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finding the use of the phrase "in any event, even if the this court were to reach the merits of the claim, they would be denied," to be a contrary-to-fact construction and not an alternative holding not entitled to deferential review under § 2254(d).
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16-CV-0629 (VEC) (BCM)
02-11-2019
JERMAINE COOPER, Petitioner, v. THOMAS GRIFFIN, Respondent.
REPORT AND RECOMMENDATION TO THE HON. VALERIE E. CAPRONI
BARBARA MOSES, United States Magistrate Judge.
Petitioner Jermaine Cooper, proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He has been incarcerated since 2009, when he was convicted of two counts of first degree robbery, two counts of third degree criminal possession of a weapon, three counts of second degree menacing, and one count of petit larceny, and sentenced as a persistent violent felony offender to a term of 20 years to life. Petitioner seeks the writ on the grounds that (1) his trial counsel was ineffective in failing to (a) subpoena certain evidence prior to trial and (b) seek a mistrial or other redress when the People failed to call a certain witness during trial; and (2) his appellate counsel was ineffective in failing to raise the ineffectiveness of his trial counsel. For the reasons set forth below, I respectfully recommend that the petition be denied.
I. BACKGROUND
A. Factual Background
Petitioner's convictions arise out of three separate shoplifting incidents at Macy's department store in Manhattan.
On December 2, 2007, Wilson Rivera, a Macy's security employee who was operating the store's video surveillance system, observed petitioner pick up a coat in the boy's department, remove its security tag at an unattended cash register in the lingerie department, and take a Macy's shopping bag from behind that register. (Tr. 91-92, 117-18.) Rivera lost sight of petitioner after he left the lingerie department, but "picked up visual" again to observe petitioner exit the store with a bag that appeared to contain the coat. (Tr. 93, 126.) Macy's preserved Rivera's surveillance footage, which Rivera later authenticated at petitioner's trial. (Tr. 101-02, 108-28.)
"Tr. ___" refers to the consecutively-paginated transcript of petitioner's trial, which appears in the record of this action at Dkt. Nos. 13-8 (beginning at page ECF 184), 13-9, 13-10, and 13-11.
On April 12, 2008, Rivera again observed petitioner via the surveillance system. Petitioner was in the lingerie department, wearing a coat and carrying two Macy's shirts. (Tr. 129-30, 136.) Petitioner carried the shirts into and out of various departments until he reached a "blind area" where Rivera briefly "lost visual." (Tr. 130-31.) When petitioner reappeared on camera, "the shirts weren't in his hand anymore." (Tr. 132.) Rivera continued to observe petitioner as he "proceeded to go down the escalators." (Id.) Once again, Macy's preserved Rivera's surveillance footage, and Rivera authenticated it at trial. (Tr. 133-46.)
During the April 12 incident, while Rivera was watching petitioner through the security cameras, New York Police Department (NYPD) Officers Admir Gutic and Jason Rubenstein responded to the store in plain clothes. (Tr. 423-24, 504, 506, 662.) Petitioner was still holding the shirts and walking through various departments. (Tr. 426, 428.) Officer Gutic followed petitioner around the store from a distance, trying to remain inconspicuous, with Officer Rubenstein further behind. (Tr. 429-31.) Gutic saw petitioner take the shirts behind a "pillar or like a little wall," emerging without the shirts and displaying a bulge under his jacket. (Tr. 432-33.) Gutic continued to follow petitioner down the escalators, to the first floor, and saw him head towards the exit. (Tr. 433-38.) By this time petitioner was also being followed by Jeff Klock, Macy's security director, who was about ten feet behind petitioner when he left the store through the 35th Street and Broadway doors. (Tr. 208, 212-13.)
Klock followed petitioner outside, whereupon petitioner turned around and brandished a "sharp blade," which "looked like a box cutter," in his right hand. (Tr. 213-14.) Klock "jumped back" through the doors he had just exited (Tr. 214) and told Officer Gutic that petitioner had a knife. (Tr. 222.) Gutic then pursued petitioner on foot, trying to "maintain a visual on [him] without immediately engaging him." (Tr. 442.) At the corner of 35th Street and Sixth Avenue, petitioner "pull[ed] out a box cutter, the blade [was] sticking out and [told] me 'Yohe, what's up, what's up.'" (Tr. 443.) Reluctant to engage petitioner without backup, Gutic crossed Sixth Avenue, "a little bit fast," only to find petitioner following him. (Tr. 444-45.) After another block, petitioner changed course and entered a subway station. (Id.) Rather than "go there by myself," Gutic met up with Officer Rubenstein and other police officers, who went into the station together but were unable to locate petitioner. (Tr. 444-45, 548-49.) No video evidence was produced by the People or presented at trial showing petitioner exiting Macy's on April 12 or any of the events outside the store.
On April 21, 2008, petitioner returned to Macy's, where store detective Rodrigue Deras, who was on patrol on the 7th floor, saw him holding two shirts and "heading towards the kid's department." (Tr. 358-61.) After petitioner made eye contact ("he stared me down"), Deras walked towards a different department ("I didn't want to confront"), but turned around to see petitioner about ten feet from him, holding a partially opened folding knife. (Tr. 363-68; 396-97.) In fear for his safety, Deras stepped behind a pillar and radioed for assistance, and then reported in person to Klock. (Tr. 368, 223, 372.) He may have also called Officer Gutic on his cellphone. No video evidence was produced by the People or presented at trial showing these events.
Deras could not recall calling Gutic (Tr. 372-73), but Gutic testified that Deras called his cell phone and reported that petitioner was back in the store and had pulled a knife on him. (Tr. 461-62, 581-82, 611.)
Petitioner was arrested when he returned to Macy's on August 16, 2008. (Tr. 146-47.) No weapon was recovered. (Tr. 588.) Before petitioner was taken to the Midtown South precinct for arrest processing, he made certain inculpatory statements to Macy's personnel, including security director Klock. (Tr. 240, 474-76.)
