Opinion
20-CV-2263 (LGS) (KNF)
05-03-2021
SERAFIN COLON, Petitioner, v. THE CITY OF NEW YORK AND THE ATTORNEY GENERAL OF THE STATE OF NEW YORK, Respondent.
HONORABLE LORNA G. SCHOFIELD, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
KEVIN NATHANIEL FOX UNITED STATES MAGISTRATE JUDGE
BACKGROUND
Serafin Colon, proceeding pro se, filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, alleging: (1) “the Petitioner was denied due process when the prosecutor failed to correct the complaining witness's false testimony about the nature of her relationship with the Petitioner, the prosecutor objected repeatedly to trial counsels' efforts to impeach the complaining witness regarding this perjury, elicited additional perjury on the subject, and urged on summation that the perjury was truthful”; (2) “the trial court denied the Petitioner a fair trial by allowing, on the key question of intent, an inaudible voice mail message that provided a misleading picture of the Petitioners' and Ms. Polanco's, the complaining witnesses' relationship”; and (3) his sentence was excessive. On the petitioner's consolidated direct appeal and appeal from denial of a motion to vacate the judgment pursuant to New York Criminal Procedure Law (“CPL”) § 440.10, the state court found:
The trial court providently exercised its discretion in admitting a recording of a voicemail defendant left for the victim, even though only parts of it were audible
and intelligible (see People v Rivera, 257 A.D.2d 172, 176 [1st Dept 1999], affd 94 N.Y.2d 908 [2000]; see also People v Patterson, 93 N.Y.2d 80, 84 [1999]). The victim testified to the authenticity of the recording, and a technician testified regarding how he enhanced the recording in order to clarify defendant's voice in the foreground. As defense counsel acknowledged, a few parts were audible, including when defendant said, “Don't let me catch you, ” which, viewed along with the other evidence at trial, was probative of defendant's intent to cause the victim serious physical injury.
The court also properly admitted approximately 20 text messages the victim had saved in which defendant insulted and threatened her, because they were relevant to the then-pending harassment and stalking charges (which ultimately were not submitted to the jury), and they were probative as background of the stabbing incident, as well as defendant's intent to cause the victim serious physical injury. To the extent defendant argues that they unfairly presented a “one-sided” view of his text exchanges with the victim, his argument is unavailing. The evidence established that both parties exchanged hundreds of texts and phone calls, and the victim acknowledged that she also replied to defendant's texts and calls. Defendant also had an opportunity to cross-examine the victim regarding those communications.
Moreover, to the extent any messages were more prejudicial than probative, any error in their admission was harmless in light of overwhelming evidence of defendant's guilt, and there was no significant probability that the jury would have acquitted defendant but for their admission into evidence (see People v Crimmins, 36 N.Y.2d 230 [1975]). The evidence included eyewitness testimony that defendant stabbed the victim in her left side, barely missing her kidney, with a knife with an eight-inch blade, which was found on defendant just after the assault. In addition, surveillance videos recorded the incident, and defendant admitted to a friend that he had committed the stabbing.
The motion court providently exercised its discretion when it denied, without a hearing, defendant's motion to vacate the judgment, made on the ground that the prosecution knew that the victim gave perjured testimony, which the prosecution failed to correct during trial (see People v Samandarov, 13 N.Y.3d 433, 436 [2009]). As the motion court found, the prosecutor had no actual evidence during trial that the victim had falsely testified when she denied having any romantic relationship with defendant, or when she claimed she had been drug-free for four years at the time of trial. The prosecutor subpoenaed the relevant medical records the day after defense counsel had cross-examined the victim using a previously undisclosed and unauthenticated sonogram dated September 2010. The hospital's medical records were received two days after the verdict, and they confirmed that the victim had been pregnant in September 2010. However, these records did not reveal the father's identity. The records also revealed, contrary to the victim's trial testimony, that she had been using drugs at that time. Defendant's brother had testified that the sonogram was in defendant's possession, but he did not elaborate on this or testify, as the defense counsel argued during her cross-examination, that the victim had given it to defendant and claimed he was the father.
