Bastian v. Marticello

Filing 30

DECISION AND ORDER dismissing the petition for a writ of habeas corpus(doc. 1). (Clerk to close case.) (copy of Decision and Order sent by first class mail to Mr. Bastian.) Signed by Hon. Michael A. Telesca on 3/18/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

GEORGE F. BASTIAN, III,
Petitioner,

No. 1:12-CV-00844 (MAT)
DECISION AND ORDER

-vsSUPERINTENDENT D. MARTICELLO,
Respondent.

I.

Introduction
Represented by counsel, George F. Bastian, III (“petitioner”),

petitions this Court for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. Petitioner is incarcerated pursuant to a judgment
entered August 8, 2008, in Livingston County Court (Cohen, J.),
following a jury verdict convicting him of one count of grand
larceny in the fourth degree (N.Y. Penal Law § 155.03(1)) and two
counts of scheme to defraud in the first degree (N.Y. Penal Law
§ 190.65(1)(a), (b)). Petitioner was sentenced, as a discretionary
persistent felony offender, to three concurrent terms of 15 years
to life imprisonment.
II.

Factual Background and Procedural History
The evidence presented at petitioner’s jury trial established

that

in

June

of

2006,

he

received

a

check

payable

to

his

construction business in the amount of $2,250. Shortly thereafter,
petitioner was informed that a stop payment had been placed on this
check; nevertheless, petitioner brought the check to a local bank,
opened a business account, and deposited the check. Petitioner

returned the next day and successfully withdrew $2,100 from the
bank. Petitioner then wrote a series of bad checks from the
account, which checks totaled over $300,000. The jury convicted
petitioner as charged, as outlined above.
Petitioner filed a direct counseled appeal to the New York
State Supreme Court, Appellate Division, Fourth Department, arguing
that (1) the evidence was legally insufficient and the verdict was
against the weight of the evidence; (2) the prosecutor committed
misconduct in giving the opening and closing statements; (3) the
court erred

in

denying

petitioner’s

motion

to

set

aside

the

verdict; and (4) petitioner’s sentence was illegal because the
discretionary

persistent

felony

offender

statute

was

unconstitutional. Petitioner filed a pro se supplemental brief in
which he argued that (1) he was denied a speedy trial; (2) he was
convicted in violation of his double jeopardy rights; (3) the
prosecutor misused a grand jury subpoena duces tecum; (4) he
received ineffective assistance of counsel; (5) the prosecutor was
prejudiced against him; (6) the conviction was unsupported by
legally sufficient evidence; (7) the court should have granted
petitioner’s motion to dismiss the indictment; (8) the court’s
Molineux ruling was erroneous; and (9) petitioner was erroneously
sentenced as a persistent felony offender.
On April 1, 2011, the Fourth Department unanimously affirmed
petitioner’s conviction. See People v. Bastian, 83 A.D.3d 1468 (4th
Dep’t

2011),

lv.

denied

17

N.Y.3d
2

813.

Petitioner’s

leave

application to the New York State Court of Appeals requested that
Court to review the claims presented in his counseled brief, but
not those presented in his pro se supplemental brief. The Court of
Appeals denied leave to appeal.
On September 10, 2011, petitioner submitted a pro se motion to
vacate his judgment of conviction pursuant to New York Criminal
Procedure Law (“CPL”) § 440.10, which was denied by the trial court
on November 14, 2011. The Fourth Department denied leave to appeal.
Petitioner filed an undated motion to set aside the sentence
pursuant to CPL § 440.20, which was denied on June 26, 2012, and
petitioner

did

not

seek

leave

to

appeal.

On

April

2,

2012,

petitioner filed a pro se petition for a writ of error coram nobis
with the Fourth Department. The Fourth Department denied that
motion on June 8, 2012, and petitioner did not seek leave to
appeal.
The instant petition argues that (1) petitioner was denied his
right to

a

speedy

trial; (2)

his conviction

violated

double

jeopardy; (3) the prosecutor used an improper grand jury subpoena;
(4)

the

prosecutor

committed

misconduct

by

presenting

false

evidence in his motion papers, withholding exculpatory evidence,
and making improper statements during summation; (5) trial counsel
was ineffective; and (6) petitioner was improperly sentenced as a
persistent violent felony offender.

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III. Standard of Review
The Anti–Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”) applies to this petition. AEDPA “revised the conditions
under which federal courts may grant habeas relief to a person in
state custody.” Kruelski v. Connecticut Super. Ct. for Judicial
Dist.

of

Danbury,

316

F.3d

103,

106

(2d

Cir.

