Opinion
18 Civ. 4607 (KMK)(PED)
04-06-2022
JUSTIN ALFONSO, Petitioner, v. J. LAMANNA, SUPT., Respondent.
HONORABLE KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION
PAUL E. DAVISON. U.S.M.J.
I. INTRODUCTION
Justin Alfonso (“Petitioner”), proceeding pro se, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging his conviction and sentence upon a jury verdict in New York Supreme Court, Dutchess County (Greller, J.). [Dkt. 1.] On June 4, 2013, Petitioner was convicted of conspiracy in the second degree, two counts of attempted murder in the second degree, assault in the first degree, attempted assault in the first degree, gang assault in the first degree, attempted gang assault in the first degree, criminal possession of a weapon in the second degree, and grand larceny in the fourth degree, and sentenced to an aggregate prison term of 411 months to 40 years. Petitioner is currently serving his sentence at the Wende Correctional Facility in Erie County, New York. The Petition comes before me pursuant to an Order of Reference entered June 20, 2018. [Dkt. 6.] For the reasons that follow, I respectfully recommend that Your Honor DENY the Petition.
IL BACKGROUND
The information in this section is taken from the Petition [Dkt. 1] and Respondent's Answer with attached exhibits [Dkts. 8, 11].
1. The Crime
Between March 4, 2012 and March 6, 2012, Petitioner and six other members of the Almighty Latin King and Queen Nation (“Latin Kings”) conspired to kill Ruben Rivera and Kym Perez-Colon. Rivera had violated the “laws” of the Latin Kings by taking money from the gang for unauthorized purposes. The leaders of the gang, co-defendants Timothy Ramirez and John Rizzo, issued a “direct order”, instructing Petitioner and three other members of the Latin Kings to kill Rivera and Perez-Colon.
On March 5, 2012, Petitioner and three other members of the Latin Kings went to the apartment where Rivera lived and attempted to persuade him to come outside, but Rivera refused to leave his apartment. The next day, Petitioner and one of his co-conspirators stole a .45 caliber pistol and then picked up three of his co-conspirators on the way to Rivera and Perez-Colon s apartment. One of Petitioner's co-conspirators knocked on the door of Rivera and Perez-Colon s apartment and Perez-Colon answered the door. Petitioner then shot Rivera in the face and shot Perez-Colon in the chest. One of Petitioner's co-defendants then stabbed Rivera with a knife. Petitioner and his co-conspirators then left the apartment and Petitioner hid the pistol at 246 Church Street in Poughkeepsie.
2. Victim's Identification of Petitioner
After she had been shot, Perez-Colon was transported to Saint Francis Hospital Trauma Center. While being transported from the building to the ambulance, Detective Perrotta asked Perez-Colon who harmed her. [Dkt. 8-65 at 115-17.] Perez-Colon identified several individuals by their names, including Petitioner. [Id. at 116.] Later that night, Detective Perrotta visited Perez-Colon in the hospital and showed Perez-Colon a photo array to identify the individuals who shot her. [Dkt. 8-17 at 3.] The photo array was initially prepared in connection with another unrelated crime in which involvement of the Latin Kings was suspected. [Dkt. 8-18 at 64-65.] The photo array contained six photographs of six members of the Latin Kings. [Id. at 65.] Their names printed underneath each photograph, but the names had been blacked out with a marker. [Id.] When Detective Perrotta showed Perez-Colon the photo array, she identified the individual in photograph number 2 as Petitioner and initialed the bottom of the photograph. [Dkt. 8-17 at 3.]
