Maltese v. Colvin
Filing
50
DECISION AND ORDER re 1 Petition for Writ of Habeas Corpus filed by Mark J. Maltese. The application under 28 U.S.C. § 2254 is denied. Any remaining pending motions (e.g., ECF Nos. 3, 7, 28 & 33) are also denied. Pursuant to 28 U.S.C. 7; 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 fr om 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. Finally, the Clerk of the Court is directed to close this case. Signed by Hon. Charles J. Siragusa on 6/8/22. Copy of this NEF and order mailed to pro se petitioner at Cayuga.(KAP)-CLERK TO FOLLOW UP-
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_________________________________________
MARK J. MALTESE,
Petitioner,
-vs-
DECISION AND ORDER
6:18-CV-6188 CJS
COLVIN, Superintendent Five Points,
Respondent.
_________________________________________
INTRODUCTION
Petitioner Mark Maltese (“Maltese” 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 County Court, Genesee County, upon a jury verdict, of Robbery in the Second
Degree (three counts), Burglary in the Third Degree, Criminal Mischief in the Second
Degree and Grand Larceny in the Third Degree. The Petition asserts that the convictions
were unconstitutionally obtained for various reasons discussed further below, including
that Petitioner’s confession to most of the crimes was involuntary because at the time he
confessed he was experiencing withdrawal from pain medications and crack cocaine. 1
For the reasons explained below, the application for a writ of habeas corpus is denied
and this action is dismissed.
As will be discussed further below, the record actually contains no evidence that Petitioner was
experiencing such withdrawal at the time. Rather, the evidence in support of Petitioner’s claim on this point
shows at most that he was a user of narcotic pain medications and crack cocaine, and that he had been in
custody for approximately six hours when he gave his statements. Petitioner elected not to testify at the
suppression hearing and trial. On the other hand, there was affirmative testimony at the suppression
hearing and trial from other witnesses, including one that had known Petitioner for more than twenty years,
that Petitioner did not appear to be ill or experiencing withdrawal when he gave his confession.
1
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BACKGROUND
These subject convictions flowed from a series of criminal offenses committed
between March and November of 2013, in and around Batavia, New York. The spree
began on March 26, 2013 when Petitioner and Jon Bush (“Bush”) stole a safe, belonging
to Bush’s grandmother, containing thousands of dollars; then, on November 21, 22, and
24, 2013, respectively, Petitioner committed solo armed robberies at a Best Western
Hotel, 7-Eleven Convenience Store and Days Inn Hotel; and, finally, on November 27,
2013, Petitioner and another man committed a late-night burglary at a Rent-A-Center
store, during which they stole a television and damaged various other property (a
television, a plate-glass window and various store fixtures). All of the crimes were
committed in the City of Batavia, except for the 7-Eleven robbery which was committed
in the nearby Village of Oakfield.
The events leading to Petitioner’s arrest were as follows. A witness to the last
crime, the Rent-A-Center burglary, followed the burglars’ car to a nearby residence and
notified the police of the location, which was 4129 Colonial Boulevard in the City of
Batavia, situated essentially across the highway from the Rent-A-Center. Detective Todd
Crossett (“Crossett”) of the Batavia Police Department arrived at the location and, after
speaking with the witness, observed two sets of footprints in the snow leading from the
getaway car to the house.
Crossett had some conversation with the woman who
answered the door of the residence, Lisa Harlach (“Harlach”), after which Robert Grant
(“Grant”) emerged from the house and admitted to committing the burglary. Harlach then
gave the officers permission to enter the house and retrieve the stolen television. Upon
entering, the officers observed Petitioner carrying the stolen television. Officers also
observed a pair of lime-green rubber gloves matching the description of gloves that had
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been worn by the perpetrator of the 7-Eleven robbery five days earlier. Harlach provided
a written consent giving permission to search the house and indicating that Grant and
Petitioner had left the house and returned shortly thereafter with the stolen television.
Upon searching the house, officers discovered Petitioner’s black and red Nike sneakers,
similar in appearance and tread pattern to the sneakers worn by the 7-Eleven robber. 2
Petitioner’s girlfriend subsequently gave police permission to search her apartment,
where Petitioner had been staying, and police discovered, among other evidence, a coin
tray that had been taken during the robbery at the Days Inn Hotel.
Coincidentally, one of the investigating officers from the Genesee County Sheriff’s
Office, Investigator Ronald Welker (“Welker”), was a long-time friend of Petitioner. More
specifically, Welker and Petitioner had been friends for over twenty years. Several hours
after Petitioner’s arrest, he agreed to waive his Miranda rights and give a statement to
Welker. In that regard, the Genesee County Sheriff had a policy recommending that
statements taken in cases involving certain enumerated felonies be videotaped, if
practical. However, Welker did not videotape the statement since he was already aware
that Petitioner would not speak if he was being recorded. 3 The confession, which was
reduced to writing and signed by Petitioner, stated, in pertinent part:
[M]y name is Mark J. Maltese and my date of birth is 04-09-70. On
Wednesday November 20th late night into the early morning hours of
November 21st I was in my girlfriend’s car, a green Toyota Camry. I went
to the area of the Best Western on the road that leads to the thruway
entrance. I was there with the intention of robbing the hotel, to get money
Petitioner later admitted that after returning from the burglary at the Rent-A-Center he had changed his
footwear and put on a pair of shoes belonging to someone else.
3 The crimes for which Petitioner was indicted were not on the list of enumerated crimes in the policy. See,
e.g.,Trial Tr. at p. 543 (“Mr. Friedman: But none of the crimes that are listed in this indictment are on that
list[of enumerated felonies, and] it [(videorecording)] wasn’t practical in this case, based on those
circumstances.”); see also, SR 196-197 (Policy listing “specific crimes” for which interviews were to be
recorded).
2
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to buy crack cocaine. The car was parked near the door to the Best
Western. I went inside the hotel with jeans, a black hoodie with “Army” on
it, black gloves, a black knit hat, black and red Nike sneakers, and a red
bandanna covering my face. I had a silver-colored BB gun with me. Once
inside I walked up to the clerk, pulled out the BB gun and said “Gimme all
your money” the clerk then said “are you kidding me?” I said “No I’m not
kidding you this is a robbery.” The clerk kept asking me if I was kidding her,
but I told her that I was serious. The clerk then went into the cash drawer
and handed me a bunch of money. I then walked out of the hotel and got
back in the car and left the area. I then went back to where my girlfriend
lives at 29 Dellinger Ave. and went up into the attic to figure out what I was
going to do next. I then took the money that I got from the robbery which
was around $300 and went and spent the entire amount on crack cocaine,
and smoked all of it that same night.
On Thursday night November 21st into the early hours of November 22nd I
was in my girlfriend’s car, the same green Toyota Camry. I went to the area
of the 7-Eleven store on Rt. 63 in Oakfield. I was there with the intention of
robbing the store, to get money to buy crack cocaine. While in the car I
pulled up to the stop sign that is right next to the store. I then backed up
from the stop sign and parked along side the store. I went inside the store
with jeans, a brown hoodie with some design on it, black gloves, a knit hat,
black and red Nike sneakers, and a purple bandanna covering my face. I
again had the same silver colored BB gun with me. Once inside I walked
up to the clerk pulled out the BB gun and told her to give me all the money.
The clerk then gave me money out of the cash drawer which amounted to
about fifty dollars. I then walked out of the store and ran back to the car
and left the area. I then drove to the area of Rt. 5 near the Willowbend bar
and threw the BB gun out the window. I then went back to where my
girlfriend lives at 29 Dellinger Ave. and went up into the attic again to figure
out what I was going to do next. I then took the money that I got from the
robbery which was around $50 and went and spent the entire amount on
crack cocaine, and smoked all of it that same night.
On Saturday night November 23rd into the early hours of November 24th I
was in my girlfriend’s car, the same green Toyota Camry. I went to the area
of the Day’s Inn in Batavia near the Bob Evans Restaurant. I was there with
the intention of robbing the hotel, to get money to buy crack cocaine. While
in the car I pulled up near the hotel. I went inside the hotel with jeans, a
black hoodie with “New York” on it, black gloves, a knit Sabres hat, black
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and red Nike sneakers, and a black bandanna covering my face. I had a
Remington 870 shotgun that was not loaded with me. Once inside the hotel
I walked up to the clerk with the shotgun in my hands and told him to give
me all the money. The clerk then gave me money out of the cash drawer
which amounted to about two-hundred dollars along with a metal change
tray that had about six dollars and fifty cents. I then walked out of the hotel
and ran back to the car and left the area. I then went back to where my
girlfriend lives at 29 Dellinger Ave. and went up into the attic again to figure
out what I was going to do next. I then took the money that I got from the
robbery which was around $299 and went and spent the entire amount on
crack cocaine, and smoked all of it that same night.
Investigator Welker showed me a pair of black and red Nike sneakers that
I identified as being my sneakers and that they were also the sneakers that
I wore in each of the three robberies described above. Investigator Welker
also showed me the silver colored BB gun that I identified as the BB gun
that I used in the first two robberies described above. Investigator Welker
showed me a metal tray silver in color that I identified as the change tray
that I got in the Days Inn robbery. Investigator Welker showed me a pair of
green and blue gloves that I identified as the gloves I wore during the
robbery at the 7-Eleven in Oakfield. All of the other clothes used in the three
robberies were destroyed.
I have been struggling with a major addiction to crack cocaine for about the
past six or eight months. This addiction has consumed me and the majority
of my money goes to by crack to feed my addiction. My crack use got way
out of control and I didn’t know how to stop or slow down with smoking it. I
became desperate for money so that I could get more crack cocaine, so I
turned to robbing places to get the money I needed for the crack. Every bit
of proceeds from the three robberies went to buy crack for me to smoke. I
was out of control with my addiction and didn’t know where to turn.
ECF No. 1-1 at pp. 88–89. This statement contained numerous details that were not
known to the public, which were corroborated by the testimony of the various robbery
victims. Additionally, the discarded BB gun was found at the location where Petitioner
claimed to have thrown it out of his car, by a passerby who turned it over to the police.
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Petitioner gave the statement to Welker over the course of an interview lasting
approximately two hours, during which Petitioner was allowed to take multiple cigarette
breaks. During one such break, Petitioner remarked to Genesee County Chief Deputy
Sheriff Jerry Brewster (“Brewster”) that it was a good thing that Welker was the officer
taking his statement, since he would not have agreed to speak to anyone else.
Regarding the grand larceny of the safe committed in March 2013, Petitioner did
not provide a confession. However, Petitioner was implicated in the crime at trial by Bush,
who, after pleading guilty to burglarizing his grandmother’s house, indicated that he and
Petitioner had stolen the safe together and divided up the cash that was inside. 4
Additionally, a jailhouse informant, Steven Crandall (“Crandall”), testified that Petitioner
had confessed to him about the safe heist and the Rent-A-Center burglary. Further as to
the burglary at Rent-A-Center, Petitioner gave an oral statement to Welker acknowledging
that he had participated in the crime with Grant. Moreover, as already noted, Petitioner
was observed by police in possession of the stolen television, and Harlach provided a
statement indicating that Petitioner and Grant had left the house together and then
returned a few minutes later with the stolen television.
The Genesee County Grand Jury subsequently returned a seven-count
Indictment against Petitioner charging him with three counts of Robbery in the Second
Degree, Penal Law (“PL”) § 160.10-2(b), involving the three hotel robberies; one count of
Burglary in the Third Degree, PL § 140.20, involving the Rent-A-Center burglary; one
count of Criminal Mischief in the Second Degree, PL § 145.10, involving damage to
4 Bush was caught after a family member saw him jumping from the roof of his grandmother’s residence.
After pleading guilty to the burglary, Bush told probation, as part of the pre-sentence investigation, that
Petitioner had also participated in the crime, and that the two of them had divided up the cash that was in
the safe. Petitioner was later convicted of grand larceny for this theft but acquitted of burglary.
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property at the Rent-A-Center; one count of Burglary in the Second Degree, PL §§ 20.00
and 140.25-2, involving the burglary at the residence from which the safe was stolen; and
one count of Grand Larceny in the Third Degree, PL §§ 20.00 and 1555.35-1, involving
the theft of the safe and its contents.
Petitioner’s retained defense attorney, David Pilato (“Pilato”), subsequently filed
pre-trial motions, including motions to suppress his arrest and oral and written statements
and all evidence derived from them. 5 Petitioner argued, for example, that his statements
had not been voluntary, since he had been undergoing withdrawal from prescription
medications and crack cocaine. 6 Petitioner also requested inspection of the Grand Jury
minutes and dismissal or reduction of the Indictment.
On July 11, 2014, the Honorable Robert C. Noonan (“Judge Noonan”), Genesee
County Court Judge, issued a decision that, inter alia, denied the motion for dismissal or
reduction of the charges and granted a suppression hearing. On August 28, 2014, and
September 23, 2014, Judge Noonan conducted a suppression hearing. On October 15,
2014, Judge Noonan issued a decision denying Petitioner’s motions, stating in pertinent
part:
Sheriff’s Investigator Ronald Welker testified that at approximately 7:00 AM
he advised defendant of the Miranda warnings, to which defendant
responded that he understood his rights and was willing to answer the
investigator’s questions. Defendant’s statements with regard to the
robberies were typed, at the conclusion of which defendant read and signed
the statement. An additional oral statement was then taken regarding the
Rent-A-Center burglary, which Investigator Welker reduced to writing.
Petitioner initially moved to suppress his oral statement and preclude his written statement, with the motion
to preclude based on a typographical error as to the date of the statement. However, during the suppression
hearing Petitioner abandoned the preclusion argument and expanded the suppression motion to include
the written statement.
6 This motion was supported by Pilato’s attorney affirmation containing hearsay assertions that Petitioner
“went into a state of detoxification from the oxycodone” while he was in police custody. SR 072. Petitioner
did not submit a supporting affidavit or testify at the suppression hearing.
5
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Defendant did not appear to be under the influence of alcohol or drugs, did
not complain of withdrawal or physical ailment and asked only for a drink [of
water]. At some point, defendant was shown a pair of sneakers and a BB
gun, which he identified. At no time did defendant ask to stop the interview
or to have counsel, and no threats or promises were made to him. The
interview concluded at 9:30 AM.
***
The People’s CPL § 710.30 notice was timely as to both statements and
defendant had sufficient notice and opportunity to challenge both at the
suppression hearing.
Based upon the reported burglary, the eyewitness identification of the
vehicle seen leaving the scene, and the footprints leading from that vehicle
to the house on Colonial Boulevard, in closed proximity to the burglary,
Detective Crossett had a founded suspicion that criminal activity was afoot
sufficient to request a search of the Colonial Boulevard home, which was
given voluntarily by Lisa Harlach.
