Griggs v. Lempke

Filing 8

DECISION AND ORDER denying petitioners request for writ of habeas corpus and the petition (doc. 1) is dismissed. (Clerk to close case.) (Copy of Decision and Order sent by first class mail to Petitioner.) Signed by Hon. Michael A. Telesca on 6/1/2017. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

PERRY GRIGGS, 11B2588,
Petitioner,

No. 1:14-CV-01004 (MAT)
DECISION AND ORDER

-vsJOHN LEMPKE,
Respondent.

I.

Introduction
Perry Griggs (“petitioner”), proceeding pro se, petitions this

Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner is incarcerated pursuant to a judgment entered June 9,
2011, in New York State Supreme Court, Erie County (Wolfgang, J.),
following a jury trial in which he was convicted of criminal
possession of a weapon in the second degree (N.Y. Penal Law
§ 265.03(3)). Petitioner, who was sentenced as a second felony
offender, is currently serving a prison sentence of 15 years
followed by five years post-release supervision.
II.

Procedural History
Following his conviction, petitioner filed a direct counseled

appeal to the New York State Supreme Court, Appellate Division,
Fourth Department, in which he argued, as relevant here, that
(1) the court erred in allowing evidence of prior bad acts; (2) the
prosecutor committed misconduct on summation; and (3) defense
counsel was ineffective for failing to object to prosecutorial
misconduct.

On July 5, 2013, the Fourth Department unanimously affirmed
petitioner’s judgment of conviction. See People v. Dupleasis, 112
A.D.3d

1318

(4th

Dep’t

2013),

lv.

denied,

21

N.Y.3d

1074.1

Specifically, the Fourth Department found that the trial court
erred in admitting evidence of prior bad acts, but “conclude[d]
that the error [was] harmless” because “[petitioner], by his own
admission,

possessed

the

loaded

firearm,”

and

his

innocent

possession defense was at odds with the trial evidence. Id. at
1063. The

court

summarily

misconduct

and

ineffective

“conclud[ing]

that

[they

rejected

petitioner’s

assistance

did

not]

of

prosecutorial

counsel

warrant[]

arguments,

modification

or

reversal.” Id.
Petitioner

filed

a

post-conviction

motion

to

vacate

his

judgment of conviction pursuant to New York Criminal Procedure Law
(“CPL”)

§

440.10,

arguing

that

the

evidence

was

legally

insufficient and that the prosecutor committed misconduct. The
trial court denied that motion on August 20, 2012, and the Fourth
Department denied leave to appeal. Petitioner filed an application
for a writ of error coram nobis with the Fourth Department on
December 20, 2013, which application was denied on October 2, 2015.
See People v. Griggs, 132 A.D.3d 1327 (2015), lv. denied, 26 N.Y.3d
1088.

1

The Fourth Department modified the conviction by removing the DNA
databank fee, which it found the trial court imposed in error. Dupleasis, 112
A.D.3d at 1320.

2

The instant petition (doc. 1) contends that (1) the trial
court erred in allowing evidence of prior bad acts and (2) trial
counsel was ineffective for failure to object to prosecutorial
misconduct. 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
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.

Prior Bad Acts

Petitioner contends that the trial court erred in allowing
evidence of prior bad acts in the course of the testimony of
petitioner’s girlfriend. As discussed above, the Fourth Department
3

held that the admission of the prior bad acts constituted harmless
error. Griggs, 108 A.D.3d at 1062. “A decision to admit evidence of
a criminal defendant’s uncharged crimes or bad acts under [People
v. Molineux, 168 N.Y. 264 (1901)] constitutes an evidentiary ruling
based on state law.” Jones v. Conway, 2011 WL 1356751, *2 (W.D.N.Y.
Apr.

4,

2011)

(citing

Sierra

v.

Burge,

2007

WL

4218926,

*5

(S.D.N.Y. Nov. 30, 2007)). “As such, state court Molineux rulings
are generally not cognizable on habeas review.” Id. (citing Roldan
v. Artuz, 78 F. Supp. 2d, 260, 276 (S.D.N.Y. 2000)).
Habeas relief is available for Molineux violations “only if
the petitioner demonstrates that the alleged evidentiary error
violated a constitutional right and that the error ‘[was] so
extremely

unfair

that

its

admission

violates

fundamental

conceptions of justice.’” Id. (quoting Dunnigan v. Keane, 137 F.3d
117, 125 (2d Cir. 1998)). Petitioner has made no such showing here.
Accordingly, his claim regarding prior bad acts is dismissed.
B.

Ineffective Assistance of Trial Counsel

Petitioner contends that trial counsel was ineffective for
failing

to

object

to

prosecutorial

misconduct.

Specifically,

petitioner argues that the prosecutor committed misconduct when he
made remarks on summation that: (1) disparaged the role of defense
counsel;

(2)

misstated

evidence;

(3)

misquoted

testimony;

(4) vouched for a police witness; (5) commented on petitioner’s
failure to testify; (6) appealed to the sympathies of the jury; and

4

(7) argued that bad character fit the prosecution theory. Doc. 1 at
29-35. Petitioner contends that the remarks amounted to “flagrant
abuse” and the cumulative effect of all of these errors rendered
his trial fundamentally unfair.
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).
“Remarks 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 Court has reviewed the record, including the summations of
defense counsel and the prosecutor, and concludes that any errors
made by the prosecutor did not deny petitioner a fair trial.
Although the prosecutor’s comments regarding the role of defense
counsel in particular (to the effect that counsel’s role was to put
on “spin” on the evidence or “[d]ivert . . . attention,” see
T. 630-31) were improper, as a whole the comments made by the

5

prosecutor at summation did not have the cumulative effect of
denying the petitioner a fair trial. Moreover, “[p]etitioner ‘has
failed to establish inherent or actual prejudice resulting from any
of the alleged errors which are without question open to this
cumulative-error analysis.’” Mulligan v. Griffin, 2016 WL 6248850,
*8

(W.D.N.Y.

Oct.

26,

2016)

(quoting Collins

v.

Scully,

878

F. Supp. 452, 460 (E.D.N.Y. 1995) (footnote omitted)).
However, regardless whether counsel was deficient for failing
to object to some or all of the prosecutor’s remarks, petitioner
cannot establish that counsel was ineffective because he has not
demonstrated that the outcome would have been different but for
counsel’s errors. See, e.g., King v. Greiner, 453 F. App’x 88, 90
(2d Cir. 2011) (“Without addressing whether counsel was deficient
in

failing

to

[petitioner]
counsel

object

cannot

claim

to

the

prevail

because

he

prosecutor’s

on

has

his
not

.

.

ineffective
demonstrated

.

summation,

assistance
a

of

substantial

likelihood that, but for counsel’s allegedly deficient performance,
the

result

of

Accordingly,

the

proceeding

petitioner’s

would

have

ineffective

been

different.”).

assistance

claim

is

dismissed.
V. Conclusion
For the foregoing reasons, petitioner’s request for writ of
habeas corpus is denied and the petition (doc. 1) is dismissed.
Because petitioner has not “made a substantial showing of the

6

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:

June 1, 2017
Rochester, New York.

7