Opinion
9:18-CV-00526 (TJM/CFH)
05-14-2024
RICARDO ZAYAS-TORRES, Petitioner, v. DANIEL MARTUSCELLO, Respondent.
APPEARANCES: Ricardo Zayas-Torres Petitioner pro se OF COUNSEL: PRISCILLA I. STEWARD, ESQ. Assistant Attorney General Attorney General for the State of New York Attorney for Respondent
APPEARANCES:
Ricardo Zayas-Torres
Petitioner pro se
OF COUNSEL:
PRISCILLA I. STEWARD, ESQ.
Assistant Attorney General
Attorney General for the State of New York
Attorney for Respondent
REPORT-RECOMMENDATION AND ORDER
This matter was referred to the undersigned for Report-Recommendation and Order pursuant to 28 U.S.C. § 636(b) and N.D.N.Y. L.R. 72.3(c).
CHRISTIAN F. HUMMEL, U.S. MAGISTRATE JUDGE
Presently pending before the Court is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by pro se petitioner Ricardo Zayas-Torres (“petitioner”). See Dkt. No. 1 (“Pet.”). In October 2012, following a jury trial in the Albany County Supreme Court, petitioner was convicted of three counts of burglary in the second degree in violation of N.Y. Penal Law § 140.25(2), and one count of criminal possession of stolen property in the third degree in violation of N.Y. Penal Law § 165.50. See Pet. at 6-7; see also People v. Zayas-Torres, 40 N.Y.S.3d 599, 601 (App. Div. 2016). Petitioner was sentenced to fourteen years of imprisonment followed by five years of post-release supervision. See Pet. at 1; see also Zayas-Torres, 40 N.Y.S.3d at 601.
Petitioner now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on grounds that (1) his statements to the police were involuntarily made and should have been suppressed; (2) the evidence seized pursuant to the search warrant should have been suppressed because the warrant was not supported by probable cause; (3) the evidence was legally insufficient to support his convictions and the jury's verdict was against the weight of the evidence; and (4) his trial counsel was ineffective. See Pet. at 2-5, 27-33. Respondent opposed the petition. See Dkt. No. 11. Petitioner filed a traverse. See Dkt. No. 15. For the reasons that follow, it is recommended that the petition be denied.
Citations to the record are to the pagination generated by CM/ECF, located at the top of each page.
The undersigned summarizes only the procedural history that is relevant to this Court's review of the habeas petition.
A. The Prosecution's Case
On December 24, 2011, Gerald Masilang lived at 518 Washington Avenue in Albany, New York, in an apartment above a barbershop. See Dkt. No. 12-3 at 431-32. He left at around 1:00 A.M., but returned to his residence at around 9:30 P.M. on December 25, 2011. See id. at 433. Upon his return, he noticed that someone ransacked his apartment and stole various items, including his TV, laptop, clothes, sneakers, pots and pans, DVDs, and a pair of Louis Vuitton sunglasses. See Id. at 436-37. Someone also broke into the barbershop below Masilang's apartment, cut the wires to several electronic hair cutting devices, and stole several hair trimmers and clippers. See id. at 441; see also Dkt. No. 15-1 at 3. In the evening hours of December 25, 2011, Officer Steven Silver arrived at 518 Washington Avenue to take a report of the burglary. See Dkt. No. 12-3 at 470. The owner of the barbershop said he suspected someone he knew as “Ricky” to be responsible for the burglaries, due to an ongoing disagreement between “Ricky” and several of the barbershop employees. See Dkt. 12 at 19.
On December 25, 2011, Ashley Pulluain and Sheldon Lee resided at 166 Western Avenue in Albany, New York. See Dkt. No. 12-3 at 401. That day, at around 12:00 P.M., they left their apartment to go to Utica, New York, and they returned to their apartment at around 11:00 P.M. See id. at 402-03. Upon their return, they realized that their residence had been broken into and they were missing their TV, laptop, Play Station 3, speakers, cologne, and a new camera that Pulluain had just received as a Christmas gift. See id. at 404-08. They called the police, and Officer Christopher Carriero responded to their call at around 11:17 P.M. See id. at 405, 479.
A few weeks later, petitioner approached Joanna Hetman and asked her to sell a pair of Louis Vuitton sunglasses for him on commission. See Dkt. No. 12-4 at 39. Hetman had previously met petitioner because she lived less than a block away, at 359 Washington Avenue in Albany, New York, from the thrift store where petitioner worked. See id. at 34-35. Hetman regularly bought and sold antiques and jewelry, so she initially agreed to sell the sunglasses for petitioner. See id. at 40; see also Zayas-Torres, 40 N.Y.S.3d at 601. In petitioner's presence, she placed the sunglasses in a safe in her apartment and gave petitioner a receipt; however, she later called off the transaction and returned the sunglasses to petitioner. See Dkt. No. 12-4 at 43-46, 96; see also Zayas-Torres, 40 N.Y.S.3d at 601.
Petitioner called Hector Cuevas early in the day on January 21, 2012, to tell him that he was going to break into Hetman's residence that evening. See Dkt. No. 12-4 at 146. Cuevas owned the thrift shop near Hetman's apartment, at 115 Lexington Avenue in Albany, New York, where he sold used items, such as antiques, TVs, gaming consoles, radios, computers, clothes, and did business with petitioner. See id. at 136-37, 140. Cuevas also did business with Hetman, where she would take items from the store, put it on eBay, and then come back and pay him. See id. at 144.
The record reflects that Hector Cuevas is also known as “Carlos,” “Carlito,” and “Hector Colon.” See, e.g., Dkt. No. 12-4 at 153, 174-75, 284.
Cuevas testified that he knew petitioner by the name of “Rick” because petitioner regularly came into the store. See Dkt. No. 12-4 at 200. Cuevas testified that, at some point prior to Christmas of 2011, petitioner “walked into the store and asked [Cuevas] if [he] buy[s] stuff.” Id. at 138-39. Cuevas responded, “Yes, as long as they're not stolen.” Id. at 140. Following that exchange, Cuevas would take trips to petitioner's house to look at some items that petitioner wanted to sell, and once the items were sold in the store, Cuevas would pay petitioner a percentage of the proceeds. See id. at 140-43.
On January 21, 2012, Hetman left for a friend's house and returned home at around 10:00 P.M. See Dkt. No. 12-4 at 30-31. When she returned, she noticed that the window was shattered in her living room; her safe was broken into; and that she was missing jewelry; including gold, bracelets, her grandmother's bracelet, a garnet ring; as well as her grandfather's pipe. See id. at 31-33. That evening, Officer Ryan Moore responded to her call regarding the burglary, and Hetman showed Officer Moore the different areas of the apartment where items were missing. See Dkt. No. 12-3 at 463-65. Hetman believed over 200 items were stolen. See Dkt. No. 12-4 at 56.
The following day, on January 22, 2012, Cuevas reported to the police that petitioner had broken into Hetman's apartment and stole the jewelry. See Zayas-Torres, 40 N.Y.S.3d at 601. On January 24, 2012, at around 2:00 P.M., Detective William Van Amburgh and Detective Michael Bennett picked petitioner up and took him to the Detective's Office. See Dkt. No. 12-3 at 39-41. They read petitioner his Miranda warnings, petitioner acknowledged that he understood his rights, and they interviewed petitioner for about an hour. See id. at 22, 29-30; see also Dkt. No. 12-4 at 214. Detective Van Amburgh, Detective Bennett, and Detective John Coleman then executed a search warrant at petitioner's residence, 159 Western Avenue in Albany, New York, where they recovered some of the stolen items. See Dkt. No. 12-4 at 131, 206-07. The detectives then returned to the Office to finish interviewing petitioner, and petitioner eventually admitted “that he had taken property from two of the apartments and had assisted another individual in taking property from the third apartment.” Zayas-Torres, 40 N.Y.S.3d at 601; see Dkt. No. 12-4 at 240; see also Dkt No. 11-1 at 12-13. These oral statements were videotaped. See Dkt. No. 12-4 at 398.
The affidavit accompanying the search warrant application provides that Detective Van Amburgh and Detective Bennett interviewed Cuevas, and “[d]uring that interview, [Cuevas] provided information about some property that [petitioner] sold him and attempted to sell him. He listed in detail[ ] about TVs, laptop computers and gaming systems. He provided a craigslist ad selling a Sony Playstation 3 and 7 video games. He stated that he posted this ad for [petitioner] for some property that [petitioner] wanted to sell. Furthermore, [Cuevas] handed over a duffle [sic] bag full of electric hair clippers and trimmers and an Acer brand laptop computer. . . . [Cuevas] further added that [petitioner] told him that he broke into a house across the street from his and then showed him the proceeds from that burglary.” Dkt. No. 15-1 at 3. Detective Van Amburgh identified some of these items as being stolen from 518 Washington Avenue and 166 Western Avenue. See id. Cuevas also “provided information that [petitioner] told him that he broke into a house [at 359] Washington Ave[nue] and had a lot of jewelry to sell.” Id.
