Lewis v. Graham
Filing
38
DECISION AND ORDER denying the Petitioner's amended petition for a writ of habeas corpus. (Clerk to send a copy of this Decision and Order by first class mail to Petitioner.) (Clerk to close case.) Signed by Hon. Michael A. Telesca on 8/10/18. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
KEVIN R. LEWIS, JR.,
Petitioner,
No. 1:13-cv-00933-MAT
DECISION AND ORDER
-vsHAROLD D. GRAHAM, Superintendent,
Respondent.
I.
Introduction
Pro se petitioner Kevin R. Lewis, Jr. (“Petitioner”) filed an
amended petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 on February 15, 2018. In the amended petition, Petitioner
challenges his detention in Respondent’s custody pursuant to a
January 4, 2008 judgment entered in Monroe County Court of New York
State (Keenan, J.), convicting him, following two separate jury
trials, of Murder in the Second Degree (New York Penal Law (“P.L.”)
§
125.25(1)),
Attempted
Murder
in
the
Second
Degree
(P.L.
§§ 110.00/125.25(1)), two counts of Robbery in the First Degree
(P.L. §§ 160.15(1), (2)), two counts of Assault in the First Degree
(P.L. §§ 120.10(1), (4)), two counts of Burglary in the First
Degree (P.L. § 140.30(1), (2)), two counts of Criminal Possession
of a Weapon in the Second Degree (P.L. § 265.03(1)(b)), and two
counts of Criminal Possession of a Weapon in the Third Degree (P.L.
§ 265.02(4)). Petitioner is currently serving an aggregate prison
term of 65 years to life.
II.
Factual Background and Procedural History
A.
The July 7, 2006 Home Invasion
In July of 2006, Deanna Durden (“Durden”) lived with her twomonth-old baby at an apartment on Marlborough Road in the City of
Rochester. Durden, who had recently won the lottery, had $9,500 in
the apartment. She also had some small bags of marijuana in the
apartment for her personal use. On the morning of July 7th, Durden
awoke to the doorbell ringing. When she looked out the door, she
observed a man wearing what appeared to be a Rochester Gas and
Electric uniform and holding a binder. Thinking the man was from
the electric company, Durden cracked the door open to tell him to
go to the back of the residence where the meters were located.
Instead, the man pushed the door open, hitting her infant in the
head.
Once inside, the man pointed the gun at Durden, asked if
anyone else was in the home, and pushed her and her baby onto the
couch. Another male then entered the residence; Durden recognized
the second man as someone she knew from her childhood. The second
man went upstairs, while the gunman kept the weapon trained on
Durden and her baby, repeatedly asking her “Where is the shit?” and
instructing her, “Just pray. Just pray.” Durden attempted to grab
the gun out of his hands and a struggle ensued. The gunman then
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pistol-whipped Durden, fired two shots into her face, and fled the
scene.
Durden was able to contact 911 and was taken to the hospital,
where she has underwent several surgeries and suffered permanent
nerve damage to her face.
Durden later identified Petitioner as the gunman. The man whom
Durden recognized from her childhood was identified as Gerard
Singleton (“Singleton”). Testifying for the prosecution pursuant to
a plea agreement, Singleton described in detail the preparation and
planning in which he and Petitioner engaged with regard to the
robbery of Durden’s home, including conducting reconnaissance and
purchasing a uniform for Petitioner to wear to help him gain entry
to Durden’s residence.
B.
The August 17, 2006 Murder
On August 17, 2006, at about 9:00 p.m., Lashunda Robertson
(“Robertson”) was hanging out at her residence on Dewey Avenue in
the City of Rochester smoking a “blunt” and a cigarette. Robertson,
Petitioner’s girlfriend, had spent the earlier part of the evening
with him
and
Singleton,
his
accomplice from the
Durden
home
invasion.
While
Robertson
was
consuming
her
blunt,
Leroy
Buggs
(“Buggs”), also known as “Life,” rode by on his bicycle and
attempted to kiss Robertson. After she rebuffed his advances, Buggs
snatched the pack of cigarettes out of her lap and removed a “dime-
-3-
bag of weed” and a “nickel-bag of weed” from it. Upset that Buggs
had stolen her marijuana and was being disrespectful to her,
Robertson called Petitioner several times to ask him to come over
and sit with her. When she finally reached Petitioner and related
what had happened, he replied that he would be there in a minute.
Meanwhile,
Robertson’s
friend
and
neighbor,
Nikkole
Lewis
(“Nikkole”), had come over to spend time with her.
As
promised,
Petitioner
shortly
arrived
on
the
scene.
Robertson stated, “Yo, that’s him,” referring to Buggs. Petitioner
walked up to Buggs, then fired several shots from a revolver at
Buggs at close range, striking him in the chest and stomach.
Robertson and Nikkole both observed the shooting. Petitioner,
Robertson, and Nikkole left the scene and went back to Robertson’s
apartment.
Buggs was still alive when the police arrived on the scene,
but later succumbed to his injuries.
Back at Robertson’s apartment, Petitioner wiped fingerprints
from the revolver and wiped the shell casings, which he placed in
an Altoids® box and dropped in a crevice in a wall of Robertson’s
apartment building. Robertson and Nikkole were both present and
observed him doing this.
A crime scene technician from the Rochester Police Department
(“RPD”) recovered an Altoids® tin secreted within a crawl space at
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Robertson’s house. In the tin were three shell casings that were
free of any fingerprints.
Petitioner stayed at Robertson’s apartment overnight. The next
day he traded the revolver with which he had shot Buggs for a
vehicle. Petitioner told Nikkole not to say anything about what she
had seen.
After Petitioner was arrested, he had an opportunity to speak
with Robertson. During the conversation, Petitioner told her that
“he didn’t want to go to jail for 25 to life.”
Prior to trial, the Monroe County Court severed the counts
related to the Buggs murder from the counts related to the Durden
robbery and shooting. The first trial began on November 26, 2007.
