Opinion
19 Civ. 4756 (VB)(PED)
05-02-2023
CHARLES PARSLEY, Petitioner, v. J. LA MANNA, SUPERINTENDENT, Respondent.
TO THE HONORABLE VINCENT L. BRICCETTI, United States District Judge:
REPORT AND RECOMMENDATION
PAUL E. DAVISON, U.S.M.J.
I. INTRODUCTION
On March 16, 2012, a Westchester County jury convicted petitioner Charles Parsley (“petitioner” or “defendant”) of the crimes of second degree murder (two counts), first degree burglary, second degree attempted murder and first degree assault. He was sentenced on June 26, 2012 to an aggregate indeterminate term of seventy-five years to life imprisonment. Since his conviction, petitioner has been housed at Green Haven Correctional Facility in Stormville, New York.
Petitioner's conviction stemmed from his participation in a plot to murder Sandra Hackley. Ms. Hackley, her husband (Rafael Cornielle) and her two daughters (Juliandra Pena, age 12, and Jaylene Rodriguez, age 6) lived in an apartment off the lobby of 1159 Yonkers Avenue in Yonkers, New York. On the morning of April 21, 2010, Hackley and her family left the apartment per their usual daily routine. Hackley and Corneille drove their girls to school and went to their respective jobs. Around the same time, petitioner, Kasaun White and English Thomas left Long Island in Thomas' distinctive Ford F-150 truck bound for Hackley's apartment. Their movements that day were captured on security video at various points throughout the day, including video from the bridge they traversed on route to Yonkers and video surveillance in the lobby of Hackley's apartment building. Throughout the day, the lobby video showed petitioner and White repeatedly entering and exiting the building as they lay in wait for Hackley to return home. Petitioner entered the lobby for the last time at approximately 7:18 p.m. Hackley and her family returned home at approximately 7:26 p.m. Around five minutes later, White (disguised as a UPS delivery man and carrying a box) entered the building's vestibule and buzzed Hackley's apartment. Corneille buzzed White in, and propped open the door of the apartment with his body as White walked toward him. White told Corneille that Hackley had to sign for the package; at the same time, petitioner approached the door with his right hand inside his hoodie. Before Corneille could react, White (from the left) and petitioner (from the right) simultaneously converged on Cornielle and tried to push him back into the apartment. A struggle ensued; petitioner pulled out a semi-automatic handgun and fired three shots at Corneille. One shot grazed his elbow; the other two hit him in the chest and right leg. Corneille, seriously wounded, pushed through the men and ran through the lobby, hoping to draw the men out of the building. Meanwhile, Hackley heard the commotion and gunfire and ran from the bathroom toward the front door. White immediately shot Hackley five times with his semi-automatic handgun, striking Hackley in her chest, abdomen and arm. At approximately 7:36 p.m., Hackley's twelve-year-old daughter (Pena) called 911. Police arrived and found Hackley's lifeless body lying in the front foyer of the apartment.
Presently before this Court is petitioner's pro se Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. This petition is before me pursuant to an Order of Reference dated October 10, 2019 (Dkt. #11). For the reasons set forth below, I respectfully recommend that Your Honor deny the petition in its entirety.
Unless otherwise indicated, the information in this section is drawn from the instant petition (Dkt. #1), respondent's Affidavit in Opposition to Petition for a Writ of Habeas Corpus (Dkt. #30) and respondent's Memorandum of Law and Exhibits (Dkt. #31).
A. Order to Compel a Buccal Swab
Petitioner and White were arrested on May 20, 2010 and taken to the Yonkers Police Department, where they were placed in interview rooms and given drinks. Police seized the discarded drink cups and sent them to the Westchester County Forensic Lab for testing.
On July 6, 2010, the prosecution moved for an Order permitting the taking of a buccal swab from petitioner. In support of their application, the prosecution contended (inter alia): (1) investigators recovered cigarette butts and a partially smoked cigar with a plastic tip on the ground in the parking lot behind the victim's apartment building where petitioner and his cohorts waited to carry out their plot; and (2) the DNA profile from petitioner's discarded drink cup matched the DNA profile from the cigar tip. On July 19, 2010, the Westchester County Court granted the prosecution's application and ordered petitioner to submit to a buccal swab of his mouth. On July 28, 2010, a detective took a buccal swab from petitioner. At trial, a witness from the Westchester County Forensic Lab testified that the DNA profile obtained from petitioner's buccal swab matched the DNA profile from the cigar tip found at the scene.
