Bennett v. Mosicicki
Filing
11
DECISION AND ORDER denying petition for writ of habeas corpus and dismissing the petition. Signed by Hon. Michael A. Telesca on 6/14/11. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
ANTHONY BENNETT,
DECISION AND ORDER
No. 09-CV-06608T
Petitioner,
-vsSUPERINTENDENT
RONALD MOSICICKI
Respondent.
________________________________
I.
Introduction
Pro se Petitioner Anthony Bennett (“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 May 8, 1996, in New York State, County Court,
Niagara County (Amy J. Fricano, J.), convicting him, after a jury
trial, of two counts of Rape in the First Degree (N.Y. Penal Law
(“Penal Law”) §
130.35 [1], [3]), one count of Rape in the Second
Degree (Penal Law § 130.30), and five counts of Sexual Abuse in the
First Degree (Penal Law § 130.65 [1],[3]).1
For the reasons stated below, habeas relief is denied and the
petition is dismissed.
1
On direct appeal, the Appellate Division, Fourth Department
reversed two of the five counts of Sexual Abuse in the First Degree (counts
two and three of the indictment) and dismissed those counts of the indictment.
See People v. Bennett, 52 A.D.3d 1185, 1186 (4th Dep’t 2008).
-1-
II.
Factual Background and Procedural History
Under Indictment No. 94-440, Petitioner was indicted and
charged with eleven counts of Sexual Abuse in the First Degree
(Penal Law § 130.65 [1], [3]), four counts of Rape in the First
Degree (Penal Law § 130.35 [1], [3]), and one count of Rape in the
Second Degree (Penal Law § 130.30).
The charges arose from
incidents that occurred between 1991 and 1994 involving Petitioner
and his three minor children, F.B., N.B. and A.B.2
See Indictment
No. 94-440.
Prior to trial, the People moved to introduce evidence of
numerous incidents of domestic violence as prior bad acts and
uncharged
crimes.
March 27, 1996.
A
Ventimiglia3
hearing
was
conducted
on
At the close of the hearing, the trial court found
that five of the eighteen incidents of prior domestic violence the
People sought to introduce could be used in the People’s case-inchief.
Hr’g Mins. [H.M.] 134.
The trial court later modified its
ruling to permit four acts when it discovered that one of the five
acts occurred after the charged conduct.
Trial Trans. [T.T.]
45-46.
During a three-day jury trial, F.B., N.B. and A.B., among
others, testified for the People.
Each of the children testified,
with varying specificity, that they had witnessed various instances
2
F.B. and N.B. are females, and A.B. is male. At the time of the
incidents, all of these children were under the age of eleven-years-old.
3
A hearing pursuant to People v. Ventimiglia, 52 N.Y.2d 350 (1981),
is used to determine whether evidence of a defendant's prior uncharged crimes
may be admissible at trial, by weighing its probative value against its
prejudicial effect.
-2-
of domestic violence, wherein Petitioner had physically injured
their mother Sencerray Jenkins (“Jenkins”).
Additionally, F.B.
testified that on numerous occasions, over a three-year period from
1991-1994, Petitioner touched her breasts and engaged in sexual
intercourse with her. T.T. 49-106.
N.B. testified that, on one
occasion while she was living with her parents, Petitioner had
“touched her butt.”
T.T. 229.
She also testified that, during
this time, Petitioner “used to pick [F.B.] up and carry her
upstairs and put her in a room and lock the door.”
T.T. 230.
She
testified that she also saw Petitioner, on one occasion, touch
A.B.’s “private” while Petitioner and A.B. were in the kitchen.
T.T. 234.
A.B. testified that, on several occasions while he was
living with his parents, Petitioner touched his penis.
testified
that,
during
this
time,
he
saw,
on
one
He also
occasion,
Petitioner pick F.B. up in his arms and carry her upstairs.
A.B.
testified that, on this particular occasion, he went upstairs and
found the bedroom door locked.
