Opinion
1:17-cv-00314 (LTS) (SDA)
07-23-2019
Maria Rios, Petitioner, v. Sabina Kaplan, Respondent.
REPORT AND RECOMMENDATION
STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE.
TO THE HONORABLE LAURA TAYLOR SWAIN, UNITED STATES DISTRICT JUDGE:
INTRODUCTION
Petitioner Maria Rios (“Rios” or “Petitioner”), currently incarcerated at Bedford Hills Correctional Facility (“Bedford Hills”) in New York State, seeks a writ of habeas corpus as authorized by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254. A New York County jury convicted Rios of Murder in the First Degree (NY Penal Law § 125.27[1][a]). She was sentenced to life imprisonment without parole. Rios now challenges her conviction on the following grounds: (1) the evidence of First-Degree Murder was insufficient; (2) her guilt of First-Degree Murder was not established beyond a reasonable doubt; (3) the verdict was repugnant; and (4) the trial court allowed prejudicial testimony from members of the deceased's family. (Pet., ECF No. 2, at 4-6.)
On March 22, 2017, Respondent Sabina Kaplan, Superintendent of Bedford Hills (“Respondent”), filed her opposition to the Petition. (Resp. Mem., ECF No. 9.) On September 22, 2017, counsel appeared on behalf of Rios. (Not. of Appearance, ECF No. 23-24.) On November 26, 2018, Rios filed a supplemental memorandum of law in support of the habeas petition. (Pet. Supp. Mem., ECF No. 36.) On December 26, 2018, Respondent filed a supplemental memorandum of law in reply. (Resp. Supp. Mem., ECF No. 37.)
For the reasons set forth below, I recommend that the Petition be DENIED in its entirety.
BACKGROUND
I. Introduction
Rios was charged in an indictment filed on March 12, 2007 with one count of first-degree murder, two counts of second-degree murder, one count of first-degree robbery, one count of attempted first-degree robbery and related offenses stemming from the killing of Angelina Grullon (“Grullon”) in Bronx County on February 8, 2007. (Indictment, ECF No. 9-1.) Rios was found guilty after a jury trial of first-degree murder and not guilty of attempted first degree robbery of Daisy Morales (“Morales”). (Verdict Sheet, ECF No. 9-2.)
II. Relevant State Court Proceedings
A. Trial
From January 21, 2011 to February 16, 2011, Rios was tried by jury before the Honorable Judith Lieb, a Justice of the Supreme Court of the State of New York.
1. The State's Case
Zorida Cardona, Grullon's sister, testified that in February 2007, she and Grullon resided in a fourth-floor apartment in a building located at 2585 Grand Concourse in the Bronx with their mother and Grullon's then 14-month-old son Jeremiah. (Tr. 19, 20-24.) While Grullon worked, Cardona would babysit for Jeremiah, plus four other children. (Tr. 24-25.) On February 8, 2007, shortly before 6 p.m. and before Grullon came home from work, Cardona and her mother went grocery shopping and left Jeremiah with Morales, a friend and neighbor. (Tr. 2527.) Morales testified that Grullon arrived home about ten minutes after her sister and mother left for the supermarket. (Tr. 232.) Morales put Jeremiah to bed while Grullon changed her clothes. (Id.) Thereafter, while Morales and Grullon were watching television in the living room, there was a knock on the door, which Grullon answered. (Tr. 233.) Morales overheard Grullon saying to the person at the door, “I don't know. Maybe on the second floor.” (Id.) A woman, who Morales later identified as Rios, entered the apartment and proceeded to the bathroom. (Tr. 237, 245.)
Citations to pages of the trial transcript (which is filed at ECF Nos. 11, 12 and 14) are made using the prefix “Tr.” prior to the page number, e.g., Tr. 1.
A few minutes later, Rios returned from the bathroom and requested water, and she and Grullon went to the kitchen. (Tr. 238.) Morales heard Grullon scream that Grullon's child was in the apartment and not to do anything to her. (Id.) Then, Grullon and Rios re-entered the living room; Rios was holding a black and brown gun, about seven-inches long, in her right hand. (Tr. 238-39, 249-50.) Rios pulled Morales up from the couch by her hair and demanded that Grullon take her to Grullon's room because “she wanted money, she wanted jewelry.” (Tr. 239.) Grullon led Rios and Morales into the bedroom, where Rios screamed “she wanted everything that [Grullon] had.” (Tr. 240.) Rios took a camera and “some hoop[ earrings]” from Grullon's bureau, and Grullon gave Rios all the money from her purse. (Tr. 240, 296.) Grullon stated that she did not have anything else to give Rios, and Morales told Grullon to “give her whatever she wants.” (Tr. 241.)
