Borcyk v. Lempke
Filing
21
DECISION AND ORDER denying petition for a writ of habeas corpus and dismissing the petition. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 4/13/12. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_____________________________________
GREGORY BORCYK,
Petitioner,
No. 10-CV-6137(MAT)
DECISION AND ORDER
-vsJOHN LEMPKE, Superintendent,
Respondent.
______________________________________
I.
Introduction
Presently pending before the Court is the pro se petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by
Gregory Borcyk (“Petitioner” or “Borcyk”), who is incarcerated
pursuant to a judgment of conviction entered on July 6, 2005, in
Monroe County Court, on one count of second degree (intentional)
murder.
II.
Factual Background and Procedural History
A.
The Crime and Petitioner’s Arrest
On October 26, 2002, in the Town of Greece, New York, the
naked corpse of Maria Ortiz (“Ortiz”) was found on the side of Ling
Road by a passing motorist. During their investigation, police
learned that Ortiz was an addict who sold drugs from her home and
prostituted herself to obtain drugs.
After submitting a sample of semen taken from Ortiz’s vagina
to a national DNA database, the authorities received notification
in December 2004, that it was a positive match to Borcyk, a prior
Federal felony offender. At the time of the murder, Borcyk was
living about seven-tenths of a mile from the location where Ortiz’s
body was found.
Borcyk subsequently was questioned by the police and admitted
to having a drug habit and soliciting sex with prostitutes in the
past. However, he vehemently denied knowing Ortiz. When confronted
with evidence that DNA matching his genetic profile was found on
Ortiz’s body, Borcyk maintained that he had never met Ortiz and had
never had sexual relations with her. Borcyk eventually was arrested
and charged with second degree (intentional) murder.
B.
The Trial
1.
The Discovery of Ortiz’s Body and the Cause of
Death
Carmen Benitez (“Benitez”), Ortiz’s sister, testified that she
last saw Ortiz alive on October 24, 2002. Ortiz was wearing blue
jeans and a yellow t-shirt, which were found in a garbage can
outside of her apartment. Susan Casper (“Casper”) testified that as
she was driving on Ling Road near the intersection of Kirkwood Road
on October 26, 2002, she noticed a woman’s naked body in a wooded
area. The police officers who responded to the crime scene found no
footprints or drag-marks near Ortiz’s body.
Dr. Scott LaPoint (“Dr. LaPoint”), a deputy medical examiner
with Monroe County, conducted the autopsy of Ortiz. He testified
the cause of death was strangulation, and that it probably was
manually done. Dr. LaPoint testified that Ortiz had not died of a
drug
overdose,
notwithstanding
-2-
the
cocktail
of
many
drugs–prescription, non-prescription, and illegal–found in her
system.
In cases of manual strangulation, Dr. LaPoint explained,
defense wounds are commonly found on the victim’s neck, resulting
from the victim attempting to remove the assailant’s hands. On
Ortiz’s neck, Dr. LaPoint noticed abrasions and scratch marks
consistent with the type of self-defense wounds typically seen in
cases of manual strangulation. Dr. LaPoint could not testify with
certainty as to what caused them, although they appeared to have
occurred while Ortiz was alive. He found no evidence of forcible
rape or other sexual trauma.
2.
Borcyk’s Statements
Sergeant Steven Chatterton (“Chatterton”) of the Greece Police
Department testified that on December 19, 2004, he met with Borcyk,
who agreed to speak with him at his mother’s home at 140 El Rancho
Drive. Borcyk’s driver’s license indicated a previous residence of
4696 Dewey Avenue, which was about seven-tenths of a mile from
where Ortiz’s body was discovered.
Upon being a shown a photograph of Ortiz, Borcyk said she did
not look familiar and that he did not know her. However, he
indicated that a photo of Reinaldo Torres (“Torres”), Ortiz’s thenboyfriend, looked familiar. Borcyk admitted to having a drug
problem and still going on binges occasionally. He also admitted to
having had sex with prostitutes in the 1990s but claimed he had not
done so since that time. He reiterated that he did not know Ortiz
and had never purchased drugs at Ortiz’s apartment. When informed
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that she had been murdered, Borcyk sat back in his chair and said,
“‘Oh, she was murdered?’”. T.378.
The next day, the police stopped Borcyk’s truck and asked him
to come to the station with them. Borcyk agreed. After he was
advised of his Miranda warnings, Borcyk was shown new photographs
of Ortiz and, again, he denied knowing her. When he was again told
that Ortiz had been murdered, he had the same reaction as he had
the day before: He leaned back and said, “‘She was murdered?’ Like
he was surprised.” T. 386.
