
T.T. 503.
Petitioner wrote that he was frustrated and “not
-7-
realizing it” had bounced Emily “a little more than necessary.”
T.T. 503-504.
Petitioner wrote that he was “unknowingly bouncing
[Emily] too hard” and that when she woke up later, she was not very
responsive so he and his wife called the doctor and brought Emily
to the hospital.
After
T.T. 504.
Petitioner
completed
his
written
statement,
Chief Upchurch asked him if he would give another written statement
to clarify some of the information he had given.
T.T. 504, 517.
Petitioner was read his Miranda rights and agreed to give a second
written statement.
T.T. 504-507.
Petitioner then confirmed that
he had “bounced” Emily “very hard” at around 9:00 a.m. and that he
knew
“for
sure”
that
it
was
the
cause
of
Emily’s
injuries.
T.T. 509-510.
Caseworker
Mangini
spoke
with
Petitioner
admitted that he had roughly bounced Emily.
next
T.T. 562.
and
again
Petitioner
stated that he was frustrated and just wanted Emily to stop fussing
and he “unintentionally bounced her too hard.”
T.T. 563.
When
Emily finally calmed down, he put her in her bassinet and waited
for his wife to come home.
Emily’s
pupils
were
When he and his wife noticed that
dilated,
they
sought
medical
attention.
T.T. 564.
Smith testified that he was Petitioner’s uncle, but the two
were close in age and raised in the same household as brothers.
Deputy Smith heard about Petitioner’s situation and called the
-8-
hospital on October 13, 2002. T.T. 521-526. Smith told Petitioner
not to speak to the police any further and to hire a lawyer.
T.T. 528.
Petitioner told Smith that he had told Chief Upchurch
that he had bounced Emily.
Deputy Smith asked Petitioner whether
he
and
had
gotten
frustrated
shook
Emily
“hard,”
Petitioner responded, “[t]hat’s what happened.”
to
which
T.T. 529, 534,
536.
Two days later, on October 15, 2002, caseworker Testa went to
the hospital to speak with Petitioner and his wife.
T.T. 400-409.
Petitioner stated that he was primarily in charge of caring for the
children over the weekend preceding this incident and that, in
general, he was the primary caregiver.
T.T. 414-415.
Petitioner
told Testa that he thought Emily’s condition could have been caused
by her being hit in the head with the spinning mobile on her
bassinet.
T.T. 412-413.
Petitioner also told Testa that a nurse
suggested that Emily might have had viral meningitis.
T.T. 409.
Testa was in the room when Dr. Lenane told Petitioner that Emily’s
injuries were not caused by something falling on her, but rather
that Emily had suffered severe trauma.
T.T. 417-418.
Testa
overheard Petitioner tell Dr. Lenane that on October 11, 2002,
Emily was not eating well and was sleepy.
The following day,
Petitioner stated that Emily had to be awakened in the morning to
eat, which was unusual.
Petitioner
stated
that
T.T. 421.
Emily
began
-9-
Later that same morning,
to
get
fussy
and
in
the
afternoon, when Petitioner went to get Emily dressed and ready, he
noticed something was wrong and she was not acting like herself.
T.T. 423.
Petitioner then called the doctor, and Petitioner and
his wife took Emily to the hospital.
T.T. 424.
The following day on October 16, 2002, Testa returned to the
hospital and encountered Petitioner in the pediatric care unit.
Petitioner told Testa that the hospital staff no longer believed
that Emily suffered shaken baby syndrome, but rather that she may
have turned her head on a pillow and suffocated.
When
Emily
left
Strong
Memorial
T.T. 425-426.
Hospital,
she
was
in
a
vegetative state and had minimal brain activity. T.T. 662-663. On
July 18, 2003, only weeks before trial, Emily was being treated for
long-term care at Monroe Community Hospital. T.T. 662, 704. State
Police Investigator Christopher Baldwin visited Emily and found her
sitting in a stroller-like wheelchair.
T.T. 704.
Investigator
Baldwin testified that Emily’s extremities were tightened and her
hands were clenched.
She did not appear conscious or responsive.
T.T. 704-705.
2.
The Defense’s Case
Petitioner and his wife both testified that on September 27,
2002, they took Emily to the doctor for her two month check-up.
At
that time, Emily received several vaccinations. T.T. 730, 920-921.
Two days later, Emily began vomiting and not acting like her normal
self.
T.T. 730, 922-923.
A couple of days later, Petitioner
-10-
called the doctor and was told to monitor Emily and call back if
the symptoms worsened.
T.T. 924.
On October 11, 2002, Kristi went to work and returned home
around 4:00 p.m.
When Kristi arrived home, Emily was asleep.
Kristi then went out with a friend at 5:00 p.m. and did not return
until
10
or
11:00
p.m.
T.T.
735-736,
930-931.
Petitioner
testified that he went to sleep at 9:30 or 10:00 p.m., and slept
through the night.
T.T. 931.
for work at 7:00 a.m.
The following morning Kristi left
T.T. 736, 737, 932.
During the day, Petitioner tried to feed Emily, but she only
consumed about half her formula.
Petitioner testified that she
appeared uncomfortable and he tried to soothe her by carrying her
around, rocking her, swaddling her, and playing music.
seemed to comfort Emily and she continued to “whimper.”
936.
Eventually, Emily quieted down.
Nothing
T.T. 934-
T.T. 938.
Kristi returned from work at around noon and she discovered
that Emily was stiff and her eyes were dilated and fixed in one
direction.
T.T. 738-740, 938-939.
Petitioner called the doctor
and they then rushed Emily to the hospital.
Petitioner
admitted
making
the
written
T.T. 739-740, 940.
statements
to
Officer
Upchurch, but stated that he was confused and felt pressured by the
situation.
T.T. 955-956.
Petitioner denied shaking Emily or
otherwise causing her injuries.
T.T. 967.
-11-
Eugene
Buttram
(“Buttram”),
a
doctor
of
family
and
environmental medicine at the Woodland Healing Research Center in
Quakertown, Pennsylvania, testified that Emily could have suffered
a reaction to the vaccinations that she received, which may have
caused her brain to suffer hemorrhagic encephalitis.
835.
T.T. 829,
As a result, Emily’s brain could have swelled and caused
bleeding.
T.T. 830.
Buttram explained that the theory was
“virtually unexplored,” but dealt with vitamin C deficiencies.
T.T. 831-832.
Buttram admitted, on cross-examination, he was not
board-certified in any field and that he had not reviewed any of
Emily’s x-rays, MRIs, or CAT scans.
T.T. 852-853.
On cross-
examination, Buttram also admitted that many of his theories had
not been proven in scientific studies and most were rebuked by
respected medical journals.
T.T. 870-892.
Some of Buttram’s
practices, such as Chelation therapy, had been rebuked by FDA
Consumer Magazine as one of the top ten health frauds in America.
T.T. 845-846.
States
In the mid-1990s, Buttram was charged by the United
Attorney’s
patients.
Office
for
fraudulently
billing
Medicare
He paid over $50,000 in restitution and a $10,000 fine.
T.T. 849.
3.
Verdict and Sentence
On August 1, 2003, Petitioner was found guilty as charged and
subsequently sentenced to a determinate term of seventeen years
-12-
imprisonment,
supervision.
D.
to
be
followed
by
five
years
of
post-release
T.T. 1155-57; Sentencing Mins. [S.M.] 20.
Petitioner’s Direct Appeal
On February 3, 2006, the Appellate Division, Fourth Department
unanimously affirmed Petitioner’s judgment of conviction, and leave
to appeal was denied.
