Roberts v. Artus
Filing
11
-CLERK TO FOLLOW UP-DECISION AND ORDER denying request for a writ of habeas corpus, dismissing the Petition, and denying a certificate of appealability. The Clerk of Court is directed to close this case. Signed by Hon. Michael A. Telesca on 10/31/16. The Clerk of Court is requested to send a copy of this Decision and Order to the pro se petitioner. (AFB)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DEYON T. ROBERTS, a/k/a, DION T.
ROBERTS,
No. 6:15-cv-06525-MAT
DECISION AND ORDER
Petitioner,
-vsDALE ARTUS, Superintendent, ATTICA
Correctional Facility,
Respondent.
INTRODUCTION
Pro se petitioner Deyon T. Roberts, a/k/a, Dion T. Roberts
(“Petitioner” or “Roberts”) seeks a writ of habeas corpus pursuant
to 28 U.S.C. § 2254, challenging a judgment of conviction entered
against him on March 4, 2011, in Erie County Court (Amico, J.) of
New York State. Petitioner was convicted, following a jury trial,
of Burglary in the Second Degree (New York Penal Law (“P.L.”) §
140.25(2)).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On the morning of September 10, 2009, Jesse Lewis (“Lewis”)
took his puppy, Tyson, out for a 45-minute walk. When he returned
to his apartment building at 608 Niagara Street in the City of
Buffalo, he paused in the doorway to let Tyson in. As he glanced
up, he saw a black male who he did not know coming out of his
apartment, carrying a crowbar. The man looked startled. When Lewis
-1-
asked what was going on, the man yelled something, and a second
black male emerged from Lewis’ apartment, holding a pistol. The men
were about 20 feet away, and the hallway was well lit. The entire
encounter lasted about 5 to 6 seconds. Lewis closed the door,
leaving Tyson behind, and went down the street, where he called 911
on his cell phone. While Lewis was on the phone, he saw the second
man, who was wearing a hat, running toward the backyard at 608
Niagara.
Buffalo
Police
Department
(“BPD”) Officer
Kenneth
Devlin
(“Officer Devlin”) spoke to Lewis at the scene, who described the
intruders as very large, well-built men. Officer Devlin searched
the backyard without success and proceeded into the next vacant
lot, where he heard some rustling over by a car. As he approached
the area, a tall black male (Petitioner) jumped out in front of
him. The man was sweaty, covered in burrs and weeds, and breathing
hard.
Officer Devlin handcuffed Petitioner and walked him to
Niagara Street to put him in the patrol car. They encountered
Lewis,
who
was
standing
in
front
the
house.
Officer
Devlin
recounted that Lewis stated, “That’s him!”
Several other BPD officers testified regarding their role in
the investigation. Officer Edwin Torres found a gym bag in the
driveway, which contained a live puppy, a crowbar, a screwdriver,
a Kevlar vest, and a pair of leather gloves. Nearby, Officer Allen
Gallagher found a loaded, jammed gun with the hammer cocked back.
-2-
Also, a watch was recovered at 608 Niagara Street. All of these
items (except the puppy) were submitted for DNA testing. A forensic
serologist testified that the right glove contained traces of DNA
matching Petitioner’s genetic profile. The watch contained DNA
consistent with Petitioner’s genetic profile, which, according to
the serologist, meant there was a 1 in 22.9 million chance of
randomly selecting a person other than Petitioner who matched that
profile.
Petitioner took the stand and testified that on the morning of
September 10, 2009, he had eaten at the Niagara Cafe at the corner
of Niagara and Pennsylvania after having worked out earlier in the
day at the park on 10th Street. He was headed to see a friend of his
wife’s to ask her if she would babysit for them so he and his wife
could have a date-night. The friend was not home, so Petitioner
walked through a field to go to the gas station to get some water.
Halfway through the field, he nearly bumped into a police officer
coming around the bend. Petitioner excused himself, but the officer
told him to stay where he was. When Petitioner asked why and what
had he done, the officer drew his gun and told him to get on the
ground. Petitioner insisted he had not done anything, but complied
with the officer, who he said was becoming hostile and louder.