3. Interrogation of Petitioner
On the evening of March 6, 2012 and into the early hours of March 7, 2012, Detective Perrotta interviewed Petitioner regarding his connection to the crime. [Dkt. 8-65 at 127.] Prior to interviewing Petitioner, Detective Perrotta told the Petitioner that he needed to fill out a “bullshit form” that conveyed Petitioner's Miranda rights. [Dkt. 8-66 at 68-69.] While administering Petitioner's Miranda rights, Detective Perrotta told Petitioner that he could potentially help himself if he spoke with the detective. [Id. at 99.] Petitioner also asked Detective Perrotta for an attorney but when Detective Perrotta asked if he really wanted one, Petitioner responded only if Detective Perrotta could get one right away. [Id. at 68.] At one point during the interview, Detective Perrotta also told Petitioner that he would have bounced him off of the five walls in his younger days. [Id. at 95.] Detective Perrotta did not ask Petitioner whether he had taken any drugs or alcohol prior to questioning him. [Dkt. 8-18 at 38.] After Petitioner's interview with Detective Perrotta, Petitioner lead the police to the location of the pistol used in the shooting. [Dkt. 8-66 at 99-100.]
B. Procedural History
1. Jury Selection and Petitioner's Antommarchi Waiver
Jury selection began on April 15, 2013 and continued through April 19, 2013. [Dkt. 8-24 at 1, Dkt. 8-25 at 1.] During jury selection on April 19, 2013, the trial court convened a sidebar conference regarding a note the court had received from a prospective juror. [Dkt. 8-25 at 87.] The note the court received indicated that the prospective juror felt “intimidated” and “uncomfortable” and requested to speak with the trial judge alone. [Id.] The defense attorneys held a conference amongst themselves to discuss the issue after which they had a sidebar with the judge off the record. [Id.] Later, when questioned, the prospective juror revealed that she had received a text message from her employers telling her that she would lose her job if she took the amount of time required for the trial off from work. [Id. at 90-91.] She stated that she felt it would be a huge distraction for her. [Id.]
On April 22, 2013, the trial court noted that it had “to resolve the Antommarchi issue and that “all counsel indicated that their client is going to waive Antommarchi” [id. 8-45 at 3, 9.] The court then provided each defendant with a copy of a form Antommarchi waiver. [Id. at 9.] After opening statements, the trial court then questioned the defendants regarding the voluntariness of their waiver. [Id. at 103-06.] Finding no issues, the trial court accepted the defendants' Antommarchi waiver. [Id. at 106.]
See People v. Anommarchi, 604 N.E. 2D 95, 96-97 (N.Y. 1992). In Anommarchi, the New York Court of Appeals held that a defendant has the right to be present at all material stages of a trial, including side-bar discussions with prospective jurors in which a court questions their “backgrounds and their ability to weigh the evidence objectively.” Id. at 97
2. Application to Suppress 911 Tape
On April 19, 2013, after the trial court dismissed the jury, Petitioner's counsel moved to suppress the admission of a 911 call that Perez-Colon made after being shot. [Dkt. 8-25 at 103-04.] On the call, Perez-Colon is screaming hysterically and at one point she is interrupted by a police officer who asks her “who is the bad guy?” and “what does the bad guy look like?” [Dkt. 8-25 at 106.] Petitioner's counsel argued that because Perez-Colon would take the stand and testify to the 911 call, playing the recording of the 911 call was unnecessary. [Id] Counsel also argued that the 911 call recording would be highly prejudicial and would inflame the jury. [Id. at 106-07.] The trial court denied Petitioner's motion and allowed the 911 call recording to be played. [Id. at 109.] The trial court found that it was allowed in as a present sense exception and also as an excited utterance. [Id] He also noted that “when I went to law school I was taught that all evidence is prejudicial and so were you, so I will let it in, and the People are permitted to play it.” [Id. at 110-111.]
3. Trial
Trial started on April 22, 2013 and lasted until June 1, 2013. [Dkt. 8-45 at 13, Dirt. 8-70 at 89.] During the trial, the prosecution offered testimony from twenty different witnesses, including the two victims, Rivera and Perez-Colon.
a. Cooperating Witness Testimony
At trial, there were three former co-defendants who agreed to cooperate and testify on behalf of the prosecution. They were Miosotys Herrera-Garcia, Keanan Monroe, and Nyquez Price.
