Gibson v. LaValley
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 10/23/12. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JEFFREY D. GIBSON,
DECISION AND ORDER
-vsTHOMAS LAVALLEY, Supt. Clinton
Pro se petitioner Jeffrey D. Gibson (“Gibson” or “Petitioner”)
has filed a Petition for a Writ of Habeas Corpus pursuant to
28 U.S.C. § 2254. Gibson is incarcerated pursuant to a judgment
entered against him on March 19, 2008, following a jury verdict in
Erie County Court (Michalski, J.) of New York State convicting him
of Robbery in the First Degree (N.Y. Penal Law § 160.15(4)).
Factual Background and Procedural History
Stacey Koehler (“Koehler”) was working at the Noco store and
gas station on South Park Street in the City of Lackawanna on
July 10, 2005. At about 5:30 a.m., near the end of her shift,
Koehler wanted to step outside to have a cigarette. She called to
her eleven-year-old daughter, who was helping her by stocking soda
in the back cooler. As Koehler and her daughter approached the
door, a black male walked inside. He pointed a gun, partially
covered by a paper bag, about two inches from Koehler’s face.
Koehler noted that the robber’s face was covered with something
dark that looked like a bandana, but she could see his eyes. She
described him as wearing a “tannish-colored baseball cap” and
“tannish, brownish” clothing that were “pretty baggy”. T.287.1 His
voice was that of an adult, rather than an adolescent. Koehler, who
was 4'1", estimated the robber to be about 5'3- or 5'5"-tall. She
explained that he was “taller than [her] and . . . shorter than
what [she] would consider the average man.” T.318.
The robber announced, “I want the money, bitch” and said she
had until the count of ten to give him the money. Koehler, fearing
for her and her daughter’s life, removed the cash drawer and placed
it on the counter. The robber then demanded the money from the
safe, and Koehler explained that she did not have the combination.
The robber grabbed the money from the drawer and fled.
Kevin Kalinowski (“Kalinowski”), who lived at 97 Victory
Avenue, had just gotten home from his job as a musician at about
5:30 a.m. and was sitting on his porch having a cigarette. Hearing
footsteps, he looked up and saw someone dressed in “dark” clothing
run past his porch very quickly. It appeared to Kalinowski that the
person was wearing a “glittery shiny, like gold or silver” type of
headgear, like “some kind of helmet . . . or something.” T.335.
Whatever it was, Kalinowski stated, it was reflected off the
streetlight. The man turned left on Leo Street. The police arrived
Numerals preceded by “T.” refer to pages from the trial
soon after and asked if he had seen anybody running or anyone with
a gun, and Kalinowski informed them what he had observed.
Police officers Bryan Girdlestone (“Officer Girdlestone”) and
Joseph Milkowski received a radio call of a robbery in progress at
the Noco store at approximately 5:30 a.m., perpetrated by a black
male about 5'6"-tall. Upon arrival, Officer Girdlestone learned
from another officer the direction the robber had taken, and he and
his partner began canvassing the neighborhood on foot.
When Officer Christopher Caber (“Officer Caber”) responded to
the Noco robbery, he saw a black female (later determined to be
Takeisha Matthews (“Matthews”), Petitioner’s girlfriend) standing
in the middle of the parking lot next to the gas pumps. According
to Officer Caber, he thought it was odd she was standing there
because no cars were in the parking lot. In addition, the woman
“never took her eyes off” him as he walked from his patrol car into
the store. T.410. He later saw her walking about a half-mile away
down Ridge Road with Petitioner. Both denied being aware of the
Noco robbery. She stated that she had walked to the Noco to get
something to eat but found that the doors were locked. T.429.
Officer Caber recalled that Matthews stated they were on their way
to visit someone’s grandfather.
In the backyard of 80 Colton Street, a residence approximately
two hundred yards from the crime scene, Officer Girdlestone found
a sweatshirt and a pair of sweatpants, both turned inside out. He
also found a tan-colored Boston Celtics baseball cap, a black
do-rag, and a knit cap in a garbage can in the driveway. T.381-83.
All of these articles were documented, collected, and brought to
Lieutenant Joseph Leo at the Noco store, who in turn showed them to
sweatpants, and sweatshirt as having been worn by the robber. See
T.296-98. She did not identify the knit hat, however.
