Mejia v. People of the State of New York

Filing 15

DECISION AND ORDER denying 1 Petition for Writ of Habeas Corpus filed by Jose Mejia. 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 Peti tioner 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 States 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 2/5/21. Copy of this NEF and decision and order mailed to pro se petitioner at Attica.(KAP)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_________________________________________
JOSE MEJIA, 07-B-2418,
Petitioner,
DECISION AND ORDER
-vs6:17-CV-6362 CJS
PEOPLE OF THE STATE OF NEW YORK,
Respondent.
_________________________________________

INTRODUCTION
Petitioner Jose Mejia (“Mejia” or “Petitioner”) brings this pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, challenging his convictions in New York
State Supreme Court, Erie County, for Murder in the Second Degree, Robbery in the First
Degree, Criminal Possession of a Weapon in the Second Degree and Criminal
Possession of Stolen Property in the Fifth Degree, for which he was sentenced principally
to a term of imprisonment of 25 years to life. 1 The Petition asserts three claims: 1)
violation of Petitioner’s right to confront witnesses; 2) conviction was against the weight
of the evidence; and 3) violation of Petitioner’s right to due process and a fair trial resulting
from prosecutorial misconduct. For the reasons explained below, the petition for a writ of
habeas corpus is denied.

1 More specifically, Petitioner was “sentenced to indeterminate terms of twenty-five years to life for his
murder in the second degree convictions, a determinate term of twenty-five years for his robbery
conviction, fifteen years for his criminal possession of a weapon conviction, and a definite term of one
year for his possession of stolen property conviction. A five-year term of post-release supervision was
also imposed under all of the determinate terms.” Respondent’s Memo of Law at p. 3.

1

BACKGROUND
The evidence viewed in the light most-favorable to the prosecution indicates that
late on the evening of June 21, 2006, Petitioner and Luis Hernandez (“Hernandez”)
decided to commit a robbery using a .22 caliber pistol borrowed from an acquaintance,
Marc Staples (“Staples”). Petitioner and Hernandez chose as their victim Darryl Jones
(“Jones”), who was walking to his girlfriend’s house, carrying a backpack. Petitioner and
Hernandez demanded that Jones give them everything he had. Jones handed over his
cell phone but then tried to run away, at which point Petitioner knocked him to the ground
and took his sneakers and wallet. Jones then again tried to run, whereupon Petitioner
shot him in the back once, killing him. Petitioner and Hernandez fled on bicycles, taking
the deceased’s sneakers, wallet and cell phone. A witness heard the shot and then heard
a male voice say, “Come on, let’s go.” The same witness came outside and saw Jones’s
backpack ripped open and its contents (Jones’ clothing) scattered in the street. The police
arrived within minutes and found Jones’s body face down in the grass, with no shoes.
When Jones failed to arrive at his destination, his family and friends attempted to call his
cell phone, and Petitioner and/or Hernandez answered, saying “nasty things” and
eventually indicating that Jones was dead.
Within minutes after the shooting, Petitioner and Hernandez used Jones’s phone
to call a female acquaintance, Michelle Pizzaro (“Pizzaro”). Petitioner and Hernandez
then went directly to Pizzaro’s house, and Hernandez told Pizzaro that they had just
robbed and shot a guy, and had taken his phone, wallet and sneakers. Petitioner heard
Hernandez’s comments and did not dispute them.
Hernandez returned the gun to Staples.

2

The next day Petitioner and

Hernandez continued to use Jones’s phone for a few days until it broke,
whereupon he threw the phone’s parts into Pizzaro’s yard, where they were later
recovered by police. Cell phone data led the police to PIzzaro’s mother, who indicated
that Pizzaro hung around with Petitioner and Hernandez.
Petitioner and Hernandez.

Pizzaro then implicated

Police located Hernandez, who gave a statement that

minimized his involvement and blamed Petitioner for the robbery and murder. Police also
recovered the gun that had been borrowed from Staples to commit the robbery.
When Petitioner was arrested, he was in possession of a pair of sneakers matching
the brand, model and size of Jones’s sneakers. (Incidentally, the sneakers were a smaller
size than Petitioner usually wore.). Evidently having realized that he was linked to the
crime through phone records and the sneakers, Petitioner gave two statements to the
police. In the first statement, Petitioner indicated that he had borrowed a phone and
sneakers from a guy named Darryl, who he knew from Erie County Community College.
In the second statement, Petitioner admitted that he had robbed and shot Jones, though
he claimed that the shooting was an accident.
Petitioner was indicted for Murder in the First Degree, Robbery in the First Degree,
Criminal Possession of a Weapon in the Second Degree and Criminal Possession of
Stolen Property in the Fifth Degree. Because of his age Hernandez was not charged with
First Degree Murder but he was charged with Murder in the Second Degree (felony
murder) and various other crimes.
Hernandez agreed to plead guilty to manslaughter 2 and testified against Petitioner
at trial. Hernandez was extensively cross-examined by Petitioner’s attorney. 3 Staples
2

