Gonzalez v. Artus

Filing 15

-CLERK TO FOLLOW UP-DECISION AND ORDER dismissing 1 Complaint filed by Adan D. Gonzalez and denying a Certificate of Appealability. Signed by Hon. Michael A. Telesca on 02/11/2015. (Clerk's Office to close case.)(AFB)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

ADAN D. GONZALEZ,
Petitioner,
-vs-

No. 6:14-CV-6089(MAT)
DECISION AND ORDER

DALE ARTUS,
Respondent.

I.

Introduction
Adan D. Gonzalez (“Petitioner”) has filed a pro se petition

for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging
that

he is being detained in State custody in violation of his

Federal constitutional rights. Petitioner is incarcerated as the
result of a judgment entered on September 18, 2008, in Monroe
County Court (Valentino, J.), of New York State, following a jury
verdict convicting him of one count of Rape in the First Degree
(N.Y. Penal Law (“P.L.”) former § 130.35(3)), and three counts of
Sexual Abuse in the First Degree (P.L. former § 130.65(3)).
II.

Factual Background and Procedural History
Between February 1, 2007, and February 28, 2007, Petitioner

raped and sexually abused S.P., the sister of his girlfriend, Tina
Richardson (“Tina”). The abuse occurred at Tina’s house at 1308
East Main Street, in Rochester, New York. Based on these acts,
Petitioner was charged, by a Monroe County Grand Jury, with one
count of Rape in the First Degree, and three counts of Sexual Abuse
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in the First Degree. Petitioner’s trial commenced on January 15,
2008.
S.P. related that one night in February 2007, she spent the
night at Tina’s house. She could not recall the exact date, but she
knew it was cold out and she was in fifth grade. She recalled that
it was sometime around Valentine’s Day. That night, S.P. was lying
in Tina’s bed, along with Tina and Petitioner. S.P. was lying
closest to the wall, Tina was in the middle, and Petitioner was on
Tina’s other side. Petitioner and Tina’s three-year-old daughter
also was in her crib in the room.
At

some

point,

S.P.

fell

asleep.

She

woke

up

to

find

Petitioner lying next to her and touching her leg. He then put his
hand inside her pants and touched her buttocks and her “private,”
which she explained was where she went “pee-pee”. Then, Petitioner
pulled down S.P’s pants to her thighs and put his “private went
into her [pee-pee]” “a little”, which was painful to her. S.P.
moved away, turned over, pulled up her pants, and went back to
sleep.
Tina had been given Vicodin by Petitioner because she was
having back pain, and slept through the entire incident. Tina
recalled that when she had fallen sleep, she was in the middle of
the bed, with Petitioner and S.P. on either side of her. When she
woke up the next morning, Petitioner was in the middle of the bed
and Tina was up against one wall; S.P. was in the same spot.

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S.P. did not wake up her sister because she was afraid that
Petitioner would hurt her or her family. She explained that she did
not tell her sister or her mother the next day because she was
still scared. Several months later, around Halloween, S.P. told her
mother what had happened. At that time, Tina was no longer living
with Petitioner and S.P. did not see him anymore.
A few days later, on November 6, 2007, S.P.’s mother, Tammy
Richardson (“Tammy”) called the police and spoke to a male officer.
S.P. was hesitant to talk to him, so Tammy had to speak on her
behalf. On December 11, 2007, they met with a female officer,
Jacqueline Pulsifer, at Tammy’s house, but it was very busy and
S.P. still was hesitant to speak. Officer Pulsifer interviewed S.P.
a

second

time

at

a

children’s

center,

which

was

quieter

environment. There, S.P. told Officer Pulsifer what had happened.
Officer

Pulsifer

referred

the

child

to

a

pediatric

nurse

practitioner, who performed a pelvic examination but found no
physical abnormalities. The nurse practitioner testified that it
was common for children not to have any physical injury, even after
penetration, because any injury can heal quickly.
Petitioner’s attorney presented an alibi defense at trial and
attempted to establish that even though S.P. could not pinpoint the
date that the crime had occurred, Petitioner had a valid alibi for
the entire month of February 2007. Defense counsel presented
several witnesses to support this defense, including Petitioner’s

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long-time friend, Marsh, who testified that she saw Petitioner
almost every day. Defense counsel also called Petitioner’s fiancée,
who testified that in February 2007, Petitioner spent the weekend
evenings and nights with her. Petitioner’s mother testified that
Petitioner

lived

with

her

in

February

2007.