Then, Lewis walked up with another police officer while Petitioner
was still lying on the ground. Petitioner heard Lewis say, “that’s
him, right.”
-3-
After being issued an Allen charge, the jury returned a
verdict convicting Petitioner and his co-defendant, Njera Wilson,
of the second count of the indictment (second degree robbery); and
acquitting them of the first count (first degree robbery).
Following a hearing, Petitioner was adjudicated a persistent
violent felony offender and sentenced to a term of 16 years to life
in prison.
Represented by counsel, Petitioner pursued a direct appeal of
his
conviction;
Petitioner
also
filed
a
pro
se
supplemental
appellate brief. The Appellate Division, Fourth Department, of New
York State Supreme Court, unanimously affirmed the conviction, and
leave to appeal to the New York Court of Appeals was denied. People
v. Roberts, 111 A.D.3d 1308, 1309 (2013), lv. denied, 23 N.Y.3d 967
(2014). Petitioner also filed four pro se motions to vacate the
judgment, and an application for a writ of error coram nobis, which
were unsuccessful.
Petitioner
then
timely
commenced
this
habeas proceeding.
Respondent answered the petition, and Petitioner filed a reply
brief.
For
the
reasons
discussed
below,
the
Court
denies
Petitioner’s request for a writ of habeas corpus and dismisses the
petition.
DISCUSSION
I.
Ineffective Assistance of Trial Counsel (Petitioner’s Points
I & II)
A.
Procedurally Defaulted Claims
-4-
Petitioner asserts a number of grounds on which trial counsel
was
ineffective.
Respondent
argues
that
some
of
them
are
procedurally defaulted under the adequate and independent state
ground doctrine. In particular, Respondent points to Petitioner’s
claims that trial counsel was ineffective in failing to move to
dismiss the indictment on “speedy trial” grounds, which Petitioner
raised in a C.P.L. § 440.10 motion. The trial court denied it,
citing two state procedural grounds, C.P.L. § 440.10(3)(c) and §
440.10(2)(c).
Respondent
argues
that
this
rendered
the
claim
procedurally defaulted from habeas review. See, e.g., Ryan v. Mann,
73 F. Supp.2d 241, 248 (E.D.N.Y. 1998) (“[T]he last state court
rendering a judgment clearly and expressly stated that its judgment
rested on two alternative state procedural bars: (1) because
petitioner failed to raise his ineffective assistance claim on
direct appeal and the claim appeared on the trial court record, he
was
automatically
barred
from
440
review
under
[C.P.L.]
§
440.10(2)(c), and (2) even if the petitioner could not have raised
the claims on direct appeal, because petitioner failed to raise
these claims in his first 440 application, the court was exercising
its discretion to bar him from raising the claims in a successive
440 application under § 440.10(3)(c). The petitioner does not
appear to argue that either procedural rule is not regularly
followed.
The
County
Court’s
dismissal
of
the
petitioner’s
ineffective assistance claim thus rested upon an independent and
-5-
adequate state ground.”) (footnote and internal citation omitted),
aff’d,
201
F.3d
432
(2d
Cir.
1999).
The
Court
agrees,
and
Petitioner concedes that these claims are procedurally barred from
habeas review. See Petitioner’s Reply (Dkt #8), p. 2 of 19.
Respondent also notes that Petitioner’s assertion that trial
counsel erroneously failed to demand a mistrial when co-defendant’s
counsel allegedly violated the Sandoval ruling has been raised for
the first time in the instant petition. Therefore, Respondent
argues, the claim was never fairly presented to the state courts
for one complete round of appellate review, and it is unexhausted.
Because it is a record-based claim, if Petitioner were to raise it
in a C.P.L. § 440.10 motion, the trial court would be obligated to
deny it
based
on
C.P.L.