On January 27, 2012, the Albany County Grand Jury charged petitioner with three counts of burglary in the second degree, one count of grand larceny in the third degree, and one count of criminal possession of stolen property in the third degree. See Dkt. No. 12 at 8-12.
B. The Defense's Case
“Petitioner . . . testified at trial that he is 34 years old and that he resided at 159 Western Avenue for the past 9-years with his [girlfriend] and three kids.”Pet. at 22. “He worked at the thrift store on Lexington Avenue in Albany for close to a year.” Id. Petitioner “helped out in the store” and “was paid daily in cash, [but t]he amount he was paid depended on what he sold.” Id. at 22-23. Petitioner testified that he knew Hetman because she often came to the store to make purchases. See Dkt. No. 12-4 at 281-82. Petitioner further testified that Hetman once bought a computer tower from the store and, at Cuevas's direction, he carried it to her house “because it was heavy,” but that was the only time he went to Hetman's house. Id. at 283, 285. Also, while working at the store, Cuevas directed petitioner to give Hetman a pair of Louis Vuitton sunglasses, which she took. See id. at 285. However, petitioner never went to Hetman's home to discuss the glasses and he never signed a receipt for them. See id.
Petitioner refers to his partner, whom he lived together with at 159 Western Avenue, as “his girlfriend” and “his wife.” See, e.q., Pet. at 21-22. It is unclear whether petitioner and his partner are married. For the sake of consistency, the undersigned will refer to petitioner's partner as his girlfriend.
Petitioner testified that, at times in the past, he would go to the barbershop located at 518 Washington Avenue to get haircuts, but he stopped going there after a “little” dispute. Dkt. No. 12-4 at 280. He denied any involvement in the burglary at the barbershop and stated that he never entered the barbershop at a time that it was not open to the public. See id. at 281. Petitioner also denied entering the apartment across the street from him, at 166 Western Avenue, and stealing property. See id. at 286.
Petitioner acknowledged that the police recovered various stolen items from his house, but he claimed that he was holding the property for Cuevas. See Dkt. No. 12-4 at 286-87. He explained that, on January 2, 2012, Cuevas “came over and asked to store the items in [petitioner's] house because [the City of Albany] had to close the building” due to water damage in the basement. Pet. at 23; see Dkt. No.12-4 at 287. After a few days of keeping the items, petitioner's girlfriend “was upset about the property being in his house, so he contacted . . . Cuevas to pick up the items.” Pet. at 23. Cuevas “said he needed a few more days and then he would come and pick . . . up [the items] in [his] van.” Id. However, eventually Cuevas “told him the items were stolen.” Id. at 24.
Petitioner further testified that, on January 24, 2012, police approached him in front of the thrift store and took him to the Detective's Office. See Pet. at 24. At the beginning of the interrogation, petitioner told the officers that he didn't commit the burglaries. See id. However, “[h]e later changed his story to protect his [girlfriend] and children as the police were pressuring him.” Id. Specifically, Detective Van Amburgh “threatened [petitioner in arresting his girlfriend for constructive possession, and removing his children to CPS, if he did not cooperate.” Id. at 22. Petitioner told them what Cuevas had informed him about the burglaries, and “pretended he was involved.” Id. at 24. Petitioner “would have done anything to get his [girlfriend] and kids out of there as he did not want them involved in this mess.” Id. “The defense rested at this point.” Id.; see Dkt. No. 12-4 at 297.
C. Suppression Hearing
Petitioner filed a motion to suppress his videotaped police interview, as well as the physical evidence that was secured from his residence, alleging that there was no probable cause to support the search warrant. See Pet. at 27. On July 23, 2012, and July 26, 2012, Albany County Court Judge Stephen Herrick held a pretrial Dunaway/ Mapp/Huntley hearing. See Dkt. No. 12-3 at 8-48. Detective Van Amburgh testified at the hearing for the prosecution. See id. at 12-30. Detective Van Amburgh testified that “[a] short time after commencing the investigation” of the Christmas burglaries, “an informant came to see” him. Dkt. No. 12 at 19. “The informant reported that [petitioner] had approached him and asked him to sell numerous items the informant believed to be stolen[; t]he informant had with him a duffel bag containing some of the property given to him by [petitioner].” Id. at 19-20. “In the bag were a number of electric hair clippers [and t]he informant also reported that he had posted certain electronics for sale on Craig's List and had done so at [petitioner's] request.” Id. at 20. “On or about January 24, 2012, Detective Van Amburgh confirmed with the owner of the barbershop that the electric hair clippers belonged to him and were among the items previously reported stolen.” Id. “The electronics posted on Craig's List were also identified as stolen property.” Id.
Such a hearing is held pursuant to: “(1) Mapp v. Ohio, 367 U.S. 643 (1961), to determine whether physical evidence sought to be used against [p]etitioner was obtained illegally; (2) Dunaway v. New York, 442 U.S. 200 (1979), to determine whether there was probable cause for [petitioner's arrest; and (3) People v. Huntley, 15 N.Y.2d 72 (1965), to determine whether any statements made by [petitioner should be suppressed.” McKelvey v. Bradt, No. 13-CV-3527 (CM/DF), 2016 WL 3681457, at *4 n.3 (S.D.N.Y. July 6, 2016).
“Based upon the foregoing, Detective Van Amburgh prepared a search warrant application for [petitioner's residence located at 159 Western Avenue[.]” Dkt. No. 12 at 20; see Dkt. No. 15-1 at 1-6. “Prior to executing the warrant, Detective Van Amburgh . . . took [petitioner] into custody on a charge of possession of stolen property.” Dkt. No. 12 at 20. Petitioner “was transported to the Albany South Station where he was given Miranda warnings[, and he] indicated that he understood the warnings, waived his rights, and agreed to speak with the detective.” Id. “Petitioner's interview was video taped.” Id. The defense called no witnesses. See Dkt. No. 12-3 at 46. Following the hearing, the trial court reserved on petitioner's motion to suppress his videotaped confession, as well as the physical evidence seized by the police. See id. at 47.
On October 3, 2012, Judge Herrick issued a decision and order denying petitioner's motion to suppress in all respects. See Dkt. No. 12 at 18-23. As for petitioner's statements made during the police interview, Judge Herrick found that “as a matter of fact, that [petitioner] acknowledged and waived his Miranda rights,” so his “statements were], therefore, voluntary.” Id. at 23. Judge Herrick also found that the search warrant was sufficient because Cuevas' “reliability was adequately established by the hair clippers, identified as stolen property, that [Cuevas] turned over to Detective Van Amburgh and reported to have received from [petitioner] along with the Craig's List posting of property identified as stolen.” Id. at 22.
D. Verdict and Sentencing
A jury trial took place from October 15, 2012, to October 19, 2012. See Dkt. No. 12-3 at 107; see also Dkt. No. 12-4 at 371. On October 19, 2012, petitioner was found guilty of three counts of burglary in the second degree, a class C violent felony, in violation of N.Y. Penal Law § 140.25(2) and one count of criminal possession of stolen property in the third degree, a class D felony, in violation of N.Y. Penal Law § 165.50. See Dkt. No. 12 at 14; see also Zayas-Torres, 40 N.Y.S.3d at 601. Petitioner was acquitted of the grand larceny charge. See Dkt. No. 12-1 at 152; see also Zayas-Torres, 40 N.Y.S.3d at 601. A judgment of conviction was entered on December 14, 2012, sentencing petitioner to an aggregate prison term of fourteen years with five years of post-release supervision. See Dkt. No. 12-1 at 161-72; see also Zayas-Torres, 40 N.Y.S.3d at 601.
E. Direct Appeal
Petitioner's appellate counsel filed a brief on December 1, 2015, in the New York State Supreme Court, Appellate Division, Third Department, arguing that: (1) the jury's verdict was against the weight of the evidence and must be set aside; (2) petitioner's oral statements to the police were involuntarily procured and should have been suppressed; (3) the search warrant was defective as a matter of law as it was not supported by probable cause; and (4) the sentence imposed was harsh and excessive, and must be reduced. See Dkt. No. 12-1 at 175-230; see also Zayas-Torres, 40 N.Y.S.3d at 601-05.
Petitioner also filed a pro se supplemental brief on July 22, 2016, arguing that: (1) the “trial counsel was ineffective for not attacking [petitioner's] confession under Dunaway” and “for not objecting and preserving for appeal the confession and tangable [sic] items seized from [the] search warrant”; (2) petitioner's confession and the items seized were not admissible under the Fourth Amendment or Dunaway; (3) the indictment was “defective” and his conviction was “constitutionally infirm”; (4) the District Attorney's Office violated the ABA Model Rules of Professional Conduct; (5) petitioner was “extorted of his fundamental and due process equal protection rights of both [the] federal and state constitutions]”; and (6) the court lacked subject matter jurisdiction.
Dkt. No. 1-1 at 28; see Dkt. No. 1-1 at 22-66; see also Dkt. No. 12-1 at 262-67, 281325.