Rios put the gun to Morales' forehead and told her to “shut up or she was going to kill [her].” (Tr. 242.) At that point, Grullon ran out of the room and Rios chased her. (Id.) Within seconds of them leaving the room, Morales heard a gunshot. (Id.) Morales ran to Jeremiah's room and closed the door. (Tr. 242-43.) Morales heard six or seven gunshots and heard Grullon screaming, “please help me.” (Tr. 243.)
Diana Ramirez, who lived in an apartment on the fifth floor, testified that on February 8, 2007 her mother stepped out to meet a friend and to get some milk when Ramirez “heard a big boom” and “after that [she] heard a girl screaming . . . she was saying oh my God, please help me.” (Tr. 367, 369-70.) Ramirez then called her mother because she “felt really scared.” (Tr. 370.) After that, she heard six gunshots from the floor below her, and called her mother again. (Tr. 371-72.)
Maria Camilo, who lived in the apartment next door to Grullon, testified that on February 8, 2007, at about 7:00 p.m., she heard “some struggling, some arguing” from the apartment next door. (Tr. 458-59.) After taking her children to the back room of her apartment, Camilo looked through the peephole and saw Grullon and another woman (who had long dark curly hair) struggling. (Tr. 459-60.) Camilo called 911, heard five or six shots, and called 911 again. (Tr. 460-61.) Jose Alfaro, who lived across the hall from Grullon, testified that on February 8, 2007, at about 7:00 p.m., he heard Grullon yelling in the hallway “this biatch has a gun,” and a “couple seconds later [he] heard the gunshots.” (Tr. 465-68.)
After hearing the gunshots, Morales ran to the living room, where her phone was, and called Cardona. (Tr. 243-44.) Cardona testified that she received a call from Morales while she was still at the supermarket. (Tr. 27-28.) Morales was crying and indicated that there was an emergency. (Tr. 27-28.) Cardona and her mother raced home in a cab. (Id.) Morales then called 911, providing a description of the perpetrator as having black hair, wearing a black coat, jeans and white sneakers. (Tr. 244.) Thereafter, Morales opened the door to the apartment and saw Grullon on the floor in the hallway facedown, eyes open, but not responsive. (Tr. 244.)
Ramirez's mother, Lucelli Vivas, testified that, when she was returning to the building after receiving her daughter's calls, she saw a woman with black curly hair and a bloody forehead exiting the building. (Tr. 376, 378-79.) Cardona saw police officers when she arrived back at the apartment and saw Grullon “laying on the ground.” (Tr. 28-29.) Later that evening, Cardona went to St. Barnabas Hospital where it was confirmed for Cardona that Grullon was dead. (Tr. 29-30.)
Police Officer Leonardo Rojas, was called on February 8, 2007 to respond to 2585 Grand Concourse in the Bronx, due to shots fired. (Tr. 50-51.) Officer Rojas and his partner, Officer Terrero, were the first to respond at the scene, which was outside apartment 45, on the fourth floor. (Tr. 53-54.) He saw the body of “very young woman,” with “light skin” and “wavy hair,” which he later learned was Grullon. She did not appear to be breathing, so Officer Terrero called for Emergency Medical Services. (Tr. 54.) Officer Rojas spoke with Morales who provided him a description of the person who shot Grullon - “female, light skin, wearing a black coat and blue jeans.” (Tr. 54-56.) At trial, Officer Rojas identified photographs of the crime scene. (Tr. 61-68.)
Detective Matthew Steiner, assigned to the Crime Scene Unit which is an investigative support unit, testified that he recovered several pieces of ballistics evidence and cash in the fourth-floor hallway of 2585 Grand Concourse on February 8, 2007. (Tr. 82-84, 86, 97, 123, 129.) Inside the apartment where Grullon resided, Detective Steiner recovered a discharged shell in the dining room and a deformed bullet from under the refrigerator in the kitchen and a shell casing from beneath the table in the living room. (Tr. 102-03, 109, 123-24, 128-29.)
Detective Kraljic, who was assigned to the Firearm Analysis Section, testified at trial that certain of the discharged cartridge casings recovered by Detective Steiner were discharged from the same firearm, which was a “firearm that was capable of firing a .22 long rifle bullet [] cartridge,” that two of the discharged .22 caliber bullets recovered at the crime scene were fired from the same gun, and that the bullets recovered from Grullon's body were all .22 caliber bullets. (Tr. 148, 157, 161-63.)
Detective Mercado Gomez testified that he responded to 2585 Grand Concourse in the Bronx in response to “a radio run for shots fired” on February 8, 2007. (Tr. 208.) Morales provided him with a description of the perpetrator. (Tr. 208-09.) Detective Gomez had observed cameras in the lobby of the building and later asked the superintendent to show him video recordings from that day. (Tr. 210.) On the video, Detective Gomez observed someone entering who “fit the description of the perpetrator.” (Id.) He then called the Technical Assistance Response Unit (“TARU”) and Detective Douglas Sugarman responded and downloaded the video from the apartment building's video surveillance system. (Tr. 184-87, 211.) The video was admitted into evidence at trial. (Tr. 199.)