All the items were transferred to the Central Police Services
laboratory for analysis. Forensic biologist Jodi Luedemann swabbed
the seized articles of clothing, and senior forensic serologist
Paul Mazur extracted DNA from the swabbing for analysis. The
results from the swabs were compared to the butt of a cigarette
that Gibson had smoked during a meeting with Detective Daniel Cardi
(“Detective Cardi”) after he was arrested on an unrelated matter.
Forensic comparison demonstrated that Gibson could not be excluded
as a contributor to the major portion of the genetic material on
the baseball cap and to the minor portion of the genetic material
on the sweat pants. The knit hat contained a mixture of DNA from at
least two individuals, one being a female. The major portion of the
other DNA profile from the knit hat was identical to the DNA
profile from the cigarette butt. In other words, the DNA from the
cigarette butt matched the DNA of the knit hat found along with the
do-rag and baseball hat in the garbage can at 80 Colton Street.
The defense called Peter McQuillor (“McQuillor”), Petitioner’s
grandfather in an attempt to cast doubt on who might have worn the
clothing found at 80 Colton Street and to suggest a reason as to
why Petitioner and his girlfriend had been seen walking on Ridge
Road on the morning of the robbery. McQuillor testified that his
grandson lived with him, along with his other grandchildren, off
and on and for various lengths of time. It was common practice for
the grandchildren to borrow clothes belonging to each other. T.66264. McQuillor testified that about five days a week, Petitioner and
his girlfriend would make breakfast for him. T.665.
The defense also called Dr. Michael Garrick (“Dr. Garrick”),
a professor of biochemistry with expert knowledge in the field of
genetics and molecular biology. Dr. Garrick testified that based
upon the amounts of genetic material found on the clothing items
excluding the knit hat, it was “difficult to associate them” with
Petitioner. T.674. He did not question the results of the genetic
testing performed on the knit hat. Dr. Garrick also indicated that
other members of Petitioner’s family could have contributed some
DNA to the samples taken from the clothing items, and to exclude
The jury returned a verdict convicting Gibson as charged in
the indictment. After a hearing, Gibson was adjudicated as a
persistent felony offender and sentenced to an indeterminate term
of 25 years to life.
Petitioner’s conviction was affirmed on direct appeal. People
v. Gibson, 74 A.D.3d 1700 (4th Dept.), lv. granted, 15 N.Y.3d 780
(2010), aff’d, 17 N.Y.3d 757 (2011). This timely habeas corpus
For the reasons discussed below, Gibson’s request for a writ
of habeas corpus is denied, and the petition is dismissed.
Denial of the Right to Counsel During Interview With
Detective Cardi of Lackawanna Police Department was involved
in the investigation of the Noco robbery and had transported the
recovered articles of clothing evidence to the forensic laboratory
for analysis. When he reported to the police station the morning of
July 19, 2005, he learned that Petitioner, whom he knew was a
suspect in the Noco robbery, had been arrested on a bench warrant
in an unrelated matter. Petitioner asked if he could speak with the
detective, whom he had known for several years and with whom he had
a cordial relationship. Detective Cardi brought Petitioner to his
office for the conversation. See T.507-10.
unrelated criminal matter, and did not intend to question him about
the Noco robbery or any other criminal matter. However, he did hope
to obtain a DNA sample from Petitioner’s saliva. To that end, he
brought out a pack of cigarettes, knowing that Petitioner was a
smoker. Petitioner asked for one, and Cardi obliged. Both men
problems his girlfriend was having with her landlord. Neither the
Noco robbery nor any other charges pending against Petitioner were
discussed during the conversation.
ashtray Detective Cardi had placed near him. Guards returned
Petitioner to his cell. Detective Cardi surreptitiously placed the
ashtray with Petitioner’s cigarette butt inside his desk drawer.
The State Courts’ Rulings
As noted above, DNA from Petitioner’s saliva was extracted
from the cigarette butt and was found to conclusively match the DNA
found on the knit hat believed to have been worn by the person who
unsuccessfully for suppression of the DNA-bearing cigarette butt.
