Inman v. Capra
Filing
17
DECISION AND ORDER re 1 Petition for Writ of Habeas Corpus filed by Emanuel Inman. The application under 28 U.S.C. § 2254 is denied. The Clerk of the Court is directed to close this case. Pursuant to 28 U.S.C. § 2253, the Court decline s to issue a certificate of appealability, since Petitioner has not made a substantial showing of the denial of a constitutional right. The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962). Further requests to proceed on appeal in forma pauperis should be directed on motion to the United Stat es Court of Appeals for the Second Circuit in accordance with Rule 24 of the Federal Rules of Appellate Procedure. Signed by Hon. Charles J. Siragusa on 12/30/20. Copy of this NEF and decision and order mailed to pro se petitioner at Attica.(KAP)-CLERK TO FOLLOW UP-
Case 6:17-cv-06218-CJS Document 17 Filed 12/30/20 Page 1 of 22
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_________________________________________
EMANUEL INMAN,
Petitioner,
DECISION AND ORDER
-vs6:17-CV-6218 CJS
MICHAEL CAPRA,
Respondent.
_________________________________________
INTRODUCTION
Petitioner Emanuel Inman (“Inman” or “Petitioner”) brings this pro se petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his convictions after a
jury trial, in New York State Supreme Court, Monroe County, of two counts of robbery in
the first degree (Penal Law (“PL”) § 160.15[2], [4] ), two counts of criminal possession of
a weapon in the second degree (PL § 265.03[1][b]; [3]), and of one count of reckless
endangerment (PL § 120.25). The Petition asserts two federal constitutional claims: 1)
denial of Petitioner’s right to effective assistance of counsel; and 2) denial of Petitioner’s
right to due process and equal protection. For the reasons explained below, the petition
for a writ of habeas corpus is denied.
BACKGROUND
As mentioned above, following a jury trial in New York State Supreme Court,
Monroe County, Petitioner was convicted of two counts of robbery in the first degree, two
counts of criminal possession of a weapon in the second degree, and of one count of
reckless endangerment. Petitioner did not testify at trial. The trial court sentenced
Petitioner, as a second violent felony offender, to determinate terms of 17 ½ years
1
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incarceration and 5 years post-release supervision on each of the robbery counts,
determinate terms of 15 years incarceration and 5 years post-release supervision on each
of the weapons counts, and an indeterminate term of 3 ½ to 7 years incarceration on the
reckless endangerment count, all to run concurrently.
The crimes took place in the parking lot of a Top’s supermarket in the City of
Rochester, at the intersection of Winton Road and Blossom Road. The evidence at trial,
viewed in the light most-favorable to the prosecution, indicated that on the afternoon of
July 30, 2010, a clear and sunny day, Petitioner, a thin black male approximately 6’ 2”
tall, approached a man who was smoking a cigarette and texting on his phone while
standing beside his car, which was parked approximately 150 yards from the entrance of
the supermarket. Petitioner put a gun to the man’s throat and said, “Give me what you’ve
got,” and then began going through the man’s pockets. 1 As this was happening, a married
couple, who had just driven into the parking lot, observed the robbery occurring and began
honking their car horn to attract attention and/or to scare off Petitioner. Petitioner, who
had taken the man’s wallet containing approximately $200, began to flee, and, realizing
that the couple in the car was following him, turned and fired his pistol several times at
the car, striking it twice and injuring the wife. Petitioner dropped his baseball cap as he
was fleeing. Analysis of the hat found a mixture of DNA from several persons, to which
Petitioner could not be excluded as a contributor. A witness from the Monroe County
Crime Laboratory, who compared the DNA evidence taken from the hat with a DNA
sample taken from Petitioner, testified that one of the DNA profiles found on the hat
matched Petitioner’s DNA at all points tested, and that the likelihood of the DNA on the
1
The robbery victim indicated to police that the robber was thin and approximately six feet tall, and was
wearing a black baseball cap, black shirt and black shorts.
2
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hat belonging to a black male unrelated to Petitioner was less than one in 206 million. 2 A
witness across the parking lot heard the gunshots and then saw two black males, one of
whom was tall and thin, run from the direction of the shots and go behind a building. The
witness got in his car and followed the tall thin black male, who had emerged from behind
the building, until he walked into a nearby apartment complex. 3 A police K-9 officer later
used her tracking dog to follow a scent which the dog picked up at the point where the
two black males had crossed the street. The dog followed the scent along the same path
which the tall thin black male had walked but lost the scent in the parking lot of the
apartment complex. A witness who had been standing in the apartment complex’s
parking lot indicated to police that he had seen a black male get into a blue car, possibly
a Chevy Lumina, being driven by a white male, near the spot where the K-9 dog had lost
the scent. However, that witness could not recall the license plate of the blue car. When
police arrested Petitioner several months later 4 at his apartment, they photographed a
blue Chevy Lumina parked in the driveway that was registered to another individual who
resided at that same address. Except for the robbery victim, who had been face to face
with the robber, none of the other witnesses could identify Petitioner as the black male
whom each saw. 5
2
Trial Transcript at pp. 510-514.