A.B. testified that he heard his
sister crying and heard her tell their father to “get off her.”
A.B. testified that, from a gap underneath the bedroom door, he
could see his father’s and sister’s feet on the bedroom floor
“moving around.”
T.T. 259-293.
Jenkins testified that Petitioner was the father of F.B.,
N.B., and A.B., and that she had been in a relationship with him
for
fourteen
years.
She
testified
that
their
relationship,
overall, was a tumultuous one and that, on occasion, she was afraid
of him.
Jenkins also testified to various instances of domestic
-3-
violence that she suffered at the hands of Petitioner, which
resulted in physical injuries.
Jenkins also testified that, one
particular occasion, she walked into the living room and saw
Petitioner touching A.B.’s penis.
T.T. 136-167.
Petitioner did not testify at trial.
Petitioner’s parents,
Evelyn and Otis Bennett, testified for the defense.
T.T. 341-352,
406-412.
At the close of evidence, Petitioner’s attorney successfully
moved for the dismissal of count 1, counts 4 and 5, and counts 7
and 9 of the Indictment.
11 sua sponte.
The trial court dismissed counts 10 and
T.T. 419-424.
Of the nine counts on which the jury
was asked to deliberate, Petitioner was convicted on eight, as
follows: (1) count two charging Sexual Abuse in the First Degree as
alleged to have occurred between December 26 and 31, 1991 wherein
he was charged with hand to breast contact with F.B. (on the basis
of her age); (2) count three charging Sexual Abuse in the First
Degree as alleged to have occurred between December 26 and 31, 1999
wherein he was charged with hand to breast contact with F.B. (by
forcible compulsion); (3) count six charging Sexual Abuse in the
First Degree as alleged to have occurred between December 15 and
31, 1992 wherein he was charged with hand to breast contact with
F.B. (on the basis of her age); (4) count 8 charging Sexual Abuse
in the First Degree as alleged to have occurred between January 1
and February 28, 1993 wherein he was charged with penis to vagina
contact with F.B. (on the basis of her age); (5) count twelve
charging Rape in the First Degree as alleged to have occurred
-4-
between September 1 and 15, 1993 wherein he was charged with having
had sexual intercourse with F.B. (on the basis of her age);
(6) count thirteen charging Rape in the First Degree as alleged to
have occurred between September 1 and 15, 1993 wherein he was
charged with having had sexual intercourse with F.B. (by forcible
compulsion); (7) count fourteen charging Rape in the Second Degree
as alleged to have occurred between April 1 and June 30, 1994
wherein he was charged with having had sexual intercourse with F.B.
(on the basis of her age); and (8) count sixteen charging Sexual
Abuse in the First Degree as alleged to have occurred between April
1 and June 30, 1994 wherein he was charged with hand to buttocks
contact with N.B. (on the basis of her age).
Petitioner was found
not guilty of count fifteen charging Sexual Abuse in the First
Degree as alleged to have occurred between April 1 and June 30,
1994 wherein he was charged with hand to penis contact with A.B.
(on the basis of his age).
Petitioner
was
T.T. 512-535.
subsequently
sentenced
to
an
indeterminate term of 16 to 48 years imprisonment.
aggregate
Sentencing
Mins. [S.M.] 10-14.
On June 6, 2008, the Appellate Division, Fourth Department
(“Fourth
Department”)
unanimously
modified
the
judgment
of
conviction by reversing those parts convicting Petitioner of Sexual
Abuse in the First Degree under counts two and three of the
indictment.
As modified, the judgment of conviction was affirmed,
and leave to appeal was denied.
People v. Bennett, 52 A.D.3d 1185
(4th Dep’t 2008); lv. denied, 11 N.Y.3d 734 (2008).
-5-
This habeas corpus petition followed, wherein Petitioner seeks
relief
on
the
following
grounds:
(1)
a
Rosario
violation;
(2) ineffective assistance of trial counsel; (3) that the admission
of evidence of uncharged crimes deprived him of his right to a fair
trial; and (4) harsh and excessive sentence.