B. Jury Selection
Petitioner was tried jointly with co-defendant White; the co-defendants were represented by separate counsel. At the beginning of jury selection, White's attorney (Mr. Bartlett) requested that each defendant be allotted a full number of peremptory challenges. The court denied that request. On consent of petitioner and his counsel (Mr. Weinstein), Mr. Bartlett was chosen as the “spokesman” for defense counsel during the exercise of challenges.
Twelve jurors were chosen upon consultation and agreement of defense counsel. During selection of the first alternate juror, neither party challenged prospective juror Patricia Buitron for cause. After the prosecution did not exercise a peremptory challenge as to Buitron, the following colloquy took place:
THE COURT: Defendant peremptory?
MR. BARTLETT: May I have one moment please, your Honor?
THE COURT: The record should reflect that co-counsel have been consulting throughout the course of jury selection before exercising their strikes. I don't think I put that on the record. I think Mr. Weinstein put that on the record.
MR. BARTLETT: We agree, your Honor. I think we have a bit of difficulty at this point. We've - may we have a few minutes please?
THE COURT: Sure.
(Whereupon, there is a brief pause in the proceedings.)
MR. WEINSTEIN: We have a disagreement on that one, they don't want her, we want her.
THE COURT: Here we go, on Buitron, defendant peremptory, Mr.
Weinstein?
MR WEINSTEIN: No.
THE COURT: Mr. Bartlett, defendant peremptory?
MR. BARTLETT: Yes, your Honor. THE COURT: Buitron is off....Dkt. #32-3, at 10-11. Petitioner's counsel did not object to the Court's dismissal of Buitron. Id. at 11.
Citations to page numbers following “Dkt. #” reflect ECF pagination.
Prospective juror Mangum was chosen as the first alternate juror. The following day, immediately prior to opening statements, juror number seven was discharged and replaced with the first alternate, Mangum.
C. Direct Appeal
Petitioner, by and through counsel, timely appealed his conviction to the Appellate Division, Second Department on the following grounds: (1) the prosecution failed to prove petitioner's guilt beyond a reasonable doubt; alternatively, the verdict was against the weight of the evidence; (2) petitioner was deprived of a fair trial after Corneille's outburst during a break in his trial testimony, when the court denied petitioner's motion for a mistrial without first conducting an inquiry to ascertain the effect of the outburst on four jurors who had not yet left the courtroom; (3) petitioner was denied due process and a fair trial as a result of the trial court's erroneous evidentiary rulings; and (4) petitioner's sentence was harsh and excessive. Dkt. #31-7, at 37-80. On or about August 23, 2016, petitioner submitted a pro se Supplemental Brief to the Second Department (Dkt. #31-9), wherein he argued that the trial court should have granted his motion to be tried separately from White. Dkt. #31-9, at 7-10. By Decision and Order dated May 10, 2017, the Second Department affirmed petitioner's conviction. People v. Parsley, 150 A.D.3d 894, 55 N.Y.S.3d 267 (2d Dep't 2017). Petitioner, by and through counsel, timely submitted an application for leave to appeal to the New York Court of Appeals, wherein he sought review of all of the claims raised in his initial appellate brief. Dkt. #31-12. The Court of Appeals denied petitioner leave to appeal on August 16, 2017. People v. Parsley, 29 N.Y.3d 1132, 86 N.E.3d 574, 64 N.Y.S.3d 682 (Table) (2017).
Corneille looked directly at defendants and yelled, “why did you do this?” Dkt. #31-7, at 49.
