Mays v. Capra
Filing
13
-CLERK TO FOLLOW UP- DECISION AND ORDER denying petitioners request for writ of habeas corpus is denied, and dismissing the petition (Doc. 1). Clerk to close case. Copy of Decision and Order sent by first class mail to Petitioner.. Signed by Hon. Michael A. Telesca on 9/22/16. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CALVIN MAYS,
Petitioner,
No. 6:14-CV-06075 (MAT)
DECISION AND ORDER
-vsMICHAEL CAPRA, Superintendent,
Sing Sing Correctional Facility,
Respondent.
I.
Introduction
Calvin Mays (“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 November
29, 2007, in New York State Supreme Court, Monroe County (Ark, J.),
following a jury verdict convicting him of two counts each of
robbery in the first degree (N.Y. Penal Law § 160.15(4)) and
robbery in the second degree (N.Y. Penal Law § 160.10(1)).
II.
Factual Background and Procedural History
By indictment number 2006-0955B, a Monroe County Grand Jury
charged petitioner with three counts each of robbery in the first
degree and robbery in the second degree. The indictment alleged
that: on October 21, 2006, petitioner and a co-defendant robbed a
Fastrac store, stealing a sum of money; on November 28, 2006,
petitioner and two co-defendants robbed a Wilson Farms store,
stealing a sum of money; and on November 28, 2006 petitioner and
two co-defendants robbed one Stephanie Ratcliffe, stealing her purse.
Petitioner was tried, separate from his co-defendants, by a
jury. The Fastrac incident was captured by surveillance video,
which was shown to the jury during the course of the trial. During
deliberations, the jury sent a note requesting to see the video
again. At the trial judge’s instruction, the prosecutor played the
video
back
to
the
jury
through
a
computer
projected
onto
a
television screen. During playback, “jurors called out various
requests – i.e., to reduce the glare from courtroom lights, to play
the
video
again,
to
freeze
a
view
–
which
the
prosecutor
accommodated. This resulted in some back-and-forth between jurors
and the prosecutor, on the order of ‘Can you freeze it?’ ‘I just
did’; and ‘Do you want to see it again?’ ‘Yes.’” People v. Mays,
982 N.E.2d 1252, 1253 (N.Y. 2012).
The jury convicted petitioner of the November 28, 2006 crimes,
but acquitted him of the Fastrac incident which had been captured
on
surveillance
video.
On
November
29,
2007,
petitioner
was
sentenced, as a persistent violent felony offender, to concurrent
indeterminate terms of 25 years to life imprisonment. He filed a
counseled direct appeal with the New York State Supreme Court,
Appellate Division, Fourth Department, arguing that even though
trial
defense
counsel
communicating
with
surveillance,
the
the
trial
did
not
object
jury
during
court
nevertheless
2
to
playback
the
of
violated
prosecutor
the
New
video
York
Criminal Procedure
Law
(“CPL”)
§
310.30 when
it
allowed
the
prosecutor to do so. The Fourth Department affirmed his conviction,
with two Justices dissenting. See People v. Mays, 85 A.D.3d 1700
(4th Dep’t 2011), aff’d, Mays, 982 N.E.2d 1252.
The petition argues that trial counsel was ineffective for
failing to object to the prosecutor’s communication with the jury
during playback of the surveillance video, and that the trial court
erred in allowing such communication.
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
involved
the
an
“unreasonable determination of the facts” in light of the evidence
presented. 28 U.S.C. § 2254(d)(2).
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IV. Grounds Asserted in the Petition
A.
CPL § 310.30 Error (Grounds Two through Four)
Petitioner’s grounds two through four argue that the trial
court erred in allowing the prosecutor to communicate with the jury
during deliberations. Petitioner claims that this alleged error
violated his rights to a fair trial (ground two), due process
(ground three), and equal protection (ground four). On direct
appeal, however, petitioner framed the issue in exclusively state
law terms.1 Petitioner argued that the alleged error violated CPL
§310.30,
which
provides
that
upon
a
jury's
request
for
reinstruction or information “the court must direct that the jury
be returned to the courtroom and, after notice to both the people
and
counsel
for
the
defendant,
and
in
the
presence
of
the
defendant, must give such requested information and instruction as
the court deems proper.” Petitioner’s counseled appellate brief
argued
that
the
trial
court’s
allowance
of
the
prosecutor’s
communication with the jury violated CPL § 310.30 and constituted
a
mode
of
proceedings
error
such
that
preservation
was
not
required.
The Fourth Department found that the issue was unpreserved for
review, and declined to reach it in the interest of justice. Mays,
1
To the extent that petitioner’s arguments raise issues only of state law,
they are not cognizable on habeas review in any event. See generally 28 U.S.C.
§ 2254(a) (permitting federal habeas review only for alleged violations of the
Constitution or a federal law).
4
85 A.D.3d at 1700. The court found that, contrary to petitioner’s
argument on appeal, preservation of the claim was required because
“there was no significant departure from the organization of the
court or the mode of proceedings prescribed by law.” Id. In
affirming the Fourth Department’s decision, the Court of Appeals
agreed that the “prosecutor’s communications with the jury were
ministerial,” and were “not the kind of substantive response” that
would implicate a mode of proceedings error; therefore, the Court
of Appeals held that “preservation was required.” Mays, 982 N.E.2d
at
971. The
Court of Appeals
emphasized that
petitioner
was
acquitted of all charges allegedly captured by the surveillance
video.
Because the state courts relied on a state procedural rule to
reject petitioner’s argument, the claim is precluded from habeas
review pursuant to the adequate and independent state ground
doctrine. 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); Switzer v. Graham, 2010 WL 1543855, *4 (W.D.N.Y. Apr. 16,
2010). Accordingly, petitioner’s second through fourth grounds are
dismissed.
B.
Ineffective Assistance of Counsel (Ground One)
Petitioner contends that trial counsel was ineffective for
failing to object to the court’s allowance of the communication
5
between
the
prosecutor
and
the
jury
during
deliberations.
Petitioner did not raise this issue on direct appeal, nor did he
raise
any
collateral
attack
to
his
judgment
of
conviction.
Petitioner has given no excuse for his failure to raise this
argument at the state level. In the absence of a showing of good
cause,
the
Court
cannot
entertain
petitioner’s
procedurally
defaulted claim. See, e.g., Powell v. Kaplan, 2016 WL 2925979, *10
(W.D.N.Y. May 19, 2016) (citing Rhines v. Weber, 544 U.S. 269, 277
(2005)).
Notwithstanding petitioner’s failure to exhaust the claim, it
fails on the merits. See, e.g., Thomas v. New York, 2011 WL
2436661,
*2
(W.D.N.Y.
June
14,
2011)
(citing
28
U.S.C.
§ 2254(b)(2)). Both state appellate courts found that the trial
court allowed
merely
“ministerial”
communications
between
the
prosecutor and the jury, holding that the trial court did not
violate CPL § 310.30. Therefore, any objection by defense counsel
likely would have been meritless. Defense counsel, of course,
cannot be ineffective for a failure to raise a meritless argument.
See Aparicio v. Artuz, 269 F.3d 78, 88, 99 (2d Cir. 2001).
VI. Conclusion
For the foregoing reasons, petitioner’s request for writ of
habeas corpus is denied, and the petition (Doc. 1) is dismissed.
Because petitioner has not “made a substantial showing of the
denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), the
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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 22, 2016
Rochester, New York.
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