People v. Mastowski, 26 A.D.3d 744 (4th
Dep’t 2006) (Resp’t Ex. D); lv. denied, 6 N.Y.3d 850 (2006) (Resp’t
Ex. F).
On June 7, 2006, Petitioner submitted a pro se motion for
reconsideration, which was denied on August 4, 2006.
See Resp’t
Ex. H.
E.
Collateral Relief
1.
Petitioner’s First Motion to Vacate
On October 2, 2007, Petitioner filed a motion to vacate his
judgment of conviction, pursuant to N.Y. Crim. Proc. Law (“CPL”)
§ 440.10, on the following grounds: (1) insufficiency of the
evidence;
(2)
ineffective
assistance
(3) newly-discovered evidence.
of
trial
See Resp’t Ex. I.
counsel;
and
On November 21,
2007, the Ontario County Court denied the motion on procedural
grounds.
See Resp’t Ex. L.
Petitioner moved for re-argument,
which was denied on January 18, 2008.
See Resp’t Exs. M, N.
On December 13, 2007, Petitioner sought leave to appeal the
denial of his motion in the Appellate Division, Fourth Department,
which was granted on April 21, 2008.
2009,
the
Appellate
Division,
-13-
See Resp’t Ex. R.
Fourth
Department
On June 5,
unanimously
affirmed the court’s decision denying Petitioner’s motion to vacate
the judgment.
See Mastowski, 63 A.D.3d 1589 (4th Dep’t 2009)
(Resp’t Ex. U).
On June 11, 2009, Petitioner, through counsel, submitted a
leave application in the New York Court of Appeals.
Ex.
V.
Petitioner
submitted
application on July 5, 2009.
the
New
York
application.
Court
See
of
a
pro
se
supplemental
See Resp’t Ex. W.
Appeals
denied
See Resp’t
leave
On July 29, 2009,
Petitioner’s
leave
Mastowski, 12 N.Y.3d 927 (2009) (Resp’t Ex. X).
On August 28, 2009, Petitioner submitted a pro se motion for
reconsideration to the New York Court of Appeals, which was denied
on October 8, 2009.
2.
On
See Resp’t Exs. Y, Z.
Petitioner’s Second Motion to Vacate
September
17,
2009,
Petitioner
filed
a
motion
to
argue/renew his previous motion to vacate in which he argued that
his constitutional right to confront witnesses was violated when
one of the doctors who testified against him relied on hearsay.
See Resp’t Ex. AA.
The Ontario County Court construed this motion
as a second CPL § 440.10 motion, and denied it on procedural
grounds on November 15, 2009.
See Resp’t Exs. DD.
Petitioner
sought leave to appeal the denial to the Appellate Division, Fourth
Department, which was denied on April 14, 2010.
Thereafter,
Petitioner sought leave to appeal in the New York Court of Appeals,
-14-
and, on June 15, 2010, the New York Court of Appeals dismissed the
application.
F.
See Resp’t Exs. GG, HH, II.
The Habeas Corpus Petition
On May 20, 2010, Petitioner, acting pro se, filed the instant
habeas corpus petition, wherein he seeks relief on the following
grounds: (1) the trial court’s failure to suppress his statements
violated his right against self-incrimination; (2) ineffective
assistance of trial counsel; (3) prosecutorial misconduct; (4) the
court improperly failed to give a circumstantial evidence charge;
(5) the depraved indifference element of the assault charge was
unconstitutionally vague and violated Petitioner’s rights to equal
protection
and
due
process;
(6)
the
evidence
was
legally
insufficient; and (7) the sentence was harsh and excessive.
See
Pet. ¶22, Grounds One-Seven (Dkt. No. 1); Supplemental Memo. of Law
(Dkt. No. 20); Reply (Dkt. No. 31).
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
-15-
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
[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.”
-16-
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).
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 Requirement
“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);
843-44 (1999);
see, e.g., O’Sullivan v. Boerckel, 526 U.S. 838,
accord, e.g., Bossett v. Walker, 41 F.3d 825, 828
(2d Cir.1994), cert. denied, 514 U.S. 1054 (1995). “The exhaustion
-17-
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).
C.
The Adequate and Independent State Ground Doctrine
A procedural default generally bars a federal court from
reviewing the merits of a habeas claim.
U.S. 72 (1977).
Wainwright v. Sykes, 433
Federal habeas review is prohibited if a state
court rests its judgment on a state law ground that is “independent
of the federal question and adequate to support the judgment.”
Cotto v. Herbert, 331 F.3d 217, 238 (2d Cir. 2003) (quoting Coleman
v. Thompson, 501 U.S. 722, 729 (1991));
229 F.3d 112, 117 (2d Cir. 2000).
accord Jones v. Stinson,
A state procedural bar qualifies
as an “independent and adequate” state law ground where “‘the last
state court rendering a judgment in the case clearly and expressly
states that its judgment rests on a state procedural bar.’” Levine
v. Comm’r of Corr. Servs., 44 F.3d 121, 126 (2d Cir. 1995) (quoting
Harris v. Reed, 489 U.S. 255, 262 (1989)).
A state procedural rule
will be adequate to preclude habeas review if it is “firmly
established and regularly followed,” unless the state rule is
“exorbitant.”
Lee v. Kemna, 534 U.S. 362, 376 (2002) (quoting
James v. Kentucky, 466 U.S. 341, 348 (1984)).
A federal court may review a claim, notwithstanding the
petitioner’s default, if he “can demonstrate cause for the default
-18-
and actual prejudice as a result of the alleged violation of
federal law.”
Coleman, 501 U.S. at 750;
see also Levine, 44 F.3d
at
v.
121
126;
Grey
Hoke,
933
F.2d
117,
(2d
Cir.
1991).
A
petitioner may establish cause by pointing to “some objective
factor external to the defense [that] impeded counsel’s efforts to
comply with the State’s procedural rule.”
U.S. 478, 488 (1986);
Murray v. Carrier, 477
accord Coleman, 501 U.S. at 753.
A
petitioner suffers actual prejudice if the outcome of the case
would likely have been different had the alleged constitutional
violation not occurred.
See Reed v. Ross, 468 U.S. 1, 12 (1984).
Alternatively, even if the petitioner is unable to show cause and
prejudice, the court may consider the claim if he can demonstrate
that failure to do so will result in a “fundamental miscarriage of
justice.”
Coleman, 501 U.S. at 750.
IV.
Petitioner’s Claims
1.
Trial Court
Statements
Erred
in
Failing
to
Suppress
Petitioner’s
Petitioner argues, as he did on direct appeal, that the
hearing court erred in failing to suppress his statements to the
police because his right against self-incrimination was violated.
Petitioner also claims that his statements to the caseworkers
should have been suppressed as the fruit of the poisonous tree.
See Pet. ¶22, Ground One; Supplemental Mem. of Law at 2-5.
The
Appellate Division, Fourth Department rejected this claim on the
merits, finding that:
-19-
[c]ontrary to the contention of defendant,
County Court did not err in denying his motion
to suppress his statement to the Chief of
Police of Clifton Springs, child protective
caseworkers, and close friend who is an
Ontario County Sheriff’s deputy.
Defendant
was not in custody when he made the statements
and, in any event, defendant’s right to
counsel
and
privilege
against
selfincrimination were not implicated by the
statements by defendant to child protective
caseworkers.
Mastowski, 26 A.D.3d at 745 (internal citations omitted).
As
discussed below, this claim is meritless.
