Golson v. Griffin

Filing 14

DECISION AND ORDER denying Plaintiff's request for a writ of habeas corpus and dismissing the petition. (Clerk to close case.) (Copy of Decision and Order sent by first class mail to Plaintiff.) Signed by Hon. Michael A. Telesca on 3/30/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

RAKEEM GOLSON,
Petitioner,

DECISION AND ORDER
No. 1:13-cv-00092(MAT)

-vsTHOMAS GRIFFIN,
Respondent.

INTRODUCTION
Proceeding pro se, Rakeem Golson (“Petitioner”) filed the
instant petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254, alleging that he is detained in Respondent’s custody in
violation of his federal constitutional rights. For the reasons
discussed herein, Petitioner’s request for a writ of habeas corpus
is denied, and the petition is dismissed.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Petitioner is presently incarcerated pursuant to a judgment of
conviction entered against him on October 21, 2008, in New York
State, Niagara County Court (Sperrazza, J.). The conviction stems
from an incident on April 3, 2007, in which Petitioner, Amy Bower
(“Bower”), Antonio Clark (“Clark”), and an unidentified man, agreed
upon a plan to rob Shawn Pittler (“Pittler”), a known drug dealer.
Bower, a crack addict who knew Pittler, contacted him and arranged
to go his apartment on Locust Street in Lockport to purchase
marijuana. After completing the purchase, Bower opened the door to

leave. This gave her three co-conspirators the opportunity to storm
into Pittler’s apartment, where they threatened Pittler and the
other occupants

of

the

apartment

with a

pistol,

stole

their

property, and assaulted them with their fists and the pistol.
Following a jury trial, in which he was tried jointly with Clark,
Petitioner was convicted of two counts of Conspiracy in the Fourth
Degree (New York Penal Law (“P.L.”) § 105.10(1)); five counts of
Burglary in the First Degree (P.L. § 140.30(2), (3), (4)); six
counts of Robbery in the First Degree (P.L. § 160.15(3), (4)); two
counts of Robbery in the Second Degree (P.L. § 160.10(1)); and two
counts of Assault in the Second Degree (P.L. § 120.05(2)).
On direct appeal, the Appellate Division, Fourth Department,
of New York State Supreme Court modified in part, and otherwise
unanimously affirmed, Petitioner’s conviction. People v. Golson, 93
A.D.3d 1218 (4th Dep’t 2012). The Appellate Division noted that in
deciding co-defendant Clark’s appeal, it had ruled that “count
eight, charging . . . burglary in the second degree under [P.L.]
§ 140.25(2), ‘must be dismissed as a lesser inclusory [sic] count
of counts three through seven, charging . . . burglary in the first
degree.’” Id. at 1219 (quoting People v. Clark, 90 A.D.3d 1576,
1755

(4th

Dep’t

2011)).

The

Appellate

Division

modified

Petitioner’s judgment accordingly. Id. The New York Court of
Appeals subsequently denied leave to appeal. People v. Golson, 19
N.Y.3d 864 (2012).

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This timely habeas petition followed. Petitioner re-asserts
the claims raised on direct appeal as his grounds for habeas
relief. Respondent answered the petition and filed a memorandum of
law (Dkt #8-2) asserting the defense of non-exhaustion as to the
bolstering and weight-of-the-evidence claims, and the defense of
procedural default as to the perjury claim. Respondent argues in
the alternative that all of the claims are meritless. Petitioner
filed a reply (Dkt #12) which was captioned as a “Statement of
Facts.”
DISCUSSION
I.

The Bolstering Claim Is Unexhausted But Should Be Deemed
Exhausted and Procedurally Defaulted

During her testimony, Bower mistakenly identified co-defendant
Clark as Golson; she explained that Golson had long hair with
braids at the time of the crime. The prosecutor then was permitted
to

call

a

police

officer

to

testify

about

the

out-of-court

identification of Petitioner that Bower had made. On direct appeal,
Petitioner argued that the trial court erroneously permitted the
prosecution to “bolster” Bower’s identification of Petitioner. The
Appellate Division noted it was “undisputed” that Golson had short
hair at the time of the trial. Thus, the Appellate Division
concluded, based upon Golson’s change of appearance, the trial
court properly determined that Bower was unable to identify him on
the basis of present recollection. People v. Golson, 93 A.D.3d at
-3-

1220. Respondent argues that Petitioner did not fully exhaust his
bolstering1 claim.
Pursuant

to

28

U.S.C.

