Wilson v. LaValley et al

Filing 8

-CLERK TO FOLLOW UP-DECISION AND ORDER dismissing 1 Petition for Writ of Habeas Corpus filed by Njera A. Wilson and denying a Certificate of Appealability. (Clerk's Office to close case.) Signed by Hon. Michael A. Telesca on 4/24/15. (AFB)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_____________________________________
NJERA A. WILSON,
Petitioner,
DECISION AND ORDER
No. 6:14-cv-06135-MAT

-vs-

T. LAVALLEY, Superintendent Clinton
Correctional Facility, ERIC T.
SCHNEIDERMAN, Att. General of the State
of New York,
Respondents.
_____________________________________
I.

Introduction
Proceeding pro se, Njera A. Wilson (“Petitioner”) has filed a

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
challenging his November 23, 2010 conviction following a jury trial
in Erie County Court (D’Amico, J.) of New York State on one count
of Burglary in the Second Degree (N.Y. Penal Law (“P.L.”) §
140.25(2).
II.

Factual Background and Procedural History
On February 26, 2010, Petitioner and co-defendant Deyon T.

Roberts (“Roberts”) were charged in a two-count indictment with
Burglary in the First Degree (P.L. § 140.30(3)) and Burglary in the
Second

Degree

(P.L.

§

140.25(2)).

The

charges

stemmed

from

allegations that on the night of September 10, 2009, Petitioner and
Roberts knowingly and unlawfully entered the dwelling of Jessie
Lewis (“Lewis”), with the intent to commit a crime, and while
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inside the dwelling, one of them threatened the immediate use of a
dangerous instrument (a crow bar).
Beginning on August 24, 2010, Petitioner and Roberts were
tried jointly before Erie County Court Judge Michael D’Amico and a
jury. Lewis testified that on September 10, 2009, he was residing
at an apartment complex at 608 Niagara Street in the City of
Buffalo. Sometime in the morning, Lewis took his 8-week-old puppy
to a nearby park for a walk, locking his apartment when he left.
Upon

returning

home

about

45

minutes

later,

he

entered

the

vestibule and noticed someone coming out of his apartment holding
a crowbar and a duffel bag. This man, whom Lewis later identified
as Petitioner, seemed startled. Lewis then saw Roberts inside the
apartment holding a pistol, which he aimed in Lewis’ direction.
Lewis turned and ran down the street and, in his haste, left
his dog behind. Using his cell phone, Lewis called 911. While on
the phone with 911, Lewis saw Roberts run toward the backyard of
608 Niagara Street. When the police arrived, Lewis spoke with them
and provided a description of Petitioner and Roberts.
One

of

the

responding

officers,

Keith

Devlin

(“Devlin”)

checked the backyard of Lewis’ apartment complex since Lewis had
seen Roberts run in that direction. From an adjoining vacant lot,
Devlin heard a rustling sound coming from the vicinity of a couple
abandoned vehicles and some tall weeds. As he walked toward that
area, Roberts jumped up in front of him. Roberts was sweaty,

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covered in burrs and vegetation, and breathing heavily. Devlin
arrested Roberts.
Another responding officer, Donna Donovan (“Donovan”), was
speaking to some potential witnesses near Lewis’ apartment when she
observed Petitioner walking down a driveway located two houses
down, at 551 7th Street.1 Petitioner was sweaty and covered in
leaves. Donovan stopped him and asked him some questions. Because
his answers did not make sense to her, Donovan placed Petitioner in
the back of her patrol car and returned to the driveway down which
she had seen Petitioner walking. Next to some garbage cans, she saw
a duffle bag which appeared to be moving. Donovan opened up the bag
and discovered Petitioner’s puppy and a bulletproof vest.
Donovan brought Petitioner back to 608 Niagara Street, where
he was identified by Lewis in a show-up identification procedure.
At that time, Lewis also identified Roberts. While Petitioner was
still in the back of Donovan’s patrol car, Lewis heard him shout to
his (Lewis’) step-sister, “Monique, it wasn’t me, I didn’t have a
gun!” T.448.2
Several items found at Lewis’ apartment–a pair of leather
gloves, a black pry bar, and a screwdriver–were collected by the
police. These items, along with a watch and a gun found in a nearby

1

The lot at 551 7th Street shared a backyard with 608 Niagara

Street.
2

References to “T.” are to pages from the transcript of
Petitioner’s trial.