Hernandez’s plea agreement called for a sentence of between 15 and 20 years, and the state court
sentenced him to 20 years.
3 Petitioner’s attorney at the first trial was Joseph Terranova, Esq.
3

and Pizzaro also testified. Petitioner also testified, in narrative fashion, and indicated that
he was innocent and that every witness who had testified at trial had lied. With regard to
the signed statements attributed to him by the police, Petitioner acknowledged that he
had made the first statement but claimed that the second statement had been completely
fabricated by the detectives who interviewed him. However, later in his testimony, Plaintiff
asserted that the police had fabricated both statements. 4 With regard to his possession
of the sneakers, Petitioner first testified that he had been given them by a guy named
Darryl, then indicated that he had bought them from a guy named Zack, and finally
asserted that both stories were true, in that he had been handed the shoes by Darryl but
had paid Zack for them.
Petitioner was convicted after trial of all charges. However, on appeal, the New
York State Supreme Court, Appellate Division Fourth Department (“Appellate Division”),
reversed the convictions and remanded for a new trial, finding that the trial court had erred
in failing to suppress Petitioner’s statements to the police. See, generally, People v. Mejia,
64 A.D.3d 1144, 882 N.Y.S.2d 621 (4th Dept. 2009).
Prior to the second trial, Hernandez, who had already received the benefit of his
plea deal and was serving his 20-year sentence, indicated to the prosecutor that he was
unwilling to testify again, arguing that his plea deal did not require him to testify at two
trials. 5 The trial court assigned an attorney for Hernandez, and following a hearing at
which Hernandez reiterated that he was unwilling to testify, even under the threat of
contempt, the court held Hernandez in contempt and found that he was “unavailable” to

4

Trial Transcript at p. 884.
See, 7/21/10 transcript at p. 3 ([PROSECUTOR:] [Hernandez] made it very clear to us that he does not
believe his agreement includes the requirement that he testify at an additional trial – MR. HERNANDEZ:
Yeah --.”j)
5

4

testify within the meaning of New York Criminal Procedure Law (“CPL”) § 670.10(1) due
to “incapacity,” citing People v. Muccia, 139 A.D.2d 838, 839, 527 N.Y.S.2d 620 (3d Dept.
1988) (“A traditional hearsay exception for prior testimony of an unavailable witness is
codified in CPL 670.10, which relevantly provides that the testimony of a witness at trial
is admissible at a subsequent related proceeding which the witness is unable to attend
because of ‘incapacity.’ Downs' refusal to testify constituted incapacity because County
Court made sufficient good-faith efforts, including a threat to cite Downs for contempt, in
order to induce him to testify in person.”) (citations omitted) and People v. Barber, 2
A.D.3d 1290, 1291, 770 N.Y.S.2d 537, 538 (4th Dept. 2003) (“Evans testified against
defendant at the first trial in exchange for a lenient sentence but refused to testify at the
second trial, contending that his deal with the People did not require him to testify at more
than one trial. Evans persisted in his refusal to testify despite the court's warning that he
would be held in contempt and, indeed, he was held in contempt following a hearing. The
court thereafter determined that Evans was unavailable to testify and permitted the
People to present his testimony from the first trial in evidence pursuant to CPL 670.10(1).
We conclude that the court properly admitted that testimony in evidence under the
circumstances of this case.”).
Following additional briefing and argument the trial court further ruled that the
prosecution could read Hernandez’s testimony from the first trial to the jury. In its written
ruling on that point, the trial court discussed Hernandez’s unavailability to testify, stating
in pertinent part:
The People contend that Mr. Hernandez refuses to testify, claiming that his
agreement with the People did not require him to testify at more than one
trial. On July 21, 2010, a hearing was conducted before this Court wherein
Mr. Hernandez affirmed his refusal to testify in the new trial over the Court’s
5