The trial court held that Petitioner did not have standing to
protest the seizure of the cigarette but because he had failed to
demonstrate a legitimate expectation of privacy in it. The trial
court further determined that even if Petitioner had established
standing, he had abandoned the cigarette butt, rendering its
hearing court’s ruling on right to counsel grounds, arguing that
the detective, knowing that he was represented by counsel on the
pending, unrelated charge, had obtained physical evidence from him
Appellate Division rejected that contention, with one justice
The majority noted that because formal proceedings had not
been commenced against Petitioner with regard to the robbery
charge, his right to counsel arose from the unrelated charge,
pursuant to the Fifth Amendment and its state counterpart. See
People v. Settles, 46 N.Y.2d 154, 161 (1978). Observing that the
rights set forth in the Fifth Amendment do not apply to evidence
that is not “testimonial or communicative” in nature, see Schmerber
v. California, 384 U.S. 757, 761 (1966), the Appellate Division
noted an accused is not protected by the Fifth Amendment from being
compelled to produce “real or physical evidence”. People v. Gibson,
74 A.D.3d at 1702 (quoting Pennsylvania v. Muniz, 496 U.S. 582,
(1990) (quoting Schmerber, 384 U.S. at 764) (quotation marks
omitted)). Analogizing the DNA from Petitioner’s saliva to the
blood-alcohol content of a blood sample, the Appellate Division
concluded that it “can be viewed only as real or physical evidence
because it is not testimonial or communicative” and therefore not
protected by the Fifth Amendment. Inasmuch as Petitioner’s Fifth
Amendment right against self-incrimination was not violated by
Detective Cardi’s covert obtaining of his saliva, it “necessarily
follow[ed] that his derivative right to counsel under the Fifth
Amendment . . . was not violated either.” Id. (citing Schmerber v
California, 384 U.S. at 764 (1966) (“Since the petitioner was not
entitled to assert the privilege [against self-incrimination], he
has no greater right because counsel erroneously advised him that
he could assert it[.]”)) (alterations in Gibson).
One justice dissented, finding that Detective Cardi engaged in
conduct that was reasonably likely to elicit an incriminating
response, that is, he subjected Gibson to the functional equivalent
interrogation. The dissenter noted that under the New York state
constitution, a waiver of rights may be obtained from a criminal
suspect who is actually represented by counsel, and known by the
police to be so represented, only in the presence of counsel.
People v. Gibson, 77 A.D.3d at 1702 (citation omitted). Because
Gibson had been subjected to interrogation, and because he could
not validly waive his rights without his counsel present, the
dissenting justice found that the DNA obtained by the detective was
accomplished by unconstitutional means. Id.
conviction, finding that under the circumstances of Petitioner’s
case, the collection of his “DNA while he was in custody did not
contravene his indelible right to counsel.” People v. Gibson, 17
N.Y.3d at 35. The Court of Appeals disagreed with the dissenting
justice, finding that the detective’s actions–displaying a pack of
response and therefore did not amount to a custodial interrogation.
The Court of Appeals further found that the DNA deposited by
“statement” subject to exclusion under New York’s right to counsel
communicative act that disclosed the ‘contents of defendant’s
mind[.]’” Id. (quotation omitted). Finally, the court found, the
detective had not subjected Gibson to the functional equivalent of
an uncounseled decision to consent to a search. Id. (citations
The State Courts Did Not Unreasonably Apply Clearly
Established Supreme Court Law.
The purpose of the Fifth Amendment right “is to protect . . .
the suspect’s desire to deal with the police only through counsel.”
McNeil v. Wisconsin, 501 U.S. 171, 178 (1991) (internal quotation
omitted). The purpose of the Sixth Amendment guarantee of counsel,
on the other hand, “is to protec[t] the unaided layman at critical
confrontations with his expert adversary, the government, after the
adverse positions of government and defendant have solidified with
respect to a particular alleged crime.” Id. at 177–78 (internal
quotation omitted; emphasis and alteration in original). Because
“[t]he scope of an accused’s right to counsel under the Fifth
Amendment is bounded by the explicit right from which it is
self-incrimination,” this right “arises only in situations where
the right to be free from compelled self-incrimination might be
threatened, as, for example, where an individual is subjected to
custodial interrogation by the police.” United States v. Melgar,
139 F.3d 1005, 1010 (4th Cir. 1998), abrogated on other grounds by
Texas v. Cobb, 532 U.S. 162 (2001) (quotation omitted).
