Opinion
20 Civ. 06660 (PMH)(JCM)
12-20-2023
CARLOS SERRANO, Petitioner, v. MICHAEL ROYCE, Respondent.
HONORABLE PHILIP M. HALPERN, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
JUDITH C. McCARTHY UNITED STATES MAGISTRATE JUDGE
Petitioner Carlos Serrano (“Petitioner”), proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on August 10, 2020 (the “Petition”). (Docket No. 2). The Petition requested additional time to “complete all the proper forms and papers needed to go forth” because Petitioner was “working on a [New York Criminal Procedure Law (“N.Y. C.P.L”)] 440.10 motion” that was “not finished as of yet.” (Docket No. 2 at 5). On August 27, 2020, Judge Louis L. Stanton denied Petitioner's request for more time and ordered him to file an amended petition setting “forth all of his grounds for relief, both exhausted and unexhausted.” (Docket No. 4 at 4).
Unless otherwise noted, all page numbers refer to the numbers generated by the Court's electronic case filing system (“ECF”).
The case was subsequently reassigned to the Honorable Philip M. Halpern on October 5, 2020.
Petitioner filed his amended petition on September 28, 2020 (the “Amended Petition”). (Docket No. 5). The Attorney General of the State of New York, on behalf of Michael Royce (“Respondent” or the “State”), opposed the Amended Petition on December 4, 2020. (Docket No. 10). Petitioner did not submit a reply, but did file a motion to stay the proceedings on February 8, 2021, (Docket No. 16), which was denied on April 21, 2021, (Docket No. 19). For the reasons set forth below, I respectfully recommend that the Amended Petition be denied.
A pro se prisoner's papers are deemed filed at the time he or she delivers them to prison authorities for forwarding to the court clerk. See Houston v. Lack, 487 U.S. 266, 270 (1988); Walker v. Jastremski, 430 F.3d 560 (2d Cir. 2005) (analyzing the “Houston prison mailbox rule”). Petitioner certified that his Petition was delivered to the prison authorities for mailing on September 28, 2020. (Docket No. 5 at 20). Consequently, the Court adopts Petitioner's date for this filing and all other filings discussed herein.
I. BACKGROUND
A. The Crimes, Trial and Sentence
Petitioner's conviction arises out of events that occurred on the evening of June 28, 2016. In the spring of that year, Petitioner separated from his wife and the mother of his child, Deanna Irizarry. (Docket No. 10-1 at 8). When Ms. Irizarry began dating another man shortly thereafter, Petitioner became incensed and began threatening her. (Id. at 7-8). Specifically, Petitioner warned Ms. Irizarry that he did not want other men around their son, which was a veiled reference to Ms. Irizarry's new boyfriend at the time-Juan Medina-who is also the victim in this case. (Id.).
The threats came to a head on the night of June 28, 2016. (Id. at 8-9). That evening, two of Ms. Irizarry's neighbors saw a red vehicle with tinted windows and a basketball sticker suspiciously drive past Ms. Irizarry's apartment building numerous times. (Id. at 8-9). One of the neighbors recognized Petitioner in the vehicle and warned Ms. Irizarry and Mr. Medina, who were inside of their apartment, that Petitioner was circling the building. (Id.). Mr. Medina went onto the porch with the two neighbors (one of whom had her 8 year old daughter with her) to find out what was happening. (Id.). A few moments later, Petitioner appeared and asked Mr. Medina if his wife (Ms. Irizarry) and son were home. (Id. at 9). As Mr. Medina was about to answer, Petitioner drew a handgun from his waste and began firing at him. (Id.). Mr. Medina quickly pushed the neighbor's 8 year old daughter out of the way and then tried to get back into the building, but he collapsed in the doorway as Petitioner continued firing. (Id.). Mr. Medina was shot three times and died at the scene. (Id.).
Police responded to the shooting and tracked Petitioner's vehicle to a nearby apartment complex. (Id. at 10-11). Upon securing the vehicle, police arrested Petitioner. (Id.). While at the police station being processed, Petitioner asked the officers if he could have his cell phone, indicating that it was still in the red vehicle he was riding in earlier that evening. (Id. at 11). Police searched the vehicle pursuant to a duly issued search warrant and recovered two cell phones. One of the cell phones had a SIM card associated with Petitioner's number, and contained threatening text messages Petitioner sent to Ms. Irizarry, as well as messages and images from one of his social media accounts. (Id. at 11-12). Based on this evidence and eyewitness testimony, Petitioner was indicted on July 6, 2016, in the County Court for Sullivan County, New York (“Sullivan County Court”) for: (1) Murder in the Second Degree; (2) Criminal Possession of a Weapon in the Second Degree; and (3) Reckless Endangerment in the First Degree (the “Indictment”). (Docket No. 11 at 18-19). He pleaded not guilty to all charges.
In advance of trial, police conducted a photo array with one of Ms. Irizarry's neighbors, Jennifer Colton, who was present the night of the shooting. (Docket No. 10-1 at 5-6). The police used a double blind procedure where the officer conducting the photo array was not involved in the investigation, did not know if any of the individuals in the photo array were suspects, and did not know Petitioner's identity. (Id.). The photo array contained pictures of six individuals, two of whom, including Petitioner, were wearing orange clothing. (Id. at 6). Each of the subjects had tattoos on their neck, but only Petitioner had a lettered one. (Id. at 19). When presented with the photo array, Ms. Colton identified Petitioner as the shooter on the night of June 28, 2016. (Id. at 6). Petitioner subsequently moved to suppress this identification, arguing that the photo array was unduly suggestive since Petitioner was wearing orange clothing, which could resemble prison garb, and was the only subject in the photo array that had a lettered neck tattoo. (Docket No. 11 at 54-61). The Sullivan County Court denied Petitioner's motion and the case proceeded to trial, (id. at 101-102; Docket No. 10-1 at 7), where Ms. Colton identified Petitioner as the individual she recognized in the photo array who was the shooter on June 28, 2016. (Docket No. 10-1 at 6).
