Carr v. Graham
Filing
12
-CLERK TO FOLLOW UP- DECISION AND ORDER denying and dismissing the petitioner's request for a writ of habeas corpus. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 11/10/15. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ERIC D. CARR,
Petitioner,
No. 6:13-CV-06237 (MAT)
DECISION AND ORDER
-vsHAROLD GRAHAM,
Respondent.
I.
Introduction
Eric D. Carr (“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 on
August 1, 2008, in Erie County Court (Buscaglia, J.), following a
jury verdict convicting him of attempted murder in the second
degree (N.Y. Penal Law §§ 110.00, 125.25(1), 20.00), criminal
possession of a weapon in the second degree (N.Y. Penal Law
§§ 265.03(2), 20.00), and two counts of criminal possession of a
weapon in the third degree (N.Y. Penal Law §§ 265.02(1), 265.02(4),
20.00).
II.
Factual Background and Procedural History
By indictment of an Erie County grand jury dated August 11,
2006, petitioner was charged with one count of attempted murder in
the second degree, one count of assault in the first degree, and
four counts of criminal possession of a weapon (“CPW”) in varying
degrees. The charges arose from an incident in which petitioner and
his father, Clarence Carr, Jr., attempted to murder Antoine D.
Marble by shooting and stabbing him.
Petitioner
and
his
father,
who
were
each
charged
as
accomplices to attempted murder, were tried jointly at a jury trial
which commenced January 2, 2007. At trial, the evidence established
that on July 26, 2006, petitioner and his father chased the unarmed
Marble through a convenience store, surveillance video from which
showed petitioner shooting Marble and petitioner’s father stabbing
Marble. After Marble ran from the store, both codefendants followed
him. Outside a nearby apartment complex, Marble laid on the ground
while petitioner once again shot him, and petitioner’s father again
struck
him
with
a
knife.
Medical
testimony
established
that
Marble’s injuries were life-threatening.
The jury convicted petitioner of attempted murder, CPW in the
second degree, CPW in the third degree, and CPW in the fourth
degree. On May 21, 2007, Judge Buscaglia sentenced petitioner to a
determinate sentence of 25 years plus five years post-release
supervision
(“PRS”)
on
the
attempted
murder
count,
15
years
determinate plus five years PRS on the count of CPW in the second
degree, seven years determinate with three years PRS on the count
of CPW in the third degree, and one year determinate on the count
of CPW in the fourth degree, all sentences to run
concurrently.
Petitioner filed a counseled direct appeal to the New York
State Supreme Court, Appellate Division, Fourth Department. The
2
Fourth Department unanimously affirmed the conviction, and the New
York State Court of Appeals affirmed. See People v. Carr, 59 A.D.3d
945 (4th Dep’t 2009), aff’d 14 N.Y.3d 808 (2010).
On January 27, 2011, petitioner filed a motion to vacate the
conviction pursuant to New York Criminal Procedure Law (“CPL”)
§ 440.10. That motion was denied, and leave to appeal was denied on
April 2, 2012. Petitioner filed a second CPL § 440.10 motion on
February 22, 2012, which motion was denied on August 17, 2012, and
leave to appeal was denied on October 17, 2012. On June 4, 2012,
petitioner filed a petition for a writ of error coram nobis, which
was denied on September 28, 2012. Leave to appeal that decision was
denied on July 6, 2013. See People v. Carr, 98 A.D.3d 1324
(4th Dep’t 2012), lv denied 21 N.Y.3d 1014 (2013).
D.
The Federal Habeas Proceeding
This timely habeas petition followed, in which petitioner
contends that (1) a conflict of interest existed based on joint
representation, such that he was deprived a fair trial (2) his
conviction was based on insufficient evidence; (3) he was deprived
of Brady and Rosario material (see Brady v. Maryland, 373 U.S. 83
(1963); People v. Rosario, 9 N.Y.2d 286 (1961)); and (4) the trial
court abused its discretion when it denied an untimely request for
a missing witness charge.
3
III. 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 Superior Court 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 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
involved
the
an
“unreasonable determination of the facts” in light of the evidence
presented, 28 U.S.C. § 2254(d)(2).
IV. Grounds Asserted in the Petition
A.
Conflict of Interest (Ground One)
Petitioner contends that he was denied a fair trial due to a
conflict of interest, because he was tried jointly with his father,
the codefendant, and their defenses “ran afoul of each other . . .
with separate defense strategies.” Doc. 1 at 5. Specifically,
petitioner contends that due to this conflict, he was denied his
right to testify at trial, whereas his co-defendant did testify. In
his first CPL § 440.10 motion, petitioner contended that his trial
counsel was ineffective for allowing joint representation to occur.
4
Petitioner’s claim that he was denied the right to testify in
his
case
is
unexhausted.
