Hall v. Miller
-CLERK TO FOLLOW UP- DECISION AND ORDER denying petitioner's request for a writ of habeas corpus; terminating 9 Motion; and dismissing the petition 1 . (Clerk to close case.) Signed by Hon. Michael A. Telesca on 10/22/15. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
No. 1:15-CV-06017 (MAT)
DECISION AND ORDER
Proceeding pro se, Harold Hall (“petitioner”) seeks a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 on the basis that he is
being detained in respondent’s custody in violation of his federal
constitutional rights. Petitioner is incarcerated pursuant to a
judgment entered on October 4, 2010, in Chautauqua County Court
(Ward, J.), following a jury verdict convicting him of first degree
kidnapping (N.Y. Penal Law § 135.25(2)(a)), second degree assault
(N.Y. Penal Law § 120.05(2)), and aggravated criminal contempt
(N.Y. Penal Law § 215.52).
Factual Background and Procedural History
By indictment of a Chautauqua County grand jury, petitioner
§ 135.20), second degree assault (N.Y. Penal Law § 120.05(2)), and
connection with the May 2009 kidnapping of his wife, Julie Hall.
Petitioner was tried on these charges at a jury trial which
commenced September 13, 2010, before Chautauqua County Judge John
T. Ward. At trial, Mrs. Hall testified that as of May 2009, she had
commenced separation proceedings against her husband as a result of
his history of domestic abuse against her and their children.
Mrs. Hall consulted a legal aid attorney, who drafted a separation
agreement and sent it to petitioner in the spring of 2009. On
May 12, 2009, the date of the incident, an order of protection had
been issued by Chautauqua County Family Court and was in place
against petitioner in favor of Mrs. Hall and their daughter,
At about 5:00 p.m. on May 12, 2009, petitioner learned of
Mrs. Hall’s whereabouts from their son. Petitioner, who was driving
a pickup truck, caught up with Mrs. Hall, who was driving a Dodge
Neon. Petitioner rear-ended petitioner’s vehicle twice before she
ultimately pulled over and ran out of her car, toward an individual
riding a lawnmower in a field. Petitioner followed Mrs. Hall on
foot, caught up with her, and proceeded to beat her multiple times
with a hammer. He then dragged her by the hair back to his pickup
truck and forced her to get in. Petitioner then drove the two,
through the night into May 13, 2009, to Highland County, Ohio.
During the course of the drive, which included several stops,
petitioner threatened Mrs. Hall with death should she attempt to
Police eventually tracked down petitioner’s and Mrs. Hall’s
whereabouts, and petitioner was arrested on the morning of May 13,
2009 by Highland County police. Mrs. Hall was taken to a local
hospital, where she was treated for various injuries including
broken ribs and bruising over most of her body. Eight eyewitnesses,
in addition to Mrs. Hall, testified to witnessing portions of
petitioner’s pursuit of Mrs. Hall’s vehicle and his assault upon
On May 15, 2009, petitioner was transported from Ohio to
Chautauqua County by Sergeant Investigator Paul Gustafson and
Officer Chris DePonceau of the Lakewood-Busti police department.
During the ride, which lasted approximately six hours, petitioner
made several spontaneous statements, including statements to the
effect that “this all started because his family had basically
given up on him,” “he knew what he was facing, [and] that he had
made a mistake.” Doc. 6-7 at 101-02.
The jury convicted petitioner of first degree kidnapping,
indeterminate term of 25 years to life on the kidnapping count, a
determinate term of seven years with three years post-release
supervision on the assault count, and an indeterminate term of
two and one-third to seven years on the contempt count, all
sentences to run concurrently.
Plaintiff filed a counseled direct appeal to the New York
counsel and violation of his Fifth Amendment right against selfincrimination.
conviction, and the New York State Court of Appeals denied leave to
appeal. See People v. Hall, 106 A.D.3d 1513 (4th Dep’t 2013), lv
denied, 22 N.Y.3d 956.
Petitioner filed a pro se motion to vacate the judgment of
confrontation was violated by various alleged errors during the
trial. Judge Ward denied the motion on the basis that petitioner’s
record-based claims should have been raised on direct appeal. The
Fourth Department denied leave to appeal, and subsequently denied
petitioner’s motion for reargument.