That information, together with Harlach’s willingness to give up the
television, defendant’s possession of presumably stolen property and the
statement of Lisa Harlach then provided probable cause to arrest
defendant.
The credible evidence also establishes beyond a reasonable doubt, under
the totality of the circumstances, that defendant’s statements were
voluntary and that, subsequent to his arrest, defendant was fully advised of
the Miranda warnings and voluntarily, knowingly and intelligently waived
those rights prior to making the statements of November 27, 2013.
ECF No. 1-1 at pp. 143–144 7 (citations omitted).
On January 26, 2015, a jury trial commenced before Judge Noonan. The People
were represented by the Genesee County District Attorney, Lawrence Friedman
(“Friedman”). Petitioner was represented by Pilato. Evidence in the prosecution’s case
included Petitioner’s statements, as well as testimony from various witnesses, including
The reader is advised that the ECF page number may be different that the page number on the original
document.
7
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the clerk-victims of the armed robberies, Bush (Petitioner’s accomplice in the theft of the
safe) and jailhouse informant Crandall. There was also testimony from various police
officers, including Welker, who indicated that Petitioner did not appear ill or to be
experiencing drug withdrawal when he gave his confession.
The defense strategy primarily was to attack the confession and the decision by
the Genesee County Sheriff’s Office not to videotape the interview. 8 Petitioner elected
not to testify, even though the Prosecutor had agreed not to bring up any past convictions9
if he did testify. Prior to the defense resting, Pilato indicated the he was considering
moving to admit certified office records from Petitioner’s treating physician without a
foundational witness, and sought an advance ruling in that regard. In particular, Pilato
indicated he was considering using the records to show that Petitioner was addicted to
prescription pain-killers, to support the inference that Petitioner had been experiencing
withdrawal when he gave his confession, thereby rendering the confession involuntary.
Pilato asserted that the records were admissible, “without anyone testifying,” “under the
Criminal Procedure Law,” 10 but Friedman stated that pursuant to CPLR § 4518(c), he did
not think the records were admissible on that basis since they were not hospital records. 11
After researching the issue of “certification requirements,” Judge Noonan ruled that the
records were not admissible. See, Trial Tr. at p. 504 (“Mr. Friedman is correct, doctor’s
office records are not permissible with a certification under 4518(c). So, even with the
In that regard, the confession was particularly important to the armed robbery counts, since the robber’s
face had been covered during all three robberies. Although, other evidence besides the confession linked
Petitioner to the robberies, such as the green gloves worn during the 7-Eleven robbery, the discarded BB
gun, the appearance and tread-pattern of Petitioner’s sneakers and the metal coin tray taken during the
Days Inn Hotel robbery that was found under the mattress shared by Petitioner and his girlfriend.
9 DWI and DWAI. Sentencing Tr. at p. 4.
10 Defense counsel admitted that he had only faxed certification pages that were not attached to the records
that they were purportedly certifying.
11 Trial Tr. at pp. 501–502.
8
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proper certification, those are not going to be admitted.”). Pilato did not offer any other
basis for admission of the records.
At the charge conference Pilato asked for an adverse-inference charge concerning
Investigator Welker’s failure to videotape the confession, but Judge Noonan denied that
request.
While instructing the jury concerning the voluntariness requirement for
confessions, Judge Noonan evidently 12 misspoke by omitting one word from the
instruction, stating in pertinent part:
[A]lso under our law, even if you find the statement – excuse me, that the
defendant made a statement, you still may not consider it as evidence in
the case unless the People have proven beyond a reasonable doubt that
the defendant made the statement voluntarily. . . . Before you may consider
as evidence a statement made by the defendant in response to questions,
you must find beyond a reasonable doubt that the defendant was advised
of his rights, understood those rights, and voluntarily waived those rights
and agreed to speak to the police. If you do not make those findings, then
you must disregard the statement and not consider it.
Under our law, a statement is not voluntary if it is obtained from the
defendant by the use or threatened use of physical force. In addition, a
statement is not voluntary if it is obtained by means of any other improper .
. . conduct[.] . . . If the People have not proven beyond a reasonable doubt
that the defendant, that a statement of the defendant was voluntarily made,
then you must disregard the statement and consider it. [(should have been
“and not consider it.”)] If the people have proven beyond a reasonable doubt
that a statement of the defendant was voluntarily made, then you may
consider that statement as evidence[.]
Trial Tr. 575–577 (emphasis added). However, there was no objection to the court’s
instruction. Trial Tr. 597.
It may also be that the transcript contains a typo on this point. In that regard, the fact that Judge Noonan
was reading from the pattern jury instructions, and that there was no objection, makes it possible that the
error lies with the transcript rather than Judge Noonan’s instruction.
12
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The jury found Petitioner guilty on all counts except for Count Six of the Indictment,
involving the burglary of the home from which the safe was taken. However, the jury
convicted Petitioner under Count 7, of committing grand larceny in connection with
stealing the safe. Trial Tr. 615–616. Judge Noonan sentenced Petitioner to concurrent
sentences that in the aggregate amounted to a fifteen-year prison sentenced to be
followed by a five-year post-release supervision period. 13
Petitioner filed a direct appeal and was represented on appeal by a new attorney,
Bridget Field (“Field”), 14 who raised six issues: 1) the trial court erred in finding that
Petitioner’s statements were knowing and voluntary; 2) the police had lacked probable
cause to arrest Petitioner; 3) the trial court erred in denying Petitioner’s motion to preclude
his written statement; 4) the convictions were not supported by legally-sufficient evidence;
5) the verdict was against the weight of evidence; and 6) the sentences were harsh and
excessive. Petitioner also submitted a supplemental pro se brief asserting, inter alia, the
following arguments: The trial court gave an erroneous jury instruction; a “chief witness
[(“Crossett”)] misstated facts”; there was prosecutorial and judicial abuse of discretion;
the trial court violated “the mandatory jury note procedure”; the trial court erred in failing
to give an adverse inference charge concerning the failure to videotape Petitioner’s
confession; Petitioner was “denied a full defense” after the court refused to admit his
medical records; and the Genesee County District Attorney’s Office had a conflict of
interest.
13 Prior to trial, Petitioner had turned down plea offer with a sentence of 10 yrs max; 12/4/14 “Plea Cutoff”
Tr. at p. 2: “[T]he offer was to plead to two Class C violent felonies with concurrent sentences not to exceed
ten years in prison.”)
14 The Genesee County District Attorney’s Office was represented on appeal by Melissa Cianfrini
(“Cianfrini”).
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On March 31, 2017, the New York State Supreme Court, Appellate Division Fourth
Department, denied the appeal, stating in pertinent part:
Defendant appeals from a judgment convicting him, upon a jury verdict, of
three counts of robbery in the second degree (Penal Law § 160.10 [2] [b]),
and one count each of burglary in the third degree (§ 140.20), criminal
mischief in the second degree (§ 145.10), and grand larceny in the third
degree (§ 155.35 [1]). By making only a general motion for a trial order of
dismissal, defendant failed to preserve for our review his contention in his
main and pro se supplemental briefs that the evidence is legally insufficient
to support the conviction (see People v Hawkins, 11 NY3d 484, 492 [2008]).
Viewing the evidence in light of the elements of the crimes as charged to
the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we reject
defendant's further contention that the verdict is against the weight of the
evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
Defendant also contends in his main and pro se supplemental briefs that
his statements to the police were not knowing and voluntary and that County
Court therefore erred in refusing to suppress them because he was not
given water the first time he requested it; “it was possible” that he was
“complaining” from opiate withdrawal symptoms and may have appeared
intoxicated; he was in custody for six hours before he was interrogated, and
was questioned for 2½ hours; and he was never given any medication while
in custody. We reject that contention. Here, the officer who questioned
defendant testified at the suppression hearing that defendant never
requested any form of medication or food, and did not complain that he was
suffering from withdrawal. Furthermore, although defendant's first request
for water was denied, he was thereafter provided with water and was
allowed to take several cigarette breaks. Thus, we conclude that “the totality
of the circumstances here does not ‘bespeak such a serious disregard of
defendant's rights, and [was not] so conducive to unreliable and involuntary
statements, that the prosecutor has not demonstrated beyond a reasonable
doubt that the defendant's will was not overborne’” (People v Jin Cheng Lin,
26 NY3d 701, 725 [2016]). Contrary to defendant's related contention, the
fact that defendant and the officer conducting the questioning were
acquaintances does not warrant a different conclusion (see generally
People v Gates, 101 AD2d 635, 635-636 [1984]).
We reject defendant's further contention in his main and pro se
supplemental briefs that the police lacked probable cause to arrest him.
“‘Probable cause does not require proof sufficient to warrant a conviction
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beyond a reasonable doubt but merely [requires] information sufficient to
support a reasonable belief that an offense has been or is being committed
or that evidence of a crime may be found in a certain place’” (People v
Myhand, 120 AD3d 970, 970 [2014], lv denied 25 NY3d 952 [2015]). Here,
a witness followed defendant's car directly from the store that was
burglarized to a house, and a police officer was allowed to enter the house
where defendant was seen walking up the stairs holding the stolen
television. In addition, an occupant of the house provided a statement that
defendant left the house with another man and came back with a television.
We thus conclude that the police had probable cause to arrest defendant
(see id.).
Defendant contends in his main brief that the court erred in admitting his
written statement in evidence because the People failed to comply with the
CPL 710.30 notice requirements, i.e., they indicated in their CPL 710.30
notice that defendant's written statement was made on September 13,
2013, when it was actually made on November 27, 2013. We reject that
contention. “‘[T]he purpose of the statute will be served when the defendant
is provided an opportunity to challenge the admissibility of the statement[ ]’”
(People v Simpson, 35 AD3d 1182, 1183 [2006], lv denied 8 NY3d 990
[2007]). While the statement displays the date September 13, 2013 on the
top lefthand corner of the first page, the dates underneath defendant's
signature at the bottom of both pages of the statement indicate that it was
made on November 27, 2013. We conclude that this mere clerical error did
not hinder defendant from challenging the admissibility of the statement
during the suppression hearing (see id.). We reject defendant's final
contention in his main brief that the sentence is unduly harsh and severe.
By failing to object to the jury charge as given, defendant failed to preserve
for our review his contention in his pro se supplemental brief that the jury
charge was improper with respect to the issue of voluntary statements (see
generally People v Robinson, 88 NY2d 1001, 1001-1002 [1996]). In any
event, we conclude that the court's charge, viewed in its entirety, “fairly
instructed the jury on the correct principles of law to be applied to the case
and does not require reversal” (People v Ladd, 89 NY2d 893, 896 [1996]).
We similarly reject defendant's contention in his pro se supplemental brief
that the court erred in denying his request for an adverse inference charge
concerning the failure of the police to record his interrogation electronically
(see People v Durant, 26 NY3d 341, 352-353 [2015]).
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Defendant's contentions in his pro se supplemental brief that the prosecutor
should have been disqualified and that defense counsel was ineffective
based on a conflict of interest concern matters outside of the record and
must be raised by way of a motion pursuant to CPL article 440 (see e.g.
People v Sanford, 138 AD3d 1435, 1436 [2016]).
We have reviewed defendant's remaining contentions in his pro se
supplemental brief and conclude that none requires modification or reversal
of the judgment.
People v. Maltese, 148 A.D.3d 1780, 1781–83, 50 N.Y.S.3d 770 (2017), lv. to appeal
denied, 29 N.Y.3d 1093 (2017).
On April 21, 2017, Petitioner filed a pro se collateral attack pursuant to New York
CPL § 440.10(1) asserting the following claims: 1) the Genesee District Attorney, Mr.
Friedman, his former First Assistant, William Zickl (“W. Zickl”), and Assistant District
Attorney Robert Zickl (“R. Zickl”) perpetrated fraud because the Zickl brothers “were both
involved in the initial prosecution” and they concealed the fact that W. Zickl’s daughter
was a friend of Petitioner’s daughter, which was a conflict that should have disqualified
the entire Genesee County District Attorney’s office; 2) Judge Noonan should have been
disqualified because he is the uncle of the Zickl brothers; 3) Judge Noonan should have
been disqualified because he was District Attorney Friedman’s former father-in-law; 4)
Judge Noonan should have been disqualified because he is an imposter whose real name
is Robert E. Noonan, Jr., rather than Robert C. Noonan as claimed; 5) the prosecution
used jailhouse informant Crandall to violate Petitioner’s right to counsel, by placing him
in the same cellblock with Petitioner so that he could spy on Petitioner, and, in addition,
there was a conflict since Assistant Public Defender William Tedford (“Tedford”), who
represented Petitioner for approximately two months, before Petitioner was indicted, had
also represented Crandall; 6) the court should appoint counsel for Petitioner, due to the
14
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alleged conflicts of interest; and 7) Tedford should be required to file a response. In
support of his state-court collateral attack, Petitioner attached various exhibits taken from
filings in federal court by a litigant named Richard Mills (“Mills”), who had unsuccessfully
made similar allegations against Judge Noonan.
On October 30, 2017, the Honorable Michael Mohun (“Judge Mohun”), Genesee
County Court Judge, denied Petitioner’s Section 440 motion, stating in pertinent part:
Findings of Fact and Conclusions of Law
1. In his supporting affidavit, the defendant arranges his grounds for
demanding the vacating of his convictions into five ‘points.’ He contends
that his acquaintance with a prosecutor –who did not participate in his trial—
disqualified the entire Genesee County District Attorney’s Officer from
prosecuting the case (point one), that conflicts of interest arising from
familial and other relationships required the judge to disqualify himself, and
his failure to do so denied the defendant a fair trial (points two and three),
that the judge was not qualified to act as a judge in the case (point four),
and that his 5th Amendment and 6th Amendment rights were violated by the
introduction of testimony from a jailhouse informant during the trial (point
five). He also asks for the appointment of counsel and funding to hire an
expert witness (point six), and for an order compelling his former attorney
to appear at a hearing upon the motion and declaring that the former
attorney may be treated by the defendant at the hearing as a ‘hostile
witness’ (point seven).
2. The defendant’s motion is without merit and shall be denied without a
hearing. The affidavits submitted by the defendant in support of his motion
–which by and large contain nothing but conclusory and unsubstantiated
allegations—fail to raise questions of fact which would necessitate such a
hearing (CPL § 440.30[4][b]; People v. LaPella, 185 A.D.2d 861 [2d Dept.,
1992], leave to appeal denied by 81 N.Y.2d 842 [1993]; People v. Waymon,
65 A.D.3d 708, 709 [2nd Dept., 2009], leave to appeal denied by 13 N.Y.3d
863 [2009]). The Court shall also deny the defendant’s requests for a
subpoena for his former attorney, the appointment of counsel and funding
to hire an expert witness.