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basement window-well, were submitted for DNA testing. The test
results indicated that the pry bar contained a mixture of DNA, and
Petitioner could not be excluded as a source of one of the DNA
profiles found on the pry bar. The forensic chemist who tested the
samples testified that the odds of randomly selecting an unrelated
individual

from

the

United

States

population

as

a

possible

contributor was 1 in 1,070 individuals. The DNA profile on the
right-hand leather glove matched Roberts’ DNA. Roberts also could
not be excluded as a contributor to the DNA found on the watch. The
odds of randomly selecting an unrelated individual as a possible
contributor was 1 in 22.9 million individuals.
Roberts testified that on the morning of September 10, 2009,
he went to a local park to work out, after which he went to the
Niagara Café for lunch. After trying to visit a friend, who was not
home, he cut through a vacant lot to get to a gas station to buy
some bottled water. A police officer appeared, forced him to the
ground at gunpoint, and handcuffed him. Roberts said that, as was
his habit, he had been wearing leather gloves during his workout to
protect his hands and wedding ring. He did not know what happened
to the gloves after his altercation with the police. He testified
that he never had been inside Lewis’ apartment.
Petitioner did not testify. The defense theory was that Lewis
misidentified Petitioner as a suspect, and that Petitioner simply
was in the wrong place at the wrong time when he was arrested.

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On August 30, 2010, the jury returned a verdict acquitting
Petitioner of the first degree burglary count but convicting him of
the second degree burglary count.
On November 23, 2010, Petitioner was adjudicated as a second
violent felony offender and was sentenced to a determinate term of
7 years on the second degree burglary conviction, to be followed by
5 years of post-release supervision.
On

direct

Petitioner

appeal,

filed

a

appellate

pro

se

counsel

supplemental

filed
brief.

a

brief,

The

and

Appellate

Division, Fourth Department, of New York State Supreme Court,
unanimously

affirmed

the

conviction.

Leave

to

appeal

and

reconsideration were denied by the New York Court of Appeals.
People v. Wilson, 104 A.D.3d 1231 (4th Dep’t), lv. denied, 21 N.Y.3d
1011, reconsideration denied, 21 N.Y.3d 1078 (2013).
This timely habeas petition followed, in which Petitioner
asserts the claims he raised in his pro se appellate brief.
Respondent answered the petition and filed an opposition memorandum
of law. Petitioner filed a reply. For the reasons discussed below,
Petitioner’s request for a writ of habeas corpus is denied.
III. Merits of the Petition
A.

Prosecutorial Misconduct

Petitioner asserts, as he did on direct appeal in his pro se
supplemental brief, that the prosecutor committed misconduct during
closing

argument.

The

Appellate

-5-

Division

found

that

“the

prosecutor’s comments during summation were ‘either a fair response
to defense counsel’s summation or fair comment on the evidence[.]’”
People v. Wilson, 104 A.D.3d at 1233 (quotation omitted); internal
quotation marks omitted in original).
A claim of prosecutorial misconduct on habeas corpus is
reviewed under “the narrow [standard] of due process, and not the
broad exercise of supervisory power.” Floyd v. Meachum, 907 F.2d
347, 353 (2d Cir. 1990) (citation omitted). The relevant question
is whether “the prosecutorial remarks were so prejudicial that they
rendered the trial in question fundamentally unfair.” Garofolo v.
Coomb, 804 F.2d 201, 206 (2d Cir. 1986). Generally, inappropriate
prosecutorial comments, standing alone, are insufficient to reverse
a conviction. United States v. Young, 470 U.S. 1, 11 (1985).
Rather,

the

reviewing

court

must

assess

the

impact

of

the

improprieties on the fairness of the trial as a whole. Id.; see
also Smith v. Phillips, 455 U.S. 209, 219 (1982) (“[T]he touchstone
of

due

process

analysis

in

cases

of

alleged

prosecutorial

misconduct is the fairness of the trial, not the culpability of the
prosecutor.”).
Petitioner

faults

the

prosecutor

for

vouching

for

the

credibility of the State’s witnesses during his summation. See
Petitioner’s Supplemental Appellate Brief (“Pet’r Supp. Br.”) at 13
(citations to record omitted). Although it is generally improper
for

the

government

to

vouch

for

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the

credibility

of

its

own

witnesses, the Second Circuit has noted that a prosecutor may
respond to a defense summation that “invited this response.”
Gonzalez

v.