Detective Richard Berrios also responded to the scene on February 8, 2007 and interviewed neighbors, friends, relatives and the 911 callers. (Tr. 385-87, 390.) In addition, he was taken by Detective Gomez to the basement of the apartment building to view video footage from a camera in the lobby of the building. (Tr. 390-91.) He obtained still photographs from the video and distributed them to cab stands, buildings, stores and the media. (Tr. 395-96.)
Dr. Monica Smiddy of the Office of the Chief Medical Examiner testified that she performed an autopsy on Grullon on February 9, 2007. (Tr. 549, 552.) Grullon had been shot three times: once to the left side of the chest and twice in the abdomen. (Tr. 554.) The fatal gunshot to the chest traveled through her heart and left lung before becoming lodged in the left side of her neck. (Tr. 555-56.) This injury would have caused Ms. Grullon's death within seconds to a couple of minutes after being inflicted. (Tr. 566-67.)
Thereafter, Detective Berrios was contacted by the Holyoke Police Department in Springfield, Massachusetts about Rios having been detained and he traveled there on February 12, 2007 to meet with Rios. (See Tr. 398-99.) Detective Berrios obtained a DNA sample from a Styrofoam cup from which Rios was drinking and sent it for testing, along with a black jacket and blue jeans that Rios was wearing. (Tr. 404-05.)
On April 5, 2007, Morales identified Rios in a line-up as the one who shot Grullon. (See Tr. 261-65.)
Detective Colleen Schutt, who worked in the New York City Police Department (“NYPD”) Forensic Lab, testified that in September 2007 she examined Grullon's clothing. (Tr. 302, 305.) Detective Schutt found three gunshot holes in Grullon's shirt; one was “in the upper left portion of the shirt near the chest” and two were “in the lower right by the hip.” (Tr. 313.) For the hole near the chest, Detective Schutt testified that the gun muzzle to target distance “was probably within about twenty-four inches.” (Tr. 340.) Grullon's pants contained two gunshot holes near the crotch area. (Tr. 315-16.) For one of the holes, Detective Schutt testified that the muzzle to target distance “was consistent within about three inches.” (Tr. 343.)
Debra Hartmann, an NYPD criminalist, testified about a hair sample that was recovered from Grullon's clothing. (Tr. 440-42.) Hartmann concluded from her observation of the hair that it was forcibly removed from the head. (Tr. 449, 451.) She sent some of the hair for DNA testing. (Tr. 450.) Criminalist Sarah Philipps of the Office of the Chief Medical Examiner testified that a hair sample taken from Grullon's clothing contained Rios' DNA. (Tr. 524, 533.)
2. Defense Case
Rios testified in her own defense at trial. (Tr. 576-659.) She testified about her prior criminal convictions and drug use. (Tr. 579-81.) She stated that she went to 2585 Grand Concourse on February 8, 2007 to purchase cocaine from someone who resided in apartment 42. (Tr. 582-83.) She testified that she was given the information and asked to purchase the drugs by Cali, a friend. (Tr. 605-06.) When Rios arrived at the apartment, she asked for “Angie,” and Grullon let her in. (Tr. 584.) Inside the apartment she saw Morales working on a computer, and also saw a “dark-skinned, tall” man with “S” shaved in his head. (Tr. 585, 587.) Rios then went to the bedroom with Morales and Grullon; Morales opened a drawer and took out a ziplock bag with cocaine in it. (Tr. 586-88, 630-31.) Rios told Grullon that she wanted to pick up half an ounce, instead of the full ounce. (Tr. 587, 606, 608-09.) Morales told Rios that Rios had to wait for Morales to retrieve a scale, so Rios and Grullon left the bedroom and walked to where the man was standing, near the exit to the apartment. (Tr. 589.) Rios stated that she was talking with Grullon, and that Grullon suddenly “snagged” Rios' chains off her neck, took Rios' money from her hand, and pulled Rios' hair. (Tr. 589-90, 641-42.)
Rios managed to get out of the apartment door, fell on the landing, then ran down the stairs. (Tr. 590, 595.) She had somehow cut her forehead, and she realized it was bleeding. (Tr. 589-90, 596a.) She later testified that Grullon, or the man in the apartment, hit her in the head with something. (Tr. 641.) Rios testified that she heard two shots in the apartment, then heard a few more shots as she was running down the stairs, she before she ran out of the building and into a cab. (Tr. 590, 595.) Rios stated that she never got into a fight with Grullon and never struggled with anyone in the hallway. (Tr. 596.) She also testified that she did not shoot a gun or kill Grullon. (Tr. 597.)
3. Verdict
The jury convicted Rios of Murder in the First Degree of Grullon, but acquitted her of Attempted Robbery in the First Degree of Morales. (Tr. 943.)