“In
order
to
exhaust
a
federal
constitutional claim for the purposes of federal habeas review, the
substance of the federal claim, both legal and factual, must be
apparent from the petitioner's presentation to the state court.”
Smith v. Artus, 2005 WL 1661104, *12 (S.D.N.Y. July 14, 2005)
(citing Picard v. Connor, 404 U.S. 270, 275-76 (1971); Klein v.
Harris, 667 F.2d 274, 282 (2d Cir. 1981)). None of petitioner’s
post-trial motions raised this issue. As such, the state courts
were
not
“presented
petitioner’s
federal
with
the
opportunity
constitutional
claim,”
to
and
consider
it
is
the
thus
unexhausted. Id.
Pursuant to 22 U.S.C. § 2254(b)(2), “[a]n application for a
writ of habeas corpus may be denied on the merits, notwithstanding
the failure of an applicant to exhaust the remedies available in
the Courts of the state.” The Court finds that, even if it were
exhausted, petitioner’s claim that he was denied the right to
testify would fail on the merits. The record does not indicate that
petitioner wanted to testify in his own defense, and his petition
does not make out any facts as to how he was denied such a right,
other than to generally argue that he should have been allowed to
do so in order to explain his justification defense. In evidence at
trial were two statements made by petitioner to police, both of
which indicated that the victim was armed with a knife but his
5
petitioner’s codefendant (his father) was unarmed. Those statements
were squarely contradicted by the surveillance video, which showed
that petitioner and his father were armed while the victim was not.
Based on its review of the record, the Court concludes that
the evidence was so overwhelming against petitioner that if any
error occurred, it was harmless. See, e.g., Morales v. Keane, 1998
WL 91104, *1 (S.D.N.Y. Mar. 2, 1998) (“As to petitioner's claim
that counsel denied him the right to testify, petitioner did
nothing at trial to indicate that he wanted to testify in his own
defense[,] his argument indicates no more than that his counsel
advised him against testifying at trial and petitioner acquiesced
in that advice[,] [and] [g]iven the fact that petitioner had made
two post-arrest statements that were in evidence, counsel's advice
that he should not testify was clearly within the bounds of
reasonable trial strategy.”).
To the extent that petitioner now claims that counsel was
ineffective for allowing representation to continue despite a
conflict of interest, that claim is barred by an adequate and
independent
state
ground.
In
deciding
petitioner’s
first
CPL
§ 440.10 motion, Judge Buscaglia specifically denied that argument
on the ground that it could have been raised on direct appeal and
was therefore barred by CPL § 440.10(2)(c). See doc. 7, Exh. E. A
denial based on CPL § 440.10(2)(c) constitutes a denial on an
adequate and independent state ground. See Sweet v. Bennett, 353
6
F.3d 135, 139-40 (2d Cir. 2003) (holding that CPL § 440.10(2)(c)
constitutes adequate and independent state law ground where basis
of ineffective assistance claim is apparent from trial record).
Based on the above, petitioner’s first ground is dismissed.
B.
Sufficiency of the Evidence (Ground Two)
Petitioner contends that the verdict was not supported by
sufficient evidence, arguing specifically that the element of
intent
was
not
established.
Due
process
requires
that
the
prosecution establish a defendant’s guilt as to all elements of a
criminal offense beyond a reasonable doubt. See In re Winship, 397
U.S. 358, 364 (1970). A verdict will be deemed consonant with due
process principles if, 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.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in
original). Thus, a petitioner “bears a very heavy burden” when
challenging the sufficiency of the evidence supporting his state
criminal conviction. Einaugler v. Supreme Court of the State of
New York, 109 F.3d 836, 840 (2d Cir. 1997).
On
direct
appeal,
the
Fourth
Department
found
that
the
evidence was sufficient to establish the element of intent. See
Carr, 59 A.D.3d at 945. That holding was not unreasonable. The
evidence in this case was overwhelming against petitioner. It
included a surveillance video that showed him shooting the victim
7
in the store, chasing the victim from the store, reloading his gun,
and shooting the victim again, all while his father repeatedly
stabbed the victim. Petitioner admitted to police that he entered
the store with a fully loaded handgun, and that he shot the victim
once in the store and twice after chasing him from the store. The
record thus fails to support petitioner’s claim of a due process
violation based on insufficiency of the evidence.
C.
Alleged Deprivation of Rosario Material (Ground Three)
Petitioner contends that he was deprived of Rosario material
at
trial.1
Specifically,
the
petition
alleges
that
the
“[p]rosecution characterized their complainant witness [Marble]
under false pretense and [that the] prosecution never turned over”
Marble’s criminal history. Doc. 1 at 8. The record reveals that
Marble had no criminal history at the time of this trial, but that
the prosecution did turn over a document indicating an arrest which
resulted in an adjudication of youthful offender status. Petitioner
raised this ground in his second CPL § 440.10 motion. In denying
that motion, Judge Buscaglia found that petitioner was not entitled
to Marble’s criminal history, because there was “no indication that
[Marble] had been convicted of any crime or that any criminal
action was pending against him.” Doc. 7, Exh. E (citing People v.
