Rutledge v. Five Points C.F.
Filing
61
-CLERK TO FOLLOW UP-DECISION AND ORDER denying writ of habeas corpus, dismissing 1 Petition for Writ of Habeas Corpus filed by Antonio Rutledge, and denying Certificate of Appealability. (Clerk is requested to close case.) Signed by Hon. Michael A. Telesca on 3/5/15. (AFB)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ANTONIO RUTLEDGE,
No. 1:10-CV-0664(MAT)
DECISION AND ORDER
Petitioner,
-vsJOHN B. LEMPKE,
Respondent.
I.
Introduction
Proceeding pro se, Antonio Rutledge (“Petitioner”) filed a
Petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2254. Petitioner is incarcerated as the result of a judgment
entered against him on June 6, 2008, in New York State Supreme
Court, Monroe County (Valentino, J.), following a jury verdict
convicting him of one count of first-degree manslaughter (N.Y.
Penal Law (“P.L.”) § 125.20(1)).
II.
Factual Background and Procedural History
A. Petitioner’s Criminal Trial
In May of 2007, Petitioner and his brother, Christopher
Walker (“Walker”), lived in a three-family house at 79 Watkins
Terrace in the City of Rochester, New York. Walker was dating a
woman named Tisa Willis (“Willis”).
On the evening of May 25, 2007, Dean Westphal (“Westphal”),
who also lived at 79 Watkins Terrace, was sitting on his front
steps
when
he
saw
Petitioner
and
1
Walker
leaving
the
house.
Westphal heard one of them say, “No is going to call you a
bitch.” T.357. 1 Later, Westphal heard fighting coming from 53
Watkins
Terrace,
where
the
victim,
65-year-old
Bobby
Simmons
(“Simmons”), resided.
Just
before
11:00
p.m.,
Harold
Hardmon
(“Hardmon”),
who
lived across the street from Simmons, was sitting on his front
porch when he saw Petitioner and Willis walking down the street.
Petitioner and Willis approached Simmons, who was sitting on his
front porch. Petitioner and Willis started arguing loudly with
him. Simmons told them to leave, to which Petitioner responded,
“I told you I would fuck you up!” T.339-41. Hardmon watched as
the
verbal
confrontation
escalated
into
a
physical
struggle
among Willis, Petitioner, and Simmons on Simmons’ porch. After
Simmons hit Petitioner in the head with a hammer, Willis left
the
porch
for
a
moment
to
go
tell
Walker
that
Simmons
was
fighting with Petitioner and that Petitioner had gotten hit.
Petitioner’s
next-door
neighbors,
Mercedes
Ruiz
(“Ruiz”)
and Luis Diaz (“Diaz”), saw Walker run over to Simmons’ house
and observed that Simmons was holding a hammer and trying to
force
Willis,
Walker,
(“Frasier”),
who
walking
when
home
lived
she
and
Petitioner
across
heard
the
street
fighting
1
to
leave.
from
coming
Lisa
Frasier
Simmons,
from
his
was
porch.
Citations to “T.” refer to pages from the transcript of Petitioner’s trial.
The transcripts have been submitted by Respondent in connection with his
response to the habeas petition. See Dkt #17-3 (Supplemental Transcripts Vol.
1); #17-4 (Supplemental Transcripts Vol. 2).
2
After she arrived home, she watched the fight from her front
porch
before
deciding
to
walk
across
the
street
to
Simmons’
house. As she got closer, she saw Walker stab Simmons with a
knife, causing him to fall off of the left side of the porch.
Hardmon related that as Simmons lay on the ground on his
back, Petitioner, Walker, and Willis “stomped” on him by kicking
them all over his body with their feet. Hardmon and Frasier ran
over to try to aid Simmons. Petitioner, Walker, and Willis fled
when Hardmon yelled at them. Hardmon and Frasier helped Simmons
to stand up but he quickly collapsed. Hardmon called 911.
Meanwhile, Westphal, Ruiz, and Diaz saw Petitioner, Willis,
and
Walker
return
home.
Walker,
whose
shirt
was
covered
in
blood, was holding a knife and a hammer. Ruiz saw Petitioner
conceal
later,
something
Walker,
underneath
Willis,
and
the
front
Petitioner
porch.
left
A
short
their
house
time
in
a
rush. The neighbors noticed that Walker had changed his clothes.
When the police responded to Watkins Terrace, they found
Simmons,
During
lying
their
dead
on
the
ground
search
of
the
area,
next
the
to
his
police
front
found
porch.
Walker’s
bloody t-shirt folded around a hammer and a knife, both of which
had been concealed under the front steps of Petitioner’s house.
DNA testing confirmed that the blood on the shirt, knife, and
hammer matched Simmons’ DNA profile. T.529, 533.
3
On
May
29,
2007,
the
police
apprehended
Petitioner
and
Willis in Rochester, and they were arrested and charged with
first-degree
manslaughter.
Several
hours
later,
Walker’s
attorney contacted the police department and made arrangements
for Walker to turn himself in the following day. On May 30,
2007, the police arrested Walker and charged him with seconddegree
charged
murder.
Petitioner,
under
the
same
Willis,
and
indictment,
Walker
but
were
jointly
they
were
granted
separate trials.