According to this witness, the tall thin black male was wearing a white shirt and blue shorts, and was
approximately six feet tall and weighed approximately 180 pounds.
4 Petitioner’s arrest came about in the following manner: Police showed the robbery victim at least two
photo arrays of suspects shortly after the robbery. The victim did not select anyone from those arrays,
though he said that two of the photos resembled the robber somewhat. After conducting DNA analysis on
the hat, police got a “hit” on Petitioner’s DNA, which was already in a DNA database. Police then showed
the robbery victim another photo array containing a photo of Petitioner, and the victim selected
Petitioner’s photo. The trial court later suppressed that photo array as being unduly suggestive, since the
background of Petitioner’s photo was different from the other photos, but ruled that the victim had an
independent basis to make an in-court identification.
5 In the brief submitted in support of his direct appeal, Petitioner correctly observed that, “[t]hree
witnesses saw the incident [robbery]. Two witnesses saw the flight of possible suspects. But only [the
robbery victim] identified Mr. Inman as the perpetrator.” It is also, true, though, that the other four
3
3
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As just mentioned, at trial there were two main pieces of evidence connecting
Petitioner to the crime, namely, the identification by the robbery victim and the DNA
evidence from the hat. Defense counsel attempted to discredit the robbery victim’s
identification by suggesting that his testimony concerning the reason why he had been in
the parking lot (to buy groceries) was false. In particular, defense counsel argued that,
because the robbery victim, who lived in the suburbs, had come into Rochester and had
parked a significant distance away from the entrance of the supermarket while carrying a
relatively large amount of cash, it was more likely that he was actually in the parking lot
to purchase drugs. 6 Further in that regard, defense counsel brought out that the robbery
victim, who was approximately thirty years of age, had indicated that he did not feel scared
during the robbery, and that he had admitted to smoking marijuana as a teenager and to
having engaged in certain criminal mischief while still in high school. Defense counsel
suggested that the alleged drug deal had “gone bad,” and had turned into a robbery, and
that the robbery victim had intentionally misidentified Petitioner as the robber in order to
avoid implicating the actual robber, i.e., his dealer/supplier.
Defense counsel also attempted to discredit the testimony of the witnesses by
pointing out that several of them had described the robber as having a dark complexion,
while Petitioner had what counsel described as a lighter complexion. Counsel further
challenged the accuracy of the robbery victim’s identification by noting that the interaction
witnesses never identified anyone else as the perpetrator; they simply all indicated that they could not
identify the robber except to describe him generally as a tall and thin black male.
6 The robbery victim indicated that he was in Rochester to pick up his girlfriend, who worked at a
pharmacy located in the same shopping plaza as the supermarket. The victim further indicated that he
was carrying cash because it had been a Friday and a payday, and that he parked a distance from the
entrance to the store because he intended to smoke a cigarette before going into the store.
4
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was brief and likely stressful, and by asserting that the description the victim gave to the
police did not match Petitioner’s appearance. 7
Defense counsel also attempted to discredit the DNA evidence in several ways,
such as by challenging the chain of custody of the hat, 8 by pointing out discrepancies in
the case-identification numbers on the evidence bag, and by arguing that the DNA
evidence failed to positively connect Petitioner to the hat.
Defense counsel also
challenged the evidence concerning the blue Chevy Lumina, by eliciting that the witness
in the apartment complex parking lot initially told police only that the car might have been
a Lumina. In fact, Defense counsel strenuously argued to the jury that the testimony
concerning the two black males seen crossing the street, and the testimony concerning
the blue Chevy Lumina, amounted to a “red herring chase by the prosecution . . . that
may have absolutely nothing to do with the case.” 9
Counsel further argued that the police investigation had been shoddy and
unreliable, arguing for example that, in addition to the alleged mishandling of the DNA
evidence the police had failed to obtain video evidence that might have captured the
robbery.
In that regard, counsel demonstrated that the police had obtained video
surveillance from the supermarket, but from the wrong section of the parking lot. Counsel
further argued that the police had not bothered to have the tracking dog sniff the hat,
which suggested that the hat was irrelevant to the investigation.
7
See, e.g., Trial Transcript at p. 596 (“[The victim’ comes into court 16 months later and says, despite
never having seen this person who robs him [before], and based on three minutes or less of very stressful
interaction, and giving a description of his assailant at wide variance with Emanuel Inman, at variance
with respect to height, [complexion and facial hair].”)
8 Counsel argued to the jury, for example, that, “[W]hatever this DNA evidence says, it’s not entitled to
any weight whatsoever if you have no reason to believe this evidence was handles properly by Officer
Traverzo, who you never heard from.” Trial Transcript at p. 608.
