Gross v. Superintendent Five Points Correctional Facility
Filing
21
DECISION AND ORDER denying petition for a writ of habeas corpus and dismissing the petition. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 10/9/12. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
DOUGLAS GROSS,
DECISION AND ORDER
No. 11-CV-00927(MAT)
Petitioner,
-vsSUPERINTENDENT FIVE POINTS
CORRECTIONAL FACILITY
Respondent.
________________________________
I.
Introduction
Pro se Petitioner (“Petitioner”) has filed a timely petition
for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the
constitutionality of his custody pursuant to a judgment entered
November 1, 2005, in New York State, Supreme Court, Monroe County,
convicting him, upon a jury verdict, of Murder in the Second Degree
(N.Y. Penal Law (“Penal Law”) § 125.25[1]) and two counts of
Manslaughter in the First Degree (Penal Law § 125.20[1]).
II.
Factual Background and Procedural History
A.
Indictment & Pre-Trial
A Monroe County Grand Jury charged Petitioner with three
counts of Murder in the First Degree (Penal Law § 125.27), two
counts of Murder in the Second Degree (Penal Law § 125.25[2]), and
Criminal Possession of a Weapon in the Second Degree (Penal Law
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§ 265.03[3]).1
The charges arose from a shooting incident that
occurred on June 11, 2000 at 53 Romeyn Street in the City of
Rochester, New York.
See Resp’t Ex. A at 5-8.
Prior to trial, a Wade and Huntley hearing2 were conducted, at
the close of which the trial court denied suppression.
See Resp’t
Ex. A at 287-288.
B.
Trial
On June 11, 2000, Jermaine Gross drove Petitioner and Timothy
Davis (“Davis”) to Romeyn Street, where Davis handed Petitioner a
handgun. Trial Trans. [T.T.] 677-752. Thereafter, Petitioner went
to 53 Romeyn and fatally shot Josue Calloway, Gary Green and
Soueuth Heme.
Petitioner was arrested after witnesses placed him
on Romeyn Street, and one witness placed him exiting 53 Romeyn
minutes before the police arrived at that location and found the
victims’ bodies.
While in police custody, and in the presence of
investigators, Petitioner told his girlfriend that he “killed those
boys on Romeyn Street” because he owed them money, they had beaten
him, and threatened his girlfriend and her family.
Petitioner
1
The People did not proceed to trial on the second-degree murder counts that
alleged that Petitioner engaged in depraved indifference murder in connection
with two of the victims. T.T. 309-311; see also Resp’t Ex. A at 4 (Certificate
of Conviction).
2
A hearing pursuant to People v. Huntley, 15 N.Y.2d 72 (1965), tests the
voluntariness of a defendant’s post-arrest statements. A Wade hearing is held
to assess whether the state used unduly suggestive identification procedures to
obtain evidence against a defendant in violation of due process. See United
States v. Wade, 388 U.S. 218 (1967).
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later signed a confession in which he stated that he went to the
house on Romeyn Street armed with a handgun, and he started
shooting after one of the occupants of the house yelled at him and
reached for a gun.
T.T. 322-326, 330-522, 540, 677-683, 685-686,
704, 709-712, 713-714, 753-756, 835, 838-888, 894-896, 898-904,
967-969, 980, 982, 989.
C.
Verdict and Sentencing
At the close of the trial, the jury found Petitioner guilty of
Murder in the Second Degree and two counts of Manslaughter in the
First Degree, as lesser-included offenses.
T.T. 1286-1287.
The
jury found Petitioner not guilty of three counts of Murder in the
First Degree and Criminal Possession of a Weapon in the Second
Degree.
T.T. 1286-1287.
The court sentenced Petitioner to an
indeterminate term of twenty-five years to life imprisonment for
murder, and two determinate terms of twenty-five years imprisonment
for the manslaughter counts.
consecutively.
D.
The sentences were set to run
See Resp’t Ex. A at 4 (Certificate of Conviction).
Direct Appeal
Through
counsel,
Petitioner
appealed
his
judgment
of
conviction on the following grounds: (1) he was entitled to a
missing witness charge with respect to Davis; (2) the verdict was
against the weight of the evidence; (3) the trial court committed
reversible error by restricting Petitioner’s cross-examination of
Jermaine Gross; and (4) the trial court’s failure to impose post-
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release supervision for the sentences for first-degree manslaughter
required that those sentences be vacated and that the matter be
remitted for sentencing.
See Resp’t Ex. B.
Petitioner also filed
a pro se supplemental brief in which he argued that: (1) the trial
court’s jury instructions deprived him of a fair trial; (2) the
verdict was repugnant; (3) his sentence violated Apprendi v.
New Jersey, 530 U.S. 466 (2000), was violative of the Eighth
Amendment, and that any resentencing would violate the Ex Post
Facto clause;
(5) the grand jury proceedings were defective; and
(6) his statements were obtained in violation of his constitutional
rights.
See Resp’t Ex. C.