Petitioner
prosecution’s
detail,
proof
infra,
Petitioner’s
proceeded
at
in
the
legal
to
trial
on
April
will
be
discussed
the
Court’s
trial
context
of
insufficiency
claims.
The
28,
2008.
in
The
further
analysis
jury
of
returned
a
verdict convicting Petitioner as charged in the indictment. On
June 6, 2008, Petitioner was sentenced to a determinate prison
term of 20 years, plus by 5 years of post-release supervision.
Petitioner’s
conviction
appeal. People
denied,
15
v.
N.Y.3d
was
Rutledge,
777
unanimously
70
A.D.3d
(2010).
He
affirmed
1368
also
(4th
filed
on
direct
Dep’t),
a
lv.
number
of
collateral proceedings in state court which were unsuccessful. 2
B. Petitioner’s Habeas Claims
2
Petitioner’s state-court proceedings as well as the procedural history of
this habeas proceeding and his two other (now closed) habeas proceedings are
summarized in the Court’s decision and order (Dkt #60) granting Petitioner’s
most recent motion to amend.
4
Presently before the Court are Petitioner’s original habeas
claims,
as
raised
in
the
petition
(Dkt
#1),
first
amended
petition (Dkt #7), and first motion to amend (Dkt #16); and his
new
amended
claims
(Dkt
#49).
The
original
claims
are
as
follows: (1) the evidence was legally insufficient to support
the
conviction
for
first-degree
manslaughter
under
an
accessorial theory of liability; (2) the verdict was against the
weight of the evidence; (3) the trial court’s ruling pursuant to
People v. Sandoval, 34 N.Y.2d 371 (1974), constituted reversible
error;
and
(4)
Petitioner’s
prosecutor
new
the
sentence
amended
violated
his
violated
claims
discovery
are
the
as
Eighth
Amendment.
follows:
obligations
under
(1)
Brady
the
v.
Maryland, 373 U.S. 83, 87 (1963), by allegedly withholding a 911
tape
which,
according
to
Petitioner,
contained
exculpatory
evidence; (2) co-defendant Willis was “coerced by D.A. to give
testimony against [him] to receive a better plea agreement”;
(3)(a)
the
first-degree
evidence
was
manslaughter
legally
insufficient
conviction
because
to
support
the
the
medical
evidence showed that the victim’s drug and alcohol use and preexisting medical issues allegedly caused his death, and (b) the
evidence was legally insufficient because testimony of Walker,
Petitioner’s brother and co-defendant, was “withheld from the
jury”; (4) trial counsel provided ineffective assistance by (a)
failing to present medical evidence concerning the victim’s pre5
existing
medical
successfully
issues
suppress
to
the
jury,
Petitioner’s
and
statements
(b)
to
failing
police;
to
(5)
appellate counsel was ineffective for unspecified reasons; (6)
Petitioner was denied an impartial jury because the jurors were
“most[ly]
white”;
Petitioner’s
(7)
motion
to
the
trial
vacate
court
pursuant
to
erroneously
New
York
denied
Criminal
Procedure Law (“C.P.L.”) § 440.10 without holding an evidentiary
hearing; (8) the prosecutor “illegally charged the jury”; and
(9)
the
trial
judge
had
had
“upwards
of
90%”
of
his
cases
overturned on appeal.
For the reasons set forth below, the Court finds that all
of Petitioner’s original habeas claims and new amended claims
are without merit and are denied with prejudice.
III. Preliminary Matters
The instant petition post-dates the 1996 amendments to 28
U.S.C.
§
2254
set
forth
in
the
Anti-terrorism
and
Effective
Death Penalty Act (“AEDPA”). Under AEDPA, habeas relief is not
available with regard to any claim adjudicated on the merits by
a
state
court
unless
the
state
court’s
ruling
was
an
unreasonable application of, or contrary to, clearly established
Supreme Court precedent. See 28 U.S.C. § 2254(d)(1). Some of
Petitioner’s claims do not appear to have been adjudicated on
the merits, raising an issue of what standard should apply. See
Washington v. Schriver, 255 F.3d 45, 55 (2d Cir. 2001) (assuming
6
the claim was not adjudicated on the merits in state court, preAEDPA standard of reviewing mixed questions of law and fact de
novo applied). In the interest of judicial efficiency, the Court
will apply a de novo, pre-AEDPA standard of review to all of
Petitioner’s
claims.
“Because
AEDPA
provides
for
a
more
deferential review of state court determinations than did its
precursor, where a claim fails under the pre-AEDPA standard of
review, the claim must also fail under AEDPA.” Joyner v. Miller,
N o. 01.CIV.2157(WHP)(DF), 2002 WL 1023141, at *6 n.11 (S.D.N.Y.
Jan. 7, 2002) (citing Washington, 255 F.3d at 55) (where claims
failed under pre-AEDPA standard, claims necessarily failed under
AEDPA)).
Notwithstanding the fact some of Petitioner’s new amended
claims may be unexhausted, the Court has the authority to deny
them on the merits. See 28 U.S.C. § 2254(b)(2) (stating that a
habeas petition “may be denied on the merits, notwithstanding
the failure of the applicant to exhaust the remedies in the
courts of the State”). The habeas statute does not articulate a
standard for denying a petition containing unexhausted claims on
the merits, and neither the Supreme Court nor the Second Circuit
has
established
one.