In addition to Ms. Colton's identification, the State also sought to introduce, through testimony from Ms. Irizarry, text and social media messages from Petitioner's phone showing his previous threatening behavior. Petitioner objected, arguing that the State had not established that it was his phone or that he sent the messages recovered from the phone. (Id. at 9-12, 21-22). The Court overruled the objection, holding that there was overwhelming evidence that the phone belonged to him, including testimony from a computer forensic technician, who explained that the phone's passcode made it extremely unlikely anyone without the code could have sent the messages. (Id. at 25). Regardless of whether someone else could have accessed the phone, the trial court held that authorship of the messages was a factual question for the jury to resolve. (Id. at 22-25). Petitioner also objected to the introduction of photographs of Mr. Medina's body during the trial, claiming they were unduly prejudicial and irrelevant since he was not contesting the cause of death. (Id. at 25-26). The trial court ordered the State to crop out the more gruesome parts of the images, but otherwise overruled the objection holding that they were relevant to Petitioner's intent.
Ultimately, Petitioner was convicted on February 28, 2017, on all three counts in the Indictment. (Docket No. 12 at 920-23). Petitioner was sentenced on May 19, 2017, to a term of: (1) 25 years to life for the Murder in the Second Degree charge; (2) 15 years for the Criminal Possession of a Weapon in the Second Degree charge; and (3) two and a third to seven years for the Reckless Endangerment in the First Degree charge-each to run concurrently. (Docket No. 12 at 980).
B. Direct Appeal
Petitioner filed a direct appeal through counsel on November 5, 2018, arguing that: (1) his conviction was against the weight of the evidence; (2) the Sullivan County Court violated his right to due process of law by allowing the State to introduce photographs of the victim's dead body into evidence; (3) the photo array police used to identify Petitioner was unduly suggestive, and the Sullivan County Court's decision to allow the State to introduce that identification at trial violated his right to due process of law; (4) the Sullivan County Court erred by both: (i) allowing Ms. Irizarry to testify to the content and authenticity of text messages she exchanged with Petitioner, and (ii) admitting those text messages into evidence; and (5) the grand jury proceedings were defective, and Petitioner's pre-trial motion to dismiss should have been granted. (Docket No. 5 at 3).
By Decision and Order, dated June 30, 2019, the Supreme Court of the State of New York, Appellate Division, Third Judicial Department (the “Third Department”) affirmed Petitioner's conviction on all counts. See People v. Serrano, 103 N.Y.S.3d 648 (3d Dep't 2020). The Third Department held that the Sullivan County Court's decision to admit photographs of the victim's body into evidence was correct as the photos were relevant to Petitioner's intent to commit murder and reckless endangerment. Id. at 654 (“[a]lthough defendant did not contest the cause of death, the photos were relevant to the material issue of intent to commit murder, and the People could rely on them despite the existence of other evidence as to that element”); id. at n.2 (“the photos were also relevant to prove elements of reckless endangerment”). As to the photo array, the Third Department held:
Defendant does not challenge the double-blind procedure used to obtain the pretrial identification. Rather, he argues that the photo array shown to the neighbor was unduly suggestive because in his photo he is wearing orange and he was the only individual that had a tattoo with lettering on the front of the neck. The photo array depicts six males who all appear to be of the same general age and have similar hair length and styles, eye color and shape, facial hair and facial expressions. The backgrounds are neutral and the individuals are all facing forward. Two men are wearing white tops, two are wearing black and two- including defendant-are wearing either orange or red. All six men have distinctive neck tattoos. Although defendant is the only individual with lettering or a word tattooed by itself on the front of his neck, one man has lettering on the side of his neck and another has words within a drawing on the front of his neck. Under these circumstances, nothing about defendant's tattoo was likely to unduly draw the viewer's attention to his photo or indicate that he was the perpetrator of the charged crimes. The shirt color would not link defendant to the crimes- indeed, the witnesses testified that the shooter was wearing a black shirt-and it is not discernable from the photos whether either of the men in orange or red is wearing a “jail jumpsuit,” as defendant contends. Moreover, there is no indication in the record that the neighbor relied on the clothing of the perpetrator in making her identification, which she made quickly and without hesitation. As nothing impermissibly draws attention to defendant's photo, we agree with Supreme Court that defendant failed to meet his burden of demonstrating that the photo array was unduly suggestive.Id. at 652. The Third Department also rejected Petitioner's argument that his text messages should have been excluded at trial, holding that they were properly authenticated by: (1) Ms. Irizarry; (2) Petitioner's girlfriend at the time; (3) photographs from Petitioner's social media accounts found on the device; and (4) Petitioner's statement while in custody that his phone was in the vehicle he was spotted riding in that evening. Id. at 653. Similarly, the Third Department rejected Petitioner's argument that Ms. Irizarry was not credible and should have been precluded from testifying on the authenticity of the text messages, holding that such an argument “goes to the weight to be accorded to the evidence, not to its admissibility.” Id. Further, the court held that his contention that someone else sent the text messages from his phone was “a factual issue for the jury to resolve.” Id. Finally, the Third Department dismissed Petitioner's remaining claims as “unavailing.” Id. at 654. Petitioner sought leave to appeal the Third Department's decision to the New York Court of Appeals (the “Court of Appeals”), which was summarily denied on August 19, 2019. People v. Serrano, 109 N.Y.S.3d 728 (N.Y. 2019).
C. The Petition
On September 28, 2020, Petitioner filed the Amended Petition in the instant case. (Docket No. 5). The State filed its opposition on December 4, 2020. (Docket Nos. 10; 11; 12). No reply was filed. However, on February 24, 2021, Petitioner moved to stay and hold the proceedings in abeyance as he collaterally attacked his conviction in state court. (Docket No. 16). The State opposed that motion as well, (Docket No. 18), and the Court denied it on April 21, 2021, (Docket No. 19 at 7).
II. APPLICABLE LAW
“The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996” (“AEDPA”). Harrington v. Richter, 562 U.S. 86, 97 (2011). “Before a federal district court may review the merits of a state criminal judgment in a habeas corpus action, the court must first determine whether the petitioner has complied with the procedural requirements set forth in 28 U.S.C. §§ 2244 and 2254.” Visich v. Walsh, No. 10 Civ. 4160 (ER) (PED), 2013 WL 3388953, at *9 (S.D.N.Y. July 3, 2013). The procedural and substantive standards are summarized below.
If Petitioner does not have access to cases cited herein that are available only by electronic database, then he may request copies from Respondent's counsel. See Local Civ. R. 7.2 (“Upon request, counsel shall provide the pro se litigant with copies of such unpublished cases and other authorities as are cited in a decision of the Court and were not previously cited by any party.”)
A. Exhaustion as a Procedural Bar
A habeas petition may not be granted unless the petitioner has exhausted his claims in state court. See 28 U.S.C. § 2254(b). As the statute prescribes:
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that-
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant. ...
