Geroyianis v. Chappius
Filing
12
-CLERK TO FOLLOW UP- DECISION AND ORDER denying Petitioner's request for a writ of habeas corpus and dismissing the petition. (Clerk to close case.) Copy of Decision and Order sent by first class mail to Petitioner. Signed by Hon. Michael A. Telesca on 11/19/15. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LOUIS GEROYIANIS,
Petitioner,
No. 6:14-CV-06363 (MAT)
DECISION AND ORDER
-vsPAUL CHAPPIUS, JR.,
Superintendent,
Respondent.
I.
Introduction
Louis Geroyianis (“petitioner”), proceeding pro se, petitions
this Court for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. A jury convicted petitioner of burglary in the second
degree (N.Y. Penal Law § 140.25), grand larceny in the third degree
(N.Y. Penal Law § 155.35), and criminal possession of stolen
property (“CPSP”) in the third degree (N.Y. Penal Law § 165.50). On
June
15,
2012,
the
New
York
State
Supreme
Court,
Appellate
Division, Fourth Department, modified petitioner’s judgment of
conviction by reducing the larceny count to grand larceny in the
fourth degree and the CPSP count to CPSP in the fourth degree. The
Fourth
Department
also
reduced
petitioner’s
sentence
on
the
burglary count, from the trial court’s original sentence of an
indeterminate term of 22 years to life, to an indeterminate term of
16 years to life.
II.
Factual Background and Procedural History
By indictment number 02258-2009, an Erie County grand jury
charged petitioner with burglary in the second degree, grand
larceny in the third degree, and criminal possession of stolen
property in the third degree. The charges arose from a July 13,
2009 incident in which petitioner broke into the apartment of
Steven Jermain and stole various electronic items. At trial,
Jermain, who was petitioner’s next-door neighbor, testified that he
was out of his apartment for an approximate four-hour period of
time on date of the burglary and that when he returned, the
following items were missing from his residence: approximately
150 to 160 DVDs, a DVD player, computer accessories, and a laptop
computer
bearing
a
Harley
Davison
sticker.
David
Starks,
an
acquaintance of petitioner’s, testified that in the early afternoon
of July 13, petitioner arrived at his house carrying a laptop
computer and dozens of DVDs, which items petitioner informed the
Starks were “hot.” T. 154.1 While at Starks’ residence, petitioner
peeled a Harley Davidson sticker off the laptop, which Starks gave
to police and Jermain later identified to be the sticker from his
laptop. A forensic serologist also testified that petitioner could
not be excluded as a contributor to the DNA profiles found on the
1
References to “T.” are to the trial transcript, which was
filed manually by respondent in this case.
2
power strip into which the stolen laptop computer had been plugged
in Jermain’s apartment.
The jury convicted petitioner as charged. On October 8, 2010,
Judge M. William Boller sentenced petitioner, as a persistent
violent felony offender, to a term of 22 years to life on the
larceny count, and two and one-third to seven years on each of the
remaining two counts, all sentences to run concurrently. Petitioner
filed a counseled direct appeal to the New York State Supreme
Court, Appellate Division, Fourth Department, contending that his
convictions were based on legally insufficient evidence and against
the weight of the evidence, the trial court failed to meaningfully
respond to a jury note, and his sentence was excessive. On June 15,
2012, the Fourth Department unanimously modified the judgment to
reduce the larceny and CPSP counts as outlined above, and reduced
the sentence on the burglary count to the statutory minimum of
16
years
to
life. As modified,
the
judgment
was
unanimously
affirmed. See People v. Geroyianis, 96 A.D.3d 1641 (4th Dep’t
2012), lv. denied, 19 N.Y.3d 996, reconsideration denied, 19 N.Y.3d
1102.
Petitioner filed a motion for a writ of error coram nobis on
September 11, 2013, alleging ineffective assistance of appellate
counsel. That motion was denied, as was leave to appeal. See People
v. Geroyianis, 111 A.D.3d 1366 (4th Dep’t 2013), lv. denied,
22 N.Y.3d 1138 (2014), reconsideration denied, 23 N.Y.3d 962.
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III. The Federal Habeas Proceeding
This timely habeas petition followed, in which petitioner
contends that (1) trial and appellate counsel were ineffective; and
(2) his burglary conviction was based on legally insufficient
evidence and against the weight of the evidence.
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
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).
V. Grounds Asserted in the Petition
A.
Ineffective Assistance of Counsel
Petitioner contends that trial and appellate counsel were
ineffective. Specifically, petitioner argues that trial counsel
failed to register timely objections to instances of prosecutorial
4
misconduct, which he alleges consisted of the prosecutor improperly
denigrating the defense, acting as an unsworn witness, vouching for
and
bolstering
the
credibility
of
prosecution
witnesses,
and
improperly eliciting testimony from a police witness. Petitioner
also contends that appellate counsel was ineffective for failure to
raise ineffective assistance of trial counsel for trial counsel’s
failure to raise timely objections to alleged errors in the court’s
response to jury notes and to inquire as to whether DNA “charts”
were provided to the jury. Doc. 1 at 6-7.