§

2254(b),

as

amended

by

the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
Title I, § 106(b), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24,
1996), “an application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall
not be granted unless it appears that the applicant has exhausted
the remedies available in the courts of the State. . . .” 28 U.S.C.
§ 2254(b). In New York, to invoke “one complete round of the
State’s established appellate review process” so as to fulfill
Section 2254(b)’s exhaustion requirement, a petitioner first must
appeal his conviction to the Appellate Division, and then must seek
further

review

by

applying

to

the

Court

of

Appeals

for

a

certificate granting leave to appeal. Galdamez v. Keane, 394 F.3d
68, 74 (2d Cir. 2005) (quoting O’Sullivan v. Boerckel, 526 U.S.
838, 845 (1999)). On appeal, the petitioner must ensure that his
“federal claim was fairly presented to the state court.” Smith v.
Duncan, 411 F.3d 340, 348 (2d Cir. 2005) (citing Daye v. Attorney
Gen’l

of

N.Y.,

696

F.2d

186,

194

(2d

Cir.

1982)

(en

banc)

1

“Under New York law, bolstering is ‘derived from People v. Trowbridge, 305
N.Y. 471, 113 N.E.2d 841 (1953), that it is error to permit an identification
made by one witness to be corroborated by the testimony of another witness who
merely testifies that the identification occurred.’” Diaz v. Greiner, 110 F.
Supp. 2d 225, 234 (S.D.N.Y. 2000) (quoting Styles v. Van Zandt, 1995 WL 326445
at *5 (S.D.N.Y. 1995), aff’d mem., 101 F.3d 684 (2d Cir. 1996)).

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(discussing means of fairly presenting federal claim to state court
“even without citing chapter and verse of the Constitution”)).
Respondent contends that the bolstering claim is not exhausted
because

Petitioner

did

not

fulfill

the

“fair

presentment”

requirement. That is, Petitioner did not frame the claim as a
federal constitutional issue when he presented it on direct appeal.
In the argument point heading, Petitioner stated that “permitting
the

prosecution

to

bolster

Amy

Bower’s

misidentification

of

appellant through third party testimony constituted reversible
error.” (Dkt #8-1, p. 27 of 138). In his argument on this point,
Petitioner cited no federal cases, nor any state cases employing a
constitutional

analysis.

In

the

penultimate

sentence

of

the

argument, Petitioner asserted that he “was denied his right to due
process of law and a fair trial under both the state and federal
constitution.” (Dkt #8-1, p. 29 of 138). However, this reference to
due process was inadequate to fairly apprise the state court that
he was asserting a federal constitutional claim. See, e.g., Schafer
v.

LaVallee,

No.

1:12-CV-00419-MAT,

2013

WL

5272963,

at

*4

(W.D.N.Y. Sept. 17, 2013) (petitioner’s assertion on direct appeal
that the trial court “committed reversible error” when it excluded
testimony concerning a witness’ reputation in her community for
truth and veracity, but did not cite any constitutional provision,
or any Supreme Court or other federal case law, instead relying
exclusively on two state-court appellate cases which addressed