The
various
formulations
suggested
by
district courts in the Second Circuit share “the common thread
of
disposing
meritless.”
of
unexhausted
Keating
v.
N.Y.,
claims
708
7
that
are
F.Supp.2d
unquestionably
292,
299
n.
11
(E.D.N.Y.
2010)
U.S.C.
2254(b)(2)
§
(citations
“is
omitted).
Here,
appropriate
as
invocation
none
of
the
of
28
claims
[asserted by Petitioner] raise even a colorable constitutional
question.” Ricks v. Superintendent, No. 10–CV–0785(MAT), 2012 WL
162608, *3 (W.D.N.Y. Jan. 19, 2012).
Respondent has asserted the defenses of non-exhaustion and
procedural
default
as
to
some
of
the
new
amended
claims.
“[J]udicial economy sometimes dictates reaching the merits if
the merits are easily resolvable against a petitioner while the
procedural bar issues are complicated.” Barrett v. Acevedo, 169
F.3d 1155, 1162 (8th Cir. 1999) (citing Lambrix v. Singletary,
117 S. Ct. 1517, 1523 (1997); Chambers v. Bowersox, 157 F.3d
560, 564 n. 4 (8th Cir. 1998) (“The simplest way to decide a case
is often the best.”)). Since the Court finds that Petitioner
cannot prevail on any of his proposed amended claims, the Court
sees
no
reason
to
belabor
the
more
complicated
issues
of
presented
no
exhaustion and procedural default.
IV.
Discussion of the Original Claims
A.
Legal Insufficiency
Petitioner
asserts
that
the
prosecution
evidence that he “solicited, requested, commanded, importuned or
intentionally
aided”
co-defendant
Walker
in
the
stabbing
of
Simmons. The Appellate Division rejected this claim, concluding
that “[t]he People presented legally sufficient evidence that
8
the stabbing was the ‘culmination of a continuum of events in
which [Petitioner] participated and continued to participate.’”
People v. Rutledge, 70 A.D.3d at 1369 (quotation omitted).
In considering a claim attacking the sufficiency of the
evidence, a federal habeas court “must view the evidence in the
light most favorable to the prosecution . . . and decide whether
the record is ‘so totally devoid of evidentiary support that a
due process issue is raised.’” Bossett v. Walker, 41 F.3d 825,
830 (2d Cir. 1994) (quotation omitted). The relevant question is
whether
“any
essential
Jackson
rational
elements
v.
trier
of
Virginia,
the
443
of
crime
U.S.
fact
could
beyond
307,
319
a
have
found
reasonable
(1979)
the
doubt.”
(emphasis
in
original). The habeas court must look to state law to determine
the elements of the crime. Id. at 324 n. 16. Under New York law,
a
person
is
guilty
of
first-degree
manslaughter
when,
“with
intent to cause serious physical injury to another person, he
causes the death of such person.” N.Y. PENAL LAW § 125.20(1).
It
is
undisputed
that
Walker
stabbed
Simmons,
and,
as
discussed below, the prosecution presented ample evidence that
the stab wound was the proximate cause of death. Petitioner’s
conviction thus rested on a theory of accessorial liability. See
N.Y. PENAL LAW § 20.00. Therefore, the prosecution was required to
adduce proof beyond a reasonable doubt that Petitioner shared
Walker’s mental culpability, that is, he shared Walker’s intent
9
to cause Simmons serious physical injury. Petitioner argues that
proof was lacking that he intentionally aided Walker, because it
was Walker who escalated the fight, without any provocation from
Petitioner. However, “direct proof of an express agreement or
statement [between Petitioner and Walker was] not required to
show
that
[Petitioner]
acted
either
as
a
principal
or
an
accessory to a crime.” Martinez v. Breslin, 07 Civ. 8671, 2009
WL 2244633, at *6 (S.D.N.Y. July 28, 2009) (citations omitted).
In addition, before the argument, Petitioner directly threatened
Simmons by announcing, “I told you I would fuck you up.” T.33941. A reasonable jury could have interpreted this statement as
reflecting Petitioner’s intent to cause serious physical injury
to
Simmons,
fistfight.
even
before
Regardless
of
Walker
brought
whether
the
Petitioner’s
knife
and
to
the
Walker’s
actions were planned beforehand, the totality of the evidence
certainly
supports
participated
companion’s
jury’s
and
the
continued
intentions
conclusion
conclusion
that
became
to
that
Petitioner
participate
clear,”
Petitioner
even
thereby
“shared
a
“knowingly
after
his
supporting
the
‘community
of
purpose’ with his companion.” People v. Allah, 71 N.Y.2d 830,
832 (1988).
Petitioner
also
contends
that
the
prosecution
failed
to
prove the element of intent to cause serious physical injury,
because Petitioner had no weapon, and there was no proof that
10
Petitioner knew that Walker had a weapon. As a matter of New
York
law,
however,
“[a]ccessorial
liability
does
not
require
that the person charged either possess or have control over the
dangerous instrument or deadly weapon, or that [he] give it to
the person who uses it, or even that [he] importunes its use
aloud.” In re Tatiana N., 73 A.D.3d 186, 190 (1st Dep’t 2010).
