Griffin v. Griffin
Filing
11
-CLERK TO FOLLOW UP-DECISION AND ORDER dismissing 1 Petition for Writ of Habeas Corpus filed by Edwin Mulligan. Signed by Hon. Michael A. Telesca on 10/26/16. The Clerk of Court is requested to send a copy of this Decision and Order to the pro se petitioner, and to close this case.(AFB)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
EDWIN MULLIGAN,
Petitioner,
No. 6:15-cv-06502-MAT
DECISION AND ORDER
-vsTHOMAS GRIFFIN, Superintendent,
Green Haven Correctional Facility,
Respondent.
INTRODUCTION
Pro se petitioner Edwin Mulligan (“Petitioner” or “Mulligan”)
seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254,
challenging
a
judgment
of
conviction
entered
against
him
on
September 4, 2009, in Monroe County Court (McCarthy, J.) of New
York State. Petitioner was convicted, following a jury trial, of
Attempted Murder in the Second Degree (N.Y. Penal Law (“P.L.”) §§
110.00/125.25(1)), Assault in the First Degree (P.L. § 120.10((1)),
two counts of Criminal Possession of a Weapon in the Second Degree
(P.L. § 265.03(1)(b), (3)), Criminal Possession of a Weapon in the
Third Degree (P.L. § 265.02(1)), and Endangering the Welfare of a
Child (P.L. § 260.10(1)). Petitioner is currently incarcerated,
serving an aggregate 20-year sentence on those convictions.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The convictions here at issue stem from an incident that
-1-
occurred
on
January
17,
2009,
in
which
Petitioner
shot
his
girlfriend, Evelyn Burgess (“Burgess”), at their apartment on
Gregory Street in the City of Rochester.1 That evening, Petitioner
and Burgess were at their apartment with their two-year-old son.
Petitioner became angry after Burgess told him that he could not
use her car, because she was “on-call” for her job at Strong
Memorial Hospital. During the argument that ensued, Burgess’ cell
phone rang. Instead of answering it, she silenced the ringer.
Petitioner grabbed the cell phone, answered it, and demanded that
the caller identify himself and explain why he was calling Burgess.
Petitioner then hung up the cell phone and began hitting Burgess
with his closed fists, knocking her to the ground.
Burgess told him to leave and said she was going to call the
police. Burgess decided to use a pay phone located on the corner of
Gregory Street and South Avenue, because Petitioner still had her
cell
phone.
Before
she
could
leave
the
apartment,
however,
Petitioner pulled out a gun and shot her in the face, causing her
to fall to the floor on her side. Petitioner then fired his gun
four more times at her, while she laid on the floor, striking her
in the back and arm. Petitioner left the apartment, leaving his
two-year-old son in the room where his mother had been shot.
Burgess testified that she laid on the floor, in pain, until
1
Because Petitioner has raised a claim based on the legal sufficiency of the
evidence, the Court recounts the proof at trial viewing all the evidence, and
drawing all reasonable inferences therefrom, in the prosecution’s favor.
-2-
her son began crying. At that point, she dragged herself to the
front door and got it open. Because she did not want her son to
follow her, Burgess maneuvered herself so that about half of her
body was outside of the door, on the porch. She began screaming for
help and was heard by her landlord, Steven Blake (“Blake”), who
happened to be doing some renovations on the house. Blake came to
her aid and called 911. As Blake was speaking to the 911 operator,
Burgess told
Blake
that
Petitioner
had
shot her.
Blake
then
repeated this information to the operator.
Burgess was transported by ambulance to SMH where she was
treated for a punctured lung, a fractured shoulder, and fractured
ribs. She remained hospitalized for 13 days. At trial, Burgess
testified, one of the bullets remained embedded in her face and
that she had residual nerve damage to the left side of her body.
Several .22-caliber shell casings were recovered from the
apartment following the shooting. The Rochester Police Department
(“RPD”) were unable to locate the firearm used in the shooting, but
they did locate an empty holster inside of Petitioner’s Jeep
Cherokee underneath the seat behind the driver. According to RPD
Investigator Seth Carr (“Inv. Carr”), the holster was likely used
to hold a semi-automatic handgun.