15
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3. From a review of the documentation annexed as exhibits to the
defendant’s supporting affidavit, it is obvious that, with the exception of his
point one and possibly point five, his claims are all derived from claims
previously made by Richard Mills in his suit against Robert C. Noonan filed
under Index Number 16-cv-984 in the Federal District Court for the Western
District of New York. All but one of the annexed affidavits bear the index
number and/or caption of that case, showing that all but one were actually
prepared [by Mills] for submission to the Federal District Court in connection
with that case. In seeking to have his conviction vacated, the defendant
has apparently simply adopted Mr. Mills’ claims as his own. Upon
examining the supporting documentation, the Court finds that it is entirely
lacking in probative value –containing, as it does, little beyond conclusory
allegations of wrongdoing, second-hand reports of alleged jailhouse
rumors, vague allusions to an ‘investigation’ performed by an unnamed
‘private investigator’ engaged by Mr. Mills, and outlandish assertions about
the judge and the prosecutors.
4. The Court notes that the Honorable Michael A. Telesca, United States
District Court Judge, dismissed with prejudice Mr. Mills’ suit under index
number 16-cv-984 in a decision signed April 13, 2017 (Mills v. Noonan,
2017 WL 1353479). In doing so, the Judge found that ‘[a]ll of Plaintiff’s
purported causes of action under federal law have been found to lack an
arguable basis in law or fact.’ Mr. Mills has appealed the dismissal. 15
5. With respect to the defendant’s point one, the defendant’s allegations of
a personal acquaintance with a prosecutor are insufficient to establish
‘actual prejudice arising from a demonstrated conflict of interest or a
substantial risk of an abuse of confidence.’ (People v. Davis, 150 A.D.3d
1396 [3d Dept., 2017]). Without such a showing, the defendant’s claim that
the District Attorney’s Office should have been disqualified cannot provide
a basis for vacating the conviction. (Id.).
6. With respect to point two, the Court notes that the People have refuted
the defendant’s claims with the submission of the June 2, 2005, Decision
and Order of County Court Judge Robert C. Noonan in the case of People
v. Richard F. Mills (Indictment no. 4639). Mills was convicted following a
jury trial of Attempted Murder in the 1st Degree, Attempted Assault in the 1st
Degree, Reckless Endangerment in the 1st Degree, Criminal Possession of
The Court takes judicial notice of the fact that the Second Circuit dismissed the appeal, observing that
the action continued Mr. Mills’ “prior pattern of vexatious filings.” 16-CV-0984 MAT, ECF No. 35.
15
16
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Marijuana in the 3rd Degree, and two counts of Criminal Possession of a
Weapon in the 3rd Degree, and the Genesee County Court sentence him to
an aggregate prison term of 20 years to life on December 16, 2004. Like
the defendant in this case, Mills argued that Judge Noonan should have
disqualified himself due to his familial relationship with two Assistant District
Attorneys, Robert and William Zickl, who are brothers. As Judge Noonan
explained in his June 2, 2005, Decision and Order, he is, in fact, related to
the Zickl brothers as first cousins once removed. This is a fifth-degree
relationship with does not require mandatory recusal pursuant to court rule
§ 100.3(E)(1)(e) (22 NYCRR § 100.3[E][1][e]).
That rule requires
mandatory recusal only where ‘the judge knows that the judge or the judge’s
spouse, or a person known to the judge to be within the fourth degree of
relationship to either of them, or the spouse of such person, is acting as a
lawyer in the proceeding or is likely to be a material witness in the
proceeding.’ (emphasis added). Judge Noonan went on to find that
discretionary recusal was also not required based on the relationship. In
denying Mills’ motion, Judge Noonan noted that Mills’ allegations of bias on
the part of the Court in favor of the District Attorney and the Zickls amount
to ‘[n]othing but unfounded castigation and speculation.’
7. With respect to point three, alleging that ‘close working and family ties’
existing between Judge Noonan and the District Attorney required recusal
of the judge and deprived the court of jurisdiction in the case, the defendant
offers several affidavits of Richard Mills in which Mr. Mills various asserts
that, while in jail, he was told by his lawyer and by deputies that the District
Attorney ‘either married Judge Noonan’s daughter or Judge Balbick’s
daughter,’ or that he ‘married a Noonan girl.’ The hearsay reports have no
probative value and fail to provide any support for the defendant’s claim.
8. Moreover, in his June 2, 2005, Decision and Order in Mr. Mills’ case,
Judge Noonan considered and rejected Mr. Mills’ contention that his ties to
the District Attorney required recusal. Therefore, the June 2, 2005, decision
also refutes defendant’s attempt to re-assert Mills’ claim under his point
three.
9. The source for the outlandish allegations made under the defendant’s
point four is, once again, Richard Mills. In his affidavits, Mills alludes
vaguely to an ‘investigation’ conducted by a ‘private investigator’ based on
which ‘it is now believed, upon investigation, documentation, and
information and belief, that former Judge Robert C. Noonan, reported in the
17
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NY legal pages of 2016, as born on August 6, 1947, does not even exist.’
He goes on to declare that ‘[t]here is no Robert C. Noonan born in Batavia
in 1947,’ and that the name Robert C. Noonan is a ‘fake name’ adopted by
Judge Noonan in order to ‘deceive everyone.’ Mills then invents a fanciful
alternate biography for Judge Noonan. This excursion into fantasy allows
him to re-arrange the family trees of the Zickl and Noonan families in order
to place Judge Noonan within the third degree of kinship with the Zickl
brothers, rather than the fifth degree. In this manner, he finds a way to
reassert his allegation that Judge Noonan was subject to mandatory
disqualification in his case, and the defendant, based on Mills’ allegations,
re-asserts the same claim in his case, also. As a reiteration of the degreeof-kinship argument made under defendant’s point two, point four is likewise
refuted by Judge Noonan’s Decision and Order of June 2, 2005.
10. In point five, the defendant claims that law enforcement officials placed
an individual, who would subsequently testify against the defendant at his
trial, into the defendant’s jail cell block in a scheme to obtain from the
defendant incriminating statements in violation of his right to counsel and
his right to remain silent. The defendant’s submissions fail to substantiate
this allegation, however. Furthermore, given that the witness’s testimony is
a matter of record, nothing prevented the defendant from raising this claim
in his direct appeal, and yet it appears that he unjustifiably neglected to do
so (see People v. Maltese, 148 A.D.3d 1780 [4th Dept., 2017]). In addition,
to the extent that the submitted affidavits – which primarily describe
overheard statements attributed to the witness, as well as various jailhouse
rumors involving him—may arguably be said to provide colorable factual
basis for the claim, it is evident that the defendant could, with due diligence,
have made that factual basis appear in the record so as to have allowed
adequate review of the issues in his direct appeal. He did not do so, and
therefore the Court determines that the claim shall be denied pursuant to
CPL § 440.10(2)(c), or in the alternative pursuant to CPL § 440.10(3)(a).
11. Having determined that the defendant’s substantive claims do not merit
a hearing, the Court shall also deny as moot his requests for the
appointment of counsel, for an order providing him with funds to engage an
expert, and for the issuance of a subpoena requiring his former counsel to
appear and testify at a hearing.
18
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ECF No. 1-1 at pp. 12–16. Petitioner attempted to appeal Judge Mohun’s decision, but
on February 7, 2018, the Appellate Division Fourth Department denied his request for
leave to appeal. SR 502.
On March 5, 2018, Petitioner filed the subject habeas petition, purporting to assert
eleven separate grounds. In “Ground One,” Petitioner alleges that the trial court erred in
finding that his confession was involuntary and gave an incorrect jury instruction on
voluntariness of confessions. In support of this claim Petitioner basically argues that,
because it is undisputed that he had regularly used narcotic painkillers and abused crack
cocaine and had been in police custody for several hours prior to giving his statement, he
must have been experiencing withdrawal when he gave the confession, notwithstanding
all testimony to the contrary. Besides that, he asserts that his friendship with Welker
somehow created a conflict and rendered his confession non-voluntary. In that regard,
Petitioner alleges that Welker was not really qualified to perform such an interview,
suggesting that Welker was assigned to that role only so that he could take advantage of
his friendship with Petitioner. Further, Petitioner alleges that Welker’s failure to record
the interview rendered his confession involuntary. Petitioner additionally contends that
he invoked his Fifth Amendment right to remain silent when, during a cigarette break, he
remarked to Chief Deputy Brewster that it was a good thing Brewster had assigned
Welker to interview Petitioner since Petitioner would not have agreed to talk with anyone
else. Petitioner also contends that Judge Noonan gave an incorrect jury instruction on
voluntariness by omitting the word “not” from the phrase, “if the People have not proven
beyond a reasonable doubt that a statement of the defendant was voluntarily made, then
you must disregard the statement and not consider it.” Finally, Petitioner alleges that
19
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Pilato provided ineffective assistance of counsel by, for example, failing to object to the
jury instruction on voluntariness.
Ground Two alleges that the police lacked probable cause to arrest Petitioner. In
support of that claim, Petitioner contends that Detective Crossett really had no good
reason to think that Petitioner had been involved in the burglary at the Rent-A-Center,
and that Crossett testified falsely concerning the events leading up to the arrest.
Petitioner further contends that Pilato provided ineffective assistance of counsel by failing
to make a more thorough motion to dismiss based on lack of probable cause.
Ground Three alleges that Judge Noonan “violated the mandatory jury note
procedures” by reading and addressing various notes from the jury in Petitioner’s
absence. In support of this claim, Petitioner contends that his “presence in the court room
during the final day of the trial is vague, questionable and incomplete at best,” since the
transcript does not always affirmatively indicate that he was present at various points.
Petitioner also objects to the fact that the transcript does not expressly recite all of the
testimony that was read back to the jury at its request.
Ground Four alleges that Petitioner’s convictions were not supported by legally
sufficient evidence. In support of this claim, Petitioner argues that no fingerprint evidence
or DNA evidence was introduced, and that the descriptions given of the robber by some
of the victims did not match his appearance. Petitioner further contends that Pilato
provided ineffective assistance of counsel by failing to move for dismissal of the charges
based on a lack of “forensic evidence” and inconsistencies in the descriptions provided
by the robbery victims.
Ground Five alleges that Petitioner’s convictions were not supported by legally
sufficient evidence since the jury instruction on voluntariness was inaccurate (resulting in
20
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a “directed verdict” of guilt); the police interview was not recorded; Judge Noonan
declined to give an “adverse inference” instruction based on the failure to record the
interview; and Judge Noonan “violated Petitioner’s right to present a defense” by ruling
that Petitioner’s medical records (which would have shown that Petitioner was a longtime user of opiate pain medication) 16 were inadmissible.
Ground Six alleges that Assistant District Attorney William Zickl and District
Attorney Friedman “perpetrated a fraud” by hiding a conflict of interest that should have
disqualified the entire Genesee County District Attorney’s Office, since Zickl’s daughter
was a friend of Petitioner’s daughter and Zickl’s wife was a friend of Petitioner’s ex-wife,
and Zickl was involved in Petitioner’s prosecution, despite him and Friedman claiming
otherwise.
Ground Seven alleges that Judge Noonan should have been disqualified from
sitting as judge on Petitioner’s case since he is the uncle of Assistant District Attorneys
William Zickl and Robert Zickl.
Ground Eight alleges that Judge Noonan should have been disqualified from sitting
as judge on Petitioner’s case since he is father-in-law or ex-father-in-law to District
Attorney Friedman.
Ground Nine alleges that Judge Noonan should have been disqualified from sitting
as judge on Petitioner’s case since he is an impostor whose name is really Robert E.
Noonan, Jr., and not Robert C. Noonan as he claims.
Ground Ten alleges prosecutorial misconduct, in which Friedman used jailhousesnitch Crandall to spy on Petitioner while in jail, thereby denying Petitioner his right to
The Court observes that there was no dispute that Petitioner was a user of narcotic pain medication.
Indeed, Welker testified to that fact, but also testified that Petitioner showed no signs of illness or withdrawal
while making his statements.
16
21
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counsel. Petitioner further contends that this plot involved Assistant Genesee County
Public Defender William Tedford, who had represented both Petitioner and Crandall prior
to Petitioner retaining Pilato, as well as Judge Noonan. Petitioner also alleges that Pilato
provided ineffective assistance of counsel, since, although he was aware of Friedman’s
plot and had spoken directly to Crandall about it, he told Petitioner he would have been
disqualified from representing Petitioner “under the advocate witness rule” if he had raised
the issue at trial. 17
Finally, Ground Eleven alleges that Judge Mohun, who presided over and denied
Petitioner’s Section 440.10 Motion, should have been disqualified for various reasons,
namely: Mohun had been the “mentor” of another judge who had recused himself from
hearing Petitioner’s motion; Mohun’s law clerk was William Zickl; Mohun, as an attorney,
had previously represented Crandall and was a “close friend” of Crandall; and Mohun had
previously been an advisor to the Genesee County Sheriff’s Department Drug Task
Force.
Respondent opposes the Petition for reasons that will be discussed further below,
including that the claims are unexhausted, procedurally barred and/or lacking in merit.
17 See, e.g., Pet. at p. 43 (“Mr. Pilato had no choice, he had to remain silent and he knew what they were
doing to him and his client. . . . Friedman and Noonan had this attorney right where they wanted him, if he
raised this he would be off the case. Thus in trial counsel [(Pilato)] could not cross-examine or ‘confront’
Steve Crandall without fear he would be immediately disqualified, or end up in a mistrial or place his client
in a very difficult counsel position midtrial. Mr. Maltese questioned counsel on why he would not confront
Steven Crandall and counsel said, “I can’t,” advocate witness rule.”).
22
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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).
The Application for Appointment of Counsel is Denied
Petitioner has moved for appointment of counsel. (ECF No. 7). Prisoners have no
constitutional right to counsel when bringing collateral attacks upon their convictions.
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). However, the Court may appoint
counsel in the interests of justice to any person seeking relief pursuant to 28 U.S.C. §
2254 who is financially unable to obtain representation. 28 U.S.C. § 2254(h). The Court
considers several factors in determining whether to assign counsel, including whether the
indigent's claims seem likely to be of substance; whether the indigent is able to investigate
the facts concerning his claim; whether the legal issues are complex; and whether there
are special reasons why the appointment of counsel would be more likely to lead to a just
determination. See Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997); Hodge v.
Police Officers, 802 F.2d 58 (2d Cir. 1986). The Court must consider the issue of
appointment carefully because “every assignment of a volunteer lawyer to an undeserving
client deprives society of a volunteer lawyer available for a deserving cause.” Cooper v.