4. Sentence
On March 11, 2011, Justice Lieb sentenced Rios to life imprisonment without parole. (3/11/2011 Tr., ECF No. 10, at 23.)
B. Direct Appeal
In March 2015, Rios, represented by The Legal Aid Society, filed a direct appeal in the Supreme Court of the State of New York, Appellate Division, First Department. Three points were asserted on appeal: (1) “The prosecution failed to prove that [Rios] acted with the intent to kill Ms. Grullon where its own evidence established that the fatal gunshot wound was inflicted during a chaotic struggle in which shots also randomly struck the ceiling and wall. U.S. CONST., AMEND XIV; N.Y. CONST., ART. I, § 6;” (2) “The trial court denied [Rios] a fair trial when it permitted irrelevant and highly inflammatory evidence, including a living photograph of Ms. Grullon and family member testimony describing, in the trial prosecutor's words, the ‘devastation [Rios] caused.' U.S. CONST., AMEND. XIV; N.Y. CONST., ART. I, § 6;” and (3) “[Rios'] sentence of life imprisonment without parole should be reduced in the interest of justice where there is no evidence that Ms. Grullon's killing was premeditated.” (App. Br., ECF No. 9-3, at 2.)
The Appellate Division affirmed Rios' conviction on October 8, 2015. The Appellate Division held, as follows:
[Rios'] claim that the evidence was legally insufficient to establish the intent element of first-degree murder is unpreserved and we decline to review it in the interest of justice. As an alternate holding, we reject the claim on the merits. We also find that the verdict was not against the weight of the evidence .... Where [Rios] arrived at the victim's apartment armed, robbed her, threatened to kill her, chased her into the hallway, and fired multiple times, at least twice at close range, including a fatal shot to the victim's chest, [Rios'] homicidal intent could be readily inferred . . ., and the evidence does not support a conclusion that [Rios] merely shot the victim during a struggle.
We perceive no basis for reducing the sentence.
[Rios'] remaining contentions are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal.People v. Rios, 132 A.D.3d 445, 445-46 (1st Dep't 2015) (citations omitted).
On November 5, 2015, Rios' counsel sought leave to appeal, relying on the issues asserted before the Appellate Division First Department. (App. Leave Req., ECF No. 9-6.) On November 28, 2015 Rios submitted a pro se Addendum to her application for leave asserting the following grounds: (1) Rios' conviction is legally repugnant; (2) the guilty verdict is unsupported by evidence; (3) the verdict is inherently inconsistent and self-contradictory and (4) the people did not meet their burden of proof. (App. Leave Addendum, ECF No. 9-8.) On December 7, 2015, Rios' counsel submitted additional argument in support of her request for leave (App. Supp. Leave Req., ECF No. 9-7) and on December 15, 2015 the office of the District Attorney opposed Rios' application. (Leave Opp., ECF No. 9-9.)
It is not clear to the Court why Rios submitted a pro se addendum to the Appellate Division, as it appears that she was still being represented by counsel at the time.
On January 13, 2016, the Court of Appeals denied leave to appeal. People v. Rios, 26 N.Y.3d 1111 (2016). Rios' pro se motion for reargument was denied on April 26, 2016. People v. Rios, 27 N.Y.3d 1005 (2016). Rios timely filed her Petition in this Court, proceeding pro se, on January 17, 2017. (Pet.) The Defendant opposed Rios' Petition on March 22, 2017. (ECF No. 9.) On September 21, 2017, counsel for Rios was appointed (ECF No. 22) and on November 26, 2018, supplemented the petition. (Pet. Supp. Mem.) Rios' supplemental petition addressed two of four issues raised in Rios' pro se petition and, in the alternative, raised a claim of ineffective assistance of counsel related to Rios' trial counsel failing to preserve these claims at trial. (Pet. Supp. Mem. at 2, 35-37.) On December 26, 2018, Respondent filed a supplemental memorandum of law in reply. (Resp. Supp. Mem., ECF No. 37.)
C. Habeas Petition
Rios raises four grounds in her Petition. Ground One asserts that Rios' conviction of First Degree Murder is without legal sufficiency. (Pet. at 4.) Rios argues that, since she was acquitted of the underlying Attempted Robbery charge, “the essential element for her charge of murder in furtherance of a separate and distinct felony . . . was negated.” (Id.) Ground Two asserts that “[t]he First Degree Murder conviction cannot be reached without double inference or vast speculation” as there were insufficient facts to establish the charged offenses. (See id.; Pet. Supp. Mem. at 25-35.) Ground Three asserts that the verdict was repugnant, as it is inherently inconsistent and contradictory when viewed in light of the elements of the convicted crime. (Pet. at 5-6.) Ground Four asserts that the trial court improperly allowed prejudicial testimony from members of the deceased's family. (Id. at 6; Pet. Supp. Mem. at 15-25.) Rios' counsel also argued that, should the court determine that Grounds Two and Four were unpreserved, it should find ineffective assistance of counsel, on the part of Rios' trial counsel, in failing to raise these arguments. (Pet. Supp. Mem. at 35-37.)