D. Writs of Error Coram Nobis
On or about October 30, 2018, by and through retained counsel, petitioner moved for a writ of error coram nobis on the ground that appellate counsel was ineffective for failing to raise the following claims: (1) the County Court should have denied the prosecution's application for a buccal swab of petitioner because (a) the application was based, in material part, on the DNA from the drinking cup -which was obtained in violation of petitioner's reasonable expectation of privacy and (b) the prosecution failed to sufficiently specify the sources of information in its affirmation in support of its application; and (2) the trial court erroneously allowed the peremptory challenge against prospective juror Buitron. Dkt. #31-15, at 14-29. On January 23, 2019, the Second Department denied petitioner's application, finding he had failed to demonstrate that appellate counsel was ineffective. People v. Parsley, 168 A.D.3d 987, 90 N.Y.S.3d 565 (2d Dep't 2019). On May 7, 2019, the Court of Appeals denied petitioner leave to appeal the appellate court's denial of his coram nobis application. People v. Parsley, 33 N.Y.3d 1034, 126 N.E.3d 175 (Table), 102 N.Y.S.3d 525 (2019).
Meanwhile, on or about April 25, 2019, petitioner submitted a pro se application for coram nobis relief on the ground that appellate counsel was ineffective because he failed to argue on direct appeal that the trial court violated New York C.P.L. § 310.30 by failing to provide “meaningful notice” to defense counsel about the specific contents of certain juror notes. Dkt. #31-21, at 24-34. On October 19, 2019, the Second Department denied petitioner's application, finding he had failed to demonstrate that appellate counsel was ineffective. People v. Parsley, 176 A.D.3d 743, 107 N.Y.S.3d 720 (2d Dep't 2019). On February 19, 2020, the Court of Appeals denied petitioner leave to appeal the appellate court's denial of his second coram nobis application. People v. Parsley, 34 N.Y.3d 1161, 142 N.E.3d 1144 (Table), 120 N.Y.S.3d 242 (2019).
E. The Instant Petition
On or about May 15, 2019, during the pendancy of his second coram nobis application, petitioner timely filed the instant Petition for a Writ of Habeas Corpus (Dkt. #1), seeking habeas relief on the following grounds: (1) the trial court erred in granting the prosecution's motion to take a buccal swab of petitioner because the DNA acquired from petitioner's drinking cup was illegally obtained; (2) the trial court erred in granting his co-defendant's peremptory challenge to prospective juror Buitron, whom petitioner wished to be seated; and (3) the trial court failed to give petitioner meaningful notice of a jury note.
On October 11, 2019, I stayed the instant petition “pending final resolution of the pending state court action (including any available appellate review)” and directed petitioner to move to lift the stay within thirty days of the resolution of his second writ of error coram nobis. Dkt. #14. On October 13, 2020, petitioner - without addressing the ongoing stay - moved to amend his petition to add a claim related to a staged video re-enactment in which petitioner claims he was required to participate. Dkt. #17.
On January 8, 2021, respondent moved to lift the stay on the ground that the coram nobis petition which was the basis for the stay had been denied by all relevant state courts. Dkt. #18. On February 3, 2021, petitioner requested that the Court maintain the stay on the basis of a pending N.Y. C.P.L § 440.20 petition. Dkt. #19. On February 17, 2020, respondent filed a response, observing that petitioner's § 440.20 petition raised a discrete sentencing issue which, although undecided, “is of no relevance to the instant habeas petition.” Dkt. #20. Petitioner filed a brief reply challenging respondent's description of the sentencing issue. Dkt. #21. On April 28, 2021, I issued an Order: (1) lifting the stay; (2) directing respondent to respond to the outstanding motion to amend by May 28, 2021; and (3) directing petitioner to submit any reply by June 28, 2021. Dkt. #22. On May 18, 2021, in response to respondent's application, I extended respondent's time to respond to June 25, 2021 and petitioner's time to reply to July 25, 2021. Dkt. #24. On June 9, 2021, respondent filed his opposition to the motion to amend. Dkt. #25. Petitioner did not file a reply. On August 13, 2021, I issued an Order: (1) denying petitioner's motion to amend on the basis of futility; (2) directing respondent to answer the petition (and file the required transcripts and briefs) by October 15, 2021; and (3) directed petitioner to file any reply papers within thirty days after he is served with respondent's Answer. Dkt. #26.
On October 7, 2021, pursuant to respondent's application (Dkt. #27), I extended respondent's time to Answer to November 15, 2021. Dkt. #28. Respondent filed his Answer on November 5, 2021. Dkt. #30-32. On or about February 3, 2022, petitioner requested a ninetyday extension of time to file his reply. Dkt. #33. On February 15, 2022, I granted petitioner's application and extended his time to file a reply to May 16, 2022. Dkt. #34. Petitioner did not file a reply.