While the voluntariness of a habeas petitioner’s confession is
a question of law entitled to de novo review by a federal court,
Miller v. Fenton, 474 U.S. 104, 112 (1985), the state court’s
factual findings “shall be presumed to be correct” in a federal
habeas corpus proceeding. 28 U.S.C. § 2254(e)(1). This presumption
applies to facts, such as the “length and circumstances of [an]
interrogation” that underlie a state court’s legal ruling.
112, 117;
Id. at
see also Thompson v. Keohane, 516 U.S. 99 (1995)
(voluntariness of a confession is a question of law; findings
regarding
“what
happened”
are
entitled
to
presumption
of
correctness).
Warnings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966),
are required prior to the interrogation of a suspect who is in
custody.
Custodial interrogation is “questioning initiated by law
enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant
-20-
way.”
Id.;
see also Dickerson v. United States, 530 U.S. 428
(2000) (reaffirming Miranda).
In determining whether a person is
in custody, the reviewing court must determine “first, what were
the circumstances surrounding the interrogation; and second, given
those circumstances, would a reasonable person have felt he or she
was not at liberty to terminate the interrogation and leave.”
Thompson, 516 U.S. at 112.
Generally speaking, a suspect who has not been arrested is not
considered “in custody” unless “law enforcement officials act or
speak in a manner that conveys the message that they would not
permit the accused to leave.”
Campaneria v. Reid, 891 F.2d 1014,
1021,
Courts
n.1
(2d
Cir.
1989).
also
consider
whether
“a
reasonable person in the suspect’s shoes would have understood that
his detention was not likely to be ‘temporary and brief’ . . .
[and] whether a person stopped under the circumstances at issue
would feel that he was ‘completely at the mercy of the police.’”
United States v. Newton, 369 F.3d 659, 675 (2d Cir. 2004) (quoting
Berkemer v. McCarty, 468 U.S. 420, 437-38 (1984)).
For Miranda
purposes, “interrogation” includes “any words or actions on the
part of the police (other than those normally attendant to arrest
and custody) that the police should know are reasonably likely to
elicit an incriminating response from the suspect.”
v. Innis, 446 U.S. 291, 301 (1980).
-21-
Rhode Island
Here, the testimony presented at the suppression hearing fully
supported the Appellate Division, Fourth Department’s conclusion
that Petitioner was not in custody at the time he made his initial
statements to the police.
The record before this Court reveals
that Petitioner was interviewed in a waiting room in the hospital.
At the time of the interview, he was not under arrest, nor did the
police
tell
Petitioner
that
he
was
under
arrest.
Nor
was
Petitioner handcuffed or otherwise restrained in any way. Notably,
when the police first questioned Petitioner, the police and medical
personnel were still trying to determine what had happened to
Emily.
Under
these
circumstances,
a
reasonable
person
in
Petitioner’s situation would have believed that he was free to
cease speaking with police and to leave.
Moreover, Petitioner voluntarily agreed to write down what
happened on the morning of the incident.
After Petitioner did so,
Chief Upchurch then advised Petitioner of his Miranda rights, and
Petitioner voluntarily waived those rights, agreeing to speak with
the police without an attorney.
It was during this conversation
that Petitioner admitted injuring Emily.
T.T. 504-510.
That
Petitioner was advised of his Miranda warnings by Chief Upchurch
did not, by itself, convert the non-custodial interview into a
custodial interrogation.
See United States v. Bautista, 145 F.3d
1140, 1148 (10th Cir. 1998) (Miranda warnings do not, in and of
itself, create custodial interrogation, but are just one factor to
-22-
consider);
United States v. Charles, 738 F.2d 686, 693 n.6 (5th
Cir. 1984) (“Giving a suspect Miranda warnings in noncustodial
setting does not . . . transform that setting into . . . a
custodial interrogation for Miranda purposes.");
United States v.
Lewis, 556 F.2d 446, 449 (6th Cir.) (giving of Miranda rights does
not restrain a suspect or convert a non-custodial interview into
custodial interrogation), cert. denied, 434 U.S. 863 (1977).
Furthermore, Petitioner’s conversation with Smith was also
non-custodial and voluntary.
familial
relationship
and
Petitioner and Smith had a close
Smith
–-
acting
in
his
unofficial
capacity at the time he spoke with Petitioner -- called Petitioner
on the telephone after the incident to warn him not to speak with
police.
At no time during this telephone conversation were there
any restrictions imposed on Petitioner.
At no point did Smith go
to the hospital and meet with Petitioner face to face.
Petitioner
spoke with Smith voluntarily and the entire conversation occurred
over the telephone.
Additionally, the record reflects that Smith
was reluctant to testify at trial against Petitioner and did so
only because of the threat of being disciplined by the Sheriff’s
Department.
T.T. 533-534.
Finally, Petitioner’s statements to child protective services
caseworkers Mangini and Testa did not implicate Petitioner’s right
to counsel and privilege against self-incrimination because neither
were law enforcement personnel nor were they working as agents of
-23-
the
police
when
they
spoke
with
Petitioner.
See
People
v.
Whitmore, 12 A.D.3d 845 (3d Dep’t 2004) (“generally social workers
are not agents of the police”) (quoting People v. Greene, 306
A.D.3d 639, 640-641 (3d Dep’t 2003).
Other than arriving at the
hospital together, the record reflects that the interviews by Chief
Upchurch and Caseworker Mangini were conducted separately.
There
is no evidence in the record that the police had any influence over
Mangini’s or Testa’s interviews of Petitioner.
Thus, there was no
basis for Petitioner’s statements to these individuals to be
suppressed as fruit of the poisonous tree.
Accordingly,
adjudication
of
the
this
Court
claim
finds
was
that
neither
the
state
contrary
to
court’s
nor
an
unreasonable application of clearly settled Supreme Court law. The
claim is therefore dismissed in its entirety.
2.
Trial Court Improperly
Evidence Charge
Refused
to
Give
a
Circumstantial
Petitioner argues, as he did on direct appeal, that the trial
court improperly refused to give a circumstantial evidence charge
to the jury.
See Pet. ¶ 22, Ground Four; Supplemental Mem. of Law
at 15-17; Reply at 6.
The Appellate Division, Fourth Department
rejected this claim on the merits, finding that:
the . . . contention of [Petitioner] that he
was entitled to a circumstantial evidence
charge is lacking in merit.
Because the
statements that the court properly refused to
suppress could be interpreted as relevant
admissions of guilt . . ., there was both
direct and circumstantial evidence, and the
-24-
court therefore was not required to give a
circumstantial evidence charge.
Mastownski, 26 A.D.3d at 746 (internal citations and quotations
omitted). As discussed below, this claim is not cognizable by this
Court on habeas review.
It is well-settled that the propriety of a state court’s jury
instructions is generally a matter of state law that does not raise
a federal constitutional question.
U.S. 62, 71-72 (1991);
See Estelle v. McGuire, 502
Cupp v. Naughten, 414 U.S. 141, 146 (1973).
Rather, to be entitled to habeas relief, a petitioner must show
“not merely that the instruction is undesirable, erroneous, or even
‘universally condemned,’ but that it violated some right which was
guaranteed to the defendant by the Fourteenth Amendment.”
414 U.S. at 146.
Cupp,
The central question, therefore, is “whether the
ailing instruction by itself so infected the entire trial that the
resulting conviction violates due process.”
Id. at 147.
Here, Petitioner has not shown that he was entitled to a
circumstantial evidence charge as a matter of state law. Under New
York law, “[w]henever a case relies wholly on circumstantial
evidence to establish all elements of the charge, the jury should
be instructed, in substance, that the evidence must establish guilt
to a moral certainty.”
(1993).