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whether trial courts, as a matter of state law, had committed
reversible error by excluding the same type testimony; this was
insufficient to fairly present the evidentiary claim in federal
constitutional terms for exhaustion purposes) (citing Ayala v.
Scully, 640 F. Supp. 179, 181-82 (S.D.N.Y. 1986) (petitioner who
referred to admission of evidence as “highly prejudicial” and
“reversible error” in state court brief without asserting specific
federal constitutional authority upon which he relied, failed to
cite cases in that brief which employed federal constitutional
analysis, and framed issue in that brief in terms of state law
evidentiary violation rather than federal constitutional claim, had
not fairly presented that claim to state court); Taylor v. Scully,
535 F. Supp. 272, 274–75 (S.D.N.Y. 1982) (holding that petitioner
did not, by bare reference to principles of due process, “fairly
present” to state court legal basis of claim that trial court
committed “reversible error” by denying his motion to exclude
testimony that he displayed gun prior to drug sale that led to his
conviction and thus petitioner had not exhausted state remedies
with respect to such claim)).
“For exhaustion purposes, ‘a federal habeas court need not
require that a federal claim be presented to a state court if it is
clear that the state court would hold the claim procedurally
barred.’” Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (quoting
Harris v. Reed, 489 U.S. 255, 263 n. 9 (1989)). Such is the case

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here. Petitioner’s unexhausted bolstering claim concerns a ruling
by the trial court and thus is record-based. Because this claim
already was raised and decided on direct appeal, Petitioner is now
barred under New York state law from raising it in a collateral
motion

to

vacate

the

judgment.

See

N.Y.

CRIM.

PROC.

LAW

§ 440.10(2)(a) (providing that “the court must deny a motion to
vacate a judgment when . . . [t]he ground or issue raised upon the
motion was previously determined on the merits upon an appeal from
the judgment”). Petitioner cannot pursue a second direct appeal,
for under New York State law, a criminal defendant is only entitled
to one appeal to the Appellate Division and one request for leave
to appeal to the Court of Appeals. See N.Y. CT. RULE 500.20(2)
(providing that application for leave to appeal to the New York
Court of Appeals in a criminal case pursuant to C.P.L. § 460.20
must include statement that “no application for the same relief has
been addressed to a justice of the Appellate Division, as only one
application is available”); N.Y. CRIM. PROC. LAW § 450.10(1); see
also N.Y. CT. RULES 500.20(d).
Since Petitioner has no further recourse in state court for
his bolstering claim, it should be deemed exhausted. See, e.g.,
Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (“Reyes’s claim
should be deemed exhausted because any attempt at exhaustion in the
face of this procedural default would be futile.”). The foregoing
procedural bar to presentment in state court, which causes the

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Court to deem the claim exhausted, also renders it procedurally
defaulted. See id. (“Although Petitioner’s claim of ineffective
assistance is deemed exhausted, we nonetheless find that, by
defaulting on that claim in state court, Reyes forfeits that claim
on federal habeas review, even though the claim is brought as cause
for another procedural default.”) (citing Gray v. Netherland, 518
U.S. 152, 162 (1996)).
To avoid such a procedural default, a habeas petitioner must
demonstrate cause for the default and actual prejudice as a result
of the alleged violation of federal law, or demonstrate that
failure to

consider

the

claims

will

result

in

a fundamental

miscarriage of justice. Gray, 518 U.S. at 162 (citations omitted).
Petitioner has not addressed Respondent’s arguments concerning the
non-exhaustion defense. He has not attempted to show cause for the
default and actual prejudice attributable thereto, or a miscarriage
of justice. In particular, the Court notes that prejudice is
lacking, since numerous district courts in this Circuit have held
that bolstering claims are not cognizable on federal habeas review.
Diaz v. Greiner, 110 F. Supp. 2d 225, 234 (S.D.N.Y. 2000) (citing,
inter alia, Vega v. Berry, No. 90 Civ. 7044(LBS), 1991 WL 73847, at
*2 (S.D.N.Y. Apr. 29, 1991)(“Although bolstering is a practice
prohibited in various states, including New York, the practice is
not

forbidden

by

the

Federal

Rules

of

Evidence

and

is

not

sufficiently prejudicial to deprive a defendant of his due process

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right to a fair trial.”)). Finding no basis on the record to excuse
the default, the Court dismisses Golson’s bolstering claim on as
procedurally barred.
II.