Reviewing the record in the light most favorable to the
prosecution, a rational factfinder could have found Petitioner
guilty beyond a reasonable doubt of first-degree manslaughter as
an
accessory.
The
prosecution
presented
eyewitness
testimony
that it was Petitioner and Willis, not Walker, who initiated the
ultimately
Simmons
fatal
telling
altercation
Petitioner
to
with
Simmons.
leave
his
In
response
property,
to
Petitioner
said that he had told Simmons that he was going to “fuck [him]
up.” T.339-41. Once Walker joined the fight, Petitioner did not
try to stop Walker from stabbing Simmons. Instead, after the
stabbing, Petitioner, along with Walker and Willis, “stomped” on
Simmons,
kicking
him
repeatedly
with
their
feet,
as
he
lay
defenseless on the ground. T.264, 289, 343. This evidence was
more than sufficient to establish beyond a reasonable doubt that
Petitioner, with the intent to cause serious physical injury to
Simmons,
acted
in
concert
with
Walker
in
causing
Simmons’s
death. See, e.g., Martinez, 2009 WL 2244633, at *6-*7 (holding
that petitioner’s actions in initiating the fight, failing to
11
stop his co-defendant from assaulting the victim, and continuing
to kick the victim as he lay on the ground was “sufficient to
allow a reasonable jury to infer that even if [the defendant]
did not deal the fatal blow to [the victim], he ‘solicit[ed],
request[ed],
aid[ed]’
command[ed],
[his
co-defendant]
importune[ed],
in
causing
or
the
intentionally
death
of
[the
victim]”). Moreover, the fact that Petitioner and Walker fled
the crime scene together without calling for help, despite the
fact that Simmons was seriously injured, was further evidence of
Petitioner’s intent to aid Walker in committing the crime. See
id. at *7 (“The fact that [petitioner] and co-defendant fled
together was further evidence tending to corroborate a community
of purpose.”) (citation omitted).
B. Verdict Against the Weight of the Evidence
Petitioner’s weight of the evidence derives solely from a
state statutory provision which permits an appellate court in
New York to reverse or modify a conviction where it determines
“that a verdict of conviction resulting in a judgment was, in
whole or in part, against the weight of the evidence.” N.Y. CRIM.
PROC. LAW § 470.15(5). In contrast to a legal insufficiency claim,
a weight of the evidence claim does not rely on federal due
principles. People v. Bleakley, 69 N.Y.2d 490, 495 (1987). As
such,
it
is
not
cognizable
in
12
this
habeas
proceeding.
E.g.,
Correa v. Duncan, 172 F.Supp.2d 378, 381 (E.D.N.Y. 2001) (citing
Jackson, 443 U.S. at 318-19); see generally 28 U.S.C. § 2254(a).
C. Erroneous Sandoval Ruling
Petitioner argues that he was denied the right to a fair
trial due to the trial court’s Sandoval ruling, which would have
allowed the prosecutor to cross-examine him regarding a previous
prostitution conviction and the issuance of two bench warrants
for his failure to appear in court. On appeal, the Appellate
Division held that the ruling was proper and did not constitute
an abuse of discretion. Rutledge, 40 A.D.3d at 1369. Although
Respondent states that Petitioner exhausted this claim by fairly
presenting
it
federal
constitutional
terms
on
direct
appeal,
Respondent also argues, somewhat inconsistently, that the claim
implicates only matters of state evidentiary law and thus is not
cognizable. As discussed below, the Court finds that this claim
is not cognizable on an alternative basis.
“The
decision
to
admit
prior
convictions
to
impeach
a
defendant ‘has been characterized as evidentiary in nature,’ and
evidentiary rulings are “not redressable in a federal habeas
corpus proceeding absent a showing that the particular errors
were of constitutional magnitude.” Rojas v. Senkowski, 95 Civ.
1866, 1996 WL 449321, at *3 (E.D.N.Y. July 29, 1996) (citing
Jenkins v. Bara, 663 F. Supp. 891, 899 (E.D.N.Y. 1987); other
citation
omitted).
Here,
Petitioner
13
did
not
testify.
This
failure is “‘fatal to any claims of constitutional deprivation
arising out of a Sandoval type ruling’” because a petitioner’s
failure to testify “deprives a reviewing court of any ‘adequate
non-speculative basis upon which to assess the merits of that
claim.’” Rojas, 1996 WL 449321, at *3 (quotation and citation
omitted).
relief
Because
cannot
court’s
lie,
Sandoval
McKenzie
v.
Petitioner
elected
“regardless
ruling
Poole,
03
may
of
have
Civ.
not
the
to
fact
motivated
4253,
testify,
2004
that
the
[his]
WL
habeas
trial
decision.”
2671630,
at
*6
sentence
as
(E.D.N.Y. Nov. 23, 2004).
D. Eighth Amendment Violation
Petitioner
violative
of
challenges
the
Eighth
the
length
Amendment.
of
The
his
Appellate
Division
rejected this claim as meritless. Rutledge, 70 A.D.3d at 1369.