Ms. Herrera-Garcia testified that Petitioner's co-defendant Ramirez issued the order to “TOS”, or terminate on sight, for Rivera and Perez-Colon. [Dkt. 8-57 at 152-54.J She testified that she was with Petitioner on March 5, 2012, the day before Petitioner and his co-defendants attacked Rivera and Perez-Colon, when they attempted to persuade Rivera to leave his apartment so they could kill him. [Id. at 171-76.] She father testified that she went to Rivera and Perez-Colon's apartment with Petitioner on March 6, 2012 to execute the TOS. [Dkt. 8-58 at 33-42.] She testified that she did not actually see Petitioner shoot Rivera or Perez-Colon, but heard the sound of the gun being fired. [Dkt. 8-59 at 51.] She testified that she moved to the left of the doorframe when Petitioner started firing. [Id. at 50-51.] She also testified that Petitioner's co-defendants were all standing next to him while he fired the gun. [Id. at 51-54.] After the incident, Ms. Herrera-Garcia initially told the police that she was pushed out of the way by Petitioner, but on cross admitted that was a lie. [Id. at 49.] She also initially told the police that she thought it was just going to be a “beat in,” as opposed to a TOS, but on cross, she admitted that was also a lie. [Dkt. 8-59 at 56.] Ms. Herrera-Garcia also offered testimony regarding the terns of her plea agreement. She pled guilty to conspiracy in the second degree, two counts of attempted murder in the second degree, and criminal possession of a weapon in the second degree. [Dkt 8-57 at 90.] She stated that as a result of her plea and her testimony, the state would recommend that she be sentenced to between eight and ten years in state prison. [Id. At 86-87.]
Mr. Monroe testified that he was with Petitioner on March 6,2012, when Petitioner went to Rivera and Perez-Colon's apartment. [Dkt. 8-61 at 67-68.] He testified that he had to ensure that Petitioner actually carried out the TOS. [Dkt. 8-62 at 68.] He further testified that he stood next to Petitioner when Petitioner first fired the gun. [Id. at 72.] Mr. Monroe testified that he was later found with a stray bullet in his pocket. [Id. at 75.] He stated that he received the bullet from Petitioner after it had jammed in the gun. [Id. ] Mr. Monroe testified that he initially told the police that it was from a different member of the Latin Kings and that it was for “good luck.” [Id. at 77.] On cross, Mr. Monroe admitted that this was a lie. [Id.] Mr. Monroe also testified to the terms of his plea agreement with the prosecution. He testified that he plead guilty to conspiracy in the second degree, and two counts of assault in the first degree. [Dkt. 8-60 at 134.] He stated that as a result of his plea agreement, he would be sentenced to between five and seven years. [Id. at 134-35.]
Similar to Ms. Herrera-Garcia and Mr. Monroe, Mr. Price testified that he was with Petitioner on March 6,2012, when Petitioner went to Rivera and Perez-Colon's apartment. [Dkt. 8-59 at 160-63.] Mr. Price testified that he saw Petitioner shoot Rivera and Perez-Colon. [Dkt. 8-60 at 94.] On cross it was revealed that Mr. Price had also testified in the grand jury proceeding that he was not in the vicinity at the time of the shooting. [Id. at 94-96.] Mr. Price stated that he lied during the grand jury testimony, but that he was telling the truth at the trial. [Id.] Mr. Price further testified that he initially told police that before the shooting he saw the gun on Mr. Monroe's lap. [id. at 93.] On cross, Mr. Price admitted that this was not true. [M] Mr. Price also testified to the terms of his plea agreement with the prosecution. He testified that he plead guilty to conspiracy in the second degree. [Dkt. 8-59 at 104.] He stated that as a result of his plea agreement, the prosecution recommended that he be sentenced to two to six years in prison. [Id.]