At trial, Petitioner testified that he was inside of the
apartment immediately prior to the shooting but left between 7:00
p.m. and 7:15 p.m. He returned a half an hour later to find a man
he knew only as K.B. stepping out of the bathroom. Petitioner he
-3-
immediately approached “K.B.” and “clocked him” in the face. “K.B.”
reached into his pocket and grabbed a gun. Defendant grabbed
Burgess and placed her body between himself and “K.B.” a shield,
and ran from the apartment. As he fled the apartment, he heard the
sound of gunshots (“Pop, pop, pop!”). Petitioner drove directly to
his parents’ house. Though he had his cell phone with him, he made
no attempt to call 911, go to the police station, or go to any one
of the businesses near his home that were open, to seek
help. Upon
reaching his parents’ house, he did not ask his parents to call
911, nor did he use their phone to call for help. At no time in the
days following the shooting did Petitioner ever contact the police
to
tell them
that
“K.B.” had
shot Burgess.
Petitioner
never
returned to the house to check on the well-being of his son, and
after learning that Burgess had been shot, did not call her to
check on her condition.
On August 20, 2009, the jury returned a verdict finding
Petitioner guilty as charged in the indictment. On September 4,
2009, Petitioner was adjudicated a second felony offender and
sentenced to determinate prison terms of 20 years, plus 5 years of
post-release supervision, for the second-degree attempted murder
and the first-degree assault convictions; determinate prison terms
of 7 years, plus 5 years of post-release supervision, for both
convictions of second-degree weapon possession; an indeterminate
prison term of 3 to 6 years for the third-degree weapon possession
conviction;
and
a
definite
one-year
-4-
jail
term
for
the
child
endangerment
convictions.
All
sentences
were
ordered
to
run
concurrently.
On September 6, 2012, Petitioner filed a pro se motion to
vacate the judgment pursuant to New York Criminal Procedure Law
(“C.P.L.”) § 440.10 in the Monroe County Court on the grounds that
the prosecutor committed misconduct by eliciting trial testimony
and making false statements during opening and closing statements.
Specifically, Petitioner argued that the prosecutor elicited false
testimony from Burgess that she was wearing her winter coat when
she
was
shot.
The
prosecution
filed
an
affirmation
opposing
Petitioner’s motion, and Petitioner filed a reply. The County Court
denied the motion on substantive and procedural grounds, and leave
to appeal to the Appellate Division, Fourth Department, of New York
State Supreme Court (“the Appellate Division”) was denied on May
21, 2013.
Represented by counsel, Petitioner pursued a direct appeal in
Appellate Division. As grounds for reversal Petitioner argued,
inter
alia,
inadmissible
credibility
that
(1)
hearsay
of
the
trial
testimony
Burgess’
court
that
identification
improperly
served
of
to
admitted
bolster
Petitioner
as
the
the
shooter; (2) the prosecutor committed misconduct by knowingly
introducing Burgess’ false testimony that she was wearing her
winter coat when she was shot; and (3) the cumulative effect of the
trial errors undermined the fairness of the trial. Petitioner also
filed a pro se supplemental appellate brief in which he argued that
-5-
(1) his verdict was not supported by legally sufficient evidence
and was against the weight of the evidence; and (2) the trial court
improperly failed to conduct a hearing, or to rule, on Petitioner’s
motion to suppress physical evidence. The prosecution filed an
opposing brief. Petitioner’s counsel filed a reply brief. The
Appellate Division unanimously affirmed the judgment of conviction
on June 20, 2015. People v. Mulligan, 118 A.D.3d 1372 (4th Dep’t
2014). On May 4, 2015, leave to appeal was denied. People v.
Mulligan, 25 N.Y.3d 1075 (2015).