The Supreme Court has articulated a narrow principle of
“gross
disproportionality”
sentence
violates
measuring
whether
Eighth
the
for
a
prisoner’s
Amendment
proscription
against
“cruel and unusual punishment.” E.g., Harmelin v. Michigan, 501
U.S. 957, 998 (1991) (Kennedy, J., concurring). As that court
has
noted,
successful
“‘outside
challenges
the
to
context
the
of
capital
proportionality
of
punishment,
particular
sentences have been exceedingly rare.’” Ewing v. California, 538
U.S. 11, 21 (2003) (quotation omitted). This is not one of those
“exceedingly rare” cases.
14
For
his
manslaughter
conviction
under
P.L.
of
§
one
count
125.20(1),
of
New
first-degree
York
state
law
authorized a determinate sentence of 5 to 25 years. See N.Y. PENAL
LAW § 70.02(1)(a), (3)(a). Petitioner received a sentence of 20
years, which was well within the statutory range. His sentence
was less than the sentence meted out to Walker, who also was
convicted of first-degree manslaughter but received the maximum
sentence
possible
Petitioner’s
of
25
sentencing
years.
hearing,
As
the
Walker
judge
explained
received
the
at
maximum
because he had control of the knife and was responsible for
stabbing
the
victim.
Nevertheless,
Petitioner
clearly
had
significant culpability, for although he did not deliver the
fatal wound to the victim, the trial testimony showed that he
repeatedly
“stomped
on”
the
victim,
who
had
been
rendered
helpless by the stab wound.
The Court likewise finds that Petitioner’s sentence was not
“grossly disproportionate” to the 8-year sentence received by
his other co-defendant, Willis, after she pled guilty to one
count
Willis
of
first-degree
appear
to
manslaughter.
have
had
Although
roughly
the
Petitioner
same
degree
and
of
culpability, it was not improper for Willis to receive a more
lenient sentence after electing to plead guilty. See Abraham v.
Lee, No. 13 Civ. 2525 RWS, 2014 WL 3630876, at *15 (S.D.N.Y.
July 22, 2014) (“Both Griffin and Williams accepted plea offers
15
and admitted to their roles in the shooting while Petitioner
denied
any
wrongdoing
and
went
to
trial,
factors
that
can
warrant a higher sentence.”) (citing Clark v. Bennet, No. 98
Civ.1445(FB),
1999
WL
360205,
at
*8
(E.D.N.Y.
May
28,
1999)
(disproportionate sentences warranted where defendant received
higher sentence after trial than did co-defendants pursuant to
their plea bargains)).
V.
Discussion of the New Amended Claims
A.
Ineffective Assistance of Trial Counsel
Petitioner faults trial counsel for (1) “Failing to give
real evidence to (Jury) as to the 911 tape”; (2) “Failing to
give real evidence . . . . as to medical cause of victim (death)
at trial”; and (3) failing to successfully suppress Petitioner’s
statements to the police.
To prevail on an ineffective assistance of counsel claim, a
petitioner
must
Strickland
v.
satisfy
Washington,
the
two-part
466
U.S.
668
test
set
(1984).
forth
First,
in
the
petitioner must demonstrate that his “counsel’s representation
fell below an objective standard of reasonableness.” Id. at 68788. Second, he must show that counsel’s deficient performance
prejudiced his defense. Id. at 692. To demonstrate prejudice,
the petitioner must prove that, but for counsel’s errors, there
is a reasonable probability that the outcome of the proceeding
would have been different. Id. at 694.
16
As discussed below, the underlying Brady claim that counsel
failed to assert is wholly speculative. Petitioner thus cannot
establish that counsel performed deficiently or that his defense
was
in
any
way
prejudiced
by
counsel’s
performance
in
this
regard. See Mitchell v. Artus, No. 07 Civ. 4688(LTS)(AJP), 2008
WL
2262606,
at
*38
(S.D.N.Y.
June
2,
2008)
(finding
that
appellate counsel was not ineffective for failing to raise a
meritless Brady claim).
Petitioner’s second ineffectiveness claim also must fail.
Petitioner asserts that trial counsel should have placed “real
evidence” before the jury regarding the victim’s cause of death.
Petitioner does not elaborate on the nature of this so-called
“real evidence”. This claim, like Petitioner’s Brady claim, is
based on pure speculation that there was exonerating evidence
that counsel failed to discover. Therefore, it cannot provide a
basis for relief. See Wood v. Bartholomew, 516 U.S. 1, 8 (1995)
(federal courts may not grant “habeas relief on the basis of
little
more
than
speculation
with
slight
support”).
In
any
event, as explained further below, the jury did hear evidence
from
the
extensive
deputy
medical
pre-existing
examiner
health
regarding
problems
and
his
the
victim’s
cocaine
and
alcohol use shortly before his death. Defense counsel thoroughly
cross-examined the deputy medical examiner and elicited that the
17
victim’s blood alcohol content was considerably over the legal
limit.
With
although
regard
counsel
to
did
Petitioner’s
not
succeed
third
in
ineffectiveness
suppressing
claim,
Petitioner’s
statements to the police, Petitioner was not prejudiced because
the prosecutor ultimately did not introduce these statements at
trial. Furthermore, Petitioner does not identify any specific
deficiencies
in
counsel’s
performance
at
the
suppression
hearing, such as omitted arguments that trial counsel should
have made.
All
of
the
foregoing
ineffective
assistance
of
counsel
claims lack merit and must be dismissed.