9 Trial Transcript at p. 606.
5
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Finally, Defense counsel put on an alibi witness, Petitioner’s former girlfriend, who
testified that around the date of the robbery Petitioner had generally spent his afternoons
with her, though she could not recall whether he had been with her on the afternoon of
the robbery.
Following his conviction, Petitioner pursued two collateral attacks pursuant to New
York Criminal Procedure Law (“CPL”) § 440.10 and a direct appeal. The two § 440.10
motions raised issues that were mostly unrelated to those asserted in the subject habeas
petition, though the second such motion argued, in part, that trial counsel had been
ineffective in three specific ways: 1) he failed to properly cross-examine the witness who
had honked his car horn at the robber; 2) he failed to argue that Petitioner had been
unlawfully arrested; and 3) he failed to introduce evidence concerning a photo array
(resulting in a positive identification of Petitioner by the robbery victim) that had been
suppressed as unduly suggestive. The trial court denied both applications and in each
of those instances the New York State Supreme Court, Appellate Division Fourth
Department (“the Appellate Division”) denied leave to appeal.
Petitioner’s direct appeal to the Appellate Division asserted four arguments: 1) trial
counsel was ineffective for pursuing the “drug-deal-gone-bad” theory of defense, rather
than simply attempting to show that the robbery victim’s identification was mistaken; 2)
trial counsel was ineffective in challenging the DNA evidence; 3) the trial court should not
have admitted the DNA evidence since the People never established chain of custody of
the hat, and, in particular, that the hat, and any DNA evidence thereon, was in an
“unchanged condition” from when it was found; 10 and, 4) the trial court should not have
10
Petitioner argued to the Appellate Division that while the hat may not have been fungible evidence, the
DNA evidence on the hat was fungible since it could have been transferred onto the hat somehow.
Petitioner essentially indicated that the evidence technician who processed the hat for DNA evidence
6
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admitted the photo of the blue Chevy Lumina, since the photo was irrelevant insofar as it
was never established that Petitioner was the person seen getting into the blue car on the
day of the robbery, or that the blue Chevy Lumina in the photo was the same car observed
that day. The first two arguments were based on state law and federal constitutional law,
while the third and fourth arguments were based solely on state evidentiary law. The
Appellate Division rejected Petitioner’s arguments and affirmed his convictions based
upon New York law. The New York Court of Appeals subsequently denied leave to
appeal.
On April 11, 2017, Petitioner filed the subject habeas petition, which, as noted
earlier, purports to assert two federal claims: 1) denial of his right to effective assistance
of trial counsel; and, 2) denial of his right to due process and equal protection. Essentially,
the petition combines the four arguments raised in Petitioner’s direct appeal into these
two arguments, and re-casts them as alleging violations of Petitioner’s federal
constitutional rights, rather than as violations of state law.
More specifically, the Petition alleges that trial counsel was ineffective in two
respects: 1) he pursued an “unreasonable” theory of defense, by emphasizing the “drugdeal-gone-bad theory “rather than attempting to establish that the robbery victim’s
identification was merely mistaken; 11 and 2) he made poor arguments concerning the
DNA evidence. The Petition contends that the state court unreasonably applied federal
twelve days after the crime had no way of knowing whether the hat was then in the same condition which
it had been in when it was collected. Petitioner asserted that the only person who could establish the first
necessary link in the chain of custody was the evidence technician who collected the hat at the crime
scene, who did not testify at trial because he was ill.
11 Petitioner contends that the drug-deal-gone-bad theory was unreasonable because it was untrue and
because it was not supported by the facts. Petitioner asserts that it would have made more sense for
defense counsel to attempt to prove that the robbery victim’s identification was mistaken, since no arrest
was made for three months, no physical lineup was conduct, the robbery was brief, the victim would have
been under stress during the robbery, the victim might have been distracted by the witnesses who
honked their car horn, and the victim and perpetrator were of different races.
7
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constitutional law when analyzing the ineffective-assistance claims, by “overemphasiz[ing] those areas” where trial counsel did a good job, rather than focusing on
the prejudice to Petitioner caused by counsel’s mistakes.
The Petition further alleges that the trial court violated Petitioner’s “rights to Due
Process and Equal Protection” by admitting the DNA evidence without testimony from the
evidence technician who collected the hat, who was ill at the time of trial. 12 Similarly, the
Petition contends that the trial court’s admission of the photo of the blue Chevy Lumina
violated Petitioner’s rights to Due Process and Equal Protection, since any connection
between Petitioner and the car was speculative, and the photo was either irrelevant or its
probative value was outweighed by the danger of jury confusion or undue prejudice. See,
id. at p. 39 (“[The trial court erred in failing to determine whether the probative value of
the evidence was ‘substantially outweighed by the danger of unfair prejudice,’ thereby
violating Petitioner’s constitutional rights to due process and equal protection.”). 13
Finally, the Petition contains one additional argument that was not raised in the
direct appeal or state-court collateral attacks, namely, that trial counsel was ineffective in
failing to properly investigate his alibi defense. The Petition, though, does not refer to the
alibi testimony from Petitioner’s former girlfriend offered at trial. Rather, the Petition
12 The Petition states in pertinent part: “Testimony concerning the initial collection of fungible evidence by
government agents is an indispensable step for establishing the admissibility of any scientific testing of
that evidence. In other words, when the ‘condition’ of the evidence may be easily changed without such
change being readily apparent to an observer, proper preserving and handling of that fungible evidence is
essential before the People can establish the relevance and reliability of the test results. *** In the case
at bar, no competent proof established the proper start of an admissible chain, and therefore, the lower
court clearly erred in allowing DNA test results to be received into evidence, thereby violating Petitioner’s
constitutional rights to Due Process and Equal Protection.” Petition, attached brief at p. 36.