On
November
29,
2007,
a
jury
returned
a
verdict
convicting
Petitioner on all counts related to the Durden shooting.
The second trial began on December 10, 2007. On December 13,
2007, a separate jury convicted Petitioner on all of the remaining
counts. On January 4, 2008,
Petitioner was sentenced to an
aggregate prison term of 25 years to life on the Buggs murder and
weapons-related counts, to be served consecutively to an aggregate
prison term of 40 years, plus 5 years of post-release supervision,
on the counts related to the Durden robbery and shooting.
The Appellate Division, Fourth Department, of New York State
Supreme Court unanimously affirmed the judgment of conviction, and
the New York Court of Appeals denied leave to appeal. People v.
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Lewis, 93 A.D.3d 1264 (4th Dep’t), lv. denied, 19 N.Y.3d 963
(2012).
Petitioner filed a pro se motion to vacate the conviction
pursuant to New York Criminal Procedure Law (“C.P.L.”) § 440.10,
which was denied without a hearing.
In his timely filed amended petition, Petitioner asserts the
following grounds for relief: (1) his statement to the police
concerning the Buggs murder was coerced by police threats to arrest
Robertson
and
place
her
child
in
foster
care;
(2)
the
identification evidence admitted at the Buggs murder trial should
have
been
suggestive;
suppressed
(3)
the
because
the
prosecution
photo
failed
arrays
to
were
comply
with
unduly
their
discovery obligations by withholding the statement that Buggs made
to a police officer; (4) Petitioner was denied his right to testify
before
the
grand
jury;
(5)
the
sentence
was
excessive
and
vindictive; (6) the prosecutor improperly waived a preliminary
hearing; (7) trial counsel at both trials was ineffective because
counsel failed to (a) present an expert witness at the attempted
murder/robbery trial; (b) retrieve one of two buccal swabs for
independent
testing
for
the
attempted
murder/robbery
trial;
(c) call an expert in victim identification testimony to challenge
Durden’s identification of him; (d) present an alibi defense at the
Buggs murder trial despite telling the jury that he would present
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one
during
opening
statements;
and
(e)
offer
into
evidence
Robertson’s recantation statement.
Respondent filed an answer and memorandum of law in opposition
to the amended petition. Petitioner filed a reply.
III. Discussion
A.
Ground One: Failure to Suppress Petitioner’s Coerced
Statement to Police
Petitioner reprises his claim, raised on direct appeal, that
his statement to the police was induced by allegedly coercive
tactics.
At a pre-trial suppression hearing, RPD Investigator John
Conner
(“Conner”)
testified
that
on
October
6,
2006,
at
approximately 10:34 p.m., he advised Petitioner of his Miranda
rights. Petitioner indicated that he understood his rights and,
when asked if he agreed to speak with Conner, Petitioner replied,
“uh-huh.” When asked to clarify, Petitioner said, “I want to hear
what you’ve got to say.” Petitioner provided no statements to
Conner in connection with the Durden shooting.
Petitioner remained in continuous police custody. Before he
was booked in connection with the Durden shooting, he also was
questioned
by
RPD
Investigator
William
Lawler
(“Lawler”)
at
approximately 1:47 a.m., on October 7, 2006, in connection with the
Buggs homicide. Lawler did not re-administer Miranda warnings. He
informed Petitioner that the police “had two eyewitnesses, a
deposition from his girlfriend, Licente [sic] Robertson, and a VHS
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tape from the library across the street that showed the shooting.”
In reality, there was no videotape of the shooting.
Lawler told Petitioner that Robertson might get “wrapped up in
this because she made a phone call and she’s got two kids.” Lawler
commented that he thought Petitioner was a good person who cared
for Robertson and her kids. Lawler noted that Buggs was an “awful
large
man,”
who
was
“high
on
coke,
crack
or
ecstasy
and
intoxicated,” and suggested that maybe Petitioner was acting in
self-defense. Petitioner said that he loved Robertson and again
asked to see her. Lawler remarked that Petitioner seemed “troubled,
maybe torn, conflicted,” and suggested that “[p]art of him might
want to tell us what happened to save Lashunda from going to jail.”
Petitioner responded, “my mind won’t let me tell what happened.”
Petitioner did not admit that he called Robertson’s phone that
evening,
but
he
did
admit
that
his
cell
phone
number
was
718-764-9645.
At
about
3:40
a.m.,
Lawler
left
the
interview
room and
returned five minutes later with Robertson; he allowed Petitioner
to hug her before escorting her out of the room. After Robertson
left the room, Petitioner told Lawler that he has blackouts when he
is under stress. Lawler asked Petitioner if it was possible that he
shot Buggs while suffering from a blackout. Petitioner said he
could not remember. Petitioner asked to spend some time with
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Robertson.
Lawler
left
Petitioner
alone
in
the
room
for
two
minutes.
When he reentered the room, Lawler asked Petitioner what was
important in his life. Petitioner said that he loved his dog, whom
he had raised from the time he was a sick puppy. Petitioner had
nursed him back to health and was now concerned for his dog’s
safety because Animal Control had taken custody of the dog when the
police searched his house. Petitioner began to cry.
Lawler then left the room and allowed Robertson to come in to
see Petitioner. They were alone together for two minutes before
Lawler re-entered the room. About five minutes later, Petitioner
apologized, said the officers were nice people, but he wanted to go
to booking. Lawler ended the interview at 4:25 a.m.
On direct appeal, the Appellate Division adjudicated this
claim on the merits. The court noted that “although threats by the
police to arrest a person’s loved ones may result in suppression,
‘[i]t is not an improper tactic for police to capitalize on a
defendant’s sense of shame or reluctance to involve his [loved
ones] in a pending investigation absent circumstances [that] create
a substantial risk that a defendant might falsely incriminate
himself [or herself][.]’” People v. Lewis, 93 A.D.3d at 1265–66
(internal
and
other
quotations
omitted;
some
alterations
in
original). In Petitioner’s case, the Appellate Division found “no
evidence ‘that the police promised not to arrest [Petitioner]’s
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girlfriend if [Petitioner] talked . . . , and there were no other
circumstances creating a substantial risk that [Petitioner] would
falsely
incriminate
himself[.]’”