At the time of trial, the evidence showed that defendant and the victim met in November 2010, and thus the prosecution had no reason during or before trial to investigate medical records that predated their relationship. The prosecutor acknowledged, due to the extent of text exchanges between defendant and the victim, of which defendant was aware, that she suspected that the victim had not been candid about her relationship with defendant. However, at the time of trial, the prosecutor had no “undisclosed evidence [that] demonstrate[d] that the prosecution's case include[d] perjured testimony and that the prosecution knew, or should have known, of the perjury” (United States v Agurs, 427 U.S. 97, 103 [1976]). Furthermore, in light of the evidence of his guilt, there was no reasonable possibility that the error contributed to the conviction. The jury was entitled to credit and reject portions of the victim's testimony, and evidence other than her testimony, as noted above, sufficed to prove defendant's guilt. Defendant unpersuasively argues that the truth about their romantic involvement would have been probative of his intent, and could have led to an acquittal because the People had argued that defendant falsely claimed to have a relationship with the victim, and that his feelings of rejection provoked his intent to kill or cause serious physical injury. However, evidence that the victim lied about their relationship and/or ended a more serious romantic relationship would not negate his intent.People v. Colon, 176 A.D.3d 419, 420-21, 110 N.Y.S.3d 20, 21-22, leave to appeal denied, 34 N.Y.3d 1077, 116 N.Y.S.3d 169 (2019).
PETITIONER'S CONTENTIONS
In connection with his claim of a due process violation based on the prosecutor's failure to correct the complaining witness's false testimony, the petitioner asserts that the witness “unfairly” distanced herself “from allegation of any personal or intimate relationship with the Petitioner.” The prosecutor supported and encouraged “this form of behavior” by “stubbornly insisting on projecting a picture into the Juries [sic] minds of the Petitioner as an unknown stalker that would just attack People without provocation.” According to the petitioner, “[u]pon the presentation of the sonogram document . . . presented during the trial to the complaining witness the prosecutor refused to openly admit that the complaining witness may have not been credible enough to stand trial.” The prosecutor's theory of the case relied on the credibility of the witness and “[a]n acknowledgment of the fact that this witness may have not been credible enough to be relied upon during the decision making process would have promoted a sure demand for an inquiry in where the elevated charge the prosecutor wished to maintain in the matter would have been placed in peril.” The petitioner maintains that the complaining witness testimony was questionable because she lied during her testimony and “also had a past criminal history of lying to authorities in a case involving false allegations of rape.” For example, the witness testified she required “the assistance of a cane to walk due to her alleged injuries when there was no cane in her possession and while she had no discernible assistance to walk in court. There was also no trace of a cane being prescribed to the complaining witness throughout her medical records.” The prosecutor “use[d] the favor that she held with the Court to effectively overcome every attempt on the trial attorney's behalf to impeach the complaining witness” and “ma[d]e allusions to Jurors that would place the Petitioners' [sic] own credibility in question.” During summation, as related to the sonogram, the prosecutor informed the jurors that they “should not put much stock in this piece of paper not in evidence, ” suggesting “that the Petitioner was so deviant that he could go as far as to download such a document from the internet and then present it at such a proceeding.” The petitioner asserts that the impeachment of the complaining witness “could have also provoked [sic] a mistrial in the matter.”
Concerning the denial of a fair trial claim, the petitioner contends that an “unintelligible voice message” that was incomplete and “gargled” sent by the petitioner to the complaining witness was received in evidence. “There was no context to this message or indication as to what the voice message was in concern to, ” and it was presented by the prosecutor to prove intent to cause serious physical injury or death, despite numerous other messages indicating the petitioner “was prone to mocking or teasing his girlfriend.” The petitioner asserts that the prosecutor withheld evidence of the witness's messages to the petitioner, which would reveal the existence of a relationship between the witness and the petitioner, and stated to the jury that “there were no text [messages] from the complaining witness to the Petitioner” because the witness did not save them on her telephone. Moreover, the petitioner did not give his consent for access to his telephone and the information was obtained illegally from his telephone. According to the petitioner, the prosecutor “mislead and directly lied to Jurors in order to obtain her conviction.” In connection with the excessive sentence claim, the petitioner asserts that he received a maximum sentence of fifteen years imprisonment but the victim “only received a single laceration.”