DISCUSSION
I. Legal Standards
A. AEDPA Generally
Section 2254(d) provides, in relevant part, that a court may grant a writ of habeas corpus on a claim that previously has been adjudicated on the merits by a state court only if the state-court 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).
A claim is considered “adjudicated on the merits” when it is decided based on the substance of the claim advanced, rather than on a procedural, or other, ground. See Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001). Further, “[w]hen a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits[.]” Johnson v. Williams, 568 U.S. 289, 301 (2013). However, if the state court rejects a claim based on a state procedural rule that constitutes an adequate and independent ground for the decision, it may not be reviewed by a federal habeas court. See Wilkerson v. N.Y. State Bd. of Parole, No. 13-CV-03817 (GHW), 2015 WL 678581, at *9 (S.D.N.Y. Feb. 17, 2015); see also Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003).
Under AEDPA, federal courts reviewing habeas petitions must accord substantial deference to state court decisions. “The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007). A state court decision is “contrary to” clearly established federal law where the state court either applies a rule that “contradicts the governing law” set forth in Supreme Court precedent or “confronts a set of facts that are materially indistinguishable from a [Supreme Court] decision,” and arrives at a different result. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable application” of clearly established federal law pursuant to this provision occurs when the state court identifies the correct governing legal principle, but unreasonably applies that principle to “a set of facts different from those of the case in which the principle was announced.” Lockyer v. Andrade, 538 U.S. 63, 76 (2003).
In addition, federal habeas courts must presume that the state courts' factual findings are correct unless a petitioner rebuts that presumption with “clear and convincing evidence.” Schriro, 550 U.S. at 473-74 (quoting 28 U.S.C. § 2254(e)(1)). “A state court decision is based on a clearly erroneous factual determination if the state court failed to weigh all of the relevant evidence before making its factual findings.” Lewis v. Conn. Comm'r of Corr., 790 F.3d 109, 121 (2d Cir. 2015) (internal quotation marks omitted).
B. Exhaustion Requirement And Procedural Bar
“[B]efore a federal court can consider a habeas application brought by a state prisoner, the habeas applicant must exhaust all of his state remedies.” Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011) (citing 28 U.S.C. § 2254(b)(1)(A)). This is to provide the state courts the “‘opportunity to pass upon and correct' alleged violations of . . . prisoners' federal rights.” Picard v. Connor, 404 U.S. 270, 275 (1971).
The exhaustion requirement has two components. Parrish v. Lee, No. 10-CV-08708 (KMK), 2015 WL 7302762, at *6 (S.D.N.Y. Nov. 18, 2015). First, a court considers whether the petitioner “‘fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts.'” Id. (quoting Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981)). A petitioner may satisfy the fair presentation requirement by:
(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, [or] (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.Carvajal, 633 F.3d at 104 (quoting Daye v. Attorney Gen. of N.Y., 696 F.2d 186, 194 (2d Cir. 1982)). In Baldwin v. Reese, 541 U.S. 27 (2004), the Supreme Court held that “ordinarily a state prisoner does not ‘fairly present' a claim to a state court if that court must read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a federal claim[.]” Id. at 32.
“‘Second, having presented [the] federal constitutional claim to an appropriate state court, and having been denied relief, the petitioner must have utilized all available mechanisms to secure [state] appellate review of the denial of that claim.'” Parrish, 2015 WL 7302762, at *7 (quoting Klein, 667 F.2d at 282). In connection with this requirement, “the Supreme Court has held that when a ‘petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred,' federal habeas courts also must deem the claim procedurally defaulted.” Sweet v. Bennett, 353 F.3d 135, 139 (2d Cir. 2003) (quoting Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991)).
“In New York, . . . a criminal defendant must first appeal his or her conviction to the Appellate Division, and then must seek further review of that conviction by applying to the Court of Appeals for a certificate granting leave to appeal.” Galdamez v. Keane, 394 F.3d 68, 74 (2d Cir. 2005). “New York procedural rules bar its state courts from hearing either claims that could have been raised on direct appeal but were not, or claims that were initially raised on appeal but were not presented to the Court of Appeals.” Sparks v. Burge, No. 06-CV-06965 (KMK) (PED), 2012 WL 4479250, at *4 (S.D.N.Y. Sept. 28, 2012); see also DiGuglielmo v. Smith, 366 F.3d 130, 135 (2d Cir. 2004) (affirming the “denial of [a] habeas petition on the grounds, inter alia, that [petitioner's] claims were not properly exhausted” where “they were not properly presented to New York's highest court”).