§
440.10(2)(c),
rendering
the
claim
constructively exhausted, but procedurally defaulted. E.g., Reyes
v. Keane, 118 F.3d 136, 139-40 (2d Cir. 1997). Petitioner concedes
that the claim procedurally defaulted from habeas review. See
Petitioner’s Reply (Dkt #8), p. 2 of 19. The Court accordingly
dismisses both of these ineffective assistance claims as subject to
an unexcused procedural default.
B.
Exhausted Claims
Respondent concedes that Petitioner has exhausted some of his
ineffective assistance of trial counsel claims, but argues that
they are without merit.
1. Overall Lack of Zealous Representation
-6-
First, Petitioner contends vaguely that trial counsel did not
zealously represent him at trial and left unspecified decisionmaking up to co-defendant’s counsel.
“It is well established that
conclusory allegations, such as these, are insufficient to meet the
rigorous standard under Strickland v. Washington[, 466 U.S. 668
(1984)].”
Smalls
v.
McGinnis,
No.
04
CIV.0301(AJP),
2004
WL
1774578, at *23 (S.D.N.Y. Aug. 10, 2004) (citing, inter alia,
United
States
(petitioner’s
v.
Vargas,
affidavit
920
F.2d
making
167,
170
allegations
in
(2d
a
Cir.
1990)
“conclusory
fashion” failed to demonstrate that counsel’s decision not to call
a witness was unreasonable), cert. denied, 502 U.S. 826 (1991)).
Petitioner’s bare and unsupported assertions that trial counsel was
insufficiently zealous and too reliant on co-counsel fail to
overcome the Strickland presumption that counsel acted reasonably.
See Strickland, 466 U.S. at 689 (“[A] court must indulge a strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance. . . .”). This claim must be
dismissed. E.g., Matura v. United States, 875 F. Supp. 235, 237
(S.D.N.Y. 1995).
2.
Second,
Pre-Trial Discovery Issue
Petitioner
asserts
that
trial
counsel
failed
to
confront the trial court about discovery material that allegedly
was not provided, in particular, a compact disc containing crime
scene photographs, including a photograph (People’s Exhibit 62),
-7-
which purportedly contradicted the prosecution’s theory of the case
linking Petitioner to the crime. Petitioner relied on the affidavit
of Attorney Farley, who relieved Attorney Harrington prior to
sentencing, in which he stated that the file he received from
Attorney Harrington did not contain a compact disc. Petitioner
raised this claim in his first and second C.P.L. § 440.10 motions.
In the order denying the first C.P.L. § 440.10 motion, the trial
court
ruled
that
Petitioner
had
failed
to
prove
that
the
prosecution did not provide the defense with the afore-mentioned
compact disc. As the trial court noted, the prosecution submitted
proof that Attorney Harrington, who tried the case, was aware of
the disc. Further, the assistant district attorney stated under
oath that the disc was provided to the defense. The trial court
observed that in the People’s Answering Affirmation to Defendant’s
Omnibus Discovery Demands, at paragraph 9, the assistant district
attorney stated that he was “attach[ing] . . . color copies of the
crime scene pictures . . . together with a compact-disc containing
the original digital picture files.” Moreover, at no time during
trial did Attorney Harrington state that he was not provided with
the crime scene pictures or the compact disc.
In the order denying the second C.P.L. § 440.10 motion, the
trial court noted its previous ruling, and observed that the
affidavit of Attorney Farley to the effect that the file he
received did not contain a compact disc did not prove that Attorney
-8-
Harrington, the prior attorney, did not at one time possess the
disc. The trial court further observed that Petitioner failed to
submit a sworn statement from Attorney Harrington stating that he
was not provided with a copy of the compact disc. In short, the
trial
court
found
that
Petitioner’s
assertions
were
wholly
unsubstantiated.
The Court has reviewed the record, and the trial court’s
determination of the facts clearly was not unreasonable in light of
the evidence
presented,
see
28
U.S.C.
§
2254(d)(2).
Nor
has
Petitioner come forward with clear and convincing evidence, see 28
U.S.C. § 2254(e)(1), to rebut the presumption of correctness
accorded to the state court’s factual findings. This claim is
dismissed as without merit.
3.