The officers told Borcyk that he had evidence linking him to
the incident, and he repeated that he had never met her. When he
was informed that there was DNA linking him to the crime, Borcyk
adhered to his denials. Upon being informed that Ortiz had been
discovered seven-tenths of a mile from his residence at the time of
the murder, he smiled and commented, “That doesn’t mean a thing.”
T.387.1 The police obtained a DNA sample from Borcyk prior to
terminating the interview.2
On December 23, 2004, Chatterton received the results from the
testing performed Borcyk’s recent DNA sample. Borcyk was brought to
the police station that same day and given his Miranda warnings,
which he waived. The officers informed Borcyk that he was under
arrest for Ortiz’s murder because his DNA had been found under
1
Citations to “T.__” refer to pages in the transcript of Petitioner’s trial.
2
The police also submitted DNA samples from Reinaldo Torres; Sidney Lawhorn,
Jr.; Jerome “Ricky” Blocker; and Carlos Abruzua for testing. T.405-08.
-4-
Ortiz’s fingernails and in semen from her vagina. When asked to
explain these results, Borcyk continued to deny knowing Ortiz.
Chatterton described Borcyk’s demeanor as very calm.
The police asked Borcyk if he did not believe that these DNA
results existed, Borcyk responded, “My lawyer says there’s no way
you can have my DNA that fast.” T.397. When asked who his lawyer
was, Borcyk admitted that he did not have a lawyer and stated that
it actually was a friend who had told him that.
The police provided Borcyk with the lab report to review, and
he was questioned further about his involvement in the matter.
Given another opportunity to explain the presence of his DNA on
Ortiz’s body, Borcyk reiterated that he did not know Ortiz. He
retreated
from
his
position
that
he
had
not
had
sex
with
prostitutes since the 1990s, admitted that he had done so as
recently as 2001. (Ortiz was killed in October 2002.)
While Borcyk was being held in the County Jail, he had a
telephone conversation with his mother, which was tape-recorded and
introduced into evidence. During the conversation, Borcyk admitted
that at the time Ortiz’s body was found, he was living at an
address nearby.
3.
Jameik Lawhorn and Sidney Lawhorn, Jr.
Sidney Lawhorn, Jr. (“Sidney”) and Jameik Lawhorn (“Jameik”),
his cousin were both sitting a car in a driveway across the street
from Ortiz’s house on Friday, October 25, 2002. Chatterton obtained
a statement from Sidney on February 27, 2003, regarding the events
of that evening. Sidney ultimately invoked his Fifth Amendment
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privilege and refused to testify at Borcyk’s trial, even under
penalty of perjury if he did not have a legitimate Fifth Amendment
privilege
to
invoke.3
The
parties
stipulated
that
Sidney’s
statement would be read into the record. In it, Sidney stated, in
relevant part, as follows:
I know Maria Ortiz as China. On Friday night, October 25,
2002, at about 11:00 at night, I was outside my
grandmother’s house at 32 Remington Street in my sister’s
car . . . with my cousin Jameik and we were rolling
blunts. . . . The car was backed into the driveway facing
the abandoned house across the street. We were passing
the blunt back and forth . . . and I saw Ricky Blocker
and these two Hispanic dudes walking up the driveway of
China’s house. . . .
A little while later all three of the guys came out and
they were talking to each other in the driveway. After a
few minutes China came out and stood with the guys and
they talked in Spanish. I saw Ricky Blocker start to walk
across the street and I knew that he was going to get
drugs. As Ricky wacked across the street, China went back
into the house. The two Hispanic dudes stood at the end
of the driveway and watched Rick like they thought he was
going to run off with the money. I high-beamed Rick . .
. to get his attention. Rick then walked over to me and
I gave him five bags of crack . . . [for] a $20 bill and
two $100 bills . . . . Rick then went back to China’s
house and they all went inside. We ended up sitting there
for a few minutes because we thought they might come back
for more.
Jameik and I went to the store and when we came back
there was a car parked in the driveway. The car that was
in the driveway was originally in the street before we
left. The car was an older model Toyota Camry. It was a
four-door car and it was boxy-looking. It is hard to
describe the color but it was goldish-gray. The car was
backed into the driveway and the side porch light was
off. Before we went to the store the light was on. I
backed my sister’s car into the driveway and Jameik told
3
Sidney also refused to speak about Ortiz with the private investigator
hired by defense counsel, stating, “I want nothing to do with this shit!”