The Weight of the Evidence Claim Is Not Cognizable on Habeas
Review
Petitioner reprises his claim, raised on direct appeal, that

the verdicts were against the weight of the evidence because the
only evidence tending to connect him to the commission of the
crimes was based on wholly incredible witness testimony. Although
the Appellate Division agreed with Petitioner that “another result
would not have been unreasonable,” given that he “was identified by
only two prosecution witnesses,” one (Bower) who was “a drug addict
who was also indicted for these crimes and who received a favorable
plea agreement in exchange for her testimony,” and the other
(Pittler) who had “a lengthy criminal record.” Golson, 93 A.D.3d at
1219. Nevertheless, the Appellate Division held, “upon weighing the
relative strength of the conflicting inferences that may be drawn
from the testimony, the jury did not fail to give the evidence the
weight it should be accorded.” Id. (internal quotation marks and
citation omitted).
Petitioner’s “weight of the evidence” claim derives from
C.P.L. § 470.15(5), 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.”
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N.Y.

CRIM.

PROC.

LAW

§ 470.15(5). As the Court of Appeals has recognized, a “weight of
the evidence” argument is a pure state law claim grounded in
New York’s criminal procedure statute, whereas a legal sufficiency
claim is

based

on

federal due

process

principles.

People

v.

Bleakley, 69 N.Y.2d 490, 495 (1987). Because a “weight of the
evidence” implicates only New York state law, it is not cognizable
on federal habeas review. See 28 U.S.C. § 2254(a) (permitting
federal habeas corpus review only where the petitioner has alleged
that he is in state custody in violation of “the Constitution or a
federal law or treaty”); see also, e.g., Ex parte Craig, 282 F.
138, 148 (2d Cir. 1922) (holding that “a writ of habeas corpus
cannot be used to review the weight of evidence . . .”), aff’d, 263
U.S. 255 (1923). “Disagreement with a jury verdict about the weight
of the evidence is not grounds for federal habeas corpus relief.”
Kearse v. Artuz, 99 Civ. 2428, 2000 WL 1253205 at *1 (S.D.N.Y.
Sept. 5, 2000). ); Accordingly, the Court dismisses Petitioner’s
claim that the verdicts were against the weight of the credible
evidence.
III. The Perjury Claim is Procedurally Defaulted Under the Adequate
and Independent State Ground Doctrine
Prior to trial, and as part of their Brady disclosure, the
prosecution advised the attorneys for Petitioner and co-defendant
Clark that prosecution witness (and indicted co defendant) Bower
had received a plea bargain concerning her pending charges. In
exchange

for

testifying

against
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her

co-defendants,

Bower

was

allowed to plead guilty to one Class D violent felony and one Class
E

non-violent

felony.

(T.735).

During

cross-examination

by

Petitioner’s counsel, Bower admitted that there was a plea, but
falsely denied that she was asked to testify as part of that plea.
(T.602-03). Bower stated, “I was given a plea, but I was never
given a plea that I cooperate, my plea is [sic] what I’m going to
be sentenced to, if I testify[,] I was going to get this or that.”
(T.602). Defense counsel neither objected to the testimony nor made
a motion asking that the trial court jury be instructed, at that
time, concerning Bower’s plea agreement.
It was not until a few days later, at the charge conference,
that defense counsel acknowledged that “the People are correct that
we are aware of [Bower’s] plea offer” (T.737), but argued, as a
matter of law,2 that the prosecution had an obligation to tell the
jury “that there is some benefit, whether it be by the plea itself,
or that of sentencing as a result of the plea.” (Id.). The
prosecution disputed this, stating that since defense counsel was
aware of the nature of the plea, “they could have asked questions
about that.” (Id.) Defense counsel replied that “the burden is on
the People to make the [c]ourt aware at that moment . . . that

2

“[I]n the face of a prosecutor’s knowledge that a witness’ testimony
denying that a promise of leniency was given is false, he or she has no choice
but to correct the misstatement and to elicit the truth. This is no less than an
effectuation of the principle that ‘nondisclosure of evidence affecting
credibility falls within’ the rule enunciated in Brady v. Maryland. . . .” People
v. Piazza, 48 N.Y.2d 151, 162–63 (1979) (citations omitted).