A. Sargenti Co. Inc., 877 F.2d 170, 172 (2d Cir. 1989).
Having considered the relevant factors, the Court finds that appointment of counsel
is not warranted here since Petitioner has adequately presented the claims himself, and,
indeed, has in his past state-court proceedings insisted upon submitting supplemental
pro se briefs even when he has been provided assigned counsel.
23
Additionally, for
Case 6:18-cv-06188-CJS Document 50 Filed 06/08/22 Page 24 of 64
reasons discussed below the claims lack merit and would not be likely to succeed even if
counsel were appointed. The application for appointment of counsel is therefore denied.
The Discovery Requests are Denied
While the habeas petition was pending, Petitioner filed several discovery-related
motions and requests. See, e.g., ECF No. 28 (motion for miscellaneous relief); ECF No.
29 (proposed interrogatories and other document requests); ECF No. 33 (motion for
discovery).
Habeas petitioners are “not entitled to discovery as a matter of ordinary
course,” Bracy v. Gramley, 520 U.S. 899, 904 (1997), but rather, may be
granted discovery in the exercise of judicial discretion and “for good cause
shown,” see Rule 6(a) of the Rules Governing Section 2254 Cases in the
United States District Courts. Courts routinely deny discovery when the
requested documents “would not corroborate Petitioner's arguments.” See
Wynn v. Lee, 11-CV-3650 (VSB) (SDA), 2020 WL 2489733, at *7 (S.D.N.Y.
May 13, 2020); see also Hirschfeld v. Comm'r of the Div. of Parole, 215
F.R.D. 464, 465 (S.D.N.Y. 2003).
Weston v. Capra, No. 18CIV05770PMHJCM, 2022 WL 1811161, at *17 (S.D.N.Y. Apr.
13, 2022).
Good cause exists “where specific allegations before the court show reason
to believe that the petitioner may, if the facts are fully developed, be able to
demonstrate that he is entitled to relief.” Bracy, 520 U.S. at 908-09
(alteration omitted) (quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)). “A
petitioner bears a heavy burden in establishing a right to discovery,” and
“[g]eneralized statements are not sufficient to establish the requisite ‘good
cause.’” Edward v. Superintendent, Southport C.F., 991 F. Supp. 2d 348,
364 (E.D.N.Y. 2013).
Brown v. Sheehan, No. 17-CV-213-LJV-HKS, 2021 WL 6113947, at *4 (W.D.N.Y. Dec.
27, 2021). Here, Petitioner has not made the required showing. As discussed further
below, Petitioner’s theories lack any merit, and the Court fails to see how the requested
discovery might corroborate Petitioner’s claims or alter the outcome of this action.
24
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Consequently, the discovery-related applications, whether docketed specifically as such
(ECF Nos. 28, 29, 33) or contained in letters, are denied.
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).
25
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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
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).
“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
26
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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
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).”).
The Claims Alleging Conflicts of Interest Involving Judge Noonan,
Judge Mohun, Friedman and the Zickl Brothers Lack Merit
As discussed earlier, Petitioner devotes a large amount of his Petition to claims of
conflict involving Judge Noonan, Judge Mohun, District Attorney Friedman, and Assistant
District Attorneys William Zickl and Robert Zickl. (Grounds Six, Seven, Eight, Nine and
Eleven). In support of these claims, Petitioner asserts that William Zickl’s daughter was
a friend of his daughter; that Judge Noonan is the uncle of the Zickl brothers; that Judge
Noonan is or was Friedman’s father-in-law; that Judge Noonan is an imposter using a
fictitious name; and that Judge Mohun should have been disqualified since he employed
William Zickl as his law clerk and had previously represented jailhouse-informant
Crandall.
27
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Respondent maintains that the claims are “partly non-cognizable and wholly
meritless.” More specifically, Respondent contends that the state courts’ factual findings
refuting the allegations of conflict involving Judge Noonan, Friedman and the Zickls are
entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1) and are not contrary
to clearly-established federal law. Respondent further maintains that the claim involving
Judge Mohun is not cognizable in a § 2254 proceeding, and also lacks merit.
The Court agrees with Respondent. At the outset, the Court notes that the claim
against Judge Mohun (Ground Eleven) is unexhausted.
In that regard, Petitioner
previously raised the claims involving Judge Noonan, Friedman and the Zickls in his direct
appeal and/or § 440.10 motion. However, Petitioner’s allegations involving Judge Mohun
were previously raised only in his application for leave to appeal from the denial of his §
440.10 motion, which was summarily denied on the ground that it raised “no question of
law or fact which ought to [have been] reviewed,” which means that Ground Eleven is
unexhausted. 18 Nevertheless, the Court may deny an unexhausted claim on its merits. 19
Moreover, the Court agrees with Respondent that the claim involving Judge Mohun,
consisting of alleged error in post-conviction proceeding, is simply not cognizable in this
action. See, Word v. Lord, 648 F.3d 129, 131–32 (2d Cir. 2011) (“As the Supreme Court
has recognized, the Constitution does not compel states to provide post-conviction
proceedings for relief. A majority of our sister Circuits have accordingly concluded that
See, Andujar v. Kickbush, No. 918CV0521GLSDEP, 2019 WL 2746599, at *5 (N.D.N.Y. June 10, 2019)
(“Unfortunately for petitioner, it is well-established that presentment of a claim for the first time on an
application for discretionary review, such as in a motion for leave to appeal to the New York Court of
Appeals, is insufficient to exhaust the claim unless discretionary review is granted and the claim is
addressed on the merits. Here, petitioner's application for leave to appeal to the New York Court of Appeals
was denied and, thus, his claim was not addressed on the merits.”) (collecting cases, citations omitted),
report and recommendation adopted, No. 918CV521GLSDEP, 2019 WL 2743574 (N.D.N.Y. July 1, 2019).
19 See, 28 U.S.C. § 2254(b)(2) (“An application for writ of habeas corpus may be denied on the merits,
notwithstanding the failure of the applicant to exhaust remedies available in the courts of the State.”).
18
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errors in state post-conviction proceedings do not provide a basis for redress under §
2254. We agree, and hold that alleged errors in a postconviction proceeding are not
grounds for § 2254 review because federal law does not require states to provide a postconviction mechanism for seeking relief.”) (citations omitted). Moreover, even if the claim
was cognizable, Petitioner’s assertions concerning Judge Mohun amount to nothing more
than a series of mostly-irrelevant, unsubstantiated hearsay allegations that do not
plausibly call the Judge’s impartiality into question.
Accordingly, Ground Eleven is
denied.
The Court further agrees that the claims in Grounds Six-through-Nine lack merit.
With regard to Ground Six, Petitioner’s contention that the entire Genesee County District
Attorney’s Office should have been disqualified simply because William Zickl’s daughter
knew Petitioner’s daughter, and Zickl’s wife knew Petitioner’s ex-wife, is legally meritless.
In that regard, Judge Mohun ruled that “the defendant’s allegations of a personal
acquaintance with a prosecutor are insufficient to establish actual prejudice arising from
a demonstrated conflict of interest or a substantial risk of an abuse of confidence,” citing
People v. Davis, 150 A.D.3d 1396 (3d Dept. 2017). Petitioner has not shown that this
ruling was contrary to clearly-established federal law.
Grounds Seven-through-Nine fare no better, and, indeed, deserve little discussion
since they are merely meritless, regurgitated conspiracy theories, popular among
defendants who were convicted of crimes in Genesee County, that have already been
thoroughly debunked by other courts. To be clear, Petitioner has no personal knowledge
about any of the matters alleged in these claims. Rather, he relies primarily on bits of
hearsay information cobbled together from internet searches and FOIA requests and,
above all, on prior court filings by Richard Franklin Mills, DIN No. 02-B-0778, currently
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serving a sentence of twenty-to-life in the custody of the New York Department of
Corrections and Community Service (“DOCCS”) after being convicted, before Judge
Noonan, of Attempted Murder in the First Degree, Attempted Assault in the First Degree,
Reckless Endangerment in the First Degree and Criminal Possession of a Weapon in the
Third Degree. See, People v. Mills, 28 A.D.3d 1156, 813 N.Y.S.2d 592 (4th Dept. 2006).
Evidently, it was Mills who pioneered the conspiracy theories upon which Petitioner relies,
such as the idea that Judge Robert C. Noonan is an impostor, actually named Robert E.
Noonan, Jr., who therefore had no authority to hold office.
Copying the filings of Mills, however, is a poor litigation strategy since Mills’
lawsuits, containing the same allegations, have consistently been dismissed by this Court
as meritless, to the point that there are now pro se “filing bans” against Mills resulting
from his pattern of vexatious filings. See, e.g., In re Mills, 2019 WL 2361488 (W.D.N.Y.
Jun. 4, 2019) (“Respondent has failed to provide sufficient justification for continued filing
of vexatious and frivolous documents and pleadings. . . . Respondent recently deluged
the Court with identical 229-page combined motions to vacate and to amend the petition
or complaint in three of his closed cases, along with six volumes of exhibits, some of
which had to be filed manually because they are so voluminous. E.g., Docket Nos. 2427, 29, & 31 in Mills v. Noonan, et al., 1:16-cv-00984(MAT) (W.D.N.Y.). These motions
reprise the same claims of conspiracy, corruption and nepotism in Genesee County that
this Court has repeatedly determined lack any arguable basis in law or fact. In addition,
Respondent now accuses the undersigned and “other senior judges of this court” of being
disqualified under 28 U.S.C. § 455; of committing mail fraud, wire fraud, and perjury; of
“covering up” the conspiracy.
[Consequently,] no lesser sanction than an anti-filing
injunction will be sufficient to deter Respondent from abusing the Court system in order
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to pursue his deluded vendetta against the trial judge who convicted and sentenced him.
Therefore, Respondent is permanently enjoining from filing any document or pleading of
any kind pro se in the Western District of New York without leave of the Chief Judge or
the Chief Judge's designee.”) (Telesca, J.) (emphasis added); see also, Mills v. Western
District of New York, 2019 WL 4733528 (2d Cir. Jul. 29, 2019) (“In 2018, this Court
entered a leave-to-file sanction against Petitioner. See Mills v. Poole, 2d Cir. 17-1588,
doc. 77. Petitioner now moves for leave to file this appeal. Upon due consideration, it is
hereby ORDERED that the motion is DENIED because the appeal does not depart from
Petitioner's “prior pattern of vexatious filings.” See In re Martin-Trigona, 9 F.3d 226, 229
(2d Cir. 1993).”).
In sum, for the reasons just discussed Petitioner’s Grounds Six, Seven, Eight, Nine
and Eleven are denied.
The Claims Relating to the Voluntariness of the Confession Lack Merit
In Ground One Petitioner alleges that the trial court erred in denying his motion to
suppress his statements made to Welker, since the statements were involuntarily made.
As already mentioned, Petitioner offers several reasons for why he believes the
statements were involuntary, including that he was experiencing withdrawal from drugs,
the interview was not taped, he invoked his Fifth Amendment right to remain silent, and
Welker was conflicted from taking the statement since he and Petitioner were friends. In
support of his factual contention that he was experiencing drug withdrawal at the time he
gave his statements, Petitioner essentially argues by inference that since he was a user
of narcotic pain medications and crack cocaine and had been in custody for approximately
six hours when he gave his statements, he necessarily must have been experiencing
withdrawal sufficient to make his statement involuntary.
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Petitioner further contends
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that Judge Noonan incorrectly instructed the jury as to voluntariness, and that such error
affected the sufficiency of the evidence supporting the convictions.
Respondent maintains that the Appellate Division properly affirmed the denial of
Petitioner’s suppression motion, and that the claim involving the jury instruction is both
procedurally barred and lacking in merit. The Court agrees with Respondent on both
points.
Beginning with the alleged error concerning the voluntariness of Petitioner’s
statements, the relevant legal principles are as follows:
As the claim now before this court has . . . been rejected on the merits by
the state court, this court can only grant the Petition if the state court's
determination was contrary to clearly established federal law or based on
an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). . . .
A confession is not voluntary when “the defendant's will was overborne at
the time he confessed.” Lynumn v. Illinois, 372 U.S. 528, 534, 83 S.Ct. 917,
9 L.Ed.2d 922 (1963). To determine whether a statement is voluntary,
therefore, the court must look at the totality of circumstances under which
the confession was made. See Arizona v. Fulminante, 499 U.S. 279, 285–
86, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); see also Dickerson v. United
States, 530 U.S. 428, 434, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000) (stating
that the test for whether a confession is voluntary or coerced under the Due
Process Clause considers the totality of the circumstances surrounding the
confession, including both the characteristics of the accused and the details
of the interrogation).
In reviewing a challenge to the voluntariness of a confession on a federal
petition for a writ of habeas corpus, “the ultimate issue of ‘voluntariness’ [of
a confession] is a legal question requiring independent federal
determination.” Miller v. Fenton, 474 U.S. 104, 110, 106 S.Ct. 445, 88
L.Ed.2d 405 (1985). Thus, the state court's finding of voluntariness is not
presumed correct under section 2254. However, subsidiary factual
questions, including whether the police engaged in the actions alleged by
the criminal defendant, are entitled to the presumption of correctness found
in section 2254(d). Id. at 112, 106 S.Ct. 445. Thus, such factual
determinations by the trial court are presumed correct unless the petitioner
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rebuts the presumption by clear and convincing evidence. 28 U.S.C. §
2254(e)(1).
Holliday v. Weir, No. 3:17-CV-1125 (JCH), 2018 WL 264847, at *6 (D. Conn. Jan. 2,
2018), appeal dismissed, 2018 WL 7021867 (2d Cir. May 30, 2018); see also, Alexandre
v. Senkowski, 126 F. App'x 7, 12 (2d Cir. 2005) (“State court determinations of subsidiary
factual questions underlying the question of voluntariness in this context are subject to
the presumption of correctness set forth in 28 U.S.C. § 2254(e)(1), and a petitioner has
“the burden of rebutting the presumption of correctness by clear and convincing
evidence,” 28 U.S.C. § 2254(e)(1).”).
Petitioner here has not rebutted by clear and convincing evidence the presumption
of correctness that must be given to the state courts’ factual determinations concerning
the circumstances under which he gave the statements. The Court therefore assumes,
as part of this analysis, that at approximately 1:30 AM, on November 27, 2013, when
Petitioner was taken to the Genesee County Sheriff’s Office, he displayed no pain or
impairment and asked only for a drink of water, which he was eventually given; 20 that at
approximately 7:00 AM, when Welker met with Petitioner, Petitioner did not appear to be
ill or under the influence of alcohol or drugs; that Welker properly administered the
Miranda warnings to Petitioner; that Petitioner indicated that he understood his rights and
was willing to waive them and speak to Welker; that at no time did Petitioner ask to stop
the interview or to have counsel; that no threats or promises were made to Petitioner; that
during the interview, which lasted approximately two hours, Petitioner was allowed to take
several cigarette breaks; and that Welker reduced Petitioner’s statements to writing, after
At most, Petitioner has indicated that he was not immediately given water the first time he asked for it,
but that he was given it after asking a second time.