2003)

(citing

28 U.S.C. § 2254). Under AEDPA, a federal court may grant a writ of
habeas corpus under 28 U.S.C. § 2254 only if the state court’s
adjudication of the petitioner’s claim on the merits is “contrary
to, or involved an unreasonable application of, clearly established
Federal
United

law,

as

States,”

determined
28

U.S.C.

by
§

the

Supreme

2254(d)(1),

or

Court

of

involved

the
an

“unreasonable determination of the facts” in light of the evidence
presented. 28 U.S.C. § 2254(d)(2).
IV.

Grounds Asserted in the Petition
A.

Exhaustion

Initially, the Court notes that many of petitioner’s claims
are unexhausted. These include petitioner’s claims that (1) his
right to a speedy trial was violated; (2) his conviction violated
his double jeopardy rights; (3) the prosecutor misused a grand jury
subpoena; (4) the prosecutor was prejudiced, withheld exculpatory
evidence, and “lied in his motions,” see doc. 1 at 8; (5) his
counsel was ineffective for failing to call certain witnesses,
failing to object to witnesses who did not identify petitioner, and
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failing to adequately review Rosario material; and (6) petitioner
was improperly adjudicated a persistent violent felony offender.
These claims are unexhausted because, although petitioner
raised

them

in

his

pro

se

supplemental

brief

to

the

Fourth

Department on direct appeal, he failed to move for leave to appeal
to the Court of Appeals on these issues. See, e.g., Ricco v. Burge,
2009 WL 4341521, *15 (S.D.N.Y. Dec. 2, 2009) (claim raised on
direct appeal but not in request for leave to appeal to Court of
Appeals was unexhausted and procedurally barred because “a person
is only entitled to one request for leave to appeal”) (citations
omitted). As in Ricco, these claims are deemed unexhausted but
procedurally defaulted because the issues are now precluded from
review by the state courts. See id; Grey v. Hoke, 933 F.2d 117, 120
(2d Cir. 1991) (noting that where petitioner moves for leave to
appeal some, but not all, issues to the Court of Appeals, the
issues which were not the subject of the motion were abandoned);
Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994) (noting that
where petitioner fails to seek leave to appeal, collateral review
is also precluded).
Petitioner has made no showing of the requisite cause or
prejudice, or a fundamental miscarriage of justice, necessary to
overcome the procedural bar. See Wainwright v. Sykes, 433 U.S. 72,
87–91 (1977); see also Sawyer v. Whitley, 505 U.S. 333 (1992).
Accordingly, these issues are unreviewable in a federal habeas

5

proceeding and are therefore dismissed. See Grey, 933 F.2d at 121.
The Court will now turn to the remaining claims properly before it
in

this

habeas

proceeding:

(1)

petitioner’s

claim

that

the

prosecutor committed misconduct on summation and falsely stated in
motion papers that petitioner had more prior convictions than he
did; and (2) petitioner’s claim that counsel was ineffective for
failing to make a specific motion for a trial order of dismissal
and failing to object to false claims in the prosecutor’s motion
response.
A.

Prosecutorial Misconduct

Petitioner claims that the prosecutor committed misconduct (1)
with comments on summation and (2) by lying in his motion papers
with regard to the number of petitioner’s prior convictions.
Petitioner raised the first claim in his direct appeal to the
Fourth Department, which held that the claim was unpreserved and,
in any event, lacked merit. Specifically, the Fourth Department
found that although one remark by the prosecutor was improper,
“that misconduct was not so egregious as to deprive defendant of a
fair trial.” Bastian, 83 A.D.3d at 1469 (citing People v. Galloway,
54 N.Y.2d 396, 401 (1981)). Initially, the Fourth Department’s
finding that this issue was unpreserved provides an adequate and
independent state law ground precluding habeas review. See Anderson
v. Griffen, 2012 WL 5227297, *2 (W.D.N.Y. Oct. 22, 2012) (citing
Baker v. Kirkpatrick, 768 F. Supp. 2d 493, 500 (W.D.N.Y. 2011);

6

Garcia v. Lewis, 188 F.3d 71, 79-82 (2d Cir. 1999) (recognizing
that New York has a well-established preservation rule that is
regularly followed in a number of contexts)).
In any event, the Fourth Department’s finding was not contrary
to, nor an unreasonable application of, relevant federal precedent
which holds that “[r]emarks of the prosecutor in summation do not
amount to a denial of due process unless they constitute ‘egregious
misconduct.’” United States v. Elias, 285 F.3d 183, 190 (2d Cir.
2002)

(quoting

Donnelly

v.