Petitioner’s claim of ineffective assistance of trial counsel
is unexhausted because he failed to raise it on direct appeal. It
is also procedurally barred from review by New York State courts
because all of his claims of prosecutorial misconduct would be
apparent from the record, and so could have been raised on direct
appeal. See, e.g., Jones v. Lape, 2010 WL 3119514, *12 (N.D.N.Y.
May 28, 2010), report and recommendation adopted, 2010 WL 3118661
(N.D.N.Y.
Aug.
5,
2010)
(noting
that
under
similar
facts,
ineffective assistance claim “would be barred by procedural default
under
[New
York
Criminal
Procedure
Law]
§
440.10(2)(c)”).
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 factual showing
that he is “‘actually innocent’ (meaning factually innocent) of the
crime for which he was convicted.” Carvajal v. Artus, 633 F.3d 95,
5
108 (2d Cir. 2011) (citing Bousley v. United States, 523 U.S. 614,
622 (1998)). Accordingly, the claim of ineffective assistance of
trial counsel is procedurally defaulted from habeas review and
dismissed on that basis.
Petitioner raised his claim of ineffective assistance of
appellate counsel in his coram nobis motion dated September 11,
2013. All of petitioner’s claims in this regard revolve around a
jury
note
in
which
the
jury
requested
to
review
an
exhibit
consisting of a DNA analysis chart. The record reflects that the
trial court received two notes from the jury, the first requesting
to see a “[DNA] chart,” and the second informing the court that the
jury had reached a verdict. T. 318. There is no indication in the
record that the jury’s note regarding the DNA chart was ever
addressed,
because
it
was
apparently
superceded
by
the
note
announcing that a verdict had been reached.
On direct appeal, the Fourth Department held that this issue
was unpreserved, and in any event, lacked merit. See Geroyianis,
96 A.D.3d at 1643. Appellate counsel was not ineffective for
failing to raise this unpreserved issue. See Montalvo v. Annetts,
2003 WL
22962504,
*27
(S.D.N.Y.
Dec.
17,
2003)
(noting
that
“[a]ppellate counsel's failure to raise an unpreserved claim . . .
does not constitute ineffective assistance,” and collecting cases).
Therefore, this claim is dismissed.
6
B.
Sufficiency and Weight of the Evidence
Petitioner contends that the verdict was not supported by
sufficient evidence and was against the weight of the evidence,
arguing that the “entire case rested on” the testimony of his
acquaintance, Starks, who did not physically witness the crime.
Initially,
the
Court
notes
that
petitioner’s
“weight
of
the
evidence” claim is not cognizable in this habeas proceeding. See
Mobley v. Kirkpatrick, 778 F. Supp. 2d 291, 311 (W.D.N.Y. 2011)
(“Federal courts routinely dismiss claims attacking a verdict as
against the weight of the evidence on the basis that they are not
federal constitutional issues cognizable in a habeas proceeding.”)
(citing, inter alia, Ex parte Craig, 282 F. 138, 148 (2d Cir. 1922)
(holding that “a writ of habeas corpus cannot be used to review the
weight of evidence . . .”), aff'd, 263 U.S. 255 (1923)).
Regarding legal sufficiency, due process requires that the
prosecution establish a defendant’s guilt as to all elements of a
criminal offense beyond a reasonable doubt. See In re Winship, 397
U.S. 358, 364 (1970). A verdict will be deemed consonant with due
process principles if, after viewing the evidence in the light most
favorable to the prosecution, “any rational trier of fact could
have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in
original). Thus, a petitioner “bears a very heavy burden” when
challenging the sufficiency of the evidence supporting his state
7
criminal conviction. Einaugler v. Supreme Court of the State of
New York, 109 F.3d 836, 840 (2d Cir. 1997).
Under New York Penal Law § 140.25, “[a] person is guilty of
burglary in the second degree when he knowingly enters or remains
unlawfully in a building with intent to commit a crime therein, and
when ... [t]he building is a dwelling.” Notably, in this case, the
Fourth Department found that the evidence was insufficient to
support petitioner’s convictions of grand larceny in the third
degree and CPSP in the third degree, and reduced those convictions
accordingly. However, the Fourth Department found that legally
sufficient evidence supported petitioner’s conviction of burglary
in the second degree. In so deciding, the court reviewed the
testimonial
and
physical
evidence
discussed
above,
noting
specifically that “the element of identity was established by a
compelling chain of circumstantial evidence that had no reasonable
explanation except that defendant was . . . the perpetrator[]”
(quoting People v Brown, 92 A.D.3d 1216, 1217 (2012), lv. denied,
18 N.Y.3d 992 (2012)). The Fourth Department’s decision on this
point was not unreasonable in light of applicable Supreme Court
precedent.
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
8
denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), the
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:
November 19, 2015
Rochester, New York.
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