Parsons v. Artus
Filing
48
DECISION AND ORDER re 23 Petition for Writ of Habeas Corpus filed by Andre Parsons, Sr.. The request for a writ of habeas corpus is denied, and the Amended Petition (ECF No. 23) is dismissed. Because Petitioner has failed to make a substantial s howing of the denial of a constitutional right, see 28 U.S.C. § 2253(c)(2), the Court declines to issue a certificate of appealability. Leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962). Further requests to proceed on appeal in forma pauperis should be directed on motion to the United States Court of Appeals for the Second Circuit in accordance with Rule 24 of the Federal Rules of Appellate Procedure. The Clerk of Court is directed to close this case. Signed by Hon. Charles J. Siragusa on 5/21/20. CLERK OF THE COURT IS DIRECTED TO MAIL A COPY OF THIS NEF AND ORDER TO PRO SE PETITIONER AT ELMIRA(KAP)-CLERK TO FOLLOW UP-
Case 6:06-cv-06462-CJS Document 48 Filed 05/21/20 Page 1 of 93
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ANDRE PARSONS, Sr.,
06-CV-06462-CJS
DECISION AND ORDER
Petitioner,
-vsDALE ARTUS,
Respondent.
INTRODUCTION
Andre Parsons, Sr. (“Parsons” or “Petitioner”), proceeding pro se, seeks a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his
detention in Respondent’s custody. Parsons is presently incarcerated pursuant to a
judgment entered against him on May 8, 2002, in New York State, Monroe County Court
(Geraci, J.), following a jury verdict convicting him of intentional murder and related
charges. For the reasons discussed herein, the request for a writ of a habeas corpus is
denied.
BACKGROUND
I.
Petitioner’s Trial
Parsons was indicted by a Monroe County grand jury on four counts related to the
on August 13, 2001, shooting death of David Wright (“Wright”), a/k/a, “Devine”: seconddegree (intentional) murder (N.Y. Penal Law § 125.25(1)); second-degree (depraved
indifference) murder (id. § 125.25(2)); second-degree criminal possession of a weapon
(id. § 265.03(2)); and third-degree criminal possession of a weapon (id. § 265.02(4)). His
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jury trial commenced on April 1, 2002, in Monroe County Court before Judge Geraci (“trial
court”) and a jury.
A. The People’s Case
1. Eyewitness Lamar Hall
Lamar Hall (“Hall”) testified that he was 15 years old in August of 2001 and lived
at 26 Fulton Avenue in Rochester. He had been friends with Wright for two to three years.
Tr.342–44, 374. 1 Hall acknowledged that he had been selling cocaine for two months on
Fulton Avenue with Wright; both of them worked for a man named “L-Bug.” Tr.371–72,
374–77, 399–401.
On August 13, 2001, at around 11:00 p.m., Hall, Wright, and a younger boy named
Steven were talking together on the porch of a house at 126 Fulton Avenue. T.346–47,
408. Hall saw Parsons, a/k/a, “Dre,” across the street at 125 Fulton Avenue. Hall knew
Parsons from seeing him around the neighborhood a number of times in the past two
months. Tr.344–45, 347, 401–04. At some point, Wright walked across the street to 125
Fulton and engaged in a heated and lengthy argument with Parsons. Tr.347, 351, 409–
10, 416–17. Hall testified that Wright and Parsons were “in each other’s faces” but not
touching; Parsons “kept saying, ‘Go home to your mama, go home to your mama.’”
Tr.348–49.
Hall walked over and told Wright, “Don’t fight. Don’t fight,” when “all of a sudden”
Parsons reached behind his back, pulled out a black semi-automatic handgun and said,
“Don't step any closer.” Tr.350–51. Hall related that Parsons “cocked” the gun and pointed
it at Wright’s chest, to which Wright responded, “Yeah, put your gun down. Fight head
1
Citations to “Tr.” refer to pages in the trial transcript, which is contained in two volumes of exhibits
filed by Respondent, ECF Nos. 44-3 & 44-4.
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up,” meaning that Wright wanted Parsons to fight with his fists. Tr.350–52, 415, 430–33,
438–39. Hall said he kept pleading with Wright to retreat; finally, Wright walked back
across the street with Hall to the nearby intersection of Fulton Avenue and Clarence Park.
Tr.351–53, 415, 418–19, 439.
At that point, Hall testified, Parsons jumped off the porch and said, “Say something
else about my girl. Say something else about my girl.” Tr.353–54, 416-17, 419–21. Hall
indicated that Wright turned around and faced Parsons, who fired two shots at Wright.
Tr.354, 421. Wright “charged at” Parsons, and they started “grabbing each other.” Tr.354,
422–27. Hall testified that Parsons pulled away from Wright, started “swinging the gun,”
and fired more shots at Wright, who fell to the ground. Tr.354, 427, 429–30.
Hall testified that while Wright was lying in the middle of the road, Parsons “got
over” him and fired two more shots. Tr.354-56, 365, 430. Hall stated that one of the bullets
hit the ground; he “guessed” that the other bullet “must have hit” Wright, who was
“screaming.” Tr.356–57. Hall indicated that Parsons “emptied the clip,” and the gun
“clicked” when he ran out of bullets. Tr.357, 430, 433. According to Hall, Parsons fired
about seven shots at Wright. Tr.362.
Hall testified that Parsons ran through the backyard at 124 Fulton, heading towards
Lake Avenue. Tr.357, 433.
Hall went over to check on Wright and observed four shells on the ground by
Wright’s body. Tr.357, 362. He then ran to 126 Fulton where Latacha Harris (“Latacha”),
Wright’s girlfriend, lived. He asked her to call 911 and went upstairs and got Wright a
pillow and a towel. Tr.357–58. Hall stated that the police arrived about five to seven
minutes later, and he told them everything he knew. Tr.358, 434.
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2. Eyewitness Latacha Harris
Latacha testified that she was 25 years-old, lived in the upstairs apartment at 126
Fulton Avenue, and had known Wright as just a friend for about two and a half months.
Tr. 453-55, 466, 490, 499. Latacha testified she also knew Parsons, who was known as
“Dre” or “Prince,” from seeing him numerous times on Fulton Avenue. Tr.454–55, 479.
Around 11:00 p.m. on August 13, 2001, Latacha related that she was standing by
the open window of her upstairs apartment with her sister, Deidre. She admitted
consuming about 40 ounces of beer and 12 ounces of Hennessy liquor that evening; she
was not “intoxicated” but was experiencing “tipsiness.” Tr.455, 479, 483–84, 488–89.
Latacha testified she looked across the street to 125 Fulton Avenue and saw Parsons
and Wright arguing but could not hear what they were saying. Tr.455–56, 468–69, 484.
Latacha said that Parsons was on the porch, Wright was on the sidewalk, and Hall was
standing near Wright. Tr.456, 484.
Latacha recounted that at some point, “Devine [i.e., Wright] was walking away
[from Parsons], and as he was walking away, two shots was [sic] fired . . . [b]y Dre [i.e.,
Parsons].” Tr.457–58, 492–93. Latacha testified that Parsons left the porch and “went
after” Wright, who was in the middle of the street; Wright turned around said something
as Parsons was walking towards him. Tr.458–59. Latacha related that Parsons grabbed
Wright by his white T-shirt and “opened fire on him” with a black-handled handgun. Tr.459.
Latacha testified that Wright fell to the ground at the intersection of Clarence Park and
Fulton Avenue. Parsons stood over Wright and continued to fire at him but she could not
recall how many times. Tr.459–60, 498. After the shooting, Latacha called 911 on her cell
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phone. Tr.462, 494–95. She then saw Parsons run through the backyard of 124 Fulton.
Tr.462, 495–97.
Latacha testified that she got a pillow and a towel and ran out to assist Wright,
propping his head on the pillow and stuffing the wound the towel. Tr.463–64, 494–95.
Latacha related that Hall was standing on her porch, crying, when she came downstairs.
Tr.464, 498.
On cross-examination, Latacha admitted that she had signed a police statement
on August 17, 2001, but denied reading it before signing it, and denied telling the police
that she had been sitting on her porch with her sister at the time of the shooting. Rather,
she instead claimed that she had told the police that she saw the shooting from the
window of her second-floor apartment and that she first noticed this error when she read
the police statement while meeting with the prosecutor just before giving her trial
testimony. Tr.469–73, 500. Latacha also testified that she recalled appearing before the
grand jury, but she did not recall that her grand jury testimony was sworn, and she did not
recall testifying that she was on the porch with her sister at the time of the shooting.
Tr.473–77, 502. 2
Latacha also admitted that she had been arrested the previous Friday on a material
witness order but had been released after she promised to appear at trial and testify.
Tr.465–66. On redirect examination, the prosecutor asked her why she did not testify
without a material witness order. Tr.500. She replied, “I was being threatened and–I was
2
On the defense case-in-chief, a stipulation was read to the jury stating that Latacha had testified
under oath in the grand jury as follows: “Q. At approximately 11:00 p.m., where were you if you recall? A. I
was on my front porch. Q. And who, if anyone else, was in the area around you? A. My sister was on the
front porch with me. Devine and the twin [i.e., Hall] was on the sidewalk.” Tr.749.
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being threatened if I come and testify today that they would kill my kids and me. So, I am
afraid to testify.” Tr.500–01.
3. Eyewitness Anthony Beans
Anthony Beans (“Beans”), a/k/a, “Alabama,” testified that he was 38 years-old and
lived in an upstairs apartment at 124 Fulton Avenue at the time of the shooting. Tr.505–
06, 544–46. Beans testified about his criminal history which included selling cocaine, and
he acknowledged his addiction to crack cocaine. Tr.508, 527–47. At the time of trial, he
was in jail for a probation violation and was awaiting sentencing on a petit larceny
conviction; however, he testified, he did not have any deal with the prosecution in
exchange for his testimony against Parsons. Tr.525–26, 539–42, 546–48.
Beans admitted having bought cocaine from Wright, who hung out in front of 126
Fulton, where Latacha and Deidre Harris lived. Tr.545–46, 548–50. He characterized
Wright as “like a little brother” to him. Tr.506, 549–50. Beans testified that he knew
Parsons and saw him frequently, though they “never really met.” Tr.507–08, 557–58.
A little after 11:00 p.m. on August 13, 2001, Beans testified, he was standing in his
driveway. He had drunk two or three 12-ounce beers but was not intoxicated. Tr.508,
552–57. Beans recounted watching Parsons and Wright “arguing” on the front porch of
125 Fulton. Tr.509, 511, 556, 558. Beans related that Hall also was in the vicinity. Tr.511,
550, 558–59.
Beans testified that he walked across the street and “told them to stop playing, you
know, before it get out of hand, and they kept on, you know, and then it got real serious”
when Parsons told Wright, “Don’t talk about my family.” Tr.509, 511, 559–65. Beans
testified that “Dre pulled out a handgun [and] Wright throwed [sic] his hands up” and
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walked away. Tr.511–12, 559, 561, 563. Then, Beans related, Parsons “[r]un behind
[Wright] and fired his pistol a couple times” while “pointing it at” Wright, who was about 6
to 8 feet away. Tr.512–13. Beans indicated that Wright “started running” but fell “in the
middle of the road as he was hit.” Tr.512–13, 561–63. Beans “went in hollering about,
‘Stop. You going to kill him. Stop before you kill him,’ and the other man, Dre, was
standing over him until the pistol started clicking[,]” meaning, “until the pistol emptied.” Tr.
513, 522, 564.
Beans testified that he saw Parsons flee toward the back of 124 Fulton; meanwhile,
he “tried to comfort” Wright, who was “crying out for his life.” Tr.513–14, 565–66. Beans
recounted that the ambulance did not arrive until 10 to 15 minutes later. When the police
arrived, Beans said, told them everything he had seen and pointed out a bullet hole in the
street “half a foot” from where Wright’s body had been. Tr.519–21, 566–67.
On the afternoon of August 14, 2001, just before he learned that Wright was dead,
Beans recalled he was standing in his driveway with his niece and nephew, when Parsons
pulled up in a car with some other men. Tr.523, 568–69. Beans testified that Parsons said
to him he had heard that Beans told the police that he (Parsons) had “shot someone over
here last night.” Tr.523, 569. Beans replied, untruthfully, that he “didn't tell no one nothin’.”
Tr.523, 569–70. Beans testified that he said this because he was “scared,” not for himself,
but for his niece and nephew, since Parsons’ statement “sounded like” a threat. Tr.570–
71. Parsons then instructed Beans to tell people that he “wasn’t in the neighborhood last
night.” Tr.523. Beans indicated that the police did not take his written statement until
August 22, 2001, at which time Beans described the substance of this conversation with
Parsons. Tr.531–32, 567, 571–72.
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4. Eyewitness Crowley Tucker
Crowley Tucker (“Tucker”), a/k/a, “Deek,” testified that at the time of the shooting,
he was living in an apartment at 116 Fulton Avenue and had known Wright, whom he
considered a friend, for about seven months. Tr.582–83, 596–97. Tucker indicated that
he also knew Parsons, a/k/a, “Prince,” and saw him every day. Tr.583. Tucker
acknowledged that he was addicted to crack cocaine, and that he had purchased crack
from both Wright and Parsons. Tr.584, 608–09, 612–13. Tucker admitted to a criminal
history that included criminal trespass and criminal contempt for violating an order of
protection against a girlfriend. Tr.589–95. Tucker also acknowledged that he had in the
past worked as a confidential informant with the Rochester Police Department (“RPD”),
making undercover purchases of drugs. Tr.595–600. He testified that, at the time of the
trial, he was not engaged as a confidential informant.
On August 13, 2001, a little after 11:00 p.m., Tucker recounted that he was in front
of his house at 116 Fulton when he noticed Parsons and Wright arguing. Tr.584-85, 609.
According to Tucker, “words were exchanged” and they “confronted each other” but Hall
and Beans intervened before the fight turned physical. Tr.585–86. Tucker watched as
Wright “went to walk away” but Parsons pulled out a .45 caliber handgun and “fired at
[Wright] twice, missing.” Tr.586. At that point, Tucker fled to the rear of his house. As he
ran, he heard “at least” five more shots. Tr.586–87.
When Tucker returned, he saw Wright lying in the street, holding his abdominal
area. Tr.586–87. Tucker saw Parsons flee through the backyard of 124 Fulton, toward
Lake Avenue. Tr.587. Tucker admitted having smoked crack at around 9:00 a.m. and
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8:30 p.m. that day, but he insisted that his faculties were not impaired at the time of the
shooting. Tr.602–12.
5. Wright’s Identification of Parsons
At about 11:20 p.m. on the night of the shooting, RPD Officers Timothy Pearce
(“Officer Pearce”) and Adam Correia (“Officer Correia”) responded to a 911 call regarding
a shooting on Fulton Avenue. Tr.613–15, 654–46. The two officers testified they arrived
about two minutes later before any other police or emergency personnel. Tr.613–15, 64547, 657. They related that they found Wright, surrounded by four or five people, lying on
his back in the middle of the road in front of 124 Fulton Avenue, near the corner of Fulton
Avenue and Clarence Park, with gunshot wounds to the abdomen and left arm. Tr.615,
617, 619, 647, 652, 656.
Officer Correia recounted that Wright was curled up in a fetal position, “moaning
and groaning,” and appeared to be in “agony.” Officer Correia testified that he asked
Wright for his “pedigree information” and also asked, “Who did this to you,” but Wright
gave “no response,” and “just . . . continued to moan and groan,” “almost . . . yelling.”
Tr.647–48, 658, 662–63, 667. Wright finally identified himself. Tr.649.
About 30 seconds after Officers Correia Pearce arrived, the fire department and
the paramedics arrived and immediately began working on Wright. Tr.649, 657–61.
Officer Correia testified that Wright did not stop moaning and gave a “shout of pain” each
time the ambulance team moved him. Tr.650, 661. Officer Correia related that just as
Wright
“was
being
placed
on
the
gurney,”
which
was
within,
“at
most,” two minutes after the police arrived, he asked Wright, “Who had did [sic] this to
you?” Tr.649–50, 663. Officer Correia testified that Wright responded, “‘Andre Parsons
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shot me.’” Tr.650–51, 663. Officer Correia indicated that he did not take notes of this
exchange. Tr.665.
6. Physical Evidence Recovered at the Crime Scene
At the scene of the shooting, Officer Pearce spoke to Beans who was “reluctant”
but provided information Tr.616. RPD Investigator David Mace (“Investigator Mace”)
interviewed Tucker, whom he described as coherent, responsive, and not intoxicated.
Tr.625–26.
RPD technician Gary Stenclik (“Stenclik”) testified about the recovery of five bullet
casings and several copper bullet jacket fragments and lead fragments. Tr.698–99.
Firearms examiner John Clark (“Clark”) testified that all of the casings and bullet jackets
were fired from the same .45 caliber gun. Tr.719, 723–29.
Stenclik testified that his camera malfunctioned, so the photographs he had taken
that night could not be developed; therefore, there were no photographs of where the
casings were recovered. Tr.703–04. It was unclear from the testimony where exactly the
casings, jacket fragments, and bullet fragments were recovered, though according to
Officer Correia and Stenclik, at least one casing was found about one foot from Wright’s
body. Tr.649, 651–52, 690–92. Investigator Mace, Officers Correia, and Stenclik indicated
that other casings and fragments were found elsewhere on Fulton Avenue towards the
curb near Clarence Park and in an open field nearby. Tr.621–24, 652–53, 690–92.
According to Investigator Mace, Officers Correia, and Stenclik, there appeared to be a
bullet strike in the street within one foot of Wright’s body, consistent with a high caliber
gunshot fired at close range. Tr.624–25, 654–55, 690–92, 709–10.
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7. The Autopsy Results
Dr. Nicholas Forbes, Monroe County Chief Medical Examiner, performed the
autopsy, but Deputy Medical Examiner, Dr. Thomas Smith, testified regarding the autopsy
report because Dr. Forbes was out of the country at the time of trial. Tr.735, 737–38. Dr.
Smith testified that Wright sustained two gunshot wounds; one was a “relatively minor”
“through and through” wound in left elbow region, while the other was a “through and
through” wound to the abdomen which caused Wright’s death. Tr.739–42. Dr. Smith
explained that the bullet that caused the abdominal wound entered Wright’s back just to
the right of the midline of the back near the lowest rib, traveled forward and upward in the
body and a little to the right so that it exited the front of the body somewhat higher than
the entrance wound. Id.
Dr. Smith indicated that no gunshot residue was found on Wright’s skin during the
autopsy, but he explained that a shot from a .45 caliber gun from four feet away would
not necessarily leave residue. Tr.742–46. Dr. Smith stated that Dr. Forbes had not been
provided with the t-shirt worn by Wright, which might have revealed gunshot residue. Id.
B. The Defense Case
The defense called two alibi witnesses, Aubrey Gollogly (“Gollogly”) and Carol
Langen (“Langen”). On August 13, 2001, Gollogly lived with his girlfriend, Langen, at 70
Lake View Park in Rochester, where Gollogly acted as the building superintendent. He
and Langen testified that they knew Parsons and his girlfriend, who lived two doors down
from their apartment. Tr.749–54, 772–74. Gollogly testified that he worked as a school
crossing guard and at a pharmacy; he also admitted to a criminal history that included
cocaine possession and various crimes involving intoxication and violence. Tr.760–70.
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Gollogly testified that at 10:05 p.m. on the night of August 13, 2001, he and Langen
were at home watching television when the lobby buzzer rang. Tr.755–56, 762, 771. Their
apartment was the first door on the left after the lobby. Tr.752–53. Upon hearing the
buzzer, Gollogly testified that Langen went to the lobby and opened the security door.
Gollogly indicated that he heard Langen talking to someone and then saw Parsons
walking past. Tr.755–56, 771–75. Gollogly testified that he said “Hey, Dre,” and Parsons
responded, “What’s up.” Tr.755, 771–72. Gollogly and Langen testified that she came
back inside but left the apartment door open slightly because, among other reasons, it
was hot out. Tr.756, 774.
Gollogly testified that he watched a little bit of television and then went to bed
because he had to get up for work the next morning. Tr.757.
Langen testified that at around midnight, she had the front door of the apartment
open and was sitting in the living room when Parsons “walked back down the hall and left
the building.” Tr.774–75. According to Langen, Gollogly was with her at around midnight
when she saw Parsons leave the apartment building. Tr.776. However, Langen was
unable to identify Parsons in the courtroom. Id.