Where,
as
People v. Daddona, 81 N.Y.2d 990, 992
here,
there
existed
both
direct
and
circumstantial evidence, “the court need not so charge the jury.”
Id.
Petitioner’s admissions to the police and caseworkers was
-25-
direct evidence of his guilt.
The trial court therefore properly
refused to issue a circumstantial evidence charge.
Petitioner has
therefore failed to demonstrate an error of state law, let alone an
error of federal constitutional dimension.
Petitioner’s challenge to the trial court’s jury charge does
not rise to the level of a federal constitutional issue.
The state
court’s rejection of this claim then was not contrary to or an
unreasonable application of settled Supreme Court law.
The claim
is therefore dismissed.
3.
Prosecutorial Misconduct
Petitioner contends, as he did on direct appeal, that the
prosecutor improperly bolstered a prosecution witness and made
inflammatory comments at trial.
Specifically, he claims that:
(1) it was improper for the prosecutor to bolster the testimony of
Smith
by
stating
that
Smith
failed
to
report
Petitioner’s
confession because he was Petitioner’s “brother”; and (2) that the
prosecutor committed misconduct on summation when he “thanked god,”
referred to Petitioner’s expert witness as a “crook,” denigrated
defense counsel, and alleged that Petitioner made Emily sleep in a
doll’s bed.
See Pet. ¶ 22, Ground Three; Supplemental Mem. of Law
at 11-15; Reply at 5-6.
The Appellate Division, Fourth Department
rejected this claim, finding that Petitioner:
failed to preserve for our review the majority
of
his
contentions
concerning
alleged
prosecutorial misconduct, and we decline to
exercise our power to review them as a matter
-26-
of discretion in the interest of justice.
With respect to the instances of alleged
prosecutorial misconduct that are preserved
for our review, we conclude that the conduct
of the prosecutor was not so egregious or
prejudicial as to deny [Petitioner] his right
to a fair trial.
Mastowski, 26 A.D.3d at 746 (internal citations and quotations
omitted).
As discussed below, this claim is meritless.
In reviewing a claim of prosecutorial misconduct with regard
to a writ of habeas corpus, the appropriate standard of review is
“a narrow one of due process, and not the broad exercise of
supervisory power.”
Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir.
1990) (citing Darden v. Wainwright, 477 U.S. 168, 181 (1986)). The
alleged prosecutorial misconduct must have caused the defendant
“substantial prejudice” so that it infected the entire trial with
fundamental unfairness and the resulting conviction was a denial of
due process.
see
also,
Donnelly v. DeChristoforo, 416 U.S. 637, 647 (1974);
e.g.,
United
States
v.
Shareef,
190
F.3d
71,
78
(2d Cir.1999).
Generally,
inappropriate
prosecutorial
comments,
alone, are insufficient to reverse a conviction.
Young, 470 U.S. 1, 11 (1985).
prosecutor’s
comments,
the
standing
United States v.
In order to assess the impact of the
reviewing
totality of the circumstances.
court
must
consider
the
Id. (noting that the court must
also review the defense counsel’s summation to see if the defendant
“invited” such a response);
Fero v. Kerby, 39 F.3d 1462, 1474
-27-
(10th Cir.1994) (noting that the court should “look first at the
strength of the evidence against the defendant and decide whether
the prosecutor’s statements plausibly ‘could have tipped the scales
in favor of the prosecution’”) (internal quotations omitted).
In
the Second Circuit, this inquiry includes three factors: (1) the
severity of the prosecutor’s misconduct, (2) any curative measures
taken by the court, and (3) the certainty of the conviction without
the prosecutor’s comments. See e.g., United States v. Melendez, 57
F.3d 238, 241 (2d Cir. 1995) (citations omitted); Bentley v.
Scully, 41 F.3d 818, 824 (2d Cir. 1994).
First, Petitioner contends that it was improper for the
prosecutor to bolster the testimony of Smith by stating that Smith
failed
to
report
Petitioner’s
Petitioner’s “brother.”
confession
because
This contention is meritless.
he
was
The record
reflects that, on direct examination, Smith testified that he and
Petitioner were raised like “brothers.”
T.T. 521-526.
On cross-
examination, defense counsel sought to elicit testimony that Smith
only testified against Petitioner after being threatened with
disciplinary action by the Sheriff’s Department. T.T. 533-534. In
response to this testimony, the prosecutor properly rehabilitated
Smith by confirming his close relationship to Petitioner and the
feelings of loyalty that he had toward Petitioner.
T.T. 535.
The
prosecutor’s comment on summation, in which he referred to Smith as
-28-
Petitioner’s “brother” was fair in light of the attack on Deputy
Smith’s credibility.
T.T. 1094.
Second, Petitioner contends that the prosecutor’s summation
comments regarding the defense expert, Buttram, were improper and
denied him of a fair trial.
This contention is also meritless.
The record before this Court reflects that said comments were fair
in light of the evidence presented at trial and defense counsel’s
summation.
On summation, defense counsel suggested that the
People’s medical witnesses were merely guessing at the cause of
Emily’s injuries.
T.T. 1052-1060.
In response, the prosecutor
criticized Buttram, whose credibility had been questioned on crossexamination,
patients.
calling
T.T. 1090.
him
a
“crook”
for
over-billing
medicare
Thus, the prosecutor’s isolated comments
were not improper and, even if they were, were not so egregious as
to have deprived Petitioner of a fair trial.
Moreover, the prosecutor’s brief statement “thanking god” for
the well-qualified medical staff at Strong Memorial Hospital was
not, as Petitioner contends, an invocation of religion, but rather
a colloquial term used to praise the work of the medical staff who
helped children like Emily with serious injuries.
T.T. 1081-1082.
Thus, the prosecutor’s isolated comment was not improper and, to
the extent, if any, it may have been interpreted by the jury as a
invocation of religion suggesting, as Petitioner argues, that “God
was on the side of the prosecution,” it was not so prejudicial as
-29-
to have deprived Petitioner of his right to a fair trial.
See
Reply at 5.
Finally, there was strong evidence of Petitioner’s guilt: the
medical evidence coupled with Petitioner’s admissions squarely
pointed to the conclusion that Emily was violently shaken by
Petitioner.
Accordingly, the Court cannot find that the state court’s
adjudication of this claim contravened or unreasonably applied
settled Supreme Court law. The claim is therefore dismissed in its
entirety.
4.
Depraved Indifference Element of First Degree Assault Statute
is Unconstitutionally Void for Vagueness
Petitioner argues, as he did on direct appeal, that the
depraved indifference element of the first-degree assault statute,
as stated in Penal Law § 120.10(3), is unconstitutionally vague.
See Pet. ¶ 22, Ground Five; Supplemental Mem. of Law at 17-21;
Reply at 6-7.
The Appellate Division, Fourth Department rejected
this claim on a state procedural ground because it was unpreserved
for
appellate
review.
See
Mastowski,
26
A.D.3d
at
745-746.
Consequently, this claim is procedurally defaulted from habeas
review by this Court.
A federal court may not review a question of federal law
decided by a state court if the state court’s decision rested on a
state law ground that is independent of the federal question and
adequate to support the judgment.
-30-
See Coleman, 501 U.S. at 729.
Here, the Ontario County court relied on New York’s preservation
rule (codified at CPL § 470.05(2)) to deny Petitioner’s claim
because it had not been properly preserved for appellate review.
See Mastowski, 26 A.D.3d at 745-746.
The Second Circuit has
determined that CPL § 470.05(2) is an independent and adequate
state procedural ground.
(2d Cir. 1999);
1990).
