Sherrod v. Bradt

Filing 32

-CLERK TO FOLLOW UP-DECISION AND ORDER denying petitioners motion to stay and amend his petition (doc. 25); denying his request for writ of habeas corpus; and dismissing the petition as amended (docs. 1, 9). (Clerk of Court is directed to close case.) Motions terminated: 25 MOTION to Amend/Correct filed by Anthony Sherrod. Signed by Hon. Michael A. Telesca on 11/8/16. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

ANTHONY SHERROD,
Petitioner,

No. 6:13-CV-06539 (MAT)
DECISION AND ORDER

-vsDALE A. ARTUS, Superintendent,
Respondent.

I.

Introduction
Proceeding pro se, Anthony Sherrod (“petitioner”) seeks a writ

of habeas corpus pursuant to 28 U.S.C. § 2254 on the basis that he
is being detained in respondent’s custody in violation of his
federal constitutional rights. Petitioner is incarcerated pursuant
to a judgment entered June 16, 1998, in Erie County Court (Tills,
J.), following a jury verdict convicting him of an eleven-count
indictment which included three counts of rape in the first degree
(N.Y. Penal Law § 130.35), three counts of sodomy in the first
degree (former N.Y. Penal Law § 130.50(1)), two counts of robbery
in the second degree (N.Y. Penal Law § 160.10), one count of sex
abuse in the first degree (N.Y. Penal Law § 130.65), one count of
kidnapping in the second degree (N.Y. Penal Law § 135.20), and one
count of unauthorized use of a motor vehicle in the first degree
(N.Y. Penal Law § 165.08).
On June 24, 2016, this Court granted petitioner’s request to
vacate a previously-imposed stay and amend his petition to add one
additional claim regarding ineffective assistance of appellate

counsel.1 The Court denied respondent’s motion to dismiss and
directed respondent to file a response to the petition by September
21, 2016. Respondent has now responded and petitioner has replied
to that response.
II.

Factual Background and Procedural History
Petitioner’s conviction arose out of a June 25, 1997 incident

in which he abducted a young woman from a mall parking lot.
Petitioner then tied the victim to a fence and sexually abused her
over a period of approximately five hours, before she was able to
escape. After a jury trial, petitioner was convicted as indicted,
as outlined above. On June 16, 1998, he was sentenced, as a second
felony

offender,

to

an

aggregate

determinate

term

totaling

90 years, which was deemed a determinate term of 50 years pursuant
to N.Y. Penal Law § 70.30(1)(e)(vii). The relevant procedural
history in this case was recited in the Court’s Decision and Order
dated June 24, 2016, and that summary is incorporated herein by
reference. Doc. 24 at 1-5.
On August 30, 2016, petitioner moved for a third time to stay
the proceedings and amend his petition. Doc. 25. This motion,
according to petitioner, seeks to “clarify the factual and legal
bases of one of his seven original claims and to delete one of his
seven claims from the petition.” Doc. 25 at 3.

1

The Court also denied petitioner’s second motion to stay and
amend the petition (doc. 19).
2

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 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
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).
IV.

Discussion
A.

Petitioner’s Third Motion to Stay and Amend Petition

The Court denies petitioner’s most recent motion to stay and
amend his petition. The Court has already allowed petitioner to
stay and amend his petition once, and the latest amended petition
does not add any substantial new grounds for relief. Therefore,
petitioner has failed to show “good cause” for staying and amending
his petition and his motion is denied. See
U.S. 269, 277-78 (2005).

3

Rhines v. Weber, 544

B.

Grounds Raised in the Petition

The petition, as amended, raised grounds of (1) prosecutorial
misconduct (grounds one through four of the original petition
[doc. 1]); (2) ineffective assistance of trial and appellate
counsel (grounds five and seven of original petition, and grounds
one and three of amended petition [doc. 9]); and (3) unduly
suggestive

identification

procedures

(ground

six

of

original

petition and ground two of amended petition).
1.