On cross-examination, Gollogly acknowledged that when the police interviewed
him after Parsons was arrested, he did not tell the officers about Parsons having walked
by his apartment on the night of the shooting. Tr.758-59. Instead, Gollogly told the police
that he was unsure if Parsons was at home that night. Id.
Langen testified on cross-examination that she provided a statement to the police
on August 14, 2001. According to Langen, she did not merely tell the police that she had
seen Parsons at 10:00 p.m., but that she had seen Parsons “after midnight.” Tr.777–78.
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The defense also called paramedic Lashay Harris (“Lashay”) to rebut Officer
Correia’s testimony about Wright’s identification of Parsons. Id. Lashay testified that on
the night of the shooting, she arrived at the scene in an ambulance with other paramedics;
she found fire department personnel already providing medical care to Wright, who was
lying in the middle of the street. Tr.780, 782. With the assistance of several other of the
first responders, Lashay strapped Wright to a backboard, loaded him into the ambulance,
and brought him to the hospital.
Lashay testified Wright complained of “a lot of pain in his abdomen area” but she
never heard him say, “Andre Parsons shot me.” Tr.780–83. Lashay explained that if she
had heard such a statement, she would have been required to inform a police officer and
to document the statement in her paperwork. Tr.783. Lashay acknowledged on crossexamination that “there was police everywhere” on the scene and said “[t]hey may have
been talking to the patient prior to us getting our equipment out” or before the ambulance
arrived; she did not really know. Tr.784–85.
C. The Verdict and Sentence
On April 5, 2002, the jury returned a verdict finding Parsons guilty as charged in
the indictment. Tr.882–85. On May 8, 2002, the trial court imposed an indeterminate
sentence of 25 years to life in prison on the intentional murder conviction along with
concurrent determinate terms of 15 years’ and 7 years’ imprisonment on the seconddegree and third-degree weapon possession counts, respectively. Tr., May 8, 2002, at
16–17 (ECF No. 44-4).
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II.
Direct Appeal
Represented by new counsel, Parsons appealed to the Appellate Division, Fourth
Department, of New York State Supreme Court (“Appellate Division”). In addition to the
brief filed by appellate counsel, SR.130–191, 3 Parsons filed a pro se supplemental
appellate brief, SR.239–87. On December 30, 2004, the Appellate Division unanimously
affirmed the conviction. People v. Parsons, 13 A.D.3d 1099 (4th Dep’t 2004). On February
28, 2005, the New York Court of Appeals (“Court of Appeals”) denied leave to appeal.
People v. Parsons, 4 N.Y.3d 801 (2005). On April 30, 2005, that court denied Parsons’
pro se motion for reconsideration. People v. Parsons, 4 N.Y.3d 855 (2005).
III.
Post-Conviction Proceedings
On October 5, 2005, Parsons filed a pro se coram nobis motion challenging
appellate counsel’s effectiveness, SR.405–42. Relief was summarily denied by the
Appellate Division, and the Court of Appeals denied leave to appeal. SR.459, 468.
On January 20, 2009, Parsons then filed a pro se motion to vacate the judgment
pursuant to New York Criminal Procedure Law (“C.P.L.”) § 440.10 (“440.10 motion”),
citing C.P.L. § 440.10(1)(c) (“[m]aterial evidence adduced at a trial resulting in the
judgment was false and was, prior to the entry of the judgment, known by the prosecutor
or by the court to be false”) and (h) (“judgment was obtained in violation of a right of the
defendant under the constitution of this state or of the United States”). SR.469–82. In
support of the 440.10 motion, Parsons submitted two affidavits signed by Hall averring
that he perjured himself before the grand jury and at trial, and that the prosecutor knew
of his false testimony. The trial court denied the motion without a hearing, finding Hall’s
3
Citations to “SR.” refer to the Bates-stamped pages of the state court record, filed by Respondent,
ECF No. 44-2.
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recantation to be incredible. SR.502–09. Parsons appealed, and the Appellate Division,
on February 7, 2014, remitted the case to the trial court for an evidentiary hearing. People
v. Parsons, 114 A.D.3d 1154, 1154 (4th Dep’t 2014). The Appellate Division found that
the People had “submitted nothing in opposition to the motion that would require or indeed
allow the [trial] court to deny the motion without a hearing.” Id.
On remand, the matter was handled by Monroe County Court Judge James J.
Piampiano (“440.10 court”), who appointed new counsel for Parsons and held a hearing
on November 7, 2014. The hearing testimony and Hall’s affidavits are discussed in
greater detail in the Court’s discussion, infra, of Parsons’ habeas claims based on Hall’s
alleged perjury. Following the hearing, the 440.10 court denied the motion on February
11, 2015, in a written decision and order, SR.775-88, and in an oral ruling, SR.789–809.
Represented by different counsel, Parsons filed an appellate brief in the Appellate
Division. SR.813–52. On February 1, 2019, the Appellate Division affirmed the denial of
the 440.10 motion. SR.957–58. The Court of Appeals denied leave to appeal on April 15,
2019. SR.963.
IV.
The Federal Habeas Proceeding
On September 13, 2006, Parsons commenced this habeas proceeding by filing a
pro se Petition. ECF No. 1. On June 17, 2009, he sought permission to file an amended
petition and to have his petition held in abeyance while he pursued exhaustion of the
claims raised in his 440.10 motion. ECF No. 17. The Court (Larimer, D.J.) granted the
motion to amend and denied the motion to stay without prejudice on August 19, 2009,
ECF No. 18. Parsons filed his Amended Petition on October 8, 2009. ECF No. 23.
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On February 4, 2011, the Court (Telesca, D.J.) granted the motion to stay pending
Parsons’ completion of exhaustion proceedings with regard to his 440.10 motion. ECF
No. 29. Upon receiving notice from Parsons, Judge Telesca lifted the stay on June 11,
2019, and directed Respondent to answer the Amended Petition. ECF No. 36.
Respondent filed a Memorandum of Law in Opposition, ECF No. 43. Respondent
also filed an Answer, ECF No. 44, and several volumes of exhibits, ECF No. 44-1 (State
Record Table of Contents); ECF No. 44-2 (State Record); ECF No. 44-3 (State Court
Transcript, Volume 1 of 2; and ECF No. 44-4 (State Court Transcript, Volume 2 of 2).
Parsons did not file a reply.
The Amended Petition (“Pet.”), ECF No. 23, raises the following grounds and
subgrounds for relief:
•
•
•
•
•
•
•
•
The prosecutor committed misconduct in the grand jury (Grounds 1(A), (B),
and (C));
The prosecutor failed to disclose exculpatory evidence of Hall’s grand jury
perjury in violation of Brady v. Maryland, 373 U.S. 83 (1963), and suborned
perjury at trial from Hall (Ground 1(D));
Petitioner’s Sixth Amendment right of confrontation was denied based the trial
court’s failure to reopen Hall’s cross-examination after defense counsel’s
receipt of Hall’s Family Court juvenile delinquency records (Ground 1(E));
The prosecutor failed to disclose exculpatory evidence of Hall’s Family Court
juvenile delinquency records (Ground 1(F));
The prosecutor committed misconduct during opening statements by referring
to evidence that was never elicited; referencing Petitioner’s prior drug-selling
activity in violation of the trial court’s pre-trial ruling; eliciting testimony that
Latacha was threatened; made prejudicial statements to prospective juror
McGlynn during voir dire; and made prejudicial comments on summation
(Ground 1(G));
The prosecutor orchestrated a prejudicial news broadcast in order deny
Petitioner a fair trial (Ground 1(H));
An attorney who represented Petitioner prior to trial was ineffective for failing
to protect his right to testify in the grand jury (Ground 2);
Trial counsel was ineffective because he declined to subpoena certain police
officers to testify about a report containing evidence supportive of Petitioner’s
alibi defense; declined to call Petitioner’s grandmother to testify in support of
his alibi; failed to move to exclude prospective juror McGlynn; failed to object
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•
•
•
•
•
•
•
to the admission of photographs of the crime scene and the bloody t-shirt worn
by the victim; failed to investigate the crime scene for “inconsistencies”; failed
to confront Hall with a police report in which Hall said that Petitioner had a
tattoo he allegedly does not have; and made prejudicial comments on
summation (Ground 3);
The prosecutor exercised race-based peremptory strikes in violation of
Batson v. Kentucky, 476 U.S. 79 (1986) (Ground 4);
Petitioner was denied his right to be present at sidebar conferences during
jury selection (Ground 5);
The verdict is not supported by legally sufficient evidence because it is based
on incredible, false, and inconsistent testimony (Ground 6);
The trial court erred in allowing Latacha to testify about death threats she
received (Ground 7);
The trial court erred in admitting Officer Correia’s testimony about the victim’s
excited utterance identifying Petitioner (Ground 8);
An attorney who represented Petitioner prior to trial had a conflict of interest
(Ground 9);
Appellate counsel on direct appeal was ineffective for failing to argue that trial
counsel was ineffective for failing to move to exclude Juror Heath for cause;
that the trial court erred in failing to grant Petitioner’s mistrial motion based on
the victim’s mother’s courtroom outburst; and that the Monroe County Public
Defender’s Office had a conflict of interest due to its prior representation of
the victim’s family member (Ground 10).
Respondent has raised the defenses of non-exhaustion and procedural default
with regard to a number of the grounds and subgrounds and has further argued that, in
any event, the claims are all without merit or are not cognizable on federal habeas review.
Parsons has not responded to Respondent’s exhaustion and procedural default
arguments.
EXHAUSTION OF STATE REMEDIES
I.
General Legal Principles
“Before a federal court may grant habeas relief to a prisoner in state custody, the
prisoner must exhaust his or her state court remedies.” Galdamez v. Keane, 394 F.3d 68,
72 (2d Cir. 2005) (citing O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); 28 U.S.C. §
2254(b)(3), (c)). In general, the exhaustion requirement is satisfied “when a petitioner has:
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(i) presented the federal constitutional claim asserted in the petition to the highest state
court (after preserving it as required by state law in lower courts) and (ii) informed that
court (and lower courts) about both the factual and legal bases for the federal claim.”
Ramirez v. Att’y Gen. of State of N.Y., 280 F.3d 87, 94 (2d Cir. 2001) (citing Picard v.
Connor, 404 U.S. 270, 276–77 (1971); other citation omitted).
“In New York, to invoke ‘one complete round of the State’s established appellate
review process,’” Galdamez, 394 F.3d at 74 (quoting O’Sullivan, 526 U.S. at 845), “a
criminal defendant must first appeal his or her conviction to the Appellate Division, and
then must seek further review of that conviction by applying to the Court of Appeals for a
certificate granting leave to appeal.” Id. (citing N.Y. Crim. Proc. Law § 460.20 (McKinney
1994); other citation omitted). The leave application may be in letter form, id. (citing New
York Court Rules § 500.10(a) (McKinney 1999)), and must be accompanied by appellate
briefs and other documents from the lower courts.
The Supreme Court has explained that “[i]f state courts are to be given the
opportunity to correct alleged violations of prisoners’ federal rights, they must . . . be
alerted to the fact that the prisoners are asserting claims under the United States
Constitution.” Duncan v. Henry, 513 U.S. 364, 365–66 (1995). A habeas petitioner need
not cite “book and verse” of the Constitution, Picard, 404 U.S. at 278, “but adequate notice
to the state courts that they are to decide federal constitutional claims at least includes:
‘(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on
state cases employing constitutional analysis in like fact situations, (c) assertion of the
claim in terms so particular as to call to mind a specific right protected by the Constitution,
and (d) allegation of a pattern of facts that is well within the mainstream of constitutional
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litigation.’” Petrucelli v. Coombe, 735 F.2d 684, 687–88 (2d Cir. 1984) (quoting Daye v.
Att’y Gen. of State of N.Y., 696 F.2d 186, 194 (2d Cir.1982) (en banc)).
II.
Analysis
Respondent argues that a number of Parsons’ claims are unexhausted for a variety
of reasons. Respondent contends that Grounds 1(A), 1(B), and 1(C); the portion of
Ground 1(D) alleging prosecutorial misconduct based on the subornation of perjury rom
Hall; Grounds 1(E), 1(F), 1(G), and 1(H); and Grounds 3, 5, 7, 8, and 9 were not presented
to the New York state courts for one complete round of appellate review on direct appeal
or in appeal of the denial of the 440.10 motion after the evidentiary hearing. See
Respondent’s Memorandum of Law in Opposition (“Resp. Mem.”) (ECF No. 43) at 30–31
(the portion of Ground 1(D) asserting prosecutorial misconduct based on subornation of
perjury); id. at 31–32 (Grounds 1(E) and 1(F)); id. at 43 (Ground 1(H)); id. at 45 (Ground
1(G)); id. at 56–57 (Ground 3); id. at 73–74 (Ground 5); id. at 78–79 (Ground 7); id. at
81–82 (Ground 8); id. at 89-90 (Ground 9). According to Respondent, these claims must
be deemed exhausted but procedurally defaulted because Parsons has no longer has
any state court remedies available to him. See id.
With regard to Ground 1(D), Respondent argues in the alternative that to the extent
the Court finds that Parsons could return to state court to exhaust it, the Court
nevertheless should dismiss it pursuant to 28 U.S.C. § 2254(b)(2) because it is plainly
meritless. See Resp. Mem. at 31.
Respondent also contends that most of the subgrounds of ineffective assistance
of trial counsel raised in support of Ground 3 were not presented to the Appellate Division
at all. See Resp. Mem. at 56, 60–63. Respondent further argues that Grounds 1(A), 1(B),
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1(C), 5, 7, and 8 were not properly exhausted because, in addition to not being referenced
in the application for leave to appeal, they were not raised in federal constitutional terms.
See Resp. Mem. at 73–74; 78–79; 81–82.
A. Grounds 1(E) and 1(F), Parts of Ground 1(G), Ground 1(H), Parts of
Ground 3, and Ground 9 Are Exhausted Because They Were Fairly
Presented on Direct Appeal
In his pro se supplemental appellate brief, Parsons asserted, inter alia, the
following claims: the trial court violated the Sixth Amendment’s Confrontation Clause by
refusing to reopen cross-examination when additional evidence of Hall’s juvenile
delinquency record in Family Court came to light, SR.248–51, Pet., Ground 1(E); the
prosecutor violated his obligations under Brady by withholding Hall’s Family Court
records, SR.252–55, Pet., Ground 1(F); the prosecutor committed misconduct in his
opening statement, SR.256–57, Pet. at 22–23, Ground 1(G); the prosecutor committed
misconduct by referring to Parsons’ prior drug-selling activities, SR.258, Pet. at 23,
Ground 1(G); the prosecutor orchestrated a prejudicial cable news broadcast just prior to
trial in which the victim’s mother accused Parsons of an uncharged homicide, SR.284–
86, Pet., Ground 1(H); trial counsel was ineffective because he failed to object to a bloody
t-shirt that was taken into the jury room, failed to object to admission of surgery
photographs of the victim, failed to object to the admission of crime scene photographs
taken three days after the incident, failed to cross-examine Hall about his prior statement
that Parsons has a tattoo which he does not actually have, and failed to introduce an
allegedly exculpatory police report that would support his alibi defense, SR.260–61, Pet.,
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Ground 3; 4 and pre-trial counsel had a conflict of interest due to his subsequent
representation of a prosecution witness, SR.263–64, Pet., Ground 9.
Respondent asserts that all of these claims are unexhausted because they were
not mentioned in appellate counsel’s application for leave to appeal (“Leave Letter”) to
the Court of Appeals. Respondent contends that the Leave Letter, although expressly
raising the Batson claim and the claim that Parsons was denied the right to testify in the
grand jury, referred to the other claims in the counseled appellate brief and his pro se
supplemental appellate brief only in passing. E.g., Resp. Mem. at 21 (citing SR.316–20).
Therefore, Respondent argues, Parsons did not fairly present them to the Court of
Appeals. Id.
The relevant portions of the Leave Letter are as follows. First, at the beginning of
the letter, appellate counsel “request[ed] that leave be granted to address a novel issue:
what are the obligations of a trial court when a defense attorney argues in opposition to
a defendant’s allegation that he was deprived of his right to testify in the grand jury[.]”
SR.316.
At the close of the letter, appellate counsel stated that “[a]ppellant also
respectfully requests that leave be granted so that this Court may review the issues raised
both in his main brief and in Appellant’s pro se brief.” SR.319 (emphasis supplied). Finally,
appellate counsel stated that “[a]dditionally, pursuant to O’Sullivan v. Boerckel, 516 US
838 (1999), appellant expressly urges that leave to appeal be granted to review the
following issues: Did the prosecutor impermissibly use a peremptory challenge to strike
4
Some arguments supporting the ineffective assistance of trial counsel claim that Parsons raised
in the pro se supplemental appellate brief are not raised in the Amended Petition, namely, that trial counsel
failed to object to the admission of surgery photographs of the victim, failed to cross-examine Hall about
his statement that Parsons fired his gun until it began clicking because an automatic weapon does not click
once the clip is empty, failed to challenge Beans’ testimony that Parsons told him the victim had died, and
failed to challenge the testimony from “witnesses” that the victim was shot in the stomach at close range
which was “conclusively contradicted by the ballistics and medical reports.” SR.260.
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a prospective juror on the basis of that juror’s race in violation of Batson v. Kentucky (476
U.S. 79 [1986].” SR.320 (case citations as in original).
The Second Circuit has issued several cases addressing leave applications and
discussing what type of language is and is not sufficient to “fairly apprise” the Court of
Appeals that review of a claim is sought by the habeas petitioner. Respondent argues
that this case is governed by Jordan v. Lefevre, 206 F.3d 196 (2d Cir. 2000), in which the
petitioner submitted a letter in support of his application for leave to appeal which
highlighted one issue and concluded by asking permission to appeal “‘[f]or all of these
reasons and the reasons set forth in his Appellate Division briefs.’” Id. at 198 (quotation
to record omitted). The Second Circuit held that “[a]rguing a single claim at length and
making only passing reference to possible other claims to be found in the attached briefs
does not fairly apprise the state court of those remaining claims.” Id. at 198–99. The
Second Circuit later observed that the concluding language of the letter in Jordan “might
as easily have been a reference to additional reasons for reviewing the [highlighted] claim
as an incorporation of other, different claims asserted in the lower court.” Galdamez, 394
F.3d at 75 (quoting Ramirez, 280 F.3d at 97).
The Court disagrees and finds that this case is more similar to Morgan v. Bennett,
204 F.3d 360 (2d Cir. 2000). There, the petitioner submitted two letters seeking leave to
appeal. The first was a general letter “request[ing] th[e] Court [of Appeals] to consider and
review all issues outlined in defendant-appellant’s brief and pro se supplemental brief.”
Id. at 369–70 (quotation to record omitted; emphasis in original). The petitioner in Morgan
subsequently supplemented the first letter with a second letter “draw[ing] [the court’s]
attention” to a particular issue in the pro se brief. Id. at 370 (quotation to record omitted).
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The Second Circuit determined that all of the petitioner’s claims had been exhausted, not
just the one on which the petitioner focused in the second letter. Id. at 371. The first letter
was “sufficiently specific to alert the Court of Appeals that [the petitioner] sought review
of all of the issues raised in his [appellate briefs],” and the second letter could not be
construed as “eliminating issues as to which review had been expressly requested” in the
first letter. Id. at 371.