In a Decision and Order dated October 27, 2016, the Appellate Division denied petitioner's direct appeal and affirmed the trial court's December 14, 2012, judgment of conviction. See Zayas-Torres, 40 N.Y.S.3d at 605. The Appellate Division held that (1) petitioner's trial counsel did not render ineffective assistance; (2) petitioner was not improperly coerced into a confession and his statements to the police were voluntary; (3) the warrant to search petitioner's home was supported by probable cause; (4) sufficient evidence supported petitioner's convictions and the jury's verdict was not against the weight of the evidence; and (5) petitioner's sentence was not harsh or excessive. See id. at 601-05; see also Pet. at 2.
On May 17, 2017, petitioner filed a motion seeking leave to appeal to the New York Court of Appeals. See Pet. at 2-3; see also Dkt. No. 12-1 at 339-40. “Petitioner raised every ground he raised [before] the Appellate Division[, Third Department] on his direct appeal[.]” Pet. at 3. The Court of Appeals summarily denied petitioner's motion on October 26, 2017. See id. at 2; see also People v. Zayas-Torres, 30 N.Y.3d 984 (2017).
F. Motion to Vacate
On May 26, 2017, petitioner filed a pro se motion to vacate his judgment of conviction pursuant to N.Y. Crim. Proc. Law (“CPL”) § 440.10. See Pet. at 3; see also Dkt. No. 1-2 at 2-19; Dkt. No. 12-1 at 341-53. Specifically, petitioner argued ineffective assistance of his trial counsel, who “failed to request a Darden-Hearing to challenge the credibility of informant Hector Cuevas,” failed to “address the criminal history of [Cuevas] during cross-examination at trial,” and “failed to challenge the veracity of the [search] warrant which lacked probable cause to arrest.” Pet. at 3; see Dkt. No. 12-1 at 341-53; see also Dkt. No. 12-3 at 1-4. On August 3, 2017, Albany County Judge William A. Carter denied plaintiff's motion because (1) petitioner had raised his ineffective assistance of counsel claim on direct appeal, and (2) petitioner's claims were “generic and speculative” and “amount[ed] to no more than an unspecified disagreement with his trial counsel's strategies and/or tactics.” Dkt. No. 1-1 at 18-20; see Dkt. No. 12-2 at 77-79. On August 18, 2017, petitioner moved for leave to appeal Judge Carter's decision under CPL § 460.15. See Dkt. No. 12-2 at 54-64. The Appellate Division summarily denied petitioner's motion on October 11, 2017. See id. at 83.
A Darden hearing is a state court procedure in criminal cases where, “when evaluating a motion to suppress, the court may conduct an ex parte, in camera examination of a confidential informant without disclosing the informant's identity to the defendant.” People v. Cook, 34 N.Y.3d 412, 422 (2019) (citing People v. Darden, 34 N.Y.2d 177, 181 (1974), disapproved of by People v. Belton, 50 N.Y.2d 447 (1980)). A Darden hearing is warranted “where there is insufficient evidence to establish probable cause apart from the testimony of the arresting officer as to communications received from an informer.” Darden, 34 N.Y.2d at 181.
II. Discussion A. Standard of Review
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), “when a state court has already ruled on the merits of the habeas petitioner's claim,” the petitioner “must show that decision was either (1) ‘contrary to' or an ‘unreasonable application of' clearly established federal law, as determined by the decisions of th[e Supreme] Court, or (2) based on an ‘unreasonable determination of the facts' presented in the state-court proceeding.” Brown v. Davenport, 596 U.S. 118, 125 (2022) (quoting 28 U.S.C. § 2254(d)). This is a “difficult to meet” and “highly deferential standard” for evaluating state-court rulings, which “demands that state-court decisions be given the benefit of the doubt[.]” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citations omitted).
“A claim is ‘adjudicated on the merits' if the state court ruled on the substance of the claim rather than on a procedural ground.” Jordan v. Lamanna, 33 F.4th 144, 150 (2d Cir. 2022) (quoting Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001)). A state court “decision is ‘contrary to' clearly established federal law ‘if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the [it] decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.'” Id. (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). “A decision is an ‘unreasonable application' of clearly established federal law ‘if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.'” Id. (quoting Williams, 529 U.S. at 413). “A writ cannot be granted ‘simply because . . . the relevant state-court decision applied clearly established federal law erroneously or incorrectly[]”; “[r]ather, whether a decision is ‘contrary to' or an ‘unreasonable application of' clearly established federal law is a ‘substantially higher threshold' than mere incorrectness.” Id. (citations omitted). Further, a state court's factual findings are presumed correct, unless that presumption is rebutted by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). If the state court did not decide a claim “on the merits,” the pre-AEDPA standard of review applies, and both questions of law and mixed questions of law and fact are reviewed de novo. Washington v. Shriver, 255 F.3d 45, 55 (2d Cir. 2001).
B. Petitioner's Statements to the Police
Petitioner argues that his statements to the police were involuntarily procured and should have been suppressed. See Pet. at 2. Petitioner specifically alleges that “[a] careful review of the totality of the circumstances in this case, clearly demonstrates that [his] statements were unlawfully obtained only after his will was overborne, and his freedom of choice critically impaired.” Id. at 27. Petitioner claims that the police: (1) “used threats and trickery” as well as “coercive” and “deceptive methods” during the custodial interrogation to secure a confession, such as threatening to arrest his girlfriend and place his children with child protective authorities if he did not take responsibility for the stolen items recovered from his apartment; and (2) “never read [him] his Miranda warnings” and “denied him access to an attorney.” Id. at 28-30. Respondent points out that “[t]he Appellate Division rejected petitioner's claim[s] on the merits,” and argues that, “because the Appellate Division's determination was not contrary to, or an unreasonable application of, clearly established Supreme Court law,” petitioner is not entitled to habeas relief. Dkt. No. 11-1 at 21.
1. Voluntariness
The test of a confession's voluntariness considers “the totality of all the surrounding circumstances” to determine “‘whether a defendant's will was overborne' by the circumstances surrounding the giving of a confession.” Dickerson v. United States, 530 U.S. 428, 434 (2000) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)); see Green v. Scully, 850 F.2d 894, 902 (2d Cir. 1988) (“In applying the totality of the circumstances test, those factors that a court should consider to determine whether an accused's confession is voluntary center around three sets of circumstances: (1) the characteristics of the accused, (2) the conditions of interrogation, and (3) the conduct of law enforcement officials.”). “The inquiry into the circumstances surrounding the confession, including the length and circumstances of the interrogation and a defendant's prior experience with the legal system, is ‘purely factual, and the state court's answer to it is afforded a presumption of correctness' under 28 U.S.C. § 2254(e)(1).” Kent v. Smith, No. 9:05-CV-0785 (LEK/DRH), 2007 WL 2907350, at *6 (N.D.N.Y. Oct. 4, 2007) (quoting Holland v. Donnelly, 216 F.Supp.2d 227, 231 (S.D.N.Y. 2002), aff'd, 324 F.3d 99 (2d Cir. 2003)).“When determining whether a statement was voluntary, state courts frequently must resolve conflicts in the testimony of police and defendants.” Id. In these circumstances, “the law is clear that state-court findings on such matters are conclusive on the habeas court if fairly supported in the record.” Ortiz v. Artuz, 113 F.Supp.2d 327, 338 (E.D.N.Y. 2000) (citing Miller v. Fenton, 474 U.S. 104, 117 (1985)), aff'd, 36 Fed.Appx. 1 (2d Cir. 2002) (summary order).
All unpublished opinions cited in this Report-Recommendation and Order, unless otherwise noted, have been provided to petitioner.
“In light of petitioner's suppression hearing in state court and his appeal to the Appellate D[ivision], petitioner's claim was adjudicated on the merits and this Court must defer to the state court's decision on petitioner's . . . claim.” Russell v. Heath, No. 10-CV-0585 (TCP), 2013 WL 5726190, at *11 (E.D.N.Y. Oct. 18, 2013). Thus, petitioner “bears the burden of overcoming the presumption of correctness by showing, by clear and convincing evidence, that the state court was wrong.” Kent, 2007 WL 2907350, at *6; see Colon v. Ercole, No. 09-CV-5168 (LTS/AJP), 2010 WL 9401, at *31 (S.D.N.Y. Jan. 4, 2010) (collecting cases and noting that the determination of whether a defendant “was ‘coerced' into giving his confessions by police is a matter of historical fact subject to the presumption of correctness”), report and recommendation adopted, 2010 WL 3767079 (S.D.N.Y. Sept. 27, 2010).