“When a petitioner can no longer present his unexhausted claim of trial error to the state courts,” a federal court sitting in habeas review “deem[s] the claim procedurally barred.” Richardson v. Superintendent of Mid-Orange Corr. Facility, 621 F.3d 196, 201 (2d Cir. 2010) (internal quotation marks and citations omitted). The merits of a procedurally defaulted claim may not be reviewed by a federal court “unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claim[ ] will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750; see also Murray v. Carrier, 477 U.S. 478, 495-96 (1986).
The “cause” prong of the cause-and-prejudice test ordinarily requires a showing that “some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.” Murray, 477 U.S. at 488. The “prejudice” prong requires that the defendant suffer “actual prejudice resulting from the errors of which he complains.” United States v. Frady, 456 U.S. 152, 168 (1982) (internal quotation marks and citation omitted). The petitioner must show that the errors at trial created an “actual and substantial disadvantage, infecting [the] entire trial with error of constitutional dimensions.” Rosario-Dominguez v. United States, 353 F.Supp.2d 500, 508 (S.D.N.Y. 2005) (quoting Frady, 456 U.S. at 170).
C. Adequate and Independent State Ground Doctrine
Under the Adequate and Independent State Ground doctrine, “the Supreme Court will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Davis v. Racette, 99 F.Supp.3d 379, 387 n.3 (E.D.N.Y. Apr. 21, 2015) (internal quotation marks omitted) (citing Coleman, 501 U.S. at 729). “In the context of federal habeas review, if a state prisoner's federal challenge was not addressed in state court because the prisoner failed to meet a state procedural requirement, federal habeas review is barred.” Id. (citing Coleman, 501 U.S. at 730). “A procedural rule is considered adequate if it is firmly established and regularly followed by the state in question.” Davis v. Walsh, 08-CV-4659, 2015 WL 1809048, at *9 (E.D.N.Y. Apr. 21, 2015) (internal quotation marks and citation omitted). “To be independent, the state court must actually have relied on the procedural bar as an independent basis for its disposition of the case[.]” Id. (internal quotation marks and citations omitted).
Again, the merits of a procedurally defaulted claim may not be reviewed by a federal court unless the petitioner can demonstrate cause for the default and actual prejudice or that failure to consider the claim will result in a fundamental miscarriage of justice. (See Discussion, I.B., supra.)
II. Rios' Claims Based Upon Grounds One And Three Should Be Denied For Failure To Exhaust And On The Merits
A. Failure to Exhaust
Rios failed to raise either Ground One or Ground Three in her appeal to the Appellate Division. Ground One argues that Rios' conviction of murder in the first degree “is without legal sufficiency of the factual elements of the defense,” since she “was acquitted of [the] underlying Attempted Robby charge.” (Pet. at 4.) Ground Three asserts that Rios' conviction is not sufficient, since it is impossible for “murder in furtherance of a robbery [to] occur with no robbery.” (Pet. at 5.) The first time she raised either ground was in her pro se addendum to the New York Court of Appeals in support of her leave application. (See App. Leave Addendum.) A petitioner does not fairly present a claim in state court when she does not raise it in an appeal to the Appellate Division, but only seeks to raise it in an application for discretionary review in the New York Court of Appeals. See Castille v. Peoples, 489 U.S. 346, 351 (1989); St. Helen v. Senkowski, 374 F.3d 181, 183 (2d Cir. 2004); see also Ellman v. Davis, 42 F.3d 144, 148 (2d Cir. 1994) (presenting claim for first time in application seeking discretionary review is inadequate to satisfy exhaustion requirement if discretionary review is denied), cert. denied, 515 U.S. 1118 (1995). Thus, the claims contained in Grounds One and Three are unexhausted and should be denied.
Rios does not demonstrate (nor has she shown) cause for her failure to exhaust her claims, nor actual prejudice. And, given the record evidence of Rios' guilt, she cannot demonstrate a fundamental miscarriage of justice to overcome the procedural bar.
B. Denial on Merits
Under 28 U.S.C. § 2254(b)(2), “[a]n 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.” Here, the Court finds that Grounds One and Three also should be denied on the merits, since these grounds are based upon an erroneous premise.
When reviewing a habeas claim based on allegations of insufficient evidence, see Jackson v. Virginia, 443 U.S. 307 (1979), federal courts must be doubly deferential to the findings of state courts:
We have made clear that Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference. 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.” Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam). And second, 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 Renico v. Lett, 559 U.S. 766, 773 (2010)).Coleman v. Johnson, 566 U.S. 650, 651 (2012).
The premise of Grounds One and Three is that, since she was acquitted of an attempted robbery felony, Rios' conviction for murder in the first degree is inconsistent as a predicate felony is an element of the convicted crime. However, the only crime for which Rios was acquitted was a crime committed against Morales, not Grullon, the decedent. Thus, there is no inconsistency.