Unlike in Jordan, appellate counsel here did not request review “for all of these
reasons and the reasons set forth in [the] Appellate Division briefs,” but instead
specifically requested “review of the issues raised both in his main brief and in Appellant’s
pro se brief.” SR.319 (emphasis supplied). See Michaels v. Portuando, No. 99-CV3195(JG), 2002 WL 1732813, at *10 (E.D.N.Y. July 23, 2002) (finding that petitioner’s
leave letter was sufficient to fairly present all six of his claims, where appellate counsel
“spell[ed] out . . . three claims” and stated that petitioner “put forth several more issues in
his pro se supplemental brief which is also enclosed herewith for the court’s
consideration”; stating that “although Morgan’s request is more direct than that of
Michaels, . . . the gist of each letter—that the Court consider all of the claims raised in the
briefs—[is] identical”) (citation omitted; emphasis in original); Gajadhar v. Ercole, No. 09CV-1964, 2010 WL 3036498, at *3 (S.D.N.Y. Aug. 4, 2010) (holding that a petitioner
exhausted his claims contained in an appended brief where his leave application focused
on one issue but a footnote in his application explicitly stated that the petitioner sought
leave to appeal the issues raised in the appended briefs and then specifically identified
all of the issues raised in the briefs); Delucia v. West, No. 04 CIV. 3605 (DC), 2005 WL
1981708, at *5 (S.D.N.Y. Aug. 17, 2005) (Chin, D.J.) (appellate counsel “provided detailed
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argument regarding only one of [petitioner’s] claims” and stated in the leave letter’s last
paragraph, “[f]or all of these reasons, as well as those cited in appellant's main brief, he
respectfully requests leave to appeal to the Court of Appeals”; case differed from Jordan
because in the first paragraph, counsel referred to issue discussed as “primary issue
urged for appeal” which “should have alerted the Court of Appeals to other issues, aside
from the primary issue discussed in the letter application, that required consideration”).
Therefore, the Court finds that Grounds 1(E) and 1(F), Parts of Ground 1(G),
Ground 1(H), Parts of Ground 3, and Ground 9 were fairly presented to the state courts
for one complete round of appellate review and are exhausted.
B. Grounds 1(A), 1(B), and 1(C); Part of Ground 1(H), Part of Ground 3, and
Grounds 5, 7, and 8 Were Not Fairly Presented on Direct Appeal
1. Grounds 1(A), 1(B), and 1(C)
Grounds 1(A), 1(B), and 1(C) assert that the prosecutor engaged in misconduct
during the grand jury proceeding by interfering with Parsons’ right to testify (Ground 1(A));
intentionally suborning perjury from a witness (Ground 1(B)); and withholding exculpatory
evidence in the form of a police report that would have proven his alibi (Ground 1(C)).
Respondent argues that Parsons’ pro se supplemental brief, liberally construed, raised
Ground 1(A) but did not do so in federal constitutional terms. See Resp. Mem. at 20–21
(citing SR.279–80). Respondent further contends that Parsons did not raise the factual or
legal bases for Grounds 1(B) or 1(C) in his pro se supplemental appellate brief at all. See
id. (citing SR.279–80).
The Court agrees. Parsons asserted only facts suggesting that the prosecutor
interfered with his right to testify, the claim asserted in Ground 1(A). According to Parsons,
the prosecutor, although allegedly being aware of Parsons’ desire to appear before the
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grand jury, did not argue on Parsons’ behalf when the trial judge allegedly “disregarded
[his] attempt to verify that he requested to appear before the grand jury.” SR.279 (citing
People v. Gini, 72 A.D.2d 752, 753, 421 N.Y.S.2d 269 (2d Dep’t 1979) (discussing error
under N.Y. Crim. Proc. Law § 190.50 (5)(a)). However, Parsons only cited state law cases
that applied state statutory law. See id. Indeed, “there is no federal constitutional right to
a grand jury in a state criminal proceeding. The right to a grand jury is a matter of New
York State law and as such is not reviewable on a petition for habeas corpus.” Mirrer v.
Smyley, 703 F. Supp. 10, 11–12 (S.D.N.Y.1989), aff’d, 876 F.2d 890 (2d Cir. 1989);
footnote omitted). Ground 1(A) therefore was not fairly presented in federal constitutional
terms and is unexhausted..
As to Grounds 1(B) and 1(C), Parsons did not mention any facts in support of his
claims of alleged subornation of perjury and withholding of exculpatory evidence by the
prosecutor in the grand jury proceeding. See SR.279-80. Those claims also are
unexhausted because the Appellate Division was not put on notice of their factual or legal
bases.
2. Ground 5
The Court turns next to Ground 5, which asserts that Parsons was denied his right
to be present at sidebars during jury selection. “A criminal defendant has a federal
constitutional right, under the Confrontation Clause of the Sixth Amendment and the Due
Process Clauses of the Fifth and Fourteenth Amendments, ‘“to be present at all stages
of the trial where his absence might frustrate the fairness of the proceedings.”’” Sanchez
v. Duncan, 282 F.3d 78, 81 (2d Cir. 2002) (quoting Tankleff v. Senkowski, 135 F.3d 235,
246 (2d Cir. 1998) (quoting Faretta v. California, 422 U.S. 806, 819-20 n. 15 (1975)). “It
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is well-established that the impaneling of the jury is one such stage.” Tankleff, 135 F.3d
at 246; accord Sanchez, 282 F.3d at 82 (noting that government argued that denial of
right to be present at jury selection sidebars was based solely on New York statutory
provision and therefore not cognizable but instead affirming denial of habeas relief
because any error was harmless); but see, e.g., James v. Senkowski, No. 97 Civ.
3327(DCL), 1998 WL 217903, at *8 (S.D.N.Y. Apr. 29, 1998) (dismissing as noncognizable petitioner’s claim based on the denial of right to be present at a sidebar during
jury selection; stating that “[t]here is not now and never has been a right guaranteed in
the federal Constitution that a defendant be present at sidebar voir dire.”) (citation
omitted).
Assuming that Parsons’ absence from jury selection sidebars could state a federal
constitutional claim, appellate counsel did not fairly present such a claim on direct appeal.
Appellate counsel relied exclusively on New York state cases and statutory law
embodying a defendant’s “fundamental statutory right to be present at all material stages
of his trial.” SR.165 (quoting People v. Lucious, 269 A.D.2d 766, 767 (4th Dep’t 2000);
N.Y. Crim. Proc. Law § 260.20). The Court of Appeals consistently has held that a
defendant’s right to be present at voir dire sidebars is conferred solely by statute, and not
by the federal or state Constitutions. E.g., People v. Sprowal, 84 N.Y.2d 113, 117 (1994).
Given that New York’s highest court views the right in question to be purely a creature of
statute, the Appellate Division would not have been put on notice that Parsons was raising
a constitutional claim since his brief only cited to state cases interpreting state statutory
law. Accordingly, the Court finds that the jury sidebar claim is unexhausted.
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3. Grounds 7 and 8
Finally, the Court considers Grounds 7 and 8, which are based on allegedly
erroneous evidentiary rulings. Ground 7 alleges that Latacha should not have been
permitted to testify on redirect examination about death threats she received. Ground 8
asserts that the trial court erred in allowing Officer Correia to testify about the victim’s
identification of Parsons pursuant to the excited utterance hearsay exception.
The Supreme Court has explained that “[i]f a habeas petitioner wishes to claim that
an evidentiary ruling at a state court trial denied him the due process of law guaranteed
by the Fourteenth Amendment, he must say so, not only in federal court, but in state
court.” Duncan, 513 U.S. at 366 (citing Anderson v. Harless, 459 U.S. 4 (1982)). With
regard to Ground 7, appellate counsel asserted the factual basis for the claim in the
appellate brief, but solely argued that the trial court misapplied state evidentiary law. See
SR.181–85 (arguing that the trial court erred in finding that defense counsel “opened the
door” and abused its discretion in permitting re-direct examination of Latacha Harris about
the death threats she received because the testimony was so prejudicial). This was
insufficient to place the state courts on notice of a federal constitutional claim based on
the erroneous introduction of evidence. See Duncan, 513 U.S. at 365–66 (finding that
habeas petitioner failed to exhaust his claim that state trial court’s evidentiary ruling
denied him due process of law guaranteed by the Fourteenth Amendment where he
argued in state court that, as a matter of state law, the prejudicial effect of evidence
outweighed its probative value).
Ground 8 was raised by Parsons in his pro se supplemental appellate brief, again
as an error of state evidentiary law. See SR.265-66 (citing state law cases regarding the
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admission of excited utterances as an exception to the hearsay rule). At the end of his
argument on this point, Parsons stated that “such prejudicial testimony and the
contradiction of such [sic] this violated [his] 6th and 14th amendment [rights] to a fair and
impartial trial.” SR.266. However, “[a]lleging lack of a fair trial does not convert every
complaint about evidence or a prosecutor’s summation into a federal due process claim.”
Daye, 696 F.2d at 193 (quoting Kirksey v. Jones, 673 F.2d 58, 60 (2d Cir. 1982)). Parsons’
mention of two amendments relevant to a defendant’s trial rights was inadequate to fairly
present his evidentiary claim in federal constitutional terms. See Petrucelli, 735 F.2d at
688 (appellate counsel’s contention that the introduction of certain evidence “deprived
[the petitioner] of fair trial [sic] and due process of law” did not fairly present claim in
federal constitutional terms) (citations omitted). Accordingly, the Court finds that Grounds
7 and 8 are unexhausted.
4. The Factual Bases for Parts of Ground 1(G) and Ground 3 Were Not
Presented on Direct Appeal
a. Parts of Ground 1(G)
There are certain instances of alleged misconduct alleged in Ground 1(G) that
were not presented for review in state court. In particular, Parsons did not assert that the
prosecutor committed misconduct by questioning Latacha on redirect examination about
her receipt of death threats, Pet. at 23; or that the prosecutor informed prospective juror
McGlynn that the case involved a confidential informant who had recovered the murder
weapon, id. at 24. Because the state courts never had the opportunity to rule on these
claims, they are unexhausted. See Daye, 696 F.2d at 191–92 (“Specifically, [a habeas
petitioner] must have set forth in state court all of the essential factual allegations asserted
in his federal petition; if material factual allegations were omitted, the state court has not
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had a fair opportunity to rule on the claim.”) (citing Picard, 404 U.S. at 276; other citations
omitted).
b. Parts of Ground 3
With respect to Ground 3, the claim of ineffective assistance of trial counsel,
Parsons did not assert certain grounds for counsel’s ineffectiveness in any state court
challenge to his conviction. In particular, Parsons did not mention the following alleged
errors: trial counsel failed to call Parsons’ grandmother as an alibi witness, Pet. at 32–33;
trial counsel failed to subpoena two RPD investigators to testify about their report that
contained information supportive of his alibi defense, id.; trial counsel failed to remove
prospective juror McGlynn for cause, id. at 33; trial counsel failed to investigate
“inconsistencies” at the crime scene, id. at 33–34; and trial counsel made prejudicial
statements during his summation, id. at 36. These subgrounds were not presented in any
fashion on direct appeal, or in any collateral motion, which deprived the state courts of
the opportunity to rule on them. See Daye, 696 F.2d at 191–92 (citation omitted).
Accordingly, they are unexhausted. See id.
5. Grounds 1(A), 1(B), 1(C), Parts of Ground 1(G), Parts of Ground 3,
and Grounds 5, 7, and 8 Must Be Deemed Exhausted and
Procedurally Defaulted
When a petitioner has no available means of exhausting claims in state court, they
will be “deemed exhausted.” Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (citing, inter
alia, Castille v. Peoples, 489 U.S. 346, 351 (1989) (finding that “[t]he requisite exhaustion
may nonetheless exist, of course, if it is clear that respondent’s claims [that were not fairly
presented] are now procedurally barred under [the state’s] law”)).
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Here, New York’s procedural rules bar Parsons from attempting to raise Grounds
1(A), 1(B), and 1(C); parts of Ground 1(G), parts of Ground 3; and Grounds 5, 7, and 8
before the Court of Appeals since he already has used the one direct appeal to which he
is entitled. Zacher v. Graham, No. 6:14-CV-06027(MAT), 2016 WL 368086, at *7
(W.D.N.Y. Feb. 1, 2016) (citing Cunningham v. Conway, 717 F. Supp.2d 339, 365
(W.D.N.Y. 2010) (citing N.Y. R. CT. § 500.20(a)(2), (d); other citations omitted).
Parsons is barred from obtaining collateral review of Grounds 1(A), 1(B), 1(C), 5,
7, and 8 because the issues were previously determined on the merits on direct appeal.
Under the applicable procedural rules, a court deciding a C.P.L. § 440.10 motion to vacate
the judgment would be mandated to deny those claims. Zacher, 2016 WL 368086, at *7
(citing N.Y. CRIM. PROC. LAW § 440.10(2)(a)). With regard to the parts of Ground 1(G)
and record-based errors by trial counsel asserted in Ground 3 that were not presented in
the pro se supplemental brief, a court considering a C.P.L. § 440.10 motion likewise would
be required to deny them because “‘sufficient facts appear on the record of the
proceedings underlying the judgment’ to have permitted Petitioner to raise the claim on
direct appeal.” Cunningham, 717 F. Supp.2d at 365 (citing N.Y. Crim. Proc. Law §
440.10(2)(c) (mandating that court dismiss claim if sufficient facts appeared on the record
to have permitted direct review but defendant unjustifiably failed to raise claim on direct
appeal)). With regard to the errors by trial counsel asserted in Ground 3 that are dehors
the record, 5 they can be deemed exhausted but procedurally defaulted because, if
5
Here the Court is referring to trial counsel’s failure to call Parsons’ grandmother as an alibi witness,
failed to subpoena two RPD investigators to testify about their report that contained information supportive
of his alibi defense, and failed to investigate “inconsistencies” at the crime scene. Even assuming they are
unexhausted and cannot be deemed exhausted and procedurally defaulted, they are plainly meritless. The
failure to investigate “inconsistencies” is too vague to state a colorable claim for habeas relief. And the
claims regarding the failure to call Parsons’ grandmother and the two RPD investigators are without merit
as discussed below in Section VI.A.1 regarding the merits of Parsons exhausted ineffective assistance
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Parsons presented them in a renewed 440.10 motion “would likely find them procedurally
barred” pursuant to [C.P.L. §§] 440.30(1) and 440.10(3)(c).” Rosas v. Artus, No. 05 CIV.
8440 RJS, 2013 WL 499610, at *12 n. 8 (S.D.N.Y. Jan. 29, 2013) (citing Murden v. Artuz,
497 F.3d 178, 192 (2d Cir. 2007) (“When analyzed against the [relevant] factors,
subsection (3)(c) of C.P.L. § 440.10 constitutes an adequate state procedural bar to
federal habeas review.”); Ramirez, 280 F.3d at 94; citation to record omitted)).
Accordingly, Grounds 1(A), 1(B), 1(C), 5, 7, and 8, and parts of Grounds 1(G) and
3 must be “deemed exhausted.” Grey, 933 F.2d at 120-21. However, “the procedural rule
that leads to the constructive exhaustion” of Grounds 1(A), 1(B), 1(C), 5, 7, and 8, and
parts of Grounds 1(G) and 3, “also creates a procedural bar to this Court’s review of the
claim[s].” Zacher, 2016 WL 368086, at *7 (citing Grey, 933 F.2d at 121); see also Irons v.
Ricks, No. 02 CIV. 4806 (RWS), 2003 WL 21203409, at *8 (S.D.N.Y. May 22, 2003)
(because petitioner “no longer has an available avenue to litigate [his] constitutional claim
in state court,” it “should be deemed constructively exhausted and procedurally forfeited”)
(citing Gray v. Netherland, 518 U.S. 152, 161–62 (1996); other citations omitted).
To overcome the procedural default of Grounds 1(A), 1(B), 1(C), 5, 7, and 8, and
parts of Grounds 1(G) and 3, Parsons “must show cause for the default and prejudice, or
demonstrate that failure to consider the claim[s] will result in a miscarriage of justice (i.e.,
the petitioner is actually innocent).” Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001) (citing
claim regarding the failure to introduce the police report that allegedly supported his alibi defense. Thus,
even if they are unexhausted, they can be dismissed under the authority of 28 U.S.C. § 2254(b)(2). See,
e.g., Williams v. Artus, 691 F. Supp.2d 515, 526 (S.D.N.Y. 2010) (“Even if . . . a claim is unexhausted, 28
U.S.C. § 2254(b)(2) provides that ‘[a]n application for a writ of habeas corpus may be denied on the merits,
notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.’ If
the unexhausted claims are ‘plainly meritless,’ the district court can dismiss these claims on the merits.
Rhines v. Weber, 544 U.S. 269, 277, 125 S.CTr. 1528, 161 L.Ed.2d 440 (2005). The petitioner’s claim is
plainly meritless and therefore is denied on the merits.”).
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Coleman v. Thompson, 501 U.S. 722, 748–50 (1991)). Parsons has not attempted to
demonstrate cause and prejudice or that a fundamental miscarriage of justice will occur
if this Court does not review the merits of the procedurally barred claims. Accordingly, the
Court dismisses Grounds 1(A), 1(B), 1(C), 5, 7, and 8, and parts of Grounds 1(G) and 3
on the basis that they are subject to an unexcused procedural default. E.g., Zacher, 2016
WL 368086, at *7.
C. Ground 1(D)’s Prosecutorial Misconduct Claim Was Contained Within the
Brady Claim Presented on Appeal of the 440.10 Motion and Is Exhausted
Ground 1(D) alleges a Brady claim based on the prosecutor’s failure to disclose
that Hall testified falsely the grand jury trial and a claim that the prosecutor committed
misconduct by relying on Hall’s testimony, which he knew to be false, to obtain Parsons’
conviction, thereby denying Parsons his rights to due process and a fair trial. Pet. at 12–
18.
Respondent argues that the aspect of the claim asserting that the prosecutor
knowingly relied on false testimony was not fairly presented on appeal of the post-hearing
denial of the 440.10 motion, since appellate counsel only asserted a Brady claim.
However, in his brief, appellate counsel framed the Brady argument as follows:
“Specifically, material evidence adduced at trial was false, the prosecutor knew it was
false, and thus Mr. Parsons’ conviction was obtained in violation of his due process
rights[.]” SR.836 (citations omitted). Later in his argument, appellate counsel observed
that the “‘grossest kind of Brady violation’ occurs where the prosecutor’s misconduct is
‘willful and designed to conceal the truth about the case from the factfinder[.]’” SR.838
(quotation omitted).
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The Supreme Court has explained that “the Brady rule has its roots in a series of
cases dealing with convictions based on the prosecution’s knowing use of perjured
testimony.” United States v. Bagley, 473 U.S. 667, 680 n. 8 (1985) (citations omitted).
Moreover, the Appellate Division framed Parsons’ claim in essentially the same manner
as it was articulated by appellate counsel in his brief. See SR.957–58 (“Defendant
contends that the trial court erred in denying the motion because he established that, at
the time of the trial, the prosecutor knew that a witness had testified falsely before the
grand jury and at trial and that the prosecutor failed to meet his Brady obligation to provide
defendant with notice of that allegedly false testimony.”). The Appellate Division thus
understood the dual bases for Parsons’ claim based on Hall’s alleged perjury—that the
prosecutor knew of it but failed to disclose it in violation of Brady and then knowingly
allowed Hall to perjure himself at trial. For these reasons, the Court finds that Parsons’
claim alleging that the prosecutor knowingly presented false testimony in order to secure
his conviction was exhausted along with his Brady claim.
STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
codified in 28 U.S.C. § 2254(d), “the standard governing federal habeas review depends
on whether petitioner’s claim has been previously ‘adjudicated on the merits’ by a state
court.” Cotto v. Herbert, 331 F.3d 217, 229–30 (2d Cir. 2003) (quoting 28 U.S.C. §
2254(d); footnote omitted). If the state court “adjudicated [a claim] on the merits,” 28
U.S.C. § 2254(d), the federal court “shall not . . . grant[ ]” habeas relief “unless the
adjudication of the claim—(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
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Supreme Court of the United States; or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d).
“When a federal claim has been presented to a state court and the state court has
denied relief, it may be presumed that the state court adjudicated the claim on the merits
in the absence of any indication or state-law procedural principles to the contrary.”
Harrington v. Richter, 562 U.S. 86, 99 (2011). Significantly, the Supreme Court has held
that Ҥ 2254(d) does not require a state court to give reasons before its decision can be
deemed to have been ‘adjudicated on the merits.’” Id. at 100.
MERITS OF THE AMENDED PETITION’S EXHAUSTED CLAIMS
I.
Ground 1(D): Brady and Prosecutorial Misconduct Claims Based on Hall’s
Allegedly Perjured Grand Jury and Trial Testimony
A. Background Relevant to Ground 1(D)
As noted above, in support of his 440.10 motion, Parsons presented two affidavits
from Hall. See SR.478-82 (“first affidavit”); SR.475–76 (“second affidavit”). In them, Hall
asserted he perjured himself in the grand jury, confessed the perjury to the prosecutor
who threatened him with criminal charges if he did not adhere to his perjurious testimony,
and then perjured himself again at trial.