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.28 U.S.C. § 2254(b)-(c).
Exhaustion requires a prisoner to have “fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts.” Turner v. Artuz, 262 F.3d 118, 123 (2d Cir. 2001) (internal quotations omitted). If a petitioner “cites to specific provisions of the U.S. Constitution in his state court brief, the petitioner has fairly presented his constitutional claim to the state court.” Davis v. Strack, 270 F.3d 111, 122 (2d Cir. 2001); see also Reid v. Senkowski, 961 F.2d 374, 376 (2d Cir. 1992) (even “a minimal reference to the Fourteenth Amendment” presents a federal constitutional claim to the state courts). A petitioner may fairly present his claim even without citing to the U.S. Constitution, by, inter alia: “(a) [relying] on pertinent federal cases employing constitutional analysis, (b) [relying] on state cases employing constitutional analysis in like fact situations, (c) [asserting] . . . [a] claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) [alleging] . . . a pattern of facts that is well within the mainstream of constitutional litigation.” Daye v. Attorney Gen. of State of N.Y., 696 F.2d 186, 194 (2d Cir. 1982). Fair presentation includes petitioning for discretionary review in the state's highest appellate court. See O'Sullivan v. Boerckel, 526 U.S. 838, 839-40 (1999) (“[A] state prisoner must present his claims to a state supreme court in a petition for discretionary review in order to satisfy the exhaustion requirement”).
However, “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 quotations omitted). In such cases, although the claim is technically unexhausted, the district court may deem the claim to be exhausted but procedurally barred from habeas review. See id. at 140 (“[A] claim is procedurally defaulted for the purposes of federal habeas review where ‘the 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.'”) (quoting Coleman v. Thompson, 501 U.S. 722, 735 (1991)).
Under New York law, defendants are permitted only one direct appeal. See Dasney v. People of the State of New York, No. 15-cv-5734 (RJS), 2017 WL 253488, at *5 (S.D.N.Y. Jan. 19, 2017) (citing N.Y. Ct. App. R. § 500.20); see also Roa v. Portuondo, 548 F.Supp.2d 56, 78 (S.D.N.Y. 2008) (“Any attempt to raise these claims at this stage as part of a direct appeal would be rejected because a criminal defendant is entitled to only one direct appeal and one application for leave to appeal to the Court of Appeals.”). Petitioners must raise record-based claims by direct appeal rather than by a collateral motion in state court. See, e.g., O'Kane v. Kirkpatrick, No. 09 Civ. 05167 (HB)(THK), 2011 WL 3809945, at *7 (S.D.N.Y. Feb. 15, 2011) (“[A]ll claims that are record-based must be raised in a direct appeal. . . . It is only when a defendant's claim hinges upon facts outside the trial record, that he may collaterally attack his conviction by bringing a claim under CPL § 440.10.”), report and recommendation adopted, 2011 WL 3918158 (S.D.N.Y. Aug. 25, 2011); Lowman v. New York, No. 09-CV-0058T (MAT), 2011 WL 90996, at *9 (W.D.N.Y. Jan. 11, 2011) (“Collateral review of this claim-by way of another CPL § 440 motion-is also barred because the claim is a matter of record that could have been raised on direct appeal, but unjustifiably was not.)” (citing N.Y. Criminal Procedure Law (“C.P.L.”) § 440.10(2)(c)).
This rule states, in relevant part, that a letter application for leave to appeal “shall indicate . . . (2) that no application for the same relief has been addressed to a justice of the Appellate Division, as only one application is available.” N.Y. Ct. App. R. 500.20(a) (emphasis added).
C.P.L. § 440.10(2)(c) states, in relevant part, that a court must deny a § 440.10 motion to vacate judgment when “[a]lthough sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him. . . .”
To avoid the procedural default of an unexhausted claim, a petitioner may show “cause for the default and prejudice, or that failure to consider the claim will result in miscarriage of justice, i.e., the petitioner is actually innocent.” Sweet v. Bennett, 353 F.3d 135, 141 (2d Cir. 2003).
B. Adequate and Independent State Grounds as a Procedural Bar
“It is well established that federal courts will not review questions of federal law presented in a habeas petition when the state court's decision rests upon a state-law ground that ‘is independent of the federal question and adequate to support the judgment.'” Cone v. Bell, 556 U.S. 449, 465 (2009) (quoting Coleman, 501 U.S. at 729). This preclusion applies even if the state court alternatively rules on the merits of the federal claim, so long as there is an adequate
and independent state ground that would bar the claim in state court. See, e.g., Harris v. Reed, 489 U.S. 255, 264 n.10 (1989); accord Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999).
“A state court decision will be ‘independent' when it ‘fairly appears' to rest primarily on state law.” Taylor v. Connelly, 18 F.Supp.3d 242, 253 (E.D.N.Y. 2014) (quoting Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir. 2006)). Typically, a ground is adequate “only if it is based on a rule that is ‘firmly established and regularly followed' by the state in question.” Garcia, 188 F.3d at 77 (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)); see also Cotto v. Herbert, 331 F.3d 217, 239 (2d Cir. 2003) (same). A decision that a state procedural rule is inadequate should not be made “lightly or without clear support in state law.” Garcia, 188 F.3d at 77 (internal quotations omitted). However, “there are ‘exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question.'” Cotto, 331 F.3d at 240 (quoting Lee v. Kemna, 534 U.S. 362, 376 (2002)). In determining whether a case is “exceptional” in that the state ground should be held inadequate, the Second Circuit uses the following factors as “guideposts”:
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had substantially complied with the rule given the realities of trial, and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.Id. (internal quotations omitted).
To avoid a procedural default based on independent and adequate state grounds, a petitioner must “show ‘cause' for the default and ‘prejudice attributable thereto,' . . . or demonstrate that failure to consider the federal claim will result in a ‘fundamental miscarriage of justice.'” Harris, 489 U.S. at 262 (quoting Murray v. Carrier, 477 U.S. 478, 485, 495 (1986)).
C. AEDPA Standard of Review
When a federal court reaches the merits of a habeas petition, AEDPA prescribes a “highly deferential” standard for reviewing state court rulings. Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997); see also Fischer v. Smith, 780 F.3d 556, 561 (2d Cir. 2015). An application for a writ of habeas corpus:
shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d)(1)-(2).