20
33
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which Petitioner signed the statements. Under these facts, the state courts’ findings of
voluntariness are not contrary to clearly established federal law.
Petitioner, though, contends that as a matter of law his confession was rendered
involuntary because it was taken by his friend, Welker, and because it was not recorded.
Petitioner further argues that he invoked his right to remain silent when he told Chief
Deputy Brewster that it was a good thing that Brewster was doing the interview, since he
would not have agreed to talk with anyone else. However, the state courts rejected those
arguments, and Petitioner has not shown that such rulings were contrary to clearly
established federal law.
For example, even assuming arguendo that Welker was selected to interview
Petitioner because of their past friendship, that fact does not render the confession
involuntary since there is no indication that Welker misused that relationship to pressure
or mislead Petitioner. See, United States v. Anderson, 929 F.2d 96, 100 (2d Cir. 1991)
(“Although ‘[p]loys to mislead a suspect or to lull him into a false sense of security that do
not rise to the level of compulsion or coercion to speak are not within Miranda's concerns,”
Illinois v. Perkins, 496 U.S. 292, 110 S.Ct. 2394, 2397, 110 L.Ed.2d 243 (1990), the
Supreme Court has found that affirmative misrepresentations by the police may be
sufficiently coercive to invalidate a suspect's waiver of the Fifth Amendment privilege.”)
(collecting cases); compare, Spano v. New York, 360 U.S. 315, 322–23, 79 S.Ct. 1202,
1206–07, 3 L.Ed.2d 1265 (1959) (misrepresentation by suspect's friend that friend would
lose his job as a police officer if the suspect failed to cooperate rendered his statement
involuntary); United States v. Douglas, 688 F. App'x 658, 664 (11th Cir. 2017) (“The
district court did not err in finding that Officer Martinez did not employ an impermissible
“two-step” interrogation tactic here. At the suppression hearing, Officer Martinez stated
34
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that, at no time during the traffic stop did he “purposely and intentionally plan to get an
admission” from Douglas, nor did he purposely and intentionally withhold Miranda
warnings. Officer Martinez also denied advising Douglas of his Miranda rights because
he got admissions and then wanted to “reinforce those admissions” with further questions.
Instead, the record evidence demonstrated that Officer Martinez first spoke to Douglas
as a friend or acquaintance, giving him a “scolding” about having drugs and a firearm.
Officer Martinez then transitioned to an officer-suspect relationship by telling Douglas,
“[w]e’re gonna do everything official anyways, ok?” and reading Douglas his Miranda
rights.”).
Petitioner is also incorrect insofar as he maintains that the failure to videotape his
confession required that the confession be suppressed. See, United States v. Osbourne,
No. 14-CR-6136 (FPG), 2016 WL 9274461, at *4 (W.D.N.Y. Oct. 5, 2016) (“Lastly,
Osbourne argues that the statements he made on June 26, 2014, must be suppressed
because the interrogation was not recorded.
Though Special Agent Smith and
Investigator Pearce acknowledged that the DBA and RPD, respectively, have policies
requiring the audio– and videotaping of interrogations, their failure to comply with those
policies does not, under current well-established caselaw, require the Court to grant
defendant's motion to suppress.”) (collecting federal cases), report and recommendation
adopted, No. 14-CR-6136-FPG, 2017 WL 2880352 (W.D.N.Y. July 6, 2017). Moreover,
Petitioner is mistaken in asserting that the Genesee County Sheriff’s policies required
that his interview be videotaped, particularly where videotaping was not practical since
Welker knew that Petitioner was unwilling to be recorded.
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Finally, Petitioner’s contention that Welker continued the interview after he
asserted his right to remain silent is baseless. After Petitioner was advised of his Miranda
rights, he waived them and agreed to speak with Welker. Petitioner never subsequently
told Welker, or any other officer, that he wanted to stop the interview. Rather, he merely
commented to Chief Deputy Brewster, during a cigarette break, that it was a good thing
Welker was taking his statement, since he would not have agreed to talk with any other
officer. As the state courts found, such comment was not an unambiguous invocation of
the right to remain silent. See, e.g., United States v. Whitaker, 827 F. App'x 39, 43 (2d
Cir. 2020) (“Where, as here, an individual in police custody has been given his Miranda
warnings, has indicated that he understands he has a right to remain silent, and has not
unambiguously invoked such a right, the individual waives his right to remain silent by
knowingly and voluntarily making a statement to police. See Berghuis v. Thompkins, 560
U.S. 370, 385-86, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010).”).
The Claim that Police Lacked Probable Cause to Arrest Must Be Denied
Petitioner next contends that the police lacked probable cause to arrest him on the
night of the Rent-A-Center burglary. In that regard, Petitioner offers various reasons why
he believes probable cause was lacking and that his suppression motions should have
been granted, such as that Detective Crosset testified falsely during the suppression
hearing and that the defense was denied discovery (photographs taken by the civilian
witness to the Rent-A-Center burglary) that would have refuted aspects of Crossett’s
testimony. Petitioner acknowledges that attorney Pilato had the opportunity to litigate the
discovery issue and to cross-examine Crossett about the alleged inconsistencies in his
testimony. Indeed, Petitioner admits that the suppression hearing was adjourned to allow
Pilato to review certain discovery before continuing his examination of Crossett, and that
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to the extent Pilato requested other additional discovery in connection with the
suppression hearing, Judge Noonan denied the request.
Nevertheless, Petitioner
contends that Judge Noonan’s adverse ruling in that regard amounts to a “Brady
violation.”
Respondent, meanwhile, indicates that Petitioner’s “probable cause” claim is
barred from review in this proceeding pursuant to Stone v. Powell, 428 U.S. 465 (1976),
since Petitioner had a full and fair opportunity to litigate the issue in state court. See,
Chavis v. Henderson, 638 F.2d 534, 538 (2d Cir. 1980) (“Appellee's alternate argument,
that his arrest was without probable cause and that therefore the identification evidence
should have been excluded, was properly rejected by the district court. Appellee made
no showing in the district court that he had been precluded from a full and fair opportunity
to litigate this issue in the state courts. Under Stone v. Powell, 428 U.S. 465, 494, 96 S.Ct.
3037, 3052, 49 L.Ed.2d 1067 (1976), he may not urge the same grounds for federal
habeas corpus relief.”).
The Court agrees with Respondent. The applicable law to which Respondent
refers is well settled:
“[W]here the state has provided an opportunity for full and fair litigation of a
Fourth Amendment claim, the Constitution does not require that a state
prisoner be granted federal habeas corpus relief on the ground that
evidence obtained in an unconstitutional search or seizure was introduced
at his trial.” Stone v. Powell, 428 U.S. 465, 482, (1976); see also Grey v.
Hoke, 933 F.2d 117, 121 (2d Cir. 1991); Canteen v. Smith, 555 F. Supp. 2d
407, 416 (S.D.N.Y. 2008). Therefore, in order to grant the petition, the
petitioner must show that he was not given a full and fair opportunity to
litigate because the state failed to provide “corrective procedures” by which
his claim could be adjudicated, or that he was unable to avail himself of the
state's procedures “because of an unconscionable breakdown in the
underlying process.” Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992). If a
state “provides no procedure for defendants to redress Fourth Amendment
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violations, federal habeas corpus remains available.” Shaw v. Scully, 654
F. Supp. 859, 863 (S.D.N.Y. 1987). But, if “the state by enacting a statutory
mechanism for the suppression of evidence obtained by unlawful search
and seizure, has provided an opportunity fully and fairly to litigate Fourth
Amendment issues, the federal courts may not reexamine those issues on
habeas corpus review.” Id. (citing McPhail v. Warden, Attica Corr. Facility,
707 F.2d 67, 69 (2d Cir. 1983)). New York “provides criminal defendants an
opportunity to litigate Fourth Amendment search and seizure issues before
trial” through a suppression hearing under N.Y. Crim. Proc. Law § 710.30.
Shaw, 654 F. Supp. at 864. Therefore, [the defendant] must allege that
there was an “unconscionable breakdown” in the underlying process.
Cepeda v. Morton, No. 19 CV 2444 (JGK), 2020 WL 6382052, at *4 (S.D.N.Y. Oct. 30,
2020) (footnotes omitted), appeal dismissed, No. 20-3873, 2021 WL 1964767 (2d Cir.
May 13, 2021).
When applying this standard, it is generally not the function of this Court to review
the rulings by the state courts involving the suppression hearing, even if this Court would
have decided those issues differently. See, Capellan v. Riley, 975 F.2d at 71 (“[T]his Court
has interpreted Powell as requiring only that the state courts provide an opportunity for
full and fair litigation of a fourth amendment claim, unless, of course, the petitioner can
demonstrate that the state failed to provide a corrective process, or can point to an
“unconscionable breakdown” in that corrective process. Even if Capellan were correct in
his allegation that the Appellate Division erroneously decided this issue, a petitioner
cannot gain federal review of a fourth amendment claim simply because the federal court
may have reached a different result.”) (emphasis in original, citations and footnote
omitted); see also, id. at 72 (“To reiterate, to the extent that Capellan claims that the
Appellate Division erred in its ruling in light of Olson, this would not give us authority to
review his claims since a mere disagreement with the outcome of a state court ruling is
38
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not the equivalent of an unconscionable breakdown in the state's corrective process.”).
Rather,
[a]n unconscionable breakdown in the underlying process occurs when “the
totality of state procedures allegedly did not provide rational conditions for
inquiry into federal law.” [Capellan, 975 F.2d] at 70. Habeas review is
precluded where the state proceedings had “a corrective appellate or
collateral procedure that fairly determined that constitutional violations did
not occur.” Id. Examples of unconscionable breakdowns in the underlying
procedure include, but are not limited to, “the bribing of a trial judge, the
government's knowing use of perjured testimony, or the use of torture to
extract a guilty plea, all without opportunity to obtain state review.” Cappiello
v. Hoke, 698 F. Supp. 1042, 1050 (E.D.N.Y. 1988), aff'd, 852 F.2d 59 (2d
Cir. 1988) (per curiam).
Cepeda v. Morton, 2020 WL 6382052, at *5.
In the instant case, Petitioner disagrees with the state-court rulings made in
connection with his suppression motion, but he had a full and fair opportunity to litigate
all of the same issues that he is now raising. The trial court and the appellate court
considered and denied Petitioner’s arguments, and he has not shown that there was an
unconscionable breakdown in the state's corrective process. 21 Consequently, this aspect
of Petitioner’s claim is denied.
To the extent Petitioner asserts ineffective-assistance-of-counsel claims they are unexhausted and
meritless, and would not, in any event, establish an “unconscionable breakdown.” See, Hayes v. Lee, No.
11-CV-1365 KMK PED, 2015 WL 5943677, at *37 (S.D.N.Y. Oct. 13, 2015) (“[A]ny attempt by Petitioner's
to “link” his Fourth Amendment claim to an unconscionable breakdown by arguing that counsel was
ineffective for failing to discredit Gorr as a witness is unavailing. “[A]s a matter of law.” “[i]neffective
assistance of counsel does not constitute an unconscionable breakdown for the purposes of Stone v.
Powell.”) (collecting cases).
21
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The “Mandatory Jury Note Procedures” Claim is Denied
Petitioner next maintains that Judge Noonan ignored “mandatory jury note
procedures,” which violated his rights under the Fifth, Sixth and Fourteenth Amendments.
More specifically, Petitioner indicates that the transcript of the last day of trial does not
expressly indicate that he was present in the courtroom, such as during closing
arguments and during Judge Noonan’s instructions to the jury. Petitioner also alleges
that Judge Noonan violated “jury note mandates” with regard to court exhibits 13 and 14,
which are, respectively, a jury note asking to have a read-back of the testimony of witness
Kimberly Blue (the hotel clerk who was robbed at the Best Western Hotel), and a jury note
indicating that a juror needed to call her husband. In connection with these notes,
Petitioner alleges that the following errors occurred: 1) the court did not give counsel an
opportunity to suggest appropriate responses to the notes; 2) the court did not specifically
indicate “what portions” of Kimberly Blue’s testimony were to be read back; 3) the court
brought the jury back into the courtroom without announcing “jury in”; 4) the juror who
asked to call her husband was allowed to do so, even though the record does not indicate
who authorized the call or what the purpose of the call was; 5) the trial transcript does not
indicate exactly who was present when the jury notes were being addressed; and 6)
Petitioner was not present in court when the jury notes were being addressed by the court,
and, instead, was in a holding cell while “his counsel was running back and forth telling
the client what was occurring in the courtroom.”
Respondent maintains that the claim is unexhausted and procedurally defaulted,
and, alternatively, meritless. Respondent contends that the claim is unexhausted since
although Petitioner raised a jury-instruction claim in his direct appeal, he based it upon
New York Criminal Procedure Law § 310.30, not federal law. Respondent admits, though,
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that Petitioner’s supplemental pro se appeal brief referenced, but did not discuss, the
Fifth, Sixth and Fourteenth Amendments. Respondent nevertheless maintains that the
claim is unexhausted and now procedurally defaulted, since Petitioner can no longer raise
the claim in state court, and that no exception to the procedural default rule applies.
Respondent alternatively contends that the claim lacks merit, since the state courts’
handling of the jury notes claim was not contrary to clearly established federal law.
The Court will first consider whether Petitioner properly exhausted this claim, and
in that regard the law is clear:
It is beyond argument “that a state prisoner must normally exhaust available
state judicial remedies before a federal court will entertain his petition for
habeas corpus.” Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512,
30 L.Ed.2d 438 (1971). This requirement is a matter of federal-state comity
and is codified in 28 U.S.C. §§ 2254(b) and (c). To satisfy the exhaustion
requirement with respect to a claim, a defendant must “fairly present[ ]” that
claim to the state courts so that the court has “a fair opportunity to consider
the ... claim and to correct that asserted constitutional defect in respondent's
conviction.” Picard, 404 U.S. at 275, 276, 92 S.Ct. at 512, 513. A petitioner
has “fairly presented” his claim only if he has “informed the state court of
both the factual and the legal premises of the claim he asserts in federal
court.” Daye v. Attorney General of New York, 696 F.2d 186, 191 (2d
Cir.1982) (en banc). To have done so, the petitioner “must have set forth in
state court all of the essential factual allegations asserted in his federal
petition; if material factual allegations were omitted, the state court has not
had a fair opportunity to rule on the claim.” Id.