Petitioner

also

testified in support of his alibi, and recounted the various
parties he went to in February 2007, and friends’ houses at which
he stayed; his activities on Valentine’s Day; and an overnight trip
he took in the middle of February with friends. Petitioner denied
that he spent a night at 1308 East Main Street during the month of
February

2007,

and

he

denied

that

he

gave

Vicodin

to

Tina.

Petitioner denied that, during a telephone call to his mother, he
said, “I’m trying to get out of here and I will say anything I
can.” Petitioner listened to a recording of the call and maintained
that

he

only

said

“I’m

just

trying

to

get

out.”

T.484-85.

Petitioner testified that he did get stabbed in jail with a pencil,
but he did not report it and did not receive any medical attention
for it.
Several recorded telephone conversations between Petitioner;
his mother, Ada Gonzalez (“Gonzalez”); and his fiancée, Carolynne
Reed (“Reed”), were introduced into evidence. After his arrest,
Petitioner called his mother and told her to call “Teo”, his cousin
who worked for the Rochester Police Department (“RPD”), and get the
police report in this case from him. Gonzalez called Teo, but

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Gonzalez denied that he obtained S.P’s confidential supporting
deposition for her. She also denied that she told Petitioner that
Teo told her, “I can show you the paper but I can’t give it to
you.” After listening to a recording of a telephone conversation
she had had with Petitioner, Gonzalez admitted that she had been on
the phone talking with Reed and Petitioner when she said to them
that the Teo “would let [her] see [the police report] but he
wouldn’t let [her] have it”. T.383-90.
In another telephone conversation, on December 27, 2007,
Petitioner asked Gonzalez to tell “Angel”, Petitioner’s brother, to
tell Tina that he had been stabbed in jail. T.395-95, 400.
During a telephone conversation between Petitioner and Reed,
he told her to call his friend, Amanda Marsh (“Marsh”) and let her
know that she has “to say she called [Petitioner] every single day,
January, February, March at [his] house.” Petitioner also told
Reed, to tell another friend, “Rachael” that “she has to testify
stating that she and Kiley were with me almost every single day.
Don’t say night because if they say night, [Marsh]’s statement is
out the window. Say day, not night.” T.424-25, 427.
The jury returned a verdict convicting Petitioner of all
charges in the indictment. On September 18, 2008, he was sentenced
to

a

determinate

term

of

fifteen

years,

plus

five

years

of

post-release supervision on the rape count. On each of the sexual
abuse counts, he was sentenced to concurrent determinate terms of

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seven years, plus three years of post-release supervision.
Represented

by

new

counsel,

Petitioner

appealed

to

the

Appellate Division, Fourth Department, of New York State Supreme
Court. On October 2, 2012, the Appellate Division unanimously
affirmed the conviction. On February 13, 2013, a judge of the New
York Court of Appeals denied leave to appeal. People v. Gonzalez,
99 A.D.3d 1217 (4th Dep’t 2012), lv. denied, 20 N.Y.3d 1061 (2013).
This timely habeas petition followed in which Petitioner
asserts the following grounds for relief: (1) trial counsel was
ineffective

for

failing

to

obtain

certain

recorded

jailhouse

telephone calls between Petitioner and other witnesses; (2) the
prosecutor violated Petitioner’s due process rights by failing to
disclose the jailhouse telephone calls to defense counsel despite
knowing that they would be used as exhibits at trial; and (3)
Petitioner’s sentence was harsh and excessive. Respondent filed an
answer and opposition memorandum of law, interposing the defense of
non-exhaustion

as

to

the

prosecutorial

misconduct

claim,

and

arguing that all of Petitioner’s claims lack merit. Petitioner
filed a reply. For the reasons discussed below, the petition is
dismissed.
III. Discussion
A.

