Peterkin v. LaValley

Filing 24

-CLERK TO FOLLOW UP- DECISION AND ORDER denying 20 Motion to Appoint Counsel; denying petitioners request for writ of habeas corpus; and dismissing the petition (Doc.1). Because petitioner has not made a substantial showing of the denial of a co nstitutional right, 28 U.S.C. § 2253(c)(2), the Court declines to issue a certificate of appealability. The Clerk of the Court is directed to close this case. (Copy of Decision and Order sent by first class mail to Plaintiff.) Signed by Hon. Michael A. Telesca on 9/20/16. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DON PETERKIN,
No. 6:13-CV-06172 (MAT)
DECISION AND ORDER

Petitioner,
-vsTHOMAS LAVALLEY,
Respondent.

I.

Introduction
Don Peterkin (“petitioner”), proceeding pro se, petitions this

Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner is incarcerated pursuant to a judgment entered February
13, 2007, in New York State Supreme Court, Monroe County (Affronti,
J.), following a jury verdict convicting him of robbery in the
first degree (six counts), burglary in the first degree, kidnapping
in the second degree (three counts), aggravated sexual abuse in the
first degree, assault in the second degree, attempted assault in
the second degree, petit larceny, and unlawful imprisonment in the
first degree.
II.

Factual Background and Procedural History
The

charges

against

petitioner

arose

from

events

which

occurred April 15 through 17, 2006. Evidence at trial established
that on April 15, 2006, petitioner and his brother unlawfully
imprisoned Timothy Menard, held him at gunpoint, and stole money
and

his

driver’s

license.

In

a

separate

incident,

spanning

approximately four-and-a-half hours from Easter Sunday, April 16,

2006, through April 17, 2006, petitioner and his brother kidnapped
victims W.G. and A.G. along with their 20-month-old daughter S.G.;
forcibly stole money and property from them at gunpoint; unlawfully
entered their

dwelling

with

the

intent

to commit

a

larceny;

sexually abused A.G.; and stole a car belonging to the family. A
jury convicted petitioner as charged, and on February 13, 2007, he
was sentenced to an aggregate term of 50 years incarceration, which
sentence was reduced by operation of law to 40 years.
Petitioner filed a counseled direct appeal to the New York
State Supreme Court, Appellate Division, Fourth Department, arguing
that (1) his statements regarding both incidents should have been
suppressed; (2) the verdict was against the weight of the evidence;
(3) the show-up identification procedure was unduly suggestive;
(4) the trial court erred in denying his motion for severance of
the

charges

relating

to

both

incidents;

(5)

petitioner’s

intoxication at the time of the crime negated the element of
intent; (6) a DNA report should have been precluded; (7) a photo
array identification was unduly suggestive; (8) trial counsel was
ineffective for failure to request a jury charge for an affirmative
defense to the robbery and burglary charges; and (9) petitioner’s
sentence should have been reduced in the interest of justice. On
November 10, 2011, the Appellate Division unanimously affirmed
petitioner’s conviction. See People v. Peterkin, 89 A.D.3d 1455,
1455 (2011), lv. denied 18 N.Y.3d 885 (2012).

2

On March 30, 2012, petitioner moved to vacate his conviction
pursuant to New York Criminal Procedure Law (“CPL”) § 440.10,
arguing that trial counsel was ineffective for failing to move for
dismissal

based

on

legal

insufficiency

of

the

evidence.

On

April 12, 2012, the trial court denied plaintiff’s § 440.10 motion.
The Appellate Division denied leave to appeal.
Petitioner’s amended petition raises eight grounds, arguing:
(1) his statements should have been suppressed; (2) the verdict was
against the weight of the evidence; (3) a show-up identification
procedure was unduly suggestive; (4) the trial court erred in
denying petitioner’s motion for severance of the charges; (5) the
evidence
(6)

was

legally

petitioner’s

insufficient

rights

under

the

to

support

confrontation

the

verdict;

clause

were

violated; (7) trial counsel was ineffective; and (8) his sentence
was unduly harsh and excessive.
III. Petitioner’s Motion for Appointment of Counsel
On July 6, 2016, petitioner moved for appointment of counsel,
at that time also requesting an order of stay and abeyance so that
he could exhaust previously unexhausted claims. Initially, the
Court notes that petitioner’s prior motion for stay and abeyance
(doc. 12) was denied by this Court (Feldman, M.J.) on August 6,
2014 (doc. 16). Petitioner was given 30 days from the date of that
decision to renew his motion, but did not do so. Accordingly, his