The Appellate Division, Fourth Department determined that the
trial court erred in failing to impose a period of post-release
supervision
in
sentencing
Petitioner
on
the
first-degree
manslaughter counts, thereby rendering the sentences with respect
to those counts illegal. The appellate court modified the judgment
by vacating the sentences imposed on the first-degree manslaughter
counts,
and
sentencing.
conviction.
remitted
The
the
court
matter
to
otherwise
the
trial
affirmed
court
the
for
judgment
reof
People v. Gross, 71 A.D.3d 1526 (4th Dep’t 2010)
(Resp’t Ex. H); lv. denied, 15 N.Y.3d 907 (2010) (Resp’t Ex. K).
On May 18, 2010, the Supreme Court resentenced Petitioner to a
determinate term of twenty-five years imprisonment and five years
post-release supervision on the two manslaughter counts. The court
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directed that those sentences run consecutively with each other,
and with Petitioner’s sentence for murder.
E.
Motion to Vacate the Judgment
On April 13, 2011, Petitioner filed a counseled motion,
pursuant to N.Y. Crim. Proc. Law (“CPL”) § 440.10, to vacate the
judgment of conviction on the basis that the evidence was legally
insufficient.
See Resp’t Ex. L. In an Order dated April 19, 2011,
the Supreme Court denied Petitioner’s motion, pursuant to CPL
§ 440.10(2)(c).
See Resp’t Ex. M.
decision of the Supreme Court.
Petitioner did not appeal the
See Resp’t Mem. of Law at n.23
(Dkt. No. 16).
F.
Habeas Corpus Petition
This habeas corpus petition followed, wherein Petitioner seeks
relief on the following grounds: (1) the trial court improperly
denied his application for a missing witness charge for Davis;
(2) the evidence was legally insufficient to establish his guilt,
and
the
verdict
was
against
the
weight
of
the
evidence
and
repugnant; and (3) the trial court improperly limited the crossexamination of Jermaine Gross.
(Dkt. No. 1).
For
See Pet. ¶ 12, Grounds One-Three
the reasons that follow, Petitioner’s
request for a writ of habeas corpus is denied and the habeas
petition is dismissed.
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III. Analysis of the Petition
1.
The Exhaustion Requirement & Procedural Default
This Court, sitting in habeas review, may not consider claims
that have not been fairly presented to the state courts.
§ 2254(b)(1);
cases).
28 U.S.C.
see Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing
Unexhausted claims must be dismissed.
Weber, 544 U.S. 269, 275-78 (2005);
125 n.28 (1982);
See Rhines v.
Engle v. Isaac, 456 U.S. 107,
Rose v. Lundy, 455 U.S. 509, 510 (1982). The
claim must have been presented to the highest state court that may
consider the issue presented. See O’Sullivan v. Boerckel, 526 U.S.
838, 845 (1999).
“[F]or purposes of exhausting state remedies, a
claim for relief in habeas corpus must include reference to a
specific federal constitutional guarantee, as well as a statement
of
facts
that
entitle
the
petitioner
to
relief.”
Gray
v.
Netherland, 518 U.S. 152, 162-63 (1996) (citing Picard v. Connor,
404 U.S. 270 (1971)).
A mere appeal to a broad constitutional
guarantee, e.g., due process, is insufficient to present the
substance of a constitutional claim to the state courts.
at 163;
satisfies
Anderson v. Harless, 459 U.S. 4, 7 (1982).
the
fair
presentation
aspect
of
the
See id.
A petitioner
exhaustion
requirement by presenting the essential factual and legal premises
of his federal constitutional claim to the appropriate state
courts.
Acosta v. Artuz, 575 F.3d 177, 185 (2d Cir. 2009);
v. McCray, 396 F.3d 210, 217 (2d Cir. 2005).
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Rosa
An issue is exhausted
when the substance of the federal claim is clearly raised and
decided in the state court proceedings, irrespective of the label
used.
Jackson v. Edwards, 404 F.3d 612, 619 (2d Cir. 2005).
Exhaustion does not require that Petitioner have cited the “book
and verse on the federal constitution.”
A
petitioner
who
does
not
cite
the
Picard, 404 U.S. at 278.
“book
and
verse
of
the
Constitution” may nonetheless “fairly present to the state courts
the constitutional nature of his claim” through:
pertinent
federal
cases
employing
(a) reliance on
constitutional
analysis,
(b) reliance on state cases employing constitutional analysis in
like fact situations, (c) assertion of the claim in terms so
particular as to call to mind a specific right protected by the
Constitution, and (d) allegation of a pattern of facts that is well
within the mainstream of constitutional litigation.
Daye v. Atty
Gen. of State of N.Y., 696 F.2d 186, 194 (2d Cir. 1982) (en banc).
In New York, to invoke one complete round of the State’s
established appellate process, a criminal defendant must first
appeal his or her conviction to the Appellate Division and then
seek further review by applying to the Court of Appeals for leave
to appeal.
Galdamez v. Keane, 394 F.3d 68, 74 (2d Cir. 2005).
Claims are fairly presented to the New York Court of Appeals when
the application for leave to appeal clearly states that all claims
in the attached brief are being pressed, or no arguments are made
in detail and the application simply requests review of all issues
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outlined in the brief.
