Lynch v. Graham

Filing 29

DECISION AND ORDER denying request for a writ of habeas corpus and dismissing the petition. Signed by Hon. Michael A. Telesca on 10/28/11. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CRAIG LYNCH,
No. 10-CV-0589(MAT)
DECISION AND ORDER

Petitioner,
-vsHAROLD GRAHAM,
Respondent.

I.

Introduction
Pro se petitioner Craig Lynch (“Lynch” or “Petitioner”) has

filed a petition for a writ of habeas corpus challenging the
constitutionality of his conviction, following a jury trial, on
charges

of

second

degree

(felony)

murder,

first

degree

manslaughter, and second degree burglary. He was sentenced as a
second felony offender to an aggregate term of 25 years to life in
prison, and he is presently serving that sentence.
II.

Factual Background and Procedural History
Lynch’s conviction arises from the murder of Sister Klimczak

in Buffalo, New York, in April 2006. Lynch, who was on parole at
the time, had been staying at Bisonette House, a halfway house for
parolees.

Beth

Ann

Hart-Bader

(“Hart-Bader”),

Lynch’s

parole

officer, first learned of Sister Klimczak’s disappearance on the
morning of Monday, April 17, 2006. Hart-Bader went to Bisonette
House to check on Lynch, where she learned that all of the parolees
were at the parole office.
Later that morning, Hart-Bader spoke to Lynch about his
whereabouts on April 14th and 15th. Lynch replied that on April 14th

he had gone to visit his mother, who had given him money to get her
car (a white van) repaired. Instead, Petitioner used the money to
buy crack. He explained that he drove around and smoked crack and
marijuana. When his parole officer inquired about April 15th, Lynch
became extremely agitated and refused to say anything else because
“she was just going to lock him up anyway.” The parole officer
ceased questioning Lynch, told him to provide a urine sample, and
then

placed

him

in

a

holding

area

in

the

parole

office.

Petitioner’s urine test came back positive for illegal drugs.
In the meantime, the homicide investigation had uncovered some
evidence

possibly

linking

Petitioner

to

Sister

Klimczak.

Significantly, the police had been able to trace phone calls from
Sister Klimczak’s cell phone, which had been sold on the street by
a man driving a white van–and Lynch had told his parole officer
that he had been using a white van over the weekend.
A warrant eventually was issued for Lynch’s arrest, and he was
brought

to

the

police

department

where

he

gave

a

statement

incriminating himself in Sister Klimczak’s death. When Petitioner
broke into Sister Klimczak’s room, the victim saw him and in an
attempt to make her “go unconscious”, he put his hands over her
mouth and nose. Instead of “going unconscious”, she died.
Petitioner then sought to dispose of the body. After removing
the victim’s outer clothing (leaving her in her bra and panties,
Lynch brought the corpse to his grandmother’s abandoned house,
where he dug a deep, narrow hole in the garage and placed the

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corpse in it feet-first. After giving his statement, Lynch led the
police to the place where he had buried the victim’s body.
Lynch was charged with two counts of murder in the first
degree (N.Y. PENAL LAW (“P.L.”) § 125.27(1),(a),(vii)), three counts
of murder in the second degree (P.L. § 125.25(1), (2), (3)),
burglary in the second degree (P.L. § 140.25(2)) and robbery in the
third degree (P.L. § 160.05). Following a jury trial, he was
convicted of second degree (felony) murder and second degree
burglary, as charged in the indictment, as well as the lesser
included offense of first degree manslaughter in the first degree.
He was acquitted of the remaining charges.
Lynch

was

sentenced

as

a

second

felony

offender

to

an

indeterminate term of twenty-five years to life on the murder
conviction, a determinate term of twenty-five years and five years
post-release supervision on the manslaughter conviction and a
determinate term of fifteen years and five years post-release
supervision on the burglary conviction. The sentences were ordered
to be served concurrently, but consecutive to any sentence imposed
for his violation of parole due to his drug use.
Petitioner’s conviction unanimously was affirmed by Appellate
Division, Fourth Department (“the Fourth Department”), of New York
State Supreme Court, and leave to appeal to the New York Court of
Appeals was denied. This timely habeas petition followed.
For the reasons that follow, the petition is dismissed.