The petitioner also asserts that “[t]he surveillance video that was presented during trial in this matter and that was the prosecutions [sic] main point of reference throughout the proceeding was not a cheaply produced video, ” but it was “a collection of various videos' or scenes from several surveillance cameras positioned in different locations” and “[a]ll of the scenes were digitally edited to some extent to fit the prosecutions [sic] purpose.” The petitioner contends that “[h]alf of the [main] scene was reenacted by the complaining witness in this matter on a date following the alleged incident” and his “image was edited into this combined scene.” According to the petitioner, he “did not view this video until recently.” In connection with the complaining witness's injury, the petitioner asserts that the prosecution's expert witness testified on cross-examination “to not knowing the depth of the injury” and also testified that the injury was “four inches deep.” The complaining witness testified that she required a cane to walk due to her injury, although at the time she testified, she did not use a cane in court and no mention of a cane exists in the witness's medical records, which the petitioner received after trial.
RESPONDENT'S CONTENTIONS
The respondent contends that the state court's rejection of the petitioner's claim that the prosecutor suborned perjury when she did not correct the victim's assertions that she never had a sexual relationship with petitioner, had been drug-free for four years, and could not recall whether she had been pregnant in September 2010, was not an unreasonable application of clearly established Supreme Court law, since the state court found that “at the time of trial, the prosecutor had no ‘undisclosed evidence [that] demonstrate[d] that the prosecution's case include[d] perjured testimony and that the prosecution knew, or should have known, of the perjury.'” The state court's determination of the facts was not unreasonable. Moreover, the claim is meritless because: (i) “there is no compelling proof that the prosecutor knew that [the witness's] testimony was false”; and (ii) since “the proof that petitioner intentionally stabbed [the victim] was irrefutable, any false testimony about their sexual history or her drug history could not have affected the jury's verdict.”
The respondent asserts that the state court did not unreasonably apply Supreme Court law in rejecting the petitioner's evidentiary claims, namely, that the trial court allowed the prosecutor to introduce an inaudible voice mail message and a “one-sided” selection of text messages in evidence. The state court found that the trial court “providently exercised its discretion” and the phrase, “Don't let me catch you, ” was audible in the message and “probative of [petitioner's] intent to cause the victim serious physical injury.” Moreover, the trial court also admitted properly the text messages as probative background of the stabbing. The state court found correctly that, “to the extent any messages were more prejudicial than probative, any error in their admission was harmless in light of overwhelming evidence of [petitioner's] guilt, and there was no significant probability that the jury would have acquitted [petitioner] but for their admission into evidence.” Since the evidentiary rulings did not deprive the petitioner of a fundamentally fair trial, he is not entitled to habeas corpus relief. The respondent asserts that the excessive sentence claim is not cognizable in this proceeding because the sentence is within the range prescribed by state law.
The respondent maintains that the petitioner's claims that the surveillance video introduced at trial was a forgery and that the complaining witness lied about the extent of her injuries are unexhausted and their adjudication should not be stayed because they are meritless. According to the respondent, “these claims appear to be based on matters outside the trial record” and “petitioner may still raise the claims in another state court via motion to vacate the judgment of conviction, ” under CPL § 440.10(1). Apart from the petitioner's “own suspicions and conjecture, ” the petitioner did not offer any proof that the surveillance video was fraudulent, and he did not substantiate his theory that the complaining witness “wore a dress with triangles on it, rather than the outfit that she is seen wearing on the surveillance video, when he stabbed her.” The petitioner also failed to provide any reason to credit his assertion that the complaining witness lied about her need for a cane when she testified at trial.