threat of contempt. Due to his refusal this Court then declared Mr.
Hernandez incapacitated and unavailable to testify in the new trial. Mr.
Hernandez was also found in contempt. CPL Section 670.10(1). 6
Additionally, the trial court found that admission of Hernandez’s prior trial testimony would
not violate Petitioner’s right to confrontation, since the testimony met the criteria for
reliability and the direct examination and cross-examination of Hernandez at the first trial
had not been restricted in any way. Id. at p. 168; see also, id. at p. 172 (“It is clear from a
review of the transcript of the first trial that the Defendant’s counsel at that time vigorously
cross-examined Mr. Hernandez.”).
Prior to trial, Petitioner’s newly-retained counsel attempted to re-argue the court’s
rulings concerning Hernandez’s unavailability and the use of his prior testimony, but the
trial court adhered to its prior rulings, reiterating that Hernandez was unavailable to testify
and that “the admission of the prior testimony in the second trial cannot be deemed to
violate the Defendant’s right to confrontation as the Defendant had a full opportunity to
cross-examine Mr. Hernandez at the first trial. Crawford v. Washington, 541 U.S. 36.”
Decision dated 7/22/11.
Defense counsel also argued that the trial court should at least place Hernandez
on the witness stand so that the jury could see and hear him refuse to testify. Defense
counsel insisted that the court should follow that procedure, so that the jury would glean
that Hernandez’s unavailability was not Petitioner’s fault. 7 The trial court denied the
request.

6

Exhibits to Petition, Appendix A to Petition for Certiorari at p. 166.
See, id. at p. 180 (“There should be no question with respect to Mr. Hernandez’s availability; rather the
truth should be presented to the jury. As Mr. Hernandez has refused to testify through no fault of the
defendant, the jury should at least be apprised that the defendant has not caused the witness’s
unavailability.”).
7

6

Petitioner did not testify at the second trial. Petitioner also attempted to re-argue,
before the new judge to whom the case had recently been reassigned, that the
prosecution should not be permitted to read Hernandez’s prior testimony into the record.
Alternatively, Petitioner re-asserted that the court should place Hernandez, who had been
subpoenaed to court by the defense, on the witness stand so that the prosecution could
attempt to question him in the jury’s presence. The trial court denied the request and the
prosecution read Hernandez’s testimony to the jury.
During the trial, Jones’s brother identified the sneakers that were in Petitioner’s
possession at the time of his arrest as having belonged to Jones, indicating that he was
very familiar with the shoes because he had purchased them as part of a set, along with
a matching jersey, hat and wristbands, that he had shared them with his late brother.
Indeed, Jones’ brother indicated that he often cleaned the sneakers and was familiar with
the various creases and stains on them. However, in his summation defense counsel
attempted to cast doubt on that testimony by arguing that the particular brand and model
of sneaker was popular and widely available. For example, during his summation defense
counsel stated,
Nike isn’t a Fortune 500 company for no reason. They reproduce sneakers
that came out 13 years ago and they still sell millions of them. . . . You
know what I am getting at, okay. Who knows how many thousands of young
men or ladies across this area have those sneakers. . . . [T]hese are
common shoes that are used by young men, especially in the city.” 8
Defense counsel also suggested that the sneakers might not have been taken from Jones
during the robbery, and that someone else might have come along later and stolen them
from the body before the police arrived. Presumably, defense counsel meant to imply

8

Trial Tr. at pp. 685-686.
7

that Petitioner might have later obtained the sneakers from whoever took them from
Jones’ body, though he never conceded that the sneakers possessed by Petitioner were
the same ones taken from Jones.
During the prosecutor’s summation, he attempted to rebut those arguments by
stating,
And we have heard over the last week and again today, well, they [the sneakers]
are a mass-produced product. . . . Maybe thousands of these around Western
New York, who’s to say. Or then we heard maybe they were stolen off [the victim’s]
feet [prior to the police arriving at the scene] because he was there forty to sixty
minutes. No he wasn’t. Well, which is it? Because this morning we never heard
him [defense counsel] say they were his. But somehow, they made it to his [the
defendant’s] foyer, but really [the defendant wants you to believe] they aren’t the
same ones, you can’t believe that [they’re the victim’s sneakers]. Well, that was
all from that chair [defense counsel’s chair]. From that chair [the witness chair] we
heard and confirmed they were one hundred and fifty dollars a pair in 2006. They
aren’t cheap. One hundred fifty dollars a pair. Not some Dollar Store item that
everyone has and tosses aside after one walk through the mud. Hardly. I submit
to you these Air Jordan [sneakers] are not as common as some in this courtroom
need you to believe because, when they’re found in your foyer only sixteen days
after the owner is murdered and they are taken off his feet and your friend is saying
you did it with him and others as well, well then, you better say something about
why they are in your foyer. Even if it’s as silly as everyone has them or maybe
someone stole them.
Trial Tr. at p. 720.
At the conclusion of the trial, Petitioner was acquitted of Murder in the First Degree
and convicted of Murder in the Second Degree, Robbery in the First Degree, Criminal
Possession of a Weapon in the Second Degree and Criminal Possession of Stolen
Property in the Fifth Degree.