As reflected in the verdict sheet, Rios was convicted by the jury of Count 1, which was “Murder in the First Degree” of Grullon. (Verdict Sheet, at 1.) The verdict sheet then instructs members of the jury, “[i]f you find the defendant guilty of count 1, go to count 5. Do not consider counts 2, 3, 4 or 6.” (Id.) Since the jury found Rios guilty of Count 1, it skipped to Count 5, which was “Attempted Robbery in the First Degree” of Daisy Morales. (Verdict Sheet at 3.) On that count, the jury found Rios not guilty. (Id.) Rios was not acquitted of robbing Grullon. Accordingly, Counts One and Three of the Petition lack any factual basis and also should be denied on the merits.
Notably, in the supplemental submission made by counsel for Rios, there are no arguments regarding Grounds One and Three of the Petition. Indeed, Rios' counsel acknowledges the jury verdict which differentiated the decedent (count 1) from Ms. Morales (count 5). (See Pet. Supp. Mem. at 15 (“the jury reached a verdict acquitting petitioner of attempted robbery of Ms. Morales but convicting her of murder in the first degree with respect to Angelina Grullon”).)
III. Rios' Claims Based Upon Grounds Two And Four Should Be Denied as Unpreserved and on the Merits
Ground Two asserts that there was insufficient evidence on which a conviction could be based. (Pet. at 4-5.) Ground Four asserts that the trial court's “permitting” family members to testify about their reaction to Grullon's death was “inherently prejudicial” and “contrary to established fair trial rights.” (Id. at 6.)
A. The State Court Denied Claims Based upon Grounds Two and Four on Adequate and Independent State Law Grounds
Both Grounds Two and Four were raised in the Appellate Division. The Appellate Division held that these grounds were not preserved for appeal. See People v. Rios, 132 A.D.3d at 445-46. New York's preservation rules constitute an adequate and independent state law ground. See Garcia v. Lewis, 188 F.3d 71, 79 (2d Cir. 1999) (“we have observed and deferred to New York's consistent application of its contemporaneous objection rules”). Thus, the claims based upon Grounds Two and Four are procedurally barred and are not reviewable by this Court. Furthermore, Rios does not demonstrate (nor has she shown) cause for her failure to preserve her claims nor actual prejudice. And, given the record evidence of Rios' guilt, she cannot demonstrate a fundamental miscarriage of justice to overcome the procedural bar.
B. The Appellate Division's Alternative Holdings as to Grounds Two and Four Are Not Contrary to Nor an Unreasonable Application of Clearly Established Supreme Court Precedent
Even putting aside the adequate and independent state law grounds, the claims predicated on Grounds Two and Four should be denied. After holding that Grounds Two and Four were not properly preserved, the Appellate Division alternatively found no basis for reversal. See People v. Rios, 132 A.D.3d at 445-46. The Appellate Division's alternative holdings are neither contrary to nor an unreasonable application of clearly established Supreme Court precedent. See 28 U.S.C. § 2254 (d)(1).
1. Ground Two
Count Two is based on the sufficiency of the evidence. Applying the Supreme Court's Jackson double deference standard applicable to sufficiency of the evidence claims (see Discussion Section II.B., supra), it cannot be said that no rational trier of fact could have agreed with the jury; nor can it be said that the state court decision was objectively unreasonable. A rational trier of fact could have found that Rios acted with the intent to cause the death of Grullon. There is record evidence that Rios acted with an intent to kill Grullon and stated her intention to kill someone in Grullon's apartment. Rios then fired at Grullon as she chased after her into the hallway, where she continued shooting. Furthermore, the ballistics and autopsy evidence established that Rios fired multiple shots from close range. Based on the foregoing evidence, there were valid lines of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury that Rios intended to kill Grullon by shooting at her repeatedly. Thus, the Appellate Division's affirmance was not objectively unreasonable.
2. Ground Four
The Appellate Division did not unreasonably apply Supreme Court precedent in rejecting Rios' claim that she was denied a fair trial when the trial court permitted testimony from the victim's sister. Rios has not established that this evidentiary claim has merit under state law, much less that it constituted a claim of federal constitutional dimension that was resolved unreasonably in light of clearly established Supreme Court precedent.
Ground Four of the Petition is based upon the Court “allow[ing] family members' descriptions of other family members' reaction to her death and how they grieved.” (Pet. at 6.) It is alleged that “[t]estimony was permitted that put forth other highly emotional sentiment and tragically described details that were irrelevant to the case.” (Id.) Rios' supplemental submission confirms that these allegations relate to testimony by Grullon's sister, Cardona. (Pet. Supp. Mem. at 17-18.) For example, Cardona testified that she “passed out” when she saw her deceased sister “laying on the ground” on the fourth floor of her apartment building (Tr. 28); that Cardona thereafter saw her mother inside the apartment “screaming and crying” (Tr. 29); and that, at the hospital, her mother was “cradling” and “rocking” Grullon. (Tr. 30.) Rios' counsel failed to object to any of these questions during trial. Even if Cardona's testimony conveyed the emotional nature of her experiences, it is not unreasonable for the Appellate Division to find that Rios' right to a fair trial was not impinged based on the testimony that family members were upset to discover the body of their stricken relative and then learn that she had died from her injuries.