III. DISCUSSION
A. Exhaustion
A federal court may not grant habeas relief unless the petitioner has first exhausted his claims in state court. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); see 28 U.S.C. § 2254(b)(1) (“[a]n 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 corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant”); id. § 2254(c) (the petitioner “shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented”). The exhaustion requirement promotes interests in comity and federalism by demanding that state courts have the first opportunity to decide a petitioner's claims. Rose v. Lundy, 455 U.S. 509, 518-19 (1982).
To exhaust a federal claim, the petitioner must have “fairly present[ed] his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim,” and thus “giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotation marks and citations omitted). “Because nonconstitutional claims are not cognizable in federal habeas corpus proceedings, a habeas petition must put state courts on notice that they are to decide federal constitutional claims.” Petrucelli v. Coombe, 735 F.2d 684, 687 (2d Cir. 1984) (citing Smith v. Phillips, 455 U.S. 209, 221 (1982)). Such notice requires that the petitioner “apprise the highest state court of both the factual and legal premises of the federal claims ultimately asserted in the habeas petition.” Galdamez v. Keane, 394 F.3d 68, 73 (2d Cir. 2005) (internal citation omitted). In doing so, a petitioner need not cite chapter and verse of the Constitution; there are a number of other ways in which a petitioner may fairly apprise the state court of the constitutional nature of his claim, including: “a) reliance on pertinent federal cases employing constitutional analysis, b) reliance on state cases employing constitutional analysis in like fact situations, c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.” Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011). A habeas petitioner who fails to meet a state's requirements to exhaust a claim will be barred from asserting that claim in federal court. Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
However, “[f]or exhaustion purposes, a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred.” Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (internal quotation omitted). “In such a case, a petitioner no longer has ‘remedies available in the courts of the State' within the meaning of 28 U.S.C. § 2254(b).” Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991). Such a procedurally barred claim may be deemed exhausted by a federal habeas court. See, e.g., Reyes, 118 F.3d at 139. However, absent a showing of either “cause for the procedural default and prejudice attributable thereto,” Harris v. Reed, 489 U.S. 255, 262 (1989), or “actual innocence,” Schlup v. Delo, 513 U.S. 298 (1995), the petitioner's claim will remain unreviewable by a federal court.
1. The petition contains exhausted and unexhausted claims
Petitioner seeks habeas relief based upon three claims: (1) the trial court erred in granting the prosecution's motion to take a buccal swab of petitioner because the DNA acquired from petitioner's drinking cup was illegally obtained; (2) the trial court erred in granting his codefendant's peremptory challenge to prospective juror Buitron, whom petitioner wished to be seated; and (3) the trial court failed to give petitioner meaningful notice of a jury note. Dkt. #1, at 6-9. Petitioner acknowledges that he did not raise any of these issues on direct appeal, but asserts that the claims are exhausted and ripe for habeas review because he raised these issues in his writs of error coram nobis. Id. at 6-10. However, “[c]ourts in this circuit routinely hold that raising an ineffective-assistance-of-appellate-counsel claim in a coram nobis motion does not exhaust the underlying claims that appellant counsel failed to raise.” Allen v. Artus, No. 17 Civ. 6074, 2020 WL 6785498, at *12 (W.D.N.Y. Nov. 18, 2020). See also Brooks v. Sticht, No. 20 Civ. 1108, 2022 WL 1190456, at *6 (W.D.N.Y. Apr. 21, 2022) (“[I]t is well settled that the only claim that appropriately may be exhausted in a coram nobis proceeding is one of ineffective assistance of appellate counsel.”).
Copies of all unpublished cases available only in electronic form cited herein have been mailed to petitioner. See Lebron v. Sanders, 557 F.3d 76, 78 (2d Cir. 2009).