The trial court imposed the maximum sentence on

Petitioner, citing the cruel nature of the crime.
On direct appeal to the Appellate Division, Petitioner raised the following
arguments: 1) admission of Hernandez’s testimony from the first trial violated Petitioner’s
8

right to confrontation; 2) the trial court erred in allowing Pizarro to testify to Petitioner’s
tacit admission of guilt; 3) the verdict was against the weight of the evidence; 4) the
prosecutor committed misconduct by allegedly commenting on Petitioner’s silence; and
5) the sentence is harsh and excessive. The Appellate Division denied the appeal. With
regard to the Confrontation Clause claim, the court stated, in pertinent part:
We reject Defendant’s contention that that the admission of the prior
testimony violated his right of confrontation or CPL § 670.10(1). The
codefendant refused to testify based on his belief that his plea agreement
with the People did not require him to testify twice, and his refusal to testify
constituted incapacity inasmuch as the court threatened to hold the
codefendant in contempt, and indeed did hold him in contempt, for his
refusal to testify. Contrary to defendant's further contention, the court did
not abuse its discretion in not allowing the codefendant to be called to the
stand and refuse to testify in front of the jury.
People v. Mejia, 126 A.D.3d 1364, 1365, 6 N.Y.S.3d 813, 814 (2015). With regard to the
claim of prosecutorial misconduct, the Appellate Division held that the prosecutor’s “better
say something” statement was a proper comment on the defense summation and that in
any event the statement was isolated and did not deprive Petitioner of a fair trial. See,
People v. Mejia, 126 A.D.3d at 1365-66, 6 N.Y.S.3d at 815 (2015) (“Defendant contends
that he was denied a fair trial based on a comment made by the prosecutor during
summation. That comment, however, was a fair response to defense counsel's
summation. In any event, that single remark was isolated and not so egregious as to
warrant a reversal.”) (citations and internal quotation marks omitted).
The New York Court of Appeals denied Petitioner’s application for leave to appeal,
and the U.S. Supreme Court denied his petition for writ of certiorari.

9

As already mentioned, the instant petition asserts three claims. 9 First, Petitioner
contends that his right to confront witnesses was violated by the use of Hernandez’s
testimony from the first trial. In that regard, Petitioner argues that Hernandez was not
truly “unavailable” to testify, and that he was prejudiced by the jury’s inability to observe
Hernandez’s demeanor. Second, Petitioner maintains that the convictions were against
the weight of the evidence, since, for example, there were “discrepancies and
contradictions” between the testimony of Hernandez, Pizzaro and Staples. And, third,
Petitioner argues that his right to “a fair trial and due process” was violated by various
comments from the prosecutor, including the “better say something” comment which
Petitioner insists was a reference to his “silence while being taken into custody.”
Respondent opposes the petition in its entirety, essentially indicating that the
“weight of the evidence” claim is not cognizable in this proceeding and that the other two
claims lack merit. 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).

9

The Petition also included a fourth claim, based on alleged ineffective assistance of trial counsel, that
Petitioner acknowledged was unexhausted. Petitioner withdrew that claim after the Court denied his
request for stay and abeyance.
10

Evidentiary Hearing Not Required
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,

11

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
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 maintains that Petitioner’s “weight of the evidence” argument is
exhausted but not cognizable in a § 2254 habeas petition.

Respondent indicates,

however, that to the extent Petitioner might to attempt to instead argue that the evidence
was legally insufficient to support his convictions, such an argument would be
unexhausted since it was not made to the state courts.

12

The legal principles concerning the need to exhaust claims before raising them in
a § 2254 petition 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
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
13

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
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.”).
In the instant case, if Petitioner attempted to argue that his conviction was
unconstitutional due to the legal insufficiency of the evidence, the claim would be both
unexhausted and procedurally defaulted. That is because Petitioner did not make that
argument to the state courts, and he cannot do so now since the claim could have been
raised in his direct appeal. In sum, the claim would be procedurally defaulted under state
law and procedurally barred here, and no exception would apply. 10 However, even
liberally construing the Petition, it does not appear to be making a legal sufficiency
argument. 11 Rather, Petitioner has argued only that his conviction was against the weight
of the evidence, citing alleged inconsistencies between the testimony of Hernandez,
Pizzaro and Staples. 12

Consequently, the Court finds that Respondent’s exhaustion

10 Petitioner has not attempted to show cause and prejudice or actual innocence, nor does the record
suggest that he could do so.
11 As to this point, the Court additionally notes that Petitioner did not file a reply.
12 The Court notes that defense counsel explored these discrepancies on cross-examination and argued
them to the jury.