Affidavit of Jack W. Altpeter, Jr., LPI at 2, ¶3, submitted in support of
Petitioner’s C.P.L. § 440.10 Motion (Resp’t App. A).
-6-
me to go see if they were straight . . . [i.e.] if they
wanted more drugs. As I walked up the driveway, I saw the
door open and Ricky started coming out of the house and
I could see that he was holding China’s feet. I ducked
down behind the bushes and then I saw one of the Hispanic
dudes carrying the rest of China. I saw them put China in
the trunk of the car that was in the driveway. The one
Hispanic guy was wearing a red knit hat, and after they
put China in the trunk he started getting all mad and
saying stuff in Spanish. I don’t understand Spanish but
I could tell he was pissed.
After they put China in the trunk I went back and got in
my Sister’s car. I saw the [Camry] . . . pull out of the
driveway. I waited a little bit . . . and I followed it
down Remington Street to Avenue A. At Avenue A I turned
left and went to Clinton Avenue. The car that was in
China’s driveway kept going down Remington Street. When
I got on Clinton Ave. at Norton I saw the car make a
right from Norton Street to Clinton Ave. and go toward
the expressway. I never told Jameik that I saw the body
because was freaked out, shocked and scared.
When this first happened I spoke to Sergeant Chatterton
about some of the things I saw. I looked at some photos
and I showed Sergeant Chatterton Ricky Blocker and I
showed him one of the Hispanic dudes. Sergeant Chatterton
told me that the Hispanic dude that I picked out was
Reinaldo Torres. He was at the house but I didn’t see him
carry the body. I did not know who the third Hispanic guy
with the red knit had that was carrying China’s body. I
did not tell police everything that I knew because I was
nervous and feared for my safety.
In addition to that, I did not want to admit to selling
drugs. I tried to give police enough information to catch
the guys without getting me involved.
On the night before China’s body was found the Hispanic
dude with the knit hat came back to China’s house in a
small red car with a broken rear window. The guy saw me
and made a motion to his waistband like he had a gun. I
was scared.
Since then the same guy came up to me and said if you go
to the police, I’ll kill you. I ran away and I’ve been
hiding ever since. Today I decided to talk to the police
again and tell them everything. I looked through the
computer at a bunch of photographs. I picked out the dude
with the knit hat. There is no doubt in my mind that he
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is the guy that was carrying China’s body with Ricky
Blocker. The guy was identified to me as Carlos Arbuzua.
T.427-30.
On November 22, 2002, Chatterton (“Chatterton”) had spoken
with Jameik who agreed with Sidney’s story insofar as the two of
them, while smoking blunts in Sidney’s car, saw Blocker and two
Hispanic males exit Ortiz’s apartment. In contrast to Sidney,
however, Jameik said that he never saw Ortiz that night.
On March 9, 2005, Chatterton spoke to Sidney again while
Sidney
was
incarcerated.
During
this
interview,
Chatterton
testified, Sidney “recanted” his February 2003 statement. T.400.
After telling Chatterton, “‘I saw what I saw,’” Sidney went on to
state that he “definitely” saw Blocker and the two Hispanic males
in Ortiz’s driveway. With regard to whether he saw Ortiz’s body,
Sidney now stated that his “his mind was playing games on him and
that he saw one of them or two of them go into the trunk, and he
just assumed after a couple months of him thinking about it that
they must have been putting her body into” the trunk. T.401. Sidney
told Chatterton during this interview, “‘I can’t say I saw a foot,
I can’t say I saw a leg.’” T.401.
4.
The DNA Evidence
Ellyn Colquhoun (“Colquhoun”), a forensic biologist with the
Monroe County Public Safety Laboratory, testified that she found
two
contributors
to
the
DNA
found
in
Ortiz’s
vagina.
One
contributor was female, and Ortiz could not be excluded as the
donor. The other contributor was male. Comparing the male DNA from
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Ortiz’s vagina to the DNA on the buccal swab taken from Borcyk,
Colquhoun stated that she could not exclude Borcyk as the donor of
the DNA sample from Ortiz’s vagina. In fact, Colquhoun found no
“points of exclusion” during the comparison. T.488, 495.
With regard to the DNA found under Ortiz’s fingernails, there
again were two contributors–Ortiz and a male. Again, according to
Colquhoun, the male contributor was Borcyk, and there were no
points of exclusion. Arbuzua, Blocker, Torres, and Sidney were all
excluded as the source of the DNA from either Ortiz’s vagina or
fingernails.
T.491-92.
Using
the
allele
frequency
database,
Colquhoun compared Borcyk’s DNA to that of the male contributor
from
the
samples
found
on
Ortiz.