Ineffective Assistance of Trial Counsel

Petitioner asserts, as he did on direct appeal, that trial
counsel failed to conduct a proper investigation

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because he did

not request discovery pursuant to New York Criminal Procedure Law
(“C.P.L.”) § 240.20 from the prosecutor of the recorded jailhouse
telephone conversations between Petitioner and various witnesses.
The Appellate Division “reject[ed] that contention,” finding that
“[]even

if

defense

counsel

had

sought

discovery

of

those

recordings, . . . the People would not have been obligated to
disclose them. . . .” People v. Gonzalez, 99 A.D.3d at 1217
(citations omitted). The Appellate Division noted that C.P.L. §
240.20(1)(g) “requires the prosecutor, upon a demand to produce by
a defendant, to disclose to the defendant and make available for
inspection or copying ‘[a]ny tapes or other electronic recordings
which the prosecutor intends to introduce at trial[.]” Gonzalez, 99
A.D.3d at 1217 (quoting N.Y. CRIM. PROC. LAW § 240.20(1)(g) (emphasis
and bracket in original)). The Appellate Division observed that
“the recordings were not offered in evidence; rather, they were
used only for impeachment purposes or to refresh the recollection
of [Petitioner]’s witnesses[.]” Id. (citing, inter alia, People v.
Muller, 72 A.D.3d 1329, 1335-36 (3d Dep’t 2010)). In sum, the
Appellate

Division

concluded,

Petitioner’s

counsel

provided

meaningful representation. Id. at 1218 (citing People v. Baldi, 54
N.Y.2d 137, 147 (1981)).
In

order

to

establish

that

he

received

the

ineffective

assistance of trial counsel, a petitioner must show both that his
attorney provided deficient representation and that he suffered

-7-

prejudice as a result. See Strickland v. Washington, 466 U.S. 668,
687 (1984). The petitioner bears the burden of overcoming the
“strong presumption that counsel’s conduct [fell] within the wide
range of reasonable professional assistance.” Id. at 689. Prejudice
requires showing a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. Although Strickland has two prongs for
evaluating counsel’s performance, the reviewing court need not
address both if the petitioner’s showing on one prong is lacking.
See id. at 697.
Here, the Appellate Division reasoned that “a defendant is
not

denied

counsel’s

effective
failure

to

assistance
seek

of

relief

counsel

to

which

based

on

defendant

defense
is

not

entitled[.]” People v. Gonzalez, 99 A.D.3d at 1217 (citing People
v. Taylor, 97 A.D.3d 1139, 1141-42 (4th Dep’t 2012) (counsel not
ineffective in failing to make a mistrial motion that had little to
no chance of success) (citations omitted)). The Appellate Division
went on to explain why the prosecutor would not have been obligated
to turn over the tape recordings under C.P.L. § 240.20(1)(g), i.e.,
because they were not offered into evidence for purpose of the
prosecutor’s
Division

case-in-chief.

relied

on

its,

In
and

so

concluding,

other

New

York

the

Appellate

state

courts’

interpretation of, C.P.L. § 240.20(1)(g). See, e.g., People v.
Muller, 72 A.D.3d at 1335-36

(finding that prosecution was not

-8-

obligated to provide defendant with recordings of taped telephone
conversations he had with third parties while in jail awaiting
trial; prosecution did not seek to introduce any portion of these
recordings as evidence-in-chief at trial but, instead, used them to
impeach or refresh the recollection of witnesses who participated
in these conversations and testified at trial) (citations omitted).
In

general,

a

federal

court

is

“bound

by

a

State’s

interpretation of its own statute[.]” Garner v. State of Louisiana,
368 U.S. 157, 166 (1961); see also Bates v. McCaughtry, 934 F.2d
99, 102 (7th Cir. 1991) (“A claim that the state court misunderstood
the substantive requirements of state law does not present a claim
under § 2254.”) (citations omitted). Based the New York State
caselaw interpreting C.P.L. § 240.20(1)(g), Petitioner is unable to
demonstrate prejudice as the result of trial counsel’s omission,
because there is no reasonable probability of a different outcome
here: The prosecution would have to declined to produce the tape
recordings on the basis that they were outside the ambit of C.P.L.
§ 240.20(1)(g) because they were not going to be used on the
prosecution’s

direct

case.