14

argument as to this point is moot, inasmuch as it is directed at an argument Petitioner is
not making. 13
However, other aspects of the petition are unexhausted. Specifically, Petitioner’s
claim that he was denied a fair trial and due process based on prosecutorial misconduct
relies on three alleged statements by the prosecutor: First, Petitioner maintains that it was
improper for the prosecutor to say, during his opening, that he was going to show that the
sneakers found in Petitioner’s possession were the same ones stolen from Jones, since
the prosecutor never introduced DNA evidence on that point; next, Petitioner contends
that it was improper for the prosecutor to say, during his summation, “I submit to you
these Air Jordan [sneakers taken from the victim] are not as common as some in this
courtroom need you to believe because, when they’re found in your foyer only sixteen
days after the owner is murdered and they are taken off his feet and your friend
[Hernandez] is saying you did it with him and others as well, well then, you better say
something about why they are in your foyer,” since that statement referred to Peitioner’s
right to remain silent; and, finally, Petitioner asserts that it was improper and misleading
for the prosecutor to say, during his summation, that police had recovered the murder
weapon, since, for example, no scientific evidence was presented indicating that the bullet
taken from Jones’s body was fired by the gun that was recovered from Staples. Of these
three alleged instances of prosecutorial misconduct, only the second one was raised
13

The Court notes that a legal sufficiency argument would also lack merit, since the evidence viewed in
the light most-favorable to the prosecution was clearly sufficient to allow a rational trier of fact to find
Petitioner guilty beyond a reasonable doubt of the crimes for which he was convicted under New York
law. See, Gutierrez v. Smith, 702 F.3d 103, 113 (2d Cir. 2012) (“When reviewing appeals challenging the
sufficiency of the evidence supporting a state-court criminal conviction . . . we review the decision of the
state court under the federal sufficiency standard set forth by the Supreme Court in Jackson v. Virginia,
443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See Epps v. Poole, 687 F.3d 46, 50 (2d Cir.2012).
The relevant question under Jackson is whether, “after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. 2781.”).
15

before the state courts. The first and third instances of alleged prosecutorial misconduct
are unexhausted, procedurally barred and procedurally defaulted, and no exception
applies. 14 Consequently, those two aspects of Petitioner’s prosecutorial misconduct/fair
trial/due process claim are denied on that basis. 15 The Court will discuss the exhausted
aspect of that claim below.
Non-Cognizable Claims
Respondent next maintains that Petitioner’s “weight of the evidence” claim is “not
cognizable” in a § 2254 habeas proceeding. The Court agrees.
“A claim that a state conviction was obtained in violation of state law is not
cognizable in the federal court.” Howard v. Walker, 406 F.3d 114, 121 (2d Cir. 2005)
(citing Estelle v. McGuire, 502 U.S. 62, 68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) and
Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir.1998)); see also, Guerrero v. LaManna,
325 F. Supp. 3d 476, 483 (S.D.N.Y. 2018) (“The role of federal courts reviewing habeas
petitions is not to re-examine the determinations of state courts on state law issues, but
only to examine federal constitutional or statutory claims. 28 U.S.C. § 2254(a); see Estelle
v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Federal courts
deciding habeas petitions do not serve as appellate courts to review state court decisions
of state law claims. Their purpose instead is to review whether the circumstances
surrounding the petitioner's detention ‘violate fundamental liberties of the person,
safeguarded against state action by the Federal Constitution.’ Townsend v. Sain, 372
U.S. 293, 311-312, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). Habeas petitions may not simply

14 Again, Petitioner has not attempted to show cause and prejudice or actual innocence, nor does the
record suggest that he could do so.
15 In any event, those two aspects of the claim plainly lack merit as the prosecutor’s statements
concerning those points were not improper.

16

repackage state law claims, which have previously been found to be meritless, in order
to obtain review. DiGuglielmo v. Smith, 366 F.3d 130, 136 (2d Cir. 2004).”).
As Respondent correctly points out, a claim that a conviction was against the
weight of the evidence is a state-law argument that is not cognizable in a federal § 2254
habeas action. See, McKinnon v. Superintendent, Great Meadow Corr. Facility, 422 F.
App'x 69, 75 (2d Cir. 2011) (“[T]he argument that a verdict is against the weight of the
evidence states a claim under state law, which is not cognizable on habeas corpus, see,
e.g., Correa v. Duncan, 172 F.Supp.2d 378, 381 (E.D.N.Y.2001), Douglas v. Portuondo,
232 F.Supp.2d 106, 116 (S.D.N.Y.2002); see also Estelle, 502 U.S. at 67–68, 112 S.Ct.
475, and as a matter of federal constitutional law a jury's verdict may only be overturned
if the evidence is insufficient to permit any rational juror to find guilt beyond a reasonable
doubt, Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979),
Policano v. Herbert, 507 F.3d 111, 116 (2d Cir.2007).”); see also, Blackshear v. Artus,
No. 917CV143MADDJS, 2019 WL 6837719, at *3 (N.D.N.Y. Dec. 16, 2019) (“Review of
a conviction as against the ‘weight of the evidence’ is a product of New York state statute
and, therefore, merely a state-law issue for which no cognizable federal issue is
presented.”).
Consequently, Petitioner’s “weight of the evidence” argument is not cognizable in
this action and is denied.
The Remaining Claims, Although Exhausted and Cognizable, Lack Merit
Right to Confront Witnesses
Petitioner contends that his right to confront witnesses was denied by the use of
Hernandez’s testimony from the first trial. In this regard, Petitioner contends that although
Hernandez was cross-examined at the first trial, he might have testified differently at the
17