She
determined
that
the
probability of randomly selecting a person unrelated to Borcyk as
the contributor of the male DNA found in Ortiz’s vagina was less
than one in 15.3 million. T.493-94. With regard to the fingernail
clippings, the probability was less than one in 11.2 trillion. Id.
5.
The Defense Case
The defense theory focused on attempting to undermine the
integrity of the evidence collection and storage practices of the
forensics laboratory. Defense counsel also sought to show that
there were inconsistencies in Colquhoun’s analysis, namely, that at
certain chromosomes, Borcyk appeared to be a major contributor
while at others, he appeared to be a minor contributor. To that
end,
defense
counsel
called
Gary
Skuse,
Ph.D.
(“Skuse”),
a
professor of biology and the director of the bio-infomatics program
at R.I.T., which specializes in applying computational technologies
-9-
to understanding biological data, including DNA. The gist of
Skuse’s testimony was that the inconsistency was an “artifact”
which “represent[d] something that is misrepresenting the mixture
that occurs in the laboratory.” T.549.4
6.
The Verdict and Sentencing
The jury returned a verdict convicting Borcyk as charged in
the indictment of intentional murder. He was sentenced to the
maximum term possible, 25 years to life.
B.
Post-Conviction Proceedings in State Court
Before perfecting his direct appeal, and represented by new
counsel, Petitioner filed a motion in the trial court to vacate the
judgment pursuant to Criminal Procedure Law (“C.P.L.”) § 440.10.
See Resp’t App. A. The motion was denied on October 19, 2008,
Resp’t App. D, and leave to appeal to the Appellate Division,
Fourth Department, was likewise denied on March 24, 2009, Resp’t
App. G.
After filing the C.P.L. § 440.10 motion, but before it was
decided, petitioner perfected his direct appeal. The Appellate
Division, Fourth Department unanimously affirmed the conviction on
March 27, 2009, and the New York The Court of Appeals denied leave
to appeal on July 1, 2009.
4
The prosecutor pointed out during summation that Skuse had written to
defense counsel and stated, in effect, that he agreed with Colquohoun’s
conclusions that the donors of the DNA under Ortiz’s fingernails and in her
vagina may be Ortiz and Borcyk. T.594-95.
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C.
The Federal Habeas Petition
This timely petition followed. Petitioner sought and received
an order from this Court (Larimer, D.J.) granting a stay of the
petition so that he could return to state court and file a second
C.P.L. § 440.10 motion again alleging that trial counsel was
ineffective.
Supp.”) P.
See
Respondent’s
Supplemental
Appendix
(“Resp’t
The trial court summarily denied relief on January 26,
2011. See Resp’t Supp. T. Petitioner’s application for leave to
appeal to the Appellate Division was denied on May 12, 2011.
This matter is now fully submitted. For the reasons discussed
below, Borcyk’s request for a writ of habeas corpus is denied, and
the petition is dismissed.
III. Analysis of the Petition
A.
Ineffective Assistance of Trial Counsel
1.
The Strickland Standard
In order to establish ineffective assistance of trial counsel,
a petitioner must show both that his attorney provided deficient
representation
and
that
he
suffered
prejudice
as
a
result.
Strickland v. Washington, 466 U.S. 668, 686-88 (1984). Deficient
performance requires showing that “counsel’s representation fell
below an objective standard of reasonableness,” and that counsel’s
conduct
had
“so
undermined
the
proper
functioning
of
the
adversarial process” that the process “cannot be relied on as
having produced a just result.” Id. at 686, 688.
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Prejudice requires a showing that there was a “reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694.
“A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. Although the Strickland standard is
two-pronged, a reviewing court need not address both “deficient
performance” and “prejudice” where the petitioner cannot meet one
of the two elements. See 466 U.S. at 697 (noting that where the
court can “dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice,” which will often be the case, the
court should do so).
2.
Failure to Investigate the Anonymous 911 Call
On Sunday, October 27, 2002, 911 emergency services received
an anonymous tip in which the caller stated that he had information
relating to the dead female recently found in Greece. According to
the caller, the victim was a friend of his who was “strung out” on
heroin and who had a lot of drug activity occurring at her house on
Remington Street. The caller stated that this was a retaliation
killing following a drug bust at her house the previous week. The
caller advised that the killer was the brother of the man who had
been imprisoned following the drug bust. The caller did not provide
the name of the person who had been arrested following the drug
bust, or the name of his brother.