1
Although ground three of the petition initially alleges
“Brady and Rosario violations by the District Attorney’s Office,”
the facts alleged in this ground allege only Rosario violations.
Doc. 1 at 8.
8
Allen, 30 A.D.3d 1106 (4th Dep’t 2006)). The Fourth Department
denied leave to appeal. See doc. 7, Exh. F.
“[T]he failure to turn over Rosario material is not a basis
for habeas relief as the Rosario rule is purely one of a state
law.” Green v. Artuz, 990 F.Supp. 267, 274 (S.D.N.Y. 1998) (citing
U.S. ex rel. Butler v. Schubin, 376 F. Supp. 1241, 1247 (S.D.N.Y.
1974), aff'd, 508 F.2d 837 (2d Cir. 1975)); see also Flores v.
Demskie, 215 F.3d 293, 305 (2d Cir. 2000) (“[A]ssuming the State
courts were in fact in error in interpreting the scope of the
Rosario rule, it was one of state law that is not subject to a
review under a petition for a federal writ of habeas corpus
charging infringement of federal constitutional rights.”) (quoting
Butler,
376
F.
Supp.
at
1247).
Accordingly,
this
claim
is
dismissed.
D.
Denial of Missing Witness Charge (Ground Four)
Petitioner
contends
that his
right
to
a
fair
trial
was
violated when the trial court denied his request for a missing
witness charge as to three witnesses who were present in the store
prior to petitioner’s arrival at the store. On direct appeal, the
Fourth Department held that trial counsel’s motion for a missing
witness charge was not made “as soon as practicable” and was
therefore untimely, where it was made at the close of the People’s
case and the witness list provided to defense counsel before trial
indicated that the People did not intend to call those witnesses.
9
Carr, 59 A.D.3d at 946. The Fourth Department also held that the
trial court did not abuse its discretion in finding that “the
testimony of those individuals would be cumulative to the testimony
of the victim, the codefendant and the surveillance video.” Id.
Ordinarily, a state trial court's jury instruction, such as a
missing witness charge, is a matter of state law, and any error in
connection therewith is not cognizable on habeas review. See
28 U.S.C. § 2254(a). Like the failure to give any other jury
instruction, the failure to issue a missing witness instruction
does not raise a constitutional issue and cannot serve as the basis
for federal habeas relief unless the failure “so infected the
entire trial that the resulting conviction violated due process.”
Cupp v. Naughten, 414 U.S. 141, 147 (1973). A trial court's failure
to give a missing witness charge rarely warrants a reversal even on
direct appeal. See United States v. Adeniji, 31 F.3d 58, 65
(2d Cir. 1994); United States v. Torres, 845 F.2d 1165, 1170-71
(2d Cir. 1988). Whether the charge is given lies in the sound
discretion of the trial court. See Torres, 845 F.2d at 1171.
In order to obtain a missing witness charge under New York
state law, the party seeking the charge must make a prima facie
showing
that
“the
uncalled
witness
is
knowledgeable
about
a
material issue upon which the evidence is already in the case; that
the witness would naturally be expected to provide noncumulative
testimony favorable to the party who has not called him, and that
10
the witness is available to such party.” People v. Gonzalez, 68
N.Y.2d 424, 427 (1986). In this case, the trial court made the
factual determination that the testimony of these witnesses would
be merely cumulative. “[I]n a habeas proceeding, ‘a determination
of a factual issue made by a state court shall be presumed to be
correct,’ unless rebutted by clear and convincing evidence.” Morris
v. Reynolds, 264 F.3d 38, 47 (2d Cir. 2001) (quoting 28 U.S.C.
§ 2254(e)(1)).
Petitioner has not established that the testimony of these
three witnesses would be anything other than cumulative. Thus, the
Fourth Department’s decision that the trial court did not err in
denying the charge was not unreasonable. See Klosin v. Conway, 501
F. Supp. 2d 429, 444 (W.D.N.Y. 2007) (“A missing witness charge is
inappropriate when the witness in question is equally available to
both
sides,
or
when
the
requested
charge
would
be
merely
cumulative.”); Correa v. Duncan, 172 F. Supp. 2d 378, 382 (E.D.N.Y.
2001) (denying habeas relief on claim alleging failure to give
missing
witness
presumption
of
instruction
correctness
where
petitioner
accorded
to
trial
failed
court's
to
rebut
factual
determination that testimony of missing witnesses was cumulative,
making charge unwarranted).
CONCLUSION
For the foregoing reasons, petitioner’s request for writ of
habeas corpus is denied, and the petition (Doc. 1) is dismissed.
11
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:
November 10, 2015
Rochester, New York.
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