The state courts did not unreasonably interpret or apply
Schmerber v. California, in which the Supreme Court “upheld a
state-compelled blood test against a claim that it infringed the
Fifth Amendment right against self-incrimination, made applicable
to the States through the Fourteenth Amendment.” South Dakota v.
Neville, 459 U.S. 553, 559 (1983) (explaining Schmerber’s scope).
The Supreme Court expressly held in Schmerber that the blood sample
taken for alcohol testing was not within the Fifth Amendment
privilege since “testimonial capacities were in no way implicated.”
Schmerber, 384 U.S. at 765. As the Neville court later noted, the
Fifth Amendment privilege has “never been given the full scope
suggested by the values it helps to protect[,]” and therefore “the
privilege bars the State only from compelling ‘communications’ or
‘testimony.’” 459 U.S. at 559.
Because the blood test at issue in
Schmerber was “physical or real” evidence rather than “testimonial”
evidence, the Supreme Court found that it was not protected by the
Fifth Amendment privilege against self-incrimination. Id. This
petitioner’s claim that, in compelling him to submit to the test
despite the fact his objection thereto was made on the advice of
counsel, he was denied his Sixth Amendment right to the assistance
of counsel. 384 U.S. at 766. The Supreme Court explained that
Amendment] privilege, he has no greater right [under the Sixth
Amendment] because counsel erroneously advised him that he could
assert it.” Id.; see also Neville, 459 U.S. at 559 n. 8. Schmerber
thus precludes Gibson from succeeding on a right-to-counsel claim
under the Sixth Amendment of the federal constitution.
With regard to his claim of right to counsel under the Fifth
Amendment, the assertion of such a right depends upon the existence
of a custodial interrogation. See United States v. Melgar, 139 F.3d
1010 (“Outside the context of a custodial interrogation, the
Fifth Amendment does not afford a suspect the right to counsel.”)
(citation omitted). In Arizona v. Mauro, 481 U.S. 520 (1987), the
Supreme Court held that permitting a person in custody to enter
into a situation in which law enforcement officers are aware there
statement is insufficient to establish the functional equivalent of
asserted right to counsel, was not subjected to interrogation or
its functional equivalent when police allowed defendant’s wife to
speak with him in presence of officer and tape recorded their
conversation, even though officers were aware of possibility that
defendant would incriminate himself while talking to wife; officer
conduct, and there was no showing that officers sent wife in to see
defendant for purpose of eliciting incriminating statements). The
Mauro court noted that “[o]fficers do not interrogate a suspect
simply by hoping that he will incriminate himself.” Id. at 529. In
holding that Detective Cardi did not subject Gibson to custodial
interrogation or its functional equivalent, the New York Court of
Appeals thus did not unreasonably apply clearly established Supreme
Court law. Without a custodial interrogation, Gibson has no federal
Fifth Amendment right to counsel to assert.
Finally, Gibson’s claim on appeal was grounded primarily, if
constitution, which provides a right to counsel that the New York
Court of Appeals “has consistently interpreted . . . more broadly
counsel.” Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992)
(citing People v. Settles, 46 N.Y.2d 154, 1616 (1978)). On a
petition for federal habeas relief, a district court is “limited to
deciding whether a conviction violated the Constitution, laws, or
treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68
demonstrated a violation of his state-law right to counsel, it
would not be a sufficient basis on which to predicate habeas
relief. E.g., Tineo v. Heath, No. CV-09-3357 SJF, 2012 WL 4328361,
at *13 n.5 (E.D.N.Y. Sept. 19, 2012) (“Petitioner’s claim that his
mother had actually entered the matter about which he was being
questioned as his attorney when she called the precinct looking for
him arises under New York state law, which is broader than federal
constitutional requirements, see Claudio v. Scully, 982 F.2d [at]
803 . . . , and is not cognizable on federal habeas review.”);
Kotler v. Woods, 620 F. Supp.2d 366, 383 (E.D.N.Y. 2009) (“[W]hile
a more expansive right to be present may apply under New York law,
that broader right is not applicable in a federal habeas proceeding
where it does not implicate the rights of the defendant under the
United States Constitution.”) (citation omitted).