Testimony from the suppression hearing and the trial demonstrates the following. On January 24, 2012, at about 2:30 P.M., Detective Van Amburgh and Detective Bennett brought petitioner to the Detective's Office. See Dkt. No. 12-3 at 17-18. Prior to talking about the substance of the investigation, Detective Van Amburgh read petitioner his Miranda warnings. See id. at 21. Detective Van Amburgh testified, “We have an Albany Police Department defendant's statement form. On the top of that portion is the Miranda rights verbatim. I read that to him as I had a conversation with him, read it from that form.” Id. at 27. Detective Van Amburgh then specifically explained that, at 4:04 P.M.,
I advised Mr. Torres he had a right to remain silent. Anything he said could and will be used against him in a court of law. I advised him that he had a right to speak to a lawyer and have one with him while he's being questioned. If he cannot afford a lawyer, one could be appointed to represent him before any questioning, if he so desired one. At that time I then asked him if he understood his rights. He verbally acknowledged that he did. Then I asked him if he would continue talking to us about what we wanted to talk about with him. At that point he said yes.Id. at 28; see id. at 30. Detective Van Amburgh and Detective Bennett continued to interview petitioner between 4:00 P.M. and 5:00 P.M. See Dkt. No. 12 at 450. At around 5:00 P.M., the detectives left to execute the search warrant. See id. After executing the search warrant at petitioner's residence, they returned to the Detective's Office at around 8:00 P.M. to finish interviewing petitioner. See id. at 460. During this second interview, Detective Van Amburgh's interviewing technique changed “[a] little bit” as he told petitioner “that[,] in addition to the fact that [his girlfriend] could face charges, that then the[ir] children would go into Children Protective Services.” Id. at 462-63. After he told petitioner this, petitioner admitted to committing the burglaries and “was descriptive in his answers about how he entered residences and the property that he took.” Id. at 466.
In rejecting petitioner's claim that the police improperly coerced his confession, the Appellate Division explained,
Defendant asserts that police improperly coerced him to make this admission by threatening to arrest his girlfriend and place his children with child protective authorities if he did not take responsibility for the presence of the stolen items in the apartment. However, the girlfriend resided with defendant in the apartment where the stolen items were found, and, thus, the warning that she might be implicated was not deceptive. It is well established that police are free to capitalize on a defendant's sense of shame or reluctance to involve his family in a pending investigation absent circumstances which create a substantial risk that [he] might falsely incriminate himself[.]Zayas-Torres, 40 N.Y.S.3d at 602 (internal quotation marks and citations omitted). The
Appellate Division concluded that, “[u]nder the totality of the circumstances presented, we agree with County Court that no substantial risk of false incrimination was present and the People met their burden to prove that defendant's statements were voluntary[.]” Id.
Although
“no federal court has yet held that a confession or consent is involuntary solely on the ground that it was prompted by the defendant's desire to protect a relative from the rigors of
arrest, interrogation and possible confinement,” neither the Second Circuit nor the Supreme Court has “squarely addressed whether threats to charge third-parties amount to coercion.”United States v. Zimmerman, 480 F.Supp.3d 446, 455-56 (E.D.N.Y. 2020) (quoting United States v. Mullens, 536 F.2d 997, 1000 (2d Cir. 1976), and Lewis v. Graham, No. 13-CV-933 (MAT), 2018 WL 3819557, at *4 (W.D.N.Y. Aug. 10, 2018)) (additional citations omitted). However, “several other circuits and district courts within this circuit have held that ‘such a threat does not render a confession involuntary if the police have probable cause to arrest the family member and thus could lawfully carry out the threat.'” Rodriguez v. Warden of Clinton Corr. Facility, No. 13-CV-3505 (ERK/LB), 2014 WL 7177894, at *6 (E.D.N.Y. Dec. 16, 2014) (quoting United States v. Ortiz, 943 F.Supp.2d 447, 456-57 (S.D.N.Y 2013)); see also United States v. Miller, 450 F.3d 270, 272 (7th Cir. 2006), abrogated on other grounds by Kimbrough v. United States, 552 U.S. 85 (2007); United States v. Johnson, 351 F.3d 254, 263 (6th Cir. 2003); Thompson v. Haley, 255 F.3d 1292, 1296-97 (11th Cir. 2001); Allen v. McCotter, 804 F.2d 1362, 1364 (5th Cir. 1986); United States v. Serrano, 937 F.Supp.2d 366, 376 (E.D.N.Y. 2013); United States v. Ortiz, 499 F.Supp.2d 224, 232-33 (E.D.N.Y. 2007). Moreover, “[t]he use of trickery, deception, or some form of ruse is a common practice, and does not automatically render a confession involuntary.” Thomas v. Mason, No. 1:17-CV-626 (DJS), 2023 WL 2709730, at *10 (N.D.N.Y Mar. 30, 2023) (citing United States v. Anderson, 929 F.2d 96, 99 (2d Cir. 1991), and Whitlatch v. Senkowski, 344 F.Supp.2d 898, 903 (W.D.N.Y. 2004)).
As the Appellate Division explained, because petitioner's girlfriend resided in the apartment with petitioner, where the police found stolen items, “the warning that she might be implicated was not deceptive.” Zayas-Torres, 40 N.Y.S.3d at 602. This is because, as respondent argues, “[t]he police could have charged her at least with criminal possession of stolen property.” Dkt. No. 11-1 at 23; see, e.g., United States v. Memoli, 333 F.Supp.2d 233, 238 n.3 (S.D.N.Y. 2004) (finding a confession voluntary where the defendant's girlfriend, whom police threatened to arrest, was “liable for arrest for, at the very least, constructive possession of illegal firearms” because she lived at the apartment with the defendant where the illegal firearms were found). Thus, although petitioner reiterates that it was unlawful for the police to use such “deceptive methods,” the Appellate Division's determination was not contrary to, or an unreasonable application of, clearly-established federal law. Pet. at 30; see Zayas-Torres, 40 N.Y.S.3d at 602; see also Rodriguez, 2014 WL 7177894, at *6 (“On these facts, the trial judge's ultimate legal conclusion that the confession in this case was voluntary does not constitute a violation of clearly established federal law. As such, there is no basis for granting habeas relief on this ground.”). Accordingly, it is recommended that plaintiff's claim for habeas relief on this ground be denied.
2. Miranda Warnings
“Prior to questioning, a suspect ‘must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.'” J.D.B. v. North Carolina, 564 U.S. 261, 269 (2011) (quoting Miranda v. Arizona, 384 U.S. 436, 444 (1966)). When police conduct an initial interrogation following so-called “Miranda warnings,” police need not provide additional Miranda warnings during a subsequent interrogation of the same subject “unless the circumstances changed so seriously that [the suspect's] answers no longer were voluntary, or unless [the suspect] no longer was making a ‘knowing and intelligent relinquishment or abandonment' of [the suspect's] rights.” Wyrick v. Fields, 459 U.S. 42, 47 (1982); see United States v. Martinez, 916 F.Supp.2d 334, 351 (E.D.N.Y. 2013) (recognizing Wyrick as the controlling authority “on the issue at hand: namely, whether a first and only Miranda warning would be sufficient to validate a second short-time later interview”); see also United States v. Banner, 356 F.3d 478, 480 (2d Cir. 2004) (“It is well established that once an arrested person has received a proper Miranda warning, the fact that questioning is stopped and then later resumed does not necessarily give rise to the need for a new warning.”) (citations omitted), vacated on sentencing grounds sub nom. Forbes v. United States, 543 U.S. 1100 (2005).
It is clear from the transcript of the suppression hearing, as well as from Judge Herrick's decision, “that the trial court considered the circumstances surrounding petitioner's statements to police.” Hall v. Rock, No. 9:10-CV-130 (NAM/ATB), 2011 WL 2432920, at *4 (N.D.N.Y. Apr. 18, 2011), report and recommendation adopted, 2011 WL 2432921 (N.D.N.Y. June 16, 2011); see Dkt. No. 12-3 at 8-28; see also Dkt. No. 12 at 18-23. As detailed above, the testimony from Detective Van Amburgh established that petitioner was “‘fully informed of, understood, and waived his Miranda rights before any questioning commenced.'” Zayas-Torres, 40 N.Y.S.3d at 602 (quoting People v. Carter, 33 N.Y.S.3d 577 (2016)); see discussion supra Subsection II.B.1. The trial court's holding, affirmed by the Appellate Division, that petitioner's confession was not obtained involuntarily, is not contrary to, or based on, unreasonable applications of federal precedent. See, e.g., Perro v. Reid, No. 87-CV-1966, 1990 WL 27152, at *4 (E.D.N.Y. Mar. 7, 1990) (“The undisputed evidence in this case shows that petitioner was arrested with probable cause, was advised of his right to remain silent and of his right to counsel and was granted permission to make phone calls to his attorney, friends and members of his family. . . . Thus, the [petitioner's] confession and the waiver of Miranda rights was voluntary and supported by the record.”), aff'd, 923 F.2d 842 (2d Cir. 1990). “Nor is the state court determination unreasonable based on the facts presented to the trial court.” Hall, 2011 WL 2432920, at *4 (concluding that, where the interviewing officer testified that he read the petitioner his Miranda warnings, the state court reasonably determined that the petitioner's statements were not obtained involuntarily). Therefore, petitioner's claim for habeas relief, based on the alleged violations of his Miranda rights, is without merit. Thus, it is recommended that his claim to habeas relief on this ground be denied.