See Garcia v. Lewis, 188 F.3d 71, 79-82
Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir.
The Appellate Division, Fourth Department’s reliance on
New York’s preservation rule is an adequate and independent state
ground which precludes this Court’s review of Petitioner’s claim.
This Court, however, may reach the merits of Petitioner’s
claim, despite the procedural default, if he can demonstrate cause
for the default and prejudice, or that failure to consider the
claim will result in a fundamental miscarriage of justice.
Coleman, 501 U.S. at 750.
prejudice for the default.
See
Petitioner does not allege cause and
He does, however, attempt to avail
himself of the “fundamental miscarriage of justice” exception,
arguing that, “had he been tried under a proper and constitutional
statute, he would not have been found guilty of assault.”
6-7.
The
Supreme
Court
has
explained
that
the
Reply at
fundamental
miscarriage of justice exception is “tied . . . to [a] petitioner’s
innocence” and exists to protect those who are “actually innocent.”
Schlup v. Delo, 513 U.S. 298, 321, 324 (1995).
Because “‘actual
innocence’ means factual innocence, not mere legal insufficiency,”
-31-
Bousley v. United States, 523 U.S. 614, 623-24 (1998), accord,
e.g., Sweet v. Bennett, 353 F.3d 135, 142 (2d Cir. 2003);
Dunham
v. Travis, 313 F.3d 724, 730 (2d Cir. 2002), “prisoners asserting
innocence as a gateway to defaulted claims must establish that, in
light of new evidence, ‘it is more likely than not that no
reasonable juror would have found petitioner guilty beyond a
reasonable doubt.’”
House v. Bell, 547 U.S. 518, 536-37 (2006);
see also, e.g., Schlup, 513 U.S. at 324-27 (fundamental miscarriage
of justice must be demonstrated by showing through “new reliable
evidence
--
whether
it
be
exculpatory
scientific
evidence,
trustworthy eyewitness accounts, or critical physical evidence that was not presented at trial,” that “it is more likely than not
that no reasonable juror would have convicted him in light of the
new evidence.”);
Murden v. Artuz, 497 F.3d 178, 194 (2d Cir. 2007)
(“‘To demonstrate actual innocence a habeas petitioner must show
that it is more likely than not that no reasonable juror would have
convicted him in light of the new evidence.’
Actual innocence
requires 'not legal innocence but factual innocence.'") (citations
omitted).
exception
Accordingly, the fundamental miscarriage of justice
is
“extremely
“extraordinary case[s].”
rare”
and
should
be
applied
only
in
Schlup, 513 U.S. at 321-22; see also,
e.g., Morrison v. Ercole, 07 Civ. 3576, 2009 U.S. Dist. LEXIS 7796,
*20 (S.D.N.Y. Jan. 16, 2009) (“The Second Circuit has emphasized
that the type of evidence on which claims of actual innocence may
-32-
be based is strictly limited and that petitioners must meet a
‘demanding
standard’
‘gateway.’”).
in
order
to
take
advantage
of
this
Petitioner fails to meet the heavy burden required
by Schlup and House insomuch as he does not claim to be entirely
innocent of the crime with which he was charged.
See e.g., Garbutt
v. Conway, 05 Civ. 9898, 2009 U.S. Dist. LEXIS 70825, 2009 WL
2474099 at *2-3 (S.D.N.Y. Aug. 12, 2009) (petitioner failed to
overcome the procedural bar because he made no “claim that he is
entirely innocent.”).
Rather, he argues that the evidence was
insufficient to prove the depraved indifference element of first
degree assault.
This argument, which is not rooted in a claim of
factual innocence, amounts to nothing more than a legal sufficiency
argument that is insufficient to invoke the fundamental miscarriage
of justice exception.
Moreover, Petitioner does not provide any
new evidence or support for his generalized, conclusory assertion
of innocence.
See Reply at 6-7.
Accordingly, Petitioner has
failed to a make a “‘colorable showing of factual innocence’ in the
form of newly adduced evidence.”
Burgos-Santos v. Greene, 05 Civ.
3763, 2009 U.S. Dist. LEXIS 55879, *6 (S.D.N.Y. July 1, 2009).
Finally, the Court points out that the evidence was indeed legally
sufficient
to
support
Petitioner’s
conviction
for
indifference assault (see discussion at Section “IV, 5”).
depraved
This is
hardly the extraordinary case, therefore, where “the principles of
comity and finality that inform the concepts of cause and prejudice
-33-
‘must yield to the imperative of correcting a fundamentally unjust
incarceration.’” Murray, 477 U.S. at 495.
Because Petitioner has
not demonstrated that a failure to consider the claim will result
in a fundamental miscarriage of justice, the Court finds no basis
to invoke this “extremely rare” exception to a procedural bar. See
e.g. Lisojo v. Rock, 09 Civ. 7928 (CM) (AJP), 2010 U.S. Dist. LEXIS
31152, *91-93 (S.D.N.Y. March 31, 2010), report & recommendation
adopted by 2010 U.S. Dist. LEXIS 42262 (S.D.N.Y. April 29, 2010)
(finding that petitioner failed to overcome procedural bar by
attempting to invoke fundamental miscarriage of justice exception
where Petitioner did not claim to be entirely innocent, but rather
that the evidence was insufficient to convict him of depraved
indifference murder). Petitioner’s claim is therefore procedurally
defaulted and is dismissed on that basis.2
5.
Legally Insufficient Evidence
Petitioner contends, as he did in the state courts, that the
evidence was legally insufficient to support his conviction for
depraved
indifference
assault.
See
Pet.
¶
22,
Supplemental Mem. of Law at 21-24; Reply at 7-8.
Ground
Six;
The Appellate
2
The Court notes that even if Petitioner was able to overcome the procedural
default, his claim would still provide no basis for habeas relief. Courts in
this Circuit have upheld the constitutionality of New York’s depraved
indifference statute in rejecting claims of vagueness.
See Farr v. Greiner,
01-CV-6921 (NG) (MDG), 2007 U.S. Dist. LEXIS 30184, *83 (E.D.N.Y. Feb. 23, 2007),
report & recommendation adopted by 2007 U.S. Dist. LEXIS 26401 (E.D.N.Y. April
10, 2007); Guzman v. Greene, 425 F. Supp. 2d 298, 320 (E.D.N.Y. 2006); Salcedo
v. Phillips, No. 04 Civ. 7964, 2005 U.S. Dist. LEXIS 19808, *84-85 (S.D.N.Y.
Sept. 13, 2005); see also Mannix v. Philips, 390 F.Supp.2d 280, 292 (S.D.N.Y.
2005).
-34-
Division, Fourth Department rejected this claim on the merits.3
As
discussed below, this claim is meritless.
Under the clearly established law set forth in Jackson v.
Virginia, 443 U.S. 307 (1979), a habeas petitioner “bears a very
heavy burden” when challenging the legal sufficiency of his state
criminal conviction, Einaugler v. Supreme Court of the State of
New York, 109 F.3d 836, 840 (2d Cir. 1997) (quoting Quirama v.
Michele, 983 F.2d 12, 14 (2d Cir. 1993)), and a habeas court is
required to consider the trial evidence in the light most favorable
to the prosecution and uphold the conviction if “any rational trier
of fact could have found the essential elements of the crime beyond
a reasonable doubt.”
Jackson, 443 U.S. at 319 (emphasis in
original).
Moreover, a habeas court must defer to the assessments of the
credibility of the witnesses that were made by the jury and may not
substitute its view of the evidence for that of the jury.
443 U.S. at 319;
Maldonado, 86 F.3d at 35.