13 At the same time, however, Petitioner argues that the evidence concerning the blue Chevy Lumina was
potentially beneficial to his defense, since it could have been used to explain how the hat, bearing his
DNA, was found at the crime scene. That is, Petitioner argues that defense counsel should have tried to
show that the person to whom the car was registered, who resided at Petitioner’s address, may have
committed the crime while wearing a hat that Petitioner had previously worn.
8
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asserts that counsel failed to investigate other unidentified alibi “witnesses.” See, Petition
at p. 40 (“[D]efense counsel did not properly investigate his alibi defense or the witnesses
in support thereof.”). However, the Petition does not allege any particular failure with
regard to the investigation of an alibi.
Respondent opposes the petition. With regard to the ineffective-assistance claims,
Respondent contends that the claims involving the “drug-deal-gone-bad defense” and
counsel’s handling of the DNA evidence lack merit, while the claim involving counsel’s
alleged failure to investigate an alibi defense is both unexhausted (though not
procedurally barred) and meritless. As for the due process and equal protection claims,
Respondent maintains that Petitioner’s arguments are unexhausted, procedurally barred,
non-cognizable and meritless.
Petitioner filed a reply in which he insists that the claim involving counsel’s alleged
failure to investigate an alibi defense is exhausted, since his second § 440.10 motion in
state court asserted that defense counsel had “failed in every way to investigate all the
particulars surrounding [the] case.”
The Court has considered the parties’ submissions and the entire record.
DISCUSSION
Petitioner’s Pro Se Status
Since Petitioner is proceeding pro se, the Court has construed his submissions
liberally, “to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d
787, 790 (2d Cir.1994).
Evidentiary Hearing Not Required
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Pursuant to Rule 8 of Rules Governing Habeas Corpus cases under Section 2254
in the United States District Courts and upon review of the answer, transcript and record,
the Court determines that an evidentiary hearing is not required.
Section 2254 Principles
Petitioner brings this habeas corpus petition pursuant to 28 U.S.C. § 2254, and the
general legal principles applicable to such a claim are well settled.
As amended by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) and interpreted by the Supreme Court, 28 U.S.C. § 2254—the
statutory provision authorizing federal courts to provide habeas corpus relief
to prisoners in state custody—is “part of the basic structure of federal
habeas jurisdiction, designed to confirm that state courts are the principal
forum for asserting constitutional challenges to state convictions.”
Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 787, 178 L.Ed.2d 624
(2011). A number of requirements and doctrines . . . ensure the centrality
of the state courts in this arena. First, the exhaustion requirement ensures
that state prisoners present their constitutional claims to the state courts in
the first instance. See id. (citing 28 U.S.C. § 2254(b)). Should the state court
reject a federal claim on procedural grounds, the procedural default doctrine
bars further federal review of the claim, subject to certain well-established
exceptions. See generally Wainwright v. Sykes, 433 U.S. 72, 82–84, 97
S.Ct. 2497, 53 L.Ed.2d 594 (1977). If the state court denies a federal claim
on the merits, then the provisions of § 2254(d) come into play and prohibit
federal habeas relief unless the state court's decision was either: (1)
“contrary to, or involved an unreasonable application of, clearly established
Federal law,” or (2) “based on an unreasonable determination of the facts
in light of the evidence presented in the State court.” 28 U.S.C. § 2254(d)(1)(2). Finally, when conducting its review under § 2254(d), the federal court is
generally confined to the record before the state court that adjudicated the
claim. See Cullen v. Pinholster, ––– U.S. ––––, 131 S.Ct. 1388, 1398–99,
179 L.Ed.2d 557 (2011).
Jackson v. Conway, 763 F.3d 115, 132 (2d Cir. 2014). As just mentioned, regarding
claims that were decided on the merits by state courts,
a federal court may grant habeas corpus relief to a state prisoner on a claim
that was adjudicated on the merits in state court only if it concludes that the
10
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state court's decision “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States” or “was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d)(1)–(2).
A state court decision is contrary to clearly established Federal law if the
state court arrives at a conclusion opposite to that reached by the Supreme
Court on a question of law or if the state court confronts facts that are
materially indistinguishable from a relevant Supreme Court precedent and
arrives at a result opposite to the Supreme Court's result.