Deficient Litigation of Identification Issue
Third, Petitioner faults trial counsel for failing to seek to
reopen the Wade hearing on the basis that
Officer Devlin, who
testified at the hearing, and Lewis, who did not testify at the
hearing,
gave
“completely
different”
accounts
of
how
an
identification was made by the victim. According to Petitioner, if
counsel had reopened the hearing, and compelled the victim to
testify, the trial court would have ruled that his identification
was inadmissible, and the victim then would have been precluded
from making an in-court identification of Petitioner. The trial
court,
in
denying
Petitioner’s
third
-9-
C.P.L.
§
440.10
motion
asserting
underpinned
this
claim,
only
by
found
it
“unsupported
to
be
“without
allegations,
basis”
and
surmise,
and
excessive speculation. . . .” The trial court also stated that an
attorney is not expected to make a motion that has “little to no
chance of success.”
“Under New York law, the trial court has discretion to reopen
a Wade hearing if ‘additional pertinent facts’ are discovered that
could not have been discovered with reasonable diligence before the
Wade
determination
and
that
go
‘to
the
issue
of
official
suggestiveness such that they would materially affect or have
affected the earlier Wade determination.’” Lynn v. Bliden, 443 F.3d
238, 249 (2d Cir. 2006) (quoting People v. Clark, 88 N.Y.2d 552,
555 (1996)). Petitioner’s argument is based solely on an alleged
discrepancy between what Officer Devlin testified he said to Lewis
at the time of the show-up, and what Lewis testified that Officer
Devlin said to him at the time. Petitioner has not demonstrated
that these are new, pertinent facts that could not have been
discovered with reasonable diligence before the Wade ruling. Thus,
Petitioner has not shown any reasonable probability that trial
counsel could have obtained a reopening of the hearing.
Even considering Petitioner’s claim on the merits, the Court
finds that there is no reasonable probably of a different outcome
had the Wade hearing been reopened. Petitioner notes that at the
Wade hearing, Officer Devlin testified that as he was escorting
-10-
Petitioner to his patrol car, Lewis, who was standing in front of
his home with
other
BPD
officers,
pointed to
Petitioner
and
announced, “That’s him!” Petitioner’s Reply to People’s Opposing
Affidavit1 (quoting Transcript of Wade Hearing (“Hrg Tr.”) at 12:612, 18:5). At trial, Lewis testified that he was in the backyard
with the police officers, who “effectuated [the] misidentification
procedure by first holding complainant back from where a supposed
suspect was, and then secondly by asking him ‘is [this] him?’, all
while [Petitioner] was handcuffed and lying on the ground. . . .”
Id. (quoting Trial Tr. at 439, 440:1-13, 23-25; 441:1-2; second
brackets in original).
An identification violates due process only when, based on the
“totality of the circumstances[,]” Neil v. Biggers, 409 U.S. 188,
196 (1972) (quotation omitted), surrounding the confrontation, it
is
“so
impermissibly
suggestive
as
to
give
rise
to
a
very
substantial likelihood of irreparable misidentification.” Id. at
197 (1972) (quotation omitted). “[T]his is a very difficult test to
meet.” United States ex rel. Williams v. LaVallee, 415 F.2d 643,
644–45 (2d
Cir.
1969)
(citation
omitted).
Here,
there
is
no
reasonable probability that even assuming the truth of Lewis’
version, the trial court would have ruled that the on-the-scene
identification was “impermissibly suggestive.” See United States v.
1
This Reply was submitted as part of Respondent’s Exhibit (“Ex.”) E, which
includes the pleadings and order filed in connection with Petitioner’s June 27,
2014 C.P.L. § 440.10 motion to vacate.
-11-
Sanchez, 422 F.2d 1198, 1200 (2d Cir. 1970) (“The police verified
Tyes’s identification of defendants by asking the street gamblers
who came up to the patrol car if Sanchez and Jones[, the suspects
who had been arrested and were sitting in the patrol car,] were
‘the guys.’ Under the circumstances presented, we think this police
conduct was reasonable and not overtly suggestive.”). Moreover,
trial counsel made the argument to the trial court at the Wade
hearing that Officer Devlin was “horribly sloppy” and that “to put
cuffs on [Petitioner] and walk him in right in front of the
complainant
is
highly
suggestive
.