B. Brady Violation Based on the Alleged Failure to Disclose
a 911 Tape
In
the
attachment
to
the
Motion
to
Amend
(Dkt
#49),
Petitioner asserts that the prosecution allegedly withheld the
existence of a 911 tape from the defense. Based on the testimony
at trial, it appears that the 911 call to which Petitioner is
referring was made by Hardmon, who witnessed the assault and
called 911 after chasing Petitioner and his cohorts away from
the injured victim.
An actionable Brady claim has three elements: “The evidence
at issue must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; that evidence must
18
have
been
suppressed
inadvertently;
Greene,
527
and
by
the
prejudice
U.S.
263,
State,
must
281-82
either
have
willfully
ensued.”
(1999).
It
or
Strickler
is
the
v.
habeas
petitioner’s burden to prove a violation of his constitutional
rights by preponderating evidence. E.g., Machado v. Commanding
Officer, Plattsburgh Air Force Base, 860 F.2d 542, 544 (2d Cir.
1988)
(citation
omitted).
Petitioner
has
not
satisfactorily
alleged any of Brady’s three elements, much less proven any of
them by a preponderance of the evidence. Indeed, as Respondent
notes, Petitioner fails to cite to any evidence to establish
that the prosecutor withheld a 911 tape from the defense. Nor
does Petitioner allege how the content of the 911 tape would
have
been
exculpatory
or
would
impeachment
material.
This
speculation,
is
insufficient
have
claim,
to
provided
based
establish
significant
solely
a
Brady
on
vague
violation.
See, e.g., Mallet v. Miller, 432 F.Supp.2d 366, 377 (S.D.N.Y.
2006)
(“[T]he
mere
speculation
that
exculpatory
evidence
was
withheld is insufficient to warrant habeas relief.”) (citation
omitted).
C. Failure to Disclose Cooperation Agreement
According to Petitioner, trial counsel told him that his
co-defendant, Willis, “must have” been coerced into providing
evidence
agreement.
against
him
Construing
by
the
this
promise
of
allegation
19
a
favorable
with
the
plea
utmost
liberality,
it
appears
that
Petitioner
is
accusing
the
prosecution of failing to disclose that they had a cooperation
agreement
with
Willis,
thereby
under Brady. 3 Plaintiff’s sole
claim
consists
hearsay
from
of
his
vague,
counsel
violating
Petitioner’s
rights
allegation in support of this
unsubstantiated,
that
a
cooperation
and
speculative
agreement
“must
have” existed between Willis and the district attorney’s office.
This is insufficient to state a viable constitutional claim.
See, e.g., Afrika v. Herbert, No. 02-CV-458, 2007 WL 2323500, at
*21 (W.D.N.Y. Aug. 10, 2007) (petitioner’s conclusory assertion,
based on an unsworn statement by witness’s brother that there
was a cooperation agreement between witness and prosecution was
insufficient to rebut the state court’s conclusion that there
was no cooperation agreement).
D. Legal Insufficiency of the Evidence
Petitioner asserts two new theories of legal insufficiency.
First,
he
appears
to
contend
that
the
prosecution
failed
to
prove causation beyond a reasonable doubt, because the victim’s
drug
use
and
pre—existing
medical
conditions
could
have
contributed to the proximate cause of his death. At trial, the
deputy medical examiner testified on direct examination that the
victim had sustained a stab wound to the left chest area; the
3
Although the prosecutor asked the trial court to place Willis on the witness
list, T.11, she ultimately was not called at trial to testify.
20
knife had entered the body near the his left armpit. The wound
passed
through
the
left
chest
cavity,
puncturing
the
left
pulmonary artery. T.548-49. Due to the stab wound, the victim’s
left lung had collapsed, and there was a significant amount of
blood
in
the
chest
cavity.
T.549.
The
victim
had
some
pre-
existing medical conditions, including evidence of several old
heart attacks, enlargement of the heart, severe heart disease,
severe pulmonary emphysema, some type of hepatitis, a few old
contusions to the brain, and an enlarged prostate. Furthermore,
the
victim
had
ingested
a
substantial
amount
of
alcohol
and
cocaine shortly before his death. T.553-55. According to the
deputy medical examiner, the cause of death, to a reasonable
medical
certainty,
was
the
stab
wound.
Although
there
was
“probably some role in terms of contribution [to the cause of
death]” played by the victim’s significant pre-existing medical
issues, T.555, the victim’s injury was a “devastating” one, and
“even
a
younger
individual
likely
would
not
survive
these
injuries.” Id.
Under New York law, “[a] defendant’s acts need not be the
sole
cause
established,
of
death;
other
where
causes,
the
necessary
such
as
a
causative
victim’s
link
is
preexisting
condition, will not relieve the defendant of responsibility for
homicide.” Matter of Anthony M./People v. Cable and Godbee, 63
N.Y.2d
270,
280-81
(1984).
Thus,
21
the
prosecution
was
not
required to prove that the acts of Walker, Petitioner and Willis
were the sole cause of Simmons’ death, to the exclusion of any
other
potential
cause
such
as
his
pre-existing
medical
conditions. Rather, the prosecution simply had to prove beyond a
reasonable doubt that Petitioner and his co-defendants’ actions
were “an actual contributory cause of death, in the sense that
they
‘forged
a
link
in
the
chain
of
causes
which
actually
brought about the death[.]’” Matter of Anthony M., 63 N.Y.2d at
280, (quotation omitted). Given the eyewitness testimony, the
medical
evidence
detailed
above,
and
the
deputy
medical
examiner’s expert opinion on the cause of death, a rational jury
had ample evidence on which to make such the required finding
that
the
stab
contributory
wound
cause”
inflicted
of
Simmons’
by
Walker
death.