Jackson,
Thus, under this
“rigorous standard,” a “federal habeas corpus court faced with a
record of historical facts that supports conflicting inferences
3
Petitioner raised this claim on direct appeal, and the Appellate Division,
Fourth Department determined that, “[c[ontrary to further contentions of
defendant, the conviction is supported by legally sufficient evidence and the
verdict is not against the weight of the evidence.” Mastowski, 26 A.D.3d at 746.
Thereafter, Petitioner raised this claim in his first motion to vacate, and the
claim was denied on procedural grounds, pursuant to CPL § 440.10(2)(a) and (c).
See Resp’t Ex. N. Petitioner sought leave to appeal the county court’s denial
of his motion to vacate, which was granted. See Resp’t Exs. P, R. The Appellate
Division, Fourth Department subsequently denied this claim on the merits. See
Resp’t Ex. U.
-35-
must presume-even if it does not affirmatively appear in the
record-that the trier of fact resolved any such conflicts in favor
of the prosecution, and must defer to that resolution.”
Wheel v.
Robinson, 34 F.3d 60, 66 (2d Cir. 1994), cert. denied, 514 U.S.
1066 (1995) (quotation omitted).
When considering the sufficiency of the evidence of a state
conviction, “[a] federal court must look to state law to determine
the elements of the crime.”
Ponnapula v. Spitzer, 297 F.3d 172,
179 (2d Cir. 2002) (quoting Quartararo v. Hanslmaier, 186 F.3d 91,
97 (2d Cir. 1999), cert. denied, 528 U.S. 1170 (2000)).
Under
New York law, “a person is guilty of assault in the first degree
when [u]nder circumstances evincing a depraved indifference to
human life, he recklessly engages in conduct which creates a grave
risk
of
death
to
another
person,
physical injury to another person.”
(A)
and
thereby
causes
serious
Penal Law § 120.10(3).
The Applicable Law for Legal-Insufficiency Analysis of
Depraved Indifference
Although the law on depraved indifference murder underwent
significant changes from 2002 to 2006 (i.e., during the time of
Petitioner’s trial and subsequent conviction), the relevant law
under which the insufficient evidence claim must be analyzed is the
law at the time the conviction became final, not, as Petitioner
asserts, the law at the time of his trial.
The Second Circuit has specifically held that, on habeas
review, it is error to find that the applicable law for purposes of
-36-
a legal-insufficiency analysis is the law in effect when the
petitioner was convicted at trial. Rivera v. Cuomo, 649 F.3d 132,
139 (2d Cir. 2011). Instead, the district court must apply the law
as it existed at the time the petitioner’s conviction became final.
id. “For habeas purposes, a New York state-court conviction becomes
final 90 days after the New York Court of Appeals denies leave to
appeal, which is when the petitioner’s time to apply for a writ of
certiorari to the United State Supreme Court expires.” Id. (citing
Fernandez v. Artuz, 402 F.3d 111, 112 (2d Cir. 2005)); see also
Williams v. Artuz, 237 F.3d 147, 150-51 (2d Cir. 2001).
Here, the New York Court of Appeals denied leave to appeal on
April 26, 2006. People v. Mastowski, 6 N.Y.3d 850 (N.Y. 2006).
Petitioner then filed a pro se motion for reconsideration on
June 7, 2006, which was summarily denied by the Court of Appeals on
August 4, 2006. People v. Mastowski, 7 N.Y.3d 815 (N.Y. 2006). At
the time, N.Y. Court Rule § 500.11(g)(3), 22 N.Y. Comp. Rule & Reg.
§ 500.11(g)(3), provided that “[u]nless otherwise permitted by the
court, the notice of motion [for reargument of appeals] shall be
served not later than 30 days after the appeal or motion has been
decided.” Thus, Mastowski’s motion for reconsideration appears to
have been untimely, since it was filed more than 30 days after the
issuance of the decision denying leave to appeal on April 26, 2006.
Because the reconsideration motion was untimely, the 90-day period
for seeking certiorari is added to the date the Court of Appeals
denied leave to appeal (April 26, 2006), not to the date it denied
the subsequent, untimely motion for reconsideration (August 4,
-37-
2006). see also Vega v. Bellnier, No. 10-CV-4202 (KAM), 2010 WL
4484377, at *1 (E.D.N.Y. Nov. 1, 2010) (“Petitioner’s conviction
became final either on or about May 5, 2009, 90 days after the
New York Court of Appeals denied leave to appeal on February 4,
2009, or, if petitioner’s motion for reconsideration was timely
filed under state law, on or about July 13, 2009, 90 days after the
New York Court of Appeals denied petitioner’s motion to reconsider
its
denial
of
leave
to
appeal
on
April
14,
2009.”).
Thus,
Petitioner’s conviction became final on July 25, 2006, upon the
expiration of the 90-day period for petitioning for a writ of
certiorari from the Supreme Court. See, e.g., Rivera, 649 F.3d at
139 (citations omitted).
On July 5, 2006, the New York Court of Appeals decided People
v. Feingold, 7 N.Y.3d 288, 293-94 (N.Y. July 5, 2006), which
explicitly overruled People v. Register, 60 N.Y.2d 270 (N.Y. 1983),
the
depraved
indifference
standard
in
place
at
the
time
of
Mastowski’s trial. Rivera v. Cuomo instructs that the applicable
law for this Court’s purposes is People v. Feingold, 7 N.Y.3d at
293-94, not People v. Register, 60 N.Y.2d 270, since Feingold had
already
been
decided
by
July
25,
2006,
the
date
Mastowski’s
conviction became final. See Rivera, 649 F.3d at 139.
Petitioner’s conviction became final on July 25, 2006, upon
the expiration of the 90-day period for petitioning for a writ of
certiorari in the United States Supreme Court.
See Williams v.
Artuz, 237 F.3d 147, 150-51 (2d. Cir. 2001).
Thus, the Court
reviews Petitioner’s sufficiency of the evidence claim under the
-38-
standard
set
forth
in
People
v.
Feingold,
7
N.Y.2d
288
(2006)(expressly overruling People v. Register, 60 N.Y.2d 270
(1983)).
(B)
Legal Sufficiency of the Evidence
Viewing the evidence in a light most favorable to the People,
a rational trier of fact could have found the essential elements of
depraved indifference assault beyond a reasonable doubt. At trial,
sufficient proof was presented which established the following:
that the injuries inflicted upon Emily were consistent with those
of
shaken
baby
syndrome;
that
Emily
suffered
from
retinal
hemorrhages, a subdural hematoma, brain swelling, her extremities
were stiff, and she was completely unresponsive; that, at the time
of the trial, Emily remained in a vegetative state, unable to see
or move on her own; that Petitioner confessed to Chief Upchurch,
Deputy Smith, and caseworker Mangini that he had inflicted the
injuries on Emily; that Petitioner failed to immediately respond to
Emily’s injuries; and that, despite having noticed something was
wrong with Emily at 9:00 a.m., Petitioner waited until 12:00 p.m.
when
his
wife
returned
home
to
take
T.T. 644, 674-675, 704-705, 934-935.
Emily
to
the
hospital.
On such evidence, a rational
jury could have concluded that, under circumstances evincing a
depraved indifference to human life, Petitioner recklessly engaged
in conduct which created a grave risk of death to his infant
daughter, and thereby caused serious physical injury to her.