See Pet. ¶ 22A-D
(Dkt. No. 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
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
-6-
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.”
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.
-7-
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
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).
C.
The Adequate and Independent State Ground Doctrine
A procedural default generally bars a federal court from
reviewing the merits of a habeas claim.
U.S. 72 (1977).
Wainwright v. Sykes, 433
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));
-8-
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;
see also Levine, 44 F.3d
at
v.
121
126;
Grey
Hoke,
933
F.2d
117,
(2d
Cir.
1991).
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 rule.”
U.S. 478, 488 (1986);
Murray v. Carrier, 477
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
-9-
that failure to do so will result in a “fundamental miscarriage of
justice.”
Coleman, 501 U.S. at 750.
IV.
Petitioner’s Claims
1.
Rosario Violation
Petitioner contends, as he did on direct appeal, that he was
deprived of his right to a fair trial when the People failed to
disclose certain Rosario4 materials, to wit:
the videotaped grand
jury examinations of Petitioner’s three children.
See Pet. ¶ 22A.
The Fourth Department rejected this claim on a state procedural
ground because Petitioner failed to properly preserve the issue for
appellate
review.
Consequently,
as
See
discussed
Bennett,
below,
52
this
A.D.3d
claim
at
is
1186-87.
procedurally
defaulted from habeas review.
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 N.Y. Crim. Proc. L. (“CPL”) § 470.05(2)) to deny
Petitioner’s claim because it had not been properly preserved for
appellate review.
See Bennett, 52 A.D.3d at 1186-87.
4
The Second
Pursuant to People v. Rosario, the state must provide a criminal
defendant with the pretrial statements of any witness who will be called to
testify on behalf of the prosecution. People v. Rosario, 9 N.Y.2d 286 (1961).
This rule has been codified in the New York Criminal Procedure Law (“CPL”);
the prosecutor is obliged to “make available to the defendant any written or
recorded statement made by a person whom the prosecutor intends to call as a
witness at trial, and which relates to the subject matter of the witness’s
testimony.” CPL § 240.45 [1][a].
-10-
Circuit has determined that CPL § 470.05(2) is an independent and
adequate state procedural ground.
71, 79-82 (2d Cir. 1999);
Cir.
1990).
The
Fourth
See Garcia v. Lewis, 188 F.3d
Velasquez v. Leonardo, 898 F.2d 7, 9 (2d
Department’s
reliance
on
New
York’s
preservation rule is an adequate and independent state ground which
precludes this Court’s review of Petitioner’s alleged Rosario
violation claim.
This Court, however, may reach the merits of Petitioner’s
claim, despite the procedural default, if he can demonstrate cause
for the default and prejudice, or that failure to consider the
claim will result in a miscarriage of justice.
U.S.
at
750.
While
Petitioner
does
not
See Coleman, 501
specifically
allege
ineffective assistance of counsel as cause for the default, he does
raise ineffective assistance of trial counsel as a stand-alone
claim on the basis that counsel “failed to preserve appellate
issues.”
Pet. ¶ 22B.
A claim of ineffective assistance of counsel
may establish cause for a procedural default.
Carpenter, 529 U.S. 446, 451 (2000);
See Edwards v.
McCleskey v. Zant, 499 U.S.
467, 494 (1991); United States v. Frady, 456 U.S. 152, 168 (1982).
However, in order to constitute cause, counsel’s ineffectiveness
must itself rise to the level of a constitutional violation.
Id.
Here, Petitioner’s stand-alone ineffective assistance of counsel
claim is without merit (Section “IV, 2” below). Because Petitioner
does
not
show
that
his
trial
attorney
was
constitutionally
ineffective, he consequently cannot establish “cause” to excuse the
-11-
procedural default.
See Zayas v. Ercole, 08-CV-1037 (CBA), 2009
U.S. Dist. LEXIS 127012, *39 (E.D.N.Y. Nov. 9, 2009) (“Since
petitioner’s trial counsel’s performance was, in the aggregate,
reasonable . . . petitioner cannot establish cause for his failure
to preserve the claim.”).