Prosecutorial Misconduct

Petitioner raises three arguments regarding prosecutorial
misconduct. First, petitioner contends that the prosecutor suborned
perjury

from

nurse

Jane

Arbek,

who

testified

regarding

the

collection of DNA samples from the victim; chemist Richard Spencer,
who testified regarding the testing of DNA material; and Officer
Micheal DiVito, one of petitioner’s arresting officers. A witness
perjures him or herself when “she gives false testimony concerning
a

material

matter

with

the

willful

intent

to

provide

false

testimony, rather than as a result of confusion, mistake, or faulty
memory.” United States v. Dunnigan, 507 U.S. 87, 94 (1993).
Petitioner argues that error occurred at the trial level
because Nurse Arbek testified that she took two swabs of DNA
material from the victim and later corrected her testimony to say
that it was actually four, not two, swabs. There was no evidence at
trial, and petitioner has come forward with none, to indicate that

4

this initially mistaken testimony prejudiced petitioner in any way.
Spencer’s testimony at trial merely confirmed that there were four
swabs. Thus, as to Nurse Arbek and Spencer, petitioner has not come
forward with any evidence tending to establish that their testimony
was perjurious.
Petitioner also contends that the prosecutor suborned perjury
from arresting Officer DiVito, who testified that when petitioner
was sitting in the back of a patrol vehicle he made the spontaneous
statement, “[W]hat did she say I did?” See T. 226.2 At the Huntley
hearing in this case, see People v. Huntley, 43 N.Y.2d 175 (1977),
Officer DiVito did not testify regarding this particular statement.
Nevertheless, there is no indication that the statement was false,
and to the extent Officer DiVito testified to any statements not
noticed pretrial, there is no chance that such testimony affected
the outcome of the trial given the otherwise overwhelming evidence
against petitioner. See

Wood v. Ercole, 644 F.3d 83, 94 (2d Cir.

2011) (describing harmless error standard); see also, e.g., Black
v. Rock, 103 F. Supp. 3d 305, 320 (E.D.N.Y. 2015) (dismissing
habeas petition where there was no evidence that testimony elicited
by prosecutor was perjured).
Petitioner next contends that the prosecutor allowed arresting
officers to present “false” physical evidence against him at trial,

2

“T.” references the trial transcript
manually with the Court on September 21, 2016.
5

which

was

filed

in the form of a shoelace. Evidence at trial established that when
the victim escaped the fence to which petitioner had tied her, she
brought with her one shoelace and left behind a second with which
she had been bound. This shoelace was presented at trial and
petitioner’s arresting officers testified that it was found on
petitioner following his arrest. The shoelace was matched with the
shoelace the victim escaped the crime scene carrying. There is no
indication

whatsoever

that

the

evidence

was

somehow

“false.”

Therefore, again, petitioner has failed to establish that any
prosecutorial misconduct occurred. See, e.g., Bowers v. Walsh, 277
F. Supp. 2d 208, 225 (W.D.N.Y. 2003) (dismissing habeas petition
where

petitioner

“presented

no

evidence

of

any

prosecutorial

misconduct”).
Finally, petitioner contends that the prosecutor withheld DNA
evidence regarding one Judah Gehl, with whom the victim had had
previous sexual contact. Evidence of Mr. Gehl’s DNA was excluded
from trial pursuant to New York’s rape shield law. See CPL § 60.42.
This evidence was not withheld, however; it was the subject of
motion argument in court and it actually relates to petitioner’s
ineffective assistance of trial counsel argument, in which he
contends that trial counsel was ineffective for failure to present
testimony as to Gehl’s DNA. As such, petitioner has not established
that the prosecutor committed any misconduct with regard to Gehl’s
DNA evidence. See Bowers, 277 F. Supp. 2d at 225.

6

2.

Ineffective Assistance of Counsel

Petitioner raises various claims of ineffective assistance of
trial and appellate counsel. To establish ineffective assistance of
counsel at either the trial or appellate level, a defendant first
must show that “counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment” and second, that “there is a reasonable probability
that, absent the errors [by counsel], the fact finder would have
had a reasonable doubt respecting guilt.” Strickland v. Washington,
466 U.S. 668, 687, 695 (1984). Under Strickland, the Court is
required to consider alleged errors by counsel “in the aggregate.”
Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001).
a.