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renewed motion for stay and abeyance, which comes more than two
years later, is denied with prejudice.
Petitioner’s motion for appointment of counsel is denied as
well. Appointment of counsel under 28 U.S.C. § 2255(g) is governed
by 18 U.S.C. § 3006A(a)(2)(B). There is no constitutional right to
representation by counsel in habeas corpus proceedings. See Green
v. Abrams, 984 F.2d 41, 47 (2d Cir. 1993). However, a court may in
its discretion appoint counsel where “the interests of justice so
require.” 18 U.S.C. § 3006A(a)(2) (B). “Where a movant’s claims may
fairly be heard on written submissions, the appointment of counsel
is

not

warranted

and

such

applications

should

ordinarily

be

denied.” Ballard v. United States, 2012 WL 3765022, *1 (S.D.N.Y.
Aug. 30, 2012). As the below discussion demonstrates, petitioner’s
claims are

not

afforded

just

a

“so

overwhelmingly

determination

complex

without

that

legal

he

cannot

be

representation,”

Ballard, 2012 WL 3765022, at *1, and therefore, petitioner’s motion
for appointment of counsel is denied.
IV.

Standard of Review
The Anti–Terrorism and Effective Death Penalty Act of 1996

(“AEDPA”) applies to this petition. AEDPA “revised the conditions
under which federal courts may grant habeas relief to a person in
state custody.” Kruelski v. Connecticut Super. Ct. for Judicial
Dist.

of

Danbury,

316

F.3d

103,

106

(2d

Cir.

2003)

(citing

28 U.S.C. § 2254). Under AEDPA, a federal court may grant a writ of

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habeas corpus under 28 U.S.C. § 2254 only if the state court’s
adjudication of the petitioner’s claim on the merits is “contrary
to, or involved an unreasonable application of, clearly established
Federal
United

law,

as

States,”

determined
28

U.S.C.

by
§

the

Supreme

2254(d)(1),

or

Court

of

the

involved

an

“unreasonable determination of the facts” in light of the evidence
presented. 28 U.S.C. § 2254(d)(2).
V. Grounds Asserted in the Petition
1.

Suppression of Statements

Petitioner contends that his confession should have been
suppressed because he was too intoxicated to understand his Miranda
rights, because police used “deceptive” tactics in questioning him,
and because police failed to renew his Miranda warnings upon
continued questioning. On direct appeal, the Fourth Department
rejected each of these arguments, finding that “evidence presented
at the suppression hearing supports the determination of the court
that

defendant's

voluntary

and

waiver

of

intelligent.”

his

Miranda

Peterkin,

rights
89

was

A.D.3d

knowing,
at

1455.

Specifically with regard to intoxication, the Fourth Department
found that “the record of the suppression hearing fail[ed] to
establish that [petitioner] was intoxicated at the time he waived
[his Miranda] rights ‘to the degree of mania, or of being unable to
understand the meaning of his statements.’” Id. (citing People v.
Schompert, 19 N.Y.2d 300, 305 (1967), cert. denied, 389 U.S. 874

5

(1967)). The Fourth Department also found that petitioner’s custody
was continuous, and therefore police were not required to reread
petitioner his Miranda rights when they renewed his questioning.
Peterkin, 89 A.D.3d at 1455-56.
The

findings

by

County

Court

and

the

Fourth

Department

constitute factual findings, which petitioner bears the burden of
rebutting

by

clear

and

convincing

evidence.

See

28

U.S.C.

§ 2254(e)(1). In this case, petitioner has come forward with no
evidence to suggest that the statements he made to police were
anything but spontaneous and voluntary, as established at the
Huntley hearing, see People v. Huntley, 15 N.Y.2d 72 (1965),

and

as found by County Court and the Fourth Department. Petitioner has
thus failed to meet his burden under § 2254(e)(1), and the factual
findings are presumed correct under AEDPA. See, e.g., Whyte v.
Brown, 2011 WL 7100558, *17-18 (S.D.N.Y. May 3, 2013) (holding that
voluntariness of statements was established where it “was fully
developed during the Huntley hearing”), report and recommendation
adopted, 2012 WL 234424 (S.D.N.Y. Jan. 26, 2012).
2.

Weight of the Evidence

Petitioner contends that the verdict was against the weight of
the evidence. This state law claim is not cognizable on habeas
review.

See Mobley v. Kirkpatrick, 778 F. Supp. 2d 291, 311

(W.D.N.Y. 2011) (“Federal courts routinely dismiss claims attacking
a verdict as against the weight of the evidence on the basis that

6

they are not federal constitutional issues cognizable in a habeas
proceeding.”) (citing, inter alia, Ex parte Craig, 282 F. 138, 148
(2d Cir. 1922) (holding that “a writ of habeas corpus cannot be
used to review the weight of evidence . . .”), aff'd, 263 U.S. 255
(1923)). Therefore, the claim is dismissed.
3.