C. Validity of Search Warrant
Petitioner claims that “the search warrant was defective as a matter of law as it was not supported by probable cause” because it was based solely on statements from Cuevas, who is an unreliable confidential informant.Pet. at 2; see id. at 31-32. Petitioner argues that “due to the absence of probable cause,” “all evidence seized therein following this illegally obtained search warrant [should have been] suppressed” and, thus, “the conviction entered against petitioner must be reversed and charges dismissed.” Id. at 31-32; see Dkt. No. 15 at 5. Respondent contends that “[t]he Court should dismiss petitioner's claim as it is precluded from habeas review pursuant to Stone v. Powell, 428 U.S. 465 (1976).” Dkt. No. 11-1 at 25.
Contrary to petitioner's assertions, Cuevas was not a confidential informant because “the warrant application included the signed and sworn statement of a fully identified witness.” Zayas-Torres, 40 N.Y.S.3d at 602; see Dkt. No. 15-1 at 6. As the Appellate Division found, “‘[the] sworn statement of an identified member of the community attesting to facts directly and personally observed by him [or her] is in and of itself sufficient to support the issuance of a search warrant[.]'” Zayas-Torres, 40 N.Y.S.3d at 602 (quoting People v. David, 652 N.Y.S.2d 324, 326 (App. Div. 1996)).
Petitioner's arguments are a challenge to the state court's application of the exclusionary rule under the Fourth Amendment, which guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. CONST. AMEND. IV. In Stone v. Powell, however, the Supreme Court held that “where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” 428 U.S. at 494-95; see Pina v. Kuhlmann, 239 F.Supp.2d 285, 289 (E.D.N.Y. 2003) (“It is well settled that [Fourth Amendment] claims are not cognizable for habeas corpus review where a State has provided a full and fair opportunity to litigate this issue.”); see also Parker v. Ercole, 582 F.Supp.2d 273, 286 (N.D.N.Y. 2008). Following Stone, review of Fourth Amendment claims in habeas petitions is permissible only: “(a) if the state has provided no corrective procedures at all to redress the alleged fourth amendment violations; or (b) if the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process.” Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992) (citing Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977)); see also Ramdeo v. Phillips, No. 04-CV-1157 (SLT/RLM), 2007 WL 1989469, at *27 (E.D.N.Y. Jul. 9, 2007) (“Since petitioner has failed to show a lack of State corrective procedures or a breakdown in the underlying process, this claim for habeas relief must be denied.”).
1. New York's Corrective Procedures
“New York has a corrective procedure for Fourth Amendment violations, which is facially adequate.” Baptiste v. Ercole, 766 F.Supp.2d 339, 359 (N.D.N.Y. 2011) (citing CPL art. 710, and Capellan, 975 F.2d at 70 n.1); see Evans v. Giambruno, No. 00-CV-5980 (NRB), 2000 WL 1876642, at *1 (S.D.N.Y Dec. 26, 2000) (“It is well-settled that New York State provides for a full and fair opportunity to litigate a Fourth Amendment claim.”) (citing Grey v. Hoke, 933 F.2d 117, 121 (2d Cir. 1991)). “Under CPL [art.] 710, a defendant may move to suppress evidence he claims was unlawfully obtained when he has ‘reasonable cause to believe that such [evidence] may be offered against him in a criminal action.'” Miles v. Smith, No. 9:05-CV-1200 (LEK), 2008 WL 1809401, at *6 (N.D.N.Y. Apr. 21,2008) (quoting Huntley v. Superintendent, Southport Corr. Fac., No. 00-CV-191, 2007 WL 319846, at *7 (N.D.N.Y. Jan. 30, 2007), and citing CPL § 710.20).
“Here, petitioner availed himself of New York's corrective procedures when he filed a motion to suppress the evidence” seized due to the search warrant. Ladd v. Bradt, No. 08-CV-6025 (MAT), 2011 WL 334211, at *4 (W.D.N.Y. Jan. 31, 2011); see Dkt. No. 12 at 18-23. As detailed above, Judge Herrick held a suppression hearing on July 23, 2012, and July 26, 2012, and denied petitioner's motion on October 3, 2012. See Dkt. No. 12-3 at 8-48; see also Dkt. No. 12 at 18-23. Petitioner again raised his claim to the Appellate Division on direct appeal, and the Appellate Division denied his claim on the merits. See Zayas-Torres, 40 N.Y.S.3d at 602-03 (“[T]he warrant application included the signed and sworn statement of a fully identified witness[; t]he information contained in that statement arising from the firsthand observations of that witness was sufficient to provide the issuing court with probable cause to believe that defendant had committed the burglaries and that the stolen property identified in the application would be found in defendant's home.”); see also Ladd, 2011 WL 334211, at *4 (“Furthermore, petitioner litigated his Fourth Amendment claims in the state appellate court, which considered his claims and rejected them on the merits. Accordingly, petitioner received an opportunity for full and fair litigation of his Fourth Amendment claims in state court, and he is now precluded from further review in this habeas proceeding.”). Thus, it cannot be said that New York “provided no corrective procedures at all to redress [petitioner's] alleged fourth amendment violations.” Capellan, 975 F.2d at 70.
2. “An Unconscionable Breakdown”
An “unconscionable breakdown in the state's process must be one that calls into serious question whether a conviction is obtained pursuant to those fundamental notions of due process that are at the heart of a civilized society.” Cappiello v. Hoke, 698 F.Supp. 1042, 1050 (E.D.N.Y. 1988) (noting such examples as bribing of trial judge, government's knowing use of perjured testimony, or use of torture to extract a guilty plea), aff'd, 852 F.2d 59 (2d Cir. 1988); see Capellan, 975 F.2d at 70 (observing that an “unconscionable breakdown” must entail some sort of “disruption or obstruction of a state proceeding”). The focus of the inquiry regarding whether there has been an “unconscionable breakdown” must be on “the existence and application of the corrective procedures themselves” rather than on the “outcome resulting from the application of adequate state court corrective procedures.” Capellan, 975 F.2d at 71; see Graham v. Costello, 299 F.3d 129, 134 (2d Cir. 2002) (“[O]nce it is established that a petitioner has had an opportunity to litigate his or her Fourth Amendment claim (whether or not he or she took advantage of the state's procedure), the court's denial of the claim is a conclusive determination that the claim will never present a valid basis for federal habeas relief. . . . [T]he bar to federal habeas review of Fourth Amendment claims is permanent and incurable absent a showing that the state failed to provide a full and fair opportunity to litigate the claim[.]”).
Here, petitioner took full advantage of the available state process by litigating his Fourth Amendment claims through his motion to suppress, on direct appeal, and again through his motion to vacate his judgment of conviction. See Pet. at 27; see also Dkt. No. 12-1 at 175-230, 262-67, 281-325, 341-53. His disagreement with the outcome of the state courts' rulings “is not the equivalent of an unconscionable breakdown in the state's corrective process.” Capellan, 975 F.2d at 72; see Gates, 568 F.2d at 840 (“Stone v. Powell . . . holds that we have no authority to review the state record and grant the writ simply because we disagree with the result reached by the state courts.”); see also Watkins v. Perez, No. 05-CV-477 (GEL), 2007 WL 1344163, *23 (S.D.N.Y. May 7, 2007) (holding that without more, rejection by state appellate court of the petitioner's Fourth Amendment claims, is not an “unconscionable breakdown” in the state's corrective process, and noting that a “habeas court cannot grant relief simply because it may disagree with the state court's resolution of the claim.”).
Finally, petitioner appears to argue that he was not afforded a full and fair opportunity to litigate his Fourth Amendment claim in the state courts because trial counsel “failed to challenge the veracity of the . . . warrant which lacked probable cause.” Pet. at 3; see discussion infra Subsection II.E. Even if true, that claim is insufficient to establish the sort of unconscionable breakdown necessary for the Court to address petitioner's Fourth Amendment claims. See Crenshaw v. Superintendent, Five Points Corr. Fac., 372 F.Supp.2d 361, 370 (W.D.N.Y. 2005) (finding the petitioner's “assertions that the state courts were incorrect and defense counsel incompetent do not constitute the sort of ‘breakdown'” that would permit habeas review of a Fourth Amendment claim); see also Shaw v. Scully, 654 F.Supp. 859, 865 (S.D.N.Y. 1987) (“Where petitioners have either taken advantage of an opportunity to present Fourth Amendment claims or deliberately bypassed the procedure . . . courts within this circuit have refused to equate ineffective assistance of counsel with unconscionable breakdown.”) (citations omitted); Allah v. Le Fevre, 623 F.Supp. 987, 991-92 (S.D.N.Y. 1985) (rejecting a habeas claim that ineffective assistance of counsel can constitute an “unconscionable breakdown,” and stating that “it is plain from the majority opinion in Gates that the Court of Appeals had something other than ineffective assistance of counsel in mind when it speculated that an unconscionable breakdown in state process might permit federal habeas review”) (citing Gates, 568 F.2d at 840).