In his timely-filed habeas petition, Petitioner asserts that
(1)
his
Fourth
Amendment
rights
were
violated
because
the
prosecution introduced evidence at trial that had been unlawfully
seized; (2) his due process rights were violated because the
prosecutor knowingly introduced false testimony that Burgess was
shot while wearing her winter coat; (3) the verdict was not
supported by legally sufficient evidence; (4) the trial court
improperly admitted hearsay statements into evidence; and (5) the
cumulative effect of these errors denied Petitioner a fair trial.
Respondent
answered
the
petition
and
filed
a
memorandum
in
opposition. Petitioner filed a reply.
For the reasons discussed below, Petitioner’s request for a
writ of habeas corpus is denied, and the petition is dismissed.
DISCUSSION
I.
Fourth Amendment Violations
Petitioner asserts, as he did on direct appeal, that the trial
-6-
court erred in failing to render a decision on the portions of his
pre-trial omnibus motion seeking suppression of evidence found by
the police during searches of his house and vehicle executed
pursuant to a search warrant. According to Petitioner, the trial
court lacked probable cause to issue the warrant.
On the date set for argument of the motions, the trial court
indicated that it would review the search warrant application and
the search warrants. At the start of trial, defense counsel argued
other motions and obtained rulings on other applications, such as
the Sandoval request, but he did not seek to argue the suppression
motion. In addition, defense counsel did not respond when the trial
court inquired whether there were “any other issues [they] may need
to talk about before [they] bring the jury up,” nor did he object
when the prosecutor introduced into evidence the items seized as a
result of those searches. The Appellate Division ruled that because
Petitioner failed to seek a ruling on those parts of his omnibus
motion concerning the alleged Fourth Amendment violations, or to
object to the admission of the unlawfully seized evidence at trial,
he abandoned his contention that the trial court erred in refusing
to suppress the evidence on those grounds.
Respondent argues that this claim is not cognizable on habeas
review under the doctrine articulated in Stone v. Powell, 428 U.S.
465 (1976), in which the United States Supreme Court held that
“where the State has provided an opportunity for full and fair
litigation of a Fourth Amendment claim, the Constitution does not
-7-
require that a state prisoner be granted federal habeas corpus
relief on the ground that evidence obtained in an unconstitutional
search or seizure was introduced at his trial.” 428 U.S. at 481–82.
“[O]nce it is established that a petitioner has had an opportunity
to litigate his or her Fourth Amendment claim (whether or not he or
she took advantage of the state’s procedure), the court’s denial of
the claim is a conclusive determination that the claim will never
present a valid basis for federal habeas relief. . . .[T]he bar to
federal habeas review of Fourth Amendment claims is permanent and
incurable absent a showing that the state failed to provide a full
and fair opportunity to litigate the claim[.]” Graham v. Costello,
299 F.3d 129, 134 (2d Cir. 2002).
Here, Petitioner does not and cannot contend that New York
failed to provide appropriate corrective procedures to address his
Fourth Amendment claim. Indeed, “the federal courts have approved
New
York’s
procedure
embodied in C.P.L.
for
litigating
Fourth
Amendment
claims”
Article 710. Capellan v. Riley, 975 F.2d 67, 70
n.1 (2d Cir. 1992). Furthermore, Petitioner took advantage of New
York’s corrective procedures by litigating his Fourth Amendment
claim in his pro se brief on direct appeal. The Appellate Division
considered Petitioner’s claim and, after discussing it, rejected it
unanimously. See Mulligan, 118 A.D.3d at 1376. “[A] petitioner’s
mere disagreement with the outcome of the state courts’ rulings ‘is
not the equivalent of an unconscionable breakdown in the state’s
corrective process.’” McClelland v. Kirkpatrick, 778 F. Supp. 2d
-8-
316, 332 (W.D.N.Y. 2011) (quoting Capellan, 975 F.2d at 72; other
citations omitted). Because Petitioner “can show nothing more than
that he disputes the correctness of the state court’s rulings, the
doctrine of Stone v. Powell forbids de novo review[,]” McClelland,
778 F. Supp.2d at 333, of the State court ruling on his Fourth
Amendment claims.
II.