PETITIONER'S REPLY
The petitioner asserts:
All of the cited witnesses have been found to have rendered perjured testimony that held material value in the matter. . . . The Prosecution's witnesses in question are the complaining witness or the alleged victim in the case, the arresting officers, the civilian witnesses and medical expert. Proof of the perjury committed can be found included within the Petitioner's Writ of Habeas Corpus Petition.
The petitioner alleges that the “four civilian witnesses” in question assaulted him on the night of the crime for which he was convicted, yet they never mentioned the assault on the petitioner during their testimony. According to the petitioner, medical evidence of his injuries resulting from the assault was “illegally barred from the lower court proceedings by the officials involved.” Moreover, “there would also be an acute alcoholic intoxication that is documented within the Petitioner's medical records included” that would “nullify the theory of intent that the Prosecution in this matter employed along with fabricated chains of events, false witness testimony and falsified digital video evidence in order to maintain the charges in concerns to intent in the case.”
LEGAL STANDARD
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim - (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that 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).
“[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that--(A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant.28 U.S.C. § 2254(b)(1).
“An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.” 28 U.S.C.A. § 2254(c).
State remedies are deemed exhausted when a petitioner has: (i) presented the federal constitutional claim asserted in the petition to the highest state court (after preserving it as required by state law in lower courts) and (ii) informed that court (and lower courts) about both the factual and legal bases for the federal claim. Even if a federal claim has not been presented to the highest state court or preserved in lower state courts under state law, it will be deemed exhausted if it is, as a result, then procedurally barred under state law. Review of a procedurally barred claim in a federal court will, however, be subject to the cause and prejudice standard before reaching the merits.Ramirez v. Attorney Gen. of the State of N.Y., 280 F.3d 87, 94 (2d Cir. 2001) (citations omitted).
APPLICATION OF LEGAL STANDARD
Unexhausted Claims
The respondent asserts that the petitioner's claims that the surveillance video introduced at trial was a “forgery” and that the complaining witness lied about the extent of her injuries are unexhausted and “appear to be based on matters outside the trial record” and “petitioner may still raise the claims in another state court via motion to vacate the judgment of conviction, ” under CPL § 440.10(1). Interpreting the petition liberally and to the extent the petitioner asserts claims that the surveillance video introduced at trial was a “forgery” and that the complaining witness lied about the extent of her injuries, they are unexhausted as they have not been presented to a state court and appear to be based on matters outside of the trial record; thus, they cannot be deemed exhausted. The petition is mixed because it contains exhausted and unexhausted claims.
In his reply, the petitioner did not address the respondent's argument that the unexhausted claims should not be stayed because they are meritless, and he did not request a stay and abeyance so he can exhaust his unexhausted claims in state court. “[S]tay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court.” Rhines v. Weber, 544 U.S. 269, 277, 125 S.Ct. 1528, 1535 (2005). The petitioner did not provide any cause for his failure to exhaust the unexhausted claims. Accordingly, staying the petition and holding it in abeyance is not appropriate.
[I]f a petitioner presents a district court with a mixed petition and the court determines that stay and abeyance is inappropriate, the court should allow the petitioner to delete the unexhausted claims and to proceed with the exhausted claims if dismissal of the entire petition would unreasonably impair the petitioner's right to obtain federal relief.Id. at 278, 125 S.Ct. at 1535.
Given that stay and abeyance of the petition is inappropriate, the Court finds that dismissing the unexhausted claims from the petition is appropriate so that the exhausted claims may be determined.