Nonetheless, the exhaustion requirement has been satisfied regarding petitioner's second and third habeas claims because there are no state court remedies available to exhaust those claims. Petitioner's second and third claims are record-based and, thus, could have been brought on direct appeal but were not. Petitioner cannot again seek leave to appeal those claims in the Court of Appeals because he has already made the one request for leave to appeal to which he is entitled. See N.Y. Ct. Rules § 500.20(a)(2); Colon v. Connell, 07 Civ. 7169, 2009 WL 2002036, at *6 n.4 (S.D.N.Y. July 9, 2009) (explaining New York's requirement limiting an appellant to one leave application to the Court of Appeals). See Grant v. Gonyea, No. 19 Civ. 0743, 2021 WL 8087868, at *16 (S.D.N.Y. Oct. 21, 2021) (“[H]aving already used his one opportunity for direct appeal, Petitioner cannot appeal the claim now.”), report and recommendation adopted, 2022 WL 1173341 (S.D.N.Y. Apr. 20, 2022). Moreover, petitioner is now foreclosed from raising his second and third claims collaterally in a Section 440.10 motion. See N.Y. Crim. Pro. § 440.10(2)(c) (barring collateral review of claims that could have been raised on direct appeal). Petitioner also cannot seek state review of his second and third claims pursuant to either a writ of error coram nobis or a state writ of habeas corpus. See Santiago v. Uhler, No. 18 Civ. 2849, 2022 WL 18096765, at *13 (S.D.N.Y. Dec. 7, 2022) (coram nobis relief only available for claims of ineffective assistance of appellate counsel; state writ of habeas corpus unavailable where claim could have been raised on direct appeal), report and recommendation adopted, 2023 WL 22625 (S.D.N.Y. Jan. 2, 2023). Accordingly, because petitioner has no procedural mechanism in state court for raising his second and third claims, those claims are deemed exhausted.
On the other hand, there are state court remedies available to exhaust petitioner's first habeas claim. In his first claim, petitioner alleges that the DNA sample taken from his drinking cup was “unlawfully taken” after he had been detained for ten hours pursuant to “an attritious [sic] tactic by the police to dehydrate the Petitioner, to secure his need for water.” Dkt. #1, at 6. Resolution of this claim turns on matters outside the record; therefore, “a collateral motion under C.P.L. § 440.10 is the general avenue for pursuing such a claim.” Alston v. Donnelly, 461 F.Supp.2d 112, 123 (W.D.N.Y. 2006). Because petitioner never raised this claim in a CPL 440.10 motion, “and because there is no time limit for filing such a motion,” that state court remedy is still available to petitioner. Dixson v. Lamanna, No. 18 Civ. 8285, 2022 WL 19180, at *26 (S.D.N.Y. Jan. 3, 2022) (quotation marks and citation omitted). Accordingly, the instant petition must be classified as a “mixed petition” containing both exhausted and unexhausted claims.
2. Procedural options available for mixed petitions
“Courts in this Circuit have identified four procedural options available when confronted with a mixed petitioner: (1) dismiss the petition in its entirety without prejudice; (2) deny the entire petition on the merits pursuant to 28 U.S.C. § 2254(b)(2); (3) allow the petitioner to delete the unexhausted claims and proceed with his exhausted claims; or (4) in limited circumstances, stay the petition to allow petitioner to exhaust his unexhausted claims.” Bethany v. Noeth, 20 Civ. 6761, 2022 WL 17812574, at *5 (W.D.N.Y. Dec. 19, 2022) (quotation marks and citations omitted).
Dismissal without prejudice (to allow petitioner to return to state court to exhaust the unexhausted claim) “is only appropriate when doing so would not impair the petitioner's ability to return to federal court.” Id. If this petition were dismissed in its entirety, petitioner would be unable to re-file a federal habeas petition because the one-year statute of limitations has expired.
Petitioner acknowledges his conviction became final on November 14, 2017, when his time for filing a petition for a writ of certiorari in the United States Supreme Court expired. Dkt. #8, at 1. The limitations period ran for 350 days until October 30, 2018, when petitioner filed his first writ of error coram nobis. Petitioner filed a second writ of error coram nobis while his first writ was still pending. Therefore, the limitations period remained tolled until February 15, 2020 when the appellate division denied leave to appeal regarding the second writ of error coram nobis.
Petitioner timely filed the instant petition on May 15, 2019, but filing a federal habeas petition does not toll the limitations period. See Bethany, 2022 WL 17812574, at *5 n.4. Thus, the limitations period began to run again on February 15, 2020 - and expired fifteen days later. The Court is not aware of any other state proceedings which would have otherwise tolled it.Accordingly, dismissal of the entire petition without prejudice is not appropriate.
