Opinion
21 Civ. 7339 (ER) (GWG)
09-14-2022
IVAN PEREZ, Petitioner, v. DONITA McINTOSH, Superintendent, Clinton Correctional Facility, Respondent.
REPORT & RECOMMENDATION
GABRIEL W. GORENSTEIN, United States Magistrate Judge.
Ivan Perez, currently incarcerated at Clinton Correctional Facility in Dannemora, New York, brings this pro se action for habeas corpus relief under 28 U.S.C. § 2254. For the following reasons, Perez's petition should be denied.
See Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus, dated Aug. 23, 2021 (Docket # 2); Memorandum of Law in Support, dated Aug. 23, 2021 (Docket # 3) (“Pet. Mem.”); Affidavit in Support of Habeas Corpus Petition, dated Aug. 23, 2021 (Docket # 4); Declaration in Opposition, filed Nov. 8, 2021 (Docket # 12) (“Watson Decl.”); Memorandum of Law in Opposition, annexed as Exhibit 1 to Watson Decl. (Docket # 12-1); Petitioner's Reply Brief, dated Jan. 22, 2022 (Docket # 16).
I. BACKGROUND
A. Facts Adduced at Trial
At around 3:15 a.m. on May 30, 2015, Lassama Nimaga was picking up food at Kennedy Fried Chicken on Mount Eden Avenue in the Bronx. See Tr. 93-94, 209-10. Perez, along with an individual named Luis Feliciano, entered the Kennedy Fried Chicken. Tr. 209-10. Perez got into an argument with Nimaga. See Tr. 210-12, 223-26. Feliciano initially pulled Perez away, but Perez walked back towards Nimaga and punched him in the face. See id. Perez left the store, guided by Feliciano. See Tr. 213, 226. Nimaga left soon thereafter. See Tr. 95.
“Tr. ” refers to pages of the State Court Transcript, filed Nov. 8, 2021 (Docket # 13).
At about the same time, Marlon Sims and Lateek Purvis were drinking outside Purvis' nearby apartment with friends. See Tr. 150-53, 161, 287-88. After leaving Kennedy Fried Chicken, Perez, and Feliciano approached the group. See Tr. 153-54, 213-14, 288. Feliciano told the group that Perez had been “acting crazy in the chicken store and hit somebody.” Tr. 288-89. Within minutes, Nimaga approached. Tr. 155.
Feliciano identified Nimaga as the person Perez had punched at Kennedy Fried Chicken. See id. Nimaga walked up to Perez, pulled out a baseball bat, and hit Perez twice over the head with the bat. Tr. 155-56. Sims wrested the bat from Nimaga and tossed it away. See Tr. 156-58. Sims, Purvis, and Feliciano all hit Nimaga. See Tr. 156-57, 217, 292-93. As the fight continued, Perez forced Nimaga to the ground. See Tr. 293-94. Sims and Purvis testified that Perez stomped on Nimaga, grabbed Nimaga by the shoulders and neck, choked him, and repeatedly slammed his head into the concrete ground. See Tr. 160, 294. Samantha Perez, who was in an apartment overlooking the scene of the incident, overheard someone yelling “that's what you get for hitting me with a bat.” Tr. 62-63. Sims testified that Perez screamed “you tried to kill me with a bat,” “[y]ou tried to hit me with a bat . . .” Tr. 160. Purvis testified that Perez repeatedly demanded the bat. Tr. 294. This testimony was corroborated by a video showing part of the incident, in which Perez can be heard shouting: “Give me the bat. Give me the fucking bat.” Tr. 236. Purvis eventually guided Perez away, telling him that the fight was over. Tr. 296. Purvis and Sims headed off to Purvis's apartment building. Tr. 161, 297. Feliciano walked away and left in a cab. Tr. 217. According to Sims, Perez then returned to the scene of the fight, where Nimaga lay unconscious. See Tr. 171-72.