Sullivan,

934

F.2d

419,

424

(2d

Cir.

1991).

In

Gonzalez, the petitioner asserted that the prosecutor committed
misconduct by arguing that a key prosecution witness “had no reason
to lie.” The Second Circuit did not find the remark improper since
“the defense’s summation invited this response by arguing that [the
witness] had testified only to impress the other key prosecution
witness.” Id. In that context, where the defense urged a theory of
fabrication by prosecution witnesses, the Second Circuit held that
the “prosecutor’s response [was] unlikely to have affected the
jury’s ability to judge the evidence fairly.” Id. (citing Young,
470 U.S. at 12-13); other citations omitted). Here, similarly to
Gonzalez, the prosecutor asked rhetorically, “Why would [Lewis, the
complainant] lie?” T.717. Given that defense counsel’s summation,
fairly interpreted, could be read as inviting such a response,3 the
Court

cannot

find

that

the

prosecutor

committed

misconduct.

See Gonzalez, 934 F.2d at 424; see also Morales v. Walsh, No.
CV-05-2251(DGT), 2008 WL 2047632, at *7 (E.D.N.Y. May 12, 2008)
(“Given that much of the defenses’ summations were devoted to
discrediting [the complainant] and his version of events, it was
appropriate for the prosecutor to make arguments regarding the
3

Defense counsel asserted, e.g., “Jessie [Lewis] couldn’t tell you the truth
which doesn’t change because he is capable of just lie, after lie, after lie.”
T.692.

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credibility of her own witness.”) (citing Natal v. Bennett, 98 Civ.
1872(RWS), 1998 WL 841480, at *8 (S.D.N.Y. Dec. 3, 1998) (finding
no prosecutorial misconduct where “[m]uch of the objectionable
content was invited by or was in response to the opening summation
of the defense”); other citation and citations to record omitted)).
With regard to the prosecutor’s comments to the effect that
Lewis consistently had identified Roberts and Petitioner as the two
men he saw in his apartment building, T.717, 724, 725, the Court
agrees with the Appellate Division that they were fair comment on
the evidence and thus not improper. However, the prosecutor’s
comment

about

T.725:4-5

Petitioner’s

(“He’s 100

certainty

percent

sure

of

then

his

identifications,

and now.”),

could be

construed as improper vouching. See Gonzalez, 934 F.2d at 424
(holding that prosecutor’s statement, “He did not lie. I will
submit he did not lie,” constituted a “personal voucher” of the
witness’

truthfulness

and,

“of

course,

was

improper”).

Here,

however, the prosecutor was repeating, verbatim, testimony that
Lewis had given. It would have been better practice for the
prosecutor to specifically indicate that he was quoting Lewis, so
as to avoid any implication that he was putting the weight of his
official position behind Lewis’ veracity. Given that it was a
single remark in the context of an otherwise unremarkable trial,
and given that neither defense attorney objected, the Court cannot
find that this was misconduct warranting reversal even under a

-8-

de novo standard.
With regard to the prosecutor’s comment, “I take Jessie Lewis
at his word,” T.728, that was made specifically in response to the
defense argument that the gun recovered from a basement window-well
near Lewis’ apartment actually belonged to Lewis. The prosecutor
went on to explain that he did not have the gun tested because he
believed Lewis’ statement that it was not his, and the prosecutor
emphasized that the gun was irrelevant to his case. Taken in
context, the Court does not find that the remark amounted to
misconduct.
In sum, most of the comments challenged by Petitioner were not
objectionable at all, and the comments that arguably were improper
were not part of a persistent pattern of misconduct. Significantly,
the jury acquitted Petitioner of the top count of the indictment,
which “reinforces [the] conclusion that the prosecutor’s remarks
did

not

undermine

the

jury’s

ability

to

view

the

evidence

independently and fairly.” Young, 470 U.S. at 18 n. 15. For these
reasons, the Court finds that the complained-of comments did not
render Petitioner’s trial “so fundamentally unfair as to deny him
due process[,]” Donnelly v. DeChristoforo, 416 U.S. 637, 645
(1974). Therefore, Petitioner’s claim of prosecutorial misconduct
does not warrant habeas relief.
B.