Prosecutorial Misconduct
Petitioner asserts, as he did on direct appeal, that the
prosecutor knowingly elicited false testimony from Burgess by
allowing her to testify that she was wearing her winter coat when
she was shot. Petitioner reasons that since there were no visible
bullet holes in the coat, Burgess’ testimony on this issue must
have been false, and the prosecutor’s failure to correct this
alleged perjury testimony violated his due process right to a fair
trial.
On direct appeal, the Appellate Division rejected this claim
on the basis that it was unpreserved and, in any event, nonmeritorious
prosecutor
because
the
elicited
record
false
did
testimony
“not
or
establish
misled
the
that
the
jury[.]”
Mulligan, 118 A.D.3d at 1374 (quotation and citations omitted).
Respondent argues that
Petitioner failed to properly exhaust his
claim by presenting it to the highest state court having the power
to afford relief and it consequently must be deemed exhausted but
procedurally defaulted; that, in the alternative, the Appellate
Division’s holding that the claim was unpreserved constitutes an
-9-
adequate and independent state-law ground precluding habeas review;
and that, in any event, the claim does not warrant habeas relief.
Because this claim may be readily dismissed on substantive grounds,
the Court has exercised its discretion to bypass the issues of
exhaustion and procedural default. See, e.g., Lewis v. Brown, No.
10-CV-0796 MAT, 2011 WL 6148938, at *3 (W.D.N.Y. Dec. 12, 2011)
(“Respondent asserts that Petitioner’s claims are unexhausted,
and/or procedurally defaulted and, in any event, not cognizable on
habeas review. Because Lewis’s petition may be readily dismissed on
substantive grounds, the Court has exercised its discretion to
bypass the exhaustion issue and deny the petition on the merits.”)
(citing Boddie v. New York State Div. of Parole, 285 F. Supp.2d
421, 428 (S.D.N.Y. 2003) (finding that “thorny issue” of exhaustion
in the context of habeas challenge to parole decision “need not be
addressed” since underlying claims were clearly without merit);
other citation omitted).
A prosecutor’s use of perjured testimony violates due process
when (1) “the prosecution knew, or should have known, of the
perjury,” and (2) “there is any reasonable likelihood that the
false testimony could have affected the judgment of the jury.”
Drake v. Portuondo, 321 F.3d 338, 345 (2d Cir. 2003) (quoting
United States v. Agurs, 427 U.S. 97, 103 (1976)). To prevail on a
claim such a claim, Petitioner “must initially demonstrate that
perjury was in fact committed at his trial.” Campbell v. Greene,
440 F. Supp.2d 125, 147 (N.D.N.Y. 2006) (citing
-10-
United States v.
White, 972 F.2d 16, 20 (2d Cir. 1992) (on a motion for a new trial
when the newly discovered evidence focuses on the perjury of a
witness,
the
“threshold
inquiry
is
whether
the
evidence
demonstrates that the witness in fact committed perjury”); other
citations omitted). This Petitioner cannot do.
As Respondent points out, there was ample evidence presented
to support Burgess’ testimony that she was wearing her winter coat
during the incident. For example, RPD Investigator Michael Wilson
testified that when he arrived at the scene, he observed Burgess
lying on her floor, but he could not see where she had been injured
because she was wearing a heavy coat. (T.369). Paramedic Jason Nye
testified that in order to treat Burgess, he had to cut off her
coat. (T.393).
Burgess testified that after the initial gunshot wound to the
face she “fell face down, but [her] side -- [her] left side of
[her] face was on the floor, but [she] was down.” (T.348-49).2
Burgess continued, “Edwin then walked up, shot me four more times
in my back and arm. I got a glance by my being on my side, my face
being on my side, I got a glance of him shooting me.” (T.349).
As Respondent argues, it is not known how Burgess’ coat was
positioned when she fell; it may have been unzipped, areas of
Burgess’ body may have been left exposed after she hit the floor,
or Petitioner may have pointed his gun at areas of Burgess’ body
2
Numbers in parentheses preceded by “T.” refer to pages from the transcript
of Petitioner’s trial.