Nimaga was badly beaten. His face and head were swollen, cut, and bloody. Tr. 54-56. His mouth was full of blood. Tr. 54. Paramedic Deanna Hansen testified that when she arrived, Nimaga was choking on his own blood. Id. NYPD Officer Zachary Quadland, who also responded to the scene, testified that Nimaga “was in probably the worst shape of anybody that [he had] seen since [he had] been a police officer.” Tr. 22. According to Officer Quadland, Nimaga's face “looked like it was almost completely split open, so there was blood everywhere.” Tr. 25. Nimaga “had more teeth on the street than he had in his face, and the teeth that he did have in his face weren't where they were supposed to be.” Id. Nimaga never regained consciousness. See Tr. 129-30, 270, 279-80. On June 3, 2015, Nimaga died from his injuries. See Tr. 130, 279.
Following Nimaga's death, Dr. Lindsey Simon performed an autopsy. Tr. 263. Autopsy photos of Nimaga's injuries were admitted into evidence as Exhibits 19A-D. See Tr. 273. Exhibit 19A showed multiple fractures on Nimaga's thyroid cartilage, indicating that Nimaga had either been strangled or struck on both sides of his neck. Tr. 276-77; Autopsy Photos, annexed as Exhibit 8 to Watson Decl. (Docket # 12-8) (“Autopsy Photos”) at *1.Exhibit 19B showed extensive internal injuries to Nimaga's brain, including swelling and bleeding, both in the subdural space and on the surface of the brain. Tr. 275-76; Autopsy Photos at *2. These injuries were “caused by impact to the head and brain and the brain moving within the cranial vault and causing shearing of blood vessels.” Tr. 276. Exhibit 19C showed scrapes on Nimaga's right elbow. Tr. 275; Autopsy Photos at *3. Exhibit 19D showed scrapes, bruises, and swelling on Nimaga's face, as well as a split lip. Tr. 274-75; Autopsy Photos at *4.
“*” refers to pagination assigned by the ECF system, which we employ when a document lacks its own pagination.
B. Procedural History
On August 10, 2015, a Bronx County grand jury returned a three-count indictment against Perez. Indictment, annexed as Exhibit 2 to Watson Decl. (Docket # 12-2) (“Indictment”) at *1. The indictment charged Perez with first-degree manslaughter, first-degree gang assault, and second-degree gang assault. Id. at *2. All three counts alleged that Perez committed the offenses while “acting in concert with others.” Id. Perez was convicted by a jury of first-degree manslaughter and first-degree gang assault. Tr. 401. Perez was sentenced to 20 years imprisonment, followed by 5 years of supervised release. Tr. *419. The Appellate Division, First Department, upheld Perez's conviction and sentence in a decision dated April 9, 2020. See People v. Perez, 123 N.Y.S.3d 90 (1st Dep't 2020). On April 14, 2020, Perez filed an application for leave to appeal with the New York Court of Appeals. Leave App. On June 26, 2020, the Court of Appeals denied Perez's application. People v. Perez, 35 N.Y.3d 1029 (2020). II. LEGAL STANDARD
A. Legal Standards for Petitions Brought Under 28 U.S.C. § 2254
A petition for a writ of habeas corpus may not be granted with respect to any claim that has been “adjudicated on the merits” in state court unless the state court's adjudication:
(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).
For a claim to be “adjudicated on the merits” within the meaning of § 2254(d), it must “finally resolv[e] the parties' claims, with res judicata effect,” and it must be “based on the substance of the claim advanced, rather than on a procedural, or other, ground.” Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001). As long as “there is nothing in its decision to indicate that the claims were decided on anything but substantive grounds,” a claim will be considered “adjudicated on the merits” even if the state court fails to mention the federal claim and cites no relevant federal case law. Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001); accord Harrington v. Richter, 562 U.S. 86, 99 (2011) (“When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.”); see also Id. at 98 (section 2254(d) deference applies even “[w]here a state court's decision is unaccompanied by an explanation”). Moreover, a state court's “determination of a factual issue” is “presumed to be correct,” and that presumption may be rebutted only “by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
A state court decision is “contrary to” clearly established federal law only “if the state court applies a rule that contradicts the governing law set forth” in Supreme Court precedent or “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives” at a different result. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Habeas relief is available under the “unreasonable application” clause only “if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. at 413. A federal court may not grant relief “simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. at 411. Rather, the state court's application must have been unreasonable - a standard that is met only “where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with” Supreme Court precedent. Harrington, 562 U.S. at 102; see also id. (“[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable.”). In other words, to demonstrate an “unreasonable” application of Supreme Court law, the habeas petitioner “must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103; see also Woods v. Donald, 135 S.Ct. 1372, 1378 (2015) (per curiam) (habeas relief available only where there is an “extreme malfunction” by the state court in applying Supreme Court precedent) (citation and internal quotation marks omitted).
