Milton v. Racette

Filing 17

-CLERK TO FOLLOW UP- DECISION AND ORDER denying 11 Motion for Extension of Time to Amend ; denying 12 Motion to Stay; denying 14 Motion to Amend or Correct; denying 14 Motion to Stay; and dismissing the petition for a writ of habeas corpus. (Clerk to close case.) Copy of Decision and Order sent by first class mail to Petitioner. Signed by Hon. Michael A. Telesca on 1/5/16. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

RASHEED MILTON,
Petitioner,

No. 1:14-CV-06001 (MAT)
DECISION AND ORDER

-vsSTEVEN RACETTE, Superintendent
G.M. Correctional Facility,
Respondent.

I.

Introduction
Rasheed Milton (“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
March 24, 2010, in New York State Supreme Court, Erie County
(Michalski, J.), following a jury verdict convicting him of two
counts of predatory sexual assault (N.Y. Penal Law § 130.95(1)(b),
(3)), one count of criminal possession of a weapon in the second
degree (N.Y. Penal Law § 265.02(1)), and one count of unlawful
imprisonment in the second degree (N.Y. Penal Law § 135.05).
II.

Factual Background and Procedural History
Petitioner

was

tried

at

a

jury

trial

in

November

2009.

Evidence at trial established that in November 2008, petitioner and
19-year-old Dominique Simmons had a brief romantic relationship
before

Ms.

Simmons

ended

it.

After

the

breakup,

petitioner

continued to contact Simmons, calling her repeatedly after she had
requested that he stop. On the morning of March 4, 2009, petitioner

called Simmons and she threatened to change her number; petitioner
responded that she would “get it” for refusing to be with him.
T. 146.1 Shortly thereafter, as Simmons walked to a bus stop on her
way to school, petitioner approached her from behind wielding a
pocketknife. Threatening Simmons with the knife, petitioner walked
her to his sister’s house and pushed her inside. In the house,
petitioner retrieved a larger carving knife from the kitchen and
forced Simmons to have sexual intercourse with him. During the
ensuing struggle, he broke her cell phone in half, ripped her
clothing, and cut her with the carving knife above her clavicle.
After the attack, petitioner and Simmons left the house together
and petitioner turned back as if he had forgotten something.
Simmons ran from the driveway straight to her aunt’s nearby house.
At her aunt’s house, Simmons reported the incident to her
cousin,

who

took

her

to

the

hospital

where

a

rape

kit

was

administered by Rebecca Roloff, R.N., who observed that Simmons was
extremely anxious and upset. Medical examination revealed a small
laceration, consistent with a smooth, sharp, blade, above Simmons’s
clavicle, swelling of the hymenal tissue, and cervical injury.
Results of the rape kit revealed petitioner’s DNA on vaginal swabs
taken from Simmons. Petitioner was interviewed by police and waived

1

References to “T.” are to the transcript of the jury trial,
filed manually with the Court by respondent.
2

his Miranda rights. Among other statements, petitioner admitted
that he “did it to scare” Simmons.
Petitioner was convicted as charged, as outlined above, and
sentenced as a second felony offender to an indeterminate term of
18 years to life. Petitioner filed a counseled direct appeal to the
New

York

State

Supreme

Court,

Appellate

Division,

Fourth

Department, in which he argued that (1) the prosecutor withheld
exculpatory evidence; (2) prosecutorial misconduct denied him a
fair trial; (3) he was denied effective assistance of counsel;
(4) his right to counsel was violated; (5) the trial court erred in
not suppressing his statements to police; and (6) his sentence was
harsh and excessive. The Fourth Department unanimously affirmed
petitioner’s conviction, finding each of petitioner’s claims to be
meritless, and the Court of Appeals denied leave to appeal. See
People v. Milton, 90 A.D.3d 1636 (4th Dep’t 2011), lv. denied,
18 N.Y.3d 996 (2012).
On June 18, 2012, petitioner moved to vacate the judgment
pursuant to New York Criminal Procedure Law (“CPL”) § 440.10,
arguing that (1) the prosecutor used statements made to police in
violation of his right to counsel; and (2) trial counsel was
ineffective for failure to challenge the prosecutor’s use of those
statements. On November 7, 2012, County Court denied petitioner’s
motion, finding that petitioner’s claim regarding the statements
was meritless because, although petitioner argued that he informed

3

police that he was under federal investigation and requested to
speak to his federally-appointed attorney, the record contained
(and petitioner

put

forth)

no

evidence

of such

facts.