-11-
that were not covered by the coat. Another possible explanation for
why there were no visible bullet holes in the coat may have been
due to the way the coat was cut off of her by the treating
paramedic. (T.393). In short, the fact that no bullet holes were
visible in the coat does not prove that Burgess was not wearing it.
Furthermore, Burgess was observed wearing the coat within minutes
of having sustained at least four gun shot wounds to the face and
upper torso. As a result of the extreme pain she was in, Burgess
had to drag herself across the floor to get to the front door to
summon help. It is unlikely that she could have, or did put her
coat, while she was in that state. Thus, the most reasonable
inference to be drawn from the evidence is that she was wearing the
coat at the time she was shot, as she testified. Finally, the
prosecutor’s decision not to introduce Burgess’ coat into evidence
does not indicate bad faith on the part of the prosecutor; if the
coat, and the absence of bullet holes, were as significant as
Petitioner contends, he could have moved the coat into evidence.
Petitioner
has
not
established
that
Burgess
offered
false
testimony, or that the prosecutor knew that such testimony was
false and failed to correct it. Nor has Petitioner shown that there
is any reasonable likelihood that the false testimony could have
affected the verdict. This claim accordingly is dismissed as
without merit.
III. Legal Insufficiency of the Evidence
Petitioner argues, as he did on direct appeal, that the trial
-12-
evidence was not legally sufficient to support his conviction,
because the prosecution failed to prove beyond a reasonable doubt
that he
was
the perpetrator
of the
shooting.
In
particular,
Petitioner contends that Burgess’ testimony was inconsistent with
the physical evidence because there were no visible bullet holes in
the winter coat she claimed to have worn during the shooting.
Petitioner asserts that his trial testimony that Burgess was shot
by
her
alleged
houseguest,
K.B.,
was
more
credible
because
Petitioner version of events was consistent with the possibility
that she was not wearing her winter coat during the shooting.
The Appellate Division found that Burgess “did not provide
internally inconsistent testimony, and she was not the source of
all of the evidence of [defendant’s] guilt[.]” Mulligan, 118 A.D.3d
at 1375 (quoting People v. Hampton, 21 N.Y.3d 277, 288 (2013);
internal quotation marks omitted; brackets in original). “Viewing
the evidence in the light most favorable to the People[,]” id.
(citation omitted), the Appellate Division “conclude that it is
legally
sufficient
to
support
the
conviction
of
the
crimes
charged[.]” Id. (citation omitted).
A habeas court reviewing a claim based on the sufficiency of
the evidence is required to consider the proof in the light most
favorable to the prosecution and must uphold the conviction if “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). The Jackson standard
-13-
acknowledges “the responsibility of the trier of fact fairly to
resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts.” Id.
As the Appellate Division noted, Petitioner’s attack on the
sufficiency of the evidence is based “primarily on his challenge to
the victim’s credibility.” Mulligan, 118 A.D.3d at 1375. “However,
a habeas petitioner’s contention that a witness’ testimony was
unworthy of belief is not reviewable in habeas proceedings since
credibility
determinations
are
the
province
of
the
jury.”
McClelland v. Kirkpatrick, 778 F. Supp.2d 316, 335 (W.D.N.Y. 2011)
(citing Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996); other
citations omitted); see also Jackson, 443 U.S. at 319. Petitioner
here is simply repeating arguments attacking Burgess’ credibility
that his trial counsel already made to the jury as trier-of-fact,
who was in the best position to observe her demeanor and assess her
veracity. “[A] federal habeas corpus court faced with a record of
historical
facts
that
supports
conflicting
inferences
must
presume—even if it does not affirmatively appear in the record—that
the trier of fact resolved any such conflicts in favor of the
prosecution, and must defer to that resolution.” Jackson, 443 U.S.
at 326. Here, the jury chose to the jury chose to believe Burgess’
testimony
identifying
Petitioner
as
the
shooter,
despite
any
purported inconsistencies. This Court must defer to the jury’s
credibility assessment. See McClelland, 778 F. Supp.2d at 335 (“It
is
beyond
dispute
that
a
reviewing
-14-
court
must
defer
to
the
trier-of-fact’s
assessments
of
witness
credibility.”)