On August 22, 2008, petitioner was indicted and charged with two counts of robbery in the first degree in violation of N.Y. Penal Law § 160.15(3), two counts of criminal possession of a weapon in the third degree in violation of N.Y. Penal Law § 265.02(1), three counts of menacing in the third degree in violation of N.Y. Penal Law § 120.14(1), and one count of petit larceny in violation of N.Y. Penal Law § 155.25. (SR 91-93.)
"SR ___" refers to the consecutively-paginated State Court Record, which appears in the record of this action at Dkt. Nos. 13-1 through 13-7.
B. Jury Trial and Conviction
Petitioner was tried by jury in New York Supreme Court, New York County. On November 12, 2009, shortly before jury selection commenced, petitioner's criminal defense counsel noted that no video evidence had been produced concerning the out-of-store events on April 12 or any of the events on April 21. (Voir Dire Tr. (Dkt. No. 13-8), at 3-4.) When the trial judge asked whether the defense intended to put on evidence, counsel noted (apparently referencing a letter from Macy's to the District Attorney) that a Macy's paralegal, Denise Pilgram, "did a search for [video] records." (Voir Dire Tr. 3.) Defense counsel told the judge that she would be a "relevant defense witness." (Voir Dire Tr. 4.) Alternatively, counsel stated, he would accept "a written stipulation" as to the absence of any video evidence from April 21. (Voir Dire Tr. 4-5.) The Assistant District Attorney then confirmed that the People would put on "a witness" (he did not identify the witness by name) "who actually did the search for the video," and who would say, if asked, that "there was no video for April 21st." (Voir Dire Tr. 5.)
The People never called Ms. Pilgram. However, several witnesses discussed the lack of any video footage showing the events of April 21. Officer Rubenstein testified that he "went into the camera room" shortly after April 21 "and asked Wilson [Rivera] do we have footage from the other day." (Tr. 703-04.) The answer was apparently negative: "If we had footage we would have put it in and that's it." (Id.) Rivera himself did not recall conducting any "investigation" into whether there was video of petitioner in Macy's on April 21, but he "could have." (Tr. 182.) Asked for the result of his investigation, Rivera stated, "There's no result. Whatever is on video there is what you have." (Id.)
Security director Klock testified that he personally reviewed "approximately five cameras in the vicinity" of where the April 21 in-store incident occurred, including "every camera there was that might have been zoomed in over that area" (Tr. 271-72.) Klock said he chose not to save any of that footage after determining that the cameras were all "zoomed in on the ceiling and on the floor, and one was zoomed against the wall." (Tr. 272-73, 308.) Under cross-examination, Klock testified that the images he reviewed could no longer be retrieved, because the system automatically deleted footage after 30 or 40 days unless it was recorded onto a CD, which he did not do. (Tr. 273-74, 298, 341-42.) Klock did not show any of the April 21 footage to the NYPD or to other Macy's personnel before deciding not to save it. (Tr. 274-75.) Neither Klock nor his staff reviewed any April 21 footage from "the entrance and exits of Macy's," which might have shown petitioner entering or leaving the store that day. (Tr. 276-77.)
There was also testimony concerning the lack of footage showing petitioner exiting the store or interacting with Klock or Gutic on April 12. Rivera, who tracked petitioner through the surveillance cameras that day, last saw him on video when he was "going down the escalator." (Tr. 155.) Thereafter, Rivera tried to follow petitioner "on the outside camera," but "did not see him." (Tr. 155, 158.) Officer Rubenstein "went into the camera room" on April 12, and helped Rivera "rewind the tape," looking for video of petitioner's encounters with Klock and Gutic. (Tr. 700-02.) He found none. (Id.) Rubenstein noted that the cameras near the door through which petitioner exited were moveable cameras, such that "if they're not fixed on that door they won't see the door." (Tr. 702-03.) Klock could not recall whether he reviewed any video footage with regard to the events of April 12. (Tr. 279.)
On November 13, 2009, midway through Klock's testimony, petitioner's counsel complained that the testimony concerning the searches for video evidence was not as comprehensive as he had hoped to obtain from "somebody from Macy's" who could say, "I am in charge of video surveillance, I conducted a search for records for April 21st, [and] I conducted an additional search for [the] missing records from April 12th." (Tr. 285.) Counsel noted that he still had a subpoena with Pilgram's name on it. (Tr. 285-86.) When the trial judge asked, "what is the issue?," counsel explained that Klock did not "rise[] to the level of a person obligated to perform such a search." (Tr. 285.) The judge advised counsel either to "work out a stip" or "subpoena a witness and see where you are." (Id.)
On November 19, 2009, the defense rested without calling any witnesses. (Tr. 752, 754.)
The following day, in his summation, petitioner's counsel highlighted the lack of video evidence concerning any of the three incidents in which petitioner allegedly displayed a weapon. (Tr. 773, 774.) In addition, counsel suggested that Klock deliberately failed to save any of the video from April 21st, intimating that the footage, if preserved, could have been exculpatory. (Tr. 780, 784-85.)
The jury convicted petitioner on all eight counts. (SR 110-111.) He was later sentenced as a persistent violent felony offender to concurrent prison terms of 20 years to life for the two robberies and three and one half to seven years for the weapons possession counts. He was also sentenced to three concurrent one-year terms on each of the menacing charges. (Sentencing Tr. (Dkt. No. 13-11), at ECF page 318.)
C. Petitioner's Direct Appeal and First § 440.10 Motion
Represented by the Legal Aid Society, petitioner appealed his conviction as of right to the Appellate Division, First Department. (SR 124-25.) Petitioner argued, inter alia, that the incriminating statements he made to Macy's security personnel when he was arrested on August 16, 2008, should have been suppressed, and that petitioner's trial counsel rendered ineffective assistance by failing move to reopen the Huntley (suppression) hearing after Klock's trial testimony revealed that he conducted more "explicit interrogation," after petitioner's arrest, than previously acknowledged. (SR 166.)