Legal Insufficiency of the Evidence
Petitioner argues that his due process right to have his guilt
standard was violated because the prosecution did not produce
legally sufficient evidence that he was the perpetrator of the
robbery. In particular, Petitioner’s focuses on the inability of
Koehler and her daughter to identify Petitioner; the fact that
during trial these witnesses did not identify the knit hat bearing
Petitioner’s DNA as an article of clothing worn by the robber; and
the discrepancy between Koehler’s estimation of Petitioner’s height
and his actual height. The Appellate Division briefly discussed
this claim and rejected it on the merits. People v. Gibson, 74
A.D.3d at 1702-03.
On federal habeas review of an insufficient evidence claim
previously adjudicated by a state court, the applicable, clearly
established Supreme Court law for purposes of AEDPA review is set
forth in Jackson v. Virginia, 443 U.S. 307 (1979).
Brown,__ U.S. __, 130 S.Ct. 665, 673, 175 L.Ed.2d 582 (2010) (per
curiam). The federal court may not grant habeas relief unless the
unreasonable” manner. Id. Jackson’s test for legal sufficiency asks
“whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” 443
U.S. at 319 (citation omitted, emphasis original). If the record
presume—even if it does not affirmatively appear in the record—that
the trier of fact resolved any such conflicts in favor of the
prosecution, and must defer to that resolution.” McDaniel, 130 S.
Ct. at 673 (quoting Jackson, 443 U.S. at 326)). Jackson sets “a
high standard[,]” and “[i]t is not enough that [a reviewing court]
might have reached a different result . . . or . . . may have
reasonable doubt.” Jones v. Wood, 207 F.3d 557, 563 (9th Cir. 2000).
prosecution’s proof regarding identity and does not contend that
the evidence was otherwise insufficient to establish the elements
of the robbery charge.2 The Appellate Division, the last state
court to issue a reasoned decision on Petitioner’s sufficiency of
the evidence of claim, determined that the evidence of identity was
sufficient, and, moreover, that the verdict was not against the
weight of the evidence. The only question for this Court is whether
the Appellate Division reasonably determined that a rational trier
of fact could have found, beyond a reasonable doubt, that Gibson
robbed the Noco store. See Cavazos v. Smith, ___ U.S. ___, 132 S.
Ct. 2, 7-8, 181 L.Ed.2d 311 (2011) (per curiam) (reversing circuit
court’s decision granting habeas petition in light of finding that
it was reasonable for state court to determine that jury’s verdict
The Appellate Division found that the following facts were
sufficient evidence of identity:
Clothing worn by the perpetrator was found by the police
in the backyard of a residence approximately 200 yards
Petitioner was found guilty of robbery in the first degree
(display of a firearm), which requires proof that a person
“forcibly steals property and . . . , in the course of the
commission of the crime or of immediate flight therefrom, . . . .
displays what appears to be a pistol, revolver, rifle, shotgun,
machine gun or other firearm. . . .” N.Y. Penal Law § 160.15(4).
from the scene of the robbery, including the knitted cap
with the DNA matching that of defendant. In addition,
defendant’s girlfriend was observed near the scene of the
robbery shortly after the crime was committed, and she
and defendant were seen walking together approximately a
half mile from the crime scene less than an hour later.
Finally, defendant matched the general description of the
perpetrator, whose face was covered by clothing during
Gibson, 77 A.D.3d at 1702-03. The Appellate Division concluded that
prosecution, “there is a valid line of reasoning and permissible
inferences to support the jury’s finding that defendant committed
the robbery. . . .” Id. (internal citation omitted).