(citing
United States v. Vasquez, 267 F.3d 79 (2d Cir. 2001)).
IV.
Erroneous Admission of Hearsay
Petitioner reasserts his claims, raised on direct appeal, that
he was denied a fair trial because (1) the prosecution introduced
the recording of the landlord’s 911 call, in which (a) the victim
identified Petitioner as the shooter, and (b) the landlord told the
dispatch operator that Petitioner was the shooter; and (2) the
trial
court
improperly
admitted
a
police
officer’s
testimony
describing his investigation into Petitioner’s whereabouts after
speaking with the victim at the hospital.
At trial, the tape of the 911 call was played for the jury. In
the conversation recorded on the tape, the 911 operator asked the
landlord who shot the victim, and the landlord initially responded,
“I guess her boyfriend.” The landlord then asked the victim to
identify
the
shooter,
the
victim
responded
by
identifying
defendant, Petitioner, and the landlord repeated that response to
the 911 operator.
On direct appeal, the Appellate Division found that the first
item of testimony was not erroneously admitted and that while the
second and third items were erroneously admitted, the error was
harmless due to the overwhelming evidence of Petitioner’s guilt.
As a first step, the Court must determine whether the State
court did reach an erroneous conclusion about New York evidence
law. Evans v. Fischer, 712 F.3d 125, 133 (2d Cir. 2013). If so, the
-15-
Court then must determine whether the errors were “so egregious as
to implicate the Fourteenth Amendment’s guarantee of due process.”
Id.
With regard to the victim’s statement on the 911 call, the
Appellate Division held that it was properly admitted because it
fell under the excited utterance exception to the hearsay rule.
“The familiar common-law hearsay exception for excited utterances,
formerly called spontaneous declarations, has been recognized by
[the New York] Court [of Appeals] for nearly a century[,]” People
v. Johnson, 1 N.Y.3d 302, 305–06 (2003), and provides that “[a]n
out-of-court statement is properly admissible under the excited
utterance exception when made under the stress of excitement caused
by an external event, and not the product of studied reflection and
possible fabrication[.]” Id.
Determining “a declarant’s mental
state—that is, whether at the time the utterance was made a
declarant was in fact under the stress of excitement caused by an
external event sufficient to still his or her reflective faculties”
involves consideration of various factors, including “the period of
time between the startling event and the out-of-court statement[,]”
id., whether the declarant has sustained a serious or traumatic
injury, id., and whether the statements were spontaneous or made in
response to questioning, People v. Cotto, 92 N.Y.2d 68, 79 (1998).
Here, after being shot four times in the face and upper torso in
the presence of her two-year-old son, she could not move for a
couple of minutes because she was in such extreme pain from her
-16-
injuries. When her young son began crying, the victim dragged
herself to the front door and called out for help. Her plea was
answered by her landlord who called 911. During the call, which
occurred about two minutes after the shooting, the victim is heard
to be moaning and crying about how much pain she was in. Her
landlord asked her who had shot her, and she replied that it was
Petitioner; her response is overheard on the tape of the call.
Although she could identify her attacker, she did not know where on
her body she had been shot, and she could not give any information
as to Petitioner’s whereabouts following the shooting. While she
was being treated by the paramedics at the scene shortly after the
911 call, the victim “was crying out that she didn’t want to die.”
Under these circumstances, the State courts correctly applied the
excited utterance exception to the rule against hearsay. See Cotto,
92 N.Y.2d at 79 (“Although the victim remained lucid for much of
his trip in the ambulance, he was in great pain, his condition only
worsened and his physical shock and trauma never subsided. It is
this extraordinary stress that prevented [him] from engaging in
reflection and gives his statements the necessary indicia of
reliability. Neither the short interval between the shooting and
the statements, nor the fact that the statements were made in
response to questioning was sufficient to interrupt the excitement
of the shooting and consequent injuries[.]”) (internal and other
citations omitted). The Appellate Division correctly applied New
York State evidentiary law in finding no error in the trial court’s
-17-
ruling on this piece of evidence.