Id.
(internal
quotation
and
quotation marks omitted in original). The Court finds that this
holding correctly applied Federal law.
The Supreme Court has not squarely addressed whether threats
to charge third-parties amount to coercion; nor has the Second
Circuit. Several other circuit courts and district courts within
the Second Circuit have held that “such a threat does not render a
confession involuntary if the police have probable cause to arrest
the family member and thus could lawfully carry out the threat.”
United States v. Ortiz, 943 F. Supp.2d 447, 456–57 (S.D.N.Y. 2013);
see also United States v. Miller, 450 F.3d 270, 272 (7th Cir. 2006)
(“An objectively unwarranted threat to arrest or hold a suspect’s
paramour, spouse, or relative without probable cause could be the
sort of overbearing conduct that society discourages by excluding
the resultant statements.”) (citation omitted), abrogated on other
grounds by Kimbrough v. United States, 552 U.S. 85 (2007); United
States v. Johnson, 351 F.3d 254, 263 (6th Cir. 2003); Thompson v.
Haley, 255 F.3d 1292, 1296–97 (11th Cir. 2001); Allen v. McCotter,
804 F.2d 1362, 1364 (5th Cir. 1986); United States v. Serrano, 937
F. Supp.2d 366, 376 (E.D.N.Y. 2013); United States v. Ortiz, 499 F.
Supp.2d 224, 232–33 (E.D.N.Y. 2007).
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Here, as the suppression court found, there was no proof that
Robertson
was
not
legitimately
subject
to
being
charged
in
connection with Buggs’ murder as an accomplice. Indeed, the police
were aware that Robertson had summoned Petitioner to come to her
house to deal with Buggs, who had been harassing her by trying to
kiss her and stealing her “weed.” Furthermore, the record shows
that Lawler’s suggestion that Petitioner might want to tell the
police what happened to spare Robertson from jail did not have the
effect of overbearing Petitioner’s will to resist or bringing about
a confession that was not freely given. See Oregon v. Elstad, 470
U.S. 298, 304 (1985) (holding that a confession is involuntary, and
inadmissible, if obtained by “techniques and methods offensive to
due process, . . . or under circumstances in which the suspect
clearly had no
opportunity to exercise a free and unconstrained
will”). To the contrary, Petitioner remained resolute in his
decision not to implicate himself in Buggs’s murder. After being
permitted
to
meet
with
Robertson,
Petitioner
terminated
his
interview with Lawler without having offered any information about
the shooting. Accordingly, even assuming that Lawler’s comment was
perceived by Petitioner as a threat to arrest Robertson if he did
not provide information about the murder, there is no evidence that
this tactic actually resulted in a confession, much less one that
was involuntary.
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B.
Ground Two: Failure to
Identification Evidence
Suppress
Unduly
Suggestive
Petitioner argues, as he did on direct appeal, that it was
unduly suggestive for the police to present the witness with two
photo arrays in which his photograph was the only one that was
repeatedly used.
The Appellate Division disposed of this claim on the merits,
noting that “[m]ultiple photo identification procedures are not
inherently suggestive[.]” Lewis, 93 A.D.3d at 1266 (quotation marks
and quotation omitted). Although Petitioner’s photograph appeared
in the same sequence in each photo array, a practice which the
Appellate Division found should not be encouraged, that court
concluded there was nothing unduly suggestive about the photo
arrays. Id. at 1266-67 (citations omitted). The Court finds that
this holding correctly applied Federal law.
The Supreme Court has clearly held that “convictions based on
eyewitness
identification
at
trial
following
a
pretrial
identification by photograph will be set aside on that ground only
if the photographic identification procedure was so impermissibly
suggestive as to give rise to a very substantial likelihood of
irreparable misidentification.” Simmons v. United States, 390 U.S.
377, 384 (1968); accord Stovall v. Denno, 388 U.S. 293, 301-02
(1967). In Simmons, the defendant was charged with committing an
armed robbery of a savings and loan institution that occurred in
front of five witnesses who were employees of the institution. 390
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U.S. at 380-81. One day after the robbery, each of the witnesses
was shown a series of at least six photographs, with the defendant
and another man “each appearing several times in the series.” Id.
at 385. Each witness identified the defendant, and none identified
the other
man
whose
photograph
recurred
in
the
series,
“who
apparently was as prominent in the photographs as Simmons.” Id. As
has Petitioner here, the defendant in Simmons argued “that in the
circumstances the [pretrial] identification procedure was so unduly
prejudicial as fatally to taint his conviction.” Id. at 383.
The Supreme Court rejected a blanket exclusionary rule in
Simmons, instead finding that the Due Process clause required
courts to consider each case “on its own facts[.]” Id. at 384; see
also Perry v. New Hampshire, 565 U.S. 228, 239 (2012) (“[T]he Due
Process Clause requires courts to assess, on a case-by-case basis,
whether improper police conduct created a ‘substantial likelihood
of misidentification.’”) (quoting Neil v. Biggers, 409 U.S. 188,
209 (1972); citation omitted).
Here, the Appellate Division correctly applied the
Supreme
Court’s “totality of the circumstances” approach. As an initial
matter, Federal courts have found that “[a] suspect’s inclusion in
two photospreads, even with the same photo, is not constitutionally
impermissible.”
United
States
v.
Maguire,
918
F.2d
254,
263
(1st Cir. 1990) (citing Perron v. Perrin, 742 F.2d 669, 675 (1st Cir.