A state court decision involves an unreasonable application of clearly
established Federal law when the state court correctly identifies the
governing legal principle but unreasonably applies it to the facts of the
particular case. To meet that standard, the state court's decision must be
so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement. It is well established in this circuit that the objectively
unreasonable standard of § 2254(d)(1) means that a petitioner must identify
some increment of incorrectness beyond error in order to obtain habeas
relief.
Santana v. Capra, No. 15-CV-1818 (JGK), 2018 WL 369773, at *7–8 (S.D.N.Y. Jan. 11,
2018) (Koeltl, J.) (citations and internal quotation marks omitted).
Unexhausted and Procedurally Defaulted Claims
Respondent
contends
that
one
of
Petitioner’s
claims
(the
ineffective
assistance/alibi claim) is unexhausted but not procedurally defaulted, while two other
claims (the due process/equal protection claims) are unexhausted and procedurally
defaulted, and that in any event all of those claims lack merit. The applicable legal
principles are clear:
If anything is settled in habeas corpus jurisprudence, it is that a federal court
may not grant the habeas petition of a state prisoner “unless it appears that
the applicant has exhausted the remedies available in the courts of the
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State; or that there is either an absence of available State corrective
process; or the existence of circumstances rendering such process
ineffective to protect the rights of the prisoner.” 28 U.S.C. § 2254(b)(1). To
satisfy § 2254's exhaustion requirement, a petitioner must present the
substance of “the same federal constitutional claim[s] that he now urges
upon the federal courts,” Turner v. Artuz, 262 F.3d 118, 123-24 (2d
Cir.2001), “to the highest court in the pertinent state,” Pesina v. Johnson,
913 F.2d 53, 54 (2d Cir.1990).
When a claim has never been presented to a state court, a federal court
may theoretically find that there is an “absence of available State corrective
process” under § 2254(b)(1)(B)(i) if it is clear that the unexhausted claim is
procedurally barred by state law and, as such, its presentation in the state
forum would be futile. In such a case the habeas court theoretically has the
power to deem the claim exhausted. Reyes v. Keane, 118 F.3d 136, 139
(2d Cir.1997). This apparent salve, however, proves to be cold comfort to
most petitioners because it has been held that when “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
must deem the claims procedurally defaulted. Coleman v. Thompson, 501
U.S. 722, 735 n. 1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).
***
Dismissal for a procedural default is regarded as a disposition of the habeas
claim on the merits. . . . For a procedurally defaulted claim to escape this
fate, the petitioner must show cause for the default and prejudice, or
demonstrate that failure to consider the claim will result in a miscarriage of
justice (i.e., the petitioner is actually innocent). Coleman, 501 U.S. at 74850, 111 S.Ct. 2546 (1991).
Aparicio v. Artuz, 269 F.3d 78, 89–90 (2d Cir. 2001).
Where a claim is unexhausted but not procedurally barred, meaning that it could
still be raised in state court, a district court may stay the action to allow the petitioner to
exhaust the claim if, inter alia, it is not plainly meritless. See, Woodard v. Chappius, 631
F. App'x 65, 66 (2d Cir. 2016) (“Under Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528,
161 L.Ed.2d 440 (2005), a district court abuses its discretion in denying a stay to exhaust
12
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claims in a mixed petition if the unexhausted claims are not plainly meritless, if the
petitioner has good cause for failing to exhaust, and if the petitioner did not engage in
abusive or dilatory litigation tactics. Id. at 277–78, 125 S.Ct. 1528.”). However, where a
stay is not appropriate, the district court may deny the unexhausted claim if it is meritless.
See, e.g., Wilson v. Graham, No. 9:17-CV-0863 (BKS), 2018 WL 6001018, at *6
(N.D.N.Y. Nov. 15, 2018) (“A habeas court may, however, deny on the merits a habeas
petition containing unexhausted claims if those claims are plainly meritless.”).
Trial Counsel’s Alleged Failure to Investigate an Alibi
Respondent contends that the claim involving counsel’s alleged failure to
investigate an alibi defense is unexhausted, though not procedurally barred, and
meritless. The Court agrees. To begin with, the claim is unexhausted since it was not
raised in Petitioner’s direct appeal or his state-court collateral attacks. Petitioner disputes
this and maintains that the argument was included in his second § 440.10 motion, insofar
as he asserted that trial counsel failed to properly investigate any aspect of the case.
However, the Court disagrees. As mentioned earlier, that § 440.10 motion asserted that
trial counsel was ineffective in three specific ways: 1) he failed to properly cross-examine
the witness who had honked his car horn at the robber; 2) he failed to argue that Petitioner
had been unlawfully arrested; and 3) he failed to introduce evidence concerning a photo
array (resulting in a positive identification of Petitioner by the robbery victim) that had
been suppressed as unduly suggestive. To the extent that there was an argument in the
§ 440.10 motion that trial counsel failed to perform a proper investigation, it was in the
context of those three claims.