A petitioner may satisfy the exhaustion requirement by presenting his
federal claim in a pro se supplemental brief, even if he has an attorney. See
Reid v. Senkowski, 961 F.2d 374, 376 (2d Cir.1992). Moreover, pro se
pleadings are held to a less stringent standard than briefs by counsel, and
are read generously, “however inartfully pleaded.” Haines v. Kerner, 404
U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972) (per curiam); see
also Branham v. Meachum, 77 F.3d 626, 628-29 (2d Cir.1996).
Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997).
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The first issue presented here is whether Petitioner exhausted any federal
constitutional claim here, where, in his supplemental pro se appeal brief he referenced
the Fifth, Sixth and Fourteenth Amendments in the heading of his brief, but did not discuss
them, and, instead, discussed only an alleged violation of New York State law. If so, the
second issue is whether he exhausted all of the claims now being raised in this action.
The final issue is whether any exhausted claims have merit.
The Court answers the first question in the affirmative, since Petitioner’s pro se
appellate brief at least included a “minimal reference” to constitutional claims under the
Fifth, Sixth and Fourteenth Amendments. See, Davis v. Strack, 270 F.3d 111, 122 (2d
Cir. 2001) (“Davis raised only one argument on his direct appeal to the Appellate Division.
The point heading in his brief, printed in bold, read: ‘THE COURT'S REFUSAL TO
CHARGE JUSTIFICATION ... DEPRIVED APPELLANT OF HIS DUE PROCESS RIGHT
TO A FAIR TRIAL. U.S. CONST., AMEND. XIV; N.Y. CONST., ART. 1, § 6.’ We have
held that if a petitioner cites to specific provisions of the U.S. Constitution in his state court
brief, the petitioner has fairly presented his constitutional claim to the state court. See
Jones v. Vacco, 126 F.3d 408, 413–14 (2d Cir.1997) (citing a specific constitutional
provision alerts state courts to the nature of the claim); Reid v. Senkowski, 961 F.2d 374,
376 (2d Cir.1992) (even a minimal reference to the Fourteenth Amendment presents
federal constitutional claim to state courts and satisfies exhaustion requirement). We
therefore reject the State's argument that Davis's constitutional claim was not fairly
presented.”).
However, the Court also finds that Petitioner did not thereby exhaust all of the
issues that he is now attempting to assert under his “mandatory jury note procedures”
claim. Specifically, Petitioner did not exhaust the claim that he was excluded from the
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courtroom while the trial court was addressing the jury’s notes. In that regard, Petitioner’s
appellate brief merely asserted that the record was unclear as to who was in the
courtroom when the trial court was addressing court exhibits 13 and 14: “The court does
not make a record of who is present. . . . Moreover, the record goes silent as to the
parties present, Mr. Maltese specifically with counsel.” 22 Notably, Petitioner did not claim
that he had been excluded from the courtroom, which one would reasonably have
expected him to do if he had in fact been excluded. Now, however, Petitioner embellishes
that earlier claim with an additional detail, namely, that he was excluded from the
courtroom while the trial court was dealing with court exhibits 13 and 14: “In fact, Mr.
Maltese was in the holding cell while his counsel was running back and forth telling the
client what was occurring in the court room with the jury.”23 The Court finds that the
omission of this key factual allegation from the state court appeal means that Petitioner
did not exhaust the “exclusion from the courtroom” aspect of his federal claim now before
the Court.
Additionally, the Court agrees with respondent that this claim is now
procedurally defaulted, 24 and that no exception applies. 25 Consequently, the Court does
SR 176–177.
ECF No. 1 at p. 24.
24 See, Jackson v. Conway, 763 F.3d 115, 143 (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).”) (other citation omitted). Here, Petitioner contends
that the claim is apparent from the face of the record since the trial transcript does not expressly indicate
that he was present during the handling of the jury notes.
25 See, Clark v. Perez, 510 F.3d 382, 393 (2d Cir. 2008) (“Where a defendant has procedurally defaulted a
claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first
demonstrate either cause and actual prejudice, or that he is actually innocent.” Bousley v. United States,
523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (citations and internal quotation marks omitted),
quoted in DiSimone v. Phillips, 461 F.3d 181, 190 (2d Cir. 2006).
22
23
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not consider this newly-asserted “right to be present” aspect of Petitioner’s “mandatory
jury note procedures” habeas claim. 26
As for the remaining aspects of Petitioner’s “mandatory jury note procedures”
claim, Petitioner contends that his rights under the Fifth, Sixth and Fourteenth
Amendments were violated because: 1) the court did not give counsel an opportunity to
suggest appropriate responses to the notes; 2) the court did not specifically indicate “what
portions” of Kimberly Blue’s testimony were to be read back; 3) the court brought the jury
back into the courtroom without announcing “jury in”; 4) the juror who asked to call her
The Court believes, in any event, that the “right to be present” due process claim lacks merit since nothing
of consequence happened while Petitioner claims to have been excluded from the courtroom and he has
not shown any prejudice. See, United States v. Jones, 381 F.3d 114, 121–22 (2d Cir. 2004) (“A defendant's
constitutional right to be present during certain stages of criminal proceedings is rooted in the Confrontation
Clause of the Sixth Amendment and in the Due Process Clause. United States v. Gagnon, 470 U.S. 522,
526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985) (per curiam). The Due Process Clause applies in lieu of the
Sixth Amendment in situations where the defendant is not specifically confronting witnesses or evidence
against him. Id. It requires a criminal defendant's presence “to the extent that a fair and just hearing would
be thwarted by his absence, and to that extent only.” Snyder v. Massachusetts, 291 U.S. 97, 108, 54 S.Ct.
330, 78 L.Ed. 674 (1934) (Cardozo, J.); United States v. Rosario, 111 F.3d 293, 298 (2d Cir.1997).”); see
also, Brown v. Conway, No. 05CV0839, 2009 WL 604906, at *4 (W.D.N.Y. Mar. 9, 2009) (“A defendant has
no right to be present, however, ‘where the proceeding at issue involves only questions of law or procedure,’
People v. Rodriguez, 85 N.Y.2d 586, 591, 627 N.Y.S.2d 292, 650 N.E.2d 1293 (1995), because in such
proceedings, the defendant has no “peculiar factual knowledge” that would allow him to make a material
contribution, People v. Dickerson, 87 N.Y.2d 914, 915, 640 N.Y.S.2d 865, 663 N.E.2d 906 (1996); see
Snyder, 291 U.S. at 106–07 (noting that defendant has no right to be present where his “presence would
be useless, or the benefit but a shadow”). The Second Circuit has held that a defendant's right to be present
at trial is not violated when the defendant is absent when exhibits previously received in evidence are
displayed to the jury, Monroe v. Kuhlman, 433 F.3d 236, 246–47 (2d Cir. 2006), or when a transcript of
testimony is sent to the jury room during deliberations, United States v. Schor, 418 F.2d 26, 31 (2d
Cir.1969). Indeed, that Court has also held that a defendant has no due process right to be present during
the charge conference at which the substance of the instructions to be given to the jury is discussed and
decided. United States v. Rivera, 22 F.3d 430, 438–39 (2d Cir.1994). Thus, in Salley v. Graham, 2008 WL
818691, at *4 (S.D.N.Y. 2008), the Court held that the petitioner's absence when the Court responded to
notes from the jury was not of constitutional dimension. Similarly, in Yonamine v. Artuz, 2000 WL 1593300,
at *1 (2d. Cir. 2000), the defendant argued that his due process rights were violated because he was not
present at the exchange concerning the jury note between the trial judge and his attorney. The Court held
that there is no clearly established Federal law, as determined by the Supreme Court of the United States,
that guarantees a defendant the right of presence at a chambers conference between the trial judge and
counsel at which legal issues are discussed.”); Harrell v. Miller, No. 21 CIV. 6714 (AKH), 2022 WL 375289,
at *9 (S.D.N.Y. Feb. 8, 2022) (“[T]he record shows that Petitioner was made aware of all that had been
discussed before he came to court, that he had ample opportunity to discuss all relevant issues with his
counsel, and that he was present when the testimony was read back to the jury. Petitioner makes no
showing that any decision of the U.S. Supreme Court required more.”).
26
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husband was allowed to do so, even though the record does not indicate who authorized
the call or what the purpose of the call was; and 5) the trial transcript does not indicate
exactly who was present in the courtroom when the jury notes were being addressed. 27
The state appellate court denied this claim on the merits, though without
discussion, thereby signaling its finding that the aforementioned circumstances did not
violate Petitioner’s rights under the Fifth, Sixth or Fourteenth Amendments. In that regard,
as the Second Circuit has advised,
[w]e are required to defer to a state court's adjudication of an issue on the
merits, unless the state court's decision is “contrary to, or involve[s] an
unreasonable application of, clearly established Federal law ... [or is] 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). “For the
purposes of AEDPA deference, a state court ‘adjudicate[s]’ a state
prisoner's ... claim on the merits when it (1) disposes of the claim ‘on the
merits,’ and (2) reduces its disposition to judgment. When a state court does
so, a federal habeas court must defer ... to the state court's decision.” Sellan
v. Kuhlman, 261 F.3d 303, 312 (2d Cir.2001)) (quoting 28 U.S.C. §
2254(d)(1)) (alteration in the original). A summary disposition constitutes a
disposition “on the merits.” Harrington v. Richter, ––– U.S. ––––, 131 S.Ct.
770, 784–85, 178 L.Ed.2d 624 (2011).
AEDPA unquestionably requires deference to a state court's “summary
disposition” of an appeal. See id. at 784. (“Where a state court's decision is
unaccompanied by an explanation, the habeas petitioner's burden still must
be met by showing there was no reasonable basis for the state court to deny
relief.”). Where, as here, a state appellate court decides an issue of federal
law in a summary fashion, we exercise AEDPA deference by asking, first,
“what arguments or theories ... could have supported” the decision of the
This last assertion fails to establish Petitioner’s right to habeas relief. See, Sookoo v. Heath, No. 09 CIV
9820 JGK, 2011 WL 6188729, at *8 (S.D.N.Y. Dec. 12, 2011) (“Under federal law, the defendant has the
constitutional right to be present at all stages of the trial where his absence might frustrate the fairness of
the proceedings, and a habeas petitioner has the burden of demonstrating his claim that proceedings
occurred in his absence by a preponderance of the evidence. The mere failure to note the presence of the
defendant in the transcript has been deemed insufficient to meet this burden.”) (collecting cases, internal
quotation marks and citations omitted).
27
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state court, and second, “whether it is possible fair-minded jurists could
disagree that those arguments or theories are inconsistent with the holding
in a prior decision of [the Supreme] Court.” Harrington, 131 S.Ct. at 786.
Hawthorne v. Schneiderman, 695 F.3d 192, 196 (2d Cir. 2012).
Respondent here maintains that whatever reason the state appellate court had to
deny that aspect of Petitioner’s appeal cannot have been contrary to clearly established
federal law pertaining to the handling of jury notes, since there is no such federal law, 28
and that any error was harmless.
Respondent is correct that the type of non-structural constitutional errors alleged
in this claim, involving procedures utilized in responding to jury notes asking for a read
back of a witness’s testimony and for a juror to call her husband, are subject to a harmless
error analysis. See, Silva v. Capra, No. 15CV09032GHWSN, 2016 WL 5793977, at *9
(S.D.N.Y. Aug. 30, 2016) (“[E]ven assuming arguendo that Silva has a Sixth Amendment
right to have counsel apprised of and given an opportunity to respond to every jury note,
any violation of this right is subject to harmless error review. See United States v. Adeniji,
31 F.3d 58, 65 (2d Cir. 1994) (“noncompliance with [the Second Circuit’s] procedure [for
responding to jury notes] does not mandate reversal unless prejudice is shown”); United
States v. Schor, 418 F.2d 26, 30 (2d Cir. 1969) (holding that any violation of the
defendant’s right to be informed of the contents of a jury note is subject to harmless error
review) (footnote omitted), report and recommendation adopted, No. 1:15-CV-9032In that regard, see, e.g., Hernandez v. Miller, No. 03 CIV. 7614 (DLC), 2005 WL 2086358, at *4 (S.D.N.Y.
Aug. 30, 2005) (“In determining that the trial court not only ‘meaningfully responded to the jury's note’ but
also ‘reasonably interpreted’ it such that no clarification was necessary, the Appellate Division did not
engage in an ‘unreasonable application of, clearly established Federal law, as determined by the Supreme
Court of the United States.’ 28 U.S.C. § 2254(d)(1). Rather, as the Report observed, there is no clearly
established Supreme Court precedent governing either a trial court's interpretation of jury notes or a trial
court's decision to read back testimony to a jury.”).
28
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GHW, 2016 WL 5719797 (S.D.N.Y. Sept. 29, 2016); see also, Feliciano v. Lee, No. 1:18CV-9591-GHW, 2020 WL 5076865, at *11 (S.D.N.Y. Aug. 26, 2020) (“Feliciano has also
failed to show that he was prejudiced by the trial court's failure to reconvene the parties
in response to Jury Note #12. ‘[A]ny violation of’ a defendant's ‘Sixth Amendment right to
have counsel apprised of and given an opportunity to respond to every jury note’—
assuming a defendant has such a right—'is subject to harmless error review.’ Silva, 2016
WL 5793977, at *9 (citing United States v. Adeniji, 31 F.3d 58, 65 (2d Cir. 1994); United
States v. Schor, 418 F.2d 26, 30 (2d Cir. 1969)). Even if the trial court erred by not
reconvening the parties and permitting Feliciano's counsel to respond to the jury's request
for an exhibit, any such error was harmless. See United States v. Ballistrea, 101 F.3d
827, 837 (2d Cir. 1996) (holding that an error in failing to follow the correct procedures for
a jury note “largely concerned administrative matters” and was therefore harmless). Thus,
Feliciano is not entitled to habeas relief on this ground.”).
The Court here agrees that the Appellate Division likely found that to the extent
there was any error at all by the trial court, it was harmless, and concludes that such a
finding would not have been contrary to clearly established federal law. In this regard,
Petitioner contends, for example, that the trial court erred by not expressly indicating
which portions of Kimberly Blue’s testimony was read back to the jury, and that the error
was prejudicial since it is unclear whether the portion read back to the jury included Blue’s
testimony that the robber resembled someone other than Petitioner. Petitioner also
maintains that the note asking if a juror could call her husband should have been
investigated further by the trial court, and that the error was prejudicial since the jury
returned its verdict shortly after the call was made.
However, these arguments by
Petitioner are completely speculative and implausible insofar as they assume either that
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the aforementioned portion of Kimberly Blue’s testimony was somehow not read back to
the jury along with the rest of her testimony, 29 or that the juror’s phone call to her husband
had anything to do with the jury’s verdict. Such rank speculation completely fails to
establish any possible prejudice, particularly considering the overwhelming evidence of
Petitioner’s guilt that was introduced at trial. Overall, Petitioner’s arguments on this point
lack merit and are denied.