Moreover, Petitioner has failed to
demonstrate that this Court’s failure to review the claim will
result in a miscarriage of justice.
Thus, the claim is dismissed
as procedurally defaulted.
In
any
event,
even
if
this
claim
was
not
procedurally
defaulted, it would still not provide a basis for habeas relief.
A “[p]etitioner’s claim[] that the prosecutor committed a Rosario
violation by not turning over [evidence] does not form a basis for
federal habeas relief because th[is] claim[] derive[s] from state
law.”
McBean v. Warden, 9:08-cv-0150 (LEK), 2008 U.S. Dist. LEXIS
99444, *28-29 (N.D.N.Y. Dec. 9, 2008);
see also Goston v. Rivera,
462 F.Supp. 2d 383, 394 (W.D.N.Y. 2006) (“[petitioner’s] claim
relating to the prosecutor’s Rosario violation is not a federal
constitutional claim cognizable on habeas review.”) (citing Lyon v.
Senkowski, 109 F.Supp. 2d 125, 139 (W.D.N.Y. 2000)).
To this
extent,
is
Petitioner’s
alleged
Rosario
violation
claim
not
cognizable.
2.
Ineffective Assistance of Trial Counsel
Petitioner argues that he received ineffective assistance of
trial counsel based on: (1) trial counsel’s failure to preserve the
-12-
alleged Rosario violation;5 and (2) trial counsel’s failure to
“inform [him] of time he could receive by going to trial by not
taking a 5-15 year plea offer.”
Pet. ¶ 22B.
The former issue,
which was raised on direct appeal and rejected on the merits,6 is
meritless.
The latter claim, which is raised for the first time in
the habeas petition, is unexhausted and meritless.7
See 28 U.S.C.
§ 2254(b)(2).
To establish that he was deprived of his Sixth Amendment right
to the effective assistance of trial counsel, a petitioner must
show that (1) his attorney’s performance was deficient, and that
(2) this deficient performance prejudiced his defense.
Strickland
v. Washington, 466 U.S. 668, 687 (1984). Deficiency is measured by
5
In Ground Two of the petition, Petitioner states, in part, that he
received ineffective assistance of counsel because “counsel failed to preserve
appellate issues.” Pet. ¶ 22B. He does not specify, however, which
“appellate issues” he is referring to. Given that he has raised an alleged
Rosario violation as a stand-alone claim in the habeas petition and that that
claim was found to be unpreserved for appellate review, the Court will
construe this claim as ineffective assistance of counsel based on counsel’s
failure to preserve the alleged Rosario violation.
6
The Fourth Department ruled as follows: “We reject the further
contention of defendant that counsel’s failure to object to the alleged
Rosario violation deprived him of effective assistance of counsel. When
viewed in its totality as of the time of the trial, defense counsel’s
representation was meaningful.” Bennett, 52 A.D.3d at 1187 (internal
citations and quotations omitted).
7
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. Khulman, 99 Civ. 11063, 2001 U.S. Dist. LEXIS 22572
(S.D.N.Y. Dec. 12, 2001); Cruz v. Artuz, 97 Civ. 2508 , 2002 U.S. Dist. LEXIS
11150 (E.D.N.Y. June 24, 2002); Toland v. Walsh, 02 Civ. 0399, 2008 U.S.
Dist. LEXIS 24616 (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, 00 Civ. 2306, 2000 U.S. Dist. LEXIS 10228 (S.D.N.Y. July
21, 2000) (discussing cases applying this standard). Under either of these
standards, Petitioner’s claim is meritless.
-13-
an
objective
standard
of
reasonableness,
and
prejudice
is
demonstrated by a showing of a “reasonable probability” that, but
for counsel’s unprofessional errors, the result of the trial would
have been different.
Id. at 694.
“A reasonable probability is a
probability sufficient to undermine confidence in the outcome of
the
proceeding.”