b. Petitioner's Motion to Dismiss
After the prosecution rested its case, Petitioner moved, pursuant to C.P.L. § 290.10(1)(a), to dismiss on the grounds that the evidence presented at trial was legally insufficient. [Dkt. 8-67 at 172.] Petitioner moved to dismiss count nine of the indictment, grand larceny in the fourth degree, arguing that the court did not have jurisdiction because the crime occurred m Ulster County and that the prosecution had failed to show intent. [Id at 173.] Petitioner also moved to dismiss counts one through eight by generally arguing that the evidence was insufficient, [id. at 174-75.] The trial court denied Petitioner's motion. [Id. at 176-77.]
c. The Jury Charge Conference
When the parties were discussing the jury charge that would be issued to instruct the jury on the crime, Petitioner requested that the charge for conspiracy in the second degree include conspiracy in the fourth degree as a lesser included offense. [Dkt. 8-67 at 227-28.] More specifically, Petitioner argued that one possible view of the testimony is that the defendants went to the apartment only intending to do a beat down, rather than a TOS. [Id] Thus, Petitioner argued, the intent may have been to commit an assault as opposed to murder. [Id] The court rejected Petitioner's request, stating that “I don't believe there's a reasonable view of the evidence that I could find that these people went there with the intent to hurt these people when you have the statements of intent, everything else, the witnesses who are telling we are going to kill them.” [Id. at 229-30.]
d. The Prosecution's Summation
After the parties discussed the jury charge, the parties then presented their summation. During the prosecution's summation, the prosecution stated that “[t]he evidence also has provided you with a look here in this case at the unique depravity that gangs can bring. Here the recruiting of our own children, our own children.” [Dkt. 8-69 at 12.] The prosecution also stated “[i]t started back in June 11 after they met in the Bronx, and that he come up here and was going to kill everybody that got in his path if they looked at him wrong.” [Id. at 107.] The prosecution continued on, “I ask you, ladies and gentlemen, with your verdict send this message, I ask you to hold them all accountable, and send this message that the stage that these gangs bring to communities ... we don't want it here in Dutchess County, and tell them by your verdict in holding them accountable, if you do it and the government has the evidence and they prove it, you're going to be held accountable, and there's going to be a price to pay at the end ... .” [Id. at 109-10.] Counsel for one of Petitioner's co-defendants objected to each statement. At the end of the prosecution's summation, all of the defendants moved for a mistrial on the grounds that the prosecution used words meant to “inflame” in its summation. [Id. at 117-19.] The trial court denied defendants' motion. [Id. at 119-20.]
e. Verdict
After the prosecution finished their summation, the trial court instructed the jury on the crimes each defendant allegedly committed. The jury then deliberated for approximately two days, before returning a verdict. The jury found Petitioner guilty of one count of conspiracy in the second degree, two counts of attempted murder in the second degree, one count of assault in the first degree, one count of attempted assault in the first degree, one count of gang assault in the first degree, one count of attempted gang assault in the first degree, one count of criminal possession of a weapon, and one count of grand larceny in the fourth degree. [Dkt. 8-70 at 111-12.]
4. Sentencing
Petitioner was sentenced on July 15,2013. [Dkt. 8-28 at 1.] At the time he was charged with the offense, Petitioner was 17 years old. The trial court denied Petitioner youthful offender treatment and sentenced Petitioner as follows: (1) an indeterminate term of eight and one-third to 25 years incarceration on the conspiracy count; (2) two determinate terms of 25 years imprisonment on the two attempted murder counts; (3) a determinate term of fifteen years on the assault count; (4) a determinate term of ten years on the attempted assault count; (5) determinate terms of fifteen years on the gang assault and attempted gang assault counts; (6) a determinate term of ten years on the weapon count; and (7) an indeterminate term of one and one-third to five years imprisonment on the larceny count. [Dkt. 8-28 at 15-19.] All of the terms, with the exception of the terms for the conspiracy count and the grand larceny count, were to be followed by five years post-release supervision. [Id.] The trial court directed that the sentences for the conspiracy count, the two attempted murder counts, and the larceny count ran consecutively, and that the sentences for the remaining counts run concurrently. [Id. at 17-19.]