Penal Law § 120.10(3);
N.Y.
see People v. Griffin, 48 A.D.2d 1233
-39-
(4th Dep’t 2008) (evidence was sufficient to establish depraved
indifference murder where defendant, who was frustrated with threeyear-old daughter who suffered from cerebral palsy, “slammed her
and threw her on the couch about four or five times,” causing child
to hit her heard on armrest and couch and subsequently die of
subdural hematoma caused by blunt force trauma); People v. Smith,
41 A.D.3d 964 (3d Dep’t 2007) (evidence was legally sufficient to
prove defendant acted with depraved indifference where defendant
violently shook three-year-old child causing her death); People v.
Maddox, 31 A.D.3d 970 (3d Dep’t 2006) (affirming defendant’s
conviction of depraved indifference murder where defendant shook
four-month-old infant causing her death).
Accordingly,
the
Court
finds
that
the
state
court’s
adjudication of this claim did not contravene or unreasonably apply
settled
Supreme
Court
law.
Petitioner’s
sufficiency
of
the
evidence claim is therefore dismissed in its entirety.
6.
Ineffective Assistance of Counsel
Petitioner argues that he was denied the effective assistance
of trial counsel.
failed
(2)
to:
object
(1)
to
violations;
reliability
Specifically, he contends that trial counsel
investigate
and
(3)
of
the
and
preserve
request
state’s
prepare
state
a
Frye
expert
and
his
expert
federal
hearing
to
witnesses;
witness;
constitutional
determine
(4)
object
the
and
preserve the Petitioner’s right to confrontation; (5) object to
inflammatory and bolstering testimony; and (6) remain apprised of
-40-
the legal definition of “depraved indifference.”
See Pet. ¶ 22,
Ground Two; Supplemental Mem. of Law at 5-11; Reply at 3-5.
Petitioner raised the first portion of this claim on direct appeal,
and it was rejected on the merits.
745.
See Mastowski, 26 A.D.3d at
The remaining portions of Petitioner’s claim were raised in
his post-conviction CPL § 440.10 motions, and denied on procedural
grounds.4
Consequently,
as
ineffective
assistance
trial
of
discussed
counsel
below,
claim
Petitioner’s
is
partially
meritless and partially procedurally defaulted from habeas review.
(A)
Petitioner’s Claim that Trial Counsel’s Failed
Investigate and Prepare Expert Witness is Meritless
to
Petitioner argues, as he did on direct appeal, that trial
counsel was ineffective because he failed to investigate and
prepare his expert witness (Buttram).
The Appellate Division,
Fourth Department rejected this claim on the merits, finding that
“defense counsel had a discernable strategy in advancing expert
testimony that the victim’s injuries could have been caused by
recent vaccinations and although that strategy was not successful,
[Petitioner] was not thereby deprived of the effective assistance
of counsel.”
Mastowski, 26 A.D.3d at 745.
As discussed below,
this claim is meritless.
4
The Court notes that Petitioner’s first motion to vacate was denied, in its
entirety, in procedural grounds. See Resp’t Ex. L. Petitioner sought leave to
appeal the county court’s denial, which was granted.
See Resp’t Ex. R.
The
Appellate Division, Fourth Department subsequently denied each of the remaining
portions of Petitioner’s ineffective assistance of counsel claim on procedural
grounds. See Resp’t Ex. U.
-41-
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 argues that he received ineffective assistance of
trial counsel because counsel failed to investigate and prepare his
expert witness (Buttram). This claim is meritless. “‘The decision
to call an expert witness is a strategic decision for the defense
counsel, and generally should be not be disturbed.” See Mazique v.
Ercole, 06-cv-1723, 2008 U.S. Dist. LEXIS 56660, *25 (E.D.N.Y.
July 23, 2008) (citing United States v. Nersesian, 824 F.2d 1294,
1321 (2d Cir. 1987).
Here, counsel was hard-pressed to find an
alternate cause for Emily’s injuries.
-42-
Although Buttram may not
have been an ideal witness –- given his questionable credentials
and reputation in the medical community which were revealed on
cross-examination -- Petitioner cannot show prejudice as a result
of counsel’s decision to call him as an expert witness.
That is,
Buttram conveyed the view to the jury that Emily’s injuries could
have been caused from something other than shaken baby syndrome.
Notably, Buttram’s testimony buttressed Petitioner’s testimony
about Emily’s negative reaction to the vaccinations she received
prior to the date of the incident.
not
and
cannot
demonstrate
To this extent, Petitioner has
that
counsel’s
performance
was
constitutionally deficient within the meaning of Strickland, and
that, but for counsel’s alleged error, there is a probability –let alone a reasonable one -- that the outcome of his trial would
have been different.
Further, to the extent Petitioner specifically faults trial
counsel for failing to investigate and prepare Buttram, such a
claim is also meritless.
There is nothing in the record before
this Court that suggests that defense counsel was unaware of his
expert witness’s questionable credentials and reputation in the
medical community.
Indeed, as Respondent correctly points out,
given the facts and circumstances of the case, counsel may have
indeed been well-aware of the weaknesses of his expert, but could
not find an expert witness with better credentials who would have
offered testimony to support Petitioner’s defense. See Resp’t Mem.
of Law at 34.
In any event, Petitioner makes no showing of
prejudice as a result of counsel’s alleged error.
-43-
Accordingly, the Court cannot find that the state court’s
adjudication of this claim contravened or unreasonably applied
Strickland. This portion of Petitioner’s ineffective assistance of
counsel claim is therefore dismissed as meritless.
(B)
The Remaining
Assistance of
Defaulted
Portions of Petitioner’s Ineffective
Trial Counsel Claim are Procedurally
Petitioner asserts that trial counsel was ineffective because
counsel failed to:
object to and preserve state and federal
constitutional violations; request a Frye hearing to determine the
reliability of the state’s expert witnesses;
the Petitioner’s right to confrontation;
and
bolstering
testimony;
and
remain
object and preserve
object to inflammatory
apprised
of
the
legal
definition of “depraved indifference.” These claims were raised in
Petitioner’s
ultimately
post-conviction
denied,
§ 440.10(2) and (c).
on
motions
procedural
for
vacatur
grounds,
See Resp’t Exs. L, U.
and
pursuant
to
were
CPL
Consequently, they are
procedurally barred from habeas review by this Court.
As discussed above, a federal court may not review a question
of federal law decided by a state court if the state court's
decision rested on a state law ground that is independent of the
federal
question
and
adequate
Coleman, 501 U.S. at 729.
to
support
the
judgment.
See
Here, the state court rejected these
portions of Petitioner's ineffective assistance of trial counsel
claims pursuant to CPL § 440.10(2)(a), (c). The Second Circuit has
recognized CPL § 440.10(2)(c) as an adequate and independent state
-44-
ground
sufficient
to
preclude
federal
habeas
review
of
a
state-court defendant’s claims.
See e.g., Sweet v. Bennett, 353
F.3d 135, 139-40 (2d Cir. 2003);
Reyes v. Keane, 118 F.3d 136, 139
(2d
Cir.
1997);
Aparicio,
269
F.3d
at
91
(2d
Cir.
1991).
Additionally, denial of a claim pursuant CPL § 440.10(2)(a) has
been found to constitute an adequate and independent state ground.
See, e.g., McClarin v. Smith, 05-CV-2478 (DLI), 2007 U.S. Dist.
LEXIS 58717 (E.D.N.Y. 2007);
D'Alessandro v. Fischer, No. 01 Civ.
2551 (LTS)(DF), 2005 U.S. Dist. LEXIS 31381 (S.D.N.Y. 2005).
Accordingly, the state court’s reliance on CPL § 440.10(2)(a), (c)
to deny the remaining portions of Petitioner’s ineffective claim
bars this Court’s review of them.