In the first affidavit (SR.478–82), dated August 7, 2008, Hall averred that, contrary
to his trial testimony, he had not witnessed Wright’s shooting but had arrived on the scene
to find Wright lying injured in the street. Hall further asserted that Wright told him that
someone had tried to rob him and that he did not know who shot him. Afterwards, Hall
spoke to Latacha, who asked Hall who had shot Wright. Hall responded that he did not
know. About a minute later, Hall declared, he and Latacha met up with Tucker, who was
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high on crack. Tucker told them that he had heard a “guy named ‘Prince’” a/k/a “Dre” (i.e.,
Parsons) shot “Devine” over a “beef.” Tucker told them that he planned to name Parsons
as the shooter because he had a “beef” with Parsons as a result of Parsons “put[ting] a
gun in his face” for trying to steal drugs from him. Tucker said that the police “would give
him drugs and money for his assistance in solving the crime.” Hall decided to go along
with Tucker’s story because “wanted justice for [his] friend,” Wright. SR.479. Latacha
agreed as well, because Wright “was her man, and she felt obligated to him even if she
had to lie.” SR.479–80.
The first affidavit further stated that on August 15, 2001, Officer Correia stopped
by Fulton Avenue in the late afternoon and informed Hall, Latacha, and Beans that
Parsons had been arrested and that he needed Hall’s “help to put him away for good.”
SR.480. Hall told him that “a few other people witnessed the crime,” namely, Latacha and
Beans. SR.480–81. Hall “believe[d]” that Latacha and Beans gave him their statements
which “[the] three [of them] went over ahead of time.” SR.481.
Hall claimed in the first affidavit that sometime after the shooting, he went to a
building across from the state courthouse and told his story about the shooting to the
prosecutor and a stenographer. SR.481. Immediately after this testimony, Hall informed
the prosecutor that he had “just told a lie”—that he had not seen the shooting. SR.481.
The prosecutor responded that he “didn’t give a rats ass if [Hall] lied or not.” SR.481. He
informed Hall that he had “two options”—either “stick to his story and be in a good position
with him and his office for future references” “or change [his] story and get charged for
perjury and go to jail for a long time.” SR.481. The prosecutor later “promised” to “make
a deal” with the prosecutor who had placed Hall in juvenile custody to “get [him] released
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immediately after Andre Parsons was convicted.” SR.482. Finally, Hall claimed the reason
for his recantation was that he had “received God in [his] life.” SR.482.
In the second affidavit (SR.475–76), dated September 11, 2008, Hall stated that
he “unequivocally . . . was never a witness at” the grand jury proceedings in Parsons’
case. SR.475. He claimed that the discussion in late August 2001 with the prosecutor and
the “lady” who was “typing everything [he] said” was “never in front of a Grand Jury.”
SR.475. Hall also accused the prosecutor of creating “doctored” grand jury transcripts.
At the evidentiary hearing on November 7, 2014, Hall testified that he did not
witness Wright being shot but came upon Wright lying injured in the street. Hall testified
he knelt down next to Wright and asked Wright what happened. Wright said that
somebody tried to rob him. When Hall asked who it was, Wright said he did not know.
H.25. 6
Hall testified that moments after the shooting, he spoke to Latacha. For the first
time, Hall mentioned that he had also spoken to Beans. Contrary to what Hall stated in
his first affidavit, Latacha told him she had been drinking upstairs and had “seen a person
named Dre [Petitioner] shoot Divine [Wright].” H.27-28. Hall testified that Beans said he
was going to tell the police he saw Parsons shoot Wright and urged Hall to “go along with
the story.” H.28, 30-31.
Shortly after the police arrived, Hall said, an officer brought him into a patrol car,
showed him a picture of Parsons, and told him that “[t]his is the guy that killed your friend.”
H.28–29. The officer then produced a black binder containing the same photograph of
Parsons, but with a circle drawn around it. According to Hall, the officer said, “I think you
6
Citations to “H.” refer to the transcript of the 440.10 hearing which is reproduced at SR.624–745,
docketed as part of the State Court Record (ECF No. 44-2).
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should talk to your friends,” which Hall understood to mean that he should talk to his
friends and “find out what the story is going to be.” H.29–32.
Hall testified that after he got out of the police car, he talked to Latacha, Beans,
and Tucker in front of Latacha’s house. H.32–35. Hall recounted that Tucker suggested
that they all “stick by” the same “story.” H.33–34. Hall testified that Tucker’s stated reason
for identifying Parsons was to receive a favor from the police. H.33–34. Tucker told Hall
that if he did not “go along with the story, the officers could charge” Hall with crimes he
did not commit. H.34. After hearing that Latacha and Beans were going along with Tucker,
Hall decided to do the same, although he told Latacha he did not think it was right. H.34–
36.
Hall testified that some days later, he spoke to the officer who had showed him the
photograph of Parsons. H.37–38. The officer told him that they had Parsons in custody
and that Hall needed to go downtown. Hall did not tell the officer that he had not seen
anything but simply said he was not going to go downtown. H.38. According to Hall, the
officer responded that he did not care what Hall had or had not seen, that “[t]his is what
it’s going to be,” and that Hall had better “get on board with [his] friends.” Id.
Sometime after that, Hall testified, he went to a room in the courthouse with the
prosecutor and a stenographer and stated under oath that Parsons shot Wright. H.38–
43, 45. Hall claimed that after he left the room, he told the prosecutor that “the whole thing
. . . was a lie.” H.43, 49. The prosecutor responded that he did not care and that Hall “just
better keep [his] mouth shut.” H.43–44. According to Hall, the prosecutor implied that if
Hall “stuck to” the story, Hall would receive help if he ever had legal difficulties. H.44, 47.
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Hall also testified that, at the time of Parsons’ trial, he told his Family Court attorney that
his testimony was a lie; however, the attorney did nothing about it. H.48–49.
Hall testified that he never contacted Parsons after the trial, including after he was
sent to state prison on a 20-year sentence for two counts of robbery. H.50, 53-54, 62–63.
Hall claimed that he converted to Islam in prison, that he told an imam that he wanted to
make amends for his false testimony but did not know who to tell, and that the imam said
to let it be in that case. H.50-52. After speaking to an outside minister in 2006 or 2007,
Hall decided to write his two 440.10 affidavits, with the aid of an inmate advisor, recanting
his grand jury and trial testimony. H.52–59.
On cross-examination, Hall acknowledged his grand jury testimony from August of
2001, but claimed that he only looked straight ahead during the proceeding, and thus did
not see the 23-person grand jury. H.60–64. The prosecution called the grand jury court
reporter who testified that the transcript constituted a verbatim record of Hall’s testimony.
H.89–91. Finally, the prosecutor called RPD Investigator Charles Dominic, who testified
that on August 14, 2001, Hall was shown a photo array out of which he identified Parsons
as the shooter. H.12–13.
Following the parties’ submission of post-hearing briefs, SR.746–74, the 440.10
court issued a decision and order dated February 11, 2015, denying the 440.10 motion in
its entirety. SR.775-88; see also Tr., Feb. 11, 2015, at 12–19. Essentially, the only
portions of Hall’s testimony that the 440.10 court found believable were that Hall was 15
years-old at the time of the shooting and that he knew Wright. The remainder of Hall’s
testimony, the 440.10 court found, “lacked inherent believability,” “was inconsistent with
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his Affidavits,” and was “undermined” by his “demeanor at the hearing[.]” SR.777–83,
786, 788.
The 440.10 court specifically declined to credit Hall’s testimony that Wright stated
that he did not know who shot him; that the police pressured Hall to identify Parsons; that
Hall told the prosecutor he lied to the grand jury; that the prosecutor responded to Hall’s
confession by threatening Hall; and that the prosecutor promised to help Hall with legal
problems if he adhered to his story that Parsons shot Wright. SR.777–81. Accordingly,
the 440.10 court concluded, Parsons failed to establish by a preponderance of the
evidence that Hall testified falsely in the grand jury and at trial or that the prosecutor knew
that Hall’s testimony was false. SR.785. The 440.10 court also found that Parsons could
not have been prejudiced by any such false testimony, given the “overwhelming proof”
against him, including Wright’s excited utterance and the testimony of the other three
eyewitnesses (Latacha, Tucker, and Beans). SR.785.
In affirming the denial of the 440.10 motion, the Appellate Division found that
“certain details of [Hall’s hearing] testimony differed significantly from those provided in
his affidavits, including details concerning how and to whom [Hall] admitted providing
false testimony.” 169 A.D.3d at 1426. The Appellate Division concluded that the 440.10
court “was entitled to determine, in view of the [evidence], that [Hall's] testimony was
simply not credible” and that its “credibility determinations are entitled to great weight in
light of its opportunity to see the witnesses, hear the testimony, and observe demeanor.”
Id.
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B. Law Relevant to Ground 1(D)
The Supreme Court held in Brady that “[t]o the extent that [a] prosecutor knows of
material evidence favorable to the defendant in a criminal prosecution, the government
has a due process obligation to disclose that evidence to the defendant.” Leka v.
Portuondo, 257 F.3d 89, 98 (2d Cir. 2001) (quoting United States v. Avellino, 136 F.3d
249, 255 (2d Cir. 1998)). A prosecutor’s due process obligation under Brady “exists
whether or not the defense requests exculpatory evidence.” Lewis v. Connecticut Comm’r
of Corr., 790 F.3d 109, 121 (2d Cir. 2015) (citing United States v. Bagley, 473 U.S. 667,
681-82 (1985); Giglio v. United States, 405 U.S. 150, 154–55 (1972) (applying Brady to
impeachment evidence)).
The Supreme Court has “distinguished three situations involving the discovery,
after trial, of information favorable to the accused that had been known to the prosecution
but unknown to the defense.” Bagley, 473 U.S. at 678 (citing United States v. Agurs, 427
U.S. 97, 103-04 (1976)). At issue here is the situation involving “the prosecutor’s knowing
use of perjured testimony or, equivalently, the prosecutor’s knowing failure to disclose
that testimony used to convict the defendant was false.” Id. (citing Agurs, 427 U.S. at 10304).
“Whether one has obstructed justice by committing perjury is a factual
determination. . . .” United States v. White, 240 F.3d 656, 660 (7th Cir. 2001). “Factual
determinations by state courts are presumed correct absent clear and convincing
evidence to the contrary.” Miller–El v. Cockrell, 537 U.S. 322, 340 (2003) (citing 28
U.S.C. § 2254(e)(1)). A state court’s factual determination regarding a witness’s credibility
must be presumed to be correct by this Court. See 28 U.S.C. § 2254(e)(1); see also Cotto
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v. Herbert, 331 F.3d 217, 233 (2d Cir. 2003) (presumption of correctness as to the factual
findings by the trial judge under 28 U.S.C. § 2254(e)(1) is “particularly important when
reviewing the trial court’s assessment of witness credibility”); Shabazz v. Artuz, 336 F.3d
154, 163 (2d Cir. 2003) (“Credibility determinations are properly within the province of the
state court that presided over the trial and evidentiary hearing.”).
C. Analysis of Ground 1(D)
The allegedly undisclosed Brady material is Hall’s purported statement to the
prosecutor, after the grand jury proceeding, that Hall had committed perjury. However,
according to Parsons, the prosecutor ignored Hall’s perjury confession and allowed him
to testify at trial, where he gave testimony that repeated his allegedly false statements
before the grand jury. Thus, if Parsons cannot establish the existence of perjury by Hall,
he cannot establish the existence of evidence favorable to the defense, a necessary
element of a Brady claim. Nor can he establish that the prosecutor suppressed the alleged
evidence, also a necessary element of a Brady claim.
Here, the 440.10 court had ample opportunity to observe Hall’s manner of
answering questions and his demeanor during the hearing. The Supreme Court has made
very clear that Section 2254(e)(1) “gives federal habeas courts no license to redetermine
credibility of witnesses whose demeanor has been observed by the state trial court, but
not by them.” Marshall v. Lonberger, 459 U.S. 422, 434 (1983) (discussing former 28
U.S.C. § 2254(d)). In addition, the 440.10 court as well as the Appellate Division cited a
number of inconsistencies in Hall’s hearing testimony and affidavits. “One of the most
common methods of attack[ing]” “the credibility of a witness . . . is by proof that the witness
previously made a statement that is inconsistent with [his] current testimony.” § 6094
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Bases For Attacking Credibility, 27 Fed. Prac. & Proc. Evid. § 6094 (2d ed.) (footnote and
citations omitted). Although the state courts did not identify the inconsistencies with
specificity, a federal court “must determine what arguments or theories . . . could have
supported the state court’s decision. . . .” Harrington, 562 U.S. at 102. Upon reviewing
the record, the Court observes that the inconsistencies could have included the following:
Hall’s affidavits claimed that he never testified in the grand jury, SR.475–76, yet at the
hearing Hall acknowledged his grand jury testimony, H.6064, and the grand jury court
reporter testified to the accuracy of the transcript indicating that Hall was sworn and gave
testimony, H.89-91. Hall’s affidavit claimed that he, Latacha, and Tucker met up right after
the shooting to create their false story, SR.896, and did not talk to Beans until after Officer
Correia came by on August 15, 2001, to tell them that Parsons had been arrested,
SR.897. At the hearing, however, Hall testified that he, Latacha, Beans met up right after
the shooting, and that he did not talk to Tucker until after he sat in the police car with the
officer who allegedly pressured him to identify Parsons from a photo, H.28, 30–35. Hall’s
affidavit stated that Latacha told him that she had laid down on her floor once she heard
gun shots and had not seen the shooting, SR.895, but at the hearing Hall testified that
Latacha told him immediately after the shooting that she saw “Dre shoot Divine.” H.27–
28. These inconsistencies bear upon important aspects of Hall’s version of events and
cannot be dismissed as insignificant.
Parsons has not attempted to harmonize these inconsistencies in Hall’s hearing
testimony and affidavits. Nor has he come forward with any evidence, much less clear
and convincing proof, to overcome the presumption of correctness accorded to the state
court’s factual determination that Hall’s recantation and claim of perjury were unworthy of
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belief. Instead, he merely repeats arguments made to, and rejected by, the 440.10 court
and Appellate Division. Parsons thus has “not carried [his] heavy burden to overcome
th[e] presumption [in § 2254(e)(1)].” Carter v. Ercole, 338 F. App’x 43, 45 (2d Cir. 2009)
(unpublished opn.); Buari v. Kirkpatrick, 753 F. Supp.2d 282, 293 (S.D.N.Y. 2010) (finding
that petitioner who “essentially rehashe[d] the same factual arguments he made before
the Appellate Division, ha[d] not met his burden of rebutting the State Courts’ findings by
‘clear and convincing evidence’”) (quoting 28 U.S.C. § 2254(e)(1)).
Based on an unattributed quotation in his Petition, Parsons apparently relies on
Ortega v. Duncan, 333 F.3d 102, 107 (2d Cir. 2003), a habeas case that, significantly, did
not involve the application of 28 U.S.C. 2254(e)(1). See Pet. at 17. There, the state court
had “explicitly refused to make any factual finding with respect to [the recanting witness]’s
credibility, making the usual question of the degree of deference to accord such a finding
inapplicable[.]” Id. at 107. The district court, on habeas review, had conducted an
evidentiary hearing at which the recanting witness testified and had concluded that the
witness had lacked any credibility.
Given the procedural status in Ortega, the Second Circuit’s “task [was] thus to
determine whether the district court clearly erred when it found that [the witness]’s
recantation was false and his testimony at trial was true.” Id. at 106. According to the
Circuit, “a determination that [the witness]’s recantation was not credible is insufficient to
establish that [his] trial testimony was not perjured. While a recantation must be ‘looked
upon with the utmost suspicion,’ Sanders v. Sullivan, 863 F.2d 218, 225 (2d Cir.1988), . .
. its lack of veracity cannot, in and of itself, establish whether testimony given at trial was
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in fact truthful.” Ortega, 333 F.3d at 107 (internal quotation and citations omitted in
original). This is the passage on which Parsons relies in his Petition.
The Court finds that Ortega is clearly distinguishable from this case because,
unlike in Ortega, the 440.10 Court explicitly made an credibility finding with regard to Hall,
stating in relevant part that “[u]pon considering the testimony of all the hearing witnesses,
[it] hereby determines that the evidence presented did not establish that the Defendant’s
[sic] testimony before the Grand Jury and [at] Trial was perjurious.” SR.874. Moreover,
the 440.10 Court “[did] not credit” Hall’s testimony that, immediately after being
questioned by the prosecutor in front of the stenographer in August 2001, he told the
prosecutor that he had “just lied” but the prosecutor had said he “did not care” and that
Hall had “just better keep [his] mouth shut and go on about it.” SR.869 (emphasis and
alteration in original; quotation marks omitted). Parsons’ reliance on Ortega is therefore
misplaced. See Buari, 753 F. Supp.2d at 293 (finding petitioner’s reliance on Ortega to
be “unavailing, because in that case, the state court made no credibility finding, and the
Second Circuit held that the district court erred in focusing on the credibility of a witness’s
recantation rather than on whether the witness testified truthfully at trial” but “[n]o such
issues are presented here, since the State Courts explicitly found that Robinson’s and
Effort’s trial testimony was truthful”).
Given the 440.10 court’s unrebutted factual findings that Hall’s grand jury and trial
testimony were not false, and that Hall did not inform the prosecutor that he had testified
falsely, Parsons cannot establish the first and second Brady elements—that the
prosecutor knew or had reason to know of favorable evidence in the form of Hall’s alleged
perjury. It stands to reason that “a prosecutor is only obligated to disclose information of
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which he has either actual or constructive knowledge.” United States v. Bin Laden, 397
F.Supp.2d 465, 481 (S.D.N.Y. 2005) (citing Avellino, 136 F.3d at 255). Parsons’ inability
to demonstrate actual or constructive knowledge on the part of the prosecutor with regard
to Hall’s alleged perjury is fatal to his Brady claim. See Pizzuti v. United States, No. 02
CR. 1237 LAP HBP, 2014 WL 4636521, at *38 (S.D.N.Y. Sept. 16, 2014) (“DiPietro’s
failure to show that the prosecution either had actual or constructive knowledge of
Mustufaj’s alleged statements regarding Celaj is fatal to th[e] [Brady] claim.”). Because a
Brady violation does not occur unless all three elements are present, the Court need not
address the 440.10 court’s finding regarding the materiality of Hall’s alleged perjury.
II.
Grounds 1(E) and 1(F): Confrontation Clause and Brady Claims Based on
Hall’s Family Court/Juvenile Delinquency Records
A. Background Relevant to Grounds 1(E) and 1(F)
On April 2, 2002, the first day of trial testimony, and prior to Hall taking the stand,
trial counsel stated that he had just learned that Hall was “in juvenile custody,” Tr.332, yet
the prosecutor had repeatedly assured him that Hall had no criminal record. Tr.332–33.
Asserting a Brady violation, trial counsel moved to preclude Hall from testifying. Tr.333–
34. The prosecutor responded that he had run Hall's rap sheet, or NYSIS, and had found
no record. He continued that he had first learned that Hall was in juvenile custody when
he met with him the prior week and had promptly informed trial counsel by phone. Tr.334,
336–37, 410–13. Trial counsel, however, denied that he had been notified of this fact.
Tr.337. The prosecutor explained that Hall’s juvenile delinquency adjudication in Family
Court was sealed under N.Y. Family Court Act §§ 381.2(1), 381.3(1). Tr.334–35.
The trial court denied the Brady motion, stating that “there are no records to turn
over. How can he turn over any records. They are sealed.” Tr.335, 337. When trial
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counsel insisted that the prosecutor had failed to inform him immediately upon learning
of Hall’s juvenile record, the trial court responded, “I think the record has been made. The
application is denied.” Tr.341. However, the trial court did grant trial counsel’s request for
a judicial subpoena to obtain Hall’s full juvenile record. Tr.341, 441.
During his testimony, Hall admitted that he had been removed from his parent's
house and placed in juvenile detention because of various charges brought in Family
Court. Tr.342–43, 369–70. Hall acknowledged that the police twice caught him “[j]oy riding
in a stolen car”; that he had violated his probation; and that he had been caught selling
cocaine. Tr.370–73. On cross-examination, Hall testified that he had been selling cocaine
for two months on Fulton Avenue near the scene of the shooting, and that he and Wright
had worked for another man selling cocaine together. Tr.371–72.