5. Direct Appeal
Petitioner, through counsel, appealed his conviction to the New York Appellate Division, Second Department, on April 30, 2015. [Dkt. 8-18 at 129.] Petitioner's brief raised the following claims: (1) the constitutional integrity of Miranda was compromised by the tactics of the interrogation process; (2) Wade/Rodriguez issues were infected by suggestiveness and Sandoval compliance is suspect; (3) the procedural improprieties substantively impacted jury selection and the admission of a suppressible victim statement; (4) the evidence adduced warrants an entry of acquittal; (5) prosecutorial misconduct warranted the declaration of a mistrial; (6) Petitioner was denied a fair trial due to an inadequate jury charge; and (7) accepted sentencing principals were overlooked. [Id. at 37-129.] The state submitted its brief in opposition on March 28, 2016. [Dkt. 8-19 at 72.]
The Appellate Division considered Petitioner's arguments, and affirmed the judgment by decision dated September 28, 2016. People v. Alfonso, 38 N.Y.S.3d 566 (App. Div. 2016). The Appellate Division held that the trial court should have suppressed Petitioner's statement to the police in light of Detective Perrotta's conduct that “vitiated the effectiveness of the Miranda warnings.” Id. at 568. The Appellate Division nonetheless concluded that the evidence of Petitioner's guilt, without reference to his statements to the police, “was overwhelming, and there is no reasonable possibility that the error in admitting the defendant's statements might have contributed to his convictions.” Id. at 569. With respect to Petitioner's argument that the evidence adduced warrants an entry of acquittal, the Appellate Division concluded that the evidence “was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Id. In consideration of Petitioner's argument that the prosecutor's comments were improper, the Appellate Division found that it was unpreserved for appellate review. Id. at 570. With respect to Petitioner's argument that accepted sentencing principals were overlooked, the Appellate Division concluded that the trial court providently exercised its discretion in denying Petitioner's request for youthful offender treatment, the trial court was not required to implement concurrent sentences for the conspiracy and attempted murder counts as the acts constituting the relevant crimes were separate and distinct, and the sentence imposed was not excessive. Id. For Petitioner's remaining arguments, the Appellate Division held that they “are without merit or have been rendered academic in light of our determination. Id.
Following the Appellate Division's denial, on July 1, 2016 Petitioner submitted his leave application to the New York Court of Appeals. [Dkt. 8-21 at 1.] In his application, Petitioner primarily argued that the Appellate Division erred when it held that the admission of Petitioner s statement after his interview with Detective Perratto was a harmless error. [Id. at 1-3.] Petitioner then stated that “[further reasons for error are detailed in the enclosed appellant's brief.” [Id. at 4.] Petitioner also stated that “[b]ased upon the above mentioned arguments and those arguments contained in the appellate brief, appellant respectfully prays that leave to the Court of Appeals be granted.” [Id] On March 22, 2017, the Court of Appeals summarily denied Petitioner's request for leave to appeal the Appellate Division's September 28, 2016 decision affirming the trial court's judgments. People v. Alfonso, 76 N.E.3d 1080 (N.Y. 2017).
6. The Instant Petition
Petitioner signed the instant Petition and delivered it to prison officials for mailing on May 18, 2018. [Dkt. 1 at 16.] The Petition was received by the Clerk's Office and filed on May 23, 2018. The Respondent filed a response in opposition to the Petition on August 17, 2018. [Dkts. 8, 11.]
III. APPLICABLE LAW
“Habeas review is an extraordinary remedy.” Bousley v. United States, 523 U.S. 614, 621 (1998) (citing Reed v. Farley, 512 U.S. 339, 354 (1994)). 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. If there has been procedural compliance with these statutes, the court must then determine the appropriate standard of review applicable to the petitioner's claims m accordance with § 2254(d). The procedural and substantive standards applicable to habeas review, which were substantially modified by the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), are summarized below.