The “determination of whether a court has unreasonably applied a legal standard depends in large measure on the specificity of the standard in question.” Brisco v. Ercole, 565 F.3d 80, 89 (2d Cir. 2009). “The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations” inasmuch as the application of a general standard to a specific case “can demand a substantial element of judgment.” Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). Thus, “where the precise contours of a right remain unclear, state courts enjoy broad discretion in their adjudication of a prisoner's claims.” Woods, 135 S.Ct. at 1377 (citation, brackets, and internal quotation marks omitted); accord Brisco, 565 F.3d at 90 (a court applying a “fact-dependent standard . . . to the facts of a specific case is . . . entitled to significant ‘leeway' when [a habeas court] review[s] its decision for reasonableness”) (quoting Yarborough, 541 U.S. at 664).
Only holdings of the Supreme Court are considered for purposes of determining clearly established federal law. Rodriguez v. Miller, 537 F.3d 102, 106 (2d Cir. 2008). Thus, “[n]o principle of constitutional law grounded solely in the holdings of the various courts of appeals or even in the dicta of the Supreme Court can provide the basis for habeas relief.” Id. at 106-07.
Where there is “[n]o holding” from the Supreme Court on the question presented, Carey v. Musladin, 549 U.S. 70, 77 (2006), or where Supreme Court cases “give no clear answer” to the question presented in the petition, Wright v. Van Patten, 552 U.S. 120, 126 (2008) (per curiam), a state court's decision can be neither contrary to nor an unreasonable application of clearly established federal law, see Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (“[I]t is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by [the Supreme] Court.”) (citations and internal quotation marks omitted).
III. DISCUSSION
Defendants assert that petitioner's claims are unexhausted or otherwise procedurally barred. We do not reach these issues as the claims would fail on the merits anyway. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”); Greiner v. Wells, 417 F.3d 305, 317 n.14 (2d Cir. 2005) (“By reaching the merits of the ineffective assistance claim, we need not determine whether the claim is procedurally barred.” (citation omitted)).
A. Autopsy Photos
Perez argues that the introduction of the four autopsy photos violated his constitutional due process rights. See Pet. Mem. at 7-11.
During trial, Perez's attorney objected to the introduction of the four autopsy photos. See Tr. 272-73. Perez's attorney argued that the photos were “inflammatory,” “gory,” and “serve[d] no purpose.” Tr. 273. The trial judge overruled the objection, disagreeing with Perez's counsel's characterization of the photos and reasoning that the pictures were “probative of the issues in the case and will be h[elp]ful . . . to the medical examiner in explaining her function and what injuries, if any, she discovered.” Id.
On direct appeal, Perez asserted that admission of the autopsy photographs was improper and violated Perez's rights under the Fifth, Sixth, and Fourteenth Amendments. See Brief for Defendant-Appellant in the New York Supreme Court, Appellate Division, First Department, annexed as Exhibit 3 to Watson Decl. (Docket # 12-3) (“Def. App. Div. Br.”) at 35-37. The First Department rejected Perez's constitutional arguments on procedural grounds, holding that Perez “failed to preserve his due process challenge to the admission of the photos.” Perez, 123 N.Y.S.3d at 91 (citing People v. Lane, 7 N.Y.3d 888, 889 (2006); People v. Kello, 96 N.Y.2d 740, 743 (2001)). It held in the alternative that the argument failed because Perez was “essentially raising state-law issues that are not of constitutional dimension.” Id. (quoting People v. Jackson, 20 N.Y.S.3d 352, 354 (1st Dep't 2015)).
