McKnight v. People of the County of Monroe

Filing 6

DECISION AND ORDER denying petition for a writ of habeas corpus and dismissing the petition. Signed by Hon. Michael A. Telesca on 4/11/11. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
ARON McKNIGHT,
DECISION AND ORDER
No. 09-CV-6168T

Petitioner,
-vsSUPERINTENDENT,
ATTICA CORRECTIONAL FACILITY1

Respondent.
________________________________
I.

Introduction
Pro se petitioner Aron McKnight (“Petitioner”) has filed a

timely petition for a writ of habeas corpus under 28 U.S.C. § 2254
challenging the constitutionality of his custody pursuant to a
judgment entered November 18, 2002, in New York State, Monroe
County Court (Hon. Patricia D. Marks), convicting him, after a jury
trial, of two counts of Sexual Conduct Against a Child in the First
Degree (N.Y. Penal Law (“Penal Law”) § 130.75 [1][a]).

1

Petitioner has failed to identify a proper respondent to his §
2254 habeas corpus petition. Petitioner has named as his respondent People of
the County of Monroe. The correct respondent for a § 2254 habeas proceeding
is the name of the authorized individual having custody of the petitioner. 28
U.S.C. § 2243. Given that Petitioner is incarcerated in the Attica
Correctional Facility, the correct respondent therefore would be the
Superintendent of the Attica Correctional Facility. In light of Petitioner’s
pro se status and the fact that this in no way will prejudice Respondent, and
in the interest of court efficiency, the Court will deem the petition amended
to change the name of Respondent to the Superintendent of the Attica
Correctional Facility. The Clerk of the Court is directed to terminate People
of the County of Monroe as Respondent, add Superintendent of the Attica
Correctional Facility as the new Respondent, and revise the caption of this
action accordingly.

-1-

For the reasons stated below, habeas relief is denied and the
petition is dismissed.
II.

Factual Background and Procedural History
A.

Indictment

Indictment No. 02-133 charged Petitioner with two counts of
Course of Sexual Conduct Against a Child in the First Degree.

The

first count of the indictment charged that Petitioner, on or about
and between June 20, 1997 and September 1, 2001, engaged in two or
more acts of sexual conduct, which included at least one act of
sexual intercourse, deviate sexual intercourse or aggravated sexual
contact, with a child less than eleven years old, to wit:

M.J.

The second count of the indictment charged that Petitioner, on or
about and between September 1, 1998 and September 1, 2001, engaged
in two or more acts of sexual conduct, which included at least one
act of sexual intercourse, deviate sexual intercourse or aggravated
sexual contact with a child less than eleven years old, to wit:
A.S.

See Resp’t App. C at 4-5.
Indictment No. 401-2002 charged Petitioner with one count of

Course of Course of Sexual Conduct against a Child in the First
Degree for having engaged in two or more acts of sexual conduct,
which included at least one act of sexual intercourse, deviate
sexual intercourse or aggravated sexual contact, with a child less
than eleven years old, to wit: Z.S.

-2-

See Resp’t App. C at 13.

On July 10, 2002, the Monroe County Court granted the People’s
motion to consolidate both indictments.

See Resp’t App. C at 64-

68; Trial Trans. [T.T.] of 07/10/02 4.
B.

The Trial
1.

The People’s Case

Darcus Jenkins, the mother of M.J., A.S. and Z.S.,
testified that in September of 1998, her husband, Todd Jenkins,
moved out of the marital home after six years of marriage.

Shortly

thereafter, she began a relationship with Petitioner, whom she had
known to be a friend of her husband.

T.T. 605-608, 638.

In the

year that followed, Darcus Jenkins and her children2 occasionally
spent the night at Petitioner’s apartment on Clifton Street.
other

occasions,

Petitioner

would

Jenkins’s house at 158 Syke Street.

spend

the

night

T.T. 610-611.

at

On

Darcus

Eventually,

Petitioner moved into the Syke Street address with Darcus Jenkins
and her children. Darcus Jenkins usually slept with her daughters,
while Petitioner slept with two of her younger sons, M.J. and A.S.
T.T. 612.
Not long after Petitioner moved in, Darcus Jenkins sought
treatment for a crack cocaine addiction at Park Ridge Hospital
Rehabilitation Clinic and she remained there, with some occasional
absences, from April of 1999 until the beginning of 2000.
613-615.
2

T.T.

During the time periods where Darcus Jenkins was in a

Darcus Jenkins testified that she has eight children.

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T.T. 604.

rehabilitation program or actively using drugs, Petitioner stayed
with her children at the Syke Street address.

T.T. 615-616.

Although Darcus Jenkins’s husband was no longer living with the
children, he remained in their lives and, initially, exercised
unsupervised visitation. T.T. 616-617. In 2000, Darcus placed her
daughters in foster care based on her belief that Petitioner could
not adequately care for girls.

T.T. 618-619.

A.S. and M.J., Darcus Jenkins’s two younger boys, both
testified that they had been subjected to repeated acts of sodomy
at the hands of Petitioner, but that it was far more frequent once
Petitioner moved into their house and they shared a bedroom.
According to A.S. and M.J., Petitioner kept cooking oil and lotion,
which he would use to lubricate his penis prior to abusing them, in
the bedroom.

T.T. 288-289, 296, 388.

At the time of Petitioner’s trial, Z.S., one of Darcus
Jenkins’s

daughters,

was

nine-years-old.

She

testified

that

Petitioner began sexually abusing her when she was six-years-old by
placing his finger and his penis in her “butt” and by licking her
“private part.”

T.T. 497.

placed in foster care.

The abuse continued until she was

T.T. 502.

Several of Darcus Jenkins’s children witnessed their
siblings being abused by Petitioner.

M.J. and his sister A.J.

testified that, on one particular occasion when they were looking
for A.S., they had peeked through a hole in Petitioner’s bedroom.

-4-

From their vantage point, they testified that they saw Petitioner
in bed with A.S.