Erroneous Jury Instructions

Petitioner re-asserts his claims, raised on direct appeal in

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his pro se supplemental brief, that the trial court issued several
prejudicially erroneous jury instructions. The Appellate Division
found that all of the challenged instructions “were proper[.]”
People v. Wilson, 104 A.D.3d at 1233 (citations omitted).
When a habeas court examines a claim that a jury charge is
erroneous, it must “review the jury instructions as a whole[,]”
Smalls, 191 F.3d at 277, without judging the challenged portion of
instruction “in artificial isolation[.]” Chalmers v. Mitchell, 73
F.3d 1262, 1267 (2d Cir. 1996) (quoting Cupp v. Naughten, 414 U.S.
141, 147 (1973)). The petitioner must establish “not merely that
the instruction is undesirable, erroneous, or even ‘universally
condemned,’ but that it violated some right which was guaranteed to
[him] by the Fourteenth Amendment.” Cupp, 414 U.S. at 146.
1.

Failure to Testify

Petitioner argues that the trial court failed to instruct the
jury that his failure to testify was not a tactical maneuver but an
exercise of his constitutional rights. See Pet’r Supp. Br. at 17
(citing People v. Reid,

135 A.D.2d 753, 754 (2d Dep’t 1987)).

First, the sole authority on which Petitioner relies is a State law
case; Petitioner has cited no Federal authority standing for the
proposition that a trial court affirmatively must instruct the jury
that a defendant’s decision not to testify was not a “tactical
maneuver.”

Second,

the

case

on

which

Petitioner

relies

is

inapposite. In Reid, supra, the trial judge gave an instruction

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that affirmatively “drew the jury’s attention to the defendant’s
silence and implied that his decision not to testify was a tactical
maneuver rather than the exercise of a constitutional right[.]” 135
A.D.2d at 754 (citation omitted). The trial court in Petitioner’s
case did not give an instruction similar to the one criticized by
the appellate court in Reid, but instead properly informed the jury
that “the fact that [Petitioner did not testify is not a factor
from which any inference unfavorable to him may be drawn.” T.756.
There was no error of State law in this charge, much less an error
of Federal constitutional magnitude.
2.

Interested Witness

Petitioner asserts that the trial court’s interested witness
charge was not balanced because the trial court did not point out
that if Petitioner’s version of events was correct, the principal
prosecution witness would be subject to “criminal liability” and,
in this respect, was “interested” in the trial’s outcome as well.
See Pet’r Supp. Br. at 18 (citations omitted). For this argument,
Petitioner relies solely on caselaw from intermediate appellate
courts in New York and has not alerted the Court to any pertinent
Federal caselaw.
It appears that as a matter of New York law, courts frequently
will accompany a charge that the defendant is an interested witness
with a charge “indicat[ing] that the prosecution’s witness may be
interested.” People v. Suarez, 125 A.D.2d 350, 350 (2d Dep’t 1986).

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However, the failure to do so is not per se error necessitating
reversal, even as a matter of New York State law. See id. at 350-51
(stating that “the determination of whether a witness is interested
in the outcome of a case is ordinarily a question of fact for the
jury’s determination[,]” and “[a]ccordingly, the court did not err
in refusing to grant the defendant’s request to charge that the
prosecution’s police witnesses are interested as a matter of law”)
(internal and other citations omitted). Again, Petitioner has not
demonstrated an error of State law, much less an error of Federal
constitutional magnitude.
3.

Allen Charge

When notified that a jury has reached an impasse during its
deliberations, the trial judge may give a charge, commonly referred
to

as

an

Allen

charge,4

that

urges

the

jurors

to

continue

deliberating in order to reach a verdict. Smalls, 191 F.3d at 278
(citation omitted). Petitioner argues that the trial court’s Allen
charge coerced the jury into reaching a guilty verdict.
The propriety of an Allen charge in a given case depends on
whether it

tends

to coerce

undecided

jurors

into

reaching

a

verdict, such as by “encourag[ing] [them] to abandon, without any
principled reason,” “doubts . . . conscientiously” held as to a

4

“The term ‘Allen charge’ is a generic term used for a type of supplemental
instruction that is given to a deadlocked jury, first approved by the Supreme
Court in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528
(1896).” Smalls v. Batista, 191 F.3d 272, 275 n.1 (2d Cir. 1999).

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defendant’s guilt. United States v. Melendez, 60 F.3d 41, 51 (2d
Cir.

1995)

(quoted

in

Smalls,

191

F.3d

at

278-79).