To show on habeas review that a state court's evidentiary ruling violated due process, a court must first determine that the evidentiary ruling was erroneous under state law, see Rosario v. Kuhlman, 839 F.2d 918, 925 (2d Cir. 1988), because “the proper application of a presumptively constitutional state evidentiary rule could not be unconstitutional,” DeJesus v. Superintendent of Attica Corr. Facility, 2017 WL 6398338, at *27 (S.D.N.Y. Dec. 13, 2017); see also Zarvela v. Artuz, 364 F.3d 415, 418 (2d Cir. 2004) (first assessing whether state court erred in excluding testimony under New York law). If the ruling was erroneous, then a petitioner must show that the error violated due process. See Rosario, 839 F.2d at 925. A state trial court's evidentiary determinations do not implicate federal constitutional questions unless an adverse ruling so infected the trial as to “deprive[] [the defendant] of a fundamentally fair trial.” Zarvela, 364 F.3d at 418 (emphasis omitted); see also Dowling v. United States, 493 U.S. 342, 352 (1990); Vega v. Walsh, 669 F.3d 123, 126 (2d Cir. 2012). “[T]he Supreme Court has ‘defined . . . very narrowly'” the guarantee of “fundamental fairness.” Evans v. Fischer, 712 F.3d 125, 133 (2d Cir. 2013) (alteration in original) (quoting Dowling, 493 U.S. at 352).
Of course, under 28 U.S.C. § 2254(d) a federal court may only grant habeas relief if it finds that the state court decision was “objectively unreasonable.” Jones v. Stinson, 229 F.3d 112, 119-21 (2d Cir. 2000).
As to whether the admission of the photographs was permissible under state law, “New York law generally allows admission of demonstrative evidence, such as photographs of deceased victims, so long as it tends ‘to prove or disprove a disputed or material issue, to illustrate or elucidate other relevant evidence, or to corroborate or disprove other evidence offered or to be offered,' such as testimony of a medical examiner.” Gonzalez-Martinez v. Kirkpatrick, 2017 WL 3891649, at *8 (E.D.N.Y. Sept. 6, 2017) (quoting People v. Pobliner, 32 N.Y.2d 356, 369 (1973)). “When relevance is demonstrated, the question as to whether on balance the jury should be permitted to view such photographs is addressed to the sound discretion of the trial court.” People v. Stevens, 76 N.Y.2d 833, 835 (1990). “The fact that a photograph may be gruesome does not preclude its admission where it is not offered for the sole purpose of arousing the emotions of the jury or to prejudice defendant.” People v. Dickerson, 837 N.Y.S.2d 101, 108 (1st Dep't 2007). Furthermore, “[t]he fact that other evidence may be available on the point is a factor but is not dispositive.” Stevens, 76 N.Y.2d at 835; see also People v. Reyes, 855 N.Y.S.2d 160, 162 (2d Dep't 2008) (“The mere fact that there was other available evidence with regard to these matters did not require the exclusion of the photographs.”). Accordingly, “[p]hotographic evidence should be excluded only if its sole purpose is to arouse the emotions of the jury and to prejudice the defendant.” Pobliner, 32 N.Y.2d at 370.
Here, there was nothing improper under state law about the admission of the autopsy photos. The photos were admissible to illustrate and corroborate the medical examiner's testimony, to show the extent of Nimaga's injuries, and to prove Perez's intent to inflict “serious physical injury” - an essential element of the charged offenses. As to the fundamental fairness of the admission, “[w]here the prejudicial evidence is ‘probative of [an] essential element' in the case, its admission does not violate the defendant's right to due process.” Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (second alteration in original) (quoting Estelle v. McGuire, 502 U.S. 62, 69 (1991)); accord Almonte v. Lee, 2015 WL 3917451, at *17 (S.D.N.Y. 2015).