They further testified that A.S. was laying on

his stomach, while Petitioner was on top of A.S.
299, 533-536.

T.T. 295-296,

M.J. also testified that one night he and his sister

Z.S. were sleeping on the floor and he woke to find Petitioner “on
top” of Z.S., moving “up and down on her.”

T.T. 303-304.

A.S.

testified that he witnessed Petitioner sodomize M.J. and Z.S. T.T.
384-385.

A.S. and M.J. also testified to various incidents of

physical abuse at the hands of Petitioner, including being struck
by “a switch, [Petitioner’s] hand, a boot or a stick.”

T.T. 298,

382.
M.J., A.S., and Z.S. testified that they told their mother
about Petitioner’s abuse.

Darcus Jenkins did not believe the

children and usually disclosed their accusations to Petitioner,
which,

in

some

instances,

disciplined by Petitioner.

led

the

children

to

be

physically

T.T. 297, 388-390, 502-503.

Because

their mother would not help them, M.J. and A.S. began writing down
what Petitioner had been doing to them, and gave these writings to
their father.

As a result, Todd Jenkins confronted Petitioner and

a physical altercation ensued.

T.T. 305, 390.

Circumstances changed in August of 2001 when Gregory Creswell
(“Creswell”), a child protection worker assigned to the Monroe
County Department of Social Services IMPACT team, met with M.J. and
A.S.

T.T. 413-414.

Creswell testified that on August 15, 2001, he

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went to 111 Westfall Road because there was a supervised visitation
schedule between Darcus Jenkins and her children.

Creswell hoped

to speak with each boy about their allegations of abuse.

When

Creswell was asked to discuss his contact with A.S., he explained
that A.S. was reluctant to speak with him at first, but, after a
period of time, opened up to him and disclosed incidents of sexual
abuse in the home where he was living.

T.T. 415-417.

Creswell

further testified that M.J. was also reluctant to speak with him at
first, but after a period of time, opened up to him and disclosed
incidents

of

T.T. 417-419.

sexual

abuse

in

the

home

where

he

was

living.

After Creswell’s conversation with A.S. and M.J.,

the boys were removed from the home and placed in foster care.
T.T. 420.
Ann Lenane (“Lenane”) testified that she was a pediatrician at
Strong Memorial Hospital and was the medical director of the REACH
clinic where she evaluates children for physical or sexual abuse.
T.T. 240.

Lenane testified that she met A.S. at the REACH clinic

for an examination on August 21, 2001.

She observed two linear

scars on the side of A.S.’s right eye, a linear scar on his upper
right arm and a scar on the side of his nose.

T.T. 245-247, 249.

Lenane testified that such scarring is consistent with having been
struck with an object.
found to be normal.

A.S.’s rectal area was also examined and

T.T. 249-250.

Lenane also examined M.J. and

observed numerous scars on his face and linear scarring was found

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on his back, abdomen, and leg.
of M.J.’s rectal area.
2.

Two small scars were noted outside

T.T. 252.

The Defense’s Case

Judith

Neuderfer

(“Neuderfer”)

a

pediatric

nurse

practitioner who had treated A.S. and M.J. in the past, testified
that she had seen each boy five-six times since they were infants
and

that

she

never

noted

physical examinations.

anything

“remarkable”

T.T. 652-653, 655, 659.

during

their

During cross-

examination, Neuderfer acknowledged that A.S. and M.J. did not come
into the clinic for examinations every year and that Petitioner was
present for their interviews and subsequent examinations in 1999,
2000, and 2001.

T.T. 659-660.

Nathan Hanks (“Hanks”), a mental health therapist, worked with
A.S. and M.J. from June of 2001 until October of 2001.

T.T. 661-

663. Hanks testified that from June through August of 2001 neither
boy disclosed any sexual abuse even though Petitioner was not
present for portions of their counseling sessions.

T.T. 663-664.

He testified further that Petitioner was always waiting for the
boys after their sessions were completed and the boys were returned
to Petitioner’s custody after each session.

T.T. 667-668.

Anthony Barton (“Barton”) testified that A.S. and M.J. came to
his daycare facility for about one hour before school and one and
one-half hours after school.

T.T. 669-670.

A.S and M.J. were two

of twelve children that were supervised by Barton.

-7-

T.T. 674.

Barton

testified

that

neither

boy

ever

disclosed

any

abuse.

T.T. 672.
Two Monroe County Child Protection employees, Kathy Bonisteel
(“Bonisteel”) and Monise Cylear (“Cylear”), testified that they
were assigned the case involving the children of Darcus Jenkins at
various times from May of 1999 until August of 1999.
768.

T.T. 762,

Bonisteel testified that she met with the children only once

during that time period and that during that single meeting, they
did not disclose any abuse.

T.T. 768.

Cylear testified that she

had met with the children less than once a week during that time
period and that no abuse was ever disclosed.

T.T. 783-784.

Petitioner testified in his own defense, maintaining that
M.J., A.S. and Z.S. were coerced by their father and grandparents
to falsely accuse him of sexual abuse.

Petitioner testified that

Todd Jenkins harassed him constantly in an attempt to have M.J. and
A.S. returned to his custody. T.T. 715. Petitioner also testified
that although the doorknob on his bedroom door had been broken, he
had placed a piece of wood over the hole, such that the interior of
his bedroom was not visible from the hallway.

T.T. 720.

On

cross-examination, he testified that, during a September 19, 2001
interview with Rochester police, he told Investigators Gerbino and
Coniglio about the threats from Todd Jenkins.

T.T. 743.

Also on

cross-examination, he testified that during that same interview, he

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told Investigators Gerbino and Coniglio that he had covered the
hole in his door with a board and a cloth.
3.

T.T. 733.

The People’s Rebuttal

Investigator Gerbino testified that during an interview
with Petitioner on September 19, 2001, Petitioner indicated that
the doorknob of his bedroom was off and that he had put a cloth,
but not a board, over the hole to cover it.

