Fomby v. Artus
Filing
16
-CLERK TO FOLLOW UP- DECISION AND ORDER denying the 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 9/29/16. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CHRISTOPHER FOMBY,
Petitioner,
No. 6:14-CV-06403 (MAT)
DECISION AND ORDER
-vsDALE ARTUS,
Respondent.
I.
Introduction
Christopher Fomby (“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
October 4, 2010, in New York State Supreme Court, Chemung County
(Buckley, J.), following a jury verdict convicting him of one count
each of second-degree burglary (N.Y. Penal Law § 140.25(2)) and
fourth-degree grand larceny (N.Y. Penal Law § 155.30(1)).
II.
Factual Background and Procedural History
The charges against petitioner arose from a June 3, 2009
incident in which petitioner burglarized the residential home of
Patrick and Bonnie Balok in the town of Southport, New York, and
stole property including cash and jewelry. The People presented
evidence that around noon on that day, Patrick Balok returned home
and discovered that ladders in the house’s garage had been knocked
over, the garage door had been opened, and jewelry, cash and a
large quantity of coins were missing. The missing items had a value
of
over
$1,000.00.
Shortly
thereafter,
Bonnie
Balok
found
a
McDonald’s receipt in the driveway, which receipt showed a purchase
made just after midnight on the morning of the break-in. After
viewing a surveillance tape of the McDonald’s drive-thru, police
investigator Nicholas Demuth linked the purchase to the driver of
a vehicle belonging to Karen Pronti, defendant’s former girlfriend.
Pronti identified defendant as the driver of the truck shown on the
surveillance video, and testified that he had access to the keys
for
the
vehicle.
She
further
testified
that
she
had
driven
defendant to the neighborhood where the burglary occurred on the
morning of the incident, dropped him off near the entrance to the
victims’ driveway, and returned to pick him up an hour or two
later. Finally, the People presented evidence that defendant used
a CoinStar machine shortly after the burglary to cash in $135.05 in
coins.
The jury convicted petitioner as charged and he was sentenced,
as a persistent violent felony offender, to a term of 20 years to
life imprisonment. That sentence was imposed concurrently with
petitioner’s conviction on another, unrelated burglary, for which
he had been separately tried. See People v. Fomby, 103 A.D.3d 28
(4th Dep’t 2012). Petitioner appealed his judgments of conviction
in the instant case as well as in the separately tried burglary. In
the separate burglary, the New York State Supreme Court, Appellate
Division, Fourth Department, reversed petitioner’s conviction and
remitted the case for further proceedings.
2
In the case underlying this petition, petitioner’s appellate
counsel argued (1) evidence of a prior burglary conviction should
have been excluded as unduly prejudicial; (2) evidence of prior bad
acts tainted the verdict; (3) trial counsel was ineffective;
(4) the prosecutor committed misconduct; (5) the verdict was based
on legally insufficient evidence and was against the weight of the
evidence; and (6) his sentence was unduly harsh and excessive. The
Fourth Department rejected all of petitioner’s arguments on the
merits, but modified the judgment by vacating the sentence and
remitting
for
resentencing,
due
to
its
decision
to
reverse
petitioner’s unrelated burglary conviction. See People v. Fomby,
101 A.D.3d 1355, 1357 (4th Dep’t 2012), lv. denied, 21 N.Y.3d 1015
(2013). On resentencing, petitioner was sentenced to 18 years to
life on the burglary count and a concurrent term of two to four
years on the larceny count.
The
instant
petition
alleges
four
grounds,
arguing
that
(1) petitioner received ineffective assistance of trial counsel;
(2) petitioner was deprived his right to a fair trial due to
prosecutorial misconduct; (3) evidence of prior uncharged crimes
and bad acts “tainted the jury verdict,” doc. 1 at 8; and (4) the
jury verdict was based on legally insufficient evidence.
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
3
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).
IV. Grounds Asserted in the Petition
A.