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III. Analysis of the Petition
A.

Illegal Detention and Questioning by the Division of
Parole

Petitioner contends as he did on direct appeal that he was
illegally detained and questioned by the Division of Parole without
probable cause and at the behest of the Buffalo Police Department.
Accordingly, Petitioner argues, the trial court erred in refusing
to suppress both his statements to the police and physical evidence
recovered by the police after those statements were made. The
Fourth Department held that based on the record of the suppression
hearing, it could not find that the trial court erred in concluding
as a matter of law that the questioning and detention of Lynch by
parole officers was in furtherance of parole purposes and related
to their duties as parole officers. People v. Lynch, 60 A.D.3d
1479, 1480 (App. Div. 4th Dept. 2009) (citing People v. Huntley, 43
N.Y.2d 175, 181 (N.Y. 1977)).
In Huntley, the New York Court of Appeals explained that
“whether [a parole search] was unreasonable and thus prohibited by
constitutional proscription must turn on whether the conduct of the
parole

officer

was

rationally

and

reasonably

related

to

the

performance of the parole officer’s duty.” 43 N.Y.2d at 181. The
Second Circuit has held that these principles are not inconsistent
with

the

searches

Fourth
and

Amendment’s

seizures,

and

proscription
indeed

are

against

unreasonable

“coextensive

with

the

requirements of the Fourth Amendment.” United States v. Grimes, 225

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F.3d 254, 259 & n.3 (2d Cir. 2000). “A rule indicating that a
search of a parolee is permissible so long as it is reasonably
related to the parole officer’s duties is identical to a rule that
parole officers may conduct searches so long as they comport with
the Fourth Amendment.” Id. (citing Chandler v. Miller, 520 U.S.
305, 313-14 (1997) (noting that

the doctrine of “special needs”

permits those searches that are reasonably related to the special
needs animated by management of a parole system)).
Thus, Lynch is effectively claiming that his Fourth Amendment
rights were violated by the parole officer’s conduct. However,
under Stone v. Powell, 428 U.S. 465 (1976), a federal habeas court
is barred from reviewing the merits of a Fourth Amendment claim so
long as the state has provided the petitioner with the opportunity
for a full and fair litigation of his claim. The Second Circuit has
explained that review of such claims in habeas petitions may be
undertaken “in only one of two instances: (a) if the state has
provided no corrective procedures at all to redress the alleged
fourth amendment violations; or (b) if the state has provided a
corrective mechanism, but the defendant was precluded from using
that mechanism because of an unconscionable breakdown in the
underlying process.” Capellan v. Riley, 975 F.2d 67, 70 (2d Cir.
1992).
Here, Lynch was afforded a full and fair opportunity to
litigate his Fourth Amendment claim in the state courts. A hearing
was held on his motion to suppress his statements to police, after

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which the motion was denied. Petitioner raised the claim anew in
his direct appeal, where it was again denied. Accordingly, further
review of the claim in federal court is precluded.
B.

Violation of N.Y. EXEC . LAW § 259-i(3)(a)(i)

Petitioner contends that he was placed in custody at the
parole office before a parole warrant was issued, in violation of
N.Y. EXEC. LAW § 259-i(3)(a)(i), which provides that a parole officer
who has reasonable cause to believe that a parolee has violated a
condition of parole must report that fact to a member of the
New York State Parole Board or an officer of the New York State
Division of Parole designated by the Board, who may then issue a
warrant for the retaking and temporary detention of the parolee.
The Appellate Division held that although Lynch’s detention at
the parole office was in violation of N.Y. EXEC . LAW § 259-i
(3)(a)(i), application of the exclusionary rule was not warranted
because this technical violation did not infringe upon Lynch’s
constitutional right to be free from unreasonable searches and
seizures. People v. Lynch, 60 A.D.3d at 1480 (citations omitted).
This claim presents only an error of state statutory law, and
does not raise a question of federal constitutional magnitude. As
such, it is not cognizable on federal habeas review. See Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991); 28 U.S.C. § 2254(a).
C.

Prosecutorial Misconduct

Lynch argues that he was deprived of his right to a fair trial
by

prosecutorial

misconduct.