T.T. 825.

On cross-

examination, Investigator Gerbino testified that Petitioner never
mentioned the name of Todd Jenkins in relation to the alleged
“abusive relationship” Darcus Jenkins shared with him.

T.T. 829-

830.
C.

Verdict and Sentence

Petitioner was found guilty of two counts of Course of Sexual
Conduct Against a Child in the First Degree (pertaining to his
crimes against M.J. and A.S.).

He was acquitted of one count of

Course of Sexual Conduct Against a Child in the First Degree
(pertaining to the allegations of abuse made by Z.S.).

T.T. 947-

948.
On November 18, 2002, Petitioner was sentenced to consecutive
twenty-five year terms of incarceration with ten years of postrelease supervision.
D.

Sentencing Mins. [S.M.] 22.

The Direct Appeal

The Appellate Division, Fourth Department unanimously affirmed
Petitioner’s conviction on October 28, 2008.
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People v. McKnight,

55 A.D.3d at 1315 (4th Dep’t 2008) (Resp’t App. E); lv. denied, 11
N.Y.3d at 927 (2009) (Resp’t App. H).
E.

The Habeas Corpus Petition

This habeas corpus petition followed, wherein Petitioner seeks
relief on the following grounds: (1) his conviction was obtained by
use of a coerced confession; (2) his conviction was obtained by use
of evidence pursuant to an unlawful arrest; (3) his conviction was
obtained by violation of the privilege against self-incrimination;
(4) the prosecution failed to disclose evidence favorable to the
defense; (5) his conviction was obtained by action of a grand jury
or petit jury which was unconstitutionally selected and impaneled;
(6) he was denied his right to appeal by the New York State Court
of Appeals; (7) the trial court erred/abused its discretion;
(8) cumulative trial error;

and (9) harsh and excessive sentence.

See Pet. ¶ 22, Attach. at 1-2.

(Dkt. # 1).

III. General Principles Applicable to Habeas Review
A.

The AEDPA Standard of Review

Under the Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”), a federal court may grant habeas relief to a state
prisoner only if a claim that was “adjudicated on the merits” in
state court “resulted in a decision that was contrary to, or
involved

an

unreasonable

application

of,

clearly

established

Federal law, as determined by the Supreme Court of the United
States,” 28 U.S.C. § 2254(d)(1), or if it “was based on an
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unreasonable determination of the facts in light of the evidence
presented in the state court proceeding.” § 2254(d)(2).

A state

court decision is “contrary to” clearly established federal law “if
the state court arrives at a conclusion opposite to that reached by
[the Supreme Court] on a question of law or if the state court
decides a case differently than [the Supreme Court] has on a set of
materially indistinguishable facts.”
362, 413 (2000).

Williams v. Taylor, 529 U.S.

The phrase, “clearly established Federal law, as

determined by the Supreme Court of the United States,” limits the
law governing a habeas petitioner’s claims to the holdings (not
dicta) of the Supreme Court existing at the time of the relevant
state-court decision.

Williams, 529 U.S. at 412;

accord Sevencan

v. Herbert, 342 F.3d 69, 73-74 (2d Cir. 2002), cert. denied, 540
U.S. 1197 (2004).
A

state

court

decision

is

based

on

an

“unreasonable

application” of Supreme Court precedent if it correctly identified
the governing legal rule, but applied it in an unreasonable manner
to the facts of a particular case.
also id. at 408-10.

Williams, 529 U.S. at 413;

see

“[A] federal habeas court is not empowered to

grant the writ just because, in its independent judgment, it would
have decided the federal law question differently.”
Artuz, 269 F.3d 78, 94 (2d Cir. 2001).

Aparicio v.

Rather, “[t]he state

court’s application must reflect some additional increment of
incorrectness such that it may be said to be unreasonable.”

-11-

Id.

This increment “need not be great; otherwise, habeas relief would
be limited to state court decisions so far off the mark as to
suggest judicial incompetence.” Francis S. v. Stone, 221 F.3d 100,
111 (2d Cir. 2000) (internal quotation marks omitted).
Under AEDPA, “a determination of a factual issue made by a
State court shall be presumed to be correct.

The [petitioner]

shall have the burden of rebutting the presumption of correctness
by clear and convincing evidence.”

28 U.S.C. § 2254(e)(1);

see

also Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003) (“The
presumption of correctness is particularly important when reviewing
the trial court’s assessment of witness credibility.”), cert.
denied sub nom. Parsad v. Fischer, 540 U.S. 1091 (2003).

A state

court’s findings “will not be overturned on factual grounds unless
objectively unreasonable in light of the evidence presented in the
state-court proceeding.”

Miller-El v. Cockrell, 537 U.S. 322, 340

(2003).
B.

Exhaustion Requirement

“An application for a writ of habeas corpus on behalf of a
person in custody pursuant to a judgment of a State court shall not
be granted unless it appears that . . . the applicant has exhausted
the remedies available in the courts of the State. . . .” 28 U.S.C.
§ 2254(b)(1)(A);
843-44 (1999);

see, e.g., O’Sullivan v. Boerckel, 526 U.S. 838,
accord, e.g., Bossett v. Walker, 41 F.3d 825, 828

(2d Cir.1994), cert. denied, 514 U.S. 1054 (1995). “The exhaustion

-12-

requirement is not satisfied unless the federal claim has been
‘fairly presented’ to the state courts.” Daye v. Attorney General,
696 F.2d 186, 191 (2d Cir. 1982) (en banc), cert. denied, 464 U.S.
1048 (1984).

“The exhaustion requirement is principally designed

to protect the state courts’ role in the enforcement of federal law
and prevent disruption of state judicial proceedings, and is not
satisfied unless the federal claim has been fairly presented to the
state courts.”

Jimenez v. Walker, 458 F.3d 130, 148-149 (2d Cir.