second trial, and that the use of the prior testimony deprived the jury of the opportunity to
observe Hernandez’s demeanor. Petitioner further contends that Hernandez was not
actually “unavailable” to testify, since the prosecution never offered him immunity to
testify. Finally, Petitioner contends that before using the prior testimony the trial court
should have at least placed Hernandez on the stand so that the jury could see him refuse
to testify.
Criminal defendants have a Sixth Amendment right to confront the witnesses
against them, with certain exceptions:
“The Sixth Amendment guarantees every criminal defendant the right “to
be confronted with the witnesses against him.” U.S. Const. amend. VI. In
Crawford v. Washington, the Supreme Court interpreted this Clause to bar
the admission at trial of a witness's “testimonial evidence”—which includes
“at a minimum” his “prior testimony ... before a grand jury”—unless the
witness is unavailable and the defendant has been afforded a prior
opportunity for cross-examination. 541 U.S. 36, 68, 124 S.Ct. 1354, 158
L.Ed.2d 177 (2004).
Chrysler v. Guiney, 806 F.3d 104, 118 (2d Cir. 2015) (emphasis added).
[A] witness is not ‘unavailable’ for purposes of the confrontation requirement unless
the prosecutorial authorities have made a good-faith effort to obtain his presence
at trial.
***
The lengths to which the prosecution must go to produce a witness . . . is a question
of reasonableness.
Hardy v. Cross, 565 U.S. 65, 69–70, 132 S. Ct. 490, 493–94, 181 L. Ed. 2d 468 (2011)
(citations and internal quotation marks omitted).
Here, the Court liberally construes the Petition to allege that the trial court’s finding
that Hernandez was “unavailable” to testify, was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of

18

the United States or was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding. In particular, Petitioner maintains
that the finding of “unavailability” was incorrect since the prosecution did not make a
reasonable good-faith effort to get Hernandez to testify at the second trial. As proof,
Petitioner contends that the prosecutor never offered immunity to Hernandez.
However, this argument lacks merit for various reasons. To begin with, Petitioner’s
contention that Hernandez was not “unavailable” to testify is incorrect, since Hernandez
invoked his 5th Amendment privilege and refused to testify despite being held in contempt.
See, Latine v. Mann, 25 F.3d 1162, 1166 (2d Cir. 1994) (“A declarant is unavailable for
purposes of Confrontation Clause analysis if he invokes his Fifth Amendment privilege
against self-incrimination and refuses to testify at trial.”); see also, Ross v. Dist. Attorney
of the Cty. of Allegheny, 672 F.3d 198, 206 (3d Cir. 2012) (“The Confrontation Clause
does not require a witness to face the threat of sanctions in order to be rendered
unavailable. A witness is unavailable for Confrontation Clause purposes when he or she
refuses to testify, regardless of whether the refusal is in response to an order to testify
under threat of sanctions.”)
Moreover, the state court’s determination that Hernandez was unavailable to testify
was not unreasonable under the circumstances. See, Hardy v. Cross, 565 U.S. at 71–72,
132 S. Ct. at 495 (“[T]he Sixth Amendment does not require the prosecution to exhaust
every avenue of inquiry, no matter how unpromising. And, more to the point, the
deferential standard of review set out in 28 U.S.C. § 2254(d) does not permit a federal
court to overturn a state court's decision on the question of unavailability merely because
the federal court identifies additional steps that might have been taken. Under AEDPA, if
the state-court decision was reasonable, it cannot be disturbed.”); see also, Green v.
19