Due Process Claim
“[T]he clearly established Supreme Court precedent . . . is that the conviction must be set aside if (1) the prosecution actually knew of [the witness's] false testimony, and (2) there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” Drake v. Portuondo, 553 F.3d 230, 241 (2d Cir. 2009). The state court's detailed factual findings in connection with the petitioner's due process claim that the prosecutor suborned perjury are unrebutted and include: (i) “the prosecutor had no actual evidence during trial that the victim had falsely testified when she denied having any romantic relationship with defendant, or when she claimed she had been drug-free for four years at the time of trial”; (ii) “the prosecutor subpoenaed the relevant medical records the day after defense counsel had cross-examined the victim using a previously undisclosed and unauthenticated sonogram dated September 2010”; (iii) “[t]he hospital's medical records were received two days after the verdict, and they confirmed that the victim had been pregnant in September 2010”; (iv) “these records did not reveal the father's identity”; (v) “[t]he records also revealed, contrary to the victim's trial testimony, that she had been using drugs at that time”; (vi) “[d]efendant's brother had testified that the sonogram was in defendant's possession, but he did not elaborate on this or testify, as the defense counsel argued during her cross-examination, that the victim had given it to defendant and claimed he was the father”; (vii) “[a]t the time of trial, the evidence showed that defendant and the victim met in November 2010”; (viii) “[t]he prosecutor acknowledged, due to the extent of text exchanges between defendant and the victim, of which defendant was aware, that she suspected that the victim had not been candid about her relationship with defendant”; and (ix) “at the time of trial, the prosecutor had no ‘undisclosed evidence [that] demonstrate[d] that the prosecution's case include[d] perjured testimony and that the prosecution knew, or should have known, of the perjury.'” The petitioner's conclusory assertions that the prosecutor misled and lied to the jury are not sufficient to satisfy his burden of proof in this proceeding. The Court finds that the petitioner failed to establish that the state court's determination of his due process claim was contrary to or an unreasonable application of the clearly established Federal law, as determined by the Supreme Court. Accordingly, granting habeas corpus relief based on the petitioner's due process claim is not warranted.
Fair Trial Claim
In addition to the state court's relevant factual findings quoted above, the state court also found, in connection with the petitioner's due process claim that the trial court erred in admitting evidence of “an inaudible voice mail message that provided a misleading picture of the Petitioners' and Ms. Polanco's, the complaining witnesses' relationship, ” the following facts that are unrebutted: (1) “[t]he victim testified to the authenticity of the recording”; (2) “a technician testified regarding how he enhanced the recording in order to clarify defendant's voice in the foreground”; (3) “a few parts were audible, including when defendant said, ‘Don't let me catch you, '”; (4) both parties exchanged hundreds of texts and phone calls, and the victim acknowledged that she also replied to defendant's texts and calls”; (5) “Defendant also had an opportunity to cross-examine the victim regarding those communications”; (6) “[t]he evidence included eyewitness testimony that defendant stabbed the victim in her left side, barely missing her kidney, with a knife with an eight-inch blade, which was found on defendant just after the assault.”; (7) “surveillance videos recorded the incident”; and (8) “defendant admitted to a friend that he had committed the stabbing.” The state court concluded that “[t]he trial court providently exercised its discretion in admitting a recording of a voicemail defendant left for the victim, even though only parts of it were audible and intelligible.” In light of the unrebutted and detailed state court's factual findings, the petitioner failed to make citation to any clearly established Federal law, as determined by the Supreme Court, that the state court's decision concerning evidentiary rulings in this case unreasonably applied or to which the state court's decision was contrary. The Court finds that the petitioner failed to establish that the state court's determination of his fair trial claim was contrary to or an unreasonable application of the clearly established Federal law, as determined by the Supreme Court. Accordingly, granting habeas corpus relief based on the petitioner's fair trial claim is not warranted.
Excessive Sentence
“No federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law.” White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992). The petitioner does not assert that his sentence is not within the range prescribed by state law. The petitioner's excessive sentence claim is not cognizable in this proceeding because it is within the range prescribed by state law. Accordingly, granting habeas corpus relief based on the excessive sentence claim is not warranted.
RECOMMENDATION
For the foregoing reasons, I recommend that the unexhausted claims be dismissed and the petition, containing only exhausted claims, be denied.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Any requests for an extension of time for filing objections must be directed to Judge Schofield. Failure to file objections within fourteen (14) days will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003).
The Clerk of Court is directed to mail a copy of this Report and Recommendation to the petitioner.