2006) (internal citations and quotation marks omitted).
However, “[f]or exhaustion purposes, ‘a federal habeas court
need not require that a federal claim be presented to a state if it
is clear that the state court would hold the claim procedurally
barred.’”
Harris

v.

Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (quoting
Reed,

circumstances,

a

489

U.S.

habeas

255,

263

petitioner

n.9
“no

(1989).
longer

Under

has

such

‘remedies

available in the courts of the State’ within the meaning of 28
U.S.C. Section 2254(b).”

Grey, 933 F.2d at 120.

The procedural

bar that gives rise to the finding that the claim should be deemed
exhausted works a forfeiture and precludes federal court litigation
of the merits of the claim absent a showing of cause for the
procedural

default

and

prejudice

resulting

therefrom

or

by

demonstrating that failure to consider the claim will result in a
fundamental miscarriage of justice.
U.S. 72, 87-91 (1977).

-13-

See Wainwright v. Sykes, 433

C.

The Adequate and Independent State Ground Doctrine

A procedural default generally bars a federal court from
reviewing the merits of a habeas claim.

Id.

Federal habeas review

is prohibited if a state court rests its judgment on a state law
ground that is “independent of the federal question and adequate to
support the judgment.”

Cotto v. Herbert, 331 F.3d 217, 238 (2d

Cir. 2003) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991));
accord Jones v. Stinson, 229 F.3d 112, 117 (2d Cir. 2000).

A state

procedural bar qualifies as an “independent and adequate” state law
ground where “‘the last state court rendering a judgment in the
case clearly and expressly states that its judgment rests on a
state procedural bar.’”

Levine v. Comm’r of Corr. Servs., 44 F.3d

121, 126 (2d Cir. 1995) (quoting Harris v. Reed, 489 U.S. 255, 262
(1989)).

A state procedural rule will be adequate to preclude

habeas review if it is “firmly established and regularly followed,”
unless the state rule is “exorbitant.”

Lee v. Kemna, 534 U.S. 362,

376 (2002) (quoting James v. Kentucky, 466 U.S. 341, 348 (1984)).
A federal court may review a claim, notwithstanding the
petitioner’s default, if he “can demonstrate cause for the default
and actual prejudice as a result of the alleged violation of
federal law.”

Coleman, 501 U.S. at 750;

at 126; Grey, 933 F.2d at 121.

see also Levine, 44 F.3d

A petitioner may establish cause by

pointing to “some objective factor external to the defense [that]
impeded counsel’s efforts to comply with the State’s procedural

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rule.”

Murray v. Carrier, 477 U.S. 478, 488 (1986);

accord

Coleman, 501 U.S. at 753. A petitioner suffers actual prejudice if
the outcome of the case would likely have been different had the
alleged constitutional violation not occurred.

See Reed v. Ross,

468 U.S. 1, 12 (1984). Alternatively, even if the petitioner is
unable to show cause and prejudice, the court may consider the
claim if he can demonstrate that failure to do so will result in a
“fundamental miscarriage of justice.”

Coleman, 501 U.S. at 750.

IV.

Merits of the Petition

1.

Four of Petitioner’s Claims are Unexhausted
Exhausted and Procedurally Defaulted

But

Deemed

Petitioner asserts, for the first time in the instant habeas
petition, the following claims: (1) his conviction was obtained by
use of a coerced confession; (2) his conviction was obtained by use
of evidence pursuant to an unlawful arrest; (3) the prosecution
failed to disclose evidence favorable to the defense; and (4) his
conviction

was

obtained

by

impaneled grand or petit jury.

action

of

an

unconstitutionally

See Pet. ¶ 22A, B, D.3

Because

Petitioner failed to properly exhaust these claims in state court,
they are procedurally defaulted from review by this Court.
These claims are raised for the first time in the instant
habeas petition, and are therefore unexhausted because Petitioner
did not “fairly present” them to the state courts for review.

3

Petitioner has more than one claim listed at ¶ 22D of the habeas
corpus petition.

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Daye, 696 F.2d at 191.

These issues were not brought before the

state court on direct appeal, and Petitioner cannot appeal these
claims in the Court of Appeals because he has already made one
request for leave to appeal to which he is entitled.
Court R. § 500.20.

See N.Y.

Collateral review of these record-based claims

is also barred because they could have been raised on direct appeal
but unjustifiably were not.

C.P.L. § 440.10(2)(c).

Thus, any

attempt by Petitioner to seek state court review pursuant to
§ 440.10 would be futile.

Because a state court would find

Petitioner’s unexhausted claims procedurally barred from state
review, they are deemed exhausted and procedurally defaulted from
habeas review.

Grey, 933 F.2d at 120-21.

A finding of procedural default bars habeas review of the
federal claim unless Petitioner can show cause for the default and
prejudice attributable thereto, or demonstrate that failure to
consider the claim will result in a fundamental miscarriage of
justice.

See Murray, 477 U.S. at 492;

87-91 (1977).

Wainwright, 433 U.S. at

Petitioner has not alleged cause and prejudice to

overcome the procedural default, nor has he demonstrated that the
Court’s failure to review these claims will result in a fundamental
miscarriage of justice.

Accordingly, Petitioner’s claims are

dismissed as procedurally defaulted.
In

any

event,

even

if

the

claims

were

not

procedurally

defaulted, they are meritless to the extent they lack a factual

-16-

basis.

With respect to claims (1) and (2), Petitioner never

confessed to law enforcement and there was no tangible physical
evidence obtained from him at the time of his arrest that was
introduced by the People at trial.
claims

(3)

and

(4),

Petitioner

Similarly, with respect to

alleges

no

supporting

facts

explaining how or in what way an alleged Brady violation occurred
and/or his conviction was obtained by action of an allegedly
unconstitutionally impaneled grand or petit jury.
2.

Denial of Right to Appeal
Petitioner argues, for the first time in the habeas petition,

that he was “deni[ed] [the] right to appeal, by N.Y.S. Court of
Appeals 4th Dept. Albany, New York 22226.”