Ineffective Assistance of Counsel
Petitioner argues that trial counsel was ineffective for
(1)
failing
to
object
to,
and
eliciting
evidence
regarding
petitioner’s prior bad acts; (2) failing to object to hearsay
testimony elicited by the prosecutor; (3) failing to object to, and
eliciting additional evidence of petitioner’s sentence on a prior
conviction; and (4) failing to object to remarks made by the
prosecutor on summation. As respondent points out, petitioner’s
application for leave to appeal to the New York State Court of
Appeals did not raise either of petitioner’s first two contentions,
regarding trial counsel’s failure to object to and elicitation of
evidence of prior bad acts, and trial counsel’s failure to object
to hearsay testimony. Doc. 1 at 24-26. These claims are thus
unexhausted, and because they can no longer be raised in state
4
court, they are procedurally defaulted. See Aparicio v. Artuz, 269
F.3d 78, 90 (2d Cir. 2000) (“[W]hen ‘the petitioner failed to
exhaust state remedies and the court to which the petitioner would
be required to present his claims in order to meet the exhaustion
requirement would now find the claims procedurally barred,’ federal
habeas
courts
also
defaulted.”)(quoting
must
deem
Coleman
v.
the
claims
Thompson,
501
procedurally
U.S.
722,
732
(1991)).
Petitioner’s remaining claims regarding ineffective assistance
of
counsel
(that
counsel
failed
to
object
to,
and
elicited
additional evidence of petitioner’s sentence on a prior conviction,
and
failed
to
object
to
remarks
made
by
the
prosecutor
on
summation) lack merit. 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).
The
Fourth
Department
summarily
denied
petitioner’s
ineffective assistance claims. “Where a state court’s decision is
unaccompanied by an explanation, the habeas petitioner’s burden
5
still must be met by showing there was no reasonable basis for the
state court to deny relief.” Harrington v. Richter, 562 U.S. 86, 98
(2011) (emphasis added). Here, however, a review of the state court
record reveals that defense counsel had a coherent strategy which
was presented to the jury. Defense counsel advanced an intricate
theory involving an uncharged burglary which occurred on the same
day and three miles away from the instant burglary. Defense counsel
argued that, because of the similarities between the two burglaries
and the fact that police investigated petitioner but never charged
him in
connection
conclude
that
counsel also
with
the
petitioner
argued
second
committed
that
the
burglary, the
neither
nature
of
the
jury
should
burglary.
Defense
evidence
against
petitioner was too circumstantial to be sufficient to support a
guilty verdict.
In addition to advancing this theory at trial, defense counsel
actively participated at pretrial stages, which included a Sandoval
hearing. The record thus establishes that, in the aggregate, trial
counsel’s representation was effective, and petitioner has failed
to establish that the Fourth Department had no reasonable basis for
rejecting his claims. See Harrington v. Richter, 562 U.S. 86, 90
(2011) (“[I]t is difficult to establish ineffective assistance when
counsel's
overall
advocacy.”);
United
performance
States
v.
indicates
DiPaolo,
active
804
F.2d
and
225,
capable
234-35
(2d Cir. 1986) (holding that defendants were not denied effective
assistance of counsel where counsel appeared well-prepared and
6
demonstrated good understanding of the facts and legal principles
involved in case).
Regarding
petitioner’s argument
that
defense
counsel
was
ineffective for failing to object to certain of the prosecutor’s
remarks on summation, the Fourth Department specifically found that
these remarks “generally constituted fair comment on the evidence
or were made in response to defense counsel’s summation, ‘and the
few improper comments were not so pervasive or flagrant as to
require reversal’” Fomby, 101 A.D.3d at 1357 (citing People v
McCall, 75 A.D.3d 999, 1002 (4th Dep’t 2010), lv. denied, 15 N.Y.3d
894 (2010)). Defense counsel “cannot be faulted for failing to make
a meritless objection.” Johnson v. Conway, 2011 WL 53165, *5
(W.D.N.Y.
Jan.
7,
2011).
For
all
of
the
foregoing
reasons,
petitioner’s various claims of ineffective assistance of counsel
are dismissed.