DeChristoforo,

416

U.S.

637,

647

(1974)). The prosecutor’s comment here, even if improper because it
“play[ed] on the sympathies and fears of the jury,” see Bastian, 83
A.D.3d at 1469, was not so egregious as to constitute reversible
error, especially given the otherwise overwhelming evidence of
guilt against petitioner at trial. See Warren v. Ercole, 2007 WL
4224642, *8 (E.D.N.Y. Nov. 27, 2007) (finding that prosecutor’s
comments on summation did not deprive the petitioner of a fair
trial and “given the overwhelming evidence of guilt, even if those
statements were inappropriate, they would not warrant a grant of
habeas relief because they did not have a substantial and injurious
effect or influence on the jury’s verdicts”) (citing Fry, 551 U.S.
at 121).
Petitioner raised the second claim, in which he alleges that
the prosecutor lied in motion papers, in his CPL 440.10 motion. See
doc. 15-2 at Exh. H. The trial court summarily denied petitioner’s

7

motion on November 14, 2011, and the AEDPA standard of review
therefore applies. Under that standard, the claim is meritless.
Petitioner has provided no evidence that the prosecutor lied in
motion

papers.

Even

crediting

the

nearly

incomprehensible

allegations of the petition in this regard, see doc. 1 at 8,
petitioner

has

failed

to

establish

that

the

alleged

error

prejudiced him in any way. As such, petitioner has failed to
establish prosecutorial misconduct of the magnitude required to
implicate federal constitutional concerns. See Greer v. Miller, 483
U.S. 756, 765 (1987) (“To constitute a due process violation, the
prosecutorial misconduct must be of sufficient significance to
result in the denial of the defendant's right to a fair trial.”)
(internal quotation marks and citations omitted).
B.

Ineffective Assistance of Counsel

To establish ineffective assistance of counsel, a defendant
first must show that “counsel made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the defendant by
the Sixth Amendment” and second, that “there is a reasonable
probability that, absent the errors [by counsel], the fact finder
would have had a reasonable doubt respecting guilt.” Strickland v.
Washington, 466 U.S. 668, 687, 695 (1984). Under Strickland, the
Court is required to consider alleged errors by counsel “in the
aggregate.” Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001).
Where a state court has denied a claim of ineffectiveness based on

8

a state law standard, a petitioner “must do more than show that he
would have satisfied Strickland’s test if his claim were being
analyzed in the first instance, because under § 2254(d)(1), it is
not

enough

to

convince

a

federal

habeas

court

that,

in

its

independent judgment, the state-court decision applied Strickland
incorrectly.” Bell v. Cone, 535 U.S. 685, 698–99 (2002). Rather,
petitioner must show that the state court “applied Strickland to
the facts of his case in an objectively unreasonable manner.” Id.
at 699.
Petitioner raised his contentions of ineffective assistance of
counsel in his pro se supplemental brief on direct appeal, and
later in his CPL § 440.10 motion. The Fourth Department rejected
petitioner’s pro se contentions and concluded that petitioner
received effective assistance of counsel. See Bastian, 83 A.D.3d at
1468 (citing People v. Baldi, 54 N.Y.2d 137, 147 (1981)). The
Second Circuit has “recognized that the New York ‘meaningful
representation’

standard

is

not

contrary

to

the

Strickland

standard.” Rosario v. Ercole, 601 F.3d 118, 124 (2d Cir. 2010).
Moreover,

petitioner

has

not

established

that

there

is

a

“reasonable probability that, absent the errors [by counsel], the
fact finder would have had a reasonable doubt respecting guilt.”
Strickland, 466 U.S. at 695. Upon a review of the record, the Court
finds

that

in

the

aggregate,

9

counsel

provided

effective

representation.

See

Lindstadt,

239

F.3d

at

199.

Accordingly,

petitioner’s claim on this ground is dismissed.
VI. Conclusion
For the foregoing reasons, the petition (doc. 1) is dismissed.
Because petitioner has not “made a substantial showing of the
denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), the
Court declines to issue a certificate of appealability.

The Clerk

of the Court is directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

March 19, 2017
Rochester, New York.

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