Petitioner did not allege that trial counsel was also
ineffective for failing to investigate an alibi defense, either in his 440.10 motion directed
13
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to the trial court or in his application to the Appellate Division for leave to appeal, and
neither of those courts discussed such a claim. Accordingly, the claim is unexhausted.
The Court further agrees that the claim is not procedurally barred, since Petitioner
could still file another § 440.10 motion in state court asserting the claim. However, the
Court declines to stay the action to allow Petitioner to return to state court and exhaust
the claim. In that regard, Petitioner has not requested such relief, and the record does
not support granting such relief in any event since the claim is plainly meritless. As to this
last point, the Petition states only that, “Defendant asserts that defense counsel did not
properly investigate his alibi defense or the witnesses in support thereof.”14 The Petition
does not provide any further information, such as who the alleged alibi “witnesses” are,
or how they could have provided Petitioner with an alibi, 15 or how counsel supposedly
failed to investigate.
The “claim” is simply a bald assertion unsupported by facts.
Consequently, the Court denies the claim as plainly meritless.
The Equal Protection and Due Process Claims
Respondent further maintains that the due process and equal protection claims
are unexhausted and procedurally barred, non-cognizable and meritless. The Court
agrees that the claims are procedurally defaulted, and therefore dismisses them. In this
regard, the claims are not exhausted since Petitioner never raised them in the state
courts. That is, Petitioner never argued, in his § 440.10 motions or his direct appeal, that
the trial court’s admission of evidence violated his federal constitutional rights to due
process or equal protection. Rather, as mentioned earlier, to the extent that Petitioner
14
Petitioner’s Memo of Law attached to Petition, at p. 40.
The Court observes that the Defense did put on an alibi witness, Petitioner’s girlfriend, though she
could not definitively provide a true alibi. At most, she indicated that Petitioner was often with her during
afternoons around the date of the robbery. However, the Petition does not allege that trial counsel was
ineffective with regard to his investigation of this alibi witness.
15
14
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argued in the state courts that the trial court had improperly admitted the DNA evidence
and the photo of the blue Chevy Lumina, he did so only on the basis of state evidence
law. Consequently, the claims are unexhausted. See, Richardson v. Superintendent of
Mid-Orange Corr. Facility, 621 F.3d 196, 201 (2d Cir. 2010) (“Exhaustion requires that
the prisoner ‘fairly present’ the federal claim ‘in each appropriate state court (including a
state supreme court with powers of discretionary review).’ Baldwin v. Reese, 541 U.S. 27,
29, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004) (internal quotation marks and citation omitted).
A prisoner has not fairly presented a federal claim before a state court if the federal claim
is not mentioned in the prisoner's state court brief. See id. at 32, 124 S.Ct. 1347.”).
The claims, which concern evidentiary rulings by the trial court on the record, are
also now procedurally barred under New York law since they could have been raised in
Petitioner’s direct appeal. It would therefore be futile for Petitioner to attempt to raise
them in a new § 440.10 motion. 16 Accordingly, the claims are procedurally defaulted.
Moreover, Petitioner has not attempted to make the necessary showing (that there was
cause for the default and prejudice, or that failure to consider the claim will result in a
miscarriage of justice because he is actually innocent) that would allow the Court to
consider the defaulted claims. Nor does the record support such relief. Consequently,
the Court dismisses the due process and equal protection claims as procedurally
defaulted.
16
See, Jackson v. Conway, 763 F.3d 115, 143–44 (2d Cir. 2014) (“Jackson has no further state avenues
in which to press this issue because he has completed his direct appeal and the nature of the claim is
apparent from the face of the record, meaning that he would be barred from raising it in a motion to
vacate the judgment. See N.Y.Crim. Proc. Law § 440.10(2)(c) (stating that the court “must deny” a §
440.10 motion when sufficient facts appear on the record to permit appellate review of the claim and the
defendant unjustifiably failed to raise that issue on direct appeal); see also Sweet v. Bennett, 353 F.3d
135, 140 (2d Cir.2003) (applying section 440.10(2)(c) to claims raised for the first time in federal habeas
petition). For these reasons, we deem this issue exhausted but procedurally defaulted, see Sweet, 353
F.3d at 140, and do not consider it when assessing the prosecutorial misconduct claim.”) (footnote
omitted).
15
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The Court will now consider the remaining ineffective-assistance claims, which,
respondent concedes, were properly exhausted.
Ineffective Assistance of Counsel
In addition to the now-dismissed failure-to-investigate-alibi claim, the Petition also
contends that trial counsel provided ineffective assistance, in violation of Petitioner’s Sixth
Amendment rights, in two ways: 1) by pursuing the “drug-deal-gone-bad” theory of
defense, rather than simply attempting to show that the robbery victim’s identification was
mistaken; and, 2) by failing to make better efforts to challenge the DNA evidence.