Judge

Michalski thus denied this claim pursuant to CPL § 440.30(4)(a).
Petitioner’s second claim was denied based on CPL § 440.10(2)(a),
because it was meritless and because it had been considered on
direct appeal.
Petitioner filed this petition for habeas relief on January 2,
2014. The petition raises all of the grounds petitioner included in
his direct appeal and in his June 18, 2012 CPL § 440.10 motion. On
September 2, 2014, petitioner moved to stay his petition “so that
[he could] return to the State Courts to exhaust new claims of
newly discover[ed] evidence and ineffective assistance of counsel.”
Doc. 8.
Subsequently, on October 2, 2014, petitioner brought a second
CPL § 440.10 motion in state court, arguing that (1) petitioner
obtained “newly discovered evidence” of the existence of Simmons’s
shirt and bra, which was not tested for DNA but which petitioner
argued should have been tested for DNA; and (2) defense counsel was
ineffective for (a) failing to obtain video footage from a police
surveillance camera, which allegedly showed petitioner and Simmons
walking together on the date of the alleged assault; (b) failing to
investigate petitioner’s claim that video footage existed of him
and Simmons walking together on a different date; (c) failing to

4

seek DNA testing of Simmons’s cell phone; (d) stipulating to the
existence of DNA evidence on a vaginal swab taken from Simmons; and
(e) failure to challenge the People’s medical expert regarding
evidence of penetration.
County Court denied petitioner’s motion, without a hearing, on
March 5, 2015. Judge Michalski found that DNA testing of Simmons’s
shirt and bra, even if it did reveal the absence of petitioner’s
DNA, would not likely change the outcome of the trial. Therefore,
he denied the motion pursuant to CPL § 440.30, also citing People
v. Salemi, 309 N.Y. 208 (1955), cert. denied, 350 U.S. 950 (1956).
Judge Michalski denied petitioner’s ineffective assistance claims
on the ground that they should have been raised in the prior
motion, pursuant to CPL § 440.10(3)(c).
On

March

18,

2015,

this

Court

(Wolford,

J.)

denied

petitioner’s motion for a stay without prejudice, finding that the
petition was not a “mixed petition” since it did not currently
contain the unexhausted claims at issue, and that petitioner had
not provided the court sufficient information to permit it to
assess his unexhausted claims pursuant to Rhines v. Weber, 544 U.S.
269 (2005) (holding that a stay is warranted only where petitioner
establishes (1) good cause for his failure to exhaust the claims in
state

court

and

(2)

the

unexhausted

claims

are

not

plainly

meritless). Judge Wolford’s order informed petitioner that if he
chose to file a second motion for a stay it should address the

5

Rhines factors, and informed petitioner that any motion to amend
his petition should address “(1) why leave to amend should be
granted under Federal Rule of Civil Procedure 15(a); (2) whether
his proposed amendment is timely in light of the one-year statute
of limitations period for habeas petitions; and (3) if the proposed
amendment is not timely, whether the proposed amendment relates
back to

his

original petition.”

Doc.

10

(citing

Williams

v.

Sheahan, 2011 WL 2437496, *1 (E.D.N.Y. June 15, 2011)).
On April 22, 2015, petitioner filed a motion to amend the
petition to include his unexhausted claims and also filed a motion
for stay and abeyance pending exhaustion of his state court claims.
Docs. 11, 12.2 Although respondent was given the opportunity to
respond to petitioner’s motions by May 13, 2015 (doc. 13), it did
not do so. The Court notes that on December 4, 2015, it ordered
various transcripts to be filed by respondent’s representative.
Respondent has now provided the relevant state court transcripts,
as well as documents relating to petitioner’s post-conviction
motions, and the record before this Court is therefore complete.
Regarding petitioner’s second CPL § 440.10 motion, the Fourth
Department granted leave to appeal on November 16, 2015, and
ordered that the record and briefs in that appeal were to be filed