Two days later, trial counsel informed the parties that had received Hall's Family
Court records the previous day. In addition to the “joy-riding” incidents about which Hall
testified on cross-examination, trial counsel noted that Hall (1) had been arrested on two
counts of third-degree assault on September 15, 2001, regarding an incident on Clarence
Park involving John Steeb; (2) he and two others had stolen a Jeep Cherokee SUV and
been charged with unauthorized use of a motor vehicle and related charges on October
29, 2001; (3) he had been arrested for stealing another car and reckless driving and
charged with unauthorized use of a motor vehicle and related charges on January 2,
2002; and (4) he had been arrested for selling $20 of fake cocaine to an undercover officer
on March 12, 2002, and charged with Imitation of a Controlled Substance and Petit
Larceny. Tr.676–79. In addition, Hall’s records contained a police report dated
September 15, 2001, with a deposition from RPD Officer Carlos Santory (not a witness in
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Parsons’ case) stating that Hall was “known to be in the neighborhood threatening to
shoot people.” Tr.677, 679.
Trial counsel moved to dismiss the indictment pursuant to Brady, arguing that
certain of the RPD personnel involved in the Wright investigation had also been involved
in certain of Hall’s juvenile arrests. In particular, when Hall was found in the stolen Jeep
Cherokee, he gave a written statement to RPD Investigator Mace, one of the officers who
had already testified at Parsons’ trial, that he knew the vehicle was stolen. Tr.677. And,
Officer Pearce, who also testified at Parsons’ trial, was the undercover officer to whom
Hall had sold fake cocaine in March 2002. Tr.678. Trial counsel contended that, although
the prosecutor may not have been aware of Hall’s juvenile record, knowledge of it should
be imputed to the prosecution’s office based on the RPD officers’ knowledge. Tr.678–80.
Trial counsel alternatively moved to strike Hall’s testimony or to recall him for further
questioning. Tr.680.
The prosecutor reiterated that he had no prior knowledge of Hall’s sealed juvenile
record and had informed trial counsel as soon as he learned Hall was in juvenile
detention. He noted that trial counsel had already cross-examined Hall regarding his two
“joy rides” in stolen cars (the unauthorized use of a motor vehicle charges from October
2001 and January 2002) and his drug sales. Tr.680–82.
Finding that trial counsel had already engaged in “extensive cross examination” of
Hall, the trial court denied the defense motions to recall Hall, strike Hall’s testimony, and
dismiss the indictment based on a Brady violation. Tr.683. The trial court noted that Hall
admitted selling drugs on two occasions and “joy riding on at least two separate
occasions.” Tr.682–83. According to the trial court, it was understandable that Hall, at age
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fifteen, “would not know the specific charges regarding Possession of Stolen Property,
Unauthorized Use of a Motor Vehicle or Grand Larceny or Attempted Grand Larceny[,]”
and thus there was not “anything inappropriate based upon his responses.” Tr.682. As to
the “[t]he allegation regarding statements about threatening to shoot somebody,” the trial
court found it “totally irrelevant” because it was “sometime after” Wright’s murder. Tr.682.
In his pro se supplemental appellate brief, Parsons raised both the Brady claim
and Confrontation Clause claim based on the prosecutor’s failure to disclose Hall’s
juvenile delinquency records and the trial court’s failure to strike Hall’s testimony or
reopen cross-examination. The Appellate Division found no error in the trial court’s denial
of the motion to dismiss because “[a] juvenile delinquency adjudication in Family Court is
not considered Brady material by th[at] [c]ourt[.]” Parsons, 13 A.D.3d at 1100 (citing
People v. Bennett, 273 A.D.2d 914 (4th Dep’t 2000)). 7 In any event, the Appellate Division
held, even assuming the juvenile adjudication was Brady material, Parsons “‘had a
meaningful opportunity’ to cross-examine the eyewitness “with respect to the charges
underlying that adjudication[.]” Id. (quoting Bennett, 273 A.D.2d at 914). The Appellate
Division summarily denied the Confrontation Clause claim. Parsons, 13 A.D.3d at 1100
(rejecting “remaining contentions” as “without merit”).
7
The Appellate Division has held that although a defendant is entitled, for purposes of
impeachment, to cross-examine a witness with respect to the acts underlying his youthful offender
adjudication, information concerning those underlying acts does not constitute Brady material “[a]bsent a
connection to the crime charged[.]” People v. Battee, 122 A.D.2d 526, 527 (4th Dep’t 1986) (holding that it
“was collateral and . . . not otherwise the kind of material required by the courts to be supplied to defendant
for use to impeach a witness”) (citing Bagley, 473 U.S. 667, supra; Giglio v. United States, 405 U.S. 150,
supra). However, the Supreme Court has expressly “rejected any . . . distinction between impeachment
evidence and exculpatory evidence[,]” Bagley, 473 U.S. at 676, holding that “[w]hen the ‘reliability of a given
witness may well be determinative of guilt or innocence,’ nondisclosure of evidence affecting credibility falls
within th[e] general rule [of Brady][.]” Id. at 677 (quoting Giglio, 405 U.S. at 154). It is, however, unnecessary
to resolve the issue here because New York law “is not controlling in this federal proceeding[,]” United
States v. Canniff, 521 F.2d 565, 568 (2d Cir. 1975) (citation omitted), and the Appellate Division’s rejection
of the claim did not amount to an unreasonable application of Brady.
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The Court will first discuss Ground 1(F), the Brady claim, followed by Ground 1(E),
the Confrontation Clause claim.
B. Ground 1(F): Brady Violation Based on Nondisclosure of Hall’s Family
Court/Juvenile Delinquency Records
1. Law Relevant to Ground 1(F)
The Supreme Court has identified “three components of a true Brady violation,”
that is, “[t]he evidence at issue must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; that evidence must have been suppressed by
the State, either willfully or inadvertently; and prejudice must have ensued.” Strickler v.
Greene, 527 U.S. 263, 281–82 (1999).
The prosecution “suppresses” impeachment or exculpatory evidence in violation
of Brady when it has possession or knowledge of such evidence but fails to disclose it to
the defense. E.g., Kyles v. Whitley, 514 U.S. 419, 431 (1995). Significantly, “disclosure
prior to trial is not mandated” under Brady and its progeny. Leka, 257 F.3d at 100
(citations omitted). “Evidence is not ‘suppressed’ if the defendant either knew, or should
have known, of the essential facts permitting him to take advantage of any exculpatory
evidence.” DiSimone v. Phillips, 461 F.3d 181, 197 (2d Cir. 2006). Thus, the Court must
look at “the sufficiency, under the circumstances, of the defense’s opportunity to use the
evidence when disclosure is made[,]” id., in determining whether the evidence
“suppression” has occurred. See Leka, 257 F.3d at 103 (holding that “the prosecution
failed to make sufficient disclosure [of a witness’ testimony] in sufficient time to afford the
defense an opportunity for use” and therefore that “testimony was ‘suppressed’ by the
prosecution”) (citing Brady, 373 U.S. at 87–88).
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“[A]s long as a defendant possesses Brady evidence in time for its effective use,
the government has not deprived the defendant of due process of law simply because it
did not produce the evidence sooner. There is no Brady violation unless there is a
reasonable probability that earlier disclosure of the evidence would have produced a
different result at trial. . . .” United States v. Douglas, 525 F.3d 225, 245 (2d Cir. 2008)
(quotation omitted). Thus, “‘materiality’ and the timing of a disclosure required by Brady
are linked[.]” Barney v. Conway, 730 F. Supp.2d 264, 277 (W.D.N.Y. 2010) (citing United
States v. Coppa, 267 F.3d 132, 142 (2d Cir. 2001)).
2. Analysis of Ground 1(F)
Prior to receiving the Family Court records by subpoena, trial counsel crossexamined Hall with regard to three of the four incidents recounted in those records. Thus,
trial counsel “knew . . . of the essential facts permitting him to take advantage of any
[impeachment] evidence.” DiSimone, 461 F.3d at 197. Hall acknowledged the facts
underlying both sets of charges involving the unauthorized use of motor vehicles, which
he characterized as “joyriding” and admitted was “riding in a stolen car.” Tr.370–71, 373.
Similarly, trial counsel extensively cross-examined Hall with regard to his drug-selling
activities, questioning him at length about whether he sold drugs on his own and with
Wright; the inquiry on this topic went well beyond the single charge of selling fake cocaine
to an undercover officer that was referenced in the Family Court records. Tr.371–76, 401–
05. In sum, trial counsel subjected Hall to as much impeachment questioning as he could
on three of the incidents referenced in Hall’s Family Court records, given the prohibition
imposed by New York law against cross-examination regarding youthful offender or
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juvenile delinquency adjudications. People v. Gray, 84 N.Y.2d 709, 712 (1995) (citations
omitted).
With regard to the fourth incident, involving Hall’s alleged assault of another man
in September 2001, Respondent asserts that the record is unclear as to whether Hall was
found guilty on those charges. Tr.676–79. But in New York, “inquiry into the actual nature
of the acts constituting the basis for the youthful offender or juvenile delinquency
adjudication is permitted, and a defendant can even be impeached with prior bad acts
that did not result in a criminal charge[.]” Gray, 84 N.Y.2d at 713.
Nevertheless, it is well settled that “undisclosed impeachment evidence is not
material in the Brady sense when, although ‘possibly useful to the defense,’ it is ‘not likely
to have changed the verdict.’” United States v. Persico, 645 F.3d 85, 111 (2d Cir. 2011)
(quoting Giglio, 405 U.S. at 154). In such cases, “the undisclosed evidence may properly
be viewed as cumulative, and hence not material, and not worthy of a new trial.” Giglio,
405 U.S. at 154.
The evidence regarding the assault in September 2001 “merely furnishe[d] an
additional basis on which to challenge” Hall, who had already been “subject to extensive
attack by reason of other evidence,” Id. at 154. The Court agrees with Respondent that
“the impeachment value of the undisclosed evidence was incremental,” United States v.
Jackson, 695 F. App’x 605, 607 (2d Cir. 2017) (summ. order), and not material for Brady
purposes. See id. (undisclosed evidence that coconspirator had been recorded
discussing apparent drug trafficking on an intercepted wiretap in an unrelated criminal
investigation was immaterial and thus did not warrant new trial on charges relating to filing
of fraudulent tax returns under Brady where coconspirator’s credibility was already
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undermined by his three prior drug convictions and his admitted participation in the tax
fraud scheme).
Finally, as to the statement in Officer Carlos Santory’s (“Officer Santory”) report in
connection with the September 2001 assault—that Hall was “known to be in the
neighborhood threatening to shoot someone”—Respondent argues that it is “rank
hearsay” which the trial court was “within its discretion” in precluding, and further contends
that “the failure to disclose such information could not bottom a Brady claim.” Resp. Mem.
at 40 n. 12. To the extent that Respondent argues that the report was not Brady evidence
simply because it was hearsay, the Court disagrees. “Brady evidence often comes in the
form of written court statements that appear to be hearsay evidence on their face.”
Waldrip v. Humphrey, 532 F. App’x 878, 885 (11th Cir. 2013) (per curiam) (unpublished
opn.) (citing Smith v. Cain, 566 U.S. 73, 75 (2012) (investigating detective’s notes
containing witness statements); other citations omitted).
However, the Court agrees that the statement in the police report has not been
shown to be “material” Brady information, and thus Parsons has not established he was
prejudiced by its nondisclosure. The statement in Officer Santory’s report that Hall was
“known to be” threatening to shoot people appears to be double hearsay not subject to
any exception. See, e.g., Ash v. Reilly, 433 F. Supp.2d 37, 45 (D.D.C. 2006) (unsworn
verbal allegations of four or five unidentified individuals who purportedly identified parolee
as attacker in assault by pointing in street and screaming “that’s him” were not reliable
hearsay statements, when neither police report nor police officer’s testimony established
that any of individuals personally witnessed assault, and it was equally plausible that such
persons only saw parolee running down street).
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“To be material under Brady, undisclosed information or evidence acquired
through that information must be admissible.” United States v. Kennedy, 890 F.2d 1056,
1059 (9th Cir. 1989) (citing Brady, 373 U.S. at 89–90; other citations omitted). Evidence
that is inadmissible under state law can itself have no “direct effect on the outcome of a
trial.” Wood v. Bartholomew, 516 U.S. 1, 6 (1995) (per curiam). While “such material could
be material under Brady if it would ‘lead directly’ to admissible evidence[,]” Wogenstahl v.
Mitchell, 668 F.3d 307, 325 (6th Cir. 2012) (quotation and citation omitted), “conclusions
that such inadmissible material would ‘lead’ to admissible, exculpatory evidence cannot
be based on ‘speculation with slight support.’” Id. (quoting Wood, 516 U.S. at 8).
Parsons has offered nothing more than speculation that this police report could
have led to the discovery of admissible, material evidence. Even assuming that Hall made
those threats in the area where Wright was murdered, Officer Santory’s report does not
indicate when they occurred. The assault which was the subject of the report occurred in
September 2001, months after the actual shooting, which suggests that the threats were
contemporaneous with that incident. Thus, Parsons’ suggestion that “these [unidentified]
people” whom Hall allegedly was threatening could have been “possible alibi witnesses
for [Parsons],” Pet. at 19–20, is speculative, at best.
In sum, three of the non-disclosed criminal incidents were not “suppressed”
because trial counsel had knowledge of the essential underlying facts to meaningfully
cross-examine Hall about them. Parsons was not prejudiced by the non-disclosure of the
fourth criminal incident (the 2001 assault) because it was cumulative and not material.
Likewise, he was not prejudiced by non-disclosure of the statement about his alleged
threats in the neighborhood because it was inadmissible and thus not material. The Court
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accordingly concludes that Appellate Division’s holding that a Brady violation did not
occur was neither an unreasonable application of, nor contrary to, Brady.
C. Ground 1(E): Confrontation Clause Claim Based on Hall’s Family Court
Records
1. Law Relevant to Ground 1(E)
“The Sixth Amendment’s confrontation right, which applies equally to defendants
in state prosecutions, . . . includes a right of cross-examination, which provides ‘the
principle means by which the believability of a witness and the truth of his testimony are
tested.’” Nappi v. Yelich, 793 F.3d 246, 251 (2d Cir. 2015) (quoting Davis v. Alaska, 415
U.S. 308, 315 (1974); alterations omitted). Nonetheless, that right is not unlimited, and
“trial judges retain wide latitude . . . to impose reasonable limits on such crossexamination based on concerns about, among other things, harassment, prejudice,
confusion of the issues, the witness’ safety, or interrogation that is repetitive or only
marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).
“If the purpose of cross-examination is to explore more than general credibility, the
subject of inquiry is not collateral.” Dunbar v. Harris, 612 F.2d 690, 693 (2d Cir. 1979)
(citing United States v. Garrett, 542 F.2d 23, 26 (6th Cir. 1976)). “The question is whether
the defendant's inability to examine the witness precludes defendant from testing the truth
of the witness's direct testimony, or whether the ‘answers solicited might have established
untruthfulness with respect to specific events of the crime charged.’” Id. (quoting United
States v. Cardillo, 316 F.2d 606, 613 (2d Cir.), cert. denied, 375 U.S. 822 (1963)).
2. Analysis of Ground 1(E)
In the present case, the criminal activities described in the records of Hall’s Family
Court juvenile delinquency proceedings were wholly unrelated to the homicide for which
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Parsons was on trial. They were, instead, “purely collateral” because “they related solely
to [Hall’s] credibility as a witness” and not to the “subject matter of his direct examination.”
Cardillo, 316 F.2d at 611 (after “admitting to a substantial criminal record,” prosecution
witness “invoked the privilege against self-incrimination when asked whether he
committed other crimes in the past and whether he was guilty of certain crimes with which
he was then charged in the state courts”; circuit court held that “[t]hese questions were
purely collateral for they related solely to his credibility as a witness and had no relation
to the subject matter of his direct examination”). Thus, the trial court was well within its
discretion in declining to allow defense counsel to recall Hall for additional crossexamination. See id.
Even assuming that there was a Confrontation Clause error—which there was
not—it was harmless. First, Hall already had been subjected to extensive crossexamination about the facts underlying three out of the four incidents referenced in his
juvenile delinquency records from Family Court, and any further questioning about them
would have yielded cumulative testimony. Moreover, the testimony had little importance
because it concerned only Hall’s general credibility and not the crime with which Parsons
was charged or the veracity of Hall’s testimony about the shooting. See Delaware v.
VanArsdall, 475 U.S. 673, 684 (1986) (among the factors to consider in evaluating
harmlessness are “the importance of the witness’ testimony;” whether the testimony was
“cumulative;” and “the extent of cross-examination otherwise permitted”).
With regard to the police officer’s report stating Hall was “known to be” threatening
to shoot people, its exclusion was not erroneous as a matter of evidentiary law. The
statement that Hall was “known to be” threatening to shoot people is not attributed to any
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particular person; it is hearsay within hearsay and does not appear to be subject to any
exception. “[T]he right to cross-examine does not allow a litigant to elicit testimony that is
otherwise inadmissible.” United States v. Lawrence, 349 F.3d 109, 120 (3d Cir. 2003).
Even assuming it was admissible, its exclusion was harmless because Hall already had
been subjected to extensive cross-examination about his criminal activities. The alleged
threats, which concerned only Hall’s general credibility and not the crime with which
Parsons was charged, was collateral to the subject matter of Hall’s direct testimony. See
Cardillo, 316 F.3d at 613 (holding that prosecution witness’s refusal to answer questions
about prior criminal activity did not violate Confrontation Clause where questions “were
purely collateral for they related solely to his credibility as a witness”).
III.
Ground 1(G): Prosecutorial Misconduct at Trial
In his pro se supplemental appellate brief, Parsons exhausted a prosecutorial
misconduct claim based on the following alleged improper acts: the prosecutor made a
comment during his opening statement referencing evidence about Parsons’
consciousness of guilt that was never produced; the prosecutor disregarded a pre-trial
evidentiary ruling by questioning witnesses about Parsons’ drug-selling activities; and the
prosecutor bolstered witnesses’ credibility during his summation. Parsons repeats this
claim in his Petition. See Pet. at 22–25. On direct appeal, the Appellate Division rejected
the prosecutorial misconduct claim as among the “remaining contentions” raised that
were without merit. Parsons, 13 A.D.3d at 1100. As discussed below, this adjudication
was not contrary to, or an unreasonable application of, clearly established Supreme Court
precedent.
A. Law Relevant to Ground 1(G)
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In Jackson v. Conway, 763 F.3d 115, 144 (2d Cir. 2014), the Second Circuit
identified four key Supreme Court decisions, Berger v. United States, 295 U.S. 78 (1935),
Donnelly v. DeChristoforo, 416 U.S. 637 (1974), United States v. Young, 470 U.S. 1
(1985), and Darden v. Wainwright, 477 U.S. 168 (1986), relevant to claims of
prosecutorial misconduct. From these cases, the Second Circuit distilled several
principles which it held to be “clearly established” law governing prosecutorial misconduct
claims. Jackson, 763 F.3d at 144 (footnote omitted). Importantly, “on federal habeas
review, the relevant standard is ‘the narrow one of due process, and not the broad
exercise of supervisory power.’” Id. at 146 (quoting Darden, 477 U.S. at 180; further
quotation and quotation marks omitted). A prosecutor’s use of “improper methods will
warrant habeas relief only if[,]” “considering the record as a whole,” “they ‘so infected the
trial with unfairness as to make the resulting conviction a denial of due process,’” Id.
(quoting Darden, 477 U.S. at 180; further quotation and quotation marks omitted). The
reviewing court must be careful to distinguish between “ordinary trial error of a prosecutor”
and the type of “egregious misconduct . . . [that] amount[s] to the denial of constitutional
due process.” DeChristoforo, 416 U.S. at 647–48.
B. Analysis of Ground 1(G)
1. Improper Comment During Opening Statement
First, Parsons takes issue with the prosecutor’s comment, in his opening
statement, that “[a]fter the shooting, the defendant ran with gun. but the police were
looking for him, where did they find him? Well, the police got a tip. They found him at the
downtown bus station the next day on the 15th, leaving town. What does that tell you?”
Tr.326. Defense counsel’s objection was overruled.
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The record indicates that the prosecutor had intended to call two RPD investigators
to provide testimony regarding their apprehension of Parsons at the bus station.