See Pet. ¶ 22D.

Although this claim is raised for the first time in the instant
habeas corpus petition and is therefore unexhausted for federal
habeas purposes, it may be denied on the merits.4

See 28 U.S.C. §

2254(b)(2).
It is unclear to this Court precisely what Petitioner is
arguing due to the ambiguity in which he has asserted this claim

4

The Second Circuit has not yet established a standard for denying
unexhausted claims under 28 U.S.C. § 2254(b)(2), but all four districts in New
York have applied the “patently frivolous” test for dismissing such claims.
See, e.g., Love v. Kuhlman, 2001 U.S. Dist. LEXIS 22572, 99 Civ. 11063
(S.D.N.Y. Dec. 12, 2001); Cruz v. Artuz, 2002 U.S. Dist. LEXIS 11150, 97 Civ.
2508 (E.D.N.Y. June 24, 2002); Toland v. Walsh, 2008 U.S. Dist. LEXIS 24616,
02 Civ. 0399 (N.D.N.Y. Mar. 26, 2008); Hammock v. Walker, 224 F. Supp. 2d 544
(W.D.N.Y. 2002). A minority of courts in this Circuit have denied such
petitions when they do not raise even a colorable federal claim. See
Hernandez v. Lord, 2000 U.S. Dist. LEXIS 10228, 00 Civ. 2306 (S.D.N.Y. July
21, 2000) (discussing cases applying this standard). Under either of these
standards, Petitioner's claim is meritless.

-17-

coupled with the absence of any supporting facts.

The record

reflects that Petitioner appealed his judgment of conviction to the
Appellate Division, Fourth Department, which unanimously affirmed
his judgment of conviction on October 3, 2008.
A.D.3d 1315 (4th Dep’t 2008).

See McKnight, 55

Subsequently, he sought leave to

appeal in the New York Court of Appeals, which was denied on
January 27, 2009.

See McKnight, 11 N.Y.3d 927 (2009).

Petitioner

was entitled to one (and only one) appeal to the Fourth Department
and one request for leave to appeal to the Court of Appeals, both
of which he pursued.

See CPL § 450.10 [1]; N.Y. Court R. § 500.20.

Accordingly, Petitioner’s claim that he was denied his right to
appeal is meritless, and is dismissed.
3.

Harsh and Excessive Sentence
Petitioner argues, as he did on direct appeal, that his

sentence is harsh and excessive.

See Pet., Attach. at 2.

The

Fourth Department rejected this claim on the merits, finding that
“the sentence is not unduly harsh or severe.”
at 1317.

McKnight, 55 A.D.3d

This claim is not cognizable by this Court on habeas

review.
It is well-settled that a habeas petitioner’s challenge to the
length of his or her prison term does not present a cognizable
constitutional issue if the sentence falls within the statutory
range.

Townsend

v.

Burke,

334

U.S.

736,

741

(1948)

(“The

[petitioner’s] sentence being within the limits set by the statute,

-18-

its severity would not be grounds for relief here even on direct
review of the conviction, much less on review of the state court’s
denial of habeas corpus.”);

White v. Keane, 969 F.2d 1381, 1383

(2d Cir. 1992) (“No federal constitutional issue is presented where
. . . the sentence is within the range prescribed by state law.”)
(citing Underwood v. Kelly, 692 F.Supp 146 (E.D.N.Y. 1988), aff’
mem., 875 F.2d 857 (2d Cir. 1989));

accord Ross v. Gavin, 101 F.3d

687 (2d Cir. 1996) (unpublished opinion).

Because Petitioner’s

sentence falls within the permissible statutory range, he may not
challenge the length of the sentence in the instant proceeding.
Here, Petitioner was sentenced to consecutive twenty-five year
determinate terms of imprisonment.

S.M. 22.

the range prescribed by New York law.

This term is within

See Penal Law § 130.75

[1][a], 70.02 [2],[3].
Accordingly, Petitioner’s claim provides no basis for habeas
relief and is dismissed.
4.

Trial Court Erred in Failing to Properly Admonish the Jury
Petitioner argues, as he did on direct appeal, that the trial

court erred in failing to properly admonish the jury with respect
to its functions, duties and conduct each time the court adjourned
the trial.

See Pet., Attach. at 2.

The Fourth Department rejected

this claim on a state procedural ground, finding that Petitioner
had failed to properly preserve the issue for appellate review.

-19-

McKnight,

55

A.D.3d

at

1317.

Consequently,

this

claim

is

procedurally barred from review by this Court.
A federal court may not review a question of federal law
decided by a state court if the state court’s decision rested on a
state law ground that is independent of the federal question and
adequate to support the judgment.

See Coleman, 501 U.S. at 729.

Here, the state court relied on New York’s preservation rule
(codified at CPL § 470.05(2)) to deny Petitioner’s claim because
the issue had not been properly preserved for appellate review.
See McKnight, 55 A.D.3d at 1317. The Second Circuit has determined
that

CPL

§

470.05(2)

procedural ground.
(2d Cir. 1999);

is

an

independent

and

adequate

state

See Garcia v. Lewis, 188 F.3d 71, 79-82

Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir.

1990). The Fourth Department’s reliance on New York’s preservation
rule is an adequate and independent state ground which precludes
this Court’s review of it.
As discussed infra, a finding of procedural default bars
habeas review of the federal claim unless Petitioner can show cause
and prejudice, or demonstrate that failure to consider the claim
will result in a fundamental miscarriage of justice.
477 U.S. at 492;

Wainwright, 433 U.S. at 87-91 (1977).

See Murray,

has not alleged either.

Petitioner

Accordingly, his claim is procedurally

defaulted from review by this Court, and is dismissed.

-20-

5.

Remaining Trial Court Errors
Petitioner argues, as he did on direct appeal, that various

instances of trial court error, individually, deprived him of his
right to a fair trial.