A. Exhaustion Requirement
A federal court may not grant habeas relief unless the petitioner has first exhausted his claims in state court. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); see 28 U.S.C. § 2254(b)(1) (“[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that - (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(1) there is an absence of available corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant”); Id. § 2254(c) (the petitioner “shall not be deemed to have exhausted the remedies available in the courts of the State ... if he has the right under the law of the State to raise, by any available procedure, the question presented). The exhaustion requirement promotes interests in comity and federalism by demanding that state courts have the first opportunity to decide a petitioner's claims. Rose v. Lundy, 455 U.S. 509, 518-19 (1982).
To exhaust a federal claim, the petitioner must have “fairly present[ed] his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim,” and thus “giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotation marks and citations omitted). “Because non-constitutional claims are not cognizable in federal habeas corpus proceedings, a habeas petition must put state courts on notice that they are to decide federal constitutional claims.” Petrucelh v. Coombe, 735 F.2d 684, 687 (2d Cir. 1984) (citing Smith v. Phillips, 455 U.S. 209, 221 (1982)). Such notice requires that the petitioner “apprise the highest state court of both the factual and legal premises of the federal claims ultimately asserted in the habeas petition.” Galdamez v. Keane, 394 F.3d 68, 73 (2d Cir. 2005) (internal citation omitted). A claim may be “fairly presented” to the state courts therefore, even if the petitioner has not cited “chapter and verse of the Constitution,” in one of several ways:
(a) [R]eliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.Daye v. Att'y Gen. 696 F.2d 186, 194 (2d Cir. 1982). A habeas petitioner who fails to meet a state's requirements to exhaust a claim will be bailed from asserting that claim in federal court. Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
However, “[f]or exhaustion purposes, a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally bailed.” Reyes v. Keane, 118 F.3d 136,139 (2d Cir. 1997) (internal quotation omitted). “In such a case, a petitioner no longer has ‘remedies available in the courts of the State' within the meaning of 28 U.S.C. § 2254(b).” Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991). Such a procedurally barred claim may be deemed exhausted by a federal habeas court. See, e.g., Reyes, 118 F.3d at 139. However, absent a showing of either “cause for the procedural default and prejudice attributable thereto,” Harris v. Reed, 489 U.S. 255, 262 (1989), or “actual innocence,” Schlup v. Delo, 513 U.S. 298 (1995), the petitioner's claim will remain unreviewable by a federal court.
Finally, notwithstanding the procedure described above, a federal court may yet exercise its discretion to review and deny a mixed petition containing both exhausted and unexhausted claims, if those unexhausted claims are “plainly meritless.” Rhines v. Weber, 544 U.S. 269, (2005); see 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State."); Padilla v. Keane, 331 F.Supp.2d 209, 216 (S.D.N.Y. 2004) (interests in judicial economy warrant the dismissal of meritless, unexhausted claims).
B. Procedural Default
Even where an exhausted and timely habeas claim is raised, comity and federalism demand that a federal court abstain from its review when the last-reasoned state court opinion to address the claim relied upon “an adequate and independent finding of a procedural default” to deny it. Harris, 489 U.S. at 262; see also Coleman v. Thompson, 501 U.S. 722, 730 (1991), Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 126 (2d Cir. 1995). A state court decision will be “independent” when it ‘“fairly appears' to rest primarily estate law.” Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir. 2006) (quoting Colman, 501 U.S. at 740). A decision will be “adequate” if it is “‘firmly established and regularly followed' by the state in question.” Garcia v. Levis, 188 F.3d 71, 77 (2d Cir. 1999) (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)).
The Supreme Court has held that a federal court may review a claim that is procedurally barred if the petitioner can show a “miscarriage of justice,” which occurs where a petitioner is “actually innocent of the crime for which he has been convicted.” Cotto v. Herbert, 331 F.3d 217,239 n.10 (2d Cir. 2002); see Coleman v. Thompson, 501 U.S. 722, 729 (1991).