2

On May 18, 2015, petitioner filed an additional document
regarding his motion to amend and motion to stay. Doc. 14. This
document restates and/or duplicates portions of his earlier filings
(docs. 11, 12) and therefore will be considered as part of his
earlier motions.
6

within 120 days of the filing of the transcripts with the Erie
County Clerk’s Office. Thus, that proceeding remains pending.
III. Pending Motions
The Court will discuss petitioner’s pending motion to amend
his petition and motion to stay prior to reaching the grounds
raised in the petition itself. In Rhines, the Supreme Court limited
the district courts’ approval of stay requests to those situations
where there is both a showing by petitioner of “good cause” for the
petitioner’s failure to exhaust the claims in state court prior to
bringing the federal habeas corpus petition and a showing that the
unexhausted claims are not “plainly meritless.” 544 U.S. at 277.
Furthermore, because the one-year statute of limitations has run,3
the proposed new claims are untimely unless they “relate back” to
the originally pled claims. See Mayle v. Felix, 545 U.S. 644
(2005); Fed. R. Civ. P. 15(c)(1)(B).
Petitioner’s “affidavit in support of motion to stay” states,
in

a

conclusory

manner,

that

his

“new

claims

of

ineffective

assistance of counsel and newly discovered evidence” were “not
discovered until recently” due to his own due diligence. Doc. 14 at
2; see doc. 12 at 2-3. However, petitioner does not set out any

3

Petitioner’s conviction became final on July 4, 2012,
90 days after the Court of Appeals denied leave to appeal. However,
the limitations period was tolled from June 18, 2012, the date he
filed his CPL 440.10 motion, through January 11, 2013, the day the
Fourth Department denied leave to appeal the denial of that motion.
The limitations period for this proceeding thus expired on January
11, 2014.
7

factual background as to why he was unable to discover these claims
at an earlier time. Significantly, a report included with his own
CPL § 440.10 motion indicated that, although the crime lab was in
possession of Simmons’s shirt and bra, it did not test those items
for DNA evidence. This report was dated March 9, 2009 (although it
was apparently provided separately to petitioner at a later time
pursuant

to

a

FOIL

request),

and

also

included

information

regarding the evidence that was tested for DNA, including the rape
kit. Petitioner has laid out no reason as to why he was not aware
that the shirt and bra existed, but were not tested, prior to his
filing of the CPL § 440.10 motion in October 2014. He has not
alleged that this document was unavailable to defense counsel or
that defense counsel somehow lacked knowledge of evidence existing
at the time of trial, whether tested or untested.
Similarly,

petitioner’s

claims

regarding

ineffective

assistance of counsel center on facts which would have been known
to petitioner at the time of his trial (i.e., time spent with
Simmons prior to the alleged assault) or on events occurring during
trial (i.e., defense counsel’s stipulation to rape kit evidence and
and

failure

to

challenge

the

prosecution’s

medical

expert).

Petitioner has offered no reason as to why he waited so long to
request

permission

suggested

that

to

there

exhaust
were

these

any

claims,

official

and

he

impediments

has

not

to

his

instituting exhaustion proceedings at an earlier time. Therefore,

8

the Court determines that petitioner has not established good cause
for his failure to exhaust these claims prior to bringing the
instant habeas petition. In light of petitioner’s inability to
demonstrate “good cause”, it would be an abuse of this Court's
discretion to grant a stay. Rhines, 544 U.S. at 277–78.
Moreover, the claims are also time-barred because they do not
relate back to the claims brought in the original habeas petition.
See Mayle v. Felix, 545 U.S. 644, 664 (2005) (allowing relation
back “only when the claims added by amendment arise from the same
core facts as the timely filed claims, and not when the new claims
depend upon events separate in ‘both time and type’ from the
originally raised episodes”). Here, petitioner’s claims regarding
the “newly discovered” shirt and bra, and ineffective assistance of
counsel, do not relate to the events involved in the petition’s
original

claims.

withholding

of

Those

original

unrelated

claims

exculpatory

centered

evidence

on

and

alleged
separate

incidents of alleged ineffective assistance. For the above-stated
reasons, the Court denies petitioner’s motion to amend and motion
to stay, with prejudice.
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 Superior Court for Judicial

9

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

law,

United

as

States,”

determined
28

U.S.C.

by
§

the

Supreme

2254(d)(1),

Court

or

of

involved

the
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.

Brady Material

In his direct appeal, petitioner argued that the prosecution
withheld exculpatory Brady material. See Brady v. Maryland, 373
U.S.

83

(1963).