Moreover, Perez “has cited no Supreme Court case, and the Court has found none, holding that the admission of photographic evidence may render a trial fundamentally unfair.” Fernandez v. Ercole, 2017 WL 2364371, at *5 (S.D.N.Y. May 31, 2017). Indeed, “the Supreme Court has never held that the admission of indisputably relevant evidence amounts to a denial of due process.” Middleton v. Roper, 498 F.3d 812, 820-21 (8th Cir. 2007). Thus, courts have routinely found no constitutional violation in the admission of autopsy photographs on habeas review. See, e.g., Francis v. Capra, 2019 WL 12026839, at *12 (S.D.N.Y. Aug. 6, 2019), adopted, 2021 WL 1298481 (S.D.N.Y. Apr. 7, 2021); Gonzalez-Martinez, 2017 WL 3891649, at *8-9; Dickerson v. Conway, 2013 WL 541508, at *20 (S.D.N.Y. Feb. 14, 2013), adopted, 2013 WL 3199094 (S.D.N.Y. June 25, 2013); Jones v. Conway, 2011 WL 1356751, at *4 (W.D.N.Y. Apr. 4, 2011); Flores v. Fischer, 2006 WL 385317, at *4 (E.D.N.Y. Feb. 17, 2006).
Because the Court “cannot conclude that there is no possibility fairminded jurists could disagree that the state court's decision conflicts with the Supreme Court's precedents,” Fernandez, 2017 WL 2364371, at *5 (punctuation omitted), habeas relief is unavailable on this claim.
B. Sufficiency Objections
Perez's second claim centers on his argument that the First Department improperly held that he could be convicted as an accessory even though this theory of liability was not put forward by the prosecution during its summation at trial. See Pet. Mem. at 11-21. Instead, the prosecution contended that Perez “inflicted the fatal injury” on the victim himself. Id. at 17.
In his direct appeal, Perez argued that evidence failed to show that Perez was “solely responsible for Mr. Nimaga's fatal injuries.” Def. App. Div. Br. at 49; accord Id. at 40 (prosecution failed to prove that Perez “alone” caused Nimaga's death). In response, the People made a number of arguments, but also noted that it would be enough to prove that Perez was “acting in concert” with others given that he was charged as an accessory and that it did not have to approve that he alone caused the victim's death. See Respondent's Brief in the New York Supreme Court, Appellate Division, First Department, annexed as Exhibit 4 to Watson Decl. (Docket # 12-4) at 25.
In his reply brief before the First Department, Perez argued at length that the prosecution, in opposing Perez's sufficiency-of-the-evidence claim, improperly altered its theory of the case from one in which Perez was the primary attacker to one in which Perez was liable as an accomplice. See Def. App. Div. Reply at 2-11. The First Department viewed this argument as a legal sufficiency argument and held that Perez's legal sufficiency argument was “not preserve[d].” Perez, 123 N.Y.S.3d at 90. The court went on to reject Perez's contention on the merits, explaining that the theory of accessorial liability makes “no legal distinction between liability as a principal or criminal culpability as an accomplice,” that the theory “was presented to the jury in the indictment and the court's charge,” and thus that “the People were not required to prove that defendant personally inflicted the injuries that caused the victim's death.” Id. at 90 (citation omitted).
In his brief, the petitioner is unclear as to what clearly established Supreme Court law he claims this ruling violated. The principal case law he cites relates to “evidentiary presumptions in a jury charge,” Pet. Mem. at 20; see also Id. at 21 (citing Francis v. Franklin, 471 U.S. 307 (1985)), but he does not challenge any of the jury instructions and does not identify what “evidentiary presumption” is at issue. We thus cannot find that habeas is relief is warranted based on an improper application of Supreme Court law on evidentiary presumptions.
Petitioner also cites to In re Winship, 397 U.S. 358, 364 (1970), a case that requires the prosecution to prove each element of a crime with sufficient evidence, and Berger v. United States, 295 U.S. 78, 82 (1935), which reaffirmed the rule that “that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial.” See Pet. Mem. at 20.
Perez reproduces a quotation from the Berger case that relates to an improper summation. Id. at 88. That summation involved a prosecutor who had also engaged in “misstating the facts” “bullying,” “arguing with witnesses,” and “conducting himself in a thoroughly indecorous and improper manner.” Id. at 84. Because no such conduct is alleged here, we will liberally construe petitioner's argument as instead invoking the portion of Berger relating to notice of the charges as this issue is far more pertinent to petitioner's claim.
In light of these citations, and in light of petitioner's pro se status, we view this portion of Perez's claim as arising under the Fourteenth Amendment's requirement that a state criminal defendant be afforded “fair notice of the charges against him,” LanFranco v. Murray, 313 F.3d 112, 119 (2d Cir. 2002), as expressed in Berger. See also U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation”); In re Oliver, 333 U.S. 257, 273 (1948) (applying notice requirement to state proceeding via Fourteenth Amendment).