C. AEDPA Standard of Review
Before a federal court can determine whether a petitioner is entitled to federal habeas relief, the court must determine the proper standard of review under AEDPA for each of the petitioner's claims. 28 U.S.C. § 2254(d)(1)-(2). This statute “modifie[d] the role of federal habeas corpus courts in reviewing petitions filed by state prisoner's,” and imposed a more exacting standard of review. Williams v. Taylor, 529 U.S. 362, 402 (2000). For petitions filed after AEDPA became effective, federal courts must apply the following standard to cases in which the state court adjudicated on the merits of the claim:
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 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.§ 2254(d) (1)-(2). The deferential AEDPA standard of review will be triggered when the state court has both adjudicated the federal claim “on the merits,” and reduced its disposition to judgment. Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001).
Under the first prong, a state court decision is contrary to federal law only if it “arrives at a conclusion opposite to that reached by the [the Supreme Court] on a question of law or if [it] decides a case differently than [the Supreme Court] on a set of materially indistinguishable facts.” Williams, 529 U.S. at 413. A decision involves an “unreasonable application” of Supreme Court precedent if the state court “identifies the correct governing legal rule from the Supreme Court cases but unreasonably applies it to the facts of the particular state prisoner's case,” or if it “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.” Id. at 407.
Under the second prong of AEDPA, the factual findings of state courts are presumed to be correct. 28 U.S.C. § 2254(e)(1); see Nelson v. Walker, 121 F.3d 828, 833 (2d Cir. 1997). The petitioner must rebut this presumption by “clear and convincing evidence.” § 2254(e)(1).
IV. ANALYSIS
Petitioner filed the instant petition in a timely manner. Petitioner's pro se submissions must be interpreted liberally to raise the strongest arguments they suggest. See, e.g., Janakievsh v. Exec. Dir., Rochester Psychiatric Ctr., 955 F.3d 314, 319 (2d Cir. 2020). Petitioner raises the same grounds in this Petition as in his direct appeal: (1) the constitutional integrity of Miranda was compromised by the tactics of the interrogation process; (2) Wade/Rodriguez issues were infected by suggestiveness and Sandoval compliance is suspect; (3) the procedural improprieties substantively impacted jury selection and the admission of a suppressible victim statement; (4) the evidence adduced warrants an entry of acquittal; (5) prosecutorial misconduct warranted the declaration of a mistrial; (6) Petitioner was denied a fair trial due to an inadequate jury charge; and (7) accepted sentencing principles were overlooked. [Dkt. 1.]
Petitioner's brief is incorporated into the federal proceedings by reference in the Petition “(see enclosed brief)”. See Lewis v. Lee, 2015 WL 5751396, at *2 n.2 (S.D.N.Y. Sept. 29, 2015) (“This Court will infer from its attachment to the instant Petition that Petitioner intended to reassert the claims as articulated in the brief.) Copies of unreported cases cited herein will be mailed to Petitioner as a pro se litigant. See Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
A. Ground 1: The Admission of Petitioner's Statement Amounted to Harmless Error
On direct appeal, Petitioner argued his post-arrest statements should have been suppressed because the constitutional integrity of Miranda was compromised by police tactics. [Dkt. 18-8 at 37-57.] Specifically, Petitioner argued that Detective Perrotta made statements that impacted the effectiveness of the Miranda warning. Detective Perrotta's statements included that the Miranda form was a “bullshit form”, that Petitioner could benefit himself by talking to Detective Perrotta, and the implied threat that he used to “bounce” people off the walls.