1984); United States v. Eatherton, 519 F.2d 603, 608 (1st Cir.),
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cert. denied, 423 U.S. 987 (1975)). As the Appellate Division
noted, different photographs of Petitioner were used in each
presentation to the witness; the first array contained a photograph
of Petitioner that was taken a year prior to the crime, while the
second array contained a photograph of Petitioner taken soon after
the crime. See Stewart v. Duckworth, 93 F.3d 262, 266 (7th Cir.
1996)
(witness
shown
two
photo
arrays,
the
latter
of
which
contained a recent photo of the defendant while the first array
contained an older photo; witness made identification after viewing
second array; court noted it “would be a different matter had [the
witness] been shown the recent photos twice before making an
identification”).
The Appellate Division also found a basis in the record for
explaining the witness’s failure to identify anyone from the first
array—the witness’s fear for the safety of her family. The record
reflects that the witness voiced those concerns to the detective
during the first photo array procedure. It was only after the
police assured her that her family would be relocated that the
witness made a positive identification of Petitioner during the
second photo array procedure. Finally, the state court found that
Petitioner’s face did not stand out among the photos selected for
either of the arrays. This Court’s independent review of the photos
supports this finding.
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Moreover,
notwithstanding
there
was
the
ample
photo
array
reason
to
procedures,
conclude
Lewis
that,
had
an
independent basis to make a reliable identification of petitioner
in court. See Neil v. Biggers, 409 U.S. at 199-200 (an in-court
identification may still be admissible if “under the totality of
the circumstances the identification was reliable even though the
confrontation procedure was suggestive”). The witness testified
that she had been well-acquainted with Petitioner before the
shooting, and knew him by his nickname, “Deuce.” She had met him
through her friendship with his girlfriend, Robertson. The three of
them had talked casually in a group earlier that summer. The
witness immediately recognized him when he appeared at the stoop
just before Buggs was shot. After the shooting was over, Petitioner
warned her in the hallway of her apartment building that she should
not tell anyone what she saw. A month later, Petitioner approached
her and thanked her for not reporting him to the police. In light
of the witness’s multiple interactions with Petitioner before and
after the shooting, she had a sufficient independent basis to
identify Petitioner in court even without regard to the photo array
procedures.
C.
Ground Three: Failure of the Prosecution to Comply With
Disclosure Obligations
Petitioner argues, as he did in his pro se supplemental brief,
that
the
prosecution
failed
to
comply
with
their
discovery
obligations under People v. Rosario, N.Y.2d 286 (1961), by not
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disclosing to the defense Buggs’s identification of Petitioner to
the police. The testimony at issue concerns Buggs’s statement to
RPD Officer Brochu that the person who shot him was a black male
with braids and lived in the area of Dewey and Pierpont. The
prosecutor was permitted to introduce this statement at trial under
the excited utterance and dying declaration exceptions to the rule
against hearsay.
As a matter of New York State statutory and decisional law, a
prosecutor must disclose to the defense any statement of a witness
whom the prosecutor intends to call at a hearing or trial, whose
statement is in the prosecutor’s possession or control, and which
relates to the subject matter of the witness’s testimony. Rosario,
9 N.Y.2d at 289; N.Y. CRIM. PROC. L. §§ 240.44(1), 240.45(1)(a).
Courts in this Circuit repeatedly have held that the prosecution’s
disclosure
obligations
under
Rosario,
supra,
as
well
as
any
sanctions to which the defense may be entitled as a result of the
prosecution’s
violation
of
such
obligations,
are
matters
of
New York State law and do not implicate Federal constitutional
principles. See Martinez v. Walker, 380 F. Supp.2d 179, 186 & n. 5
(W.D.N.Y. 2005) (“To the extent that Rosario exceeds federal
constitutional
prosecutor’s
requirements,
failure
to
it
turn
defines
over
state
Rosario
law,
material
and
the
is
not
cognizable on federal habeas review.”) (citing Lyon v. Senkowski,
109 F. Supp.2d 125, 139 (W.D.N.Y. 2000); Green v. Artuz, 990
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F. Supp. 267, 274 (S.D.N.Y. 1998) (citing United States ex. rel.
Butler v. Schubin, 376 F. Supp. 1241, 1247 (S.D.N.Y. 1974), aff’d,
508 F.2d 837 (2d Cir. 1975)); Copes v. Schriver, No. 97 CIV. 2284
(JGK), 1997 WL 659096, at *4 (S.D.N.Y. Oct. 22, 1997) (“Th[e]
[Rosario] rule . . . is grounded in state law and a violation of
the rule would not establish a constitutional violation or entitle
the petitioner to relief on a petition for habeas corpus.”).
Moreover, Petitioner does not have a colorable argument that,
given
the
evidence
at
issue,
the
prosecutor
violated
any
requirements of Brady v. Maryland, 373 U.S. 83 (1963), and its
progeny. In Brady, the Supreme Court held that “the suppression by
the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt
or to punishment, irrespective of the good faith or bad faith of
the prosecution.” 373 U.S. at 87 (emphasis supplied). Here, Buggs’s
statement to Officer Brochu was neither exculpatory nor impeaching,
and
thus
was
prosecution’s
not
favorable
failure
to
to
provide
Petitioner.
it
to
the
Therefore,
defense
did
the
not
implicate Petitioner’s due process rights under Brady, 373 U.S. 83,
supra, and no constitutional violation occurred.
D.
Grounds Four and Six: Denial of Right to Testify Before
Grand Jury and Prosecution’s Waiver of Petitioner’s Right
to Preliminary Hearing
Petitioner reasserts his claims, first raised in his pro se
supplemental appellate brief, that he was denied both his right to
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a preliminary hearing and his right to testify before the grand
jury.