On February 3, 2021, almost a year after the statute of limitations expired, petitioner notified the Court of a pending N.Y. C.P.L § 440.20 petition. Dkt. #19. Chambers staff contacted the Westchester County Clerk's Office for information about the filing date of that motion; via email on April 24, 2023, the County Clerk verified that the 440.20 motion had been filed on July 17, 2020.
Pursuant to the second option, the Court has discretion to deny the entire petition on the merits, notwithstanding petitioner's failure to exhaust all claims. However, because petitioner's first habeas claim involves matters outside the record, resolution of this claim on the merits would require a hearing - which would further delay resolution of the instant petition. In any event, “the only outcome with this option is denial of the entire petition.” Bethany, 2022 WL 17812574, at *6. Accordingly, the second option serves only to delay an inevitable denial of substantive relief to petitioner.
The fourth option - to grant a stay and hold the petition in abeyance - is also inappropriate here. A court may stay a “mixed” petition “only in limited circumstances,” that is, “if the petitioner had good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics.” Rhines v. Weber, 544 U.S. 269, 277-78 (2005). “Courts in this Circuit have determined that good cause requires a showing of either (1) some factor external to the petitioner that gave rise to the default or (2) reasonable confusion, which is more forgiving and incorporates the petitioner's subjective reasons for the delay in seeking state relief.” Morrow v. Capra, No. 18 Civ. 5765, 2022 WL 970728, at *11 (E.D.N.Y. Mar. 31, 2022) (quotation marks and citation omitted). “A lack of knowledge of legal procedures, in itself, is insufficient to find ‘good cause.'” Id. (quotation marks and citations omitted). Here, in the first place, petitioner has not requested a stay to exhaust his first habeas claim. More notably, by letter dated March 3, 2015 (prior to direct appeal), petitioner's counsel informed him that “[t]he issue as to how the police obtained your DNA sample is an issue perhaps for a 440 motion, but not for appeal.” Dkt. #31-6. Thus, petitioner was clearly on notice that his DNA claim might be unexhausted and offers no explanation as to why he did not raise this claim via a 440.10 motion. Accordingly, petitioner has not demonstrated good cause for a stay.
The third option allows petitioner to delete the unexhausted claim and proceed with this exhausted claims. Under circumstances similar to this case, where a petitioner is ineligible for a stay and dismissal of the entire petition would unreasonably impair petitioner's right to obtain federal relief, “courts assume that the petitioner would prefer the Court to consider the majority of his claims, rather than dismiss the entire Petition outright and risk being barred from raising any of those claims again in federal court.” Morrow, 2022 WL 970728, at *12 n.18 (quotation marks and citations omitted). Accordingly, I respectfully recommend proceeding on the assumption that petitioner would prefer to delete the unexhausted claim, viewing the instant petition as if petitioner had deleted his first claim for habeas relief and assessing petitioner's two remaining claims for habeas relief.
B. Petitioner's Second Claim is Procedurally Barred
As his second ground for habeas relief, petitioner contend that the trial court erred in granting his co-defendant's peremptory challenge to prospective juror Buitron, whom petitioner wished to be seated. As discussed above, this claim is unexhausted but, because petitioner has no procedural mechanism in state court for raising this claim, the claim is deemed exhausted and procedurally defaulted. Thus, absent a showing of either “cause for the procedural default and prejudice attributable thereto,” Harris v. Reed, 489 U.S. 255, 262 (1989), or “actual innocence,” Schlup v. Delo, 513 U.S. 298 (1995), petitioner's second claim for habeas relief is unreviewable.
Petitioner has not alleged that he is actually innocent or that the court's failure to consider his second claim would result in a fundamental miscarriage of justice. Rather, petitioner asserts that his failure to exhaust was due to his appellate counsel's failure to raise the claim on direct appeal. Therefore, in order to establish cause for his procedural default, petitioner must demonstrate that his appellate counsel's performance amounted to ineffective assistance of counsel in violation of the Sixth Amendment. See Aparicio v. Artuz, 269 F.3d 78, 91 (2d Cir. 2001) (“A defense counsel's ineffectiveness in failing to properly preserve a claim for review in state court can suffice to establish cause for a procedural default only when the counsel's ineptitude rises to the level of a violation of a defendant's Sixth Amendment right to counsel.”).