Accordingly,

it

cannot

have

been

objectively unreasonable for defense counsel to have failed to make
a request under C.P.L. § 240.20(1)(g). See United States v. Kirsh,
54 F.3d 1062, 1071 (2d Cir. 1995) (stating that “the failure to
make a meritless argument does not rise to the level of ineffective
assistance”) (citing United States v. Javino, 960 F.2d 1137, 1145

-9-

(2d Cir.), cert. denied, 506 U.S. 979 (1992)). Nor can Petitioner
have been prejudiced given that any request would not have been
successful. E.g., United States v. Thornhill, 11–CR–958(KMK), __ F.
Supp.2d ___, 2014 WL 3715438, at *42 (S.D.N.Y. July 28, 2014)
(because any attempt trial counsel might have made to introduce a
witness’ prior testimony under F.R.E. 804(b)(1) would have been
unsuccessful, defendant cannot have been prejudiced by counsel’s
decision) (citing United States v. Abad, 514 F.3d 271, 275–76 (2d
Cir. 2008); Rodriguez v. Brown, No. 11–CV–1246, 2011 WL 4073748, at
*3 (E.D.N.Y. Sept. 13, 2011)). The Appellate Division did not
incorrectly apply Federal law in determining that Petitioner’s
trial counsel provided constitutionally adequate representation,
and this claim cannot provide a basis for habeas relief.
B.

Prosecutorial Misconduct

Respondent argues that Petitioner failed to exhaust his claim
regarding the prosecutor’s allegedly improper failure to provide
the recordings of Petitioner’s jailhouse telephone calls to the
defense because Petitioner never raised the claim in any state
court

proceeding.

In

his

reply,

Petitioner

did

not

address

Respondent’s exhaustion and procedural default arguments.
“When a claim has never been presented to a state court, a
federal court may theoretically find that there is an ‘absence of
available State corrective process’ under § 2254(b)(1)(B)(i) if it
is clear that the unexhausted claim is procedurally barred by state

-10-

law and, as such, its presentation in the state forum would be
futile.”

Aparicio

v.

Artus,

269

F.3d

78,

90

(2d

Cir.

2001)

(quotation omitted). That is the case here. Petitioner already has
used the one direct appeal to which was entitled. See, e.g.,
Cunningham v. Conway, 717 F. Supp.2d 339, 365 (W.D.N.Y. 2010)
(citing N.Y. R. CT. §§ 500.20(a)(2), (d); N.Y. CRIM. PROC. LAW §
460.10(5);

collecting cases). Collateral review in a motion to

vacate pursuant to C.P.L. § 440.10(2)(c) is also barred because
“sufficient

facts

appear

on

the

record

of

the

proceedings

underlying the judgment” to have permitted him to raise the claims
on direct appeal. See N.Y. CRIM. PROC. LAW § 440.10(2)(c) (mandating
denial if sufficient facts appeared on the record to have permitted
direct review but defendant unjustifiably failed to raise claim on
direct appeal). Although Petitioner’s prosecutorial misconduct
claim must be deemed exhausted because he has no available remedies
in state court, this forfeiture of the claim bars Petitioner
creates a procedural bar this Court’s review of the claim’s merits.
See, e.g., Gray v. Netherland, 518 U.S. 152, 162 (1996) (state
procedural

bar

independent

which

and

sentence,

and

defaulted

claim,

gives

adequate

thus

state-law

prevents

unless

rise

to

ground

federal

petitioner

exhaustion
for

habeas

can

provides

conviction

corpus

demonstrate

review
cause

an
and
of
and

prejudice for default). Here, Petitioner has not alleged cause or
prejudice, and the Court has found neither on the record before it.