Under New York law, Petitioner may have had a statutory right
to a preliminary hearing if no indictment issued within five days
of his arrest. See N.Y. CRIM. PROC. LAW §§ 180. 10; 180. 60. This
right is not of a Federal constitutional dimension, however. See
Strong v. Mance, No. 9:07–CV–0878–NAM–GHL, 2010 WL 1633398, at *7
(N.D.N.Y. Apr.2, 2010) (“[T]here is no federal constitutional right
to a preliminary hearing.”) (citing, inter alia, Gerstein v. Pugh,
420 U.S. 103, 118–19 (1975) (“[W]e adhere to the [this] Court’s
prior holding that a judicial hearing is not prerequisite to
prosecution by information.”) (citing Beck v. Washington, 369 U.S.
541, 545 (1962)). Thus, Petitioner’s preliminary hearing claim must
be dismissed as not cognizable on federal habeas review.
E.g.,
Caswell v. Racetti, No. 11-CV-0153 MAT, 2012 WL 1029457, at *5
(W.D.N.Y. Mar. 26, 2012) (dismissing, as not cognizable, in a
§ 2254 petition, a claim based on the denial of a preliminary
hearing); John v. People, No. 91 CIV. 7634, 1992 WL 261282, at *1
(S.D.N.Y. Sept. 29, 1992) (“The habeas petition is denied, because
there is no federal constitutional requirement for a preliminary
hearing as a prerequisite to a valid conviction at trial.”).
Petitioner’s claim that errors occurred during the grand jury
proceeding likewise is not cognizable on habeas review. Caswell,
2012 WL 1029457, at *5. In New York State, a defendant’s right to
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testify before the grand jury is statutorily-created. Id. (citing
N.Y. CRIM. PROC. LAW § 190.50(5)). “Furthermore, there is no federal
constitutional right to indictment by a grand jury in a state
criminal prosecution.” Id. (citing Alexander v. Louisiana, 405 U.S.
625, 633 (1972) (“Although the Due Process Clause guarantees
petitioner a fair trial, it does not require the States to observe
the Fifth Amendment’s provision for presentment or indictment by a
grand jury.”); LanFranco v. Murray, 313 F.3d 112, 118 (2d Cir.
2002) (noting that the Fifth Amendment’s right to indictment by
grand jury has not been incorporated against the states through the
Fourteenth Amendment)). It is therefore “beyond question that ‘the
right to testify before a grand jury is purely a New York state
statutory right, and is not a constitutional right that can lead to
relief on habeas review.’” Caswell, 2012 WL 1029457, at *5 (quoting
Byrd v. Demarco, No. 11–CV–0750–JS, 2011 WL 809657, at *1 (E.D.N.Y.
Feb.
25,
2011)
(internal
quotation
and
citations
omitted)
(collecting cases); Lucius v. Filion, 431 F. Supp.2d 343, 346
(W.D.N.Y. 2006)).
Any possible defect in the grand jury proceeding, including
the absence of Petitioner’s testimony, was cured by Petitioner’s
conviction at trial. See Lopez v. Riley, 865 F.2d 30, 32 (2d Cir.
1989)
(stating
that
“if
federal
grand
jury
rights
are
not
cognizable on direct appeal when rendered harmless by a petit jury,
similar claims concerning a state grand jury proceeding are a
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fortiori foreclosed in a collateral attack brought in a federal
court”) (citing United States v. Mechanik, 475 U.S. 66, 70 (1986)
(subsequent guilty verdict by petit jury renders any error in the
grand jury proceeding harmless beyond a reasonable doubt)); Velez
v. People of the State of New York, 941 F. Supp. 300, 315 (E.D.N.Y.
1996) (claim that petitioner was denied his right to testify before
the grand jury was cured by his conviction at trial).
E.
Ground Five: Excessive and Vindictive Sentence
Petitioner reprises his claims, raised on direct appeal, that
(1) his sentence is harsh and excessive; and (2) the trial judge
sentenced him vindictively for exercising his right to go to trial.
The Appellate Division rejected these claims, finding that the
record showed no retaliation or vindictiveness against Petitioner
for electing to proceed to trial. Exercising its statutorilygranted factual review power, the Appellate Division also concluded
that the sentence was not unduly harsh or severe. Lewis, 93 A.D.3d
at 1267.
1.
Harsh and Excessive Sentence
It is well settled that an excessive sentence claim may not be
raised as grounds for habeas corpus relief if the sentence is
within the range prescribed by state law. White v. Keane, 969 F.2d
1381, 1383 (2d Cir. 1992) (per curiam) (“No federal constitutional
issue
is
prescribed
presented
by
state
where
law.”)
the
sentence
(citing
-20-
is
within
Underwood
v.
the
range
Kelly,
692
F. Supp. 146 (E.D.N.Y. 1988), aff’d mem., 875 F.2d 857 (2d Cir.
1989)).
With regard to the Buggs incident, Petitioner was convicted of
second-degree
murder,
second-degree
criminal
possession
of
a
weapon, and third-degree criminal possession of a weapon. For each
conviction, he was sentenced to the maximum prison term permissible
under New York law. See N.Y. PENAL LAW §§ 125.25(1), 265.03(1)(b),
265.02(4), 70.00(2)(a), (2)(d), (3)(a)(i), (3)(b), 70.02(1)(b),
(3)(b).
With
convicted
of
regard
to
attempted
the
Durden
incident,
second-degree
murder,
Petitioner
two
counts
was
of
first-degree robbery, two counts of first-degree assault, two
counts
of
first-degree
burglary,
one
count
of
second-degree
criminal possession of a weapon, and one count of third-degree
criminal possession of a weapon. For each conviction except one,
Petitioner was sentenced to the maximum term allowable by statute.