MacLaren, No. 17-1249, 2017 WL 3973956, at *2 (6th Cir. Aug. 2, 2017) (“Green argues
that the trial court's decision violated his right to confront his witnesses. The Confrontation
Clause prohibits the admission of testimonial statements by a non-testifying witness
unless the witness is unavailable and the defendant had a prior opportunity for crossexamination. Crawford v. Washington, 541 U.S. 36, 68 (2004). It is undisputed that Lewis
provided testimonial statements at Green's first trial and that Green had an opportunity to
cross-examine him. Nonetheless, Green contends that Lewis was not truly unavailable to
testify at his second trial. However, a witness is unavailable for full and effective crossexamination when he refuses to testify, even when the refusal is punishable as contempt.
Lewis made it clear to the trial court that he was exercising his Fifth Amendment right not
to testify. Even if it was not proper for Lewis to invoke his right in this context since his
pending murder charge was unrelated to Green's case, it appears that any warning by
the court to hold Lewis in contempt would have been ineffective. Lewis already was
incarcerated and facing life imprisonment if convicted of the murder charge. Further, this
court may not overturn a state court's determination of unavailability merely because it
can identify additional steps that the state court may have taken. See Hardy v. Cross, 565
U.S. 65, 71 (2011).”).
Petitioner’s contention that the prosecutor failed to act in good faith by not offering
immunity to Hernandez also lacks merit, since the prosecutor had no reason to offer
immunity to a witness who had already clearly indicated to the court that he was not going
to testify under any circumstances because he did not believe that his plea agreement
required him to do so. See, e.g., Robinson v. Conway, No. 05-CV-0542 VEB, 2010 WL
3894989, at *9 (W.D.N.Y. Sept. 30, 2010) (“Scott was unavailable; his intention was to

20

refuse to testify again under any circumstances. The issue of immunity thus never had to
be reached by the prosecutor or the trial court.”).
To the extent Petitioner may be arguing that a witness who refuses to testify can
never be declared “unavailable” for purposes of the Confrontation Clause unless he is
first offered immunity, such that the prosecutor was required to offer immunity to
Hernandez, he is incorrect:
The established content of the Sixth Amendment does not support a claim
for defense witness immunity. Traditionally, the Sixth Amendment's
Compulsory Process Clause gives the defendant the right to bring his
witness to court and have the witness's non-privileged testimony heard, but
does not carry with it the additional right to displace a proper claim of
privilege, including the privilege against self-incrimination. While the
prosecutor may not prevent or discourage a defense witness from testifying,
it is difficult to see how the Sixth Amendment of its own force places upon
either the prosecutor or the court any affirmative obligation to secure
testimony from a defense witness by replacing the protection of the selfincrimination privilege with a grant of use immunity.
United States v. Turkish, 623 F.2d 769, 773–74 (2d Cir. 1980) (citations omitted). 16 Nor
does the record otherwise indicate that the prosecutor acted unreasonably, or that he
failed to make a good-faith effort to get Hernandez to testify at trial.
Petitioner further maintains that his Confrontation Clause rights were violated when
the trial court declined to place Hernandez before the jury solely for the purpose of having
him refuse to testify. This claim also lacks merit. See, e.g., United States v. George, 778
F.2d 556, 563 (10th Cir. 1985) (“The trial court correctly permitted the invocation of the
Fifth Amendment privilege by Kenneth George outside the hearing of the jury, and

16 See also, Thomas G. Stacy, “The Constitution in Conflict: Espionage Prosecutions, the Right to
Present A Defense, and the State Secrets Privilege,” 58 U. Colo. L. Rev. 177, 225 (1987) (“Courts have
been virtually unanimous in holding that, at least in the absence of prosecutorial misconduct, neither
courts nor prosecutors have a constitutional obligation to immunize witnesses who can provide testimony
exculpating a defendant.”).

21

defendant-appellant's right of confrontation under the Sixth Amendment was not thereby
violated.”); see also, United States v. Myerson, 18 F.3d 153, 158 (2d Cir. 1994) (“[T]he
district court properly rejected Myerson's attempts to call Cooper solely for the purpose
of having the jury hear his invocation of the privilege.”).
Finally, Petitioner contends that it violated his Confrontation Clause rights to use
Hernandez’s prior testimony, since Hernandez might have testified differently at the
second trial. However, this argument lacks merit, since the trial court is not required to
consider how the declarant might testify at the second trial. Rather, as discussed earlier,
use of the prior testimony comports with the Confrontation Clause so long as the witness
is unavailable and the defendant has been afforded a prior opportunity for crossexamination. Those requirements were met here.
For all these reasons, the Confrontation Clause claim is denied.
Right to Fair Trial/Due Process
Finally, Petitioner contends that his rights to a fair trial and due process were
violated by the prosecutor’s summation which included the words, “you better say
something.” In particular, Petitioner alleges that those words “referred to [his] silence
while being taken into custody.” Respondent maintains that this claim lacks merit, and
the Court again agrees.
Petitioner’s argument on this point can be construed as raising a claim relating to
his 5th Amendment rights to a fair trial and to remain silent. The legal principles applicable
to such claims are well settled:
The Supreme Court has instructed that habeas relief is appropriate based
on improper prosecutorial comments in summation only where the
prosecutor’s comments “so infected the trial with unfairness as to make the
resulting conviction a denial of due process.” Darden v. Wainwright, 477
22