See,
was
an
e.g.,
“actual,
Klosin
v.
Conway, 501 F.Supp.2d 429, 442-43 (W.D.N.Y. 2007) (rejecting due
process
causation
claim
and
to
support
suffered
by
gunpoint
robbery
finding
victim
felony
as
legally
sufficient
murder
conviction
result
exacerbated
of
petitioner’s
victim’s
evidence
where
of
stress
break-in
and
arteriosclerosis
and
hypertensive heart disease, and caused the fatal heart attack
that manifested two days after break-in).
Second, Petitioner asserts that the evidence supporting the
conviction was legally insufficient because Walker’s testimony
was “withheld” from the jury. Petitioner offers no information
22
whatsoever
Walker’s
in
the
motion
testimony.
to
Mindful
amend
of
as
its
to
duty
the
substance
to
construe
of
the
submissions of pro se litigants leniently to raise the strongest
arguments they suggest, the Court notes that on the docket of
this case is an affidavit signed by Walker on January 3, 2013,
which Petitioner submitted as a separate pleading (Dkt #46),
unrelated
to
any
of
his
various
motions
to
amend.
In
the
affidavit, Walker states as follows:
I observed on my arrival my brother Antonio Rutledge
being struck with a hammer by an assailant hitting him
on the head. Fearing for my brother’s safety, I ran up
on the porch to intervene and assailant then turned on
me striking me also with the hammer. When I tried to
flee, assailant grabbed me and I snatched away but he
was all up on me so [I was] unable to flee. I was
forced to try and cover my head with my left arm and
lash out with knife as assailant was coming down with
the hammer [sic] stabbing assailant.
Dkt
#46,
p.
2
of
3.
The
Court
has
construed
this
as
the
testimony from Walker that allegedly was “withheld” from the
jury
at
Petitioner’s
trial.
However,
there
is
nothing
in
Walker’s affidavit indicating that he actually was willing to
testify at Petitioner’s trial but was prevented from doing so.
Stated another way, Petitioner has not established that Walker’s
testimony was available but was improperly excluded.
Petitioner appears to contend that if Walker was acting in
self-defense, then he should be excused from liability as well,
since
he
was
alleged
to
have
23
acted
as
Walker’s
accessory.
However, as the Second Circuit noted in a 2010 summary order,
“there
are
no
published
cases
suggesting
that
a
defendant
charged as an accomplice under New York law may claim selfdefense
where
the
force.”
Gibbs
v.
4705116,
at
testified
at
**2
alleged
principal
Donnelly,
(2d
Cir.
Petitioner’s
402
F.
2010).
trial
applied
App’x
Thus,
that
he
deadly
566,
even
was
568,
if
physical
2010
Walker
acting
in
WL
had
self-
defense against Simmons, this would not necessarily have excused
Petitioner’s
has
not
testimony
criminal
liability.
substantiated
was
“withheld”
his
or
Most
vague
importantly,
assertion
otherwise
Petitioner
that
improperly
Walker’s
excluded
at
Petitioner’s trial.
E. Ineffective Assistance of Appellate Counsel
In the motion to amend, Petitioner provided no information
regarding how appellate counsel was ineffective. Even assuming
that Petitioner is relying on his allegations in his coram nobis
application,
identified
his
claim
which
issues
fares
counsel
no
better.
should
have
Petitioner
raised,
never
instead
claiming that his attorney did not discuss the appeal with him
or give him the opportunity to review the filed brief, in which
counsel allegedly failed to present “well-reasoned” arguments.
The two-pronged standard set forth in Strickland, 466 U.S.
668, supra, applies equally to claims of ineffective assistance
of appellate counsel. E.g., Claudio v. Scully, 982 F.2d 798, 803
24
(2d
Cir.
1992).
allegations,
“It
such
is
as
well
these,
established
are
that
insufficient
conclusory
to
meet
the
rigorous standard under Strickland.” Otero v. Eisenschmidt, No.
01 Civ.2562HB AJP, 2004 WL 2504382, at *31 (S.D.N.Y. Nov. 8,
2004) (citing, inter alia, United States v. Vargas, 920 F.2d
167,
170
(2d
Cir.
1990)
(petitioner’s
affidavit
making
allegations in a “conclusory fashion” failed to demonstrate that
counsel’s
decision
not
to
call
a
witness
was
unreasonable),
cert. denied, 502 U.S. 826 (1991); Slevin v. United States, 98
Civ. 0904, 1999 WL 549010 at *5 (S.D.N.Y. July 28, 1999) (§ 2255
case; finding that “[p]etitioner’s conclusory allegations that
counsel
evinced
‘a
general
lack
of
preparation’
do
not
demonstrate that absent the alleged errors, the outcome of the
trial would have been different”), aff’d, 234 F.3d 1263 (2d Cir.
2000)).