Courts have interpreted the phrase “adjudicated on the merits” in AEDPA as meaning that a state court “(1) dispose[d] of the claim on the merits, and (2) reduce[d] its disposition to judgment.” Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001) (internal quotations omitted). Courts examine the “last reasoned decision” by the state courts in determining whether a federal claim was adjudicated on the merits. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (“Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.”).
If a state court adjudicates a federal claim on the merits, the Court must apply AEDPA deference to that state court ruling. 28 U.S.C. § 2254(d)(1)-(2). In the context of AEDPA deference, the phrase “clearly established Federal law” means “the holdings, as opposed to the dicta, of [the Supreme Court of the United States'] decisions as of the time of the relevant statecourt decision.” Williams v. Taylor, 529 U.S. 362, 365 (2000). “A state court decision is contrary to such clearly established federal law if it ‘applies a rule that contradicts the governing law set forth in the Supreme Court's cases' 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 result different from its precedent.'” Lewis v. Conn. Comm'r of Corr., 790 F.3d 109, 121 (2d Cir. 2015) (quoting Boyette v. Lefevre, 246 F.3d 76, 90 (2d Cir. 2001)). A state court decision involves an “unreasonable application” of Supreme Court precedent if: (1) “the state court identifies the correct governing legal rule from [Supreme Court] cases but unreasonably applies it to the facts of the particular state prisoner's case,” or (2) “the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Williams, 529 U.S. at 407.
If, by contrast, a state court does not adjudicate a federal claim on the merits, “AEDPA deference is not required . . . [and] conclusions of law and mixed findings of fact and conclusions of law are reviewed de novo.” DeBerry v. Portuondo, 403 F.3d 57, 66-67 (2d Cir. 2005).
For a federal court to find a state court's application of Supreme Court precedent unreasonable, the state court's decision must have been more than “incorrect or erroneous” -- it must have been “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003). In other words, “[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of [the state court's] decision.” Richter, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 665 (2004)). However, “the trial court's decision need not teeter on ‘judicial incompetence' to warrant relief under § 2254(d).” Alvarez v. Ercole, 763 F.3d 223, 229 (2d Cir. 2014) (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)). If a state court decision does not contain reasons for the dismissal of a defendant's federal claim, the Court must “consider ‘what arguments or theories . . . could have supported[] the state court's decision,' and may grant habeas only if ‘fairminded jurists could [not] disagree that those arguments or theories are inconsistent with the holding in a prior decision of' the Supreme Court.” Lynch v. Superintendent Dolce, 789 F.3d 303, 311 (2d Cir. 2015) (alterations in original) (quoting Richter, 562 U.S. at 102).
When reviewing an application for a writ of habeas corpus, “a determination of a factual issue made by a State court shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). The petitioner has the burden of rebutting the state court's factual holding by “clear and convincing evidence.” Id.; see also Chapman v. Vanzandt, No. 96 CIV. 6940 (JGK), 1997 WL 375668, at *4 (S.D.N.Y. July 8, 1997).
III. DISCUSSION
Construing the Amended Petition broadly, see Williams v. Kullman, 722 F.2d 1048, 1051 (2d Cir. 1983) (holding that pleading requirements in habeas proceedings should not be “overly technical and stringent”), Petitioner asserts four claims: (1) the trial court improperly allowed the State to introduce photographs of the victim's body into evidence, depriving him of a fair trial and violating his right to due process; (2) evidence of Petitioner's identification through a photo array should have been excluded since the photo array was unduly suggestive; (3) the trial court should not have allowed the State to introduce text messages from Petitioner's phone into evidence as they were not properly authenticated; and (4) the grand jury proceedings were defective and Petitioner's pre-trial motion to dismiss should have been granted as a result. (Docket No. 5 at 7-15). The Court addresses each of these claims in turn.
A. Photographs of the Victim's Body
Petitioner's first argument is that the trial court violated his right to due process of law under the Fourteenth Amendment by allowing the State to introduce photographs of Mr. Medina's dead body into evidence at trial. (Docket No. 5 at 7). He claims that the photographs were “unduly prejudicial” as there was no “dispute [as to] the cause of death and the manner of death.” Id. In support of this argument, Petitioner attached a portion of his Third Department appellate brief in which he argues that the photographs were intended merely to “inflame[] the jury's passions.” (Id. at 53). In response, the State argues that this claim is not cognizable on habeas review as “[i]t is well-established that state evidentiary rulings generally do not implicate the federal constitution,” and that even if the Sullivan County Court's ruling was in error, it was not “egregious” enough “to implicate the Fourteenth Amendment's guarantee of due process.” (Docket No. 10-1 at 23) (internal quotations omitted).
Generally, federal habeas review is not available for evidentiary rulings made by a trial court pursuant to the laws of the state the court resides. See Vega v. Walsh, 669 F.3d 123, 126 (2d Cir. 2012) (“state trial court evidentiary rulings generally are not a basis for habeas relief.”) “When a state court has decided a case [or issue] on an independent and adequate state ground- whether substantive or procedural,” federal courts may not disturb that decision. Garraway v. Phillips, 591 F.3d 72, 75 (2d Cir. 2010). “In reviewing a state court's evidentiary ruling in the context of a habeas petition, ‘[t]he first step ... is to determine whether the state court decision violated a state evidentiary rule, because the proper application of a presumptively constitutional state evidentiary rule would not be unconstitutional.'” Hayes v. Lee, No. 10 Civ. 5134 (PGG)(RLE), 2013 WL 4008638, at *6 (S.D.N.Y. July 30, 2013) (quoting Green v. Herbert, No. 01 Civ. 11881 (SHS), 2002 WL 1587133, at *12 (S.D.N.Y. July 18, 2002)). If the Court finds that the trial court's decision violated state law, it must then evaluate whether the “evidentiary error amounted to a deprivation of due process” that was “so pervasive as to have denied [Petitioner] a fundamentally fair trial.” Barrett v. Ricks, No. 00-CV-4636 (JBW), 2003 WL 22284164, at *7 (E.D.N.Y. Aug. 20, 2003).