Therefore, because New York State provided petitioner with a corrective procedure to redress his Fourth Amendment claims, and because he has not demonstrated that an “unconscionable breakdown” occurred in the courts below, it is recommended that his claim for habeas relief on Fourth Amendment grounds be denied. Gates, 568 F.2d at 840.
D. Sufficiency and Weight of Evidence
Petitioner argues that his conviction was not supported by legally-sufficient evidence “to show [he] knowingly, and with intent to deprive, had criminal possession of stolen property.” Pet. at 39. Petitioner also claims that “[t]he jury's verdict was against the weight of the evidence, and must be set aside” because the verdict “was based on an unreasonable determination of the facts in light of the evidence presented [at trial].” Id. at 2, 5. Respondent points out that the Appellate Division, on direct appeal, “rejected [petitioner's legal sufficiency] claim, holding that it was unpreserved for appellate review because petitioner did not raise that specific claim at trial.” Dkt. No. 11-1 at 27. Respondent argues that: (1) “[t]he court's rejection of petitioner's claim as unpreserved establishes an adequate and independent state law ground for its decision, and petitioner has failed to establish any exception to justify reaching the merits of his claim”; and (2) “[i]n any event, petitioner's legal sufficiency claim has no merit.” Id. at 27-28.
“Although legal sufficiency and weight of the evidence are related, the two standards each require a discrete analysis.” Sincere M. v. New York Off. of Mental Hygiene, 409 F.Supp.3d 70, 76 n.1 (E.D.N.Y. 2018). “For an appellate court to conclude that a jury verdict is supported by sufficient evidence, the court must determine whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial.” Id. (citing Bleakley, 508 N.E.2d 672 (1987)). “To determine whether a verdict is supported by the weight of the evidence, conversely, the appellate court must analyze whether the trier of fact failed to give the evidence the weight it should have been accorded during trial.” Id.
1. Procedural Bar
Federal courts “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.” Coleman v. Thompson, 501 U.S. 722, 729 (1991) (citations omitted), holding modified on other grounds by Martinez v. Ryan, 566 U.S. 1 (2012). “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.” Davis v. Racette, 99 F.Supp.3d 379, 387 n.3 (E.D.N.Y. 2015) (citing Coleman, 501 U.S. at 730). A state court need not directly cite a state procedural rule in its decision so long as it makes a “plain statement” that “clearly and expressly states that its judgment rests on a state procedural bar.” Harris v. Reed, 489 U.S. 255, 263 (1989) (citation omitted). “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 (PKC), 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 citation omitted).
Here, the Appellate Division held that petitioner's “legal insufficiency argument [was] unpreserved, as he did not raise these specific arguments in his general motion for a trial order of dismissal.” Zayas-Torres, 40 N.Y.S.3d at 603. “The Appellate Division's statement that the claim was ‘unpreserved' is sufficient to establish that it was relying on the procedural bar as an independent ground in disposing of this issue[, and t]he procedural bar applies even where, as here, the court makes an alternative ruling on the merits.” Rolling v. Fischer, 433 F.Supp.2d 336, 345 (S.D.N.Y. 2006) (citations omitted). Further, although the New York Court of Appeals issued a summary order denying leave to appeal on petitioner's direct appeals, “where ‘the last reasoned opinion on the claim explicitly imposes a procedural default'”-as the Appellate Division's holding did here-“a federal habeas court will ‘presume[] that a later decision rejecting the claim did not silently disregard that bar and consider the merits.'” Id. (quoting Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)) (additional citation omitted). Thus, “the procedural default relied upon by the Appellate Division constituted an ‘independent' state law ground for the decision.” Id.; see Cotton v. Graham, No. 17-CV-650 (LJV/HBS), 2020 WL 6875251, at *2 (W.D.N.Y. Nov. 23, 2020) (holding that the pro se habeas petitioner's “insufficient-evidence claim [wa]s procedurally barred” where the Appellate Division “clearly and expressly found that [the petitioner] failed to preserve his insufficient-evidence claim for appellate review” because he “failed to renew his motion for a trial order of dismissal after presenting evidence”) (internal quotation marks and citations omitted).
“Once it is determined that a claim is procedurally barred under state rules, a federal court still may review such a claim on its merits if the petitioner can demonstrate both cause for the default and prejudice resulting therefrom, or if he can demonstrate the failure to consider the claim will result in a miscarriage of justice.” Osbourne v. Health, 12-CV-1138 (JFB), 2015 WL 1548947, at *8 (E.D.N.Y. Apr. 8, 2015) (citing Coleman, 501 U.S. at 750). “A miscarriage of justice is demonstrated [only] in extraordinary cases, such as where a constitutional violation results in the conviction of an individual who is actually innocent.” Id. (citation omitted); see Rolling, 433 F.Supp.2d at 347 (explaining that, to establish a “‘fundamental miscarriage of justice,' a petitioner must demonstrate ‘actual innocence.'”) (quoting Harris, 489 U.S. at 262).
Here, petitioner has made no showing of “actual innocence,” nor advanced any arguments demonstrating cause or prejudice that would excuse the default. Calderon v. Thompson, 523 U.S. 538, 558-59 (1998); see Walker v. Artus, 117 F.Supp.3d 228, 238 (E.D.N.Y. 2015) (“Petitioner has alleged neither cause, nor prejudice, nor a miscarriage of justice in his habeas petition.”), aff'd, 716 Fed.Appx. 34 (2d Cir. 2017) (summary order). Moreover, as discussed infra, the Appellate Division rejected petitioner's legal insufficiency claims on the merits, when discussing the merits of his weight of the evidence claim, so he cannot demonstrate that he was prejudiced by the procedural bar. See discussion infra subsection II.D.2; see also McFadden v. Graham, No. 1:18-CV-00865 (MAT), 2019 WL 4016160, at *7 (W.D.N.Y. Aug. 25, 2019) (“McFadden has not attempted to demonstrate cause for the default and prejudice attributable thereto, or that he is factually, as opposed to legally, innocent. In any event, as Respondent notes, the Appellate Division examined the merits of McFadden's legal insufficiency claim on direct appeal, despite the lack of a timely and specific motion for a trial order of dismissal. Therefore, McFadden cannot demonstrate that he was prejudiced by counsel's omissions.); Ali v. Unger, No. 6:13-CV-6210 (MAT), 2014 WL 257270, at *9 (W.D.N.Y. Jan. 23, 2014) (concluding that the petitioner was not prejudiced by any procedural bar because “the Appellate Division examined the merits of [the petitioner's legal insufficiency claim notwithstanding the lack of preservation”). Thus, petitioner's claim that the evidence against him was legally insufficient, is procedurally barred. See Pet. at 2, 5, 39. It is, therefore, recommended that petitioner's legal insufficiency claim be denied as subject to an unexcused procedural default.
2. Merits
“Even putting aside the adequate and independent state law grounds,” petitioner's legal insufficiency claim lacks merit. Rios v. Kaplan, No. 1:17-CV-00314 (LTS/SDA), 2019 WL 13400101, at *10 (S.D.N.Y. July 23, 2019), report and recommendation adopted, 2023 WL 4348353 (S.D.N.Y. July 5, 2023). After determining that petitioner's claim was unpreserved, the Appellate Division went on to explain that, “[nevertheless, our weight of the evidence analysis necessarily involves an evaluation of whether all elements of the charged crimes were proven beyond a reasonable doubt at trial.” Zayas-Torres, 40 N.Y.S.3d at 603-04. The Appellate Division summarized that,
at trial, the victims testified that the property found by police in defendant's apartment included televisions, speakers and other items that they identified as property stolen from their homes. The victim whose safe was broken into stated that her stolen jewelry was worth between $7,000 and $10,000. The thrift shop owner testified that defendant offered to sell him video games and other electronic items that corresponded with some of the stolen items, and that he saw televisions corresponding with the stolen items in defendant's home. He further stated that a broken television found by police in his thrift shop had been brought there by defendant, who said that he had dropped it. Other testimony established that this television had been stolen from one of the victims and was not broken before it was stolen, and the remote control that operated it was found in defendant's apartment. The thrift shop owner further described the telephone call in which defendant told him that he had broken into one of the apartments and had stolen jewelry. The video recording of the police interview was admitted into evidence, in which defendant admitted that he had entered two of the apartments through windows, had assisted a third party in burglarizing the third apartment and had taken jewelry and electronics. Defendant's account during this interview included accurate details about the thefts that police testified they had not communicated to him.Id. at 604. The Appellate Division also summarized petitioner's testimony:
He claimed that he did not know that the property found in his apartment was stolen, stating that it came from the thrift shop and that he was storing it at the owner's request. He further testified that he worked in the thrift shop on commission-which the thrift shop owner denied-and that the owner had directed him to arrange to have the customer sell the Louis Vuitton sunglasses. He denied the customer's testimony that he had gone to her apartment to arrange the sale of the sunglasses; however, a receipt from the transaction was found in his wallet.Id. The Appellate Division concluded that, “[deferring to the jury's credibility determinations and viewing the evidence in a neutral light, we are persuaded that the verdict is not against the weight of the evidence.” Id.