On
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direct

appeal,

the

Fourth

Department rejected the claim partially on the merits and partially
as unpreserved:
The prosecutor’s description of the defense theory as
“outrageous” was within the wide rhetorical bounds
afforded the prosecutor. In addition, defendant was not
denied a fair trial when the prosecutor made an isolated
comment that in effect insulted and denigrated defense
counsel by referring to the belief of defense counsel
that he could convince the jury that the victim was
unintentionally killed. The record does not support
defendant’s contention that the prosecutor acted as an
unsworn witness, and defendant failed to preserve for our
review his further contention that the prosecutor
improperly shifted the burden of proof to defendant. We
decline to exercise our power to review that contention
as a matter of discretion in the interest of justice.
People v. Lynch, 60 A.D.3d at 1480-81 (citations omitted).

Even

under a de novo standard of review, habeas relief is not warranted.
Lynch’s contention that the prosecutor’s remarks violated the
Constitution can only succeed if he can demonstrate that they “so
infected

the

trial

with

unfairness

as

to

make

the

resulting

conviction a denial of due process.” Darden v. Wainwright, 477 U.S.
168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637,
643 (1974)). Thus, to be entitled to relief, Lynch “must show ‘that
he suffered actual prejudice because the prosecutor’s comments
during

summation

influence

in

had

a

determining

substantial
the

jury’s

and

injurious

verdict.’”.

effect

or

Tankleff

v.

Senkowski, 135 F.3d 235, 252 (2d Cir. 1998) (quoting Bentley v.
Scully, 41 F.3d 818, 823 (2d Cir. 1994) (internal quotation marks
and citation omitted in Tankleff)).
In deciding whether a petitioner has suffered actual prejudice
as a result of the prosecutorial misconduct, the Second Circuit
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considers “the severity of the misconduct; the measures adopted to
cure the misconduct; and the certainty of conviction absent the
improper statements.” United States v. Modica, 663 F.2d 1173, 1181
(2d Cir. 1981) (per curiam). Here, although it was improper for the
prosecutor to denigrate the defense, the other instances of alleged
misconduct were not supported by the record or did not exceed the
bounds of fair comment. See United States v. Suarez, 588 F.2d 352,
354 (2d Cir. 1978) (“Both prosecution and defense are entitled to
broad latitude in the inferences they may suggest to the jury
during closing arguments.”) (citation omitted). Furthermore, there
was

extremely

strong

evidence

of

guilt,

making

it

is

highly

improbable that the jury would not have convicted the defendant
absent the prosecutor’s comments. See United States v. Saa, 859
F.2d 1067, 1077 (2d Cir. 1988) (“[B]ased on the other evidence
against [the defendants], we find . . . that any adverse inference
improperly drawn by the jury would not have tilted the scales from
not guilty to guilty.”)). Thus, Lynch cannot demonstrate the
“substantial prejudice” required to succeed on a claimed due
process

violation

resulting

from

prosecutorial

misconduct.

Tankleff, 135 F.3d at 252.
D.

Erroneous Introduction of Photographs of the Victim

Petitioner contends as he did on appeal that the trial court
erred in admitting photographs of the victim and the crime scene
into evidence which he argues were “disturbing and graphic” and
irrelevant to the issues at trial.
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It is well-settled that claims based solely on state law
grounds are generally not cognizable on federal habeas review.
Estelle v. McGuire, 502 U.S. at 67 (citation omitted). Moreover,
“erroneous evidentiary rulings do not automatically rise to the
level of constitutional error.” Rosario v. Kuhlman, 839 F.2d 918,
924

(2d

Cir.

1988).

However,

the

Due

Process

Clause

of

the

Fourteenth Amendment prohibits the introduction of evidence that
“is so extremely unfair that its admission violates fundamental
conceptions of justice.” Dowling v. United States, 493 U.S. 342,
352

(1990)

(internal

citation

and

quotation

marks

omitted).