Id.
To
succeed,
a
petitioner
challenging
counsel’s representation must overcome a “strong presumption that
[his attorney’s] conduct falls within the wide range of reasonable
professional assistance.”
Id. at 689.
A reviewing court “must
judge the reasonableness of counsel’s challenged conduct on the
facts of the particular case, viewed as of the time of counsel’s
conduct.”
(A)
Id.
Failure to Preserve Alleged Rosario Violation
Petitioner claims that he received ineffective assistance of
trial counsel based on counsel’s failure to object to an alleged
Rosario violation (see Section “IV, 1” above).
Pet. ¶ 22B.
This
claim is meritless.
The record reflects that, prior to trial, Petitioner’s three
children were examined by videotape and their examinations were
presented to the grand jury.
at trial.
Each of the children then testified
There is nothing in the record before this Court that
suggests that the prosecution failed to disclose the examinations
to the defense and/or failed to do so in a timely manner.
Rather,
the record reveals that Petitioner’s attorney used the grand jury
examination of F.B. when he cross-examined her at trial. T.T. 108-14-
109.
To this extent, there was no basis for trial counsel to
object, thereby preserving the issue for appellate review.
Moreover,
counsel’s
Petitioner
alleged
error
has
in
made
failing
no
to
showing
object,
that,
there
but
for
is
any
probability –- let alone a reasonable one –- that the outcome of
his trial would have been different.
See Henry v. Poole, 409 F.3d
48, 63-64 (2d Cir. 2005) (“‘The question to be asked in assessing
the prejudice from counsel’s errors . . . is whether there is a
reasonable probability that, absent the errors, the factfinder
would have had a reasonable doubt respecting guilt.’”) (quoting
Strickland, 466 U.S. at 695).
Accordingly, the state court’s adjudication of this portion of
Petitioner’s ineffective assistance of counsel claim is neither
contrary to nor an unreasonable application of Strickland, and is
dismissed.
(B)
Failure to Inform Petitioner of Sentence at Trial
Petitioner contends that he received ineffective assistance of
trial counsel because counsel failed to inform him of the maximum
sentence he could receive at trial versus the sentence under the
plea offer.
Pet. ¶ 22B.
This claim is meritless.
An attorney’s failure to communicate a plea offer to his
client, or to advise his client adequately about the plea offer,
may constitute constitutionally deficient assistance.
See, e.g.,
Cullen v. United States, 194 F.3d 401, 404 (2d Cir. 1999) (defense
counsel
grossly
underestimated
-15-
defendant’s
potential
maximum
sentence);
United States v. Gordon, 156 F.3d 376, 380 (2d Cir.
1998) (“defense counsel in a criminal case must advise his client
of the merits of the government’s case, of what plea counsel
recommends, and of the likely results at trial”).
To prevail on such a claim, petitioner must show that (1) the
attorney failed to communicate a plea offer or provide adequate
advice about the plea and sentencing exposure; and (2) there is a
reasonable
probability
that
but
for
the
attorney’s
deficient
performance, petitioner would have accepted the plea offer.
Purdy v. United States, 208 F.3d 41, 49 (2d Cir. 2000);
See
Cullen,
194 F.3d at 404.
A petitioner claiming ineffective assistance of counsel on
this
basis
must
provide
objective
evidence,
beyond
his
own
“self-serving, post-conviction testimony,” that he would have pled
guilty had he received proper advice.
Gordon, 156 F.3d at 380-81.
Objective evidence may include a disparity between the plea offers
and the actual sentence, and whether the plea offers were stated in
petitioner’s presence in open court.
Cullen, 194 F.3d at 407;
Alexander v. Walker, No. 03 Civ. 8440 (NRB), 2004 U.S. Dist. LEXIS
1642, *19-21 (S.D.N.Y. Aug. 19, 2004); see also Custodio v. United
States, 945 F. Supp. 575, 579 (S.D.N.Y. 1996) (concluding that
defendant’s “belated claim that he would have pleaded guilty is
frivolous” where defendant continued to maintain his innocence both
during and after trial).