While his direct appeal was pending, petitioner filed a pro se motion pursuant to N.Y. C.P.L. § 440.10, arguing that his trial counsel were ineffective for, inter alia, failing to request a hearing challenging petitioner's warrantless arrest, failing to challenge the sufficiency of the indictment, and failing to argue that the conduct of the police in failing to preserve all surveillance tapes amounted to a Brady violation. (SR 350-398.) Petitioner also argued that his conviction rested on legally insufficient evidence because the People did not present video evidence showing him brandishing a weapon; that the testimony presented by the People was inconsistent or perjurious; and that the People withheld exculpatory evidence. (Id.) On August 8, 2012, Justice Stolz denied the motion, holding that petitioner's claims were either contrary to the record or procedurally barred because he failed to raise them on direct review. (SR 409-10).
On October 4, 2012, petitioner's conviction was affirmed on direct appeal. People v. Cooper, 99 A.D.3d 453 (1st Dep't 2012). The Appellate Division "considered and rejected [his] ineffective assistance of counsel claim." Id. at 455. On June 10, 2013, leave to appeal to the Court of Appeals was denied. People v. Cooper, 21 N.Y.3d 1003 (2013).
D. Petitioner's Second § 440.10 Motion
On January 7, 2014, petitioner filed a second § 440.10 motion (SR 413-28), arguing that he was actually innocent and that the People engaged in misconduct by: (i) offering testimony that the prosecution knew or should have known to be false; (ii) withholding exculpatory evidence; and (iii) "hinder[ing] . . .trial counsel's efforts to obtain video footage from Macy's security surveillance systems through subpoena by assuring counsel that Rivera and Klock would testify fully on the matter." (SR 425.) Petitioner further argued that he was denied the effective assistance of his trial counsel because, inter alia, counsel failed to subpoena additional surveillance camera footage from Macy's, failed to subpoena the cell phone and GPS records of Officer Gutic, and did not move for a mistrial or continuance after the prosecution failed to offer a witness who could testify that all relevant security footage had been searched and produced. (SR 425-28.)
Petitioner's theory, apparently, was that the cellphone and GPS records might show that Gutic did not respond to Macy's on April 12, or at least not at the time he said he did. Thus, his "false testimony" would have been "exposed, and the case against Cooper derailed." (SR 427.)
On August 13, 2014, Justice Stoltz denied petitioner's second § 440.10 motion, concluding that petitioner's claims were procedurally barred under state law because he failed to raise them in his first § 440.10 motion. (SR 442-45.) The court continued, "[i]n any event, even if this court were to reach the merits of the claims, they would be denied." (SR 444.) Justice Stoltz noted that multiple witnesses testified at trial that a search had been conducted for relevant surveillance footage and none had been found; that defense counsel "was able to argue from the absence of videotape evidence that the [brandishing] incidents did not occur"; and that petitioner's contention as to what the cellphone and GPS records would have shown was "speculative and collateral." (Id. at 444-45.) Petitioner sought permission to appeal the order denying his second § 440.10 motion, but the Appellate Division, First Department, denied his request on January 5, 2015. (SR 479.)
E. Petitioner's Coram Nobis Petition
On March 19, 2015, petitioner sought a writ of error coram nobis from the Appellate Division, First Department. (SR 480-96.) Petitioner claimed that his appellate counsel was ineffective for failing to raise his trial counsel's ineffectiveness. The Appellate Division summarily denied his petition on September 8, 2015, People v. Cooper, 2015 WL 5194692 (1st Dep't Sept. 8, 2015), and the Court of Appeals denied leave to appeal on November 25, 2015. People v. Cooper, 26 N.Y. 3d 1038 (2015).
Petitioner's description of his trial counsel's ineffectiveness in his coram nobis petition closely tracks the ineffectiveness claims in his second § 440.10 motion. Compare SR 413-28 with SR 480-96.
F. Habeas Corpus Petition
Petitioner filed this action on January 15, 2016. His petition (Dkt. No. 1) alleges that his trial counsel was ineffective for failing to subpoena video surveillance footage, Officer Gutic's cell phone records, and GPS records for Officer Gutic's police car. Pet. ¶ 6. In addition, the petition alleges that counsel "fail[ed] to object to the prosecutor intentionally interfering with the defendant's discovery subpoenas for Macy's security surveillance videos" Id. However, petitioner does not identify any prosecutorial conduct that could have interfered with petitioner's pretrial "discovery subpoenas." In his accompanying brief, petitioner clarifies this claim, alleging - as he did in his second § 440.10 motion - that trial counsel was ineffective because he failed to seek a mistrial or continuance after the People failed to produce Ms. Pilgram or another witness who could testify comprehensively to the completeness of the search for additional video evidence. See Pet. Mem. (Dkt. No. 1) at 20-21 ("[a]t this juncture . . . counsel should have raised a due process violation and requested any number of available sanctions based on the prosecutor's sandbagging the defense into believing that one of its witnesses would testify fully about the search conducted for the surveillance video").
Petitioner also asserts, in his brief, that his appellate counsel was ineffective for failing to raise the ineffectiveness of his trial counsel on direct appeal. Pet. Mem. at 16.
On March 21, 2016, the Hon. Valerie E. Caproni, United States District Judge, referred the case to me for report and recommendation. (Dkt. No. 5.) Respondent filed opposition papers on July 12, 2016, and amended that submission on July 22, 2016. (Dkt. Nos. 12 & 15.) On August 5, 2016, petitioner filed a reply to respondent's answer, requesting that the Court grant summary judgment or, in the alternative, conduct discovery and an evidentiary hearing to determine the merits of the petition. Pet. Reply (Dkt. No. 16), §§ 19-23.