Specifically,

petitioner

contended

that

the

prosecution failed to disclose that one of its police witnesses,
Officer Wendy Collier, also worked for a private investigative firm
which pursued civil claims. Petitioner argued that this evidence
would have been exculpatory because the victim, Dominique Simmons,
had hired a law firm to sue Erie County for negligently releasing
petitioner, thereby enabling him to commit the alleged rape. The
Fourth

Department

rejected

petitioner’s

claim

on

the

merits,

holding that “[e]ven assuming, arguendo, that such information
constituted Brady material on the ground that it could be

used to

impeach the officer’s testimony, . . . there was no ‘reasonable

10

possibility that the outcome of the trial would have differed had
[that information] been [disclosed][.]’” Milton, 90 A.D.3d at 1636.
To establish a Brady violation, the “evidence at issue must be
favorable to the accused, either because it is exculpatory, or
because it is impeaching; that evidence must have been suppressed
by the State, either willfully or inadvertently; and prejudice must
have ensued.” Strickler v. Greene, 527 U.S. 263, 282 (1999). In
order to establish prejudice, a petitioner must “convince [the
court] that ‘there is a reasonable probability’ that the result of
the trial would have been different if the suppressed documents had
been disclosed to the defense.” Id. at 289. There is no such
reasonable probability in this case. Even if the evidence could be
considered Brady material, it has no bearing on the otherwise
overwhelming

evidence

against

petitioner

at

his

trial,

which

evidence included testimony of the victim, DNA corroboration from
a rape kit, and corroboration from witnesses who observed the
victim’s demeanor and injuries. Therefore, the Fourth Department’s
conclusion

reached

on

this

issue

was

not

an

unreasonable

application of Supreme Court precedent, and therefore this claim is
dismissed.
2.

Prosecutorial Misconduct

Petitioner’s claim of prosecutorial misconduct was rejected by
the Fourth Department, which found that it was unpreserved for
review and, in any event, without merit. “It is well-settled that

11

an Appellate Division finding that a petitioner failed to preserve
a claim for appellate review operates as a state procedural bar to
federal habeas review.” Collado v. Lemke, 2015 WL 4139256, *5
(E.D.N.Y. July 9, 2015) (citing Velasquez v. Leonardo, 898 F.2d 7,
9

(2d

Cir.

1990)

(finding

claims

procedurally

barred

where

“Appellate Division explicitly found that these claims were not
preserved for appellate review, in addition to finding that they
were, in any event, without merit.”)). Accordingly, this claim is
denied.
3.

Ineffective Assistance of Counsel

In his direct appeal, petitioner argued that trial counsel was
ineffective for the following reasons: (1) he improperly opened the
door to questioning of a police witness regarding petitioner’s
credibility in a police interview; and (2) various “additional
failures,” including failure to object to the prosecutor’s remarks
on

summation,

failure

to

request

a

hearing

regarding

the

admissibility of prior charged and uncharged crimes, and defense
counsel’s

own

reference

to

petitioner’s

prior

crimes.

In

petitioner’s first CPL § 440.10 motion, he also argued that trial
counsel was ineffective for failing to challenge the prosecutor’s
use of statements petitioner made to police, allegedly in violation
of his right to counsel. Petitioner’s claims regarding ineffective
assistance fail on the merits.

12

To establish ineffective assistance of counsel, 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).
Upon review of the record, the Court concludes that, although
trial

counsel

made

some

questionable

decisions,

overall

his

performance was effective. Counsel actively participated in all
stages of the trial, making appropriate motions and objections,
performing adequate cross-examination of witnesses both at the
pretrial and trial stages, and presenting reasonable opening and
closing

arguments.

aggregate,

trial

The

record

counsel’s

thus

establishes

representation

was

that,

in

the

effective.

See

Harrington v. Richter, 562 U.S. 86, 90 (2011) (“[I]t is difficult
to

establish

ineffective

assistance

when

counsel's

overall

performance indicates active and capable advocacy.”); United States
v. DiPaolo, 804 F.2d 225, 234-35 (2d Cir. 1986) (holding that
defendants were not denied effective assistance of counsel where
counsel appeared well-prepared and demonstrated good understanding
of the facts and legal principles involved in case). Regardless,

13

because

there

was

overwhelming

evidence

in

this

case

that

petitioner committed the crimes for which he was convicted, there
is no reasonable probability that absent any error on the part of
trial

counsel,

the

verdict

would

have

been

different.