According to the caller, on the night of October 25, 2002, he
saw a man named Ricky Blocker at the victim’s house being assisted
by two unknown Hispanic males in cleaning up the crime scene. The
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caller explained that Blocker lived in the Remington Avenue area,
that the killers had disposed of the body in Greece, and that the
three men were driving an older gray Toyota Camry. The caller
indicated that he had already been shown photographs of the victim
and stated he believed that she had been strangled.
In support of his two motions to vacate the judgment, Borcyk
asserted that trial counsel should have introduced the transcript
of this 911 call, arguing that the 911 caller’s repetition of the
same details provided by Sidney Lawhorn, Jr., and led to the
inescapable conclusion that Sidney was the person who made the
anonymous call on October 27, 2002. Motion counsel argued that
trial counsel did not attempt to offer proof of the 911 call,
failed to investigate the call in any way, and never obtained a
transcript of the call. See Petitioner’s May 2008 C.P.L. § 440.10
Motion (“First C.P.L. § 440.10 Motion”) at 16, ¶¶64-65 (Resp’t
App. A).
In opposition, the prosecution described the allegations as
“generic without any specific alleged inactions” by trial counsel.
People’s
June
Furthermore,
2008
the
Affirmation
prosecution
in
noted,
Opposition
trial
at
counsel
5,
¶16.
recognized
Sidney’s involvement in this case and accordingly had his private
investigator attempt to interview Sidney, who adamantly refused to
do so. Id.
The
trial
court
agreed
that
Borcyk
had
“neglect[ed]
to
independently support his conclusory assertion that his trial
counsel failed to investigate the anonymous 911 call,” which was
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based solely upon clear hearsay. C.P.L. § 440.10 Order dated
October 22, 2008 (“2008 C.P.L. § 440.10 Order”) at 2. The trial
courted that the record “reference[d] the subject matter of any
anonymous phone call by Sidney Lawhorn on the record during the
suppression hearing.” Id. (citing Transcript dated June 9, 2005, at
p.30, lns 12-14). In the trial court’s opinion, it was fatal to
Borcyk’s claim that he failed to introduce an affidavit from trial
counsel, or someone else with personal knowledge, as to whether
trial counsel had or had not investigated the 911 call. Id. at 2-3
(citations omitted). This Court agrees with the trial court that
Borcyk has failed to substantiate his claim that trial counsel did
not investigate the issue of the 911 call. As the trial court
noted, the record supports a finding to the contrary–that counsel
was well aware of the 911 call. Borcyk, having failed to establish
deficient performance by counsel in this regard, cannot succeed on
his Strickland claim.
3.
Failure to Introduce the Anonymous 911 Call
Borcyk relatedly contends that trial counsel was ineffective
because he failed to present any evidence that there was an
anonymous phone call purportedly made by Sidney Lawhorn. The trial
court held that this issue was readily apparent on the record and
therefore should have been raised on direct appeal. Accordingly,
dismissal was required under C.P.L. § 440.10(2)(c). Id. at 3.
Respondent argues that the claim is procedurally defaulted because
the trial court relied upon an adequate and independent state
ground to dismiss it. The Supreme Court has held that claims
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underlying a habeas petition may be procedurally barred from habeas
review if they were decided at the state level on adequate and
independent procedural grounds. Coleman v. Thompson, 501 U.S. 722,
729–33 (1991). The procedural bar applies when a state court’s
decision contains a “plain statement” that it is relying on an
“adequate” state law as an “independent” basis for denying the
claim. Id. at 722, 729.
As the Second Circuit has observed, “New York courts have held
that some ineffective assistance claims are ‘not demonstrable on
the main record’
and are
more
appropriate
for
collateral or
post-conviction attack, which can develop the necessary evidentiary
record.” Sweet v. Bennett, 353 F.3d 135, 139 (2d Cir. 2003)
(quotation and citation omitted)). Where, however, the alleged
errors that are the basis for a petitioner’s ineffectiveness claim
are “particularly well-established in the trial record,” id.,
federal courts in New York have held that a state court’s reliance
on C.P.L. § 440.10(2)(c) to dismiss such an ineffective assistance
claim operates as a procedural bar to a subsequent collateral
attack by means of federal habeas. E.g., id.
Here, however, counsel’s reasons for not introducing the 911
call (the contents of which was not discussed at trial or the pretrial hearings) are not apparent on the record. Cf. id. (finding
that C.P.L. § 440.10(2)(c) was an adequate and independent state
ground barring habeas review of ineffective assistance of trial
counsel claim where alleged error was particularly well-established
in the trial record; trial counsel “plainly failed to object on
-15-
inconsistency grounds to charging the counts in the conjunctive”).
