Griggs v. Lempke
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,
No. 1:14-CV-01004 (MAT)
DECISION AND ORDER
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.
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
On July 5, 2013, the Fourth Department unanimously affirmed
petitioner’s judgment of conviction. See People v. Dupleasis, 112
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
possession defense was at odds with the trial evidence. Id. at
judgment of conviction pursuant to New York Criminal Procedure Law
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
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.
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
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
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
“unreasonable determination of the facts” in light of the evidence
presented. 28 U.S.C. § 2254(d)(2).
IV. Grounds Asserted in the Petition
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
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.
(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
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.
Ineffective Assistance of Trial Counsel
Petitioner contends that trial counsel was ineffective for
petitioner argues that the prosecutor committed misconduct when he
made remarks on summation that: (1) disparaged the role of defense
(4) vouched for a police witness; (5) commented on petitioner’s
failure to testify; (6) appealed to the sympathies of the jury; and
(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
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,
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
likelihood that, but for counsel’s allegedly deficient performance,
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
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
June 1, 2017
Rochester, New York.
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