“Erroneous evidentiary rulings do not automatically rise to the
level of constitutional error sufficient to warrant issuance of a
writ of habeas corpus. Rather, the writ would issue only where
petitioner can show that the error deprived her of a fundamentally
fair trial.” Taylor v. Curry, 708 F.2d 886, 891 (2d Cir.1983)
(emphasis in original) (citations omitted).
In Lynch’s case, the Fourth Department correctly held, as a
matter of state evidentiary law, that the photographs of the
victim’s body were admissible. People v. Lynch, 60 A.D.3d at 1481.
Under New York law, photographs should be excluded only if their
sole purpose is to arouse the emotions of the jury and to prejudice
the defendant.
The theory of the prosecution was that Lynch intentionally
strangled Sister Klimczak to prevent her from identifying him as
the person in her room. Although Lynch admitted to killing her, he

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maintained that he did not intend to do so but instead accidentally
caused her death while attempting to render her unconscious by
placing his hand over her nose and mouth. The photographs at issue
showed the nature of the injuries to the victim’s face and tended
to prove that Lynch acted with intent to kill, an essential element
of the murder counts. As the Fourth Department concluded, the
photographs were relevant and probative of intent, and thus it
cannot be said that they were admitted for the sole purpose of
inflaming the jury. Lynch has not shown an error of state law
occurred

in

connection

with

the

photographs’

admission

into

evidence, much less an error of constitutional magnitude.
E.

Erroneous Preclusion of Testimony Regarding Intent

Lynch contends that the trial court denied him of his Sixth
Amendment right to present a defense by refusing to allow him to
present the testimony of the Buffalo Police Commissioner giving his
opinion that Sister Klimczak’s death was accidental and committed
while Lynch was under the influence of crack cocaine. Lynch argues
that such evidence was admissible because it constituted a timely
response to his confession and inculpatory statements. In support
of this proposition, Lynch relies on the evidentiary principle that
when part of an admission or confession has been received into
evidence, the party against whom it is offered has the right to
“prove any other statement made by him at the same time which tends
to modify or destroy the effect of the admission.” Richardson,

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Evidence, § 8-210 (Prince 11th ed.); see also People v. Dlugash, 41
N.Y.2d 725, 736 (N.Y. 1977).
“A court’s discretion in evidentiary rulings is circumscribed
by the rules of evidence and the defendant’s constitutional right
to present a defense [.]” People v. Carroll, 95 N.Y.2d 375, 385
(N.Y. 2000) (citing, inter alia, Chambers v. Mississippi, 410 U.S.
284, 294 (1973) (“The right of an accused in a criminal trial to
due process is, in essence, the right to a fair opportunity to
defend against the State’s accusations.”)). “Evidence is relevant
if it has any ‘tendency in reason to prove any material fact[.]’”
Id. (quoting Richardson, Evidence § 4, at 2 (Prince 10th ed.)
(quotation omitted)). More specifically, “[r]elevant evidence means
‘evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more
probable

or

evidence[.]’”

less

probable

People

v.

than

Davis,

it

43

would

N.Y.2d

be

17,

27

without
(N.Y.

the
1977)

(quoting Uniform Rules of Evidence, rule 401 (1974)). In other
words, relevant evidence “tends to convince that the fact sought to
be established is so[.]” Id. (citation omitted).
The

proposed

testimony

of

the

police

commissioner

was

relevant, and “[a]ll relevant evidence is admissible unless its
admission violates some exclusionary rule[.]” People v. Lewis, 69
N.Y.2d

321,

evidence

324

(N.Y.1987)

violated

New

(citation

York’s

omitted)).

exclusionary

rule

However,

the

prohibiting

witnesses from stating a conclusion as to the intent, motive, or

-11-

belief of another individual. E.g.. Bogart v. City of N.Y., 200
N.Y. 384-85 (N.Y. 1911) (“When a person declares the intention or
expectation of another apart from the acts or statements from which
the conclusion is derived, it is manifest that his declaration is
a mere conjecture or a conclusion derived from other facts. The
conjecture or conclusion of a witness is generally improper and
incompetent, and should not be allowed as testimony in a case. The
facts and circumstances should be given from which the intention or
expectation of the person under consideration can be determined as
a fact.”); accord, e.g., People v. Russell, 165 A.D.2d 327, 332
(App. Div. 2d Dept. 1991) (“As a general principle of common-law
evidence, lay witnesses must testify only to the facts and not to
their opinions and conclusions drawn from the facts. It is left to
the jury to draw the appropriate inferences arising from the
facts[.]”) (citations omitted).
The police commissioner’s proposed opinion testimony that
Lynch did not intend to kill the victim would have usurped the
jury’s

