Blair v. Graham
DECISION AND ORDER denying petitioners request for writ of habeas corpus and the amended petition (Doc. 9) is dismissed. (The Clerk of the Court is directed to close this case.) Signed by Hon. Michael A. Telesca on 5/12/17. (Copy of this Decision and Order sent by first class mail to Petitioner.)(JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
No. 1:13-CV-01046 (MAT)
DECISION AND ORDER
-vsHAROLD H. GRAHAM, Superintendent
of Auburn Correctional Facility,
Leslie Blair (“petitioner”), proceeding pro se, petitions this
Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
February 15, 2008, in Monroe County Court (Egan, J.), after a jury
convicted him of one count of felony murder (N.Y. Penal Law
§ 125.25(3)). Petitioner is currently serving a prison sentence of
25 years to life.
Factual Background and Procedural History
Petitioner was convicted by a jury of shooting and killing
Donovan Allen while petitioner and accomplices robbed Allen of
15 kilograms of cocaine. Petitioner filed a direct counseled appeal
to the New York State Supreme Court, Appellate Division, Fourth
Department, in which he argued that (1) the trial court interfered
with the cross-examination of petitioner and (2) the trial court
should have precluded evidence that petitioner had engaged in prior
robberies with his co-defendants.
(4th Dep’t 2012), lv. denied 19 N.Y.3d 971. Specifically, the court
held that petitioner’s contention regarding the trial court’s
questioning during cross-examination was unpreserved and, in any
petitioner’s claim regarding preclusion was also unpreserved and
meritless, noting that “[t]he evidence of [petitioner]’s guilt in
assisting in the murder [was] overwhelming, and there [was] no
significant probability that defendant otherwise would have been
acquitted.” Id. at 1404.
On February 24, 2014, petitioner filed a pro se application
for a writ of error coram nobis to the Fourth Department, arguing
that appellate counsel was ineffective for various reasons. The
Fourth Department denied the application and the Court of Appeals
denied leave to appeal. See People v. Blair, 117 A.D.3d 1505
(4th Dep’t 2014), lv. denied, 23 N.Y.3d 1059, reconsideration
denied, 24 N.Y.3d 1042.
The instant petition1 (doc. 9) contends that (1) trial counsel
was ineffective; (2) appellate counsel was ineffective; (3) the
trial judge interfered with the cross-examination of petitioner;
(4) the grand jury proceedings were defective for various reasons;
The petition was originally filed October 15, 2013. See doc. 1. An
amended petition (doc. 9) was filed on December 23, 2014.
and (5) the evidence was legally insufficient to support the
verdict; and (6) petitioner is actually innocent. For the reasons
discussed below, the petition is dismissed.
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 law, as determined by
the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or
involved 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
Time-Barred Claims (Ground Five)
Ground five of the amended petition asserts that the verdict
in petitioner’s case was based on legally insufficient evidence and
that petitioner is actually innocent. As respondent argues, these
claims were included for the first time in the amended petition and
do not relate back to the claims of the original petition. See
Mayle v. Felix, 545 U.S. 644, 664 (2005).
Petitioner’s judgment of conviction became final on October
16, 2012, 90 days after the Court of Appeals denied his leave
application on July 18, 2012. See 28 U.S.C. § 2244(d)(2); Carey v.
limitations expired one year later, on October 16, 2013. See id.
Accordingly, petitioner’s claims contained in ground five of the
amended petition, which was not filed until December 23, 2014, are
dismissed as time-barred.
Ineffective Assistance of Trial Counsel (Grounds One and
Construing his claims liberally, petitioner contends that
trial counsel was ineffective for (1) failing to argue that the
People’s proof was insufficient because petitioner was not charged
(2) failing to argue that petitioner was a non-culpable participant
in the crime; (3) failing to object to jury instructions regarding
accomplice liability; (4) failing to use unidentified impeachment
evidence; and (5) failing to ensure that pretrial motions were
unexhausted because they were not raised on direct appeal or in a
collateral motion pursuant to New York Criminal Procedure Law
(“CPL”) § 440.10. The claims are deemed exhausted but procedurally
barred. See Quiles v. Chappius, 2014 WL 4652742, *15 (S.D.N.Y.
Sept. 18, 2014), aff’d, 648 F. App’x 83 (2d Cir. 2016) (noting that
“record-based claims may now be ‘deemed’ exhausted but procedurally
barred because [p]etitioner may not raise them again in state court
and fully exhaust them”) (citing N.Y. Ct. Rules § 500.20(02); CPL
§ 440.10(2)(c); DiGuglielmo v. Smith, 366 F.3d 130, 135 (2d Cir.
2004) (per curiam)). Petitioner has not alleged cause and prejudice
to overcome the procedural bar. Moreover, for purposes of the
miscarriage-of-justice exception, he has made no factual showing
that he is “‘actually innocent’ (meaning factually innocent) of the
crime for which he was convicted.” Carvajal v. Artus, 633 F.3d 95,
108 (2d Cir. 2011) (citing Bousley v. United States, 523 U.S. 614,
622 (1998)). Accordingly, the claims are dismissed.
Ineffective Assistance of Appellate Counsel (Grounds Two
Petitioner contends that appellate counsel was ineffective for
various reasons. These issues were raised in petitioner’s coram
nobis motion, which the Fourth Department denied. The Fourth
Department’s denial of these claims was not contrary to, nor an
unreasonable application of, relevant Supreme Court precedent. To
establish ineffective assistance of counsel at either the trial or
appellate level, 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
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).
The record in this case reveals that appellate counsel filed
a “a thorough, well-researched brief in which [appellate counsel]
persuasively argued” petitioner’s points on appeal. Jamison v.
Bradt, 2011 WL 2728394, *6 (W.D.N.Y. July 12, 2011). Petitioner has
not shown that the failure of appellate counsel to make any
arguments resulted in prejudice to petitioner, especially where the
petitioner’s claims as to ineffective assistance of appellate
counsel lack merit and are therefore dismissed.
Trial Court Remarks During Cross-Examination (Ground
questioning of him during his cross-examination violated his Sixth
Amendment rights. This argument is barred by an adequate and
specifically held that it was unpreserved for review. See, e.g.,
Richardson v. Greene, 497 F.3d 212, 218 (2d Cir. 2007) (recognizing
New York's contemporaneous objection rule as an adequate and
independent state ground barring habeas review); Switzer v. Graham,
Sufficiency of the Indictment (Ground Four)
Petitioner’s challenge to the sufficiency of the indictment is
not cognizable on habeas review. “Habeas corpus is not available to
test the sufficiency of the indictment.” United States ex rel.
Mintzer v. Dros, 403 F.2d 42, 43 (2d Cir. 1967); see also Marcus v.
petitioner’s claim, that he had a constitutional right to be tried
for robbery based on a grand jury indictment free of defect, does
not provide a basis for habeas review because the claim does not
present a federal question, as required by 28 U.S.C. 2254(a).”).
Likewise, claims based on alleged defects in grand jury proceedings
are not cognizable in a federal habeas petition unless they present
an independent federal constitutional claim, which petitioner’s
claim does not. See Lopez v. Riley, 865 F.2d 30, 32–33 (2d Cir.
1989) (“If federal grand jury rights are not cognizable on direct
appeal where rendered harmless by a petit jury, similar claims
concerning a state grand jury proceeding are a fortiori foreclosed
in a collateral attack brought in a federal court.”).
For the foregoing reasons, petitioner’s request for writ of
habeas corpus is denied and the amended petition (Doc. 9) 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
May 12, 2017
Rochester, New York.
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