Although petitioner conclusorily alleges that there was insufficient evidence to support his conviction, he has not established that the Appellate Division's alternative holding is contrary to, or an unreasonable application of, clearly-established federal precedent. See, e.g., Sincere M. v. New York Off. of Mental Hygiene, 409 F.Supp.3d 70, 76 n.1 (E.D.N.Y. 2018) (“For an appellate court to conclude that a jury verdict is supported by sufficient evidence, the court must determine whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial.”) (citing People v. Bleakley 508 N.E.2d 672 (1987)); see also Rios, 2019 WL 13400101, at *10 (“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.”). Accordingly, it is alternatively recommended that petitioner's claim for habeas relief on grounds of legal insufficiency be denied on the merits.
As for petitioner's weight of the evidence claim, such a claim derives from CPL § 470.15(5), which permits an appellate court in New York to reverse or modify a conviction where it determines “that a verdict of conviction resulting in a judgment was, in whole or in part, against the weight of the evidence.” CPL § 470.15(5). “Thus, a ‘weight of the evidence' argument is a pure state law claim grounded in the criminal procedure statute, whereas a legal sufficiency claim is based on federal due process principles.” Echevarria-Perez v. Burge, 779 F.Supp.2d 326, 333 (W.D.N.Y. 2011) (quoting Bleakley, 508 N.E.2d at 675). “Since a ‘weight of the evidence claim' is purely a matter of state law, it is not cognizable on habeas review.” McClelland v. Kirkpatrick, 778 F.Supp.2d 316, 335 (W.D.N.Y. 2011) (citing 28 U.S.C. § 2254(a) (permitting federal habeas corpus review only where the petitioner has alleged that he is in state custody in violation of “the Constitution or a federal law or treaty”), and Estelle v. McGuire, 502 U.S. 62, 68 (1991) (“In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.”)).
“Federal courts routinely dismiss claims attacking a verdict as against the weight of the evidence on the basis that they are not federal constitutional issues cognizable in a habeas proceeding.” Hernandez v. Conway, 485 F.Supp.2d 266, 275 (W.D.N.Y. 2007) (collecting cases, including Ex parte Craig, 282 F. 138, 148 (2d Cir. 1922) (holding that “a writ of habeas corpus cannot be used to review the weight of evidence”), aff'd, 263 U.S. 255 (1923); Garrett v. Perlman, 438 F.Supp.2d 467, 470 (S.D.N.Y. 2006) (same); Douglas v. Portuondo, 232 F.Supp.2d 106, 116 (S.D.N.Y. 2002) (same); Garbez v. Greiner, No. 01-CV-9865 (LAK/GWG), 2002 WL 1760960, at *8 (S.D.N.Y. July 30, 2002) (“[B]y raising a ‘weight of the evidence' argument, [petitioner] does not present to this Court a federal claim as required by 28 U.S.C. § 2254(a). Instead, [petitioner] raises an error of state law, which is not available for habeas corpus review.”)) (additional citations omitted). Thus, it is further recommended that petitioner's weight of the evidence claim be denied as not cognizable in this habeas proceeding.
E. Ineffective Assistance of Counsel
Petitioner argues that he suffered a denial of effective assistance of counsel at trial. See Pet. at 3; see also Dkt. No. 15 at 2-4. He contends that his trial counsel (1) failed to challenge Cuevas' credibility or address Cuevas' criminal history; (2) “failed to challenge the veracity of the [search] warrant which lacked probable cause”; and (3) had a conflict of interest, because he “represented . . . Cuevas in a previous case and was aware if [sic] [Cuevas'] untrustworthiness.” Pet. at 3. Respondent asserts that “[t]he Appellate Division and the County Court rejected these respective claims, and as those decisions reasonably applied clearly established Supreme Court law, petitioner is not entitled to habeas relief.” Dkt. No. 11-1 at 34.
The standard applicable to ineffective assistance of counsel (“IAC”) claims is “highly demanding” and “rigorous.” Kimmelman v. Morrison, 477 U.S. 365, 382 (1986); Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001). To prevail on an IAC claim, petitioner must meet a two-pronged test: (1) he “must show that counsel's performance was deficient,” such that, “in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance”; and (2) he must show “that the deficient performance prejudiced the defense,” in the sense that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 687-94 (1984). “[An] IAC claim must be rejected if the defendant fails to meet either the performance prong or the prejudice prong.” Bennett v. United States, 663 F.3d 71, 85 (2d Cir. 2011).
Strickland instructs a court to “indulge a strong presumption that counsels' conduct falls within the wide range of professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.'” Strickland, 466 U.S. at 689 (quoting Michael v. State of Louisiana, 350 U.S. 91, 101 (1955)). The Supreme Court recognized in Strickland that “there are countless ways to provide effective assistance in any given case,” and that even the “best criminal defense attorneys would not defend a particular client the same way.” Id. Thus, “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable[.]” Id. at 690.
The AEDPA requires a federal habeas court to give deference to a state court's ruling on claims of ineffective assistance of counsel. See Harrington v. Richter, 562 U.S. 86, 101 (2011) (“A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.”). Thus, when ineffective assistance claims are considered under the AEDPA, the reviewing court affords a “doubly” deferential standard regarding the state court opinion. Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). In other words, when § 2254(d) applies, “[t]he pivotal question” for the federal habeas court “is whether the state court's application of the Strickland standard was unreasonable.” Richter, 562 U.S. at 101.
Here, petitioner “cannot satisfy the Strickland test in the first instance, much less show that the state court applied Strickland ‘in an objectively unreasonable manner.'” Santiago v. Artus, No. 15-CV-2361 (AMD), 2018 WL 4636949, at *6 (E.D.N.Y. Sept. 27, 2018) (quoting Contant v. Sabol, 987 F.Supp.2d 323, 330 (S.D.N.Y. 2013) (“Where, as here, a petitioner seeks habeas review of an ineffective-assistance-of-counsel claim under the test announced in Strickland, review is ‘doubly deferential.'”)); see Singletary v. Bell, No. 21-CV-02366 (HG), 2022 WL 3682224, at *4 (E.D.N.Y. Aug. 25, 2022). The Appellate Division explicitly rejected petitioner's claim that trial “counsel was ineffective for failing to obtain suppression of [petitioner's] statement on the ground that the police lacked probable cause for his arrest.” Zayas-Torres, 40 N.Y.S.3d at 603. The Albany County Court, in reviewing plaintiff's motion to vacate his judgment of conviction, again rejected petitioner's IAC claims. See Dkt. No. 12-2 at 77-79.
First, petitioner claims that counsel's failure to request a Darden Hearingto challenge the credibility of Cuevas, or to address Cuevas' criminal history, constitutes ineffective assistance. See Pet. at 3; see also Dkt. No. 15 at 4. However, to the contrary, as noted by respondent, counsel conducted an extensive cross-examination of Cuevas regarding his credibility and criminal history. See Dkt. No. 11-1 at 38; see, e.g., Montgomery v. Wood, 727 F.Supp.2d 171, 187 (W.D.N.Y. 2010) (“‘The conduct of examination and cross examination is entrusted to the judgment of the lawyer, and an appellate court on a cold record should not second-guess such decisions unless there is no strategic or tactical justification for the course taken.'”) (quoting Eze v. Senkowski, 321 F.3d 110, 127 (2d Cir. 2003)). During the cross-examination, counsel asked Cuevas about various arrests, prior bad acts, and criminal convictions. See Dkt No. 124 at 174-88. For example, the following exchange occurred:
As discussed supra, “[a] Darden hearing is used to challenge the actual existence and reliability of any confidential informer who provided information that served as the basis for probable cause for a defendant's arrest.” Gomez v. Miller, No. 9:19-CV-1571 (TJM), 2021 WL 5446979, at *4 n.5 (N.D.N.Y. Nov. 22, 2021) (citations omitted); see discussion supra note 9. However, because Cuevas was not a confidential informant, the Court was not required to establish his reliability or basis of knowledge through a Darden hearing. See Daly v. Lee, No. 11-CV-3030 (JFB), 2014 WL 1349076, at *15 (E.D.N.Y. Apr. 4, 2014) (explaining that, because the “petitioner's arrest was based on his identification as the perpetrator of the . . . crimes by [named witnesses], who were not confidential informants,” “petitioner never had a legal entitlement to a Darden hearing”).
Q: Mr. Cuevas, . . . back in May of 2002, you committed an assault on a woman; isn't that right?
A: I was arrested on an assault, but I didn't commit assault. You know the case very well.
Q: And, Mr. Cuevas, back in October of 1988, you lived in the Bronx, right?
A: Yes, I was born and raised in the Bronx.