B.
Prosecutorial Misconduct
Petitioner claims that the prosecutor committed misconduct
when he elicited testimony regarding petitioner’s prior bad acts
and when he made certain remarks on summation. On appeal, the
Fourth Department rejected both of these arguments. The court found
that
the
prosecutor’s
elicitation
of
testimony,
contrary
to
petitioner’s argument, did not actually include testimony about any
bad
acts.
Fomby,
Department
noted
petitioner’s
101
that
A.D.3d
the
ex-girlfriend
at
1357.
prosecutor
when
7
she
Moreover,
the
immediately
began
to
Fourth
stopped
testify
that
petitioner had been in prison, and found that “[a]lthough that
improper testimony was not stricken, defendant did not object and
any error was harmless inasmuch as [petitioner] testified that he
had
been
in
Department
prison.”
held
that
Id.
Also,
as
noted
the
prosecutor’s
above,
remarks
the
on
Fourth
summation
constituted fair comment. Id.
The
Fourth
unreasonable
assessing
Department’s
or
contrary
claims
of
to
findings
relevant
prosecutorial
on
appeal
federal
misconduct,
were
precedent.
“the
not
In
relevant
question is whether the [alleged misconduct] so infected the trial
with unfairness as to make the resulting conviction a denial of due
process.” Darden v. Wainwright, 477 U.S. 168, 169 (1986). Given the
compelling
circumstantial
evidence
of
petitioner’s
guilt,
the
Fourth Department’s reasoning in rejecting petitioner’s
contentionsas sound.1 The claims of prosecutorial misconduct are
therefore dismissed.
C.
Evidence of Prior Bad Acts
Petitioner argues that he was denied a fair trial because
evidence of uncharged crimes “tainted the jury verdict.” Doc. 1 at
14.
Respondent
contends
that
this
1
claim
is
a
mere
echo
of
Additionally, to the extent that the Fourth Department
rejected petitioner’s claims as unpreserved, those claims are
barred by an adequate and independent state law ground. See
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).
8
petitioner’s arguments under his first two grounds. The Court
agrees. As the Fourth Department found, the prosecutor did not
actually elicit evidence regarding prior bad acts. Defense counsel,
apparently in an effort to remove the sting of impending crossexamination, elicited evidence from petitioner that he had been
previously been convicted of and imprisoned for burglary. As
discussed above, petitioner has not shown that the prosecutor
engaged
in
ineffective.
reversible
Especially
misconduct
nor
considering
that
that
trial
the
counsel
was
circumstantial
evidence against petitioner was compelling, the trial court did not
commit any reversible err in failing to sua sponte intervene with
regard to evidence of prior bad acts. See, e.g., United States v.
Morissett, 49 F. App’x 334, 337 (2d Cir. 2002) (citing United
States v. Miller, 895 F.2d 1431, 1439 (D.C. Cir. 1990) (holding
trial court is not required to sua sponte issue an unrequested jury
instruction limiting the use of testimony regarding a defendant’s
prior bad acts)).
D.
Sufficiency of the Evidence
Petitioner argues that the verdict was based on legally
insufficient evidence. Specifically, petitioner contends that the
evidence was circumstantial, and that “[s]etting aside inadmissible
evidence of uncharged crimes and prior bad acts there [was] very
little evidence linking petitioner to the crime.” Doc. 1 at 15. On
appeal, the Fourth Department explicitly rejected this argument,
finding that although the evidence in this case was circumstantial,
9
the “evidence was sufficient to establish, beyond a reasonable
doubt, [petitioner]’s identity as the perpetrator, unlawful entry
into the victims’ home and intent to commit a crime therein, as
well as the value of the items taken.” Fomby, 101 A.D.3d at 1356.
Petitioner’s motion for leave to appeal to the Court of Appeals did
not raise this issue. Therefore, the claim is unexhausted and
procedurally defaulted. See Thompson, 501 U.S. at 732; Aparicio,
269 F.3d at 90.
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
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 29, 2016
Rochester, New York.
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