Thus, there is a question as to whether the state ground was
“adequate”
under
the
circumstances.
Rather
than
resolve
the
procedural default issue, the Court elects to consider the merits
of the claim, which is readily dismissed even under a pre-AEDPA
standard of review.
The anonymous 911 call, which was made at least a day after
Ortiz’s murder, was inadmissible hearsay. See, e.g., Brown v.
Keane, 355 F.3d 82, 89-90 (2d Cir. 2004) (holding that anonymous
911 call in which the caller stated that light-skinned black men,
matching defendant’s description, were shooting guns was not a
report of a present sense impression and was not an excited
utterance for purposes of satisfying an exception to the rule
against hearsay); People v. Vasquez, 88 N.Y.2d 561, 576 (1996)
(“Even assuming that the anonymous 911 call was made during the
crime or in its immediate aftermath and that it was made by an
on-the-scene observer who related events as he witnessed them, the
statements in question did not qualify as admissible present sense
impressions because they were not sufficiently corroborated by
independent proof.”). Therefore, even if trial counsel had sought
to admit it, the trial court in all likelihood would have excluded
it. Accordingly, Borcyk cannot demonstrate that he was prejudiced
by trial counsel’s decision not to seek its admission.
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4.
Petitioner
Failure to Introduce the Results of the Search of
Petitioner’s Vehicle
claims
that
trial
counsel
was
ineffective
in
failing to introduce the results of the police search of his
vehicle, a 1992 Honda Prelude, on December 22, 2004. The search
revealed no evidence indicating that Ortiz had ever been in that
car. Counsel argued, in support of Petitioner’s first C.P.L.
§
440.10
motion,
that the
negative
search
results
tended
to
exonerate Petitioner and were relevant to the issue of whether he
participated in the homicide. The prosecutor countered that the
negative search results did not fully exonerate Petitioner, and
moreover were not surprising, given that the testing occurred two
years after the crime and after the car had been sold to another
individual.
The
trial
court
denied
this
claim
pursuant
to
C.P.L.
§ 440.10(2)(c), finding that the basis for it was discernable on
the trial record and therefore it should have been raised on direct
appeal. The Appellate Division, however, held that the claim
involved matters outside the record on appeal and thus was properly
raised by means of a C.P.L. § 440.10 motion. People v. Borcyk, 60
A.D.3d 1489, 1490 (4th Dept. 2009) (citations omitted). Borcyk
raised the claim again in his second C.P.L. § 440.10 motion, and
the trial judge stated that despite the procedural deficiencies,
she did evaluate the merits of Borcyk’s claim of ineffective
assistance of trial counsel. County Court Order Dated January 26,
2011 (Resp’t Supp. T). This is only partially correct. Although the
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trial judge did evaluate several of trial counsel’s alleged errors,
she did not address trial counsel’s failure to introduce the
negative results of the search of Borcyk’s vehicle. Borcyk thus was
placed in a “Catch-22" situation and was unable to obtain a ruling
on the merits of the claim from the state courts.
AEDPA’s deferential standard does not apply where a petitioner
has presented a claim to a state habeas court but the state court
failed to adjudicate it; in such case, a federal district court
will address the claim de novo. Cone v. Bell, ___ U.S. ___, 129 S.
Ct. 1769, 1784 (2009) (“Because the Tennessee courts did not reach
the merits of Cone’s [habeas] claim, federal habeas review is not
subject to the deferential standard that applies under AEDPA to
‘any claim that was adjudicated on the merits in State court
proceedings.’ 28 U.S.C. § 2254(d). Instead, the claim is reviewed
de novo.”) (citing Rompilla v. Beard, 545 U.S. 374, 390 (2005)
(de novo review where state courts did not reach prejudice prong
under
Strickland
v.
Washington,
466
U.S.
668,
supra);
other
citation omitted).
Borcyk’s
affidavit
trial
explaining
counsel
his
refused
reasons
to
for
provide
the
him
various
with
an
decisions
challenged by Borcyk, including counsel’s decision not to introduce
the negative search results of the car. There does not seem to have
been was a downside to introducing the reports, since there were no
positive results that trial counsel did not want the jury to hear.
Nevertheless, the question on habeas review is not whether this
Court or a different attorney would have employed a different
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strategy in trying the same case. Instead, it is whether, “strongly
presum[ing] [counsel] to have rendered adequate assistance and made
all
significant
decisions
in
the
exercise
of
reasonable
professional judgment[,]” Strickland, 466 U.S. at 490, the choice
was an objectively unreasonable one under prevailing professional
norms, id. at 687-88 (deficient performance requires a showing that
“that counsel’s representation fell below an objective standard of
reasonableness”).