Subsequently, however, trial counsel moved to preclude all testimony about the bus stop,
arguing, among other things, that Parsons was found at the bus stop two days after the
shooting, and that the tickets were in his girlfriend’s possession. Tr.712–13, 717–18. The
trial court granted the motion because Parsons’ girlfriend had offered the police an
innocent explanation for having the tickets, namely, that she was traveling out of state to
care for a sick relative. Trial counsel did not request a curative charge as to the opening
remark. Tr.715–16, 718.
The Supreme Court has observed that “[m]any things might happen during the
course of [a] trial which would prevent the presentation of all the evidence described in
advance.” Frazier v. Cupp, 394 U.S. 731, 736 (1969). For this reason, “not every variance
between the advance description and the actual presentation constitutes reversible error,
when a proper limiting instruction has been given.” Id. The Supreme Court stated that
“[a]t least where the anticipated, and unproduced, evidence is not touted to the jury as a
crucial part of the prosecution’s case,” it is not “remarkable to assume that the jury will
ordinarily be able to limit its consideration to the evidence introduced during the trial.” Id.
Here, as in Frazier, the prosecutor had a good faith basis for making the opening
remark, as he believed that the officers would testify in conformance with their
investigative reports. Tr.12. Moreover, the bus-stop evidence was not mentioned again
during the trial and was not emphasized as a “crucial part of the prosecution’s case.”
Frazier, 394 U.S. at 736. Finally, the trial court informed the jury, prior to opening
statements, that such statements were not evidence, and that the evidence upon which
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the jurors would base their verdict would be limited to the witnesses’ testimony and the
exhibits. Tr.311. The trial court further instructed the jury that the attorneys’ summations,
“like the opening statements, are not evidence.” Tr.793, 803, 814, 823–25. “Since the
jury must be presumed to have followed these instructions, [Parsons] cannot establish
that he suffered any prejudice from the prosecutor’s remarks during his opening
statement.” Covington v. Warden, Five Points Corr. Fac., No. 11CV8761-AT-FM, 2014
WL 7234820, at *14 (S.D.N.Y. Dec. 8, 2014) (citing Francis v. Franklin, 471 U.S. 307, 324
n. 9 (1985) (“Absent . . . extraordinary situations . . . we adhere to the crucial assumption
underlying our constitutional system of trial by jury that jurors carefully follow
instructions.”)), report and recommendation adopted, No. 11CIV8761ATFM, 2016 WL
3407845 (S.D.N.Y. June 16, 2016).
2. Disregard of a Pre-Trial Evidentiary Ruling
Parsons contends that the trial court issued a ruling that prohibited the prosecutor
from referring to his drug use or drug-selling activity. However, this is inaccurate. All the
ruling in question stated was that, should Parsons testify, the prosecutor could question
him about certain of his criminal convictions but not others. Tr.37–41. In any event, this
ruling was mooted by Parsons’ failure to testify.
As Respondent points out, there was no explicit ruling by the trial court on this
issue. Prior to trial the prosecutor argued that “some evidence of the alleged argument
[between Parsons and Wright] pertaining to the sale of drugs should be allowed in,” not
for its truth, but because it was "inextricably interwoven with the facts surrounding this
entire case.” Tr.41–42. Trial counsel countered that this line of questioning had no basis
in the record. Tr.42–43. However, the trial court apparently never issued a ruling on the
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prosecutor’s request. In any event, the prosecutor faced no objection from trial counsel
and no admonishment by the trial court when he stated, on opening, that Parsons and
Wright had been engaged in a turf war over drugs, Tr.323–24, and later questioned
Tucker and Gollogly about whether they had purchased drugs from Parsons. Tr.584, 612–
13, 763. When trial counsel did successfully object to the prosecutor’s questions about
Parsons’ drug use, it was not on the basis that a court ruling had been disregarded.
Tr.572, 765. In short, there was no such court ruling precluding the prosecutor from
mentioning Parsons’ drug use and drug sales. Therefore, Parsons’ argument lacks a
factual basis and is without merit.
3. Improper Summation Comments
According to Parsons, the prosecutor committed misconduct on summation
because he (1) called the defense’s alibi witnesses (Gollogly and Langen) liars by
referring to them as “dishonest,” Tr.811; (2) vouched for the credibility of the People’s
witnesses by stating that they had “no reason to lie,” Tr.813–17; and (3) referred to
“uncharged crimes” and “matters not in evidence” by asserting that Latacha had testified
to being threatened by Parsons’ “friends.”
With regard to the first comment, as a general matter, “[u]se of the words ‘liar’ and
‘lie’ to characterize disputed testimony when the witness’s credibility is clearly in issue is
ordinarily not improper unless such use is excessive or is likely to be inflammatory.”
United States v. Coriaty, 300 F.3d 244, 255 (2d Cir. 2002). Here, Gollogly’s and Langen’s
testimony was “disputed” and “clearly in issue.” Moreover, the two witnesses, who were
in the same apartment at the same time, did not testify consistently with each other.
Gollogly stated that he saw Parsons pass his doorway once, while Langen’s testimony
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contradicted Gollogly’s testimony (she stated that Gollogly was with her when Parsons
passed by a second time) and her own police statement. See Tr.755–56, 762, 771, 776–
78. Under these circumstances, the prosecutor’s one-time use of the word “dishonest” to
characterize their testimony was not excessive.
Finally, the Court cannot find improper vouching based on the prosecutor’s
comments that the prosecution’s witnesses had no reason to lie. There is no suggestion
in his commentary that he “had access to evidence outside the record.” United States v.
Young, 470 U.S. 1, 19 (1985); see also, e.g., United States v. Williams, 690 F.3d 70, 76
(2d Cir. 2012) (finding no improper vouching where, in characterizing the testimony of
prosecution witnesses as “the truth” or the “absolute truth,” the prosecutor “did not
suggest that [s]he had special knowledge of facts not before the jury”) (citation omitted);
Courts routinely have held that a prosecutor neither shifts the burden of proof nor
improperly vouches for witnesses by pointing out that they had no motive or no reason to
lie. E.g., Everett v. Fischer, No. 00-CV-6300 (NG), 2002 WL 1447487, at *3 (E.D.N.Y.
July 3, 2002) (citing Connery v. State of N.Y., No. 93 CIV. 1448 (PNL), 1993 WL 119797,
at *1 (S.D.N.Y. Apr. 13, 1993) (Leval, D.J.) (“For a prosecutor to assert in closing
argument . . . that the complaining witness had no reason to lie is perfectly reasonable.”)).
In sum, none of the challenged actions and comments by the prosecutor were
improper, much less the type of “egregious misconduct” that has been held to warrant
reversal of a conviction. As the Appellate Division’s rejection of the prosecutorial
misconduct claim was not an incorrect application of federal law, it necessarily cannot be
contrary to, or an unreasonable application of, that law. See, e.g., Henry v. Poole, 409
F.3d 48, 68 (2d Cir. 2005) (“[T]he term ‘unreasonable application’ of federal law means
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more than simply an ‘erroneous’ or ‘incorrect’ application[.]”) (quoting Williams v. Taylor,
529 U.S. 362, 411 (2000)).
IV.
Ground 1(H): Alleged “Orchestration” of Prejudicial News Broadcast by
Prosecutor
A. Background Relevant to Ground 1(H)
On the first day of trial, Monday, April 1, 2002, just prior to jury selection, trial
counsel informed the parties that, over the weekend, a local cable news channel had run
interviews with Joyce Powell (“Powell”), the victim’s mother, and First Assistant District
Attorney Mike Green. Tr.20-21. According to trial counsel, Powell claimed that Parsons
had been charged with committing a homicide the previous year but avoided prosecution
by intimidating witnesses. Tr.22-23. Trial counsel requested an adjournment or, in the
alternative, that individual voir dire of the jurors be conducted to determine their exposure
to the broadcast. Tr.21–22.
After reviewing a recording of the broadcast, the trial court observed that the
“mention of a prior proceeding and some of the other statements that were made” were
“extremely prejudicial” to Parsons, such that any juror who was exposed to the broadcast
would likely have to be excused. Tr.28–29. However, the trial court declined to adjourn
the proceedings and stated that it would collectively ask the prospective jurors whether
they had viewed any pre-trial publicity and then individually voir dire any jurors who
responded affirmatively. Tr.29–31.
The trial court subsequently informed the prospective jurors that “there may have
been some pre-trial publicity either by newspaper, radio, television or even on web sites,”
and that “[i]f any of you know anything about this particular case, you need to volunteer
that information.” Tr.58. No prospective jurors indicated that they had seen the news
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broadcast at issue. One juror, Juror Heath, stated that six months earlier, he had read an
article about the case. Thus, the article Juror Heath read had nothing to do with the
broadcast with Powell that aired months later. Tr.83–86. The trial court repeatedly
instructed the jury, going forward, not to read any news accounts of the trial or listen to
any news broadcasts about it. Tr.316, 445, 669, 817–18.
Petitioner asserts, as he did in his pro se brief on direct appeal, that the prosecutor
“orchestrated” a cable news broadcast just prior to trial in which the victim’s mother
accused petitioner of an uncharged homicide. See Pet. Ground 1(H); SR.284-86. On
direct appeal, the Appellate Division summarily denied this claim as without merit.
Parsons, 13 A.D.3d at 1100 (rejecting “remaining contentions” as “without merit”). The
Court finds that the Appellate Division did not unreasonably apply, or rule in a manner
contrary to, clearly established Supreme Court precedent, or make an unreasonable
determination of the facts in light of the evidence presented.
B. Analysis of Ground 1(H)
Parsons frames this claim as one of prosecutorial misconduct. However, there is
no factual support for the contention that the prosecutor handling Parsons’ trial was
involved in the news story. Indeed, the prosecutor did not interview Wright’s mother, the
first assistant district attorney did. In any event, as the prosecutor observed, he could not
control what Powell said to the media. Tr.25. Nor is there any indication that Powell was
coached by the first assistant district attorney about what to say. It bears noting that, after
reviewing the tape, the trial court did not admonish the prosecutor about the broadcast.
Tr.28–31. Accordingly, the Court finds that the prosecutorial misconduct claim lacks a
factual basis in the record and cannot provide a basis for habeas relief. E.g., Mills v.
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Lempke, No. 11-CV-0440 MAT, 2013 WL 435477, at *23 (W.D.N.Y. Feb. 4, 2013)
(habeas claim lacking record support and based on speculation cannot provide habeas
relief) (collecting cases).
V.
Ground 2: Ineffective Assistance of Pre-Trial Counsel Based on Failure to
Protect Right to Testify in Grand Jury
A. Background Relevant to Ground 2
Parsons complains that Joel N. Krane, Esq. (“Krane”), who was substituted for
Mark Funk, Esq. (“Funk”), took a position “adverse” to his with regard to his desire to
testify in the grand jury. Prior to being relieved, 8 Funk sent the prosecutor a letter stating
that Parsons had elected to testify. SR.282–83. At Parsons’ next court appearance, Krane
informed the trial court that Parsons had taken his advice not to testify in the grand jury
and was waiving his right to testify before that body. However, after being indicted,
Parsons disclaimed his waiver of the right to testify. See Tr., Sept. 10, 2001, at 2–7. At
Krane’s request, he was relieved of further representation of Parsons. 9
B. Law Relevant to Ground 2
The familiar test set forth in Strickland v. Washington, 466 U.S. 668 (1984), for
evaluating an ineffective assistance of counsel claim has two prongs. The first requires
showing that counsel’s performance “fell below an objective standard of reasonableness.”
Id. at 688, 694. “Constitutionally effective counsel embraces a ‘wide range of
professionally competent assistance,’ and ‘counsel is strongly presumed to have
8
Funk represented Parsons for two days but was relieved by the trial court on August 17, 2001,
because, (1) contrary to Funk’s advice, Parsons insisted upon testifying in the upcoming grand jury
proceeding; and (2) Funk had a scheduling conflict that would prevent him from accompanying Parsons in
the grand jury. SR.282.
9
David Murante, Esq., was appointed but also was relieved due to his prior representation of a
witness in this case. On November 16, 2001, the trial court appointed Lawrence L. Kasperek, Esq., who
represented Parsons at trial.
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rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment.’” Greiner v. Wells, 417 F.3d 305, 319 (2d Cir. 2005)
(quoting Strickland, 466 U.S. at 690). Fulfilling the second prong of an ineffective
assistance claim requires a showing of prejudice which translates to “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694. “The habeas petitioner bears the burden
of establishing both deficient performance and prejudice.” Greiner, 417 F.3d at 319 (citing
United States v. Birkin, 366 F.3d 95, 100 (2d Cir. 2004)).
C. Analysis of Ground 2
Respondent asserts that this claim is not cognizable on federal habeas review
because there is no federal constitutional right to be indicted by a grand jury prior to trial
in a state criminal action, and in any event, any defects in the grand jury proceeding are
cured by the petit jury’s guilty verdict.
The Court notes that a number of habeas courts have followed this analysis. At the
same time, the right of a New York defendant to testify before a grand jury is protected
by state statute. N.Y. Crim. Proc. Law § 190.50(5). In the context of a violation of under
People v. Rosario, 173 N.E.2d 881 (N.Y. 1961), which is also a purely state law right,
courts in this Circuit have stated that a habeas court can review an ineffective assistance
of counsel claim based on a failure to pursue a viable Rosario claim. Rodriguez v. Smith,
No. 10-CV-8306 KMK LMS, 2015 WL 6509153, at *16 (S.D.N.Y. Oct. 28, 2015) (citing
Flores v. Demskie, 215 F.3d 293, 303–04 (2d Cir. 2000) (analyzing an ineffective
assistance of counsel claim based on defense counsel’s waiver of a Rosario claim)).
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Courts that have considered the merits of claims based on trial counsel’s failure to
effectuate a petitioner’s right to testify before the grand jury have held that such an
omission “does not, by itself, establish ineffective assistance of counsel.” Boyd v. Hawk,
965 F. Supp. 443, 451 (S.D.N.Y.1997) (quoting Kohler v. Kelly, 890 F. Supp. 207, 213
(W.D.N.Y.1994), aff’d mem., 58 F.3d 58 (2d Cir.1995)). The missing element in these
cases has been prejudice—the petitioner has “not demonstrated that but for trial counsel's
failure to have him testify before the grand jury, there is a reasonable probability of a
different outcome—that is, an indictment on no or fewer charges.” Dearstyne v. Mazzuca,
48 F. Supp.3d 222, 297–98 (N.D.N.Y. 2011); see also Boyd, 965 F. Supp. at 451 (“Boyd
fails to allege or show prejudice, i.e., he presents no argument that if he had appeared
before the grand jury, the grand jury’s action would have been any different.”). Parsons
likewise has failed to fulfill the prejudice prong of Strickland, which “is fatal to his
ineffective assistance claim.” Dearstyne, 48 F. Supp.3d at 298.
VI.
Ground 3: Ineffective Assistance of Trial Counsel
As discussed above, the Court has found that Parsons exhausted the following
subgrounds of Ground 3 by raising them in his pro se supplemental appellate brief: trial
counsel failed to offer into evidence a certain police report by RPD Investigators Charles
Dominic (“Investigator Dominic”) and Gary Sullivan (“Investigator Sullivan”) which
supported his alibi that he was at home at the time of the murder; trial counsel failed to
object to certain photographs of the crime scene taken several days after the shooting on
the basis that several witnesses testified that the actual light conditions were darker on
the night of the shooting; trial counsel failed to object to the bloodied t-shirt worn by Wright
on the basis that the medical examiner’s office never had the opportunity to examine it
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for gunshot residue; and failed to cross-examine Hall with a police report stating that Hall
had informed officers that the suspect had a tattoo of the word, “Prince” when in fact
Parsons had no such tattoo. See Pet. at 32–33, 35–36.
These claims were included in the Appellate Division’s summary dismissal of
Parsons’ “remaining contentions” as nonmeritorious. This adjudication on the merits does
not represent an incorrect application of Strickland, much less an unreasonable
application of that case.
In addition, the Court considers the potentially unexhausted claims that trial
counsel erroneously failed to call Investigators Dominic and Sullivan, and Parsons’
grandmother, as witnesses. These claims are plainly meritless under Strickland and are
properly dismissed under 28 U.S.C. § 2254(b)(2).
A. Analysis of Ground 3
1. Failure to Call Witnesses and Introduce Evidence at Trial
With regard to trial counsel’s failure to call Investigators Dominic and Sullivan and
introduce their investigative report, and failure to call Parsons’ grandmother in support of
his alibi defense, the Court finds that these represent strategic decisions that were entirely
reasonable under the circumstances. As an initial matter, it is well settled that “’[t]he
decision not to call a particular witness is typically a question of trial strategy that
[reviewing] courts are ill-suited to second-guess.” Greiner, 417 F.3d at 323 (quoting
United States v. Luciano, 158 F.3d 655, 660 (2d Cir. 1998) (per curiam); second alteration
in original). Indeed, an attorney’s decision not to call “’specific witnesses—even ones that
might offer exculpatory evidence—is ordinarily not viewed as a lapse in professional
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representation.’” Id. (quoting United States v. Best, 219 F.3d 192, 201 (2d Cir. 2000);
further quotation omitted).
Significantly, the police report about which the investigators would have testified,
SR.345–46, was inculpatory. First, it stated that, following the shooting, Hall “immediately
picked out” Parsons as the shooter from a photo array, stating “‘That’s Dre.’” SR.345.
Second, when they approached Parsons’ grandmother, Ruth Thomas (“Thomas”) and
said they wanted to speak with her about an incident involving Parsons, she “asked if it
was a shooting investigation.” SR.345. Upon learning it was, Thomas volunteered that
“Andre has a gun and that she would help [them] in any way she could.” SR.345. Thus,
Thomas would not have been helpful to the defense.
Moreover, the report added little to Parsons’ alibi defense and thus was of minimal
exculpatory value. It stated that Thomas’ cell phone records showed an incoming call at
11:39 p.m. on the night of the shooting. The number returned to Erin Taylor (“Taylor”),
Parsons’ girlfriend, of 70 Lakeview Park, Apartment #105, where Parsons purportedly
also resided. SR.345-46, Tr.773-74. Thomas told the officers that Parsons had called to
ask her to drive Taylor to her aunt’s house. SR.345.
Contrary to Parsons’ contention, the report does not prove that he “was at his place
of residence when this crime occurred[.]” Pet. at 32. Officer Pearce testified that he and
Officer Correia were dispatched to the shooting at about 11:20 p.m. Tr.613-15. Officer
Correia testified that they were the first to respond. Tr.645-47, 657. Accordingly, the
shooting presumably took place before 11:20 p.m. Parsons allegedly resided at 70 Lake
View Park in Rochester, which is about 1.1 miles from 125 Fulton Avenue, where the
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shooting occurred. Walking at a moderate page (15 minutes per mile), Parsons could
have travelled that distance in about 17 minutes and arrived home by 11:39 p.m.
Given that the report contained inculpatory information, trial counsel made a
reasonable decision not to pursue this line of inquiry. Moreover, trial counsel’s decision
did not prejudice Parsons because any exculpatory evidence about his alibi was of
minimal probative value. See, e.g., Mills v. Scully, 826 F.2d 1192, 1197 (2d Cir.1987)
(“Weighing the advantages of cumulative impeachment evidence against the
disadvantages of incriminating admissions and inconsistent versions of events, counsel’s
choice to avoid the grand jury testimony in toto appears well justified.”); see also Franza
v. Stinson, 58 F. Supp.2d 124, 156 (S.D.N.Y. 1999) (collecting cases).
2. Failure to Object to the Crime Scene Photographs and Victim’s T-Shirt
According to Parsons, trial counsel should have objected to admission of certain
crime scene photographs taken several days after the shooting on the basis that several
witnesses testified that the actual light conditions were darker on the night of the shooting.
With regard to the blood-soaked t-shirt worn by the victim when he was shot, Parsons
asserts that trial counsel should have objected to its admission on the basis that the
medical examiner’s office did not have the opportunity to examine it for gunshot residue.
Both of these arguments go to the weight that should be accorded to these items of
evidence, not to their admissibility. Therefore, an objection to their introduction into
evidence would not have been successful. See People v. Diendere, 167 A.D.3d 413, 414
(1st Dep’t 2018) (“The court providently exercised its discretion in receiving photographs
depicting the eyewitness’s view of the assault. While, as the jury was well aware, the
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photos were taken under different lighting conditions from those existing at the time of the
assault, those differences went to weight rather than admissibility[.]”) (citation omitted).