The Federal Habeas Proceeding
This timely habeas petition followed, in which petitioner
claims that (1) trial counsel was ineffective for failing to
(a) move for a trial order of dismissal in more specific terms,
(b) waiving a pretrial Ventimiglia hearing regarding petitioner’s
prior bad acts (see People v. Ventimiglia, 52 N.Y.2d 350 (1981)),
and (c) waiving a pretrial Sandoval hearing regarding petitioner’s
prior convictions in the event that petitioner testified (see
Amendment right to confrontation was violated when (a) Mrs. Hall’s
medical records were allowed into evidence without testimony from
the physician who created the records and (b) Mrs. Hall was allowed
to testify regarding the records with reference to knowledge she
obtained as a nurse; and (3) his Fifth Amendment right against
self-incrimination was violated during the transport from Ohio to
Respondent also asserts that petitioner’s Confrontation Clause
claim is barred on adequate and independent state law grounds and
III. Standard of Review
The Anti–Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”) applies to Hall’s petition, which was filed in 2013.
AEDPA “revised the conditions under which federal courts may grant
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 law, as determined by
the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or
involved an “unreasonable determination of the facts” in light of
the evidence presented, 28 U.S.C. § 2254(d)(2). The Second Circuit
has stated that “it is often appropriate in considering a habeas
petition under the AEDPA for the federal court to go through two
steps: first, the court determines what the correct interpretation
understanding or application of that precedent is determined to be
erroneous, the federal court must still ask whether that error was
a reasonable one.” Kruelski, 316 F.3d at 106.
IV. Grounds Asserted in the Petition
Ineffective Assistance of Counsel (Ground One)
Plaintiff contends that his trial counsel was ineffective for
failing to move for a trial order of dismissal on one of the felony
hearings. Respondent counters that these claims are meritless, and
that petitioner’s claim as to the Sandoval hearing is procedurally
defaulted. To the extent that petitioner’s Sandoval claim was not
clearly presented in federal terms to the state court, this Court
need not determine whether it was adjudicated on the merits,
thereby triggering AEDPA review, because the claim fails even if
the Court applies the less deferential, pre-AEDPA standard. See
Messiah v. Duncan, 435 F.3d 186, 197 (2d Cir. 2006).
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).
In this case, counsel actively participated in all stages of
the trial, presenting a cogent and capable defense by making
appropriate motions and objections, performing effective crossexamination of witnesses both at the pretrial and trial stages, and
presenting reasonable opening and closing arguments. The record
representation was effective. See Harrington v. Richter, 562 U.S.
assistance when counsel's overall performance indicates active and
capable advocacy.”); United States v. DiPaolo, 804 F.2d 225, 234-35
(2d Cir. 1986) (holding that defendants were not denied effective
assistance of counsel where counsel appeared well-prepared and
demonstrated good understanding of the facts and legal principles
involved in case). Indeed, the Fourth Department specifically found
that, as to petitioner’s ineffective assistance claim raised on
direct appeal, “the evidence, the law, and the circumstances of
[this] particular case, viewed in totality and as of the time of
the representation, reveal that the attorney provided meaningful
representation.” Hall, 106 A.D.3d at 1514 (quoting People v Baldi,
54 N.Y.2d 137, 147 (1981)).
Hall’s individual theories in support of his ineffective
deferential” standard laid out in Strickland. 466 U.S. at 689.
Petitioner argues that his trial counsel erred in failing to
specifically move for dismissal based on insufficiency of the
evidence as to the kidnapping in the second degree count. However,
the Fourth Department specifically found that, although trial
counsel’s nonspecific insufficiency motion did not preserve the
issue for review, petitioner’s “contention [that the verdict was
based on insufficient evidence was] without merit.” Hall, 106
A.D.3d at 1514. This finding was proper, and trial counsel was not
ineffective for failing to assert a meritless motion. See Aparicio
v. Artuz, 269 F.3d 78, 88, 99 (2d Cir. 2001).
Petitioner also claims that trial counsel was ineffective for
waiving a Ventimiglia hearing, which would have addressed the
People’s admission of evidence of petitioner’s prior bad acts.
Petitioner raised this argument on direct appeal, but as noted
above, the Fourth Department found that trial counsel provided
meaningful representation. Evidence of petitioner’s prior bad acts,
which included evidence of past incidents of domestic abuse and
threats to kill Mrs. Hall, was relevant to show motive and intent.
See, e.g., People v. Westerling, 48 A.D.3d 965, 966 (3d Dep’t 2008)
(“Prior bad acts in domestic violence situations are more likely to
aggression and bad acts are focused on one particular person,
demonstrating the defendant's intent, motive, identity and absence
of mistake or accident[.]”). Counsel cannot be faulted for waiving
a hearing on a motion which would have failed. See Harvey v.