In
this
case,
it
was
not
an
objectively
unreasonable decision to decline to introduce the results, for
given the lengthy amount of time that had elapsed since Ortiz’s
murder and the search of Borcyk’s vehicle, the results arguably
were not especially probative.
Although the negative forensics
results might have been helpful to the defense, they would not have
led, in all reasonable probability, to a different result had the
jury considered them. The prosecution introduced DNA evidence
linking Petitioner to the victim, the conclusiveness of which
neither defense counsel’s cross-examination nor the defense expert
were able to undermine.
5.
Petitioner
Failure to Call Tina Brown as a Witness
contends,
for
the
first
time
in
his
habeas
petition, that trial counsel failed to secure the testimony of an
individual named Tina Brown (“Brown”). According to Petitioner,
Brown had been subpoenaed to testify at trial about “an incident
involving her and Reinaldo Torres,” Pet., ¶22(C), the victim’s
boyfriend. Petitioner states that when Brown failed to appear,
trial counsel said, “‘Oh, well’ and the trial went on.” Id.
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As Respondent notes, this claim is unexhausted because it was
never raised in any state court application–either on direct appeal
or in Borcyk’s C.P.L. § 440.10 motions. This claim concerns an offthe-record
matter,
transcripts
or
as
state
there
court
is
no
reference
records
to
subpoenaed, or to her failure to appear.
in
Brown,
any
to
of
her
the
being
Borcyk technically could
return to state court to raise this claim in a third C.P.L.
§ 440.10 motion and not be subject to mandatory dismissal under
C.P.L. § 440.10(2)(c). However, this Court now has discretion under
28 U.S.C. § 2254(b)(2) to deny on the merits a habeas petition
containing unexhausted claims. E.g., Pratt v. Greiner, 306 F.3d
1190, 1196–97 (2d Cir. 2002); Smith v. Texas, 550 U.S. 297, 324
(2007) (“In the absence of any legal obligation to consider a
preliminary
nonmerits
issue,
a
court
may
choose
in
some
circumstances to bypass the preliminary issue and rest its decision
on the merits.”) (citing 28 U.S.C. § 2254(b)(2) (federal habeas
court may reject claim on merits without reaching question of
exhaustion)).
Section
2254(b)(2)
does
not
set
forth
a
standard
for
determining when a court should dismiss a petition on the merits
rather than requiring complete exhaustion. Lambert v. Blackwell,
134 F.3d 506, 516 (3d Cir. 1997). While neither the Supreme Court
nor the Second Circuit has established what standard a district
court should use to determine when to dismiss a petition on the
merits rather than requiring complete exhaustion, several habeas
courts in this Circuit have expressed the test as whether the
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unexhausted claim is “patently frivolous.” E.g., Colon v. Johnson,
19 F.Supp.2d 112, 120, 122 (S.D.N.Y.1998); Hogan v. Ward, 998
F.Supp. 290, 293 (W.D.N.Y.1998).
Other district courts in this
Circuit, as well as the Third, Fifth, and Ninth Circuits, have held
that Section 2254(b)(2) embodies the Supreme Court’s pre-AEDPA
holding in Granberry v. Greer, 481 U.S. 129, 135 (1987), that a
court may
deny an unexhausted claim on the merits if it is
“‘perfectly
colorable
clear
federal
that
the
applicant
Fayton
claim.’”
does
Connolly,
v.
not
raise
No.
even
06
a
Civ.
3685(SAS), 2009 WL 1615995, at *4 & n. 45 (S.D.N.Y. June 9, 2009)
(quoting Cassett v. Stewart, 406 F.3d 614, 623 (9th Cir. 2005);
other
citations
omitted).
Borcyk’s
claim
fails
‘whether
to
under
either
standard.
“[C]ounsel’s
witnesses-even
decision
ones
that
as
might
to
offer
call
exculpatory
specific
evidence-is
ordinarily not viewed as a lapse in professional representation.’”
United
States
v.
Best,
219
F.3d
192,
201-02
(2d
Cir.
2000)
(quotation omitted). “[A] petitioner may not merely allege that
certain witnesses might have supplied relevant testimony, but must
state exactly what testimony they would have supplied and how such
testimony would have changed the result.” Edmonds v. Purdy, No. 08
Civ. 8808(DLC)(AJP), 2009 WL 483189, at *19 (S.D.N.Y. Feb. 26,
2009) (citing Lawrence v. Armontrout, 900 F.2d 127, 130 (8th Cir.