Under New York law, “[t]he general rule with respect to photographs of a victim's deceased body is that they ‘are admissible if they tend to prove or disprove a disputed or material issue, to illustrate or elucidate other relevant evidence, or to corroborate or disprove some other evidence offered . . . [and] should be excluded only if their sole purpose is to arouse the emotions of the jury and to prejudice the defendant'” See People v. Poulin, 71 N.Y.S.3d 227, 230 (3d Dep't 2018) (quoting People v. Wood, 582 N.Y.S.2d 992, 993 (N.Y. 1992)). Here, the State introduced photographs of Mr. Medina's body at trial to establish Petitioner's intent to commit murder and reckless endangerment under New York law. To prove that Petitioner committed Murder in the Second Degree, the State needed to establish that he acted with “intent to cause the death of another person.” N.Y. Penal Law § 125.25. To prove that Petitioner committed Reckless Endangerment in the First Degree, the state needed to establish that he acted with “a depraved indifference to human life” and “recklessly engage[d] in conduct which create[d] a grave risk of death to another person.” Id. at § 120.25.
The photographs supported the elements necessary to prove both crimes. They showed that Mr. Medina had been shot, not only in his chest, but also in his “flank and buttocks.” (Docket No. 10-1 at 26). This evidence: (1) confirmed that Petitioner intended to kill Mr. Medina by continuing to fire even after Mr. Medina turned away from him; and (2) corroborated the testimony of a neighbor who was present the night of the shooting with her child and testified that the injuries to Mr. Medina's backside occurred when he went to move the child out of Petitioner's line of fire. (Docket No. 10-1 at 26). The State argued that continuing to shoot at Mr. Medina in the presence of a child, and while Mr. Medina was trying to save that child, showed that Petitioner acted recklessly and with “depraved indifference to human life.” N.Y. Penal Law § 120.25. Therefore, allowing the State to introduce the photographs to prove intent was a permissible evidentiary ruling under state law and is not eligible for federal habeas relief.
Petitioner's argument that the photographs were unnecessary since he “did not challenge the manner of death . . . or the element of intent” and that his only defense “was misidentification” is unpersuasive. (Docket No. 5 at 52). Regardless of whether Petitioner was contesting the manner of Mr. Medina's death, the State was required to prove the essential elements of the crimes charged beyond a reasonable doubt. See, e.g., People v. Rivera, 622 N.Y.S.2d 671, 674 (N.Y. 1995) (“Before the defendant could be convicted [of the charges in the Indictment], the People were required to prove every element of the indicted crime.”). Therefore, the Sullivan County Court's decision to admit the photographs into evidence to establish Petitioner's intent to commit murder, as well as to corroborate testimony that he put the life of a child in immediate danger, was correct even if the defense was not contesting the manner of Mr. Medina's death.
Finally, even assuming, arguendo, that the Sullivan County Court's evidentiary decision was wrong, and that the photographs should not have been admitted, the claim does not warrant habeas relief. “[A]n erroneous state evidentiary ruling that is asserted to be a constitutional violation will merit habeas relief only where [the] petitioner can show that the error deprived [him] of a fundamentally fair trial.” Harris v. Woods, No. 05 Civ. 5582 (PAC)(AJP), 2006 WL 1140888, at *37 (S.D.N.Y. May 1, 2006) (emphasis in original) (citations and internal quotations omitted), report and recommendation adopted, 2006 WL 1975990 (S.D.N.Y. July 10, 2006). That is not the case here, since: (1) defense counsel was able to cross-examine witnesses that testified to the contents of the photographs and the events surrounding Mr. Medina's death; (2) the trial court ordered that the photographs be redacted to “crop out the portions” that showed “the victim's open eyes and bloody head, which the court deemed to be gory” before they were introduced into evidence; and (3) they were material to the State's burden of proving the elements of the crimes in the Indictment. (Docket No. 10-1 at 26). Thus, Petitioner was not deprived of a fundamentally fair trial.
Accordingly, I respectfully recommend denying Petitioner's claim that his Fourteenth Amendment right to a fair trial and due process of law was violated when the Sullivan County Court admitted photographs of the victim's body into evidence at trial.
B. The Photo Array
Petitioner next argues that the photo array used to identify him prior to trial was unduly suggestive, and that the trial court's decision to allow a witness to testify as to her previous identification of Petitioner from that photo array violated his right to due process of law under the Fourteenth Amendment. (Docket No. 5 at 10). He contends that the photo array was suggestive because: (i) “[o]nly petitioner and other one [sic] array member were wearing orange,” and this could have been interpreted as a “prison jump suit;” and (ii) “through [sic] all array members had neck tattoos[] only the petitioner's tatto [sic] had lettering.” (Id.). In response, the State claims that: (i) the “double blind” procedure used was not unduly suggestive; (ii) the trial court properly applied Supreme Court precedent in allowing the identification to be introduced at trial through Ms. Colton's testimony; and (iii) even if the trial court's decision was wrong, the error was harmless since numerous other witnesses also identified Petitioner as the perpetrator. (Docket No. 10-1 at 17-20).
As a threshold matter, the trial court's decision to deny Petitioner's motion was a ruling on the merits and, thus, is entitled to AEDPA deference. 28 U.S.C. § 2254(d)(1)-(2). At a pretrial suppression hearing the Sullivan County Court held that the photo array was “not unduly suggestive or in any way a violation of the defendant's constitutional rights,” since Petitioner was not the only individual in orange clothing in the photo array, nor the only individual with a neck tattoo. (Docket No. 12 at 71-74). The Third Department affirmed this ruling, holding that: (i) “nothing about defendant's tattoo was likely to unduly draw the viewer's attention to his photo;” (ii) Petitioner's “shirt color would not link [him] to the crimes;” (iii) “it was not discernable from the photos whether either of the men in orange or red is wearing a jail jumpsuit;” and (iv) “there is no indication in the record that the neighbor relied on the clothing of the perpetrator in making her identification, which she made quickly and without hesitation.” Serrano, 103 N.Y.S.3d at 652. Thus, the decision to deny Petitioner's motion to suppress evidence of Ms. Colton's identification of him was made on the merits, and is entitled to AEDPA deference. Under AEDPA, deference “stops short of imposing a complete bar on federal-court relitigation of claims already rejected in state proceedings,” but only allows a writ to be issued “where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents.” Richter, 562 U.S. at 102.