Suppression of Show-Up Identification

Petitioner

contends

that

the

trial

court

should

have

suppressed a show-up identification as unduly suggestive, “due to
the manner in which it was conducted and based upon the information
provided by the police to the witness,” and because petitioner was
presented for identification while in handcuffs. Doc. 1 at 7. On
direct appeal, the Fourth Department summarily rejected this claim.
This decision was not a misapplication of relevant federal law,
“which requires a determination of whether the identification
process was impermissibly suggestive and, if so, whether it was so
suggestive

as

to

raise

‘a

very

substantial

likelihood

of

irreparable misidentification.’” Jackson v. Fogg, 589 F.2d 108, 111
(2d Cir. 1978) (quoting Neil v. Biggers, 409 U.S. 188 (1973)). The
Supreme Court in Biggers set out five factors for assessing the
likelihood of misidentification: “the opportunity of the witness to
view the criminal at the time of the crime, the witness’ degree of
attention, the accuracy of the witness’ prior description of the
criminal, the level of certainty demonstrated by the witness at the

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confrontation, and the length of time between the crime and the
confrontation.” 409 U.S. at 199-200.
Here, evidence at a Wade hearing, see People v. Wade, 143
A.D.2d 703 (2d Dep’t 1988), lv. denied, 73 N.Y.2d 861, established
that investigators told the identifying witness, W.G., that the
person

he

was

about

to

view

may

or

may

not

be

one

of

the

perpetrators, and did not indicate by words or gestures that
petitioner was a perpetrator. The state courts’ finding that the
identification was not unduly suggestive for the reasons argued by
petitioner was not contrary to, nor a misapplication of, federal
law, considering the unlikelihood of misidentification in this
case. Even assuming the procedure was unduly suggestive, W.G. had
ample opportunity to view petitioner during the four-and-a-halfhour incident in which petitioner kidnapped W.G. and his family.
Additionally, petitioner was presented for identification less than
an hour after he was apprehended, and W.G. identified petitioner
“absolutely.” Hearing Transcript, July 13, 2006, at 20, 39. Thus,
even if unduly suggestive, the show-up identification failed to
“raise

‘a

very

substantial

likelihood

of

irreparable

misidentification.’” Jackson, 589 F.2d at 111. Moreover, even in
the absence of this show-up identification, the evidence against
petitioner at trial was overwhelming. See, e.g., Wilson v. Van
Buren, 2010 WL 3260461, *9 (S.D.N.Y. July 19, 2010). For the
foregoing reasons, this claim is dismissed.

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4.

Severance of Charges

Petitioner contends that the trial court erred in failing to
sever

the

charges

relating

to

the

April

15,

2006

unlawful

imprisonment of Timothy Menard from the charges relating to the
April 16-17, 2006 kidnapping of W.G., A.G., and their 20-month
daughter, S.G. In this case, the charges were subject to joinder
under New York CPL § 200.20(2)(b), which provides that offenses are
subject to joinder where they are “of such nature that either proof
of the first offense would be material and admissible as evidence
in chief upon a trial of the second, or proof of the second would
be material and admissible as evidence in chief upon a trial of the
first.” When such offenses are charged, “the various counts in the
indictment [are] not subject to a severance for ‘good cause shown’
(CPL 200.20),” because “[t]he attacks were marked by a sufficiently
unique modus operandi to support joinder under CPL 200.20(2)(b).”
People v. Matthews, 175 A.D.2d 24, 25 (1st Dep’t 1991), aff’d, 79
N.Y.2d 1010 (1992).
In this case, the People established that during both crimes,
petitioner, armed with a silver handgun, surprised his victims as
they exited their cars; took their driver’s licenses and told them
that he knew where they lived and would kill them if they called
police; and forced the victims to drive to the same Chase Bank to
withdraw money from an ATM. Under these circumstances, under
New York law, severance was not permitted. See Matthews, 175 A.D.2d

9

at 25. Thus, petitioner’s claim, which rests solely upon state law,
is not cognizable on habeas review. See Jones v. Artus, 2016 WL
3248402, *4 (N.D.N.Y. June 13, 2016) (“[T]o the extent Jones
alleges that the trial court erred under CPL § 200.20(2)(b) when it
refused to sever the counts, such claim is not cognizable on
federal

habeas

review

because

it

implicates

only

the

proper

application of state law.”). This claim is therefore dismissed.
5.

Insufficiency of the Evidence

Petitioner next contends that the verdict was based on legally
insufficient

evidence.