(Respondent acknowledges that these claims are exhausted, but contends that they lack
merit.) The Appellate Division rejected these same arguments, stating in pertinent part:
[D]efendant contends that he was denied effective assistance of counsel.
We reject that contention. Viewing defendant’s representation in its entirety,
we conclude that defendant was afforded meaningful representation. It is
well settled that disagreements over trial strategy is not a basis for a
determination of ineffective assistance of counsel. In this case, the alleged
instances of ineffective are largely based on his hindsight disagreements
with defense counsel’s trial strategies, and defendant failed to meet his
burden of establishing the absence of any legitimate explanations for those
strategies. To the extent that defendant contends that defense counsel was
ineffective for failing to object to the prosecutor’s remarks during
summation, that contention is without merit inasmuch as the prosecutor’s
comments were fair comment on the evidence and did not constitute
prosecutorial misconduct.
State Record at p. 282 (citations omitted). Petitioner contends that in this regard,
the state court unreasonably applied federal constitutional law by “overemphasiz[ing] those areas” where trial counsel did a good job, rather than focusing
on the prejudice to Petitioner caused by counsel’s mistakes.
The familiar test set forth in Strickland v. Washington, 466 U.S. 668 (1984),
for evaluating an ineffective assistance of counsel claim has two prongs. The first
16
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requires showing that counsel's performance “fell below an objective standard of
reasonableness.” Id. at 688, 694. “Constitutionally effective counsel embraces a
‘wide range of professionally competent assistance,’ and ‘counsel is strongly
presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.’” Greiner v. Wells,
417 F.3d 305, 319 (2d Cir. 2005) (quoting Strickland, 466 U.S. at 690). Fulfilling
the second prong of an ineffective assistance claim requires a showing of prejudice
which translates to “a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S.
at 694. “The habeas petitioner bears the burden of establishing both deficient
performance and prejudice.” Greiner, 417 F.3d at 319 (citing United States v.
Birkin, 366 F.3d 95, 100 (2d Cir. 2004)).
“Without proof of both deficient
performance and prejudice to the defense, the Supreme Court has said, it cannot
be shown that the conviction resulted from a breakdown in the adversary process
that rendered the result of the proceeding unreliable, and the conviction should
therefore stand.” Waiters v. Lee, 857 F.3d 466, 477 (2d Cir. 2017) (citations
omitted).
In this context, “’[s]trategic choices made by counsel after thorough
investigation ... are virtually unchallengeable,” and there is a strong presumption
that counsel's performance falls “within the wide range of reasonable professional
assistance.” Gersten v. Senkowski, 426 F.3d 588, 607 (2d Cir. 2005) (quoting
Strickland at 104 S.Ct. 2052).
In considering the quality-of-representation prong, i.e., whether counsel's
performance fell below an objective standard of reasonableness, a court
must bear in mind both that counsel has a duty to bring to bear such skill
17
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and knowledge as will render the trial a reliable adversarial testing process,
and that counsel must have wide latitude in making tactical decisions. Thus,
the court must make every effort to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel's challenged
conduct, and to evaluate the conduct from counsel's perspective at the time,
and must indulge a strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance. Actions or omissions
by counsel that might be considered sound trial strategy do not constitute
ineffective assistance.
Henry v. Poole, 409 F.3d 48, 63 (2d Cir. 2005) (citing Strickland, internal quotation
marks omitted).
Petitioner argues that to prevail on the performance prong of the Strickland
test, he must show that the defense theory pursued by counsel was “objectively
reasonable,” and he must identify a “plausible alternative strategy.” 17 Petitioner
maintains that he has done both of these things, since he has shown that trial
counsel pursued an objectively unreasonable theory, namely, the “drug-deal-gonebade” theory, while ignoring the plausible alternative theory of “mistaken
identification.” Indeed, Petitioner asserts that “defense counsel presented his
‘drug-deal-gone-bad’ theory as the jury’s exclusive basis for an acquittal.” 18
However, this argument is factually incorrect. Rather, Defense counsel pursued a
four-pronged approach designed to show that Petitioner was mistakenly identified,
of which the “robbery-gone-bad argument” was just one facet. Specifically, the
four-pronged approached consisted of the following: 1) discrediting the witnesses
to the robbery, by suggesting that robbery victim had a motive to identify someone
17
Petition, attached memo of law at p. 13.
Petition, attached memo of law at p. 17 (emphasis added); see also, id. (Naturally, jurors look to the
trial attorneys for answers. From start to finish, however, counsel gave the jurors one implausible answer:
this incident was a ‘drug-deal-gone bad.’”) (emphasis added).
18
18
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other than the real robber (i.e., to protect his drug dealer), but also by challenging
other aspects of the witnesses’ identifications such as their descriptions of the
robber’s height, complexion, facial hair and clothing; 2) challenging the
investigation performed by the police, such as by showing that they had failed to
obtain surveillance video from the section of the parking lot in which the robbery
occurred or to allow the tracking dog to obtain a scent from the baseball cap; 3)
challenging the DNA evidence by attacking the chain of custody and by
emphasizing that the evidence did not conclusively establish Petitioner as the
contributor to the DNA mixture found on the hat; and 4) presenting an alibi witness.