“A person's right to reasonable notice of a charge against him, and an opportunity to be heard in his defense - a right to his day in court - are basic in our system of jurisprudence.” Oliver, 333 U.S. at 273. Indeed, “[s]uch notice is essential to a defendant's ability to ‘present his defense without being taken by surprise by evidence offered at trial.'” Washington v. Walsh, 2015 WL 4154103, at *29 (S.D.N.Y. July 9, 2015) (quoting Armatullo v. Taylor, 2005 WL 2386093, at *18 (S.D.N.Y. Sept. 28, 2005)). That said, “the Second Circuit's jurisprudence allows prosecutors ‘significant flexibility' in how they present their case at trial, ‘provided that the defendant was given notice of the core of criminality to be proven.'” Id. (quoting United States v. Kelly, 368 Fed.Appx. 194, 197 (2d Cir. 2010) (summary order)) (emphasis in original).
Relatedly, it does not violate the Constitution for a jury to convict a defendant under one of two theories of liability. United States v. Masotto, 73 F.3d 1233, 1241 (2d Cir. 1996) (citing Griffin v. United States, 502 U.S. 46 (1991)) (“When the jury is properly instructed on two alternative theories of liability . . ., we must affirm when the evidence is sufficient under either of the theories.”).
We are also mindful that Perez appears to be presenting a “sufficiency” challenge, which is commonly traced in the modern era to Jackson v. Virginia, 443 U.S. 307 (1979). Jackson held that in reviewing a legal sufficiency claim, a court must evaluate the trial evidence “in the light most favorable to the prosecution” and uphold the conviction so long as “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 319 (emphasis in original). Legal sufficiency “claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference.” Coleman v. Johnson, 566 U.S. 650, 651 (2012).
First, on direct appeal, “it is the responsibility of the jury - not the court - to decide what conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury.”Id. (quoting Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam)).
“[S]econd, on habeas review, a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was ‘objectively unreasonable.'” Id. (quoting Cavazos, 565 U.S. at 2) (punctuation omitted). Thus, a petition will be denied if it is “possible” that a “fairminded jurist” could agree with the state court's decision. Richter, 562 U.S. at 102.
“[F]ederal courts must look to state law for ‘the substantive elements of the criminal offense'” when evaluating legal sufficiency claims. Coleman, 566 U.S. at 655 (quoting Jackson, 443 U.S. at 324 n.16). However, “the minimum amount of evidence that the Due Process Clause requires to prove the offense is purely a matter of federal law.” Id. And federal law “leaves juries broad discretion in deciding what inferences to draw from the evidence presented at trial, requiring only that jurors ‘draw reasonable inferences from basic facts to ultimate facts.'” Id. (quoting Jackson, 443 U.S. at 319).
Applying the notice and legal sufficiency principles here, we must uphold the convictions so long as the petitioner was afforded adequate notice of the crime with which he was being charged and the evidence was sufficient as to the elements of the crime. In other words, even if the prosecution's argument at trial was that Perez was the primary attacker, it is constitutionally proper for the jury to have convicted Perez on the basis that he was liable as an accomplice if the indictment informed Perez of the accomplice liability theory, the jury was instructed on accomplice liability, and the evidence was sufficient to support a conviction.
As to notice, the Indictment was clear in its allegation that Perez committed each of the charged the offenses “in concert with others,” see Indictment at *2, thus unmistakably charging accessorial liability. See, e.g., People v. Gordon, 716 N.Y.S.2d 839, 840 (4th Dep't 2000) (trial judge properly instructed jury on both principal and accessorial liability when “indictment alleged that defendant, while acting in concert with others, intentionally caused the death of the victim”); People v. Johnson, 598 N.Y.S.2d 641, 642 (4thDep't 1993) (where indictment charged defendant with committing assault in the second degree while “acting in concert” with others, conviction was proper when “evidence presented at trial established that defendant actively participated in the brutal beating of the victim” despite that accomplices “administered a more serious beating to the victim”). Moreover, the jury was expressly instructed on accomplice liability and that it could find Perez liable if he committed the offenses while “acting in concert with others.” Tr. 372-80.