-11-

Furthermore, Petitioner has not made the factual showing of “actual
innocence” necessary to warrant the “fundamental miscarriage of
justice” exception to the procedural default rule. The procedural
default is unexcused, and claim of prosecutorial misconduct is
dismissed on that basis.
C.

Harsh and Excessive Sentence

Petitioner asserts that his sentence was harsh and severe in
light of the fact that he was a first-time offender and was
convicted based on “only circumstantial evidence with no validity”
and no “physical or mental evidence”. Pet., ¶ 22(B). On direct
appeal, the Appellate Division declined to reduce Petitioner’s
sentence, finding that it was not unduly harsh or severe. Gonzalez,
99 A.D.3d at 1218.
A petitioner’s assertion that the sentencing court abused its
discretion in sentencing is generally not a federal claim subject
to review by a habeas court. See Fielding v. LeFevre, 548 F.2d
1102, 1109 (2d Cir. 1977) (petitioner raised no cognizable federal
claim by seeking to prove that state judge abused his sentencing
discretion by disregarding psychiatric reports) (citation omitted).
Here, Petitioner was convicted of Rape in the First Degree (Class
B violent felony) and Sexual Abuse in the First Degree (Class D
violent felony). See N.Y. Penal Law former §§ 130.35[3], 130.65(3);
N.Y. Penal Law § 70.02(1)(a), (c). On the first-degree rape count,
the court was required to impose a determinate sentence of between

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five and twenty-five years, see N.Y. PENAL LAW § 70.02(3)(a), and
Petitioner’s sentence of fifteen years falls well within the
statutory range. On each of the first-degree sexual abuse counts,
the court was required to impose a determinate sentence of between
two and seven years, see id., § 70.02(3)(c). Although the court
imposed the maximum term possible of seven years on each count, the
sentence does not exceed what is statutorily permissible. See
Echevarria-Perez v. Burge, 779 F. Supp.2d 326, 338 (W.D.N.Y. 2011).
Furthermore,

all

concurrently

with

of

Petitioner’s

each

other.

sentences

Where,

as

were
here,

set

to

run

Petitioner’s

sentences are within the applicable sentencing ranges, he presents
no constitutional claim amenable to habeas review. See White v.
Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (per curiam) (citation
omitted).
D.

Insufficiency of the Evidence

In his reply, Petitioner asserts for the first time that he is
attacking
conviction.

the

sufficiency

According

to

of

the

Petitioner,

evidence
he

supporting

actually

raised

his
this

argument in his petition, in the context of his sentencing claim,
based on his assertion that his sentence was excessive given that
he was convicted based on only “circumstantial” evidence.
In addition to being improperly asserted for the first time in
his reply, see, e.g., Morgan v. Lee, No. 1:11–CV–0390(MAT), 2012 WL
5336167, at *3 (W.D.N.Y. Oct. 26, 2012) (collecting cases), this

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purported legal insufficiency claim is unexhausted. Petitioner
never raised an insufficiency of the evidence claim in state court,
and he has no available avenues in state court by which to exhaust
such a claim. As the Court explained above, he has already utilized
the one direct appeal to which he is entitled. Because a legal
insufficiency claim is a record-based claim, it would be denied
pursuant to C.P.L. § 440.10(2)(c) if he attempted to file a motion
to vacate. The claim accordingly must be deemed exhausted, but
procedurally barred for the same reasons discussed above Section
III.B. Petitioner cannot overcome the procedural default for the
same

reasons

that

his

prosecutorial

misconduct

claim

remains

subject to an unexcused default. This claim likewise must be
dismissed.
IV.

Conclusion
For the reasons discussed above, the petition (Dkt. #1) is

dismissed. As Petitioner has failed to make a substantial showing
of

a

denial

of

a

constitutional

right,

no

certificate

appealability will issue. See 28 U.S.C. § 2253(c)(2).
SO ORDERED.
S/ Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

Rochester, New York
February 11, 2015

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