A finding of procedural default bars habeas review of the
federal claims unless the petitioner can show cause for the default
and prejudice attributable thereto, or demonstrate that failure to
consider the claims will result in a miscarriage of justice.
Murray, 477 U.S. at 492.
Petitioner does not specifically allege
cause and prejudice to overcome the procedural default, nor has he
attempted to avail himself of the fundamental miscarriage of
justice
exception.
Petitioner’s
Accordingly,
ineffective
the
assistance
remaining
of
counsel
portions
of
claim
are
procedurally defaulted and dismissed on that basis.
In any event, even if Petitioner was able to overcome the
procedural
default,
the
remaining
portions
of
Petitioner’s
ineffective assistance of counsel claim are meritless.
First,
Petitioner faults counsel for failing to preserve the suppression
-45-
issue, the challenge to the depraved indifference jury instruction,
and the claims of prosecutorial misconduct.
As discussed in other
sections of this Decision and Order, Petitioner’s claims that his
statements
should
have
been
suppressed,
that
the
depraved
indifference statute was unconstitutionally vague, and that the
prosecutor committed misconduct are all without merit.
Thus,
trial counsel was not ineffective for failing to object to these
meritlesss issues, and Petitioner has not demonstrated that he was
prejudiced
by
counsel’s
failure
to
do
so.
This
portion
of
Petitioner’s ineffective assistance of counsel claim is therefore
meritless.
Next, Petitioner faults counsel for failing to request a Frye
hearing.
In New York, “expert testimony based on scientific
principles or procedures is admissible only after a principle or
procedure has ‘gained general acceptance’ in its specified field.”
See People v. Wesley, 83 N.Y.2d 417, 422 (1994) (citing Frye v.
United States, 293 F. 1013 (D.C. Cir. 1923).
However, a Frye
hearing is not required where the expert testimony offered does not
involve any novel procedures or innovative scientific theories.
See People v. Garrow, 75 A.D.3d 849, 852 (3d Dep’t 2010).
Thus,
where a scientific theory is well-established, the failure to
request a Frye hearing will not amount to ineffective assistance of
counsel. See Gersten v. Senkowski, 299 F.Supp.2d 84, 105 (E.D.N.Y.
2004) (“In light of the well-established law in New York, the
decision not to request a Frye hearing was a reasonable strategy
that falls well within the realm of competent representation.”).
-46-
New York courts have held that shaken baby syndrome is no longer a
scientific theory.
See In re Antoine J., 185 A.D.2d 925, 926
(2d Dep’t 1992); People v. Yates, 290 A.D.2d 888, 890 (3d Dep’t
2002).
To this extent, it was not unreasonable for trial counsel
not to have sought a Frye hearing.
Petitioner contends that the
effect of vaccinations on a baby, in comparison to the effects of
shaken baby syndrome, are novel, and should have been subject to a
Frye hearing.
Petitioner cites no authority for this position,
and, in any event, has not alleged prejudice as a result of
counsel’s failure to request a Frye hearing.
This portion of
Petitioner’s ineffective assistance of counsel claim is therefore
meritless.
Petitioner also contends that counsel was ineffective for
failing to object to Dr. Powers’ testimony that she had consulted
with other experts.
Petitioner asserts that he had a right to
confront these “other experts” and thus his right to confront
witnesses was violated.
This claim is meritless.
The record
reflects that Dr. Powers testified extensively regarding Emily’s
injuries and opined that they were consistent with shaken baby
syndrome.
Moreover,
Nurse
Mellor-Conley,
Dr.
O’Hanlon,
and
Dr. Connelly all testified that Emily’s injuries were likely the
result of shaken baby syndrome.
To this extent, it is highly
unlikely that Petitioner was prejudiced by counsel’s failure to
object to Dr. Power’s statements regarding the “other experts.” In
any event, the testimony of these “other experts” would have only
served to harm Petitioner’s case because they apparently supported
-47-
the opinion that Emily had been shaken. And, even assuming counsel
erred in failing to object to the statements, Petitioner has not
demonstrated prejudice in light of the overwhelming testimony
suggesting shaken baby syndrome as the cause of Emily’s injuries.
His generalized assertion that “the Appellate Division could not
have known the amount of prejudice suffered by the Petitioner as a
result of being unable to cross-examine said individuals” is
insufficient to establish prejudice.
This portion of Petitioner’s
ineffective assistance of counsel claim is therefore meritless.
Finally, Petitioner’s claims regarding counsel’s failure to
object to misconduct by the prosecutor and counsel’s failure to
remain apprised of the definition of depraved indifference are both
meritless (see discussions above).
these
respects
meaning
of
ineffective
was
not
Strickland,
assistance
Thus, counsel’s performance in
constitutionally
and
of
these
trial
deficient
portions
counsel
of
claim
within
the
Petitioner’s
are
therefore
meritless.
In sum, the remaining portions of Petitioner’s ineffective
assistance of counsel claim are procedurally defaulted and are
dismissed on that basis.
In any event, even if Petitioner was able
to overcome the procedural bar, the remaining portions of his
ineffective assistance of counsel claim still lack merit.
7.
Harsh and Excessive Sentence
-48-
Petitioner contends, as he did on direct appeal,5 that his
sentence of seventeen years imprisonment, plus five years of post
release supervision, is harsh and excessive.
Seven.
See Pet. ¶ 22 Ground
The Appellate Division, Fourth Department rejected this
claim on the merits, finding that, “the sentence is not unduly
harsh or severe. Contrary to the contention of defendant, the fact
that the sentence imposed after trial was greater than that offered
pursuant to the pretrial plea offer does not render the sentence
unduly harsh.”
Mastowski, 26 A.D.3d at 746.
As discussed below,
this claim is not cognizable by this Court on habeas review.
It is well-settled that a habeas petitioner’s challenge to the
length of his or her prison term does not present a cognizable
constitutional issue if the sentence falls within the statutory
range.
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
. . . the sentence is within the range prescribed by state law.”)
5
The Court notes that the parties dispute whether this claim is exhausted.
Respondent contends that the claim is unexhausted because “it pertains only to
matters of state law and [P]etitioner failed to raise it in constitutional terms”
on direct appeal, thereby failing to apprise the appellate court of the federal
constitutional dimension of the claim. Resp’t Mem. of Law at 53. Petitioner
counters, arguing that the “issue is based upon a claim that the sentence is
harsh and excessive . . . [and] that such terminology is at the heart of any
Eighth Amendment claim.”
Reply at 9.
The Court declines to address the
exhaustion issue to the extent that a harsh and excessive sentencing claim is not
cognizable on habeas review where, as here, Petitioner’s sentence falls within
the statutory range.
-49-
(citing Underwood v. Kelly, 692 F.Supp. 146 (E.D.N.Y. 1988), aff’d
mem., 875 F.2d 857 (2d Cir. 1989));
accord Ross v. Gavin, 101 F.3d
687 (2d Cir. 1996) (unpublished opinion).
Because Petitioner’s
sentence falls within the permissible statutory range, he may not
challenge the length of the sentence in the instant proceeding.
Here, Petitioner was sentenced to a determinate term of
seventeen years imprisonment on the first-degree assault conviction
(a Class B felony).
S.M. 20.
This sentence falls within the
statutory range under New York law.
See Penal Law §§ 120.10(3),
70.02. Accordingly, Petitioner’s claim that his sentence was harsh
and excessive is not cognizable, and is dismissed on that basis.
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.
Coppedge v.
United States, 369 U.S. 438 (1962).
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.
-50-
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:
October 18, 2011
Rochester, New York
-51-
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