fact-finding

function

as

to

an

ultimate

issue

of

the

case–Petitioner’s intent. See, e.g., People v. Simmons, 66 A.D.3d
292, 307 (App. Div. 1st Dept. 2009) (“It is a cornerstone of our
legal system that the roles of the court and the jury are separate
and distinct, particularly regarding the issue of intent: ‘[T]he
question of intent can never be ruled as a question of law, but
must always be submitted to the jury. . . .”) (quoting People v.
Flack, 80 Sickels 324, 334, 26 N.E. 267 (N.Y. 1891)); People v.

-12-

Wright, 282 A.D.2d 712, 714 (App. Div. 3d Dept. 2001) (“The
officers should not have been permitted to offer testimony directed
at

the

ultimate

question

of

whether

defendant

possessed

the

requisite intent to sell on this occasion, a question which should
have been left to the jury[.]”) (citations omitted).
When a trial court has not made a state evidentiary error, the
habeas court must consider whether the evidentiary rule the court
applied is arbitrary or disproportionate to the purposes it is
designed to serve. Hawkins v. Costello, 460 F.3d 238, 244 (2d Cir.
2006) (citing United States v. Scheffer, 523 U.S. 303, 308 (1998)).
A

state

evidentiary

disproportionate

only

rule

is

where

“unconstitutionally
it

has

infringed

arbitrary

upon

interest of the accused.” Scheffer, 523 U.S. at 308.

a

or

weighty

The Supreme

Court has “never questioned the power of States to exclude evidence
through the application of evidentiary rules that themselves serve
the interests of fairness and reliability—even if the defendant
would prefer to see that evidence admitted.” Crane v. Kentucky, 476
U.S. 683, 690 (1986). Although Lynch’s Sixth Amendment right to
present a defense is certainly a weighty interest, the right to a
trial by jury is also critical. The evidentiary rule at issue here
furthers the trial-by-jury right by preserving the jury’s role as
the arbiters of ultimate issues of fact. Thus, the Court cannot
find that the evidentiary rule which the state court applied to
exclude the police commissioner’s opinion testimony was arbitrary
or disproportionate, either in fact or in application.

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F.

Erroneous Preclusion of DNA Evidence

Lynch contends that the trial court abused its discretion when
denied his motion to preclude the prosecution’s DNA evidence, to
which he objected based on a lack of timely notice. The Fourth
Department held that the trial court had properly exercised its
discretion in allowing the evidence.
Section

240.20(1)(c)

of

New

York

Criminal

Procedure

Law

(“C.P.L.”) requires that the prosecution upon demand, produce
“[a]ny written report or document, or portion thereof, concerning
a scientific test or experiment, relating to the criminal action or
proceeding which was made by, or at the request or direction of a
public servant engaged in law enforcement activity.” N.Y. CRIM . PROC .
LAW § 240.20. C.P.L. § 240.70 provides that if a party fails to
comply with the discovery mandates, the court “may order such party
to permit discovery of the property not previously disclosed, grant
a continuance, issue a protective order, prohibit the introduction
of
certain evidence or the calling of certain witnesses or take any
other appropriate action.” N.Y. CRIM . PROC . LAW § 240.70(1).
In determining an appropriate remedy for the prosecution’s
failure to disclose evidence, the court may consider the degree of
prosecutorial

fault

“but

the

overriding

concern

must

be

to

eliminate any prejudice to the petitioner while protecting the
interests of society.” People v. Kelly, 62 N.Y.2d 516, 520 (N.Y.
1984).
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Lynch’s claim raises an issue of whether the state court
properly applied a statutory rule of discovery, not an issue of
federal constitutional law. As such, it is not cognizable on habeas
review. See Estelle, 502 U.S. at 67-68. In any event, Lynch has not
established that trial court abused its discretion in not ordering
preclusion, since the chronology supports a finding that the
prosecutor

timely

complied

with

his

discovery

obligations.