See N.Y. PENAL LAW §§ 110.00/125.25(1), 265.03(1)(b), 265.02(4),
160.15(1), (2)), §§ 120.10(1), (4), 140.30(1), (2), 265.03(1)(b),
265.02(4),
70.02(1)(a),
(1)(b),
(3)(a),
70.00(2)(a),
(2)(d),
(3)(a)(i), (3)(b). For one of his burglary convictions, Petitioner
was sentenced to one term of 15 years, which was 10 years less than
the maximum allowable term. Because the burglary represented an act
separate from the attempted murder of Durden, and the crimes
against Durden were separate acts from those committed against
Buggs,
the
trial
court
was
entitled
-21-
to
impose
consecutive
sentences. Cf. N.Y. PENAL LAW § 70.25(2) (“When one or more sentence
of imprisonment is imposed on a person for two or more offenses
committed
through
a
single
act
or
omission
which
in
itself
constituted one of the offenses and also was a material element of
the other, the sentences . . . must run concurrently.”) (emphasis
supplied). Accordingly, as Respondent argues, Petitioner’s prison
sentence was within the limits established by New York’s sentencing
statute. The fact that Petitioner received the maximum terms
possible does not make his sentence harsh and excessive. E.g.,
Mungo
v.
Duncan,
(dismissing
277
challenge
F.
to
Supp.2d
176,
sentence
as
185
not
(E.D.N.Y.
2003)
cognizable
where
petitioner’s “sentence of twenty-five years to life, although the
maximum allowable under state law, fell within the permitted
statutory range”), aff’d, 393 F.3d 327 (2d Cir. 2004).
2.
Vindictive Sentencing
In North Carolina v. Pearce, 395 U.S. 711 (1969), addressing
the issue of vindictive resentencing, the Supreme Court held that
the Due Process clause limits a state’s authority to impose a
harsher sentence on a defendant who has been reconvicted after a
new trial for the same offense. Id. at 724-26.
However, a
presumption of vindictiveness applies to a sentence only when there
is a “realistic motive for [the] vindictive sentencing.” Texas v.
McCullough,
475
U.S.
134,
139
(1986).
When
a
presumption
of
vindictiveness does not apply, the petitioner has the burden of
-22-
proving vindictiveness by a preponderance of the evidence. Alabama
v. Smith, 490 U.S. 794, 799–800 (1989). The Supreme Court has
acknowledged, however, that “not every burden on the exercise of a
constitutional right, and not every pressure or encouragement to
waive such a right is invalid.” Corbitt v. New Jersey, 439 U.S.
212, 219 (1978). Indeed, the Supreme Court has “squarely held that
a
State may
encourage a
guilty
plea
by
offering
substantial
benefits in return for the plea. . . .” Id.
Here, the prosecution had offered Petitioner the opportunity
to plead guilty to the murder count and the attempted murder count
and receive an aggregate prison term of 25 years to life, and
Petitioner was informed that if he did not accept the plea, he
could face consecutive sentences on the convictions related to
separate each event. Although Petitioner initially accepted the
plea offer, he subsequently was permitted to withdraw his plea.
Petitioner has offered no evidence apart from the discrepancy
between the sentence promise offered as part of the plea bargain
and the sentence he actually received. The record is clear that
Petitioner withdrew his plea and proceeded to trial with full
knowledge that he potentially faced a much sentence if the jury
convicted him. The disparity in the sentences offered and imposed
does not make out a claim of actual vindictiveness, because the
trial
judge
Petitioner’s
never
suggested
refusal
of
the
that
plea
-23-
the
sentence
offer. The
was
mere
based
fact
on
that,
following conviction, the trial judge imposed the maximum term
possible as to each of the individual sentences and ordered them to
run consecutively does not, in and of itself, demonstrate actual
vindictiveness. E.g., Pabon v. Hake, 763 F. Supp. 1189, 1194–95
(E.D.N.Y. 1991) (“The only evidence the Petitioner cites in support
of his claim of vindictive sentencing was that, after trial, he
received a sentence exceeding the promised sentence he rejected as
part of the proposed plea agreement. . . . The fact that an offered
sentence during plea negotiation is less than the maximum potential
sentence does not mean that the judge acted vindictively[.]”)
(citing Shu v. Wilmot, No. 84 Civ. 5359–CSH, 1985 WL 2034, at *3
(S.D.N.Y. July 15, 1985) (“[T]here is no reason to presume solely
from the fact of a disparity between a sentence offered as part of
a rejected plea bargain and the sentence imposed after trial by a
second judge that vindictiveness played a role in sentencing. Some
other
evidence
.
.
.
must
be
presented
to
demonstrate
the
possibility of an improper motive.”). On the present record,
Petitioner has not established by a preponderance of the evidence
that an unconstitutional retributory motive informed the judge’s
sentencing decision.
F.
Grounds Seven, Eight, Nine, Ten and Eleven: Ineffective
Assistance of Trial Counsel
Petitioner reasserts his claims, first raised in his C.P.L.
§ 440.10 motion, that the attorney who represented him during both
of his trials was ineffective. Specifically, Petitioner complains
-24-
that trial counsel failed to (1) present the testimony of forensic
expert Gary Skuse (“Skuse”), whom trial counsel had retained and
who had discovered alleged discrepancies in the prosecution’s DNA
evidence; (2) retrieve the duplicate buccal swab for independent
DNA testing; (3) call an expert in victim identification testimony
to cast doubt on Durden’s identification; (4) present an alibi
defense at his trial for Buggs’s murder after informing the jury
during opening statements that he would present an alibi defense;
and (5) offer into evidence Robertson’s recantation statement. In
denying vacatur of the conviction, the Monroe County Supreme Court
(Sinclair, J.) (“the C.P.L. § 440.10 court”) held that, except for
his claims concerning the failure to call Skuse as an expert
witness and obtaining a buccal swab for testing, the ineffective of
trial counsel claims were barred from review because they were
based on matters on the record and could have been raised on direct
appeal. See N.Y. CRIM. PROC. LAW § 440.10(2)(c).
Respondent argues that the claims which were denied on the
basis of C.P.L. § 440.10(2)(c) are procedurally barred pursuant to
the adequate and independent state ground doctrine. Because these
claims of ineffective assistance are easily resolved on the merits,
the Court declines to address the issue of procedural default
raised by Respondent as an affirmative defense.
-25-
1.