Accordingly, as long as the evidence was sufficient to justify the jury's findings, Perez's conviction was not contrary to or the result of an unreasonable application of Supreme Court law.
Turning to sufficiency of the evidence, the primary basis for Perez's contention that the evidence against him was insufficient is that the testimony of Perez' purported accomplices - Sims, Purvis, and Feliciano - was not credible. See Pet. Mem. at 13-19. However, “assessments of the weight of the evidence or the credibility of witnesses are for the jury” and thus a habeas court must “defer to the jury's assessments of both of these issues.” Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996); accord DeChirico v. Walker, 558 F.Supp.2d 355, 369 (E.D.N.Y. 2008) (“When evaluating the sufficiency of the evidence, this Court must defer to the jury's assessment of credibility.”); Sanford v. Burge, 334 F.Supp.2d 289, 303-04 (E.D.N.Y. 2004) (“On habeas review, courts are not free to reassess the fact-specific credibility judgments by juries or to weigh conflicting testimony.” (punctuation omitted)). Here, Perez essentially asks us to re-weigh the testimony of witnesses Deanna Hansen and Samantha Perez against that of Sims, Purvis, and Feliciano. Specifically, Perez insists that the testimony from Hansen and Samantha Perez refuted the testimony of Feliciano, Sims, and Purvis, and thus there was insufficient evidence for the jury to convict Perez. See Pet. Mem. at 15-17. Hansen testified that when she arrived at the scene, she saw “about three people” assaulting Nimaga. Tr. 50. She also testified that after the initial assault, all “three people that were initially beating up” Nimaga came back and resumed the assault for “[m]aybe a minute or two.” Tr. 52-53. Samantha Perez saw “five to six” individuals attacking Nimaga, and she was able to recognize Purvis and Feliciano - but not Perez. Tr. 63, 66. Neither witness testified that they saw Perez return to the scene by himself once the other attackers had left, and neither specifically identified Perez as an assailant. In contrast, Sims, Feliciano, and Purvis all testified that Perez participated in the assault, and Sims testified that Perez alone returned to assault Nimaga further. See Tr. 158, 172, 236, 294. Ultimately, the conflicts at issue are somewhat minor, and do not disprove Perez's participation in the assault. The jury was free to choose between the conflicting testimony and to find that Perez acted in concert with Sims, Purvis, and Feliciano.
Contrary to petitioner's argument, see Pet. Mem. at 18, there was also sufficient evidence that Perez had the “intent to cause serious physical injury” to the victim as required by the charges. In addition to the testimony that Perez himself assaulted Nimaga by stomping on him, choking him, and slamming his head into the ground, see Tr. 158, 160, 236, 294, there is evidence that while the attack was ongoing Perez repeatedly demanded the bat, see Tr. 236, 294, and even shouted at Nimaga: “that's what you get for hitting me with a bat,” Tr. 62. Moreover, Perez had the strongest motive to harm Nimaga, considering their earlier fight at the chicken store and that Nimaga had struck Perez with the bat at the beginning of the altercation. See Tr. 155-56, 210-12, 223-26. Viewed in the light most favorable to the prosecution, see Jackson, 443 U.S. at 319, this is more than enough to establish Perez's intent “to cause serious physical injury” to Nimaga.
New York law makes “no legal distinction between liability as a principal or criminal culpability as an accomplice,” and under New York law, “the People were not required to prove that [Perez] personally inflicted the injuries that caused the victim's death.” Perez, 123 N.Y.S.3d at 90. Further, the Supreme Court has expressly rejected the contention that a general verdict must be set aside because the evidence at trial may have been insufficient to support one of two alternate bases for conviction. See Griffin, 502 U.S. at 56. Here, the jury could have permissibly found that Nimaga's death resulted from the beating in which Perez participated “in concert with others,” and thus it could have convicted Perez even without identifying him as the one who struck the fatal blow.
For the above reasons, Perez's sufficiency claim should be denied.
IV. CONCLUSION
Perez's petition for a writ of habeas corpus should be denied.
PROCEDURE FOR FILING 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 have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to Judge Ramos. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).