.
.
and
inappropriate.”
Petitioner’s Appellate Brief2 at 4 (quoting Wade Hearing Transcript
at 30, 31-32). Because Petitioner has not made “some showing of the
likelihood for success at the hearing[,]” Lynn, 443 F.3d at 249,
this ineffective assistance of counsel claim based on the failure
to move to reopen the Wade hearing must fail. See id. at 249-50.
II.
Verdict Against the Weight of the Evidence (Petitioner’s Point
III)
Petitioner asserts, as he did on direct appeal, that the
verdict is against the weight of the evidence because the victim’s
testimony was unworthy of belief, and that the jury erroneously
failed to credit Petitioner’s version of events. The Appellate
Division rejected this contention, “not[ing] in particular that the
2
This is attached as part of Resp’t Ex. B, which includes the
appellate briefs and the Appellate Division order affirming the
conviction.
-12-
jury’s credibility determinations are entitled to great deference.
. . .” Roberts, 111 A.D.3d at 1309 (quotation marks, quotations,
and
citations
omitted).
Respondent
correctly
argues
that
Petitioner’s weight of the evidence claim presents a question of
state law that is not cognizable on federal habeas review. In his
reply brief (Dkt #8), Petitioner concedes this point. Accordingly,
Point III of the Petition, asserting a weight of the evidence
claim, is dismissed as not cognizable. E.g., Correa v. Duncan, 172
F. Supp. 2d 378, 381 (E.D.N.Y. 2001) (“A ‘weight of the evidence’
argument is a pure state law claim grounded in New York Criminal
Procedure Law § 470.15(5), whereas a legal sufficiency claim is
based on federal due process principles. . . . Accordingly, the
Court is precluded from considering the claim.”) (citing 28 U.S.C.
§ 2254(a); internal and other citations omitted).
III. Verdict Not Supported
(Petitioner’s Point IV)
by
Legally
Sufficient
Evidence
Petitioner re-asserts his claim, raised on direct appeal, that
the prosecution failed to prove beyond a reasonable doubt his
identity as the perpetrator of the burglary. The Appellate Division
rejected
this
contention
as
unpreserved,
finding
that
trial
counsel’s “motion to dismiss was not specifically directed at the
ground
advanced
on
appeal[.]”
Roberts,
111
A.D.3d
at
1309
(citations omitted). The Appellate Division did not rule in the
alternative on the merits of the claim. Respondent has not asserted
the affirmative defense that the claim is procedurally defaulted
-13-
based on the Appellate Division’s reliance on an adequate and
independent state ground. The Court accordingly proceeds to examine
the claim on the merits.
“A petitioner bears a very heavy burden in convincing a
federal
habeas
court
to
grant
a
petition
on
the
grounds
of
insufficiency of the evidence.” Policano v. Herbert, 507 F.3d 111,
116
(2d
Cir.
2007)
(alteration
and
internal
quotation
marks
omitted). Indeed, a claim of insufficient evidence must be denied
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).
To analyze the sufficiency of the evidence underlying a state
conviction, a federal habeas court looks to the state law to
determine the elements of the crime charged. Ponnapula v. Spitzer,
297 F.3d 172, 179 (2d Cir. 2002). The relevant New York statute
provides that “[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[, inter alia,] . .
. the building is a dwelling.” N.Y. PENAL LAW § 140.25.
As reasons for rejecting Lewis’ identification testimony,
Petitioner first argues that while Lewis had 5 or 6 seconds to
observe the first intruder (i.e., co-defendant Njera Wilson), Lewis
only had “one second” to observe the second man and was focused on
the gun he was holding. Second, Petitioner argues that the jury
-14-
should have weighted more heavily the forensic evidence excluding
his DNA from the duffel bag, gun, crowbar, and screwdriver, and
should have found that this provided conclusive proof that he did
not participate in the burglary. Third, Petitioner contends that
his testimony was more credible than Lewis’ testimony.