To resolve Petitioner's claim, the Court must “determine whether the state court's decision constituted an unreasonable application of clearly established federal law” or an “unreasonable determination of the facts in light of the evidence.” Brisco v. Ercole, 565 F.3d 80, 88 (2d Cir. 2009). “In order to evaluate whether out-of-court identification procedures were constitutionally permissible, a court must first determine ‘whether the pretrial identification procedures unduly and unnecessarily suggested that the defendant was the perpetrator.'” Mitchell v. Lempke, No. 10-CV-1696 (JG), 2010 WL 3937306, at *6 (E.D.N.Y. Oct. 4, 2010) (quoting Raheem v. Kelly, 257 F.3d 122, 123 (2d Cir. 2001)); see also Simmons v. United States, 390 U.S. 377, 384 (1968). To determine whether a photo array is unduly suggestive, the Court must consider “whether the picture of the accused, matching descriptions given by the witness, so stood out from all of the other photographs as to suggest to an identifying witness that [that person] was more likely to be the culprit.” United States v. Maldonado-Rivera, 922 F.2d 934, 974 (2d Cir. 1990) (internal quotation marks omitted). “If the procedures were unduly suggestive, then the court must determine whether the witness's identification was independently reliable.” Mitchell, 2010 WL 3937306, at *6. Independent reliability requires an examination of the five factors set forth by the Supreme Court in Neil v. Biggers, 409 U.S. 188 (1972), including:
the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.Id. at 199-200. However, this list is not exhaustive and “the question of independent reliability must be assessed in light of the totality of the circumstances.” Raheem, 257 F.3d at 135. Indeed, even if the witness's identification was not independently reliable, the trial court's decision to allow the witness's testimony still may not warrant habeas relief as “[t]he Second Circuit has held that an improper identification procedure may be harmless error if the weight of the other evidence would still substantially support the conviction.” Walker v. Brown, No. 08-CV-1254 (BMC), 2009 WL 2030618, at *6 (E.D.N.Y. July 10, 2009).
First, Petitioner's photo array was not unduly suggestive. The photo array contained images of six male individuals, who were around the same age as Petitioner, with similar hair styles, hair color, eye color, facial hair and facial expressions. (Docket No. 10-1 at 13). Two of the six individuals wore black clothing, two wore white clothing, and two (including Petitioner) wore orange clothing. (Id.). All of the individuals had neck tattoos, one of them had a lettered tattoo on the side of his neck and one had a tattoo with lettering “within a drawing on the front of his neck.” (Id.). Since “[i]t is not required [] that all of the photographs in the array be uniform with respect to a given characteristic,” Petitioner's claim that the photo array was unduly suggestive is erroneous. Jarrett v. Headley, 802 F.2d 34 , 41 (2d Cir. 1986); accord Dailey v. Graham, No. 12-CV-6034 (ERK), 2015 WL 4872560, at *7-8 (E.D.N.Y. Aug. 13, 2015) (denying claim that photo array was suggestive where habeas petitioner was the only individual in an orange shirt since unanimity of appearance is not required and AEDPA requires the reviewing court to give “great deference” to the trial court's factual determinations) (citations and internal quotations omitted); United States v. Loyd, No. 19-CR-6186 (CJS), 2020 WL 2027003, at *10 (W.D.N.Y. Apr. 28, 2020) (denying claim that photo array was suggestive where habeas petitioner was the only individual with dreadlocks covering part of his face where other individuals also had dreadlocks of varying lengths), report and recommendation adopted, 2020 WL 4754472 (W.D.N.Y. Aug. 17, 2020). Moreover, Petitioner was not wearing orange clothing the night of the shooting. He was wearing a black shirt, just as two other individuals wore in the photo array. Thus, his shirt color would not have tied him to the crime in any event. United States v. Wong, 40 F.3d 1347, 1359 (2d Cir. 1994) (“[w]hen the appearance of participants in a lineup is not uniform . . . the principal question in determining suggestiveness is whether the appearance of the accused, matching descriptions given by the witness, so stood out from all of the others as to suggest to an identifying witness that [that person] was more likely to be the culprit”) (citations and internal quotations omitted) (cleaned up).
Second, even if the photo array was unduly suggestive, Ms. Colton's identification of Petitioner was still independently reliable under the factors established in Biggers. Specifically, she: (1) was present on the front porch on the night of the shooting, (Docket No. 10-1 at 8); (2) had “recognized petitioner as one of the people inside the car” that had driven by the apartment building numerous times that night, (Id.); (3) was certain that the individual she identified in the photo array was Petitioner, (Id. at 13) (“she made [the identification] quickly and without hesitation); and (4) was presented with the photo array on July 30, 2016-only one month after the shooting, (Id. at 5). Thus, the Biggers factors, when considered together, support the independent reliability of Ms. Colton's identification of Petitioner in the photo array and subsequently at trial. See, e.g., Parker v. Lee, 1:18-cv-10400 (GBD)(SDA), 2020 WL 13568020, at *8 (S.D.N.Y. Mar. 11, 2020) (holding that a witness's identification was independently reliable where he had seen the perpetrator previously and was “was absolutely certain that the person” in the photo was the same individual) (internal quotation omitted), report and recommendation adopted, 2022 WL 7164257 (S.D.N.Y. Sept. 29, 2022); Graham, 2015 WL 4872560, at *8 (holding that “there was sufficient reliability” even if the photo array was unduly suggestive where the witnesses “knew petitioner before the shooting” and “identified the petitioner immediately from the photo array”); Lempke, 2010 WL 3937306, at *7 (same).
Third, to the extent that the photo array was unduly suggestive and Ms. Colton's identification of Petitioner in the array was not independently reliable, the trial court's decision to allow her testimony was harmless since “the weight of the other evidence [] still substantially support[ed] the conviction.” Brown, 2009 WL 2030618, at *6. For example, Ms. Colton was not the only witness that identified Petitioner as the perpetrator. Ms. Irizarry, Petitioner's estranged wife, who saw the shooting from inside her apartment, also identified him as the perpetrator. (Docket No. 10-1 at 20). In addition, Petitioner: (1) was captured on video shortly before the shooting wearing the same clothing that numerous witnesses described the perpetrator as wearing the night of the crime; (2) matched the physical description given by the second neighbor (not Ms. Colton) present the night of the shooting; (3) asked Mr. Medina if his wife and son were in the apartment before he began firing; and (4) left his phone in a vehicle owned by his girlfriend, which matched descriptions of the vehicle he used the night of the shooting. (Id.). Therefore, “any error in admitting the identification evidence was harmless and would not warrant disturbing petitioner's conviction.” Hornedo v. Artus, No. 04-CV-3201 (NGG)(RLM), 2008 WL 346360, at *17 (E.D.N.Y. Feb. 6, 2008) (holding that “[t]he prosecution presented ample circumstantial evidence connecting petitioner to the crime[,]” which meant that “the in-court identifications and lineup evidence were not crucial to the jury's verdict.”).