See

Strickland, 466 U.S. at 695 (“the question is whether there is a
reasonable probability that, absent the errors, the factfinder
would have had a reasonable doubt respecting guilt”); see also Lang
v. United States, 2009 WL 4788430, *2 (S.D.N.Y. Dec. 9, 2009) (“[A]
court will not expend resources on an ineffective assistance claim
where there is independent and overwhelming evidence to support the
conviction.”). Therefore, petitioner’s claims regarding ineffective
assistance are dismissed.
4.

Right to Counsel

In his direct appeal, petitioner argued that his right to
counsel under New York law was violated when he was questioned by
police although they knew that he had counsel on a pending and
unrelated charge. On direct appeal, petitioner specifically framed
this claim in terms of New York law, citing People v. Lopez, 16
N.Y.3d 375 (2011), People v. Burdo, 91 N.Y.2d 146 (1997), and
People v. Rogers, 48 N.Y.2d 167 (1979). Because petitioner failed
to raise this issue in federal constitutional terms in his state
court proceedings, and in fact explicitly raised the issue only in
terms of state law, habeas relief on this ground is precluded. See,
e.g., Pulliam v. W., 2004 WL 2413385, *4 (E.D.N.Y. Oct. 12, 2004)

14

(“As the [habeas] statute clearly states, [a court] cannot grant
habeas relief on [a petitioner’s] argument that his right to
counsel was violated under state law.”); Rivera v. Jones, 1986 WL
7786, *1 (S.D.N.Y. July 10, 1986) (“Rivera's first claim is that he
was

denied

his

state

constitutional

right

to

counsel,

under

New York law. However, federal habeas relief does not lie for
violations of state law.”).
Petitioner did raise a claim of a violation of his federal
constitutional right to counsel in his first CPL § 440.10 motion.
County Court denied petitioner’s motion on this ground, citing
state law

reasons.

This

claim

is

barred

from

habeas

review,

however, because it is apparent from review of the record that
petitioner could have brought the claim on his direct appeal.
Therefore, the claim is unexhausted and procedurally barred. See,
e.g., Nunez v. Conway, 2010 WL 234826, *7-8 (S.D.N.Y. Jan. 20,
2010) (noting that under similar facts, that claim of a violation
of right to counsel was procedurally barred). Petitioner has not
alleged cause and prejudice to overcome the procedural default.
Moreover, for purposes of the miscarriage-of-justice exception, he
has made no
(meaning

factual showing

factually

innocent)

that he
of

the

is

“‘actually

crime

for

innocent’

which

he

was

convicted.” Carvajal v. Artus, 633 F.3d 95, 108 (2d Cir. 2011)
(citing Bousley v. United States, 523 U.S. 614, 622 (1998)).

15

5.

Suppression of Statements

In his direct appeal, petitioner contended that he was denied
a

fair

trial

because

his

statements

to

police

were

made

involuntarily during custodial interrogation, in violation of his
Fifth

Amendment

Department

right

rejected

against

this

self-incrimination.

contention

on

the

The

merits,

Fourth
without

discussion.
Petitioner’s statements to police were the subject of a
pretrial Huntley hearing. See People v. Huntley, 15 N.Y.2d 72
(1965). At the hearing, Detective Jacqueline Sullivan testified
that she met with petitioner at an arranged time and immediately
read him his Miranda rights. Despite these warnings, petitioner
agreed to speak with Detective Sullivan, although he refused to
“sign anything,” including a Miranda waiver card. Huntley Hearing
Transcript, at 28. County Court’s finding that these statements
were not obtained in violation of petitioner’s constitutional
rights constitutes a factual finding, 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 voluntary, as established at the Huntley hearing and
as found by County Court and the Fourth Department. Plaintiff 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.

16

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).
6.

Harsh and Excessive Sentence

Petitioner’s final claim in his direct appeal was that his
sentence was harsh and excessive. Petitioner did not argue that the
sentence was outside the bounds of that prescribed by state law,
but rather that it was unduly harsh and severe. “It is well settled
that ‘no federal constitutional issue is presented where . . . the
sentence is 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.
IV. Conclusion
For the foregoing reasons, petitioner’s request for writ of
habeas corpus is denied, and the petition (Doc. 1) is dismissed.
Petitioner’s motions to amend and to stay (Docs. 11, 12, 14) are
denied

with

prejudice.

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

17

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:

January 5, 2016
Rochester, New York.

18