Trial Counsel

Petitioner contends that trial counsel was ineffective for
failing to investigate the chemist Richard Spencer’s notes and
failing to properly cross-examine Spencer. Petitioner raised this
ground in his December 12, 2012 CPL § 440.10 motion, which was
denied on May 20, 2013, and the Fourth Department denied leave to
appeal on September 11, 2013.
The Court has reviewed this claim along with the record in
this case, and finds that there is no basis in the record for
concluding

that

counsel

was

ineffective

for

failing

to

“investigate” Spencer’s notes and properly cross-examine him. This
ground relates to petitioner’s contention that the prosecutor

7

suborned perjury from Nurse Arbek and chemist Richard Spencer. As
discussed above, there is no indication of any prosecutorial
misconduct

surrounding

the

testimony

of

these

two

witnesses.

Additionally, there are no obvious errors in trial counsel’s crossexamination of Spencer. Thus, the state court’s decision on this
issue was not an unreasonable application of relevant federal
precedent. See 28 U.S.C. § 2254(d)(1).
b.

Appellate Counsel

Petitioner contends that appellate counsel was ineffective for
failing to raise grounds including (1) the prosecutor knowingly
suborned perjury and allowed false testimony from the chemist;
(2)
(3)

the

prosecutor

petitioner’s

failed

arresting

to

disclose

officers

Brady

knowingly

material;

offered

false

physical evidence; (4) trial counsel was ineffective for failing to
investigate the chemist’s notes and properly cross-examine the
chemist; and (5) trial counsel was ineffective for failing to
present expert witness DNA testimony as he promised the jury in his
opening statement.
Appellate counsel is not ineffective for failing to brief
every colorable issue on appeal; rather, counsel may focus on
claims that have the best chance of winning. See Jones v. Barnes,
463 U.S. 745, 753 (1983) (“A brief that raises every colorable
issue runs the risk of burying good arguments – those that, in the
words

of

the

great

advocate

John

8

W.

Davis,

‘go

for

the

jugular[.]’”). “The failure to include a meritless argument does
not fall outside the ‘wide range of professionally competent
assistance’ to which [p]etitioner was entitled.” Aparicio v. Artuz,
269 F.3d 78, 99 (2d Cir. 2001) (quoting Jameson v. Coughlin,
22 F.3d 427, 429-30 (2d Cir. 1994) and Strickland, 466 U.S. at
690)). Initially, because the Court has found that petitioner’s
ineffective assistance of trial counsel argument regarding the
chemist lacked merit, appellate counsel cannot be faulted for
failure to bring up that argument on appeal. See id.
In this case, appellate counsel submitted a substantial brief
which addressed two issues: the suppression decision and the
identification

procedure.

The

Court

has

reviewed

appellate

counsel’s brief, and concludes that counsel presented “a thorough,
well-researched brief in which [appellate counsel] persuasively
argued” petitioner’s points on appeal. Jamison v. Bradt, 2011 WL
2728394, *6 (W.D.N.Y. July 12, 2011); see SR 162-203. It is clear
from a review of the record that none of the arguments advanced by
petitioner would have been successful on appeal.
First, petitioner’s arguments that the prosecutor suborned
perjury lack merit. These arguments were discussed above with
relation to prosecutorial misconduct. There is no evidence that the
prosecutor suborned perjury, and therefore petitioner has not, and
cannot, show any prejudice stemming from their testimony. As such,

9

appellate counsel cannot be faulted for failing to raise the issue
on appeal. See Aparicio, 269 F.3d at 99.
Second, petitioner contends that the prosecutor withheld DNA
evidence regarding Judah Gehl, a contention which was discussed
above in the context of prosecutorial misconduct. As discussed
above, this argument is meritless and appellate counsel cannot be
faulted for failing to raise it. See Aparicio, 269 F.3d at 99.
Third, petitioner argues that his arresting officers, Officers
DiVito and Timothy Pringle, presented false physical evidence in
the form of a shoelace. This argument, which was addressed above in
relation

to

prosecutorial

misconduct,

likewise

lacks

merit.