prosecution, but “there is no rule of law that requires identity to
be established by an eyewitness. Identity can be inferred through
circumstantial evidence.” United States v. Kwong, 14 F.3d 189, 193
(2d Cir. 1994) (citations omitted). See also Holland v. United
States, 348 U.S. 121, 140 (1954) (circumstantial evidence that
criminal conviction). From the facts summarized above, the jury
could reasonably have inferred that (1) the tan Celtics baseball
hat, and sweatshirt and sweatpants found at 80 Colton Street were
items of clothing worn by the robber, as identified by Kohler and
as depicted in the videotape; and(2) those items and the knit hat
containing Petitioner’s DNA were all worn by the same person since
they were found in close proximity at 80 Colton Street. The jury
was entitled to find that the sweatshirt and sweatpants they
appeared to have been discarded hastily, as if by someone fleeing
a crime scene and not by a resident discarding trash; and the jury
could reject Petitioner’s girlfriend’s testimony that she was
trying to get into the Noco to buy some food. It was not irrational
for the jury to have concluded that, given her suspicious behavior
(standing in the middle of the Noco parking lot near the gas pumps
and stared fixedly at Officer Caber when he responded to the 911
call), she was acting as a lookout for Petitioner. Finally, the
jury was entitled to reject Petitioner’s girlfriend’s claim, when
they were stopped by Officer Caber very near to the Noco store,
that they were on their way to visit Petitioner’s grandfather at
7:00 a.m. in the morning on a weekend. Although mere presence at
the scene of the crime, at the time the crime occurred, is
insufficient to establish commission of the crime, evidence of
opportunity and presence at the crime scene may contribute to a
finding of guilt.
Petitioner points that although Koehler identified a number of
articles of clothing worn by the robber, she did not describe the
robber as wearing the knit hat or identify the knit hat at trial.
prosecution’s case, is not visible in the surveillance videotape,
quality.” Petitioner also emphasizes discrepancies in witnesses’
descriptions the robber’s age and height. For instance, the suspect
was described to Officer Caber by a witness who saw a black male
running north on Victory Street as being around eighteen-years-old,
but Petitioner was nearly thirty-two at the time of the crime.
Koehler described the robber as 5'3" or 5'4", while Petitioner’s
height is given as 5'7" in the pre-sentence report.
Petitioner is essentially asking this Court to reweigh the
evidence and to set aside the rational inferences that could be
drawn from the circumstantial evidence presented at his trial.
However, a habeas court cannot reevaluate the evidence or draw new
Appellate Division was required to reject any conflicting evidence
that was inconsistent with the jury’s verdict. Jackson, 443 U.S. at
319 (reviewing court must consider evidence “in the light most
favorable to the prosecution”). This Court must defer to the
The Appellate Division summarily rejected Gibson’s claim of
deference under AEDPA. Thus, to obtain habeas relief, Gibson must
clearly established Supreme Court precedent regarding prosecutorial
“[T]he touchstone of due process analysis in cases of alleged
prosecutorial misconduct is the fairness of the trial, not the
culpability of the prosecutor.” Smith v. Phillips, 455 U.S. 209,
prosecutorial misconduct, the alleged prosecutorial misconduct must
have “‘so infected the trial with unfairness as to make the
criminal convictions are not to be lightly overturned on the basis
of a prosecutor's inappropriate comments standing alone in an
otherwise fair proceeding. United States v. Young, 470 U.S. 1, 105
S. Ct. 1038, 1044, 84 L. Ed.2d 1 (1985) (context in which remarks
were made must be examined to determine the probable effect on the
jury’s ability to judge the evidence fairly).
prosecutor, when introducing the surveillance video, to liken it,
and the trial itself, to something one might see in an episode of
a crime drama on television:
But I think this trial could have served as back to back
episodes of CSI or Law and Order. Picture the opening
scene, Stacey Kohler in the Noco station, the store
appears empty because young Courtney is small. She’s
short and you can’t see her, she’s out of sight. You cut
back to the defendant outside the Noco and looking in. He
can’t see young Courtney. The store appears empty, might
as well go for it. The camera pulls back, the defendant
is pulling his knit hat down over his face as he
approaches the door. The camera cuts back to Stacey
getting ready to have a cigarette.
summation, trial counsel objected that this comment impermissibly
blurred the boundary between fantasy and the actual trial evidence,
and improperly suggested that Gibson was wearing the hat, when
there is no knit hat visible on the videotape, see T.746. Defense
counsel asked for a curative instruction to the effect that “there
should be no conclusion drawn by the jury that the video depicts a
knit hat.” T.747. The prosecutor responded, “[A]t no time did I say
you can see from the video the knit hat. I didn’t say that because
I know that is not on the video . . . .” T.747. The trial court
allowed the parties to make their arguments and upon listening to
a read-back of the challenged remarks, agreed with the prosecutor
that it was “fair comment based upon the evidence.” T.749. In other
words, the prosecutor was making an argument that “this is what
[his] proof showed.” T.750.