II. DISCUSSION
A. Timeliness
Under 28 U.S.C. § 2244, as amended by the Antiterrorism and Effective Death Penalty Act (AEDPA), a petitioner must file his habeas corpus petition within one year of the date his conviction becomes "final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). This one-year period is tolled while "a properly filed application for State post-conviction or other collateral review," such as a § 440.10 motion, remains pending. Sunter v. Capra, 2016 WL 836346, at *3 (S.D.N.Y. Feb. 29, 2016) ("AEDPA's statute of limitations is tolled from the date the petitioner files a § 440.10 motion until the date the Appellate Division denies the petitioner leave to appeal that decision.") Time begins to run again on the date the state court issues a final order in the collateral proceeding and further appellate review is unavailable. Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999), aff'd, 531 U.S. 4 (2000).
Respondent does not challenge the timeliness of the petition. However, district courts may consider a statute of limitations question sua sponte. Day v. McDonough, 547 U.S. 198, 209 (2006). Having considered the issue, I conclude that the petition in this action was timely filed. The Court of Appeals denied petitioner leave to appeal on June 10, 2013, and his conviction became final on September 9, 2013, when his time to file a petition for certiorari with the U.S. Supreme Court expired. See Williams v. Artuz, 237 F.3d 147, 150-51 (2d Cir. 2001). The statute of limitations ran from September 9, 2013 until January 7, 2014, when Cooper filed his second § 440.10 motion, tolling the limitations period until January 13, 2015, when the Appellate Division denied leave to appeal the trial court's denial of petitioner's second § 440.10 motion. The statute was tolled again on March 20, 2015, when petitioner filed his coram nobis application by delivering the document to prison authorities. Houston v. Lack, 487 U.S. 266, 270 (1988); see also Fernandez v. Artuz, 402 F.3d 111, 112-15 (2d Cir. 2005) (applying "the federal mailbox rule to ascertain when a state petition is "properly filed" for purposes of tolling the AEDPA statute of limitations" and holding that a coram nobis petition tolls AEDPA's statute of limitations on the date a petitioner delivers it to prison authorities). The clock restarted once more on November 25, 2015, when the Court of Appeals denied leave to appeal from the denial of that coram nobis application. Petitioner filed this petition on January 15, 2016, at which time approximately 240 days had elapsed under the one-year statute of limitations.
B. Exhaustion
Exhaustion of state remedies is a necessary condition precedent to federal habeas relief. 28 U.S.C. § 2254(b)(1)(A). A state can waive the exhaustion requirement, but such waiver must be express. Id. § 2254(b)(3). A petitioner satisfies the exhaustion requirement by fairly presenting his claims to the highest possible state court before presenting them to the federal court. Baldwin v. Reese, 541 U.S. 27, 29 (2004). To fairly present a claim, a petitioner must identify the facts that entitle him to relief, Picard v. Connor, 404 U.S. 270, 276-77 (1971), and identify the federal constitutional basis for the claim. Duncan v. Henry, 513 U.S. 364, 365-66 (1995). A petitioner may fairly present a claim in several ways, including by citing "pertinent federal cases employing constitutional analysis." Rustici v. Phillips, 308 F. App'x. 467, 469 (2d Cir. 2009) (internal quotation marks and citation omitted). Although unexhausted claims cannot be reviewed and granted, they may be denied on the merits. 28 U.S.C. § 2254(b)(2).
Petitioner fairly presented all of his habeas claims to the courts of New York. In his second § 440.10 motion, he expressly argued that his trial counsel was ineffective for failing to subpoena additional video surveillance footage, Officer Gutic's cell phone records, and the GPS records of his police vehicle, and for failing to request a mistrial or continuance when Pilgram did not testify. (SR 426-28.) And in his coram nobis petition, he expressly argued that his appellate counsel was ineffective for failing to raise these alleged deficiencies in his trial counsel's performance. (SR 492-96.) Petitioner has thus exhausted the claims now before this Court.
Petitioner's brief in this action could potentially be read as suggesting that trial counsel erred by failing to subpoena the cell phone records of individuals other than Gutic. See Pet. Mem. at 27 ("[i]nexplicably, counsel failed to subpoena Gutic's, or any other prosecution witness' cell phone records.") (emphasis added). In his second § 440.10 motion, petitioner complained, more narrowly, that trial counsel should have obtained "Gutic's cell phone records." (SR 419.) "A petitioner has 'fairly presented' his claim only if he has informed the state court of both the factual and legal premises of the claim he asserts in federal court." Love v. Superintendent of Otisville Corr. Facility, 2017 WL 4233011, at *4 (E.D.N.Y. Sept. 22, 2017) (quoting Jones v. Keane, 329 F.3d 290, 294-95 (2d Cir. 2003)). To the extent petitioner now alleges that trial counsel was ineffective by failing to subpoena the cell phone records of prosecution witnesses other than Gutic, his claim is unexhausted, as he failed to raise it in state court. Nonetheless, the Court may and should dismiss that claim, on the merits, pursuant to 28 U.S.C. § 2254(b)(2).
C. Procedural Default
1. Legal Standards
Even where a claim has been exhausted in state court, federal habeas review is barred if the state court's decision rests on a state law ground - including a state procedural default - that is independent of the federal question and adequate to support the state court's judgment. Coleman v. Thompson, 501 U.S. 722 (1991); Wainwright v. Sykes, 433 U.S. 72, 87 (1977). In order for the state law ground to be independent of the federal question, the state court must have actually relied on it as an independent basis for its ruling. Harris v. Reed, 489 U.S. 255, 261-62 (1989). As long as the state is "explicit in its reliance on a procedural default," federal habeas review is barred - even if the state court chooses, in the alternative, to address the merits. Id. at 264 n.10 (federal courts must "honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law.").