The
Standard of Review
Sixth
Amendment
provides
that
in
all
criminal
prosecutions, the accused shall enjoy the right to the assistance
of counsel. U.S. CONST., amend. VI. In order for a habeas petitioner
to establish that he received the ineffective assistance of trial
counsel, he must show both that his attorney provided objectively
deficient representation and that he suffered prejudice as a result
of that deficient performance. Strickland v. Washington, 466 U.S.
668, 687 (1984).
To establish deficient representation, the petitioner must
show
that
standard
“counsel’s
of
representation
reasonableness,”
and
fell
that
below
an
counsel’s
objective
conduct
“so
undermined the proper functioning of the adversarial process” that
the process “cannot be relied on as having produced a just result.”
Id. at 686, 688. A court reviewing an ineffective assistance of
counsel claim is required to “indulge a strong presumption that
counsel’s conduct [fell] within the wide range of reasonable
professional assistance.” Id. at 689.
Because “[a]ttorney errors come in an infinite variety and are
as likely to be utterly harmless in a particular case as they are
to be prejudicial,” the petitioner must also “affirmatively prove
prejudice.” Id. at 693. To meet this burden, the petitioner must to
show
that
“there
is
a
reasonable
probability
that,
but
for
counsel’s unprofessional errors, the result of the proceeding would
-26-
have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694. It
is not enough for the petitioner to show that the errors had “some
conceivable effect” on the outcome of the trial. Id. at 693.
Rather, the petitioner must establish that his attorney’s errors
were “so serious as to deprive [him] of a fair trial, a trial whose
result is reliable.” Id. at 687.
2.
Trial Counsel’s Alleged Errors
a.
Failure to Call Expert in DNA Evidence
In support of his argument that trial counsel erred in failing
to call Skuse to testify on his behalf, Petitioner points to a
letter from Skuse to trial counsel dated November 20, 2008, wherein
Skuse detailed some questions and inconsistencies he noticed in the
prosecution’s DNA report. Petitioner argues that, in light of these
inconsistencies and questions, trial counsel was ineffective for
not calling Skuse.
In the letter produced by Petitioner, Skuse began by stating
that he had received “the additional laboratory notes related to
People v. Lewis” in which he “found some interesting points, but,
overall, nothing that changed the conclusions communicated in [his]
letter of 9 September[.]” SR.682 (quotation omitted; emphasis
supplied by C.P.L. § 440.10 court). Skuse then went on to explain
the opinions he had offered in the September 9th letter, and that
the tendering of the “additional laboratory notes” had helped to
-27-
explain
the
inconsistencies
described
therein.
As
the
C.P.L.
§ 440.10 court found, “given the context of Skuse’s letter and his
reference to it, the implications are clear: Skuse’s testimony may
have allowed trial counsel to point to some inconsistencies of the
prosecution’s testing, but that his ultimate conclusion would not
have been favorable to the defendant.” SR.682. The C.P.L. § 440.10
court reasonably concluded that trial counsel therefore “clearly
had a strategic explanation in not calling Skuse.” (Id.) (citation
omitted).
Furthermore,
in
light
of
Skuse’s
adherence
to
his
original conclusion, which was not favorable to the defense,
Petitioner cannot show a reasonable probability of a more favorable
result had trial counsel put Skuse on the stand.
b.
The
C.P.L.
Failure to Test Duplicate Buccal Swab
§
440.10
court
also
reasonably
rejected
Petitioner’s claim that trial counsel was ineffective for failing
to obtain one of the two buccal swabs taken of Petitioner in order
to conduct independent DNA testing. The C.P.L. § 440.10 court
reasoned that that trial counsel was not ineffective for failing to
obtain the duplicate swab given that Skuse, the expert retained by
the defense, did not seek to conduct independent DNA testing.
Morever, Petitioner can hardly complain of being prejudiced by
trial counsel’s failure to retrieve the buccal swab that was in the
prosecution’s possession, since the swab contained Petitioner’s own
DNA material. Thus, had the defense expert found it necessary to
-28-
conduct
independent
testing,
he
easily
could
have
obtained
additional DNA material from Petitioner. Furthermore, Petitioner
has offered no reason to conclude that independent testing on the
duplicate swab would have yielded different results or otherwise
would have been favorable to the defense.
c.
Failure
to
Call
Identification
Expert
in
Eyewitness
Petitioner next argues that trial counsel was ineffective for
failing to call an expert in eyewitness identification testimony to
undermine the validity of Durden’s identification. Petitioner notes
that
trial
counsel
argued
that
trauma
can
cause
result
in
misidentification. Therefore, he concludes, trial counsel should
have presented an expert witness to flesh out that theory for the
jury. The Court finds that Petitioner has failed to demonstrate a
reasonable probability that calling such expert would have affected
the outcome, in light of the other substantial and convincing
evidence
identifying
him
as
the
gunman
who
shot
Durden.
In
particular, Petitioner’s accomplice, Singleton, testified about how
he enlisted Petitioner to help him rob Durden of marijuana and
money. Singleton explained that during the crime, Petitioner kept
a gun trained on Durden while Singleton went to her bedroom and
stole items of her property. Singleton also testified that the
shirt and cap worn by Petitioner during the crime, and the binder
Petitioner used as a prop, ended up in the backyard of one of
Durden’s
nearby
neighbors.
Testing
-29-
performed
on
these
items
revealed traces of Petitioner’s blood and Durden’s saliva on the
shirt and Petitioner’s blood on the binder. Petitioner’s claim that
the verdict would have been altered favorably by expert witness
testimony on the effect of trauma on witness identification is
purely speculative.
d.