Petitioner’s
vague
permit
the
to
Court
representation
Strickland,
466
fell
U.S.
and
conclusory
conclude
below
at
that
“prevailing
688,
or
that
allegations
appellate
professional
“but
for
do
not
counsel’s
norms,”
counsel’s
unprofessional errors, the result of the [appeal] would have
been different.” Id. at 694. Habeas relief cannot issue on this
claim.
F. Denial of Impartial Jury
Petitioner vaguely asserts that his jury was not impartial
because the jurors were “most[ly] white.” As Respondent points
25
out, there is nothing in the record to establish the actual
racial make-up of the jury. See T.28-216. In any event, this
claim is without merit. Although the constitutional right to
trial by an impartial jury “requires that the jury pool from
which the petit jury is selected reflect a fair cross-section of
the community so as to make possible and probable a petit jury
representative
of
the
community
in
which
the
defendant
is
tried[,]” the Supreme Court “has made clear . . . that the sixth
amendment does not provide the criminal defendant with the right
to a petit jury of any particular composition.” Teague v. Lane,
820 F.3d 832, 843 (7th Cir. 1987) (citing Taylor v. Louisiana,
419 U.S. 522 (1975)).
G. Denial of CPL § 440.10 Motion Without a Hearing
Petitioner complains that his requests for hearings with
regard to his C.P.L. § 440.10 motions were denied.
A majority
of circuit courts have determined that “‘federal habeas relief
is not available to redress alleged procedural errors in state
post-conviction proceedings.’” Franza v. Stinson, 58 F.Supp.2d
124, 151 (S.D.N.Y. 1999) (quoting Ortiz v. Stewart, 149 F.3d
923, 939 (9th Cir. 1998), cert. denied, 526 U.S. 1123 (1999);
citing Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir. 1995)
(“[E]rrors in a state habeas proceeding cannot serve as a basis
for setting aside a valid original conviction. An attack on a
state
habeas
proceeding
does
not
26
entitle
the
petitioner
to
[federal] habeas relief in respect to his conviction, as it ‘is
an attack on a proceeding collateral to the detention and not
the detention itself.’”), cert. denied, 518 U.S. 1022 (1996);
other citations omitted). “While the Second Circuit has not yet
addressed
this
issue,
district
court
decisions
within
the
Circuit have followed the majority rule.” Franza, 58 F. Supp.2d
at 152 (collecting cases). The Court agrees with and adopts the
majority
view.
Petitioner’s
constitutionally
C.P.L.
§
440.10
entitled
motions
to
vague
have
does
assertion
evidentiary
not
state
a
that
he
hearing
was
on
cognizable
his
habeas
claim.
H.
Prosecutorial Misconduct
Petitioner’s only allegation in support of this claim is
the obscure and vague statement that the prosecutor “illegally
charged the jury.” Attachment to Dkt #16. Petitioner states that
“the judge mentioned it in court [and] told said D.A. to get out
of
the
jury
chambers.”
Id.
According
to
Petitioner,
this
occurred “off the record.” Id.
The
strains
foregoing
credulity,
allegation
especially
of
since
prosecutorial
it
is
malfeasance
uncorroborated
by
defense counsel or anyone else in attendance at Petitioner’s
trial. See DiCesare v. Cowley, 99 F.3d 1149, 1996 WL 594276, at
*3
(10th
claimed
Cir.
that
Oct.
state
17,
1996)
(unpublished
prosecutor
27
addressed
opn.)
jury
and
(petitioner
submitted
detailed
supporting
“disinclined
to
affidavit
remand
for
from
an
his
mother;
evidentiary
court
hearing
was
because
[petitioner]’s claim that a state prosecutor addressed the jury
during deliberations is palpably incredible and, thus, does not
warrant one”). Moreover, it is fatally deficient as a claim for
habeas relief since it is vague, unsubstantiated, and unsworn.
See, e.g., United States v. LaBonte, 7 0 F.3d 1396, 1413 (1st Cir.
1995)
(“A
habeas
application
must
rest
on
a
foundation
of
factual allegations presented under oath, either in a verified
petition
unsworn
or
supporting
memorandum
will
affidavits.
not
Facts
suffice.”)
alluded
(internal
to
and
in
an
other
citations omitted), rev’d on other grounds, 520 U.S. 751 (1997).
I. Reversal Rate of the Trial Judge
Petitioner references, without substantiation, the alleged
reversal rate of the judge who presided over his criminal trial.
Petitioner does not explain why the judge’s alleged reversal
rate in other cases establishes that a constitutional violation
occurred during any phase of his criminal proceeding in state
court. This claim is patently frivolous and warrants no further
discussion.
VI.
Conclusion
For the reasons discussed above, all of the claims in the
most recent motion to amend (Dkt #49), the first motion to amend
(Dkt #16), the original petition (Dkt #1), and the first amended
28
petition
(Dkt
#7),
are
denied
with
prejudice.
Petitioner’s
request for a writ of habeas corpus is denied with prejudice.
The Court declines to issue a certificate of appealability as
Petitioner
has
failed
to
make
a
substantial
showing
of
denial of a constitutional right. See 28 U.S.C. § 2253(c)(2).
SO ORDERED.
S/
Michael A. Telesca
____________________________
HON. MICHAEL A. TELESCA
United States District Judge
Dated:
Rochester, New York
March 5, 2015
29
the
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