Noting

that

petitioner’s

trial counsel

failed to move for a trial order of dismissal on this ground, the
Fourth Department found that this claim was unpreserved for review.
See Peterkin, 89 A.D.3d at 1456. This finding constitutes an
adequate and independent state ground precluding habeas review.
See, e.g., Richardson v. Greene, 497 F.3d 212, 218 (2d Cir. 2007)
(recognizing

New

York's

contemporaneous

objection

rule

as

an

adequate and independent state ground barring habeas review).
Therefore, this claim is dismissed.
6.

Confrontation Clause

Petitioner contends that his rights under the confrontation
clause were violated because the person who tested particular DNA
evidence did not testify at trial. The Fourth Department found that
this claim was unpreserved because trial counsel “objected to the
admission of that [DNA] report solely on the ground that the People

10

failed to establish a sufficient foundation.” Peterkin, 189 A.D.3d
at 1456. Consequently, this claim is barred by an adequate and
independent

state

ground,

and

is

therefore

dismissed.

See

Richardson, 497 F.3d at 218.
7.

Ineffective Assistance of Counsel

Petitioner contends that trial counsel was ineffective for
failing to (1) request a lesser charge, (2) request an affirmative
defense, and (3) present evidence that petitioner had a high level
of intoxication. The first contention is unexhausted because it was
not raised in state court. If “the petitioner fail[s] to exhaust
state remedies and the court to which the petitioner would be
required to present his claims in order to meet the exhaustion
requirement would now find the claims procedurally barred, federal
habeas courts must also deem the claims procedurally defaulted.”
Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir.2001). Such claims may
be

deemed

exhausted

but

procedurally

barred.

See

Gray

v.

Netherland, 518 U.S. 152, 161 (1996); Aparicio, 269 F.3d at 90.
Petitioner's claim may only be reviewed if he can “demonstrate
cause for the default and actual prejudice as a result of the
alleged violation of federal law, or demonstrate that failure to
consider the claims will result in a fundamental miscarriage of
justice.”

Coleman

v.

Thompson,

501

U

.S.

722,

750

(1991).

Petitioner makes no such argument excusing his default, and the

11

Court’s review of the record indicates that the failure to consider
the claim will not result in a fundamental miscarriage of justice.
Petitioner’s remaining contentions were rejected on the merits
by the Fourth Department. See Peterkin, 89 A.D.3d at 1456-57. The
Fourth Department found that a request for an affirmative defense
charge would have been denied, and that ineffective assistance
could not stem from counsel’s failure to make a meritless motion.
Id. This decision was not an unreasonable application of federal
law, which holds the same. See, e.g., Johnson v. Conway, 2011 WL
53165, *5 (W.D.N.Y. Jan. 7, 2011) (“[I]t is well-settled that
counsel

cannot

be

faulted

for

failing

to

make

a

meritless

objection.”). The record likewise establishes that petitioner’s
contention

regarding

intoxication

similarly

lacked

merit,

and

defense counsel would have had little likelihood of success in the
absence of actual evidence that petitioner’s level of intoxication
“was 3 times the level of a D.W.I.” Doc. 1 at 16. For the foregoing
reasons, petitioner’s claims regarding ineffective assistance of
counsel are dismissed.
8.

Severity of Sentence

Petitioner claims that his sentence was unduly harsh and
severe, an argument the Fourth Department rejected on direct
appeal.

See

Peterkin,

89

A.D.3d

at

1457.

This

claim

is

not

cognizable on habeas review. “It is well settled that ‘no federal
constitutional issue is presented where . . . the sentence is

12

within the range prescribed by state law.’” Robles v. Lempke, 2011
WL 9381499, *18 (E.D.N.Y. Sept. 9, 2011), report and recommendation
adopted, 2012 WL 5507303 (E.D.N.Y. Nov. 14, 2012) (quoting White v.
Keane, 969 F.2d 1381, 1383 (2d Cir. 1992); citing Schreter v.
Artuz, 225

F.

Supp.

2d

249, 258

(E.D.N.Y.

2002)

(collecting

cases)). This claim is thus dismissed.
VI. Conclusion
For the foregoing reasons, petitioner’s request for writ of
habeas corpus is denied, and the petition (Doc. 1) is dismissed.
Petitioner’s motion for appointment of counsel (doc. 20) is denied.
Because petitioner has not “made a substantial showing of the
denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), the
Court declines to issue a certificate of appealability. The Clerk
of the Court is requested to close this case.
ALL OF THE ABOVE IS SO ORDERED.

S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

September 20, 2016
Rochester, New York.

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