A state procedural bar is "adequate" if it "is firmly established and regularly followed by the state in question" in the specific circumstances presented by the case before the habeas court Monroe v. Kuhlman, 433 F.3d 236, 241 (2d Cir. 2006) (quoting Cotto v. Herbert, 331 F.3d 217, 239 (2d Cir. 2003)); Walker v. Martin, 562 U.S. 307, 316 (2011) (quoting Beard v. Kindler, 558 U.S. 53, 60 (2009) (the state procedural rule "must be 'firmly established and regularly followed'"). "Before accepting a procedural bar defense, a federal court must examine the adequacy of the alleged procedural default." Cotto, 331 F.3d at 239.
Where the state court decision rests on an independent and adequate state law ground, the federal court must assess whether petitioner 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." Hamilton v. Lee, 707 F. App'x 12, 13 (2d Cir. 2017) (summary order) (quoting Coleman, 501 U.S. at 750), cert. denied sub nom. Hamilton v. Griffin, 138 S. Ct. 668 (2018). "A habeas petitioner can establish "cause" for a procedural default by showing that 'some objective factor, external to Petitioner's defense, interfered with his ability to comply with the state's procedural rule.'" Polk v. Annucci, 2018 WL 6003976, at *5 (S.D.N.Y. Mar. 27, 2018) (quoting Gutierrez v. Smith, 702 F.3d 103, 111 (2d Cir. 2012)), report and recommendation adopted, 2018 WL 5999606 (S.D.N.Y. Nov. 15, 2018). These objective factors can "include 'interference by officials' that makes compliance with the State's procedural rule impracticable, and 'a showing that the factual or legal basis for a claim was not reasonably available to counsel,'" McCleskey v. Zant, 499 U.S. 467, 494 (1991) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). The "consistent rejection by the state courts of the constitutional claim in issue" can also constitute cause. Polk, 2018 WL 6003976, at *9 (citing DiSimone v. Phillips, 461 F.3d 181, 191 (2d Cir. 2006)).
2. Application
Petitioner's ineffective assistance of trial counsel claim is procedurally barred. The Appellate Division denied petitioner's second motion pursuant to N.Y. C.P.L. § 440.10(3)(c), because petitioner could have raised the same grounds for relief in his first § 440.10 motion, but failed to do so. (SR 444.)
Section 440.10(3)(c) provides that "the court may deny a motion to vacate a judgment when . . . [u]pon a previous motion made pursuant to this section, the defendant was in a position adequately to raise the ground or issue underlying the present motion but did not do so." In his opinion, Justice Stoltz did not explicitly mention the branch of petitioner's ineffective assistance claim premised on trial counsel's failure to seek a continuance or mistrial. However, he clearly relied on the procedural bar of subsection (3)(c) to dispose of the entire second § 440.10 motion. (SR 444.) Even if this portion of petitioner's ineffective assistance claim were not procedurally barred, however, the Court could - and in my view should - deny it on the merits, for the reasons discussed infra. See Nelson v. Perez, 2018 WL 1155992, at *5 (E.D.N.Y. Mar. 2, 2018) (applying de novo review to claim that the state courts "neither expressly nor implicitly, addressed," and denying claim as meritless), appeal dismissed, 2018 WL 4492850 (2d Cir. July 9, 2018).
This state procedural bar is independent of any federal question. Moreover, the subsection (3)(c) bar is firmly established - by statute - and regularly applied by the New York courts, such that it adequately supports the judgment. "[S]ubsection (3)(c) of C.P.L. § 440.10 constitutes an adequate state procedural bar to federal habeas review." Murden v. Artuz, 497 F.3d 178, 192 (2d Cir. 2007). "New York state courts regularly apply subsection (3)(c) to deny claims that could have been but were not raised on previous motions to vacate." Id. Thus, "federal courts in this circuit have found [§ 440.10(3)(a) and (c)] to be adequate and independent procedural bars for the purposes of federal habeas review." Collins v. Superintendent Conway, 2006 WL 1114053, at *3 (S.D.N.Y. Apr. 26, 2006) (citing Rosario v. Bennett, 2002 WL 31852827, *21 (S.D.N.Y. Dec. 20, 2002) and collecting cases); Jones v. Bradt, 2015 WL 506485, at *7 (W.D.N.Y. Feb. 6, 2015) (finding denial of second § 440.10 motion on § 440.10(3)(c) grounds an "adequate and independent" state ground barring federal habeas review). Federal habeas review of petitioner's claim is therefore precluded unless he can demonstrate cause and prejudice.
Petitioner has made no showing of cause. He makes no claim that he could not have raised all instances of his trial counsel's alleged ineffectiveness in his first § 440.10 motion. If anything, the record suggests that he easily could have done so, since he did make a closely related ineffectiveness argument in that first motion: that "[a]ll defense counsel's in this case were ineffective" because they neglected to argue that the failure to preserve the surveillance tapes constituted a Brady violation. (SR 363.)
Nor does Martinez v. Ryan, 566 U.S. 1, 12 (2012), excuse petitioner's default. Under the rule articulated in Martinez, and further explained in Trevino v. Thaler, 569 U.S. 413, 429 (2013), if state law either explicitly or effectively requires claims of ineffective assistance of trial counsel to "be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective." Martinez, 566 U.S. at 17. However, "the State of New York does not require that record-based ineffective assistance of counsel claims be brought in a post-conviction proceeding." Santana v. Capri, 2017 WL 3447885, at *11 (S.D.N.Y. Aug. 10, 2017), report and recommendation adopted, 2017 WL 4075202 (S.D.N.Y. Sept. 12, 2017), motion for relief from judgment denied sub nom. Santana v. Capra, 2018 WL 6413143 (S.D.N.Y. Dec. 6, 2018). To the contrary: as Justice Stoltz noted in denying petitioner's first § 440.10 motion (SR 411), such claims must be raised on direct appeal. See also, e.g., People v. Smith, 269 A.D.2d 769, 769, 703 N.Y.S.2d 616, 617 (2000) (collecting cases). Here, petitioner's ineffective assistance of trial counsel claim is firmly record-based. See Pet. Mem. at 22 (arguing that counsel's misconduct was "reflected by the trial record"); id. at 26 ("it became apparent from Gutic's pretrial testimony" that surveillance videos, Gutic's cell phone records, and GPS records would be "crucial"). Martinez thus does not apply to excuse his procedural default.