Prior to trial, defense counsel raised with Justice Lieb the issue of the “emotion” that could be elicited during Cardona's testimony. Defense counsel acknowledged that Cardona was “going to be emotional” during her testimony. (1/21/2011 Tr., ECF No. 15-1, at 770.) The only agreement that came out of this pretrial discussion among Justice Lieb and prosecution and defense counsel was that the prosecution counsel would “not ask questions or elicit testimony on how [Cardona] felt.” (See Id. at 771.) There is no assertion that the prosecution counsel breached this agreement.
When a petitioner on habeas review challenges evidentiary rulings made by the state court(s) below, “[i]n conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991); see 28 U.S.C. § 2254(a). To prevail on a claim that evidentiary error resulted in a constitutional deprivation of due process, a petitioner must establish “the error was so pervasive as to have denied him a fundamentally fair trial.” Collins v. Scully, 755 F.2d 16, 18 (2d Cir. 1985) (citation omitted). In so doing, a petitioner “bears a heavy burden because evidentiary errors generally do not rise to constitutional magnitude.” Copes v. Schriver, No. 97-CV-2284 (JGK), 1997 WL 659096, at *3 (S.D.N.Y. Oct. 22, 1997) (citation omitted). Thus, Rios' Petition cannot be granted unless the state court proceedings “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.” 28 U.S.C. § 2254(d)(1). “To be ‘contrary to' clearly established law, a state court must reach a conclusion of law antithetical to a conclusion of law by the Supreme Court, or decide a case differently than the Supreme Court has when the two cases have ‘materially indistinguishable facts.'” Rosario v. Ercole, 601 F.3d 118, 123 (2d Cir. 2010) (quoting Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring)). Furthermore, the state court determination precludes habeas relief “so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Clearly established law “includes only the holdings, as opposed to the dicta, of th[e] [Supreme] Court's decisions.” Woods v. Donald, ____ U.S.____, 135 S.Ct. 1372, 1376 (2015) (quoting White v. Woodall, 572 U.S. 415, 419 (2014)).
See also Crane v. Kentucky, 476 U.S. 683, 689 (1986) (acknowledging a “traditional reluctance to impose constitutional constraints on ordinary evidentiary rulings by state trial courts”); DiGuglielmo, 366 F.3d at 136 (alleged errors of state law “cannot be repackaged as federal errors simply by citing the Due Process Clause”) (internal quotations marks and citation omitted); Ponnapula v. Spitzer, 297 F.3d 172, 182 (2d Cir. 2002) (“not every error of state law can be transmogrified by artful augmentation into a constitutional violation”) (internal quotation marks and citation omitted).
It is not enough that the circumstances of a case are “similar to” those at issue in the relevant Supreme Court case-they must involve the same specific question. Id. at 1377. In the present case, Rios has failed to refer the Court to a Supreme Court decision involving the same specific question as the one involved here to which the Appellate Division's decision is contrary or that the Appellate Division unreasonably applied, and the Court is aware of none. Thus, Rios' claim under Ground Four should be denied.
IV. Rios Cannot Establish Ineffective Assistance of Counsel
Rios did not raise ineffective assistance of counsel in her Petition. Rather, her counsel raised it for the first time in the supplemental memorandum. (Pet. Supp. Mem.) Furthermore, this ground was not raised in the state courts and thus was not exhausted. Even if the Court were to consider the ineffective counsel claim on the merits, it does not provide a basis for habeas relief.
Ineffective assistance of counsel claims are judged by the standards set forth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on such a claim, Rios must show that (a) her counsel's performance “fell below an objective standard of reasonableness,” and (b) 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 688, 694. The Strickland standard “looks to whether counsel's performance was deficient under the totality of the circumstances.” United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987) (citing Strickland, 466 U.S. at 688).
In the present case, a review of the trial transcript reveals that Rios' counsel provided effective assistance throughout the trial. “[C]ounsel's overall performance indicates active and capable advocacy” such that “it is difficult to establish ineffective assistance.” See Harrington v. Richter, 562 U.S. 86, 111 (2011).
CONCLUSION
For the foregoing reasons, I recommend that Rios' petition for a writ of habeas corpus be DENIED in its entirety.
The Clerk of Court is directed to mail a copy of this Report and Recommendation to the pro se Petitioner.
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NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Swain.
THE FAILURE TO FILE THESE TIMELY OBJECTIONS WILL RESULT IN A WAIVER OF THOSE OBJECTIONS FOR PURPOSES OF APPEAL. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).