-16-
Petitioner cannot prevail on this claim.
The record reflects
that a pre-trial hearing and conference occurred on November 30,
1995.
At the start of this hearing and conference, the prosecutor
set forth the terms of a plea offer, in which Petitioner was given
the opportunity to plead guilty to one count of Rape in the First
Degree and two counts of Sexual Abuse in the Second Degree.
Mins. of 11/30/11 2.
Hr’g
In response to the plea offer, Petitioner’s
attorney, in the presence of Petitioner, stated, “Your Honor, I’ve
just had the opportunity to relay that to my client this morning
and we haven’t had the opportunity to fully discuss it.”
Id.
trial court judge then stated, “I guess you don’t want it.
that you didn’t receive a plea offer before today?”
The
Why is
In response,
defense counsel stated, “I’ve been very busy, your Honor, quite
frankly.
I had a hearing all day across the hall yesterday.
I was
on trial last week and I haven’t really been available to have the
opportunity to sit down and discuss it with the district attorney.”
Id.
The trial court then proceeded to conduct the scheduled
hearing.
Even assuming arguendo that Petitioner was unaware of the
maximum sentence he faced at trial in relation to the terms of the
plea offer, Petitioner has not shown that he would have accepted
the plea offer had he known since he maintained his innocence
throughout the proceedings.
At sentencing, Petitioner made the
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following statement in which he adamantly maintained that he is and
was innocent throughout the duration of the proceedings:
Through this whole course of this indictment I
still maintain my innocence in this matter. I
don’t condone any of these charges and I never
do hurt any children. As far as these charges
is concerned, if someone is found guilty I
believe they should get the punishment that is
deserved but my only option in the case was to
exercise my right to a trial which I was found
guilty of but I still maintain my innocence in
the course of this whole -- this whole thing.
I would never do anything to try to hurt my
children. I always tried to raise ‘em to the
best of my ability to this point and to this
day. I don’t know why they would have brought
these accusations against me.
S.M. 9.
Furthermore, the Petitioner does not argue in the instant
petition that he would have been willing to accept the guilty plea
or that he would have, in fact, accepted it had he been informed of
the sentencing consequences of proceeding to trial in relation to
the terms of the plea.
Since Petitioner has not shown that he was
willing to accept a plea offer, the Court concludes that Petitioner
has
failed
to
prove
counsel’s
performance
fell
below
constitutional standard for effective assistance of counsel.
the
This
portion of Petitioner’s ineffective assistance of trial counsel
claim, therefore, is meritless and is dismissed.
In sum, the Court finds that Petitioner’s claim that he was
deprived of his constitutional right to effective assistance of
counsel provides no basis for habeas relief and is dismissed in its
entirety.
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3.
Admission of Uncharged Crime Evidence
Petitioner argues, as he did on direct appeal, that he was
deprived of his right to a fair trial when the trial court admitted
evidence of prior uncharged crimes, namely, evidence of four prior
uncharged instances of domestic violence.
See Pet. ¶ 22C.
Fourth Department rejected this claim on the merits.8
52 A.D.3d at 1187.
The
See Bennett,
As discussed below, this claim provides no
basis for habeas relief.
A state trial court’s decision to admit evidence of a criminal
defendant’s uncharged crimes or bad acts constitutes an evidentiary
ruling based on state law.
See Sierra v. Burge, 06 Civ. 14432,
2007 U.S. Dist. LEXIS 91132, *14-19 (S.D.N.Y. Nov. 30, 2007).
As
such, state court evidentiary rulings are generally not cognizable
on habeas review.
(S.D.N.Y. 2000).
See Roldan v. Artuz, 78 F.Supp.2d 260, 276
Rather, federal courts reviewing evidentiary
matters may issue a writ of habeas corpus only if the petitioner
demonstrates
that
the
alleged
evidentiary
error
violated
a
constitutional right and that the error “was so extremely unfair
that its admission violates fundamental conceptions of justice.”