Even where Martinez applies, "[t]o overcome the default, a prisoner must also demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit." Martinez, 566 U.S. at 14. In this case, for the reasons discussed infra, petitioner has not shown that his claim is meritorious. I therefore recommend, respectfully, that petitioner's ineffective assistance of trial counsel claims be denied as procedurally barred.
D. Merits
In the alternative, petitioner's ineffective assistance of trial counsel claims should be denied on the merits, as should his claim for ineffective assistance of appellate counsel. A federal court may not grant a writ of habeas corpus unless the petitioner can show that a state court's decision on the merits was "contrary to, or involved an unreasonable application of, clearly established Federal law" or "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)(1)-(2). Under this standard, a federal habeas court "may 'reverse a state court ruling only where it was so lacking in justification that there was . . . [no] possibility for fairminded disagreement." Gillespie v. Uhler, 652 F. App'x 61, 63 (2d Cir. 2016) (quoting Vega v. Walsh, 669 F.3d 123, 126 (2d Cir. 2012)) (summary order). "Clearly established law" means "the holdings, as opposed to the dicta of this Court's decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000).
No procedural bar applies to petitioner's ineffective assistance of appellate counsel claim. The Appellate Division summarily denied his coram nobis petition, which included this claim, and the Court of Appeals summarily denied leave to appeal. (SR 584, 591.)
The clauses "contrary to" and "unreasonable application" in AEDPA have independent meaning: A state court decision is "contrary to" clearly established federal law "if the state court applies a rule different from the governing law set forth in [the Supreme Court's] cases, or if it decides a case differently than [the Supreme Court has] done on a set of materially indistinguishable facts." Chrysler v. Guiney, 806 F.3d 104, 117 (2d Cir. 2015) (quoting Bell v. Cone, 535 U.S. 685, 694 (2002)). A decision is an "unreasonable" application of clearly established federal law if the state court correctly identifies the relevant governing precedent, but unreasonably applies it to the facts of the particular case. Id.
The deferential standard set forth in § 2254(d) does not apply to claims that were not adjudicated on the merits by the state court. An "'adjudication on the merits' [is] one that '(1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment.'" Fischer v. Smith, 780 F.3d 556, 560 (2d Cir. 2015) (quoting Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir.2001)). "To determine whether a state court disposition is 'on the merits,' this Court examines (1) the state court's opinion, (2) whether the state court was aware of a procedural bar, and (3) the practice of state courts in similar circumstances." Id. (quoting Spears v. Greiner, 459 F.3d 200, 203 (2d Cir. 2006)).
When a state court finds that a procedural bar applies, but goes on, in the alternative, to dispose of a claim on the merits, the alternative merits holding is entitled to deference under § 2254(d). See Zarvela v. Artuz, 364 F.3d 415, 417 (2d Cir. 2004) (state court's ruling that petitioner's claim was unpreserved but "in any event, was without merit," was a disposition on the merits entitled to § 2254(d) deference); Fischer, 780 F.3d at 560 (where state court wrote that it "decline[d] to reach the merits," but later described petitioner's claim as both "procedurally barred and meritless," and engaged in extensive discussion of the merits, federal court treated state ruling as a determination on the merits entitled to § 2254(d) deference).
However, when "a state court's 'discussion of the merits was preceded by a contrary-to-fact construction,' then 'the wording of the opinion reflects that the disposition was not premised on the court's view of the merits,'" and the habeas court must review the claim de novo. Fulton v. Graham, 802 F.3d 257, 265 (2d Cir. 2015) (quoting Bell v. Miller, 500 F.3d 149, 155 (2d Cir. 2007)). Thus, in Bell, the Second Circuit reviewed the petitioner's claim de novo because, in the state court's ruling on his § 440.10 motion, "[t]he discussion of the merits was preceded by a contrary-to-fact construction: 'if the merits were reached, the result would be the same' And a contrary-to-fact construction is not the same as an alternative holding." 500 F.3d at 155 (emphasis in original). See also Clark v. Perez, 510 F.3d 382, 394 (2d Cir. 2008) (reviewing ineffective assistance clam de novo where state court denied petitioner's § 440.10 motion on procedural grounds and then stated, "were the court to consider defendant's claim of a deprivation of her constitutional right, it would find the claim completely meritless"); McDowell v. Heath, 2013 WL 2896992, at *7 (S.D.N.Y. June 13, 2013) (state court's statement that "[e]ven if the defendant's claims were not procedurally barred, the court would still deny his motion" was "a contingent observation rather than an alternative holding," and therefore not entitled to § 2254(d) deference).
1. Ineffective Assistance of Trial Counsel
In this case, when deciding petitioner's second § 440.10 motion, the state court introduced its discussion of the merits as follows: "In any event, even if this court were to reach the merits of the clams, they would be denied." (SR 444.) The phrase "in any event" was read in Zarvela, 364 F.3d at 417, to signify an alternative holding entitled to § 2254(d) deference. However, the phrase "even if this court were to reach the merits, they would be denied" (emphasis added) is a "contrary-to-fact construction" which, according to Bell, is "not the same as an alternative holding," 500 F.3d at 155, requiring the habeas court to perform a de novo review. The more conservative course, which I recommend, is to treat the analysis following these phrases as a contingent observation, which is not entitled to deferential review under § 2254(d), and to consider the merits of petitioner's ineffective assistance of trial counsel claim de novo.