Petitioner filed an omnibus motion seeking discovery of scientific
testing and reports on June 16, 2006. In a responding affidavit
dated July 13, 2006, the prosecution turned over the autopsy and
toxicology reports and advised counsel that the Erie County Central
Police Services Laboratory had been asked to examine certain items
of evidence, and that depending on the results of the testing, the
prosecution might request a buccal swab from Lynch for DNA testing.
On November 6, 2006, the prosecutor advised the court and counsel
that he had just received an oral report from the lab indicating
the presence of genetic material under the victim’s fingernails.
The prosecutor’s request for Lynch to provide a DNA sample was
granted by the court. Two days later, the written report noting the
presence of genetic material under the victim’s fingernails was
provided to defense counsel.
Thus,

at

the

time

of

oral

argument

of

the

motion

on

November 30, 2006, defense counsel had already been apprised of the
results for 9 days. The trial was not scheduled to begin until
December 4th, and the prosecutor informed the court that he did not

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intend to put on DNA proof until the second week of trial. This
gave defense counsel 19 days to review the materials and determine
the appropriate strategy for addressing the DNA results.
G.

Ineffective Assistance of Appellate Counsel

Lynch contends that appellate counsel was ineffective for
failing to raise the issue of trial counsel’s alleged failure to
request a Dunaway hearing1 in his omnibus motion. As Respondent
points out, this claim is unexhausted, it having never been raised
in state court. However, this Court has the authority to dismiss
habeas petitions containing unexhausted claims on the merits, 28
U.S.C. § 2254(b)(2). The Court determines that this is proper
course to follow, since the claim is patently without merit.
The

two-pronged

standard

set

forth

in

Strickland

v.

Washington, 466 U.S. 668 (1984), for evaluating trial counsel’s
performance applies equally to attacks on appellate counsel’s
representation. Claudio v. Scully, 982 F.2d 798, 803 (2d Cir.
1992), cert. denied, 508 U.S. 912 (1993). Here, the record plainly
refutes the factual underpinnings of Petitioner’s claim.
Contrary to Lynch’s contention, trial counsel filed an omnibus
motion seeking to suppress petitioner’s statements and evidence
seized and challenging the probable cause for his arrest. The trial
court’s suppression decision dated December 4, 2006, also addressed
1

The purpose of a pretrial hearing pursuant to Dunaway v. New York, 442 U.S.
200 (1979), is to determine whether probable cause existed for a criminal
defendant’s arrest. The Supreme Court recognized in Dunaway that statements given
by a suspect who is arrested without probable cause must be suppressed pursuant
to the Fourth Amendment’s “exclusionary rule.” Id. at 216–18.

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Petitioner’s motion and cited Dunaway. Finally, the brief filed by
appellate counsel noted that trial counsel challenged the legality
of Petitioner’s detention and arrest under Dunaway. Thus, Lynch
cannot establish the “deficient performance” prong of Strickland.
Furthermore, Lynch cannot establish that he was prejudiced,
because any Dunaway claim was meritless. Probable cause clearly
existed for Petitioner’s arrest based on his admission that he used
cocaine and marijuana in violation of the conditions of his parole,
and the positive toxicology results from his urine test.
IV.

Conclusion
For the foregoing reasons, Craig Lynch’s request for a writ of

habeas

corpus

is

denied

and

the

petition

(Docket

No.

1)

is

dismissed. Petitioner has failed to make a substantial showing of
the

denial

of

a

constitutional

right,

and

a

certificate

of

appealability shall not issue. 28 U.S.C. § 2253(c)(2). The Court
certifies, pursuant to 28 U.S.C. § 1915(a)(3) and Fed. R.App.P.
24(a)(3), that any appeal from this Decision and Order would not be
taken in good faith and therefore the Court denies leave to appeal
as a poor person from this Decision and Order. Coppedge v. United
States, 369 U.S. 438 (1962).
SO ORDERED.
S/Michael A. Telesca
___________________________________
MICHAEL A. TELESCA
United States District Judge
DATED:

October 28, 2011
Rochester, New York
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