“Both prosecution and defense are entitled to broad latitude
in the inferences they may suggest to the jury during closing
arguments.” United States v. Suarez, 588 F.2d 352, 354 (2d Cir.
1978) (citation omitted). The law, however, is “clear that it is
improper for a prosecutor to mischaracterize the evidence or refer
in summation to facts not in evidence.” United States v. Rosa, 17
F.3d 1531, 1548-49 (2d Cir. 1994). See also 3 Charles Alan Wright,
Nancy J. King & Susan R. Klein, Federal Practice and Procedure
§ 555 (3d ed. 2004) (“It is misconduct for a prosecutor to make an
assertion to the jury of a fact, either by way of argument or by an
assumption in a question, unless there is evidence of that fact.”).
(quoted in United States v. Gentles, 619 F.3d 75, 81 (1st Cir.
2010)). Although the prosecutor’s comment fell close to the line,
the Court cannot say that the trial judge abused his discretion in
finding that the comment was part of the prosecutor’s argument
about what his evidence showed rather than an assertion that the
videotape depicted the knit hat.
asserted that the clothing Koehler had identified as belonging to
the robber contained Petitioner’s DNA. The prosecutor said, in
relevant part, “Jeffrey Gibson has been identified as the robber.
He identifies himself through his own DNA which is on the clothing
that’s on the video that was truthfully and accurately identified
by the victim, Stacey Koehler.” T.743 (emphasis supplied). The
Court agrees with Petitioner that in this remark, the prosecutor
blurred the distinction between the knit hat and the other items of
However, viewing the record as a whole, it appear to
have been made in bad faith given that earlier in his summation,
interpretable [as far as DNA] from the clothing[.]” T.739. The
prosecutor argued that the “connection for the clothing is on the
video and the connection of the clothing and the hats [is] because
of where they were found and the manner in which they were found.”
The objected-to comment was imprecise and the prosecutor
should have been more careful. Nonetheless, the Court cannot find
that this went beyond “ordinary trial error of a prosecutor” and
amounted to “that sort of egregious misconduct” constituting “a
denial of constitutional due process.” Donnelly, 416 U.S. at 647-48
Ineffective Assistance of Trial Counsel
Petitioner claims, as he did on direct appeal, that trial
counsel failed to provide the level of representation guaranteed by
the Sixth Amendment based upon his (1) failure to make a motion to
dismiss adequate to preserve a legal sufficiency challenge for
appellate review; (2) failure to raise the right to counsel issue
during the suppression hearing; (3) failure to request a specific
jury charge on identity; and (4) failure to request an expanded
circumstantial evidence charge. The Appellate Division summarily
rejected this claim on the merits, and this ruling is entitled to
deference on federal habeas review AEDPA. Murden v. Artuz, 497 F.3d
specifically dismiss Murden’s assertion regarding the failure [by
deference.”) (citations omitted).
Strickland v. Washington, 466 U.S. 668 74 (1984), is the
evaluating his claims of error. Murden, 497 F.3d at 198. The
Strickland standard requires a petitioner to show that counsel’s
representation “fell below an objective standard of reasonableness”
determined according to “prevailing professional norms” and that
unprofessional errors, the result of the proceeding would have been
different.” Id. at 688, 694. A petitioner’s failure to adequately
demonstrate one prong of the Strickland standard is fatal to his
claim of ineffective assistance. See id. at 697 (“[T]here is no
reason for a court deciding an ineffective assistance claim to
approach the inquiry in the same order or even to address both
components of the inquiry if the defendant makes an insufficient
showing on one.”). On habeas review, “the question ‘is not whether
a federal court believes the state court’s determination’ under the
Strickland standard ‘was incorrect but whether that determination
was unreasonable-a substantially higher threshold.’” Knowles v.
Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 1420, 173 L.Ed.2d 251
(2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)).
The Court addresses Petitioner claims of error by trial
counsel in turn.