The Court also disagrees with Petitioner’s assertion that the drug-dealgone-bad theory was completely unsupported by the facts. 19 As defense counsel
pointed out, there were some odd features of the robbery victim’s story that
arguably supported such a theory, such as the various reasons the victim gave for
having parked so far away from the entrance to the store in a relatively remote
section of the parking lot, the fact that he was carrying a relatively large amount of
cash and the fact that he claimed not to have been afraid during the robbery
despite having a pistol pressed to his neck. Counsel needed to come up with some
way to raise reasonable doubt concerning the identification by the robbery victim
who had stood face-to-face with the robber in broad daylight, and while this theory
may not have been strong, the Court cannot say that it was objectively
unreasonable given what counsel had to work with.
19
See, Petition, attached memo of law at p. 18 (arguing that there was not “a shred of credible evidence”
supporting the drug-deal-gone-bad theory of defense.)
19
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Petitioner nevertheless argues that it would have been better if counsel had
pursued other methods of establishing misidentification, such as by introducing
evidence of the photo-array identification that had been suppressed by trial court.
See, Petition, attached memo of law at p. 25 (“An aggressive attorney might have
raised a mistaken-identification defense by delving into the suggestive features of
the October photo array.”). According to Petitioner, “[t]his strategy would give the
jurors an explanation for how and why petitioner became connected to this
incident.” 20
However, informing the jury that the robbery victim had previously
identified Petitioner in a photo array would have presented its own obvious set of
risks, and the Court cannot say that it was unreasonable for counsel not to pursue
that strategy, particularly where there was also DNA evidence linking Petitioner to
the robbery.
In sum, the Court has considered all of Petitioner’s arguments (including the
arguments concerning counsel’s alleged failure to make better arguments
concerning the DNA evidence) and finds that he has not demonstrated that trial
counsel's performance fell below an objective standard of reasonableness.
The Court further finds that Petitioner has not demonstrated that he suffered
the required prejudice from counsel’s alleged errors. 21 Instead, the Court finds,
based primarily on the strength of the case against Petitioner consisting of both
20
Petition, attached memo of law at p. 25.
From the language quoted above from the Appellate Division’s ruling, the Court understands the
Appellate Division to have stopped, after finding that defense counsel did not provide deficient
performance, without proceeding to also determine whether Petitioner suffered prejudice. That was
entirely appropriate under federal law. See, Garner v. Lee, 908 F.3d 845, 861 (2d Cir. 2018) (“The
Strickland Court . . . declared . . . that there is no reason for a court ... to address both components of the
inquiry if the defendant makes an insufficient showing on one.”) (citations and internal quotation marks
omitted), cert. denied, 139 S. Ct. 1608, 203 L. Ed. 2d 761 (2019).
21
20
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eyewitness identification and DNA evidence, that Petitioner has not shown a
reasonable probability that but for counsel's alleged unprofessional errors, the
result of the proceeding would have been different. See, Gersten v. Senkowski,
426 F.3d at 611 (“A reasonable probability is a probability sufficient to undermine
confidence in the outcome. In evaluating prejudice, we look to the cumulative
effect of all of counsel's unprofessional errors. We must keep in mind that a verdict
or conclusion only weakly supported by the record is more likely to have been
affected by counsel's errors. Conversely, where there is overwhelming evidence
of guilt, even serious errors by counsel will not warrant granting a writ of habeas
corpus.”) (citations omitted).
Nor has Petitioner otherwise shown that the state court’s ruling denying the
ineffective-assistance claims contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the
United States or was based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding. See, Henry v. Poole, 409
F.3d 48, 67 (2d Cir. 2005) (“[A] petitioner whose claim is that he received ineffective
assistance of counsel not only must satisfy the Strickland standard but also must
show that the state court's rejection of his claim either was contrary to Strickland
or was an unreasonable application of Strickland[.]”) (citations omitted).
CONCLUSION
The application under 28 U.S.C. § 2254 is denied. The Clerk of the Court is
directed to close this case. Pursuant to 28 U.S.C. § 2253, the Court declines to issue a
certificate of appealability, since Petitioner has not made a substantial showing of the
denial of a constitutional right. The Court hereby certifies, pursuant to 28 U.S.C. §
21
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1915(a)(3), that any appeal from this Order would not be taken in good faith and leave to
appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States,
369 U.S. 438 (1962). Further requests to proceed on appeal in forma pauperis should be
directed on motion to the United States Court of Appeals for the Second Circuit in
accordance with Rule 24 of the Federal Rules of Appellate Procedure.
So Ordered.
Dated: Rochester, New York
December 30, 2020
ENTER:
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
22
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