Therefore, appellate counsel was not ineffective for failing to
raise it. See id.
Finally, petitioner argues that trial counsel was ineffective
for failing to present expert witness DNA testimony as he promised
the jury in his opening statement, and that appellate counsel was
correspondingly ineffective for failing to raise this issue on
appeal. Although counsel mentioned the possibility of a DNA expert
in his opening statement, his failure to present one during trial
did not render his representation constitutionally ineffective.
Taken in the aggregate, trial counsel presented a coherent defense,
was active at all stages of trial including pretrial hearings and
motion
closing

argument,

and

statements

to

presented
the

overall

jury.

10

Upon

effective
review

of

opening
the

and

record,

therefore, the Court concludes that petitioner received effective
assistance under Strickland. See Lindstadt, 239 F.3d at 199 (citing
Strickland, 466 U.S. at 687, 695)).
4.

Identification Procedure

Petitioner contends that the identification procedure used in
this case was unduly suggestive. Petitioner raised this argument on
direct appeal, contending that the Assistant District Attorney and
victim-witness assistant employed by the prosecutor behaved in such
a way as to suggest petitioner as the perpetrator of the crime.
Petitioner was presented to the victim in a line-up during which
all six of the men were directed to speak. After failing to
identify the petitioner on the first line-up, the victim was
presented with a second line-up. Initially, the victim did not
identify

any

of

the

men,

but

she

eventually

identified

the

petitioner by his voice, and in particular, his distinctive lisp.
Petitioner’s counsel was present at the line-up and made no
objections.

At

the

suppression

hearing,

petitioner’s

conceded that the line-up was not unduly suggestive.

counsel

On appeal,

the Fourth Department summarily affirmed. See People v. Sherrod,
82 A.D.3d 1624 (4th Dep’t 2011), lv denied 16 N.Y.3d 889. This
summary order was an adjudication on the merits, and thus subject
to the “unreasonable application” test of § 2254(d)(1). See Mance
v. Miller, 2002 WL 377533, *3 (S.D.N.Y. Mar. 8, 2002).

11

In affirming petitioner’s judgment of conviction, the Fourth
Department

necessarily

identification
unreasonable

was

found

that

unpersuasive.

application

his

argument

This

of applicable

regarding

finding
federal

was

the

not

an

precedent.

The

Fourteenth Amendment guarantees criminal defendants the right to be
free

from

pretrial

identification

procedures

“that

are

so

impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification.” Simmons v. United
States, 390 U.S. 377, 384 (1968). Nevertheless, even if a pretrial
identification procedure was unduly suggestive, a witness may
identify the defendant in court if the in-court identification is
independently reliable. See United States v. Tortora, 30 F.3d 334,
338

(2d

Cir.

1994).

Factors

used

to

determine

independent

reliability include “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 at the confrontation,
and

the

time

between

the

crime

and

the

confrontation.”

United States v. Wong, 40 F.3d 1347, 1359 (2d Cir. 1994) (citations
omitted).
In this case, the victim identified petitioner during the
Wade/Huntley hearing and at trial. Her identification, apart from
the

line-up,

opportunity

was
to

independently
observe,

and

12

reliable
listen

because
to,

she

had

petitioner

the
from

approximately 9:35 p.m. on June 25, 1997 through approximately 5:00
a.m. on June 26, 1997. She testified that she did not have a
“single doubt” regarding the identity of her attacker. T. 142.
Thus, given
rejection

the

of

unreasonable

facts

of

petitioner’s
application

this

case,

the

identification

of applicable

Fourth
argument

federal

Department’s
was

not

precedent.

an
See

U.S.C. § 2254(d)(1).
V.

Conclusion
For the foregoing reasons, petitioner’s motion to stay and

amend his petition (doc. 25) is denied, his request for writ of
habeas corpus is denied, and the petition as amended (docs. 1, 9)
is dismissed. Because petitioner has not “made a substantial
showing of
§

the

2253(c)(2),

denial
the

of

Court

a

constitutional

declines

to

issue

right,”
a

28

U.S.C.

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 8, 2016
Rochester, New York.

13