All of these arguments impermissibly ask the Court to secondguess the jury’s credibility determinations about witnesses, and to
re-weigh testimony and other trial evidence that the jury already
evaluated. In Jackson, the Supreme Court explicitly reaffirmed that
it is “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.” 443 U.S.
at
319.
Here,
the
jury
chose
to
believe
Lewis’
testimony
identifying Petitioner as one of the burglars, and to find that the
probative
value of
the
DNA
evidence
was
outweighed
by other
circumstantial evidence of Petitioner’s guilt. For instance, the
police officer who arrived on the scene 2 minutes after the 911
call testified that after first speaking with Lewis, he heard some
rustling in the weeds in the adjouning abandoned lot. As the
officer walked toward the weeds, he saw Petitioner, sweaty and
covered in vegetation; Petitioner at that point was about 30 to 40
feet away from Lewis’ residence. Although Petitioner’s DNA was not
present on some items recovered at the scene such as the crowbar
and duffel bag, it was found on others, such as the right-hand
-15-
glove found inside the duffel bag that also contained the victim’s
stolen puppy. “[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. This Court, on habeas review, “must ‘defer to the jury’s
resolution of the weight of the evidence and the credibility of the
witnesses[.]’” Kirkby v. Filion, 644 F. Supp.2d 299, 305 (W.D.N.Y.
2009) (quoting United States v. LeRoy, 687 F.2d 610, 616 (2d Cir.
1982) (citation omitted), cert. denied, 459 U.S. 1174 (1983)).
Petitioner’s legal insufficiency of the evidence claim cannot
provide a basis for habeas relief.
IV.
Correctness of the Persistent Violent
Adjudication (Petitioner’s Point V)
Felony
Offender
Prior to sentencing on the instant conviction, a class C
violent felony offense, the prosecution filed a notice pursuant to
New York Criminal Procedure Law (“C.P.L.”) § 400.16 to have the
trial court adjudicate Petitioner as a persistent violent felony
offender or PVFO based on two prior convictions (first-degree
attempted robbery under New York law on December 17, 1988; and
first-degree attempted burglary under New York law on January 24,
2002).3 Due to Petitioner’s complaints about his trial counsel, the
3
Under New York law, a person convicted of a violent felony offense who has
previously been convicted of two or more prior “violent felony offenses” is
-16-
trial judge assigned a new attorney to represent him during the
PVFO hearing, which was held on February 23, 2011. At the hearing,
at which both previous attorney’s testified, Petitioner asserted
that he had not received the effective assistance of counsel in
connection with his 1998 conviction because counsel did not advise
him of a pre-indictment plea offer or make a suppression motion. He
contended that he did not receive the effective assistance of
counsel in connection with his 2002 conviction because counsel did
not challenge his sentencing as a second violent felony offender or
file a notice of appeal. The trial judge rejected Petitioner’s
hearing testimony as not credible
and found that in both the 1998
and 2002 cases, he waived the right to appeal. The trial judge also
concluded that both convictions had been constitutionally obtained,
and Petitioner therefore would be sentenced pursuant to P.L. §
70.08(5) as a PVFO.
On direct appeal, the Appellate Division rejected Petitioner’s
contention that the trial court erred in adjudicating him as a
PVFO,
noting
that
he
was
“precluded
from
challenging
the
constitutionality of the 1998 conviction because he failed to
challenge the constitutionality of that conviction in the 2002
proceedings[.]” Roberts, 111 A.D.3d at 1309 (citation omitted).
Petitioner’s sentencing claim is barred from federal habeas
corpus review by Lackawanna County Dist. Att’y v. Coss, 532 U.S.
treated as a persistent violent felony offender. N.Y. PENAL L. § 70.08; N.Y. CRIM.
PROC. L. § 400.16.