The Court turns next to the landlord’s statement to the 911
operator, in which he repeated what the victim had told him
regarding the identity of the shooter. The Appellate Division found
that the
trial
court
erred
in
admitting
this
statement
into
evidence based on the present sense impression exception to the
hearsay
rule,
because
that
exception
requires
that
“the
out-of-court statement must be (1) made by a person perceiving the
event as it is unfolding or immediately afterward . . ., and (2)
corroborated by independent evidence establishing the reliability
of the contents of the statement[.]” Mulligan, 118 A.D.3d at 1373
(quotation omitted). Here, however, it is uncontested that the
landlord did not witness the shooting. The Court agrees with the
Appellate Division that the trial court erroneously applied New
York State evidentiary law.
The Appellate Division went on to find that the testimony by
the
landlord
identification
served
of
to
improperly
Petitioner.
bolster
Mulligan,
118
the
A.D.3d
victim’s
at
1373
(citations omitted). However, even assuming “bolstering” occurred,
“[b]olstering claims have been expressly held not to be cognizable
on federal habeas review.” Diaz v. Greiner, 110 F. Supp.2d 225, 234
(S.D.N.Y. 2000) (quotation omitted; collecting cases). “Although
bolstering is a practice prohibited in various states, including
New York, the practice is not forbidden by the Federal Rules of
Evidence and is not sufficiently prejudicial to deprive a defendant
-18-
of his due process right to a fair trial.” Vega v. Berry, No. 90
Civ. 7044(LBS), 1991 WL 73847, at *2 (S.D.N.Y. Apr. 29, 1991)
(citations omitted).
Notwithstanding
its
finding
of
improper
bolstering,
the
Appellate Division proceeded to hold the error to be harmless
because the evidence overwhelmingly established Petitioner’s guilt.
Under either harmless error standard,3 the Appellate Division’s
holding was correct. In assessing the harmlessness of an error,
courts look to “the record as a whole,” and evaluate several
factors, including “the overall strength of the prosecution’s case,
the importance of the improperly admitted evidence, and whether the
evidence was emphasized at trial.” Brown v. Keane, 355 F.3d 82, 92
(2d Cir. 2004). Here, the landlord’s testimony was of marginal
importance at best; it simply repeated the victim’s own statement,
which
appeared
on
the
911
tape,
and
which
the
jury
heard,
identifying Petitioner as the shooter. The victim then identified
3
For cases on direct appeal, New York State courts will hold an error to be
harmless if it was “harmless beyond a reasonable doubt,” meaning that, “beyond
a reasonable doubt[,] . . . the error complained of did not contribute to the
verdict obtained.” Chapman v. California, 386 U.S. 18, 24 (1967). See People v
Crimmins, 36 N.Y.2d 230, 241-42 (1975) (adopting Chapman). This is the standard
applied by the Appellate Division on Mulligan’s direct appeal. See People v.
Mulligan, 118 A.D.3d at 1373 (citations omitted). For cases on collateral review,
such as habeas petitions under 28 U.S.C. 2254, courts apply a more stringent
standard which holds that an error is harmless if it did not result in “actual
prejudice,” that is, it did not have a “‘substantial and injurious effect or
influence in determining the jury’s verdict.’” Brecht v. Abrahamson, 507 U.S.
619, 637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).
See Davis v. Ayala, 135 S. Ct. 2187, 2199, reh’g denied, 136 S. Ct. 14 (2015)
(“[A] prisoner who seeks federal habeas corpus relief must satisfy Brecht, and
if the state court adjudicated his claim on the merits, the Brecht test subsumes
the limitations imposed by [28 U.S.C. 2254(d)].”) (citation omitted).
-19-
Petitioner
again
from
the
witness
stand.
Furthermore,
the
landlord’s testimony made clear that he neither witnessed the
shooting nor observed Petitioner at the crime scene. He became
aware of the shooting only after he heard the victims’s cries for
help and saw her lying in the doorway of her apartment. Thus, there
was little to no potential for jury confusion on this issue. Under
these circumstances, the erroneous admission of this aspect of the
landlord’s conversation with the 911 dispatcher could have had no
effect on the jury’s decision.