These alleged errors are as follows:

(1) the trial court erred/abused its discretion in failing to
instruct the jury that Petitioner had a constitutional right not to
testify;

and (2) the trial court erred in prohibiting cross-

examination of the male victims concerning alleged prior false
allegations of sexual abuse.

See Pet. ¶ 22C, Attach. at 1-2.

As

discussed below, neither of these claims provide a basis for habeas
relief.
“Federal habeas relief ‘does not lie for errors of state
law.’”

McCall v. Artus, No. 06 CV 3365 (SAS), 2008 U.S. Dist.

LEXIS 113213, at *24 (S.D.N.Y. Sept. 29, 2008) (quoting Estelle v.
McGuire, 502 U.S. 62, 67 (1991)).

In other words, “ . . . a

federal habeas court is limited to deciding whether a conviction
violated the Constitution, laws or treaties of the United States.”
Estelle, 502 U.S. at 67-68.

Therefore, for Petitioner to sustain

a claim based on trial court error, he must show that any error of
state

law

“‘render[ed]

petitioner’s

state

trial

fundamentally

unfair’ and thus violated his constitutional due process rights.”
Herring

v.

Meachum,

11

F.3d

374,

377

(2d

Cir.1993)

Tribbitt v. Wainwright, 540 F.2d 840 (5th Cir. 1976).
is unable to meet this standard.

-21-

(quoting

Petitioner

A.

Trial Court Did Not Err/Abuse its Discretion in Failing
to Instruct the Jury at Outset of Trial that Petitioner
had Constitutional Right Not to Testify

Petitioner

argues

that

the

trial

court

erred/abused

its

discretion in failing to instruct the jury at the outset of the
trial that he had a constitutional right not to testify.
¶ 22C, Attach. at 1.

See Pet.

The Fourth Department rejected this claim,

finding as follows:
Defendant further contends that reversal is
warranted because the court failed to instruct the
jury at the outset of the trial that defendant had
a constitutional right not to testify. Although
defense counsel requested that instruction, he did
so after the People’s opening statements and thus
the request was untimely. In denying the request,
the court stated that it would give the
instruction at the conclusion of the case, if
requested to do so, and we conclude that the
court’s decision to wait until after summations to
deliver the instruction was not erroneous.
McKnight, 55 A.D.3d at 1316-1317.
To warrant habeas relief based on an erroneous state jury
instruction,
instruction

“it
is

must

be

undesirable,

established

not

erroneous,

or

merely
even

that

the

‘universally

condemned,’ but that it violated some right which was guaranteed to
the defendant by the Fourteenth Amendment.”
U.S. 141, 146 (1973);
(2d Cir. 2001);
1999).

In

Cupp v. Naughten, 414

accord Davis v. Strack, 270 F.3d 111, 123

Smalls v. Batista, 191 F.3d 272, 277 (2d Cir.

addition,

[t]he

burden

of

demonstrating

that

an

erroneous instruction was so prejudicial that it will support a
collateral attack on the constitutional validity of a state court’s
-22-

judgment is even greater than the showing required to establish
plain error on direct appeal.

The question in such a collateral

proceeding is “whether the ailing instruction by itself so infected
the entire trial that the resulting conviction violates due process
. . . .”

Henderson v. Kibbe, 431 U.S. 145, 154 (1977);

Estelle, 502 U.S. at 72 (1991);
(2d Cir. 1990).

accord

Roy v. Coxon, 907 F.2d 385, 391

Moreover, petitioner bears an “especially heavy”

burden in demonstrating constitutional error based on an omission
because an “an omission, or an incomplete [jury] instruction, is
less

likely

to

be

prejudicial

Henderson, 431 U.S. at 155;
534,

542

(2d

Cir.

than

a

misstatement

of

law.”

accord Blazic v. Henderson, 900 F.2d

1990).

Thus,

to

succeed

on

this

claim,

Petitioner must show that the trial judge’s omission of certain
jury instructions or the incomplete nature of his preliminary
instructions (1) violated New York law and (2) resulted in a
deprivation of his right to due process.

See Davis v. Strack, 270

F.3d 111, 123 (2d Cir. 2001); Manson v. Haponik, 05-CV-3412 (BMC),
2007 U.S. Dist. LEXIS 51934, at *10 (E.D.N.Y. July 18, 2007).
Here, Petitioner has not shown that the trial court’s failure
to instruct the jury at the outset of the trial that Petitioner had
a right not to testify was an error of state law, much less an
error of federal constitutional dimension.
CPL § 300.10(2) provides:

“Upon request of a defendant who

did not testify in his own behalf, but not otherwise, the court

-23-

must state that the fact that he did not testify is not a factor
from which any inference unfavorable to the defendant may be
drawn.”

This rule prohibiting a “no inference” charge absent

defendant’s request applies to instructions given during voir dire.
See People v. Koberstein, 66 N.Y.2d 989 (1985);

People v Boyd 53

N.Y.2d 912 (1981).
CPL § 270.40 provides:
After the jury has been sworn and before the
People’s opening address, the court must
instruct the jury generally concerning its
basic functions, duties and conduct. Such
instructions
must
include,
among
other
matters, admonitions that the jurors may not
converse among themselves or with anyone else
upon any subject connected with the trial;
that they may not read or listen to any
accounts or discussions of the case reported
by newspapers or other news media; that they
may not visit or view the premises or place
where the offense or offenses charged were
allegedly committed or any other premises or
place involved in the case; that prior to
discharge, they may not request, accept, agree
to accept, or discuss with any person
receiving or accepting, any payment or benefit
in consideration for supplying any information
concerning the trial; and that they must
promptly report to the court any incident
within their knowledge involving an attempt by
any person improperly to influence any member
of the jury.
CPL § 270.40 (emphasis added).
In this case, since defense counsel waited until after opening
statements had been delivered, the trial court did not err/abuse
its discretion in refusing to give the requested instruction at the
outset of the trial.
-24-

Moreover,

even

if

the

trial

court

erred

or

abused

its

discretion in refusing the requested instruction, such error does
not, ipso facto, provide a basis for habeas relief.
502 U.S. at 71.