The Jury Instruction Claims
Petitioner next alleges that Judge Noonan erred by giving a faulty jury instruction
on voluntariness of confessions and by failing to give an “adverse inference” instruction,
concerning voluntariness, based on Welker’s failure to videotape the confession.
Respondent contends that the “faulty jury instruction claim” is procedurally barred
since the state appellate court denied it on adequate and independent state-law grounds.
As for the “adverse inference” instruction claim, Respondent maintains that the state
appellate court’s denial of the claim on the merits was not contrary to clearly-established
federal law. Once again, the Court agrees with Respondent.
First, Petitioner’s claim regarding the jury instruction given by Judge Noonan is
barred by the procedural default doctrine. In that regard, attorney Pilato did not object to
any aspect of the jury charge that was given. For that reason, the state appellate court
ruled that the objection was not preserved for appellate review. People v. Maltese, 148
A.D.3d at 1782.
As noted earlier, where, as in this instance, “the state court rejects a federal claim
on procedural grounds, the procedural default doctrine bars further federal review of the
29
Petitioner does not assert that such portion of Blue’s testimony was actually omitted.
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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).” Jackson v. Conway, 763
F.3d at 132.
One such state procedural ground is New York’s contemporaneous
objection rule:
“In all cases in which a state petitioner has defaulted his federal claims in
state court pursuant to an independent and adequate state procedural rule,
federal habeas review of the claims is barred unless the prisoner can
demonstrate cause for the default and actual prejudice as a result of the
alleged violation of federal law, or demonstrate that failure to consider the
claims will result in a fundamental miscarriage of justice.” Coleman v.
Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).
***
New York’s contemporaneous objection rule [(N.Y. Crim. P. Law §
470.05(2))] “require[s] at the very least, that any matter which a party wishes
the appellate court to decide have been brought to the attention of the trial
court at a time and in a way that gave the latter the opportunity to remedy
the problem and thereby avert reversible error.” Garcia v. Lewis, 188 F.3d
71, 77 (2d Cir. 1999).
***
New York’s contemporaneous objection rule is an independent and
adequate state procedural rule. “[T]here is no question that the claimed
procedural bar,” the failure to comply with New York’s contemporaneous
objection rule, “constitutes an ‘independent’ state ground of decision.” Cotto
v. Herbert, 331 F.3d 217, 239 (2d Cir. 2003). Moreover, “in accordance with
New York case law, application of the state’s preservation rule is
adequate—i.e., firmly established and regularly followed.” Richardson v.
Greene, 497 F.3d 212, 219 (2d Cir. 2007).
Hamilton v. Lee, 707 F. App'x 12, 13–14 (2d Cir. 2017); see also, McPherson v. Keyser,
No. 20-161-PR, 2021 WL 4452078, at *2 (2d Cir. Sept. 29, 2021) (“An adequate and
independent finding of procedural default will bar federal habeas review of the underlying
claim. . . . The New York courts’ application of their rules regarding the preservation of
legal issues for appellate review in criminal cases—codified at N.Y. Crim. Proc. Law §
470.05[2]—constitute independent and adequate state grounds for their rejection of [the
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petitioner’s claim].”) (citations and internal quotation marks omitted), cert. denied, 142 S.
Ct. 1235 (2022).
Notably, the procedural bar for habeas claims denied by a state court on an
adequate and independent state procedural ground applies where, as here, the state
court also denied the claim on the merits in the alternative. See, e.g., Whitlock v. LaValley,
No. 13 CV 5772 (RJD), 2019 WL 3754415, at *2 (E.D.N.Y. Aug. 8, 2019) (“Importantly,
the bar applies ‘even where the state court has also ruled in the alternative on the merits
of the federal claim,’ which is often the case. Velasquez v. Leonardo, 898 F.2d 7, 9 (2d
Cir. 1990). See also Harris v. Reed, 489 U.S. 255, 264 n. 10, (1989) (“a state court need
not fear reaching the merits of a federal claim in an alternative holding”) (emphasis in
original).”).
Here, the claim concerning the jury instruction on voluntariness was denied by the
state court on an adequate and independent state procedural ground. Petitioner admits
this, but contends that the claim is not barred since an exception applies, either based on
cause and prejudice or actual innocence. With regard to cause and prejudice, Petitioner
alleges that his appellate attorney provided ineffective assistance of counsel. 30 However,
Petitioner cannot demonstrate either cause for the procedural default or prejudice arising
from his appellate attorney’s performance, since his appellate attorney had nothing to do
with trial counsel’s failure to object to the jury instruction. Nor, in any event, could
Petitioner here rely on ineffective assistance of counsel to establish cause for a
procedural default, since he never raised ineffective assistance of counsel as an
ECF No. 1-2 at pp. 9–10. (Petitioner specifically indicates that trial counsel was not ineffective, stating
that it “can hardly be the fault of counsel at trial to catch a bias[ed] judge when he changes one word in a[n]
instruction.”).
30
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independent claim before the state courts. 31 Furthermore, Petitioner has clearly not
shown, under the relevant standard, that he is “actually innocent” of any of the crimes for
which he was convicted. Accordingly, the claim involving the instruction on voluntariness
is denied as procedurally barred.
Petitioner also alleges that Judge Noonan erred and violated his federal
constitutional rights by failing to give an “adverse inference” instruction, concerning
voluntariness, based on Welker’s failure to videotape the confession. Petitioner contends
that such an instruction should have been given since recording of his confession was
required by both New York State law and “due process.” 32
The state appellate court denied this claim on the merits, citing the New York Court
of Appeals’ decision in People v. Durant, 26 N.Y.3d 341 (2015), which held that the
common law does not require a criminal trial court to issue an adverse inference
instruction against the People at trial based solely on the police’s failure to electronically
record the custodial interrogation of a defendant. See, id. at 344 (“[A]lthough the better
practice would be for the police to use the equipment at their disposal to record
interrogations, their failure to take such action does not, as a matter of law, automatically
compel a trial court to deliver an adverse inference charge to a deliberating jury.”); see
also, id. at 349 (“[O]ur case law has not recognized a constitutional duty to record
31 See, DiSimone v. Phillips, 461 F.3d 181, 191 (2d Cir. 2006) (“We also reject DiSimone's argument that it
was ineffective assistance of appellate counsel not to raise the insufficiency challenge in state court. The
Supreme Court has held that ineffective assistance of appellate counsel claims cannot constitute “cause”
for procedural default unless first presented in state court as an independent constitutional claim. See
Edwards v. Carpenter, 529 U.S. 446, 451–52, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000); Sweet v. Bennett,
353 F.3d 135, 141 n. 7 (2d Cir. 2003). In New York, this can be done by petitioning for a writ of coram nobis,
see Sweet, 353 F.3d at 141 n. 7; People v. Bachert, 69 N.Y.2d 593, 598-99, 509 N.E.2d 318, 321–22, 516
N.Y.S.2d 623, 626-27 (N.Y.1987), which DiSimone has not done.”); see also, Pena v. Bell, No. 1:18-CV4849-ALC, 2021 WL 517778, at *6 (S.D.N.Y. Feb. 11, 2021) (“[I]t is well-established that in order for a
habeas petitioner to claim ineffective assistance of counsel as “cause” for his default he must have raised
and exhausted it as a separate claim in state court.”).
32 ECF No. 1 at p. 30.
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interrogations. Thus, while our precedent does permit—and sometimes requires—a court
to issue an adverse inference instruction as a penalty for the government's failure to
satisfy applicable legal duties, the rationale of that precedent does not support the
issuance of an adverse inference instruction based on the police's failure to satisfy a
nonexistent duty to record an interrogation.”) (citations omitted).
Petitioner, though, has not attempted to show that the state court’s ruling was
contrary to any particular clearly-established federal law. Nor does the Court find that the
ruling was contrary to any such law.
In this regard, Petitioner maintains he was entitled to an adverse inference
instruction not because the police failed to preserve evidence, but because they failed to
create evidence by not videotaping the interview when they had the ability to do so.
Notably, though, the decision not to videotape the interview was made prior to the
commencement of the interview, when Welker did not know what Petitioner was going to
say. Moreover, Petitioner has not denied actually making the inculpatory statements
attributed to him by Welker. Nor, as already discussed, is there any evidence to suggest
that Petitioner’s statement was involuntary. Accordingly, this is not a situation in which
the police destroyed evidence that was potentially harmful to the prosecution’s case
against Petitioner. Instead, this is a situation where the police elected not to videotape
what turned out to be a full confession by Petitioner that presumably would have been
extremely helpful to the prosecution’s case.
Moreover, the evidence indicates that
Welker’s motive for not videotaping the interview was simply that he already knew
Petitioner would refuse to speak if he was being recorded.
In sum, Petitioner has shown neither that Welker failed to videotape the interview
in bad faith under circumstances suggesting that the recording was likely going to be
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helpful to Petitioner’s defense, or that a recording of the interview actually would have
been helpful to the defense.
Consequently, even if the Court viewed this as a situation involving the failure to
preserve evidence, the failure to videotape the interview did not violate Petitioner’s
constitutional rights. See, California v. Trombetta, 467 U.S. 479, 488–89, 104 S. Ct. 2528,
2534, 81 L. Ed. 2d 413 (1984) (“California's policy of not preserving breath samples is
without constitutional defect. Whatever duty the Constitution imposes on the States to
preserve evidence, that duty must be limited to evidence that might be expected to play
a significant role in the suspect's defense.
To meet this standard of constitutional
materiality, evidence must both possess an exculpatory value that was apparent before
the evidence was destroyed, and be of such a nature that the defendant would be unable
to obtain comparable evidence by other reasonably available means.”) (citation and
footnote omitted); see also, United States v. Greenberg, 835 F.3d 295, 303 (2d Cir. 2016)
(“[W]hen the Government has . . . failed to preserve evidentiary material that is ‘potentially
useful,’ such failure does not violate due process unless a criminal defendant can show
bad faith on the part of the Government.”)
Moreover, federal law does not entitle a criminal defendant to an adverse-inference
jury charge even where police have mistakenly destroyed evidence. See, Magassouba v.
United States, No. 03 CR 985 RPP, 2013 WL 5780767, at *5 (S.D.N.Y. Oct. 25, 2013)
(“Neither the Supreme Court nor the Second Circuit has ever held that a defendant is
entitled to an adverse-inference jury instruction when the Government has produced
evidence showing that a controlled substance has been destroyed by mistake prior to
trial.”).
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Additionally, the denial of the requested adverse-inference instruction did not
render the trial unfair, since although Judge Noonan declined to give the instruction,
Petitioner was nevertheless able to argue to the jury that it should draw an adverse
inference, concerning the voluntariness of the confession, from the failure to videotape
the interview. See, e.g., Romero v. Runnels, No. CIVS040459MCECMKP, 2009 WL
1451713, at *15 (E.D. Cal. May 22, 2009) (“[P]etitioner's case was not rendered unfair as
a result of failure to give [an adverse inference jury instruction.] In essence, the officer's
inconsistent testimony regarding the fingerprints suggests potentially sloppy police work,
an argument which petitioner was free to make in his defense. Thus, even though the jury
was not specifically instructed that it could draw an adverse inference, defendant could
have argued that the prosecution's case was undermined by sloppy police work.”).
Indeed, that was the central theme of the defense case. 33
For these various reasons the claim involving the adverse-inference jury charge is
denied.
The Claim Involving Jailhouse Informant Steven Crandall is Procedurally Barred
Ground Ten of the Petition alleges prosecutorial misconduct, in which Friedman
used jailhouse-snitch Crandall to spy on Petitioner while in jail, thereby denying Petitioner
his right to counsel. Petitioner further contends that this plot involved Assistant Genesee
County Public Defender William Tedford, who had represented both Petitioner and
Crandall prior to Petitioner retaining Pilato, as well as Judge Noonan. In this regard, the
claim is based on the same type of implausible and unsubstantiated allegations made in
connection with Grounds Six, Seven, Eight, Nine and Eleven.
33
See, e.g., Defense Closing Argument, Trial Tr. at pp. 522–537.
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In any event, as Respondent argues, Judge Mohun denied this aspect of
Petitioner’s Section 440.10 motion on adequate and independent state-law procedural
grounds, namely New York Criminal Procedure Law § § 440.10(2)(c) and 440.10(3)(a), 34
which indicate, respectively, that the court may deny a § 440.10 motion either where the
facts on which the claim is based appear in the record and defendant unjustifiably failed
to raise the issue in his direct appeal, or the facts could have been made to appear in the
record with due diligence but the defendant failed to do so and the matter was not raised
on appeal. See, e.g., Ward v. Lee, No. 19-CV-03986 (KAM), 2020 WL 6784195, at *6
(E.D.N.Y. Nov. 18, 2020) (“[T]he Second Circuit has specifically held that a state court's
reliance on C.P.L. § 440.10(2)(c) constitutes an adequate and independent state ground
that precludes federal habeas review.”) (citations omitted); see also, Camarano v. Griffin,
No. 16CV2095, 2021 WL 1163712, at *5 (S.D.N.Y. Mar. 25, 2021) (“Because courts in
this District have recognized § 440.10(3)(a) as an adequate and independent state
ground, federal habeas review of Camarano's claim is barred.”) (citations omitted).
Respondent further contends that Petitioner has not shown cause and prejudice
relating to the procedural default or actual innocence, and, again, the Court agrees. On
this point, Petitioner again attempts to argue ineffective assistance of appellate counsel
as establishing cause. 35
However, as discussed earlier, Petitioner cannot rely on
ineffective assistance of counsel to establish cause for a procedural default, since he
never raised ineffective assistance of counsel as an independent claim before the state
See, ECF No. 1-1 at p. 16 (“[G]iven that the witness’s testimony is a matter of record, nothing prevented
the defendant from raising this claim in his direct appeal, and yet it appears he unjustifiably neglected to do
so. In addition . . . it is evident that the defendant could, with due diligence, have made [the factual basis
of the claim] appear in the record so as to have allowed adequate review of the issue upon his direct appeal.
He did not do so, and therefore the Court determines that the claim shall be denied pursuant to CPL §
440.10(2)(c), or in the alternative pursuant to CPL § 440.10(3)(a).”).
35 ECF No. 1-2 at pp. 15–16.
34
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courts. Additionally, the Court does not believe, based on the record before it, that any
such claim for ineffective assistance of appellate counsel would have merit in any event.
Nor can Petitioner establish “actual innocence” under the relevant standard. Accordingly,
Petitioner’s “Ground Ten” claim is denied as procedurally barred.