U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). We have held that
“[t]he habeas court must consider the record as a whole when making this
determination, because even a prosecutor’s inappropriate or erroneous
comments or conduct may not be sufficient to undermine the fairness of the
proceedings when viewed in context.” Jackson, 763 F.3d at 146. This
standard is highly general, such that a wide range of state court applications
of the standard must be considered reasonable. Id. at 135.
Griggs v. Lempke, 797 F. App'x 612, 616 (2d Cir. 2020). At the same time, however,
[i]t is appropriate, on summation, to suggest inferences that could be drawn
from facts in evidence and draw juror's attention to relevant factors in
assessing witness credibility.” Cooper v. Costello, No. 93-CV-5670, 1996
WL 1088929, at *4 (E.D.N.Y. July 23, 1996) (citing People v. Collins, 72
A.D.2d 431, 437-38, 424 N.Y.S.2d 954, 985 (4th Dept. 1980)). Additionally,
the prosecution is permitted to rebut arguments raised during a defendant's
summation, “‘even to the extent of permitting the prosecutor to inject his
view of the facts to counter the defense counsel's view of the facts.’”
Readdon v. Senkowski, No. 96-CV-4722, 1998 WL 720682, at *4 (S.D.N.Y.
Oct. 13, 1998) (quoting Orr v. Schaeffer, 460 F. Supp. 964, 967 (S.D.N.Y.
1978)). “Where a prosecutor's statement is responsive to comments made
by defense counsel, the prejudicial effect of such objectionable statements
is diminished.” Pilgrim v. Keane, No. 97-CV-2148, 2000 WL 1772653 at *3
(E.D.N.Y. Nov. 15, 2000) (citations omitted).
Duren v. Lamanna, No. 18-CV-7218(JS), 2020 WL 509179, at *16 (E.D.N.Y. Jan. 30,
2020).
With regard to prosecutorial misconduct specifically involving comments on the
accused’s right to remain silent, the legal principles are similarly well settled:
The Fifth Amendment protects individuals from self-incrimination. U.S.
Const. Amend. V. It is a long-standing principle that prosecutors may not
comment on a criminal defendant's silence or instruct a jury to infer that
“such silence is evidence of guilt.” See Griffin v. California, 380 U.S. 609,
615, 85 S. Ct. 1229, 1233, 14 L. Ed. 2d 106 (1965). “The test governing
whether a prosecutor's statements amount to an improper comment on the
accused's silence in violation of the Fifth Amendment looks at the
statements in context and examines whether they ‘naturally and
necessarily’ would be interpreted by the jury as a comment on the
23

defendant's failure to testify.” U.S. Knoll, 16 F.3d 1313, 1323 (2d Cir. 1995);
see also United States v. Bubar, 567 F.2d 192, 199 (2d Cir.), cert. denied,
434 U.S. 872, 98 S. Ct. 217, 54 L. Ed. 2d 151 (1977).
Duren v. Lamanna, 2020 WL 509179, at *17; see also, Griggs v. Lempke, 797 F. App'x
612, 617 (“The Fifth Amendment ... forbids ... comment by the prosecution on the
accused’s silence.” Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106
(1965). Such comments, however, are reviewed for harmless error. Chapman v.
California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).”).
Here, as discussed earlier, Petitioner focuses on the words “you better say
something,” which were part of the larger statement,
I submit to you these Air Jordan are not as common as some in this
courtroom need you to believe because, when they’re found in your foyer
only sixteen days after the owner is murdered and they are taken off his feet
and your friend is saying you did it with him and others as well, well then,
you better say something about why they are in your foyer. Even if it’s as
silly as everyone has them or maybe someone stole them.
The state court rejected Petitioner’s argument that this statement referred to his silence
when arrested, finding instead that it was “a fair response to defense counsel's
summation,” and, alternatively, that the “single remark was isolated and not so egregious
as to warrant a reversal.” People v. Mejia, 126 A.D.3d at 1365-66.
The state court’s determination was not “based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding,” neither was
it “contrary to,” nor did it “involve an unreasonable application of,” “clearly established
Federal law, as determined by the Supreme Court of the United States.” Viewed in
context, the statement was not so unfair as to deny due process, nor did it amount to an
improper comment on the accused's silence in violation of the Fifth Amendment since it

24

would not “naturally and necessarily” have been interpreted by the jury as a comment on
the defendant's failure to testify. Instead, the statement was clearly a response to specific
arguments made during defense counsel’s summation minutes earlier. The statement
was directed at what defense counsel said, not at what Petitioner did not say.
Consequently, the claim is denied.
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. §
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
February 5, 2021
ENTER:

CHARLES J. SIRAGUSA
United States District Judge

25