Portuondo, 2002 WL 2003210, *8 (E.D.N.Y. Aug. 5, 2002) (holding
that petitioner’s argument that appellate counsel should have
sought reversal on the ground that Ventimiglia hearing should have
been held was “simply absurd,” because “[a] motion to preclude
[evidence of past domestic abuse and threat to do the crime
petitioner's motive and intention to commit the crime, would have
Finally, petitioner argues that trial counsel should have
sought a Sandoval hearing regarding petitioner’s prior convictions
in the event that petitioner testified. As respondent points out,
the record makes clear that counsel reserved the right to conduct
a Sandoval hearing if the petitioner chose to testify, which he did
not. Thus, counsel did not in fact fail to request the hearing;
rather, petitioner chose not to testify. Moreover, petitioner has
not shown that counsel’s reservation regarding the Sandoval hearing
somehow influenced him not to testify. See, e.g., Jackson v. Burge,
2009 WL 10221717, *5 (W.D.N.Y. Apr. 8, 2009) (“Petitioner has
completely failed to show how trial counsel's withdrawal of the
Sandoval request interfered with his right to testify, let alone
affected his decision about testifying.”). This claim therefore
Confrontation Clause (Grounds Two and Three)
Petitioner contends that his rights under the Confrontation
Clause were violated when Mrs. Hall’s medical records were admitted
into evidence at trial, despite the fact that the doctor who
prepared the records did not testify, and when Mrs. Hall testified
regarding the records based on knowledge obtained in her occupation
as a nurse.
Petitioner did not raise these grounds in his direct appeal,
but raised them later in his pro se CPL § 440.10 motion. In denying
§ 440.10(2)(c), holding that the claims were record-based and could
have been raised on direct appeal. See Doc. 6-5, at S.R. 573. This
ground for denial of petitioner’s motion constitutes a procedural
bar to habeas relief because it is an adequate and independent
state law ground. See, e.g., Acevedo v. Lempke, 2012 WL 360276, *12
(S.D.N.Y. Feb. 3, 2012 (“A state court's rejection of a motion to
vacate pursuant to 440.10(2)(c) is an adequate and independent
state ground sufficient to preclude review of the claim by way of
a writ of habeas corpus.”).
Fifth Amendment (Ground Four)
Petitioner claims that his Fifth Amendment right against selfincrimination was violated during his
transport by police from
Ohio to New York, in which he made various statements to Sergeant
Investigator Gustafson and Officer DePonceau. Petitioner claims
(and respondent does not disagree) that he had invoked his right to
counsel, but that the “officers could see plainly that [he] was
emotionally compromised and should have realized that the endless
‘conversation’ would elicit admissions.” Doc. 1 at 8.
Statements made during the transport were the subject of a
pretrial Huntley hearing. See People v. Huntley, 15 N.Y.2d 72
(1965). At the hearing, Sergeant Gustafson testified that Ohio
deputies had informed him that petitioner had invoked his right to
counsel. Gustafson testified that he did not question petitioner at
any point on the trip, but that petitioner made several spontaneous
statements in the course of “numerous conversations . . . [relating
to] anything from NASCAR to the fact that it didn’t have to be this
way.” Doc. 6-6 at 81. These comments included statements to the
effect that petitioner’s “family had failed him,” that “he knew
what he was facing [and that] what he had done was very wrong,” and
a comment at one point that he would plead to the charges. Id.
Gustafson testified that these statements were not made in response
to any questioning, and that they were not the results of threats
petitioner’s motion for suppression of the statements, holding that
“[a]ny statements made by the defendant were spontaneous and not
the result of any intentional police interrogation.” Id. at 134.
The Fourth Department affirmed that finding, holding that “County
Court properly determined that those statements were admissible
because they were not ‘“provoked, induced [or] encouraged by police
conduct or interrogation” . . . , but were made voluntarily and
spontaneously in the course of a dialogue initiated and continued
by defendant[.]’” Hall, 106 A.D.3d at 1513 (quoting People v
Johnson, 277 A.D.2d 702, 706 (2000), lv denied 96 N.Y.2d 831
constitute factual findings, which petitioner bears the burden of
§ 2254(e)(1). In this case, petitioner has come forward with no
evidence to suggest that the statements he made to police were
anything but spontaneous and voluntary, as established at the
Huntley hearing and as found by County Court and the Fourth
Department. Plaintiff has thus failed to meet his burden under
§ 2254(e)(1), and the factual findings are presumed correct under
AEDPA. See, e.g., Whyte v. Brown, 2011 WL 7100558, *17-18 (S.D.N.Y.
established where it “was fully developed during the Huntley
(S.D.N.Y. Jan. 26, 2012).
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
October 22, 2015
Rochester, New York.
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