8
The Fourth Department held as follows: “We further reject
defendant’s contention that County Court erred in admitting evidence of prior
uncharged instances of domestic violence witnessed by the victim. Prior and
concurrent threats and violence to the victim’s family are admissible as proof
of the element of forcible compulsion and to explain the victim’s failure to
reveal the ongoing sexual assaults. Here, the evidence of four prior
uncharged instances of domestic violence witnessed by the victim was
admissible for the purpose of establishing the element of forcible compulsion
and the victim’s delayed reporting.” See Bennett, 52 A.D.3d at 1187 (internal
citations and quotations omitted) (alterations in original).
-19-
Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir.1998) (internal
quotation omitted). “For the erroneous admission of other unfairly
prejudicial evidence to amount to a denial of due process, the item
must have been ‘sufficiently material to provide the basis for
conviction or to remove a reasonable doubt that would have existed
on the record without it.’”
Id. (quoting Johnson v. Ross, 955 F.2d
178, 181 (2d Cir.1992) and citing Collins v. Scully, 755 F.2d 16,
19 (2d Cir.1985) (evidence must be “crucial, critical, highly
significant”)).
In general, evidence of uncharged crimes is inadmissible in a
criminal trial due to the danger that the jurors will convict due
to their perception that the defendant is predisposed to commit
crime rather than determining the defendant’s guilt or innocence
based upon a consideration of the evidence regarding the charged
offense.
See e.g., People v. Molineux, 168 N.Y. 264 (1901).
However, in Molineux the New York Court of Appeals held that
evidence of other crimes or bad acts may be admitted to the extent
that it is relevant to an issue other than the defendant’s criminal
tendency, such as motive, intent, modus operandi, common scheme or
plan, or identity.
Id. at 293.
Thus, New York law is “well
settled that ‘where the evidence of prior, uncharged criminal
conduct has a bearing upon a material aspect of the People’s case
other than the accused’s general propensity toward criminality . .
. the probative value of the evidence justifies its admission,
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notwithstanding the potential for incidental prejudice[.]’” People
v. Lee, 284 A.D.2d 412 (2nd Dep’t 2001) (citation omitted); see
also People v. Cook, 93 N.Y.2d 840, 841 (1999) (“[E]vidence of a
defendant’s prior abusive behavior toward a complainant may be
admissible to prove the element of forcible compulsion in a rape
case . . . . This is true even though, as in this case, the defense
is not consensual sex, but that the rape never occurred and that
the complainant’s allegation was a lie.”).
In this case, F.B. testified to the following:
that, while
she was living with her parents, she had witnessed four instances
of domestic violence, all of which resulted in varying levels of
physical injury to her mother;
that, when her parents fought, it
made her afraid and she feared for her mother’s safety; that she
failed to come to her mother’s aid when her parents fought because
she was afraid she would get in trouble with her father; and that
it was fear that delayed her disclosure of the abuse she suffered
at the hands of her father.
T.T. 54-72, 99-100.
The evidence of
domestic violence perpetrated against the victim’s mother (and
witnessed by F.B.) was therefore relevant to establishing the
element
of
forcible
compulsion
under
9
New
York
law,9
and
for
In counts eleven and thirteen of the indictment, Petitioner was
charged with Rape in the First Degree (with respect to F.B.) where “forcible
compulsion” is an element of the crime. See Penal Law § 130.35 [1]. Under
Penal Law § 130.00, “‘forcible compulsion’ means to compel by either use of
physical force or a threat, express or implied, which places a person in fear
of immediate death or physical injury to himself, herself or another person,
or in fear that he, she or another person will immediately be kidnapped.”
Penal Law § 130.00 [8][a], [b].