See Estelle,

The issue is whether the omission of this one

particular preliminary instruction “so infected the entire trial
that the resulting conviction violate[d] due process.”
Naughten, 414 U.S. at 147.

Cupp v.

The Court finds that it did not.

Although the trial court refused to give the requested preliminary
instruction at the outset of the trial, it offered to give the
instruction
requested.

at

the

conclusion

T.T. 237.

Additionally,

the

of

the

case,

if

the

defense

Petitioner subsequently testified at trial.

Court

notes

that,

in

its

preliminary

jury

instruction, the trial court judge explained “what the trial
involves and what roles the Judge and jury play[,]” specifically
stating that “the defendant is presumed innocent.”

T.T. 7-10.

And, its final jury instruction, the trial court conveyed to the
jury

the

burden

of

proof

and

the

presumption

of

innocence,

specifically stating that Petitioner was not required to prove or
disprove anything.

T.T. 901.

Accordingly, the Court cannot find that the trial court’s
omission of the requested preliminary instruction at the outset of
the

trial

“so

infected

the

entire

conviction violate[d] due process.”

trial

that

the

As such, habeas relief is

unavailable to Petitioner, and the claim is dismissed.

-25-

resulting

B.

Trial Court Did Not Err in Prohibiting Cross-Examination
of
Male
Victims
Concerning
Alleged
Prior
False
Allegations of Sexual Abuse

Petitioner contends that the trial court erred in prohibiting
him from cross-examining the male victims concerning alleged prior
false allegations of sexual abuse.

See Pet., Attach at 1-2.

The

Fourth Department rejected this claim on the merits, holding as
follows:
Defendant contends that County Court erred in
prohibiting him from cross-examining the two
male victims concerning alleged prior false
allegations of sexual abuse, inasmuch as
confidential reports establish that such
allegations were indeed made.
We reject
defendant’s contention. Based on our review
of the confidential reports, we conclude that
there is insufficient proof in those reports
to establish that the two male victims made
any prior allegations that were false or
suggestive of a pattern that casts doubt on
the validity of, or bore a significant
probative relation to, the instant charges.
McKnight, 55 A.D.3d at 1316 (internal citations and quotations
omitted).
New York’s Rape Shield Law (codified at CPL § 60.42), which
the trial court determined precluded the admission of evidence of
prior sexual abuse or accusations of abuse between and among the
male victims, is an evidentiary rule limiting the admissibility of
evidence

of

a

victim’s

sexual

conduct

T.T. 214-215; see CPL § 60.42.

in

sex-offense

cases.

As discussed infra, “federal

habeas corpus relief does not lie for errors of state law.”
Estelle, 502 U.S. at 67 (1991)(citation omitted).
-26-

An evidentiary

ruling, which is a matter of state law, when erroneous, may provide
a basis for habeas corpus relief only if a petitioner establishes
that it “so infused the trial with unfairness as to deny due
process of law.”

Id. at 75 (citation omitted).

Here, Petitioner

cannot demonstrate an error of state law, let along an error of
federal constitutional magnitude.
CPL § 60.42 provides as follows:
Evidence of a victim’s sexual conduct shall
not be admissible in a prosecution for an
offense or an attempt to commit an offense
defined in article one hundred thirty of the
penal law unless such evidence:
1. proves or tends to prove specific instances
of the victim’s prior sexual conduct with the
accused; or
2. proves or tends to prove that the victim
has been convicted of an offense under section
230.00 of the penal law [i.e., offenses
relating to prostitution] within three years
prior to the sex offense which is the subject
of the prosecution; or
3. rebuts evidence introduced by the people of
the victim’s failure to engage in sexual
intercourse, oral sexual conduct, anal sexual
conduct or sexual contact during a given
period of time; or
4. rebuts evidence introduced by the people
which proves or tends to prove that the
accused is the cause of pregnancy or disease
of the victim, or the source of semen found in
the victim; or
5. is determined by the court after an offer
of proof by the accused outside the hearing of
the jury, or such hearing as the court may
require, and a statement by the court of its
findings
of
fact
essential
to
its
-27-

determination, to be relevant and admissible
in the interests of justice.
The record reflects that Petitioner sought to cross-examine
the two male victims about prior claims of sexual abuse made by the
victims against a third party.

Initially, Petitioner claimed this

evidence would demonstrate confusion on the part of the victims.
T.T. 5-6. Citing counsel’s failure to demonstrate confusion on the
part of the victims, the Court precluded any comment during voir
dire about the existence of past abuse.

The trial court noted,

however, that should it become apparent that the victims confused
Petitioner’s abuse with what they may have suffered at the hands of
others, defense counsel could renew his request.
prior

to

opening

statements,

Petitioner

initial theory of admissibility.

T.T. 7.

slightly

Then,

altered

his

Defense counsel’s argument was

predicated on his speculation that the victims would be viewed as
“innocents” by the jury and that their use of sexually explicit
terminology would cause the jury to believe that Petitioner must be
guilty, for if he was not, how would the children know the meaning
of such words.

T.T. 208-210.

The trial court denied Petitioner’s

application, noting that the proposed line of questioning would not
be relevant unless the prosecutor insinuated that the only way the
victims would know about certain sexual topics was because of what
was alleged at trial (i.e., that Petitioner sexually abused them).
T.T. 210. Finally, Petitioner argued that the prior allegations by

-28-

the victims were relevant as they were false allegations of sexual
abuse.

T.T. 116-117.