So considered, the claim nonetheless fails. An attorney renders constitutionally ineffective assistance of counsel if (1) his performance was deficient, and (2) "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984). In evaluating the deficiency prong, the Court applies a presumption that counsel's performance was adequate; to overcome the presumption, petitioner must show "that 'counsel failed to act reasonably considering all of the circumstances.'" Jackson v. Conway, 763 F.3d 115, 152 (2d Cir. 2014) (quoting Cullen v. Pinholster, 563 U.S. 170, 189 (2011)). To establish prejudice, petitioner must show 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 694. To show a "reasonable probability" that the outcome would have been different, petitioner must demonstrate "a 'substantial,' not just 'conceivable,' likelihood of a different result." Pinholster, 563 U.S. at 189 (2011) (quoting Harrington v. Richter, 562 U.S. 86, 112 (2011)).
Petitioner assigns two errors to his trial counsel: (a) the failure to subpoena additional surveillance footage, Gutic's cell phone records, and GPS data from Gutic's police vehicle; and (b) the failure to request a mistrial or continuance when the People did not call a witness to testify to the completeness of Macy's search for relevant video footage. Pet. ¶ 6; Pl. Mem. at 19-21.
a) Surveillance Footage, Cell Phone, and GPS Records
The first prong of petitioner's ineffectiveness claim requires him to show that his trial counsel's failure to subpoena additional video surveillance footage from Macy's, Officer Gutic's cell phone records, and GPS records of his police vehicle was erroneous - that is, unreasonable under the circumstances. Jackson, 763 F.3d at 152. He cannot do so. First, petitioner admits that his counsel "served a subpoena on the prosecution for Macy's security surveillance video" prior to trial. Pl. Mem. at 19. It is unclear what other or further subpoena he now contends should have been served. Second, as Justice Stolz noted (SR 444), there is no reason to believe that there was any further surveillance footage to subpoena. Rubenstein, Rivera and Klock all testified that they searched for relevant video evidence and found none beyond that which was played at trial. (Tr. 182, 272, 700-02.) Klock further testified that unless footage is manually saved to a CD, the surveillance system automatically deleted it after 30 or 40 days (Tr. 273-74, 298, 341-42.) In this case, those 30 to 40 days expired long before petitioner was arrested on August 16, 2008. Thus, even if an insufficient effort was made to preserve evidence immediately after the April 12 and April 21 incidents, petitioner has made no showing that a discovery subpoena, served months later by his trial counsel, would have produced additional evidence for trial.
Similarly, petitioner has failed to show that his counsel acted unreasonably in failing to subpoena Officer Gutic's cell phone records or GPS records from his police vehicle. Petitioner offers nothing but vague speculation as to what the cellphone records might show, arguing that if they did not show certain phone calls that Gutic testified to making or receiving, this "would have critically damaged the prosecution's case beyond salvage." Pet. Mem. at 27. His argument as to why counsel should have subpoenaed the GPS records is just as speculative: petitioner notes that Officer Gutic testified that he was able to respond to Macy's within five minutes on April 12 and contends that GPS records from his police vehicle could undermine that testimony - if the records showed that he was more than five minutes away from the store when called. Id. at 27-28. Again, petitioner offers no reason, beyond his own speculation, to believe that the GPS records would have bolstered his defense (or that his counsel could have so believed before trial). He has therefore failed to undermine the presumption that his trial counsel acted reasonably under the circumstances.
Petitioner's argument also fails on Strickland's second prong, as he cannot show a reasonable probability that the outcome of his trial would have been any different had counsel subpoenaed any additional records. Where a petitioner "can only speculate that [additional evidence] existed and contained any exculpatory material," he "cannot demonstrate a reasonable probability that, but for his attorney's failure to subpoena the [evidence], the result of his trial would have been different." McClain v. Inserra, 2013 WL 2395190, at *7 (E.D.N.Y. May 31, 2013) (collecting cases).
b) Mistrial or Continuance
The second prong of petitioner's claim requires him to show that trial counsel acted unreasonably in failing to seek a mistrial - or at least a continuance - after the People failed to produce Ms. Pilgram or another witness to testify as to the full scope of Macy's search for surveillance footage. Pet. Mem. at 17-22. This claim arises from the pre-trial colloquy during which counsel discussed the potential testimony of Ms. Pilgram and the prosecutor suggested that the People would call her as a witness to confirm that "there was no video for April 21st." (Voir Dire Tr. 5.) In the event, the People did not call Ms. Pilgram. Characterizing this an "unkept promise," Pet. Reply Mem. at 3, 4, Cooper now argues that his trial counsel should have demanded a mistrial or - at the very least - a continuance "to investigate and/or secure the testimony of Denise Pilgram." Pet. Mem. at 24; see also Pet. Reply Mem. at 4 (arguing that the prosecutor's misconduct "could only have been remedied by defense counsel requesting a continuance (for investigative purposes) or a mistrial").
As is clear from the trial transcript, however, there was no need (and no basis) for either a mistrial or a continuance. Even assuming, arguendo, that the People's decision not to call Ms. Pilgram amounted to some form of prosecutorial misconduct, it was instantly curable, in that petitioner could have subpoenaed the witness himself. Counsel had in hand a subpoena with Pilgram's name on it (Tr. 285), and the trial judge invited him to serve it: "subpoena a witness and see where you are." (Tr. 286.) Instead, trial counsel made a strategic decision to rest, on November 19, 2009, without calling any witnesses. (Tr. 752, 754.) Petitioner therefore cannot ascribe error - much less constitutional error - to counsel's failure to seek a mid-trial remedy that would have been denied as wholly unnecessary.
Significantly, petitioner does not contend that his trial counsel should have served the subpoena and called Ms. Pilgrim during the defense case: "[P]rofessional norms counsel against calling a witness to testify mid-trial without knowing what the witness will testify." Pl. Reply Mem. at 3 (emphasis in the original).