-21-
explaining why F.B. had delayed disclosing the sexual assaults
perpetrated against her. See People v. Greene, 306 A.D.2d 639, 642
(2003) (“Prior and concurrent threats and violence to the victim’s
family . . . are admissible as proof of the element of forcible
compulsion and to explain the victim’s failure to reveal the
ongoing sexual assaults.”); see also People v. Higgins,
12 A.D.3d
775, 777-78 (2004).
Moreover, the trial court clearly instructed the jury that the
evidence of prior instances of domestic violence could be used only
for limited purposes.
The trial court judge stated, in her final
charge to the jury, as follows:
I have also allowed the People to introduce in
evidence that on other specific occasions this
defendant engaged in the striking of family
members. I tell you that such evidence is no
proof whatsoever that this defendant possessed
a propensity or diposition to comitt the crime
charged – crimes charged in this indictment.
It is not offered for such a purpose and must
not be considered by you for that purpose.
Instead, the People offered such evidence
solely for the purpose of proving an element
of some of the crimes charged in this
indictment which I will refer to as forcible
compulsion and which I will define for you
later. This evidence may be considered by you
solely as it relates to the element of
forcible compulsion as I will describe it. I
charge
you
that
that
evidence
may
be
considered by you only for that limited
purpose and for none other.
T.T. 510-511.
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As a matter of law, the jury must be presumed to have followed
the trial court judge’s instructions concerning the limited use
that it could make of the uncharged crimes evidence.
v. Texas, 385 U.S. 554, 562-63 (1967);
See Spencer
Herring v. Meachum, 11 F.3d
374, 378 (2d Cir. 1993) (citing Greer v. Miller, 483 U.S. 756, 766
n.8 (1987));
see also Kanani v. Phillips, No. 03 Civ. 2534 (PKC)
(AJP), 2004 U.S. Dist. LEXIS 20444, *66 (S.D.N.Y. Oct. 13, 2004)
(no unfairness when “the trial judge gave a very specific limiting
charge to the jury to ensure that jurors considered information
about the uncharged crimes only for appropriate purposes”).
In any event, the Supreme Court has yet to establish clearly
when
the
admission
of
prior
uncharged
crimes
under
state
evidentiary laws can constitute a federal due process violation.
See Parker v. Woughter, No. 09 Civ. 3843 (GEL), 2009 U.S. Dist.
LEXIS 52419, *4-5 (S.D.N.Y. June 9, 2009) (“[P]etitioner cites no
Supreme Court case, and the Court is aware of none, holding that
the admission of evidence of uncharged crimes violates the Due
Process Clause of the Fourteenth Amendment.”). It follows that the
trial court judge’s decision to admit the evidence subject to
limiting instructions cannot be said to be “contrary to” or an
“unreasonable application of” clearly-established federal law. See
Williams, 529 U.S. at 412-13.
Accordingly, Petitioner’s claim provides no basis for habeas
relief and is dismissed.
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4.
Harsh and Excessive Sentence
Petitioner contends, as he did on direct appeal, that his
sentence was harsh and excessive.
See Pet. ¶ 22D.
Department rejected this claim on the merits.10
A.D.3d at 1187.
The Fourth
See Bennett, 52
As discussed below, this claim is not cognizable
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,
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’d
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 two to six years on each
count of Sexual Abuse in the First Degree, six to eighteen years on
10
The Fourth Department held as follows: “Finally, we conclude that
the sentence is not unduly harsh or severe.” Bennett, 52 A.D.3d at 1187.
-24-
each of the convictions for Rape in the First Degree, and two to
six years on the conviction for Rape in the Second Degree.
These
sentences were ordered to run consecutive for a total of 16-48
years imprisonment. S.M. 10-14. These terms are within the ranges
prescribed by New York law.
See Penal Law §§ 130.35 [1], [3];
130.30; 130.65 [1], [3].
Accordingly, Petitioner’s claim that his sentence was harsh
and excessive is not cognizable, 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 (Dkt. No. 1) 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), the Court declines 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.
Coppedge v.
United States, 369 U.S. 438 (1962).
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
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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:
June 14, 2011
Rochester, New York
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