-17-
394, 403-04 (2001) (“Coss”), which held that holding that “once a
state conviction is no longer open to direct or collateral attack
in its own right because the defendant failed to pursue those
remedies while they were available (or because the defendant did so
unsuccessfully), the conviction may be regarded as conclusively
valid. If that conviction is later used to enhance a criminal
sentence, the defendant generally may not challenge the enhanced
sentence . . . on the ground that the prior conviction was
unconstitutionally obtained.” Coss, 532 U.S. at 403. Five justices
of the Supreme Court recognized one exception to this rule: “When
an otherwise qualified . . . petitioner can demonstrate that his
current sentence was enhanced on the basis of a prior conviction
that was obtained where there was a failure to appoint counsel in
violation of the Sixth Amendment, the current sentence cannot stand
and
habeas
Wainwright,
relief
372
is
U.S.
appropriate.”
335,
(1963);
Id.
(citing
emphasis
Gideon
supplied).
v.
Here,
Petitioner was represented by counsel in connection with the 1998
and 2002 convictions. “Although he argues that [both attorneys
were] ineffective, this claim does not state a Gideon violation.”
Facen v. Cully, 787 F. Supp.2d 278, 284 (W.D.N.Y. 2011) (holding
that habeas petitioner’s claim that he was not properly adjudicated
as second felony offender at sentencing in prosecution barred by
Coss) (citing Triggs v. Chrones, C–00–4201–CW, 2007 WL 4410389, at
*11
(N.D.
Cal.
Dec.
14,
2007)
-18-
(“[T]he
Lackawanna
[v.
Coss]
exception does not apply. Petitioner does not allege that there was
a failure to appoint counsel in violation of the Sixth Amendment
right to counsel as set forth in Gideon. Petitioner was represented
by counsel during the 1982 proceedings; his claim is one for
ineffective assistance of that counsel.”)).
V.
Suggestiveness of the Identification Procedure (Petitioner’s
Point VI)
Plaintiff contends that the pretrial showup identification
procedure was unduly suggestive leading to a substantial likelihood
of misidentification, and that the Wade hearing should have been
reopened to further explore this issue. Respondent argues that this
claim is unexhausted because Petitioner never raised it in a state
court
forum,
and
that
it
also
must
be
deemed
exhausted
but
procedurally defaulted. The Court agrees. See, e.g., Bond v.
Walker, 68 F. Supp.2d 287 (S.D.N.Y. 1999) (petitioner’s claim
challenging
victim’s
line-up
identification
and
trial
identification as tainted was raised only in pro se application for
leave to appeal to state’s highest court, in form of an ineffective
assistance of appellate counsel claim; line-up issue could have
been raised on direct appeal, since the facts necessary for review
of the claim were contained in the record; because the claim could
have been but was not raised on direct appeal, it was deemed
exhausted
and
procedurally
defaulted),
adhered
to
on
reconsideration, No. 97CIV.3026(LMM), 2000 WL 460592 (S.D.N.Y. Apr.
19, 2000), aff’d, 242 F.3d 364 (2d Cir. 2000). A federal court may
-19-
not reach the merits of a procedurally defaulted claim “unless the
habeas petitioner can show ‘cause’ for the default and ‘prejudice
attributable thereto,’ or demonstrate that failure to consider the
federal
claim
will
result
in
a
fundamental
miscarriage
of
justice,’” i.e., a showing of “actual innocence.” Harris v. Reed,
489 U.S. 255, 262 (1989) (citations omitted). Petitioner did not
respond
to
Respondent’s
arguments
concerning
the
lack
of
exhaustion, and has not attempted to establish cause and prejudice
to excuse the procedural default, or to make a showing of actual
innocence. Accordingly, the Court dismisses this claim as subject
to an unexcused procedural default.
CONCLUSION
For the reasons discussed above, the request by Deyon T.
Roberts, a/k/a, Dion T. Roberts, for a writ of habeas corpus is
denied, and the petition is dismissed. The Court declines to issue
a certificate of appealability because Roberts has not made a
substantial showing of the denial of a constitutional 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 31, 2016
Rochester, New York
-20-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?