Moreover, petitioner has not shown how it would have advantaged his case to obtain a mistrial or a continuance. Counsel's choice, when trial resumed, would have remained the same: to call Ms. Pilgram - whose testimony might well have confirmed that no potentially exculpatory footage was overlooked or discarded - or to rest without calling her, thus preserving the ability to argue, in closing, that the absence of a complete video record undermined the People's case. Since petitioner offers nothing but his own speculation to suggest that Ms. Pilgram's testimony would have bolstered the defense, he cannot show prejudice under Strickland, 466 U.S. at 694. See Floyd v. Murphy, 2008 WL 616090, at *15 (D. Conn. Mar. 3, 2008) (denying habeas relief based on counsel's failure to seek a continuance where the petitioner failed to "present[ ] any evidence showing what information would have been discovered if trial counsel sought a continuance").
In retrospect, petitioner critiques counsel's strategy, arguing that his summation "in no way compensates for the prejudice suffered." Pet. Reply Mem. at 3. However, a defense attorney's decisions concerning "which arguments to stress, which witnesses to call, which motions to make, and which lines of inquiry to pursue, fall squarely within the ambit of trial strategy and, if reasonably made, cannot support an ineffective assistance claim." Rodriguez v. United States, 2017 WL 6404900, at *25 (S.D.N.Y. Dec. 13, 2017) (quoting Figueroa v. Ercole, 800 F. Supp. 2d 559, 568 (S.D.N.Y. 2011)). As noted above, petitioner's ineffectiveness claim does not rest upon counsel's decision to forgo Ms. Pilgram's testimony and to argue in closing that the absence of additional video evidence was favorable to his client. Since counsel elected a reasonable trial strategy, however, any such claim would also fail.
2. Ineffective Assistance of Appellate Counsel
The Strickland standard also applies to claims of ineffective assistance of appellate counsel. Chrysler, 806 F.3d at 117-18. An appellate lawyer "need not raise every plausible claim and has a wide degree of professional discretion to choose which issues to raise." Lynch v. Dolce, 789 F.3d 303, 319 (2d Cir. 2015) (citing Jones, 463 U.S. at 754). In order to show deficient performance by his appellate counsel - Strickland's first prong - "petitioner must show that 'counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker.'" Santana v. Capra, 284 F. Supp. 3d 525, 544 (S.D.N.Y. 2018) (quoting Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994)) Under Strickland's second prong, petitioner must show a reasonable probability that, but for appellate counsel's errors, the outcome of the proceeding would have been different. Id.
When reviewing an ineffective assistance claim under § 2254(d), the federal court does not determine "whether counsel was actually ineffective but whether the state court 'applied Strickland to the facts of [the] case in an objectively unreasonable manner.'" Pagan v. Lavalley, 2017 WL 1331294, at *11 (S.D.N.Y. Jan. 18, 2017) (quoting Bell, 535 U.S. at 698-99 ), report and recommendation adopted, 2017 WL 1378255 (S.D.N.Y. Apr. 11, 2017), report and recommendation adopted, 2018 WL 3585274 (S.D.N.Y. July 26, 2018), appeal dismissed (Oct. 23, 2018). This standard is often characterized as "doubly deferential," because the initial review of counsel's performance by the state court is deferential under the Strickland standard, and the federal habeas court reviews the state court decision "through the deferential lens of § 2254(d)." Jackson, 763 F.3d at 153 (quoting Pinholster, 563 U.S. at 198).
In this case, the Appellate Division rejected petitioner's ineffective assistance of appellate counsel claim in a summary denial of his coram nobis petition (SR 584), which constitutes a disposition "on the merits" for purposes of AEDPA. Chrysler, 806 F. 3d at 117. Where a petitioner challenges a summary disposition under § 2254(d), he must show that "there was no reasonable basis for the state court to deny relief." Harrington, 562 U.S. at 98.
Petitioner cannot make that showing. "Where, as here, a petitioner has asserted that appellate counsel provided ineffective assistance by failing to raise as a ground for relief on appeal trial counsel's ineffective assistance, he or she must necessarily establish that trial counsel was ineffective." Finley v. Graham, 2016 WL 47333, at *13 (S.D.N.Y. Jan. 4, 2016); Rivera v. Duncan, 2001 WL 1580240, at *10 (S.D.N.Y. Dec. 11, 2001) ("where trial counsel was not ineffective, appellate counsel cannot be faulted for choosing not to argue on appeal the ineffective assistance of trial counsel"); Aparicio v. Artuz, 269 F.3d 78, 99 n.10 & 100 (2d Cir. 2001) (finding "[p]etitioner's appellate counsel was not ineffective for failing to raise the meritless argument" that trial counsel was ineffective). For the reasons discussed above, petitioner's claims that his trial counsel rendered constitutionally ineffective assistance are meritless. His appellate counsel therefore could not have erred in failing to raise those meritless claim in his direct appeal. "[W]here the underlying ineffective assistance of trial counsel argument is lacking in merit, appellate counsel cannot be deemed to have acted objectively unreasonably or to have prejudiced the defendant by failing to raise it." Finley, 2016 WL 47333, at *13.
Put in the language of Strickland's first prong, petitioner cannot show that his appellate counsel neglected a significant and obvious argument while pursuing weaker ones. Santana, 284 F. Supp. 3d at 544. Nor, at Strickland's second hurdle, can he show that he suffered any prejudice from appellate counsel's failure to argue, on direct appeal, that his trial counsel was ineffective for the reasons presented in his habeas petition to this Court.
III. CONCLUSION
For the foregoing reasons, I respectfully recommend that the petition be DENIED. Dated: New York, New York
February 11, 2019
/s/ _________
BARBARA MOSES
United States Magistrate Judge
NOTICE OF PROCEDURE FOR FILING OF OBJECTIONS
TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from this date to file written objections to this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b). See also Fed. R. Civ. P. 6(a) and (d). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. J. Valerie E. Caproni at 40 Foley Square, New York, New York 10007, and to the chambers of the undersigned magistrate judge. Any request for an extension of time to file objections must be directed to Judge Caproni. Failure to file timely objections will result in a waiver of such objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Frydman v. Experian Info. Sols., Inc., 743 F. App'x 486, 487 (2d Cir. 2018); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).