Accordingly, I conclude and respectfully recommend denying Petitioner's claim that his Fourteenth Amendment due process rights were violated when the trial court allowed a witness to testify to her previous identification of him from an allegedly unduly suggestive photo array.
C. Messages Recovered from Petitioner's Cell Phone
Petitioner argues that the Sullivan County Court violated his constitutional right to due process under the Fourteenth Amendment by admitting Facebook and text messages from his cell phone into evidence at trial. (Docket No. 5 at 12). According to Petitioner, “[n]o sufficient foundation was laid for that evidence” and the trial court should not have allowed Ms. Irizarry “to testify to electronic communications she had purportedly with Petitioner” since there was “no way to really know who made those calls, who made those texts and to authenticate who it was . . . [and] [t]hat a text or phone call comes from a particular phone [] dose [sic] not, in itself, identify the particular person who sent the message or made the unanswered call.” (Id.). The State counters that this claim is: (1) unexhausted and procedurally barred from habeas review “because petitioner did not raise the claim in federal constitutional terms on direct appeal;” (2) not cognizable since “state evidentiary rulings generally do not implicate the federal constitution;” and (3) entirely meritless because numerous witnesses tied Petitioner to the cell phone, which was “locked with a passcode” that only Petitioner knew. (Id. at 23-25).
The State is correct that Petitioner's claim is unexhausted. Federal courts may not entertain claims or defenses in habeas petitions if they were not previously presented, and exhausted, in state court. “This Court has long held that a state prisoner's federal habeas petition should be dismissed if the prisoner has not exhausted available state remedies as to any of his federal claims.” Coleman, 501 U.S. at 731. To present a federal claim for review in state court, the petitioner must specify “the factual and legal premises for his federal claim to the appropriate state courts.” Acosta v. Artuz, 575 F.3d 177, 185 (2d Cir. 2009). When a petitioner's unexhausted federal claim can no longer be presented in state court because it is procedurally barred, federal courts may deem the claim exhausted for purposes of habeas review. Coleman, 501 U.S. at 732 (“a habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance . . . [and] meets the technical requirements for exhaustion”); see also Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001) (“when ‘the 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 claims procedurally defaulted”) (quoting Coleman, 501 U.S. at 735 n.1).
Here, Petitioner did not cite to the U.S. Constitution or federal case law when appealing his conviction to the Third Department. His argument was that the trial court's admission of the text messages and Ms. Irizarry's testimony was a “non-constitutional error” that required reversal. (Docket No. 11 at 151). Whereas other sections of Petitioner's appellate brief explicitly reference the “Federal Constitution” in the header, this claim did not. (Compare id. at 149 with id. at 139, 143). Indeed, his application for leave to appeal the Third Department's decision to the Court of Appeals is devoid of any reference to the U.S. Constitution or federal law for this claim. (Docket No. 11-2 at 57). Since Petitioner cannot go back to state court to raise this claim now because New York only allows defendants a single appeal from conviction, N.Y. C.P.L. § 450.10, and record-based collateral appeals are not permitted, N.Y. C.P.L. § 440.10, the claim must be deemed exhausted, and procedurally barred from further review. “When a claim is in that posture, it . . . cannot be heard on federal habeas corpus review.” Ortiz v. Bradt, No. 13 CIV. 5420 (BMC), 2013 WL 5775695, at *6 (E.D.N.Y. Oct. 25, 2013). The only way Petitioner can overcome this procedural default is to show: (1) cause for the default and prejudice therefrom; or (2) actual innocence such that refusal to consider the defaulted claim will result in a miscarriage of justice. Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011) (“An applicant seeking habeas relief may escape dismissal of the merits of a procedurally defaulted claim only by demonstrating cause for the default and prejudice or by showing that he is actually innocent of the crime for which he was convicted”) (internal quotations omitted); Reese v. Alexander, 37 Fed.Appx. 5, 8 (2d Cir. 2002) (same). This is an exacting standard that Petitioner cannot meet.
Petitioner does not argue or show cause for failing to alert the state appellate courts to the federal constitutional nature of his claim, therefore, the Court need not analyze whether Petitioner would be prejudiced by the Court's refusal to consider it. Levine v. Comm'r of Corr.Servs., 44 F.3d 121, 127 (2d Cir. 1995) (“Since [petitioner] has failed to show cause, there is no need to address the prejudice requirement, and federal habeas review . . . is unavailable”); Frazier v. United States, Nos. 19-CV-8738 (CS), 17-CR-364-7 (CS), 2021 WL 111638, at *3 n.6 (S.D.N.Y. Jan. 12, 2021) (“[a]s there is no showing of cause, I need not address prejudice”). However, even if Petitioner had shown cause for the default, he could not show prejudice as his claim is not cognizable on federal habeas review and lacks merit.
As explained previously, supra Section III.A, federal habeas review is not available for state trial court evidentiary rulings. See Walsh, 669 F.3d at 126 (“state trial court evidentiary rulings generally are not a basis for habeas relief.”). “When a state court has decided a case [or issue] on an independent and adequate state ground-whether substantive or procedural,” federal courts may not disturb that decision. Phillips, 591 F.3d at 75. Under New York law, “[a] recorded conversation-such as a printed copy of the content of a set of cell phone instant messages-may be authenticated through, among other methods, the testimony of a participant in the conversation ....” People v. Shortell, 66 N.Y.S.3d 69, 73 (3d Dep't 2017); People v. Legrand, 149 N.Y.S.3d 206, 210 (2d Dep't 2021) (holding that “postings and photographs from a social media account” were admissible where “[t]he People presented sufficient evidence that the subject social media accounts belonged to and were controlled by the defendant, and that the photographs admitted into evidence were accurate representations of what was posted on the social media accounts.”).