“‘The failure of a lawyer to invoke meritless objections cannot constitute
constitutionally deficient performance.’” Parks v. Sheahan, 104 F. Supp. 3d 271, 285
(E.D.N.Y. 2015) (quoting Hicks v. Ercole, 09–CV–2531, 2015 WL 1266800, at *23
(S.D.N.Y. Mar. 18, 2015) (citing United States v. Regalado, 518 F.3d 143, 150 n. 3 (2d
Cir. 2008)). “Similarly, ‘counsel [does] not render ineffective assistance by failing to make
[an objection that would have been overruled as baseless].’” Id. (quoting Johnson v.
Rivera, 07–CV334, 2010 WL 1257923, at *9 (N.D.N.Y. Mar. 25, 2010) (citing United
States v. DiPaolo, 804 F.2d 225, 234 (2d Cir.1986); alterations in original).
Because any objection to the admission of these items of evidence would have
been overruled, it was not unreasonable for trial counsel to decide not to object, and
Parsons was not prejudiced by the lack of objection. See Castellano v. United States, 795
F. Supp.2d 272, 279–80 (S.D.N.Y. 2011) (holding that trial counsel was not ineffective, in
prosecution for murder, racketeering, and robbery, in failing to pursue issue of
prosecutor's alleged coaching of witness outside courtroom in connection with her
identification of defendant; any improper coaching went to weight of witness's testimony,
not admissibility, and there was no likelihood that additional efforts on that line of inquiry
would have altered result of trial).
3. Failure to Impeach Hall Regarding His Allegedly Incorrect Statement
About Petitioner’s Tattoo
Parsons asserts that trial counsel should have impeached Hall with a police report
stating that Hall had informed the officers that the murder suspect had a tattoo of the
word, “Prince,” on his arm. As Respondent points out, there is no evidence in the record,
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apart from Parsons’ self-serving assertion, that Parsons did not have such a tattoo.
Therefore, there was no basis on which to impeach Hall.
In any event, as was the case with Investigator Dominic and Investigator Sullivan’s
report, the report at issue here contained information unhelpful to the defense insofar as
it showed the consistency between Hall’s statements to the police immediately after the
incident and his trial testimony. Moreover, although the second page of the report appears
to be missing from the copy submitted by Parsons on appeal, SR.348, it references the
photo array procedure conducted by Investigators Dominic and Sullivan, during which
Hall readily identified Parsons as the shooter, SR.345. Trial counsel did not make an
unreasonable strategic decision in forgoing this line of questioning since it would have
exposed the defense case to the introduction of inculpatory evidence. See, e.g., Speringo
v. McLaughlin, 202 F. Supp.2d 178, 192 (S.D.N.Y. 2002) (trial counsel was not ineffective
in failing to order a comparison of third parties’ fingerprints with those found on a gun,
because without a specific identification of the fingerprints, counsel was afforded
maximum leeway to argue that other persons fired the gun; strategy of keeping the
maximum amount of flexibility for argument, and insulating the defense theory from
potentially inculpatory information, was reasonable).
VII.
Ground 4: Batson Violation
Parsons reasserts the Batson claim that he raised on direct appeal. The Appellate
Division rejected it, finding that “[t]he prosecutor provided race-neutral reasons for
exercising peremptory challenges with respect to two African-American prospective
jurors, and County Court properly determined that those stated reasons were not
pretextual[.]” Parsons, 13 A.D.3d at 1099-100 (citation omitted). The Appellate Division’s
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ruling is an adjudication on the merits subject to the limitations on relief set forth in §
2254(d).
A. Law Relevant to Ground 4
In Batson, the Supreme Court held that the Fourteenth Amendment’s Equal
Protection Clause prohibits state prosecutors from exercising race-based peremptory
challenges. Batson, 476 U.S. at 89. Trial courts perform a three-step inquiry when ruling
on a Batson objection to a peremptory strike:
First, a defendant must make a prima facie showing that a peremptory
challenge has been exercised on the basis of race; second, if that showing
has been made, the prosecution must offer a race-neutral basis for striking
the juror in question; and third, in light of the parties’ submissions, the trial
court must determine whether the defendant has shown purposeful
discrimination.
Snyder v. Louisiana, 552 U.S. 472, 476–77 (2008) (internal quotation marks and
alterations omitted).
The trial court’s “finding regarding the credibility of an attorney's explanation of the
ground for a peremptory challenge is ‘entitled to “great deference[.]”’” Davis v. Ayala, 576
U.S. 257, 135 S. Ct. 2187, 2199 (2015) (“Ayala”) (quoting Felkner v. Jackson, 562 U.S.
594, 598 (2011) (per curiam) (quoting Batson, 476 U.S. at 98, n.21)). Section 2254(d)(2)
of AEDPA demands a showing that the trial court “unreasonabl[y] determin[ed] the facts
in light of the evidence presented in the State court proceeding.” Id. (quoting 28 U.S.C. §
2254(d)(2)). Moreover, under AEDPA, “[s]tate-court factual findings . . . are presumed
correct; the petitioner has the burden of rebutting the presumption by ‘clear and
convincing evidence.’” Rice v. Collins, 546 U.S. 333, 338–39 (2006) (quoting 28 U.S.C. §
2254(e)(1)).
B. Analysis of Ground 4
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There is no suggestion that either the trial court or the Appellate Division acted
unreasonably or contrary to clearly established federal law in recognizing and applying
Batson’s burden-shifting framework. The only disputed issue is the reasonableness of
trial court’s factual determination at step three of the Batson inquiry regarding the
prosecutor’s credibility. See Rice, 546 U.S. at 342. In such case, the proper question for
the habeas court is “whether the trial [court]’s finding rested on ‘an unreasonable
determination of the facts,’ 28 U.S.C. § 2254(d)(2), i.e., ‘if it was unreasonable to credit
the prosecutor’s race-neutral explanations for the Batson challenge,’” Johnson v. Gonyea,
752 F. App’x 14, 17 (2d Cir. 2018) (unpublished opn.) (quoting Rice, 546 U.S. at 338),
cert. denied, 139 S. Ct. 2669 (2019). As discussed further below, the Court finds that it
was not.
The two prospective jurors at issue, Tisdale and Fair, were both African-American.
During the first round of peremptory challenges, which was conducted off the record, the
prosecutor exercised at least three peremptories to excuse both of these individuals as
well as prospective juror Masters, who was not in a minority group. Tr.197, 199. When
the proceedings resumed on the record, the following colloquy occurred:
[TRIAL COUNSEL]: I have a Batson challenge regarding [the prosecutor]’s
peremptory challenges to number 3, Miss Tisdale, and number 4, Mr. Fair.
They are the first two black members of the panel available in this pass.
Both of them indicated they could certainly be fair. Miss Tisdale indicated
she can be open minded about all the circumstances, and Mr. Fair indicated
he has testified before, and he’ll be willing to be fair.
[PROSECUTOR]: I will start with Mr. Fair if that’s okay. Mr. Fair’s son was
convicted by our office of Criminal Possession of Stolen Property, I believe,
in the fourth. He’s also indicated that he has a friend who he’s visited in the
correctional facility recently. Based upon those particular instances, the
People are using a peremptory. In addition, Miss Tisdale also has had family
members or relatives convicted of crimes, and those are the basic reasons
for both of them and, also visited someone recently in the correctional
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facility indicating that she has other friends who have been convicted of
crimes.
THE COURT: You want to be heard any further?
[TRIAL COUNESL]: We have a white juror who indicated they have been
both to correctional facilities, as well as individuals who have been
convicted of crimes and he hasn’t bumped any of those.
[PROSECUTOR]: If I may, I bumped Mr. Masters, number 7, who had two
friends convicted of robbery. It’s exactly the same reason, and I bumped
him.
THE COURT: I believe there has been race neutral reasons extended and,
therefore, I will allow the challenges.
Tr.197–99.
Parsons asserts that the prosecutor’s reasons for excusing Tisdale and Fair were
pretextual because (1) they were the only two African-Americans on the first panel, and
he is African-American; (2) Tisdale did not “have a pro-defense bias” because she had
one family member who was a police officer, which would lead to the inference that she
had a pro-prosecution bias; and (3) although both Tisdale and Fair had “close” relatives
who had been convicted of crimes, and both visited people who were in prison, “neither .
. . indicated that these facts would suggest a pro defense bias.” Pet. at 36–38; see also
SR.146–55.
Respondent disputes Parsons’ assertion that Tisdale and Fair were the only
African-Americans in the entire first panel of prospective jurors, stating that the record
does not establish this fact. See Resp. Mem. at 67. Nonetheless, even assuming they
were, that does not compel the Court to find that a Batson error occurred. See Ayala, 135
S. Ct. at 2193–94 (prosecution’s use of peremptories to strike all of the African–
Americans and Hispanics who were available for service did not, in and of itself, establish
a Batson violation).
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The two reasons offered by the prosecutor for striking Tisdale and Fair were wellfounded in the record, and the trial court did not unreasonably credit the prosecutor’s
reliance on them. The Court turns first to the fact, cited by the prosecutor, that both Tisdale
and Fair had close relatives convicted of felonies. Tisdale related that her male cousin
had pleaded guilty to “a couple of drug charges and a gun charge,” and at the time of
Parsons’ trial, had been “in prison going on, like, five years.” Tr.125–27. Tisdale’s cousin
had been prosecuted by the same office prosecuting Parsons. Id. Moreover, the crimes
to which her cousin had pleaded guilty involved guns and drugs and thus shared some
similarities with the events underlying the murder charge against Parsons. See id.
Fair indicated that three years earlier, his son had pleaded guilty in Yates County
to grand larceny for stealing guns and had been sentenced to five years' probation as a
first offender. Tr.127–30. Fair did not believe his son knew about the stolen guns but just
happened to be riding in the car from which the police recovered the guns. Tr.128–29.
Courts in this Circuit “have consistently found that the arrest or prosecution of
relatives of a juror is a valid reason for a peremptory challenge.” McCall v. Rivera, 965 F.
Supp.2d 311, 329 (S.D.N.Y. 2013) (citing Huggins v. Girdick, No. 03-CV-3248(NG)(VVP),
2007 WL 433397, at *12 (E.D.N.Y. Feb. 7, 2007) (“[T]he authority in th[e Second] [C]ircuit
is overwhelmingly clear that race or gender-neutral explanations based on the fact that a
relative of a prospective juror had been arrested or convicted of a crime, is acceptable
under Batson.”); Green v. Travis, 414 F.3d 288, 300–01 (2d. Cir. 2005) (upholding
peremptory strikes as race-neutral based on the prosecutor's explanation that the
prospective jurors had relatives who had been convicted of drug offenses); Barbara v.
Goord, No. 98–CV4569, 2001 WL 1776159, at *6 (E.D.N.Y. Dec. 27, 2001) (“Prosecutors
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routinely challenge [jurors whose family members had been recently prosecuted by the
authorities], regardless of race, fearing bias against the authorities.”)); see also Crenshaw
v. Sup’t of Five Points Corr. Fac., 372 F. Supp.2d 361, 372 (W.D.N.Y. 2005) (finding that
habeas petitioner did not fulfill burden under third Batson step where prosecutor offered
as race-neutral reason fact that prospective juror’s brother had been convicted of a felony)
(collecting cases).
That Tisdale and Fair provided assurances of their ability to be fair and impartial
does not necessarily invalidate the prosecutor’s reasoning as pretextual. See Rice, 546
U.S. at 341 (“That the prosecutor claimed to hold such concerns despite Juror 16’s voir
dire averments [that she could be impartial] does not establish that she offered a pretext.
It is not unreasonable to believe the prosecutor remained worried that a young person
with few ties to the community might be less willing than an older, more permanent
resident to impose a lengthy sentence for possessing a small amount of a controlled
substance.”). While Parsons maintains that the prosecutor's explanations were pretextual
because Tisdale and Fair stated that they could be impartial, the trial court “credited the
bona fides of the [prosecutor]’s reasoning” and “found that it did not see purposeful
discrimination.” McCall, 965 F. Supp.2d at 329. Because Parsons “has not presented any
other evidence suggesting that the prosecutor’s strikes were pretextual, he has not
presented sufficient evidence to overcome the state court’s factual finding regarding the
prosecutor's motivations for challenging the jurors.” Id. (citations omitted).
Parsons also contends that the prosecutor’s first reason for striking Tisdale and
Fair should not be believed because he allegedly “outright lied,” Pet. at 37, to the trial
court by stating that he had struck prospective juror Masters on the basis he had friends
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who had been convicted of robbery, Tr.199, when in fact, those friends had been robbery
victims, Tr.117–18. As Respondent notes, Parsons’ argument inverts the Supreme
Court’s precedent, which states that “[i]f a prosecutor’s proffered reason for striking a
[minority] panelist applies just as well to an otherwise-similar non[minority] who is
permitted to serve, that is evidence tending to prove purposeful discrimination to be
considered at Batson’s third step.” Miller-El v. Dretke, 545 U.S. 231, 241 (2005) (citation
omitted). Here, the non-minority prospective juror, Masters, was not permitted to serve.
And, the proffered reason did not actually apply to Masters. In other words, the nonminority excused juror did not share the relevant trait (i.e., a close relative or friend
convicted of a crime) with the excused African-American jurors. Thus, the set of facts
presented here does not “tend[ ] to prove purposeful discrimination[,]” Miller-El, 545 U.S.
at 241.
The Court turns next to the other reason offered by the prosecutor for striking
Tisdale and Fair—they had visited people who were incarcerated. Tisdale stated that she
had gone to a prison to “visit a cousin,” Tr.171, while Fair mentioned that he gone to a
prison to “visit someone.” Id. This is a race-neutral reason for exercising a peremptory
strike. See Graham v. Harrington, No. SACV 11-00443 R SS, 2013 WL 4052559, at *15
(C.D. Cal. Aug. 9, 2013) (“‘The prosecutor explained that she struck P.W. because P.W.
visited her grandson in prison and the prosecutor was “uncomfortable with anyone who
has been on the inside of a prison[,]’ . . . which is a race-neutral rationale for the
peremptory strike.”) (citing, inter alia, United States v. Vaccaro, 816 F.2d 443, 457 (9th
Cir. 1987) (striking prospective juror who had a brother in prison was “a neutral,
reasonable basis for challenging [a] black juror[ ]”), overruled on other grounds,
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Huddleston v. United States, 485 U.S. 681 (1988)); United States v. Hendrix, 509 F.3d
362, 370 (7th Cir.2007) (“The prosecution explained that Jurors Woodland, Hairston, and
Strock all had relatives in prison, which is a valid and race-neutral basis for the strikes.
Jurors with relatives in prison may sympathize with a defendant, or have feelings of
animosity against the prosecution.”)), aff’d, 590 F. App’x 714 (9th Cir. 2015).
It is true there were three other non-minority jurors who had visited prisons. Two
of them, Rockey and O’Brien, were stricken for other reasons; Juror Turner was seated.
The Second Circuit has explained that “[t]he relative plausibility or implausibility of each
explanation for a particular challenge, assessed in light of the prosecution’s acceptance
of jurors with similar circumstances, may strengthen or weaken the assessment of the
prosecution’s explanation as to other challenges and thereby assist the fact-finder in
determining overall intent.’” Jordan, 293 F.3d at 594. However, courts in this Circuit have
found that “any inference of discrimination based on the single shared characteristic can
be undermined by other differences between the jurors.” Wells v. Ricks, No. 07
CIV.6982CM AJP, 2008 WL 506294, at *30 (S.D.N.Y. Feb. 26, 2008) (finding no pretext
where prosecutor testified that juror’s “hostile and unsettling demeanor was the primary
reason for striking her, a trait not shared by the other [non-minority jurors who shared a
trait with her]”) (citations omitted), report and recommendation adopted, No. 07 CIV.6982
CM (AJP), 2008 WL 2986503 (S.D.N.Y. Aug. 1, 2008).
Here, the reasons for visiting a prison given by prospective juror Rockey and
O’Brien were qualitatively different from those given by Tisdale and Fair. Rockey had
gone on a school field trip to a prison, while Tisdale and Fair’s answers indicated that they
had visited a person with whom they had a personal relationship. Although O’Brien also
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had visited a relative (his uncle), that person happened to be the prison warden. Tr.171.
In contrast, the reasonable inference from Tisdale’s response is that the cousin she
visited was the cousin who had been convicted of drug and gun crimes. While Fair’s
answer was vague—he simply said he was visiting “someone”—it would not have been
unreasonable to infer that he was visiting a prisoner.
There also were differences between Tisdale and Fair, who were stricken, and
Juror Turner, who was seated. Juror Turner stated that a couple weeks before jury
selection, she had accompanied her cousin to visit her cousin’s son in prison. Tr.172. She
did not indicate the nature of her cousin’s son’s offense or the office that prosecuted him.
Id. When the jury pool was asked whether “any of you or anyone close to you has ever
been arrested, accused of or convicted of the commission of a crime[,]” Tr.119, Turner
did not respond affirmatively, in contrast to Fair and Tisdale. As noted above, Tisdale and
Fair both had relatives who had been convicted of crimes—a cousin and a son,
respectively. “Thus, while the white jurors were somewhat similarly situated,” Davidson v.
Cunningham, No. 16-CV-01125 (JFB), 2017 WL 3738560, at *16 (E.D.N.Y. Aug. 29,
2017), “‘the prosecutor had put forward other reasons, in addition to the trait shared with
the unchallenged jurors,’” id. (quoting United States v. Alvarado, 951 F.2d 22, 25 (2d Cir.
1991)), “to establish that ‘the principal difference between them’ was not race.” Id.
(quoting United States v. Thomas, 320 F.3d 315, 318 (2d Cir. 2003)).
Finally, Parsons contends that the reason for striking Tisdale was pretextual
because she did not “have a pro-defense bias” but instead had a “pro-prosecution bias”
inasmuch as she had one family member who was a police investigator. However,
questioning revealed that that she did not “see him very often,” did not know what
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department he was with or what type of work he did, and, in any event, did not “discuss
his work with him at all.” Tr.91. As discussed above, Tisdale had a cousin whom she
visited in prison, and she also admitted she was familiar with someone who “uses illicit
drugs.” Tr.167. Based on her answers, it was not unreasonable for the prosecutor to
conclude that Tisdale was less close to the police investigator than she was to the
incarcerated cousin and the person who used illicit drugs, and thus any potential proprosecution bias was more likely to be weaker than any pro-defense bias.
On an independent review of the record, the Court finds no convincing reason, and
Parsons has provided none, to question the trial court’s conclusion regarding the raceneutral reasons offered by the prosecutor for exercising peremptory strikes against
Tisdale and Fair. Even assuming that the trial court “had reason to question the
prosecutor’s credibility regarding” the reasons given for striking Tisdale and Fair, “[t]hat
does not . . . compel the conclusion that the trial court had no permissible alternative but
to reject the prosecutor's race-neutral justifications and conclude [Parsons] had shown a
Batson violation.” Rice, 546 U.S. at 341. The fact that “[r]easonable minds reviewing the
record might disagree about the prosecutor’s credibility . . . does not suffice [on habeas
review] to supersede the trial court’s credibility determination.” Id. at 341–42; accord
Ayala, 135 S. Ct. at 2201. Because Parsons has not shown that the Batson ruling was an
unreasonable determination of the facts in light of the evidence presented, 28 U.S.C. §
2254(d)(2), he is not entitled to habeas relief on this claim. See Rice, 546 U.S. at 341–
42; Ayala, 135 S. Ct. at 2201.
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VIII.
Ground 6: Verdict Unsupported by Legally Sufficient Evidence
In support of Ground 6, Parsons asserts, as he did in his pro se appellate brief,
that the conviction was not based on legally insufficient evidence because it rested on
perjured testimony by Hall and the other eyewitnesses and because the prosecution’s
witnesses’ gave testimony that was inaccurate, internally inconsistent and lacking in
credibility. See Pet., Ground 6; SR.266–78. The Appellate Division rejected Parsons’
claim that the evidence was legally insufficient, finding that while he “presented alibi
witnesses, four eyewitnesses to the shooting testified for the People that defendant shot
the victim multiple times, at short range.” Parsons, 13 A.D.3d 1100 (citation omitted). The
Appellate Division’s holding constitutes an adjudication on the merits subject to the
limitations on relief in 28 U.S.C. § 2254(d).