1990) (“To affirmatively prove prejudice [from counsel’s failure to
investigate], a petitioner ordinarily must show not only that the
testimony of uncalled witnesses would have been favorable, but also
-21-
that those witnesses would have testified at trial.”), cert.
denied, 513 U .S. 1161 (1995); Greenidge v. United States, No. 01
CV 4143, 2002 WL 720677, at *2 (E.D.N.Y. Mar. 27, 2002) (§ 2255
petitioner’s ineffective assistance of counsel claim had no merit
where petitioner “nowhere specifie[d] how the testimony of those
witnesses [counsel purportedly failed to call] would have been
helpful to his defense”)), report and recommendation adopted, 08
CIV.4388(PKC), 2008 WL 4369314 (S.D.N.Y. Sept. 25, 2008).
Here,
the
Court
has
nothing
on
which
to
judge
the
reasonableness of counsel’s decision not to pursue Brown as a
witness, or the prejudice, if any, that accrued to Borcyk. Borcyk’s
pleadings completely fail to set forth the particulars regarding
Brown’s proposed testimony, and he has not supplied the Court with
an affidavit from Brown affirming that she would have, in fact,
testified at trial. All Borcyk states is that Brown would have
testified
about
an
“incident”
involving
the
victim’s
then-
boyfriend, Torres. That statement provides no useful information
whatsoever.
A
court
cannot
grant
habeas
relief
based
upon
unsubstantiated conclusions, opinions or speculation. See Wood v.
Bartholomew, 516 U.S. 1, 8 (1995) (asserting that federal courts
should not grant “habeas relief on the basis of little more than
speculation with slight support”).
6.
Erroneous Advice Regarding the Decision to Testify
Borcyk contends that trial counsel gave him faulty advice
regarding the decision whether or not to testify. In particular,
Borcyk claims that his attorney counseled him not to testify
-22-
because he had a 1997 conviction for bank robbery in which, Borcyk
says, he handed a note asking for $300 to the bank teller. Borcyk
states that he was unarmed, and the he turned himself in two days
later.
The Court has reviewed the hearing held pursuant to People v.
Sandoval, 34 N.Y.2d 371 (1974), to determine the extent to which
the prosecutor would be permitted to cross-examine him about
particular criminal (charged or uncharged), vicious, or immoral
conduct for the purpose of impeaching credibility should he testify
at trial. See T.55-60. The charges at issue were a misdemeanor DWI
form 1993; a 1997 felony conviction from California for unarmed
robbery; and a 2001 violation of probation in New York due to
cocaine use. The trial court ruled that the prosecution could not
inquire as to the DWI or the cocaine charge. T.57, 58. The trial
court ruled that the prosecution could elicit that Borcyk had
violated the terms of his parole but not the reason for the
violation. T.59. The prosecution was also permitted to elicit that
he had a federal felony conviction, but could not inquire as to the
underlying facts because of the danger of prejudice. T.58.
As an initial matter, Borcyk has mischaracterized the Sandoval
ruling,
and
concerning
the
the
extent
bank
of
robbery
the
cross-examination
conviction.
As
noted
permitted
above,
the
prosecution was not permitted to elicit testimony concerning the
nature of that felony conviction. In any event, Borcyk has not
shown that his attorney’s performance prejudiced his right to a
fair trial. Borcyk has not intimated what evidence he would have
-23-
provided or shown that it would have had any effect on the verdict,
much less the “reasonable probability” of an acquittal. See Brown
v. Artuz, 124 F.3d 73, 81 (2d Cir. 1997) (failure of defense
counsel to advise petitioner that he enjoyed a fundamental right to
testify in his own defense in murder case did not prejudice
defense; although petitioner claimed he would have testified that
he feared for his life during his fight with victim because of past
encounters,
such
testimony
would
not
have
supported
his
justification defense, in view of evidence that victim was unarmed
and that defendant could have retreated). As Borcyk has failed to
demonstrate prejudice, the Court need to address whether counsel’s
performance was deficient. See Strickland, 466 U.S. at 697 (“If it
is easier to dispose of an ineffectiveness claim on the ground of
lack
of
sufficient
prejudice,
.
.
.
that
course
should
be
followed.”).
V.
Conclusion
For the reasons stated above, Gregory Borcyk’s petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and
the petition is dismissed. Because Borcyk has failed to make a
substantial showing of a denial of a constitutional right, the
Court declines to issue a certificate of appealability. See 28
U.S.C. § 2253(c)(2). 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).
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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 13, 2012
Rochester, New York.
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