First, trial counsel’s failure to make a motion
evidence on the element of identity did not result in prejudice
Petitioner because the Appellate Division considered the legal
No. 99–CV–0615, 2003 WL 21508318, at *3 (E.D.N.Y. June 16, 2003)
(“The Appellate Division reached the merits of the claim on direct
establish guilt beyond a reasonable doubt and that it was not
against the weight of the evidence. Even if counsel was ineffective
for failing to preserve the claim, therefore, petitioner was not
prejudiced because the Appellate Division entertained the claim and
rejected it on the merits.”), aff’d, 99 Fed. Appx. 318 (2d Cir.
2004); accord Gaskin v. Graham, 08–CV–1124, 2009 WL 5214498, at *25
(E.D.N.Y. Dec. 30, 2009).
Likewise, trial counsel’s failure to raise the right to
counsel issue during the suppression hearing did not prejudice
Petitioner because, as a matter of state law, such claims need not
be preserved if the factual record is adequate to permit appellate
review. People v. Kinchen, 60 N.Y.2d 772, 773-74 (1983) (citation
omitted). Notably, Petitioner’s appellate counsel conceded that the
record was adequate to permit appellate review of the unpreserved
right to counsel issue. In addition, the state courts’ lengthy
analyses of the issue demonstrated the adequacy of the record for
demonstrate prejudice, there is no need to consider whether the
failure to raise the right to counsel issue at the suppression
hearing amounted to deficient performance.
performance” prong of Strickland. “The New York Court of Appeals
has held that, although expanded identification instructions are
preferable, especially when there is a dose question of identity,
reversible error.” Aparicio v. Artuz, 269 F.3d 78, 99-100 (2d Cir.
2001) (citations omitted). The decision whether to give an expanded
identification charge lies with the trial judge. Id. (citation
omitted). When the judge has given a “general instruction on
identification must be proven beyond a reasonable doubt,” the judge
has made an
omitted). Here, the trial court instructed the jury as to how
assess the credibility of the witnesses and repeatedly instructed
the jury that in order to convict Petitioner of robbery, it had to
conclude beyond a reasonable doubt Petitioner was the perpetrator
of each element of the charged offense. Thus, the instruction
actually given sufficed as “an accurate statement of the law.”
“Because, under the circumstances, the jury instructions were not
improper, the failure of Petitioner’s trial counsel to object or
unreasonable.” Aparicio, 269 F.3d at 100. As Petitioner cannot
demonstrate defective performance, the Court need not consider the
prejudice aspect of the Strickland test.
Similarly, trial counsel’s failure to request an additional
constitutional ineffective performance. The New York Court of
Appeals has held that it is not necessary that a circumstantial
evidence charge use the words “moral certainty” but has emphasized
that “the jury should be instructed in sum and substance that “it
must appear that the inference of guilt is the only one that can
fairly and reasonably be drawn from the facts, and that the
hypothesis of innocence.” People v. Ford, 66 N.Y.2d 428, 441 (1985)
(quotation and quotation marks omitted). Here, the trial court
properly instructed the jury with regard to circumstantial evidence
in relevant part as follows:
may draw an inference of guilt, however, that
must be the only one that can fairly and
be drawn from the facts. It must be consistent
proven facts and it must flow naturally,
and logically from them.
Again, it must appear that the inference of guilt is the
only one that can fairly and reasonably be drawn from the
facts, and that the evidence excludes beyond a reasonable
doubt every reasonable hypothesis of innocence.
T.765-66. The instruction given by the trial court thus comported
with New York state law, and it was unnecessary for the trial court
to have stated that “the facts proved must exclude ‘to a moral
certainty’ every reasonable hypothesis of innocence,”’ Ford, 66
N.Y.2d at 442 (quotation omitted). As the charge was correct as a
matter of law, it was not objectively unreasonable for trial
counsel not to object or request additional language.
Considering the claimed errors in the aggregate, see, e.g.,
Lindstandt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001), the Court
finds that none meet the requirements set out in Strickland-either
individually or in the aggregate. Given that Gibson is unable to
fulfill the Strickland test, it necessarily follows that the
rejecting his ineffective assistance claim.
For the reasons stated above, Jeffrey D. Gibson’s petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and
the petition is dismissed. Because Gibson 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).
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
IT IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
October 23, 2012
Rochester, New York.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?