Q: And back then, you were involved in possession of stolen property; isn't that right? . . .
A: Was it a vehicle?
Q: I don't know, Mr. Cuevas. You tell me.
A: Okay. It was a car that I bought and it was reported stolen.
Q: And, Mr. Cuevas, you pled guilty in that case, correct?
A: I believe I did. . . .
Q: Okay. Mr. Cuevas, in October of 1989, again in the Bronx, you were in possession of a weapon, correct?
A: Yes, sir.
Q: And that weapon was a gun, correct?
A: Yes.
Q: And you didn't possess a license or a permit to have that gun, did you?
A: No.
Q: Mr. Cuevas, in 1993 you were living in the Albany, New York, area; is that right?
A: Yes.
Q: And back in June of 1994 -- well, back in 1994, you were involved in selling drugs; is that right?
A: Yes. You was my attorney at the time. . . .
Q: The fact that I was your lawyer, does that change the fact that you were selling drugs? . . .
A: No it doesn't.
Q: And, in fact, not only in 1993 were you selling drugs, but in 1994 you were selling drugs as well; isn't that right, Mr. Cuevas?
A: Yes. . . .
Q: Mr. Cuevas, in the year 2000, again, Albany, New York, you were involved in possession of drugs; isn't that right?
A: Yes.
Q: And in December of 2002 in Albany, you were involved in giving a phoney name when you came in contact with the police, correct?
A: No. What name was that?
Q: You pled guilty to it, didn't you?
A: To what?
Q: December 18, 2002, to be exact, you pled guilty to giving the police a phoney name. . . .
A: I have two licenses: One with Hector Colon, which is my mother's maiden name; and one with Hector Cuevas, which is my father's name.
Q: So when you came in contact with the police, you gave them a different name?
A: No, they searched me and found both licenses in my pocket.
Q: And as a result of that incident that you just talked about, you pled guilty to criminal impersonation, correct?
A: Yes, and paid a fine.Id. at 174-82. Counsel proceeded to elicit that Cuevas had been charged with various felony offenses, and as a result of his cooperation in petitioner's case, the charges were reduced to misdemeanor offenses to be resolved without any jailtime. See id. at 19396. Counsel also elicited that Cuevas uses various names and aliases. See Id. at 17482. Although petitioner vaguely asserts that his trial counsel “failed to prove that . . . [Cuevas] lacked credibility and was therefore unreliable,” Dkt. No. 15 at 3, petitioner does not explain “what more counsel should have done.” Brown v. Lawler, No. CV 092565, 2010 WL 11463158, at *7 (E.D. Pa. Jan. 19, 2010) (rejecting the petitioner's habeas claim based on IAC grounds because “[t]rial counsel elicited testimony from the DNA expert helpful to petitioner's case [and the p]etitioner does not explain what more counsel should have done”), report and recommendation adopted, 2016 WL 6033231 (E.D. Pa. Oct. 13, 2016); see also Cumberland v. Graham, 08-CV-4389 (LAP/DF), 2014 WL 2465122, at *39 (S.D.N.Y. May 23, 2014) (“Under Strickland, the performance of [counsel] should not be found to have been constitutionally deficient where, even if he did not use every possible avenue to impeach [the witness's] credibility, he nonetheless conducted a cross-examination that brought out an important discrepancy.”); Brown v. Brown, 847 F.3d 502, 514 (7th Cir. 2017) (“Pursuit of unsuccessful arguments . . . does not show ineffective assistance of counsel.”).
Second, petitioner claims that counsel failed to challenge the veracity of the search warrant. See Pet. at 3; see also Dkt. No. 15 at 3. However, the Appellate Division found that this claim is baseless because counsel did indeed move for suppression of the search warrant. See Dkt. No. 11-1 at 36. As the Appellate Division concluded,
[t]he record belies defendant's claim that his counsel failed to raise an appropriate challenge to his warrantless arrest; the joint Dunaway/Mapp/Huntley hearing was conducted at defense counsel's behest. The hearing testimony established, among other things, that defendant's arrest was based upon the thrift shop owner's statement to police that defendant had supplied him with certain items that proved to be stolen property. Defense counsel actively cross-examined the People's witnesses, in an attempt to establish that this evidence was unreliable. Despite counsel's efforts, County Court concluded that police had probable cause to arrest defendant without a warrant, and we find no error in that determination.Zayas-Torres, 40 N.Y.S.3d at 603. Thus, “[c]ounsel cannot be deemed ineffective for failing to assert a claim that he had in fact raised.” Dkt. No. 11-1 at 36; see Paulino v. Miller, No. 20-CV-5067 (MKV/BCM), 2023 WL 6379776, at *14 (S.D.N.Y. Sept. 13, 2023) (rejecting the petitioner's claim that his counsel was ineffective for failing to raise an argument when the counsel did, in fact, raise that argument), report and recommendation adopted, 2023 WL 6387017 (S.D.N.Y. Sept. 29, 2023).
Finally, petitioner claims that counsel had a conflict of interest because he “represented . . . Cuevas in a previous case and was aware if [sic] [Cuevas'] untrustworthiness.” Pet. at 3. “[A] criminal defendant's Sixth Amendment right to counsel includes a right to conflict-free representation.” Graham v. Ricks, No. 9:02-CV-0303, 2004 WL 768579, at *8 (N.D.N.Y. Apr. 7, 2004) (citing Wood v. Georgia, 450 U.S. 261, 271 (1981) (“Where a constitutional right to counsel exists, our Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest”)). “A court must disqualify counsel or seek a waiver of conflict-free representation from a defendant if it finds that counsel has a conflict of interest.” Lyle v. Artuz, No. 03-CV-5155 (CBA), 2006 WL 1517750, at *19 (E.D.N.Y. May 31,2006). On the other hand, “[i]f the court discovers no genuine conflict, it has no further obligation.” U.S. v. Perez, 325 F.3d 115, 125 (2d Cir. 2003).
Here, at an October 2, 2012, court appearance, counsel addressed the issue of the potential conflict. See Dkt. No. 12-3 at 82. Counsel told the court that he represented Cuevas in an unrelated case “approximately 20 years ago,” and that he had explained to petitioner that petitioner could ask the court to appoint a new attorney. Id. at 83-84. The court then discussed the matter with petitioner directly, and the following exchange took place:
THE COURT: [D]o you understand that if you believe that there is a conflict, and I don't know the details of this, but assuming that [counsel] represented this person several to many years ago, theoretically he could have some knowledge of that person that could be of assistance to you in terms of cross-examining that individual. However, on the other hand, he may know information that from that individual that might not be helpful to you, I'll just leave it that way, but you have considered all of these options?
PETITIONER: Yes, Your Honor.
THE COURT: And are you comfortable with your continued representation by [counsel]?
PETITIONER: Yes, Your Honor.
THE COURT: All right. And so it's your intention to proceed to trial with [counsel] as your attorney?
PETITIONER: Yes, Your Honor.
THE COURT: And you're not asking to have an opportunity to get new counsel, correct?
PETITIONER: Yup, correct.Id. at 84-85. Given the foregoing exchange, it appears that petitioner's waiver of his right to conflict-free counsel was made “knowingly and intelligently.” Simpson v. Melecio, No. 9:20-CV-36 (MAD/DJS), 2022 WL 19296994, at *4 (N.D.N.Y. June 13, 2022) (rejecting the petitioner's IAC claim for habeas relief because “[after being made aware of the potential issue [of the conflict of interest] and its ramifications, [the petitioner knowingly and intelligently decided to continue having counsel represent him[; t]hus, [the petitioner waived any potential conflict of interest on the part of counsel”), report and recommendation adopted, 2023 WL 2665463 (N.D.N.Y. Mar. 28, 2023). Therefore, the Appellate Division's conclusion that “counsel provided meaningful representation” was neither contrary to nor an unreasonable application of federal precedent. Zayas-Torres, 40 N.Y.S.3d at 603 (citations omitted). Accordingly, it is recommended that petitioner's claim for habeas relief on IAC grounds be denied.
III. Conclusion
WHEREFORE, for the reasons set forth herein, it is hereby:
RECOMMENDED, that the petition for a writ of habeas corpus (Dkt. No. 1) be DENIED IN ITS ENTIRETY; and it is further
RECOMMENDED that no certificate of appealability be issued with respect to any of petitioner's claims as petitioner has not made a “substantial showing of the denial of a constitutional right” pursuant to 28 U.S.C. § 2253(c)(2). See 28 U.S.C. § 2253(c)(2) (“A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.”); see also Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000); and it is
ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation and Order on all parties in accordance with Local Rules.
IT IS SO ORDERED.
Pursuant to 28 U.S.C. § 636(b)(1), plaintiff has FOURTEEN (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 6(a), 72.
If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three (3) additional days will be added to the fourteen (14) day period, meaning that you have seventeen (17) days from the date the Report-Recommendation and Order was mailed to you to serve and file objections. FED. R. CIV. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Id. § 6(a)(1)(c).