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[Bower’s testimony is] not true and have the jury so instructed,”
and that the defense did not have to do anything further. (T.738).
The trial court stated that it would instruct the jury that Bower
received a benefit in the form of a plea to a lesser charge, but
that no promise was made with respect to sentencing. (T.738).
Defense counsel requested an additional instruction to the effect
that Bower had testified incorrectly that she received no benefit;
the trial court denied this request. During the jury charge, the
trial court informed the jury that Bower received a benefit insofar
as she was allowed to enter a plea to a lesser offense in exchange
for her testimony. (T.835). At the end of the charge, there were no
objections concerning this issue. (T.892-94).
On direct appeal, Petitioner claimed that the prosecutor
violated his due process rights by failing to correct Bower’s
testimony concerning whether she received a benefit in exchange for
her testimony. The Appellate Division found it unpreserved because
defense counsel “failed to object in a timely manner[.]” Id. at
1220 (citation omitted). The Appellate Division went on to hold
that

prosecutor’s

disregard

of

his

obligation

“to

correct

misstatements by a witness concerning the nature of a promise” was
harmless error because the trial court instructed the jury that
Bower also had been indicted for the crimes with which Petitioner
was charged, but had been permitted to plead guilty to lesser
offenses in exchange for her testimony. Id.

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Respondent argues that this claim is procedurally defaulted on
the basis that the Appellate Division relied on an adequate and
independent state ground to dismiss it, namely, the contemporaneous
objection rule codified at C.P.L. § 470.05(2). It is well-settled
that “federal habeas review is foreclosed when a state court has
expressly relied on a procedural default as an independent and
adequate state ground, even where the state court has also ruled in
the alternative on the merits of the federal claim.” Velasquez v.
Leonardo, 898 F.2d 7, 9 (2d Cir. 1990).

Generally, a party’s

failure to make a timely objection in compliance with an applicable
contemporaneous

objection

rule

constitutes an

independent

and

adequate state ground for denying review. See Wainwright v. Sykes,
433 U.S. 72, 86–87 (1977). New York’s contemporaneous objection
rule “require[s], at the very least, that any matter which a party
wishes the appellate court to decide have been brought to the
attention of the trial court at a time and in a way that gave the
latter the opportunity to remedy the problem and thereby avert
reversible error.” Garcia v. Lewis, 188 F.3d 71, 78 (2d Cir. 1999)
(quoting People v. Luperon, 85 N.Y.2d 71, 78 (1995)). Here, the
Court has reviewed the transcript and the applicable case law, and
finds that

the

rule

requiring

a

timely

objection

is

“firmly

established and regularly followed,” Cotto v. Herbert, 331 F.3d
217, 244 (2d Cir. 2003), in circumstances analogous to Petitioner’s
case. See,

e.g.,

People v.

Hendricks,

-13-

769

N.Y.S.2d

432, 433

(4th Dep’t 2003). Although defense counsel was correct that the
prosecutor had an obligation to correct misleading testimony by
Bower about her plea, New York courts consistently hold that it is
incumbent upon the defendant to lodge a timely objection alerting
the trial court to the offending testimony by the prosecution’s
witness. The

Court

agrees

with

Respondent

that

the

claim is

procedurally barred by an adequate and independent state law
ground. As discussed above in the context of Petitioner’s deemedexhausted and procedurally-defaulted bolstering claim, he has not
demonstrated cause for his default or actual prejudice resulting
from the default, or that a fundamental miscarriage of justice will
occur if the Court does not hear this claim. Accordingly, the Court
dismisses the claim regarding the prosecutor’s failure to correct
Bower’s testimony as subject to an unexcused procedural default.
CONCLUSION
For the reasons discussed above, the request by Rakeem Golson
for a writ of habeas corpus is denied, and the petition (Dkt #1) is
dismissed. Because Golson has failed to make a substantial showing
of a denial of a constitutional right, the Court declines to issue
a certificate of appealability. See 28 U.S.C. § 2253(c)(2).
SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
DATED:

March 30, 2017
Rochester, New York
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