Courts evaluate claims of ineffective assistance of both trial and appellate counsel pursuant to the clearly established standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). See Smith v. Robbins, 528 U.S. 259, 285 (2000). “Accordingly, a petitioner alleging ineffective assistance of appellate counsel must prove both that (1) appellate counsel acted unreasonably in failing to raise a particular issue on appeal, and (2) absent counsel's deficient performance, there was a reasonable probability that defendant's appeal would have been successful before the state's highest court.” Jackson v. Eckert, No. 19 Civ. 4444, 2023 WL 2477633, at *11 (E.D.N.Y. Mar. 13, 2023) (quotation marks and citation omitted). Further,
[i]n attempting to demonstrate that appellate counsel's failure to raise a state claim constitutes deficient performance, it is not sufficient for the habeas petitioner to show merely that counsel omitted a nonfrivolous argument, for counsel does not have a duty to advance every nonfrivolous argument that could be made . . . However, a petitioner may establish constitutionally inadequate performance if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker.Altheiser v. Tedford, No. 21 Civ. 1083, 2023 WL 2306136, at *12 (N.D.N.Y. Mar. 1, 2023) (quoting Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994)). “A reviewing court should not second guess the reasonable professional judgments of appellate counsel as to the most promising appeal issues, and thus ‘may not use hindsight to second-guess [counsel's] strategy choices.'” Wade v. Melecio, No. 21 Civ. 9138, 2023 WL 2152489, at *19 (S.D.N.Y. Feb. 22, 2023) (quoting Jones v. Barnes, 463 U.S. 745, 753 (1983)), report and recommendation adopted, 2023 WL 2500676 (S.D.N.Y. Mar. 14, 2023).
Here, petitioner's peremptory challenge issue was not “clearly and significantly” stronger than the issues raised by appellate counsel on direct appeal. Consequently, petitioner fails to demonstrate that appellate counsel's performance was deficient and, therefore, also fails to establish cause for his procedural default. Accordingly, I respectfully recommend that petitioner's second claim for habeas relief is procedurally barred from consideration by this Court and must be dismissed.
C. Petitioner's Third Claim is Not Cognizable
As his third claim for habeas relief, petitioner contends that the trial court violated New York C.P.L. § 310.30 by failing to provide “meaningful notice” to defense counsel about the specific contents of certain juror notes. Dkt. #1, 9-10; #31-21, at 24-34. Pursuant to New York Criminal Procedure Law § 310.30, which sets for the procedure by which a trial court must respond to jury notes: “Upon such a request, the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper.” N.Y. Crim. Proc. Law § 310.30 (McKinney). Here, even assuming the trial court violated the requirements of CPL § 310.30, “violations or errors of state law or procedure generally do not constitute grounds for habeas review, and a claim premised on a violation of New York Criminal Procedure Law Section 310.30 does not allege a violation of a federally protected right.” Jackson, 2023 WL 2477633, at *10 (quotation marks and citations omitted). Accordingly, I respectfully recommend that petitioner's third habeas claim is non-cognizable on habeas review and must be dismissed.
IV. CONCLUSION
For the reasons set forth above, I conclude - and respectfully recommend that Your Honor should conclude - that the instant petition for a writ of habeas corpus should be dismissed in its entirety. Further, because reasonable jurists would not find it debatable that petitioner has failed to demonstrate by a substantial showing that he was denied a constitutional right, I recommend that no certificate of appealability be issued. See 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1)(c), Rule 72(b) of the Federal Rules of Civil Procedure and Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts, the parties shall have fourteen (14) days from service of this Report and Recommendation to serve and file written objections. If copies of this Report and Recommendation are served upon the parties by mail, the parties shall have an additional three (3) days, or a total of seventeen (17) days, from service of this Report and Recommendation to serve and file written objections. Fed.R.Civ.P. 6(d). See also Fed.R.Civ.P. 6(a). Such objections, if any, along with any responses to the objections, shall be filed with the Clerk of the Court with extra copies delivered to the chambers of the Hon. Vincent L. Briccetti, at the Hon. Charles L. Brieant, Jr. Federal Building and United States Courthouse, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered. See Caidor v. Onondaga County, 517 F.3d 601, 604 (2d Cir. 2008).
Requests for extensions of time to file objections must be made to Judge Briccetti.