The Sufficiency-of-the-Evidence Claim is Procedurally Barred
Grounds Four and Five of the Petition allege that Petitioner’s convictions were
unconstitutionally obtained because they were not supported by sufficient evidence.
Again, though, Respondent contends that this claim is procedurally barred since it was
denied in state court based on an adequate and independent state procedural ground,
namely, CPL § 470.05(2), after Petitioner failed at trial to preserve the issue by making
only a general motion for a trial order of dismissal. 36 Respondent alternatively maintains
that the claim lacks merit.
Respondent is correct that the state appellate court’s denial of the claim on that
basis is an adequate and independent state law ground that bars federal habeas review:
Generally, the rule [CPL § 470.05(2)] provides that “New York appellate
courts will review only those errors of law that are presented at a time and
in a manner that reasonably prompted a judge to correct them during
criminal proceedings.” Downs v. Lape, 657 F.3d 97, 103 (2d Cir. 2011); see
also People v. Hawkins, 11 N.Y.3d 484, 492, 900 N.E.2d 946, 872 N.Y.S.2d
395 (2008) (“To preserve for this Court's review a challenge to the legal
sufficiency of a conviction, a defendant must move for a trial order of
dismissal, and the argument must be ‘specifically directed’ at the error being
urged ... general motions simply do not create questions of law for this
Court's review” (citations omitted)). The contemporaneous objection rule in
New York “is considered a firmly established and regularly followed rule
sufficient to invoke the ‘independent and adequate state law ground’ bar” to
See, People v. Maltese, 148 A.D.3d at 1781 (“By making only a general motion for a trial order of
dismissal, defendant failed to preserve for your review his contention . . . that the evidence is legally
insufficient to support the conviction.”).
36
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federal habeas review. Nowakowski, 2018 WL 6421056, at *6 (quoting
Richardson v. Greene, 497 F.3d 212, 217-18 (2d Cir. 2007)).
McPherson v. Keyser, No. 15-CV-1250 (SJF), 2019 WL 6050279, at *5 (E.D.N.Y. Nov.
15, 2019) (emphasis added), aff'd, No. 20-161-PR, 2021 WL 4452078 (2d Cir. Sept. 29,
2021).
Petitioner argues otherwise and offers various reasons why the claim should not
be procedurally barred. For example, Petitioner seems to assert that the procedural bar
does not apply since, after the Appellate Division ruled that the claim was not preserved,
it alternatively noted that the claim also lacked merit. However, as discussed earlier, that
argument has no merit. Petitioner alternatively asserts that a “legally insufficient evidence
[claim] does not have to be preserved,”37 but that too is incorrect, as already shown.
Finally, Petitioner asserts that the procedural bar should not apply since the state
appellate court denied his “weight of the evidence claim” on the merits, which necessarily
amounted to a finding that the convictions were supported by sufficient evidence. 38 As
support for this argument, Petitioner cites Parker v. Ercole, 666 F.3d 830 (2d Cir. 2012).
However, Petitioner has misunderstood the significance of that decision, since the court
in Parker v. Ercole held that the defendant’s sufficiency-of-the evidence habeas claim
was procedurally barred, due to his failure to preserve the issue, notwithstanding the fact
that the state appellate court had considered his alternative weight-of-the-evidence claim.
See, Parker v. Ercole, 666 F.3d at 834 (“It is undisputed that Parker failed to preserve his
claim that the evidence proving his guilt of depraved-indifference murder was insufficient
ECF No. 1-2 at p. 11.
The argument makes no logical sense since, as just noted, the state appellate court also alternatively
denied the sufficiency-of-the-evidence claim on the merits, so there is no need to consider how that court
decided the related weight-of-the-evidence claim.
37
38
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to support the jury's verdict. We therefore do not independently review Parker's
sufficiency claim because it is procedurally barred. “). 39 The Parker v. Ercole decision,
therefore, does not support Petitioner’s argument. In sum, none of Petitioner’s arguments
in favor of excusing the procedural default have merit, and the claim is therefore denied
as procedurally barred.
Alternatively, the Court agrees with Respondent that the
sufficiency-of-the-evidence claim lacks merit in any event, since there was overwhelming
evidence of Petitioner’s guilt.
The Claim Involving Petitioner’s Medical Records
Petitioner also contends that he was denied the opportunity to present a defense,
in violation of his rights under the Fifth, Sixth, Eighth and/or Fourteenth Amendments,
when Judge Noonan ruled that office records from Petitioner’s doctor were not admissible
as certified hospital records. 40 In that regard, Petitioner, who did not testify at trial or put
on any witnesses, sought to admit the certified office-treatment records, without any
foundational witness, to show that he was addicted to prescription pain-killers, to support
the inference that he was experiencing withdrawal when he gave his confession, thereby
rendering the confession involuntary. Defense counsel offered that the records were
The court in Parker v. Ercole then went on to consider whether the defendant had shown that his trial
counsel had been ineffective in failing to preserve the sufficiency of the evidence claim, and ultimately found
that he had not, since he could not prove prejudice under the Strickland standard. In making that
determination, the court found that there had been sufficient evidence to support the conviction, as shown
by the state court’s denial of the defendant’s weight-of-the evidence claim. See, id. at 834–835 (“[T]o satisfy
the second prong of the Strickland test, Parker must show that, but for his counsel's failure to preserve his
sufficiency claim, there is a reasonable probability that the claim would have been considered on appeal
and, as a result, his conviction would have been reversed. Parker cannot make this showing, however,
because the Appellate Division did, implicitly, address this claim, even though it had not been preserved at
trial. See Bierenbaum v. Graham, 607 F.3d 36, 57 (2d Cir. 2010) (holding that, where Appellate Division
reviewed insufficiency claim despite it being unpreserved, petitioner could not claim that his counsel was
ineffective in failing to preserve the issue for appeal). As explained above, the Appellate Division addressed
on the merits Parker's claim that his conviction was against the weight of the evidence, and this review
necessarily subsumed review of his sufficiency claim.”).
40 Defense counsel did not explain why the records should be admitted, except to say that he felt they were
admissible “under the Criminal Procedure Law.” Trial Tr. at p. 501.
39
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admissible, “without anyone testifying,” “under the Criminal Procedure Law,” 41 but the
Prosecutor stated that pursuant to CPLR § 4518(c), he did not think the records were
admissible on that basis since they were not hospital records. 42 After researching the
issue of “certification requirements,” Judge Noonan ruled that the records were not
admissible. See, Trial Tr. at p. 504 (“Mr. Friedman is correct, doctor’s office records are
not permissible with a certification under 4518(c). So, even with the proper certification,
those are not going to be admitted.”). Defense counsel did not offer any other basis for
admission of the records. The state appellate court denied the claim on appeal, though
without specifically discussing it. See, People v. Maltese, 148 A.D.3d at 1783 (“We have
reviewed defendant’s remaining contentions in is pro se supplemental brief and conclude
that none requires modification or reversal of the judgment.”).
Petitioner now frames the issue as being that he was “denied the right to present
a defense,” asserting that Judge Noonan “intentionally made an incorrect legal ruling so
that he could deny [Petitioner] a complete defense[.]” 43 In that regard, Petitioner baldly
asserts that the records were admissible under CPLR § 4518(a), an argument he never
made to Judge Noonan.
Defense counsel also admitted that he had only faxed certification pages that were not attached to the
records that they were purportedly certifying.
42 Trial Tr. at pp. 501–502.
43 Petitioner’s bald assertion that Judge Noonan intentionally ruled incorrectly that the medical records were
inadmissible, in order to deny him a defense, is entitled to no weight. Indeed, while Petitioner’s papers are
rife with unsupported allegations that all of the players involved in his prosecution were corrupt and
conspired against him, he offers no compelling or even plausible explanation for why any one of them would
have had such animus toward him.
41
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Respondent contends that the medical records were not admissible under CPLR
§ 4518(c) and that the state appellate court therefore properly denied the issue on appeal.
Respondent further contends that the ruling did not result in an unfair trial and that the
state courts’ rulings were not contrary to clearly established federal law. Once again, the
Court agrees with Respondent.
The legal principle upon which Petitioner relies to bring this claim is clear:
A criminal defendant has “a fundamental due process right to present a
defense.” United States v. Mi Sun Cho, 713 F.3d 716, 721 (2d Cir.2013).
However, this right “is not absolute, for a defendant must comply with
established rules of procedure and evidence designed to assure both
fairness and reliability,” id. (internal quotation marks omitted), “and may, in
appropriate cases, bow to accommodate other legitimate interests in the
criminal trial process.” Williams v. Lord, 996 F.2d 1481, 1483 (2d Cir.1993)
(internal quotation marks omitted). The erroneous exclusion of evidence
violates a defendant's federal constitutional right to present a defense only
if “the omitted evidence evaluated in the context of the entire record creates
a reasonable doubt that did not otherwise exist.” Jones v. Stinson, 229 F.3d
112, 120 (2d Cir.2000) (brackets and internal quotation marks omitted).
United States v. Platt, 608 F. App'x 22, 28–29 (2d Cir. 2015).
Here, to begin with, Petitioner has not even shown that the state courts’ rulings
concerning the medical records were erroneous. That is, he has not shown that the
medical-office records were admissible without a foundational witness as certified
business or hospital records. See, Bronstein-Becher v. Becher, 25 A.D.3d 796, 797, 809
N.Y.S.2d 140, 142 (2d Dept. 2006) (“Here, Dr. Stephens' two “narrative reports” were
simply letters summarizing his diagnosis, treatment, and opinion concerning the father's
ability to return to work. No proper foundation was provided demonstrating that they were
in fact business records (see CPLR 4518[a] ). Their certification did not cure this defect
as only hospital records, and not physician office records, are admissible by certification
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(see CPLR 4518 [c]; 2306[a]; Matter of Damon J., 144 A.D.2d 467, 534 N.Y.S.2d 23).”)
(emphasis added).
Beyond that, even assuming that Judge Noonan’s ruling was incorrect, it did not
thereby deny Petitioner a defense (challenging the voluntariness of the confession), for
the simple reason that it was already conceded by the Prosecution that Petitioner was a
long-time user of narcotic pain medications and crack cocaine. Indeed, Investigator
Welker, who had been friends with Petitioner for over twenty years, testified to that fact.44
Specifically, Welker testified that Petitioner had been a long-time user of narcotic pain
medications for back injuries he sustained in motor vehicle accidents. 45 Moreover, the
confession itself indicated that Petitioner committed the crimes to get money to support
his crack cocaine addiction. Petitioner has not attempted to show that his doctor’s records
would have proven anything more. Consequently, the records would have been merely
duplicative and, moreover, would not have been probative on the central issue, which
was whether at the time of his confession Petitioner’s will was overborn because he was
experiencing withdrawal. 46 Consequently, the excluded evidence would not have created
a reasonable doubt that did not otherwise exist.
This aspect of the habeas petition is
therefore denied.
Trial Tr. at pp. 387–388.
Trial Tr.at pp. 387–388.
46 Indeed, when the discussion concerning the admissibility of the records was taking place, Petitioner’s
counsel indicated that he was not even sure yet whether he wanted to have the records admitted, so the
argument now being raised that the records were essential to Petitioner’s defense is quite dubious. Trial
Tr. at p. 500.
44
45
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Insofar as the Petition is Attempting to Assert Stand-Alone Claims for Ineffective
Assistance of Counsel They are Unexhausted and Lack Merit
The Petition purports to assert eleven separate “grounds,” none of which are
captioned as asserting a claim for ineffective assistance of counsel. Nevertheless, the
Petition contains several references to ineffective assistance of counsel. For example, in
Grounds Two and Four, respectively, Petitioner asserts that Pilato provided ineffective
assistance by failing to file a more-thorough motion to dismiss the charges based on lack
of probable cause to arrest, lack of “forensic evidence” and inconsistent descriptions
given by the robbery victims. And, in Ground Ten, Petitioner remarks that Pilato provided
ineffective assistance by not cross-examining Crandall in a manner that would have
revealed the alleged plot by the prosecution to use Crandall to spy on Petitioner in jail.
However, as discussed earlier in connection with Petitioner’s procedurally
defaulted claims, he never exhausted any claim for ineffective assistance of counsel.
Section 2254(b)(1)(A) of 28 U.S.C. requires habeas petitioners to first
exhaust their state-court remedies with respect to each of the grounds
raised in a petition. A district court may not adjudicate a ‘mixed petition,’
consisting of both exhausted and unexhausted claims, except that it may
deny the entire petition on the merits. See, 28 U.S.C. § 2254(b)(2).
Cole v. Noeth, No. 21-CV-6300 CJS, 2021 WL 4973078, at *2 (W.D.N.Y. Oct. 26, 2021).
Claims for ineffective assistance of counsel are
are covered by the familiar two-prong test set forth in Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The
defendant must show that (1) his attorney's performance was deficient and
(2) the deficient performance prejudiced him. Missouri v. Frye, 566 U.S.
134, 140, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012).
United States v. Galanis, 759 F. App'x 88, 91 (2d Cir. 2019). Under the Strickland test,
the petitioner
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must initially show that counsel's performance fell below “an objective
standard of reasonableness” under “prevailing professional norms.”
[Strickland, 466 U.S.] at 688. The court must apply a “strong presumption
of competence” and “affirmatively entertain the range of possible reasons
[petitioner's] counsel may have had for proceeding as they did.” Cullen v.
Pinholster, 563 U.S. 170, 196 (2011) (internal quotation marks and citations
omitted). Second, under the “prejudice” prong, petitioner must demonstrate
that “there is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different.” Strickland,
466 U.S. at 664. “The likelihood of a different result must be substantial, not
just conceivable.” Harrington, 562 U.S. at 112. Moreover, as the Second
Circuit has recently noted, “[t]he prejudice inquiry is ... ineluctably tied to the
strength of the prosecution's evidence.” Garner v. Lee, 908 F.3d 845, 862
(2d Cir. 2018).
DeJesus v. Noeth, No. 19-CV-1028 (BMC), 2019 WL 1459043, at *6 (E.D.N.Y. Apr. 2,
2019).
Here, even assuming that Petitioner’s ineffective-assistance claims had been
exhausted, they do not satisfy either prong of the Strickland analysis, but especially not
the prejudice prong, considering the overwhelming strength of the prosecution’s case.
Consequently, to the extent Petitioner is attempting to assert unexhausted free-standing
claims of ineffective assistance of counsel, they are also denied.
CONCLUSION
The application under 28 U.S.C. § 2254 is denied. Any remaining pending motions
(e.g., ECF Nos. 3, 7, 28 & 33) are also denied. 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
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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. Finally, the
Clerk of the Court is directed to close this case.
So Ordered.
Dated: Rochester, New York
June 8, 2022
ENTER:
CHARLES J. SIRAGUSA
United States District Judge
64
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