A. Law Relevant to Ground 6
The “clearly established” federal law with regard to legal insufficiency claims is
Jackson v. Virginia, 443 U.S. 309 (1979). In that case, the Supreme Court held that
evidence is legally sufficient if, "after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt." Id. at 319 (emphasis in original). The Supreme Court
has “made clear that Jackson claims face a high bar in federal habeas proceedings
because they are subject to two layers of judicial deference.” Coleman v. Johnson, 566
U.S. 650, 651 (2012) (per curiam). “First, on direct appeal, ‘it is the responsibility of the
jury—not the court—to decide what conclusions should be drawn from evidence admitted
at trial. A reviewing court may set aside the jury’s verdict on the ground of insufficient
evidence only if no rational trier of fact could have agreed with the jury.’” Id. (quotation
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omitted). “[S]econd, on habeas review, ‘a federal court may not overturn a state court
decision rejecting a sufficiency of the evidence challenge simply because the federal court
disagrees with the state court. The federal court instead may do so only if the state court
decision was “‘objectively unreasonable.”’” Id. (quotations omitted)).
The legal insufficiency “standard must be applied with explicit reference to the
substantive elements of the criminal offense as defined by state law.” Jackson, 443 U.S.
at 324 n. 16. “Proving the defendant’s identity as the perpetrator of the alleged crime
beyond a reasonable doubt is a necessary element of conviction for every crime.” United
States v. Ward, No. 5:06CR35-V, 2008 WL 2485587, at *1 (W.D.N.C. June 17, 2008)
(citing Butler v. United States, 317 F.2d 249, 254 (8th Cir.1963) (“The authorities dealing
with the general subject of identification of the accused, and particularly with the quantum
and quality of proof required to establish this element of a criminal case, uniformly hold
that proof of the identity of the person who committed the offense is essential to a
conviction.”)). Identity was the only element of the offense at issue in Parsons’
prosecution.
In their case-in-chief, the prosecution put forth testimony from four eyewitnesses—
Hall, Latacha, Beans, and Crowley—identifying Parsons as the shooter. In addition,
Officer Correia testified that Wright made an excited utterance identifying Parsons as the
person who shot him. The Second Circuit has held that “‘the testimony of a single,
uncorroborated eyewitness is generally sufficient to support a conviction.’” United States
v. Frampton, 382 F.3d 213, 222 (2d Cir. 2004) (quoting United States v. Danzey, 594
F.2d 905, 916 (2d Cir. 1979)). Moreover, “[i]t is well settled that where . . . the
government’s case is based primarily on eyewitness testimony describing criminal
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activity, ‘any lack of corroboration goes only to the weight of the evidence, not to its
sufficiency. The weight is a matter for argument to the jury, not a ground for reversal on
appeal.’” United States v. Gonzalez, 110 F.3d 936, 941 (2d Cir.1997) (quoting United
States v. Roman, 870 F.2d 65, 71 (2d Cir. 1989)). “Thus, even without corroborating
evidence, eyewitness testimony, which was presented here, generally constitutes legally
sufficient evidence.” Cole v. Rock, No. 12-CV-6587 NSR PED, 2013 WL 5323733, at *12
(S.D.N.Y. Sept. 20, 2013).
Parsons counters that all four eyewitnesses to the shooting conspired to testify
falsely; the eyewitness testimony regarding the number of shots fired was contradicted
by expert testimony that only five shots were fired and that the victim sustained only two
gunshot wounds inflicted from the back; the eyewitnesses “admitted to perjury and lying”
in the grand jury and in their police statements; the eyewitnesses admitted to being “either
drunk and/or high on crack cocaine” at the time of the shooting; Officer Correia’s
testimony regarding the victim’s excited utterance was contradicted by Lashay Harris, one
of the emergency medical technicians, who testified that she heard no such statement by
the victim; and the alibi witness, Langen, testified that Parsons entered his residence at
10:00 p.m. and left at 12:00 a.m.
To the extent that Parsons argues that all the eyewitnesses admitted to lying about
their identifications of him as the shooter, this argument improperly relies on Hall’s
recantation, which did not come into existence until years after the trial. It is well settled
that “[l]egal sufficiency goes only to evidence at trial, not subsequent evidence” such as
“newly discovered evidence.” Herrera v. Collins, 506 U.S. 390, 402 (1993) (“Jackson does
not extend to nonrecord evidence, including newly discovered evidence.”).
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Parsons’ remaining arguments are directed solely to the credibility of the
eyewitnesses and Officer Correia and alleged inconsistences in the evidence they
provided. “Questions of witness credibility belong to the fact-finder,” and the arguments
Parsons made on direct appeal and makes here “were already presented to, and resolved
by the jury at his trial.” Moye v. Corcoran, 668 F. Supp.2d 523, 539 (W.D.N.Y. 2009)
(citing Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir.1996) (“[A]ssessments of the weight
of the evidence or the credibility of witnesses are for the jury and not grounds for reversal
on appeal.”); collecting cases); see also Perkins v. Comm’r of Corr. Servs., 218 F. App’x
24, 26 (2d Cir. 2007) (unpublished opn.) (“Perkins’s challenge to sufficiency centers on
the reliability and credibility of the sole eyewitness to the crime. Assuming that eyewitness
testimony has been properly admitted, its credibility is for the jury.”).
Furthermore, a reviewing court’s “recitation of inconsistencies in the testimony,”
McDaniel v. Brown, 558 U.S. 120, 133 (2010), would simply demonstrate that court’s
“fail[ure]” to “review the evidence in the light most favorable to the prosecution,” id.,
contrary to the Supreme Court’s directive in Jackson. To find in Parsons’ favor on his
legal insufficiency claim which would require the Court to engage in impermissible “finegrained factual parsing” of the proof which Jackson does not permit. Johnson, 566 U.S.
at 655. The Court accordingly concludes that Parsons has not demonstrated that the
Appellate Division’s rejection of his legal insufficiency claim was an incorrect application
of federal law, much less an unreasonable one.
Finally, the Court rejects Parsons’ attempt to submit a weight of the evidence claim
under the guise of a legal insufficiency argument. A weight of the evidence claim involves
only a matter of state law and thus is not cognizable on federal habeas review. McKinnon
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v. Sup’t, Great Meadow Corr. Fac., 422 F. App’x 69, 75 (2d Cir. 2011) (unpublished opn.)
(“[T]he argument that a verdict is against the weight of the evidence states a claim under
state law, which is not cognizable on habeas corpus, and as a matter of federal
constitutional law a jury’s verdict may only be overturned if the evidence is insufficient to
permit any rational juror to find guilt beyond a reasonable doubt.”) (internal and other
citations omitted).
IX.
Ground 9: Pre-Trial Counsel’s Conflict of Interest
A. Background Relevant to Ground 9
On the first day of trial testimony, the prosecutor mentioned that Funk, who
represented Parsons for two days prior to indictment, had represented Beans, one of the
People’s eyewitnesses. However, the prosecutor stated, Funk would not be appearing at
trial on Beans’ behalf. Tr.335, 341–42. On the basis of this fact, Parsons asserted on
direct appeal that his Sixth Amendment right to counsel was violated because Funk had
a conflict of interest. See SR.263–64. The Appellate Division summarily rejected this
claim as without merit. Parsons, 13 A.D.3d at 1100 (rejecting “remaining contentions” as
“without merit”). This ruling was neither contrary to, nor an unreasonable application of,
clearly established Supreme Court precedent regarding the Sixth Amendment right to
conflict-free counsel.
B. Law Relevant to Ground 9
The Sixth Amendment right to counsel attaches during “the initiation of adversary
judicial criminal proceedings,” Rothgery v. Gillespie Cty., 554 U.S. 191, 198 (2008)
(internal quotation marks omitted), and it guarantees the assistance of counsel during all
“critical stages,” id. “Where a constitutional right to counsel exists, [the Supreme Court’s]
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Sixth Amendment cases hold that there is a correlative right to representation that is free
from conflicts of interest.” Wood v. Georgia, 450 U.S. 261, 271 (1981) (citations omitted).
“The burden of proof rest[s] on [the defendant] to show a conflict of interest by a
preponderance of the evidence.” Triana v. United States, 205 F.3d 36, 40 (2d Cir. 2000)
(citing Harned v. Henderson, 588 F.2d 12, 22 (2d Cir. 1978)).
C. Analysis of Ground 9
Parsons has not established the suggestion of a conflict of interest on Funk’s part.
Notably, there is no evidence that Funk represented Beans at any point in time prior to or
during Funk’s two-day, pre-grand jury representation of Parsons.
Parsons nevertheless asserts that Funk’s representation at trial of Beans, while
Parsons was represented by an entirely different attorney, prejudiced his defense
because Funk “join[ed] the People, represent[ing] a prosecution witness.” SR.264. This
is pure speculation since Beans testified, and the prosecutor confirmed, that no
agreement existed between them with regard to Beans’ testimony. Tr.537, 547–48.
Parsons alludes to the possibility that Funk may have shared certain information with
Beans that Funk learned from his pre-trial representation of Parsons. Again, this is utter
conjecture. The Second Circuit has cautioned that “it is not enough in determining the
existence of an actual conflict of interest merely to assess the attorney’s state of mind”;
rather, there must exist some “objective basis for the claim.” Strouse v. Leonardo, 928
F.2d 548, 553 (2d Cir. 1991). An objective basis is clearly absent in this case. See, e.g.,
Scott v. Racette, No. 1:15-CV-00043-MAT, 2018 WL 451825, at *9 (W.D.N.Y. Jan. 17,
2018) (finding objective basis for conflict of interest “clearly lacking” where petitioner
asserted that trial counsel had “divided loyalty” due to his “prior familiarity” with the arson
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victim and, out of his concern for victim’s daughter, falsely informed petitioner that his
state habeas corpus petition for bail could not be appealed), certificate of appealability
denied, No. 18-495, 2018 WL 4030599 (2d Cir. June 28, 2018).
X.
Ground 10: Ineffective Assistance of Appellate Counsel
Parsons asserts that the assistant public defender from the Monroe County Office
of the Public Defender (“Public Defender”) assigned to represent him on direct appeal
was ineffective for failing to argue that (1) trial counsel was ineffective for failing to excuse
Juror Heath for cause, see Pet., Ground 10(A); and (2) the trial court erroneously denied
trial counsel’s motion for a mistrial following the outburst by a woman who identified
herself as Wright’s mother, see id. Ground 10(B). In addition, Parsons contends that the
Public Defenders Officer should not have handled his appeal because it represented one
of Wright’s family members and thus had a conflict of interest. See Pet., Ground 10(C).
Parsons raised all three claims in his application for a writ of error coram nobis
filed in the Appellate Division. That court summarily denied coram nobis relief without
explanation. This ruling was neither contrary to, nor an unreasonable application of,
clearly established Supreme Court precedent regarding the Sixth Amendment right to
effective appellate counsel.
A. Law Relevant to Ground 10
“Although the Strickland test was formulated in the context of evaluating a claim of
ineffective assistance of trial counsel, the same test is used with respect to appellate
counsel.” Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (citations omitted). “[I]t is
not sufficient for the habeas petitioner to show merely that counsel omitted a nonfrivolous
argument, for counsel does not have a duty to advance every nonfrivolous argument that
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could be made.” Id. (citation omitted). “To establish prejudice in the appellate context, a
petitioner must demonstrate that ‘there was a “reasonable probability” that [his] claim
would have been successful before the [state’s highest court].’” Id. at 534 (quoting Claudio
v. Scully, 982 F.2d 798, 803 (2d Cir. 1992) (footnote omitted in original; brackets in
original)).
B. Analysis of Ground 10
1. Failure to Excuse Juror Heath
Juror Heath was in the first voir dire panel. When the trial judge inquired as to the
prospective jurors’ exposure to information about the case, Juror Heath stated that he
remembered reading about the case six months ago, but the only detail he could
remember was the name “Wright.” Tr.75, 82–86. When asked if reading this article would
affect his ability to be impartial, Juror Heath replied, “The only – I just – I wondered why
he did the crime, why this person was adduced [sic] of the crime or why the crime was
committed. That’s – I’m wondering that, something to do with it, but I don't think that would
make me impartial." Tr.84. Juror Heath repeatedly assured the trial court that he could be
fair and impartial. Id. When the prosecutor asked whether Juror Heath believed Parsons
committed the crime, he answered no and explained he had simply wondered why
someone would commit that crime – “why it was committed.” Tr.84-85. Trial counsel then
obtained Juror Heath’s assurance that he would follow the trial court’s instructions about
the presumption of innocence and the burden of proof. Tr.86. Neither side moved to
excuse Juror Heath. Tr.197–200, 308.
The Second Circuit has characterized trial strategy and voir dire as “inseparable,”
United States v. Lawes, 292 F.3d 123, 128 (2d Cir. 2002), noting that whether to seat a
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particular juror is a “paradigmatically strategic” decision. Ciaprazi v. Senkowski, 151 F.
App’x 62, 63-64 (2d Cir. 2005) (unpublished opn.). Here, counsel actively participated in
voir dire and asserted a Batson challenge. Rather than suggesting a lapse by trial
counsel, the record supports the conclusion that the decision to seat Juror Heath was part
of a reasonable strategic approach to selecting a jury. See Figueroa v. Heath, 10-CV0121, 2011 WL 1838781, at *11 (E.D.N.Y. May 13, 2011) (“[C]ounsel’s active participation
in voir dire indicates that any decisions to challenge (or not to challenge) jurors were made
as part of a reasonable trial strategy, rather than as a result of counsel’s failure to provide
effective assistance.").
Parsons has offered nothing to overcome the “strong” presumption that the
decision to seat Juror Heath was “made . . . in the exercise of reasonable professional
judgment.” Strickland, 466 U.S. at 690. Given that Parsons has not established a
meritorious claim of ineffectiveness of trial counsel, he cannot show that he was
prejudiced by appellate counsel’s decision not to raise such a claim on direct appeal. See,
e.g., Person v. Ercole, No. 08 CIV. 7532 LAP DF, 2015 WL 4393070, at *28 (S.D.N.Y.
July 16, 2015) (“The fact that the underlying federal claim lacks merit also means that
Petitioner suffered no prejudice from appellate counsel’s failure to raise it in the context
of an ineffective-assistance-of-trial-counsel claim, as Petitioner cannot show that such a
claim would have had any likelihood of success.”) (citing Aparicio v. Artuz, 269 F.3d 78,
100 (2d Cir. 2001)).
2. Failure to Argue that Trial Court Erroneously Denied Mistrial
During cross-examination, Hall refused to answer a particular question, prompting
an unidentified spectator to exclaim, “He could plead the Fifth.” Tr.377. The trial court
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immediately directed Hall to step down and put the jury in recess. Id. After the jurors left
the courtroom, the trial court attempted to identify the person who made the remark; a
woman who said she was the victim’s mother admitted she had done so. Tr.377–78. The
trial court had her escorted out of the courtroom; as she was leaving, she said, “[Y]ou can
tell the murderer that killed my son to stop smiling at me. You should have had that too,
you coward. He’s a coward. That’s why you shot my son, that’s because he’s a coward.”
Tr.378.
When court reconvened about 15 minutes later, id., the trial court expressed
concerns that because the woman had become “quite hysterical and [was] screaming in
the courtroom,” “it would be necessary at this point to voir dire the jurors who are in the
jury room, not far away from the audience area where the woman was seated, to see
whether or not they heard anything, and if they did, whether or not that would affect them
at this stage of the proceedings.” Tr.378–80. Trial counsel moved for a mistrial, asserting
his belief that the spectator’s comments were directed at Parsons; in the alternative, he
requested “individual voir dire of the jurors regarding the circumstances.” Tr.380–81. The
trial court reserved decision on the mistrial motion but stated it would “individually voir
dire” the jurors. Tr.381.
The trial court’s voir dire consisted of asking each juror and alternates whether
they had heard anything after they had left the courtroom; whether the jurors had
discussed what they had heard; and whether that would affect their determination in this
case. The court did not mention that the spectator had identified herself as the victim's
mother. Tr.381–97. The trial court found that, based on the voir dire, “there was very
consistent – fourteen different individuals who indicated that some of them may have
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heard some noises or voices, but everybody was very specific that they did not hear any
specific words. In addition, [they said] that that would not affect them in any way.” Tr.397.
The trial court accordingly denied the mistrial motion. Id.
“[B]oth state and federal law are clear that the decision regarding whether to
declare a mistrial lies within the sound discretion of the trial court.” Robinson v. Artus, 664
F. Supp.2d 247, 265 (W.D.N.Y. 2009) (citing Arizona v. Washington, 434 U.S. 497, 510–
11 (1978) (stating that a trial court’s determination of whether to declare a mistrial is
accorded “the highest degree of respect”); People v. Testa, 61 N.Y.2d 1008, 1009
(1984)). Denials of mistrial motions have been upheld in cases involving witness or
spectator outbursts that were actually heard by the jury and were arguably more
prejudicial and inflammatory than the one here. See, e.g., People v. Butler, 214 A.D.2d
1014, 1014–15 (4th Dep’t 1995) (after lengthy and probing cross-examination regarding
the details of the defendant’s alleged rape of complainant in her home, complainant called
defense counsel “asshole” and threatened to “punch him in the nose;” complainant then
ran from the witness stand and burst out crying in the presence of the jury; appellate court
held that trial court did not abuse its discretion in denying the mistrial motion and its failure
to give a sua sponte curative instruction was not error); see also People v. Harp, 20
A.D.3d 672, 673 (3d Dep’t 2005) (finding no abuse of discretion in denial of defendant’s
motion for a mistrial based upon the emotional outbursts on three occasions by his older
stepdaughter and alleged victim of sexual abuse in the presence of the jury and her
audible cries as she left the courtroom).
There is no reasonable probability that, on the facts of this case, a claim asserting
that the trial court abused its discretion in denying a mistrial would have been successful.
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Accordingly, Parsons was not prejudiced by appellate counsel’s decision not to raise such
a claim on direct appeal.
3. Conflict of Interest on the Part of Appellate Counsel’s Office
Parsons was represented on appeal by an attorney with the Public Defender.
According to Parsons, that office should not have handled his appeal because it
previously represented one of the victim’s family members and thus had a conflict of
interest. Pet. Ground 10(C); SR.439–42. Parsons contends that appellate counsel was
ineffective for failing to raise this claim on direct appeal.
As an initial matter, this conflict of interest claim also lacks any factual basis and
cannot provide a basis for relief. See Strouse, 928 F.2d at 553. Even assuming there
were facts suggesting a conflict of interest, they are clearly outside of the record, making
the claim inappropriate for presentation on direct appeal. Pierotti v. Walsh, 834 F.3d 171,
179 (2d Cir. 2016) (because ineffective assistance of counsel “claim ultimately turn[ed]
on facts appearing outside the record,” “the Appellate Division could not have adjudicated
[it] claim on direct appeal”). Parsons was not prejudiced by appellate counsel’s failure to
raise a claim that would have been summarily denied because it relied on matters outside
the record. See Perez v. Cully, No. 1:13-CV-01107 (MAT), 2017 WL 1510660, at *5
(W.D.N.Y. Apr. 27, 2017) (appellate counsel not ineffective for failing to raise issue
involving petitioner’s alleged desire to testify before the grand jury because it was “not
record-based and therefore could not have been brought on direct appeal”) (citations
omitted).
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Case 6:06-cv-06462-CJS Document 48 Filed 05/21/20 Page 93 of 93
CONCLUSION
For the foregoing reasons, the request for a writ of habeas corpus is denied, and
the Amended Petition (ECF No. 23) is dismissed. Because Petitioner has failed to make
a substantial showing of the denial of a constitutional right, see 28 U.S.C. § 2253(c)(2),
the Court declines to issue a certificate of appealability. Leave to appeal to the Court of
Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962).
Further requests to proceed on appeal in forma pauperis should be directed on motion
to the United States Court of Appeals for the Second Circuit in accordance with Rule 24
of the Federal Rules of Appellate Procedure. The Clerk of Court is directed to close this
case.
IT IS SO ORDERED.
DATED:
May 21, 2020
Rochester, New York
________________________________
CHARLES J. SIRAGUSA
United States District Judge
93
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