Here, the State presented sufficient evidence to support the trial court's decision to admit Petitioner's text and social media messages into evidence, including testimony from: (1) Ms. Irizarry, establishing that the number associated with the cell phone belonged to Petitioner; (2) Petitioner's girlfriend verifying the same thing, and identifying Petitioner's social media account where some of the messages were recovered from; and (3) an officer, stating that the cell phone data came from a phone police retrieved from Petitioner's vehicle, at his direction. (Docket No. 10-1 at 9-12, 24-25). Thus, the trial court's ruling allowing this evidence to be admitted at trial was not in error and does not warrant habeas relief. Further, Petitioner's argument that the messages recovered from his phone could have been sent by anyone lacks merit. The State presented evidence, through testimony from a computer forensic technician, that Petitioner's phone was secured by a passcode, making it unlikely that anyone other than Petitioner could have accessed it. (Id. at 11-12, 25). Regardless, under New York law, this argument goes to the weight of the evidence, which is an issue for the jury to decide, rather than admissibility. See People v. Tucker, 159 N.Y.S.3d 283, 286 (4th Dep't 2021) (“To the extent that defendant contends that the text messages were not properly authenticated because the People did not establish whether he or the codefendant actually authored the text messages . . . we conclude that the likelihood of that scenario goes to the weight to be accorded the evidence, not its admissibility, and therefore presented a factual issue for the jury to resolve”); People v. Hughes, 981 N.Y.S.2d 158, 162 (3d Dep't 2014) (same).
Finally, Petitioner has failed to demonstrate actual innocence or that application of the procedural default would result in a miscarriage of justice. This is a “heavy burden” that only applies in “extraordinary cases,” requiring presentation of new evidence establishing, by a preponderance of the evidence, that no reasonable juror would have found defendant guilty under the circumstances. Calderon v. Perez, No. 10 Civ. 2562 (GBD)(AJP), 2011 WL 293709, at *21 (S.D.N.Y. Jan. 28, 2011) (citations and internal quotations omitted). Petitioner has not presented any new evidence that the text messages did not come from his cell phone and social media account, or that they were drafted and sent by someone else.
Accordingly, I conclude and respectfully recommend denying Petitioner's claim that the trial court violated his right to due process of law by admitting Facebook and text messages from his cell phone into evidence at trial.
D. Petitioner's Grand Jury Claim
Petitioner's final claim is that the grand jury proceedings against him were defective and the Sullivan County Court's denial of his motion to dismiss the Indictment on this basis was “an unreasonable application of law, and or [sic] was contrary to the United States Supreme Court Holdings.” (Docket No. 5 at 15). Petitioner argues that he “asked the state court to examine the grand jury minutes to determine” if the prosecutor inappropriately vouched “for the credibility of any witness” or improperly instructed the grand jury “with regard to who decides the legal sufficiency of the evidence.” (Id.). The State counters that “challenges to grand jury proceedings are not cognizable on federal habeas review” and “any defect in the grand jury proceeding was cured by his conviction at trial.” (Id. at 27). The Court agrees.
First, Petitioner's grand jury claim is not cognizable on habeas review. It is well-settled that the Fifth Amendment's right to indictment by a grand jury is not applicable to the states as it has never been incorporated through the Fourteenth Amendment. Alexander v. Louisiana, 405 U.S. 625, 633 (1972) (“Although the Due Process Clause guarantees petitioner a fair trial, it does not require the States to observe the Fifth Amendment's provision for presentment or indictment by a grand jury”); Fields v. Soloff, 920 F.2d 1114, 1118 (2d Cir. 1990) (“[t]he Fifth Amendment right to indictment by a grand jury was not incorporated by the Due Process Clause of the Fourteenth Amendment, and, accordingly, does not pertain to the states.”). While it is true that New York's constitution adopts the federal grand jury right, N.Y. Const. art. I, § 6, the State's alleged failure to abide by “this does not state a federal constitutional claim cognizable on habeas review” because “state law governs how these proceedings are to be conducted and creates the remedies for any procedural violations.” Swail v. Hunt, 742 F.Supp.2d 352, 362 (W.D.N.Y. 2010) (“[A]ny alleged impropriety in petitioner's grand jury proceeding arises out of state law and cannot form the basis for federal habeas relief”) (internal quotations omitted). Therefore, Petitioner's claim that the grand jury proceedings were defective is not cognizable on habeas review and must be rejected. Price v. Grenier, No. 98 Civ. 2601 (LTS)(MHD), 2003 WL 22890404, at *5-6 (S.D.N.Y. Oct. 16, 2003) (holding that even if the appellate “decision [on Petitioner's due process claim] constituted error . . . this error would be purely one of state law” and “cannot form the basis for federal habeas relief.”).
Second, even if Petitioner's grand jury claim was cognizable, it would fail since Petitioner was convicted after a jury trial. As a result, “any error that may have occurred is rendered harmless by [his] subsequent conviction in a criminal trial.” Carrino v. Lee, No. 21 Civ. 5909 (VB)(PED), 2023 WL 4304799, at *18 (S.D.N.Y. Jan. 31, 2023), report and recommendation adopted sub nom. Carrino v. Eckert, 2023 WL 4296182 (S.D.N.Y. June 30, 2023); see also Sain v. Capra, No. 15 Civ. 5315 (CSA)(EK), 2021 WL 6808294, at *8 (S.D.N.Y. Aug. 19, 2021) (“any alleged error before the grand jury is rendered harmless by a conviction of a defendant at his or her criminal trial”), report and recommendation adopted, 2022 WL 203180 (S.D.N.Y. Jan. 24, 2022); Webb v. LaClair, No. 10 Civ. 7603 (PGG)(HBP), 2014 WL 4953559, at *6 (S.D.N.Y. Sept. 30, 2014) (same).
Accordingly, I conclude and respectfully recommend denying Petitioner's claim that the Indictment in this case should have been dismissed due to defective grand jury proceedings.
IV. CONCLUSION
For the foregoing reasons, I conclude and respectfully recommend that the Amended Petition be denied. 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).
The Clerk of Court is requested to mail a copy of this Report and Recommendation to the pro se Petitioner at the address listed on the docket, as well as to Clinton Correctional Facility, 1156 Route 374, P.O. Box 2001, Dannemora, New York 12929, which is the facility that the New York State Department of Corrections and Community Supervision lists as his current residence.
Incarcerated Lookup, New York State Department of Corrections and Community Supervision, https://nysdoccslookup.doccsny.gov/ (last visited December 20, 2023).
V. NOTICE
Pursuant to 28 U.S.C. § 636(b)(1)(C) 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 the receipt 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 seventeen (17) days from receipt of the same to file and serve written objections. See Fed.R.Civ.P. 6(d). Objections and responses to objections, if any, shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Philip M. Halpern at the United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Requests for extensions of time to file objections must be made to the Honorable Philip M. Halpern and not to the undersigned. Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be rendered. See 28 U.S.C. § 636(b)(1); Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008).
RESPECTFULLY SUBMITTED,