Jury

deliberations constitute a “critical stage of a criminal trial,”
United States v. Ruggiero, 928 F.2d 1289, 1299 (2d Cir. 1991), and
“[a]ny criminal defendant . . . being tried by a jury is entitled
to the uncoerced verdict of that body.” Lowenfield v. Phelps, 484
U.S. 231, 241 (1988).
Petitioner objects to the following portion of the Allen
charge:
Now, let me impress upon you a couple of things. First of
all, all of these parties chose you and selected you as
jurors in this matter because they believe that you will
follow your oath and do your best to determine the facts
in this case. That’s rather significant that they picked
you.
T.776:21-777:1. However, it was not improper for the trial court to
“remind[

]

the

jurors

about

the

importance

of

obtaining

a

verdict[,]” Smalls, 191 F.3d at 275 n.1 (citation omitted); indeed,
this is

part

of

a

“traditional

Allen

charge.”

Id. (citation

omitted). The Court cannot find that the challenged portion of the
trial judge’s

Allen

charge

was

erroneous,

much

less

that

it

resulted in an infringement of Petitioner’s due process right to an
uncoerced jury verdict.
C.

Ineffective Assistance of Trial Counsel

Petitioner asserts that trial counsel erred in failing to
object

to

the

above-discussed

jury

charges

and

prosecutorial

remarks. The Appellate Division rejected this claim as without
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merit.
In order to establish a claim of ineffective assistance of
counsel, a defendant must show that his counsel provided deficient
representation when compared to prevailing professional norms of
practice, and that counsel’s errors caused his client to suffer
prejudice. See Strickland v. Washington, 466 U.S. 668, 687–88
(1984).

Prejudice

under

Strickland

requires

the

defendant

to

demonstrate a “reasonable probability” of a more favorable result.
Id. A reviewing court may review the two prongs of the Strickland
standard in either order, and there is no reason to consider both
if a defendant makes an inadequate showing on one. See id. at 697.
As discussed above, the Court has found that the alleged
errors

committed

by

the

trial

judge

in

the

challenged

jury

instructions were not errors at all. Therefore, trial counsel’s
performance cannot be deemed deficient on this basis. See Lewis v.
Bennett, 328 F. Supp.2d 396, 410 (W.D.N.Y. 2004) (finding that
trial counsel “cannot be found deficient for failing to raise . .
. nonmeritorious arguments”).
With regard to the unobjected-to instances of prosecutorial
misconduct, the Court has found that the vast majority of the
challenged comments did not constitute improper summation argument.
Therefore, trial counsel cannot be found deficient for failing to
object to those remarks. See Lewis, 328 F. Supp.2d at 410.
With regard to the comments that trod close to, or over, the

-14-

line of proper argument, the Court cannot find that trial counsel’s
failure to object supports Petitioner’s claim that he was deprived
his Sixth Amendment right to effective assistance. Because the
Appellate Division reviewed the prosecutorial misconduct claim on
the merits, despite the lack of preservation, Petitioner was not
prejudiced by counsel’s failure to object to the alleged errors
during trial. See Willson v. Berbary, 421 F. Supp.2d 589, 601-02
(W.D.N.Y.

2006)

(“Because

the

state

court

reviewed

Willson’s

prosecutorial misconduct claim on the merits, despite their being
unpreserved for review, he was not prejudiced by trial counsel’s
failure to object to the comments at the time. Furthermore, as
discussed above, both the state court and this Court found that the
comments were not so prejudicial as to have denied Willson a fair
trial.”); Walker v. Bennett, 262 F. Supp.2d 25, 40 (W.D.N.Y. 2003)
(finding that petitioner was unable to establish prejudice based on
counsel’s failure to object to prosecutor’s remarks; even if
counsel had objected, petitioner’s challenge “would have proven
fruitless on appeal” since appellate court reviewed prosecutorial
misconduct claim and found that summation constituted fair response
to defense remarks) (citing Flores v. Keane, 211 F. Supp.2d 426,
435 (S.D.N.Y. 2001)).
IV.

Conclusion
For the foregoing reasons, Petitioner’s request for a writ of

habeas corpus is denied, and the petition is dismissed. The Court

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declines to issue a certificate of appealability because Petitioner
has failed to make a substantial showing of the denial of a
constitutional right. See 28 U.S.C. § 2253(c)(2). Petitioner must
file any notice of appeal with the Clerk’s Office, United States
District Court, Western District of New York, within thirty (30)
days of the date of judgment in this action.
SO ORDERED.
S/ Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

Rochester, New York
April 24, 2015

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