Failure to Present Alibi Defense
In his proffer to the trial court regarding two potential
alibi
witnesses
and
a
corroboration
witness,
defense
counsel
explained that the first alibi witness, Petitioner’s sister, would
testify that she was
present with him at around 11:00 p.m., 11:30 p.m. on
August 17[, 2006,] and that she had conversations with
him in the basement and that the defendant indicated to
her that he was having trouble with a person by the name
of Kevin Rowe, that he had had a fight during the day, a
dispute with Kevin Rowe, and Mr. Robinson apparently was
going to corroborate that account. The alibi witness
would testify that she had talked Mr. Lewis out of doing
anything rash and that he had decided to go to his
residence and watch movies, where they remained
throughout the evening, early evening hours of August 18
until the next morning at the time of the alleged crime.
Trial Transcript (“Tr.”) 680 (ECF #31-6). Defense counsel then
noted
that
“Robinson
would
be
a
corroboration
witness”
for
Petitioner’s sister, since “[h]e observed the fight or altercation
between Mr. Lewis and Mr. Rowe that day” and “can testify to his
observations of what occurred out on Dewey Avenue between the
person Kevin Rowe and Kevin Lewis.” Tr. 680-81. Finally, the third
witness mentioned by defense counsel was a friend of Petitioner’s
sister named Nancy Tran, who was with Petitioner’s sister at their
-30-
mother’s house and “did go with them to [Petitioner’s] residence
around 11:30, approximately, on August 17, and remained with them
at his residence throughout the night. . . .” Tr. 681.
The trial judge questioned the wisdom of presenting testimony
to the jury that Petitioner, “at or about the
same time as the alleged murder, was racking a shotgun in the
dispute with someone else[.]” Tr. 682. He noted that such testimony
did not seem to be a necessary part of the alibi evidence, and,
“quite frankly, . . . it would seem to be so prejudicial to the
defendant that it might not be a good thing to present.” Id. The
trial judge also questioned whether or not the proposed alibi
testimony was relevant to the time-frame at issue. After a recess
to consider the arguments, the trial judge ruled that the proposed
testimony
“would
be
outside
of
traditional
alibi
testimony
regarding a place and time and location,” which he “would find not
relevant,” and “so [he] would deny any request to present that to
the jury in the context of alibi testimony.” Tr. 683-84.
Defense counsel then stated that, after discussing the matter
of alibi testimony with Petitioner and his family members, they
decided not to proceed with that defense “given the prejudicial
impact to the jury of certain testimony of what was [Petitioner]
doing.” Tr. 684. The trial judge asked defense counsel if he had
discussed with Petitioner the possibility that he might
not allow
some of those matters to be presented, and if they had determined
-31-
not to present an alibi defense. Defense counsel confirmed that the
judge’s understanding was correct. The trial judge then addressed
Petitioner directly, asking if that was correct, and Petitioner
answered affirmatively. Tr. 684. Petitioner also answered yes when
the judge asked him if he had discussed the issue with his attorney
and his family. Tr. 685.
After reviewing the record, the Court finds that Petitioner’s
claim that trial counsel was ineffective in failing to present
alibi testimony is meritless. First, as detailed above, trial
counsel
did
seek
to
present
two
alibi
witnesses
and
one
corroborating witness, but the trial judge declined that request on
the basis that their testimony concerned an irrelevant time-period.
Second, even assuming that the trial judge had permitted the
proposed testimony to come in within the context of an alibi
defense, counsel had a legitimate strategic reason for declining to
do offer it—namely, the potential for significant prejudice to
Petitioner
if
the
jury
heard
that
he
routinely
dealt
with
agreements by employing a deadly weapon. Petitioner, moreover, was
aware of counsel’s strategic reason, and he stated his agreement
with that decision on the record.
e.
Failure to Introduce Witness’s Recantation
Petitioner faults trial counsel for failing to introduce the
recantation statement of Robertson, his paramour, into evidence. At
trial, on cross-examination, Robertson testified that on October 7,
-32-
2006, she told the police that Buggs, the murder victim, had pushed
Petitioner and started to punch him. She testified that she had
lied to the police because she wanted to make it seem as though
Petitioner shot Buggs in self-defense. Tr. 489-90 (ECF #36-1).
Robertson claimed that she also lied when a police officer came to
her apartment asking questions about the shooting; she falsely
related that she had been inside her apartment and so did not hear
any
gunshots.
Tr.
490-91.
Robertson
also
admitted
on
cross-examination that she had prepared a letter retracting an
earlier statement that she had provided to the police. She had sent
the retraction to the District Attorney’s Office, the trial judge
and trial counsel, explaining that she felt pressured into making
the written statement to the police and that the contents of that
statement
were
false.
She
stated
that
it
was
not
true
that
Petitioner shot Buggs. Tr. 494-95. Robertson testified that the
retraction was a lie and that she had hoped her retraction would
lead to the charges against Petitioner being dropped. Tr. 495.
Robertson
testified
that
Petitioner’s
mother,
Phyllis
Heard
(“Heard”), prompted her to write the recantation letter, which was
prepared by Heard’s friend and was on Heard’s computer. When
Robertson arrived at Heard’s house, she just needed to fill in
certain portions of the recantation letter. Heard then brought
Robertson to a bank to get the letter notarized. Tr. 501-03. On
re-cross examination, trial counsel attempted to admit the document
-33-
into evidence, but the trial court sustained the prosecutor’s
objection to its admission. Tr. 506.
This claim is factually baseless because, as detailed above,
trial counsel did attempt to introduce the recantation letter into
evidence. However, the trial judge sustained the prosecution’s
objection to it. It is legally baseless because even assuming that
trial counsel had not attempted to introduce the letter itself,
trial counsel effectively placed the substance of it before the
jury during Robertson’s cross-examination. Therefore, the Court
cannot find that Petitioner was prejudiced.
IV.
Conclusion
For the foregoing reasons, the amended petition for a writ of
habeas corpus is denied. The Court declines to issue a certificate
of
appealability
because
Petitioner
has
failed
to
make
a
substantial showing of the denial of a constitutional right. See
28 U.S.C. § 2253(c)(2).
SO ORDERED.
S/Michael A. Telesca
_______________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
August 10, 2018
Rochester, New York
-34-
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