(2d Cir. 2000);
Jordan v. Lefevre, 206 F.3d 196, 199
see Morgan v. Bennett, 204 F.3d 360, 369-71 (2d
Cir. 2000) (the application for leave to appeal did not specify any
particular issue for review, but enclosed the briefs filed in the
Appellate Division and requested the Court of Appeals to consider
and review all issues raised in the appellant’s brief and pro se
supplemental brief).
Where the application for leave to appeal
refers to specific claims raised before the Appellate Division but
omits
mention
abandoned.
of
others,
the
unmentioned
claims
are
Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991).
deemed
Where
the application for leave to appeal argues one or more specific
claims but only makes a passing reference to possible other claims
found in the attached briefs, the claims mentioned in passing have
not been fairly presented to the Court of Appeals.
Jordan, 206
F.3d at 198.
“[W]hen ‘the petitioner failed to exhaust state remedies and
the court to which the petitioner would be required to present his
claims in order to meet the exhaustion requirement would now find
the claims procedurally barred,’” federal habeas courts also must
deem the claims procedurally defaulted.” Aparicio v. Artuz, 269
F.3d 78, 90 (2d Cir. 2001)(citing Coleman v. Thompson, 501 U.S.
722, 735 n.1 (1991)).
Courts will not review the merits of procedurally defaulted
claims unless the petitioner can show (1) cause for the default and
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actual prejudice resulting therefrom; or (2) that failure to
consider the claim will result in a fundamental miscarriage of
justice.
2.
Aparicio, 269 F.3d at 91.
Application
In this case, all of the claims raised in the habeas corpus
petition are unexhausted because they were not properly raised in
the state courts.
With respect to Petitioner’s first claim –- that the trial
court improperly denied his application for a missing witness
charge for Davis -- that claim was raised on direct appeal, but was
not raised in federal constitutional terms.
In his counseled and
pro se appellate briefs, Petitioner framed this claim as a state
law
violation
argument.
and
used
state
law
authority
to
buttress
See Resp’t Ex. A at Point I, Ex. C at Point I.
his
Further,
when he raised this claim in his leave application, he specifically
requested that the Court of Appeals determine whether the Appellate
Division
correctly
applied
the
state
law
standards
regarding
missing witness charges set forth in People v. Gonzalez, 68 N.Y.2d
424 (1986).
See Resp’t Ex. I.
Consequently, this claim remains
unexhausted.
Similarly, with respect to Petitioner’s insufficiency claim,
this claim was raised in Petitioner’s post-conviction motion to
vacate, but he failed to appeal the denial of that motion.
See
Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990) (“by failing to
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appeal the denial of his Section 440.10 motion, [petitioner] has
not
fulfilled
[the
exhaustion]
requirement
.
.
.
.”).
Consequently, this claim also remains unexhausted.
Likewise, with respect to Petitioner’s claims that the verdict
was against the weight of the evidence and repugnant, Petitioner
raised these claims on direct appeal but did not do so in federal
constitutional
terms.
See
Resp’t
Exs.
A,
C.
Furthermore,
Petitioner did not specifically seek review of these claims in his
application for leave to appeal.
See Resp’t Ex. I.
Rather, in his
leave application, he addressed his missing witness claim in
detail, while only mentioning that copies of the appellate briefs
were enclosed.
Id.
Notably, Petitioner did not request that the
appellate court review all of the issues in the briefs and/or
review the remaining claims raised in said briefs. Consequently,
these claims remain unexhausted.
Finally, with respect to Petitioner’s claim that the trial
court improperly limited the cross-examination of Gross, Petitioner
properly raised this claim in federal constitutional terms in his
pro se and counseled appellate briefs, but failed to seek review of
the claim in his leave application.
See Resp’t Ex. I.
As
discussed supra, Petitioner abandoned this claim in his leave
application when he argued his missing witness claim, in detail,
while merely mentioning that copies of the briefs were enclosed.
Consequently, this claim remains unexhausted as well.
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Petitioner cannot return to state court to exhaust his claims
because he has already made the one request for leave to appeal to
which
he
is
entitled.
See
N.Y.
Court
Rules
§
500.20(a)(2)
(providing in relevant part that “only one application is available
[for leave to appeal to the Court of Appeals in a criminal case]”).
If he were to raise the claims in another motion to vacate, it
would be mandatorily dismissed under CPL § 440.10(2)(c) because the
claims are matters of record that could have been raised on direct
appeal, but unjustifiably were not.
And, if he were to appeal the
denial of his motion to vacate now, he would be time barred from
doing so because CPL § 460.10(4)(a) imposes a 30-day limitations
period for appeal from the denial of a CPL § 440.10 motion.
As a
result, the Court deems all of Petitioner’s claims exhausted but
procedurally defaulted from habeas review.
Petitioner has not
alleged cause and prejudice to overcome the default, nor has he
alleged facts to avail himself of the miscarriage of justice
exception.
Accordingly,
all
of
Petitioner’s
claims
are
procedurally
defaulted from review by this Court, and are denied 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,”
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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.
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 9, 2012
Rochester, New York
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