In reviewing Petitioner’s position, the

trial court found as follows:
Once you provide proof that M.J. reported that his
siblings, he and his siblings engaged in anal
intercourse, then it becomes relevant because of
his doctor’s testimony.
But my recollection is
that no such specific complaint is documented
anywhere. So once you provide the document, that
document itself, we can go into that. I understand
that
your
application
is
also
because
the
allegations made by A.S. and Z.S. were found to be
false, and the finding of their falsity is really
not admissible.
T.T. 278-279.
In this case, since the proposed cross-examination did not
fall within any of the four categorical exceptions to the general
rule of inadmissiblity, Petitioner was required to make an offer of
proof

establishing

that

the

evidence

admissible in the interest of justice.

was

both

relevant

CPL § 60.42 [5].

and

As found

by the Fourth Department, he failed to make such an offer of proof.
Petitioner

has

failed

to

present

any

evidence

to

rebut

the

presumption of correctness of the factual determination made by the
Fourth Department that there was insufficient proof in certain
confidential reports to establish that the two male victims made
any prior allegations that were false. See 28 U.S.C. § 2254(e)(1).
Federal courts in this Circuit have held that rape shield
statutes represent an appropriate limit on the Sixth Amendment’s
right

of

an

accused

to

“confront

-29-

his

accusers”

through

the

opportunity for effective cross-examination.
Hoke,

695

F.

Supp.

1435,

1439

(E.D.N.Y.

See e.g., Carroll v.
1988)

(exclusion

of

testimony pursuant to Rape Shield Law did not violate defendant’s
constitutional

right

of

confrontation

where

ample

evidence

impeaching victim’s testimony was elicited and additional evidence
was not really relevant to alibi defense-as opposed, perhaps, to
consent defense), aff’d, 880 F.2d 1318 (2d Cir. 1989)).

Moreover,

the Court notes that under Federal Rule of Evidence, Rule 412,
evidence of the victim’s sexual conduct is significantly proscribed
where the defendant is accused of a sexual offense.

The failure of

Petitioner to demonstrate that the male victims’ allegations of
abuse by others was false or constituted a pattern which cast doubt
on their credibility rendered the proposed evidence irrelevant.
Thus, Petitioner has failed to demonstrate that the trial
court’s application of CPL § 60.42 was erroneous, or that it
infected his entire trial such that the resulting conviction
violated due process.

Therefore, the Court finds that habeas

relief is not warranted, and the claim is dismissed.
6.

Cumulative Error
Petitioner

contends,

as

he

did

on

direct

appeal,

that

cumulative errors –- i.e., the trial court errors discussed above,
along with trial counsel’s “mistaken advice that he had to testify”
-- deprived him of a fair trial.

See Pet. ¶ 22, Attach. at 1-2.

The Fourth Department rejected this claim on the merits. McKnight,

-30-

55 A.D.3d at 1317.

As discussed below, this claim provides no

basis for habeas relief.
The Second Circuit has recognized that the “cumulative error”
rule is grounds for federal habeas relief, but to be granted only
in limited circumstances.

See Sanders v. Sullivan, 701 F.Supp.

1008, 1012 (S.D.N.Y. 1988).

In order for a cumulative error claim

to be the basis for federal habeas relief, it must be shown that
the alleged individual errors are in fact erroneous trial court
rulings.

Joyner v. Miller, 01 Civ. 2157 (WHP) (DF), 2002 U.S.

Dist. LEXIS 15160, at *42-44 (S.D.N.Y. Jan. 7, 2002). In addition,
if actual errors are discovered but it cannot be shown that one of
those errors requires reversal of the conviction, then the “whole
body of error is to be assessed for prejudicial effect.”

Sanders,

701 F.Supp. at 1013.
“In order for the cumulative effect of errors to warrant a new
trial,

the

claimed

errors

must

be

‘so

prejudicial

that

rendered petitioner’s trial [] fundamentally unfair.’”

they

Joyner,

2002 U.S. Dist. LEXIS 15160, at *42 (quoting Collins v. Scully, 878
F.Supp. 452, 460 (E.D.N.Y.1995)).

However, the Supreme Court has

“defined the category of errors that violate ‘fundamental fairness’
very narrowly.”

Dowling v. United States, 493 U.S. 342, 352

(1990).

“A habeas petitioner may not aggregate merely unfavorable

rulings

or

events

to

show

a

lack

Collins, 878 F.Supp. at 460.

-31-

of

fundamental

fairness.”

Upon careful review of the record, there is no evidence that
any

of

the

alleged

errors

rise

to

the

level

of

a

federal

constitutional violation of Petitioner’s right to a fair trial.
Notably, Petitioner’s claims specifically related to alleged trial
court error, individually, are either meritless or procedurally
defaulted.

Additionally, Petitioner makes no showing that any of

the alleged errors prejudiced his trial to the required level where
it was rendered “fundamentally unfair.”

See Collins, 878 F.Supp.

at

claim

460-61

(rejecting

cumulative

error

where

petitioner

“failed to establish inherent or actual prejudice resulting from
any of the alleged errors”).

Accordingly, Petitioner’s cumulative

error claim lacks merit and is dismissed.
V.

Conclusion
For the reasons stated above, the petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and the
petition is dismissed. Because Petitioner has failed to make “a
substantial showing of a denial of a constitutional right,” 28
U.S.C.

§

2253(c)(2),

I

decline

to

issue

a

certificate

of

appealability. See, e.g., Lucidore v. New York State Div. of
Parole, 209 F.3d 107, 111-113 (2d Cir. 2000).

The Court also

hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any
appeal from this judgment would not be taken in good faith and
therefore denies leave to appeal as a poor person.
United States, 369 U.S. 438 (1962).

-32-

Coppedge v.

Petitioner must file any notice of appeal with the Clerk’s
Office, United States District Court, Western District of New York,
within thirty (30) days of the date of judgment in this action.
Requests to proceed on appeal as a poor person must be filed with
United States Court of Appeals for the Second Circuit in accordance
with the requirements of Rule 24 of the Federal Rules of Appellate
Procedure.
IT IS SO ORDERED.
S/Michael A. Telesca

HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

April 11, 2011
Rochester, New York

-33-