Finally, the Court examines RPD Investigator Carr’s testimony
regarding his conversation with the victim at the hospital, which
was elicited on direct examination in response to the prosecutor’s
questions concerning Investigator Carr’s involvement in the search
for a suspect. The Appellate Division rejected as without merit
Petitioner’s argument that such evidence bolstered the victim’s
identification, “inasmuch as that testimony provided a narrative of
the events leading to [Petitioner]’s arrest[,]” which is a wellestablished exception under New York State law to the general
prohibition against bolstering evidence. See, e.g., People v.
Mendoza, 826 N.Y.S.2d 146, 146 (2d Dep’t 2006) (“[T]he police
officer’s testimony that he conducted a ‘witness identification’
and arrested the defendant after asking the complainant if ‘that
was
him’
did
not
constitute
impermissible
bolstering
of
the
complainant’s identification testimony because it was offered for
the
relevant
purpose
of
establishing
-20-
the
reasons
behind
the
officer’s actions and explaining the events which precipitated the
defendant’s arrest[.]”). The Appellate Division went on to hold,
correctly, that any error occasioned by admission of the disputed
testimony was harmless given the overwhelming evidence establishing
Petitioner’s identity as the shooter. There is simply no reasonable
possibility, much less probability, that the jury would have
returned a favorable verdict had the disputed testimony not been
entered into evidence. Within a couple minutes of having been shot,
the victim identified Petitioner as the shooter, and did not waver
in her in her identification throughout the police investigation,
pre-trial proceedings, and the trial itself, during which she was
extensively cross-examined by the defense. There was no suggestion
that the victim had any motive to falsely incriminate Petitioner.
In addition, an empty gun holster was located inside of the vehicle
registered to Petitioner, and the holster was described one which
would likely hold a semi-automatic firearm; .22-caliber shell
casings, such as would be used in a semi-automatic pistol, were
found in the apartment where the shooting occurred. Thus, even
without the RPD investigator’s testimony, the jury heard ample
evidence to explain why Petitioner became the target of the police
investigation.
V.
Cumulative Error
Petitioner reprises his claim, asserted by counsel on direct
appeal,
that
the
cumulative
effect
of
the
errors
allegedly
committed at trial deprived him of his due process rights. Te
-21-
Appellate Division “conclude[d] that [Petitioner] was not deprived
of a fair trial by the cumulative effect of the errors alleged
herein[.]” Mulligan, 118 A.D.3d at 1375 (citations omitted).
“[T]he cumulative-error rule . . . can only come into play
after errors
have
been
discovered;
if
no
one
error
requires
reversal, the whole body of error is to be assessed for prejudicial
effect.” Ponder v. Conway, 748 F. Supp.2d 183, 196 (W.D.N.Y. 2010)
(quoting Sanders v. Sullivan, 701 F. Supp. 1008, 1013 (S.D.N.Y.
1988); citing
Brumfield
v.
Stinson,
297
F.
Supp.2d
607, 621
(W.D.N.Y. 2003)). The Court has examined the record and concludes
that some of the alleged errors are not errors at all, or are not
errors subject to federal habeas corpus review. Most importantly,
Petitioner “has failed to establish inherent or actual prejudice
resulting from any of the alleged errors which are without question
open to this cumulative-error analysis.” Collins, 878 F. Supp. at
460 (footnote omitted). Therefore, the cumulative effect of the
alleged errors could not have rendered his trial “fundamentally
unfair.” Id. (citations omitted).
CONCLUSION
For the reasons discussed above, the request by Edwin Mulligan
for a writ of habeas corpus is denied, and the petition is
dismissed.
The
Court
declines
to
issue
a
certificate
of
appealability because Mulligan has not made a substantial showing
of
the
denial
of
a
constitutional
-22-
right.
See
28
U.S.C.
§
2253(c)(2).
SO ORDERED.
S/ Michael A. Telesca
___________________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
October 26, 2016
Rochester, New York
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