The Appellate Division agreed to the extent that the court found that these statements regarding Miranda impacted its effectiveness, and resulted in a constitutional violation. People v. Alfonso, 38 N.Y.S.3d 566, 568-69 (App. Div. 2016) (“Under the circumstances, the detective's statements undermined the Miranda warnings and rendered them ineffective in advising the defendant of his rights. Accordingly, the hearing court should have granted that branch of the defendant's omnibus motion which was to suppress his statements to the police.” (internal citations omitted)). However, the Appellate Division found that the admission of the statements Petitioner made to Detective Perrotta amounted to a harmless error. Id. Petitioner contested the harmless error determination in his leave application, but the Court of Appeals upheld the Appellate Division's decision. See People v. Alfonso, 76 N.E.3d 1080 (N.Y. 2017); see also Dkt. 8-21 at 1-4.
In this Court, Respondent does not contest the Appellate Division's conclusion as to the Miranda violation, but asserts that the state court's harmless error analysis was correct and is entitled to deference under AEDPA. See 28 U.S.C. § 2254(d). I agree. Even assuming, arguendo, that Petitioner's statements were obtained in violation of his Miranda rights, the Appellate Division nonetheless did not err in finding that the admission of the statements were harmless.
On Direct appeal, Petitioner-and, in turn, the Appellate Division-relied heavily upon the Appellate Division's holding in People v. Dunbar, 958 N.Y.S.2d 764 (App. Div. 2013), aff'd People v. Dnnbar, 23 N.E.3d 946 (N.Y. 2014). Dunbar arguably expanded federal constitutional requirements. See generally Marino v. Superintendent, 2019 WL 1232088, at *3 n.5 (E.D.N.Y. Mar 15, 2019)
Where a state appellate court has found that a state trial court committed a constitutional violation but has held that the violation was harmless, habeas relief is warranted where an error “had substantial and injurious effect or influence in determining the jury's verdict.” Fry v. Pitler, 551 U.S. 112, 116 (2007) (quoting Brecht v. Abrahamson, 507 U.S. 619, 631 (1993)). This Brecht standard requires more than a reasonable possibility that the error was harmful.” Spencer v. Capra, 788 Fed.Appx. 21, 23 (2d Cir. 2019). This Brecht standard also “subsumes” AEDPA's deferential standard of review. Fry, 551 U.S. at 120.
“In assessing an error's likely impact on the jury, The Supreme Court has found the following factors to be relevant... (1) the overall strength of the prosecution's case; (2) the prosecutor's conduct with respect to the improperly admitted evidence; (3) the importance of the wrongly admitted testimony; and (4) whether such evidence was cumulative of other properly admitted evidence.'” United States v. Lombardozzi, 491 F.3d 61, 76 (2d Cir. 2007) (quoting Zappulla v. New York, 391 F.3d 462, 468 (2d Cir. 2004)). “The strength of the prosecution's case, however, ‘is probably the single most critical factor.'” Id. (quoting United States v. Reifler, 446 F.3d 65, 87 (2d Cir. 2006)).
Here, the prosecution's case against Petitioner was overwhelming. Petitioner's co-conspirators, Herrera-Garcia and Monroe, offered testimony that Petitioner was executing a “TOS”, or terminate on sight, on behalf of the Latin Kings. [Dkts. 8-57 at 52-54, 8-58 at 33 42, 8-62 at 68.] The two victims, Rivera and Perez-Colon, both identified Petitioner as the shooter. [Dkts. 8-50 at 133-37, 8-54 at 5-7.] In addition, three of Petitioner's co-conspirators, Herrera-
Garcia, Monroe, and Price, identified Petitioner as the individual who shot Rivera and Perez-Colon. [Diets. 8-59 at 51-54, 8-60 at 94, 8-62 at 68.] There is also surveillance video that shows Petitioner entering the apartment building at approximately 4:30 pm, and leaving the building around 4:53 pm, shortly before the police responded to the report of the shooting. [Dkt. 8-47 at 13-20.] Moreover, Petitioner's statements to the police were not critical to the prosecution's case. Petitioner's statement amounted to disclosing to the police to the location of the gun, but does not amount to a confession. “Even without Petitioner's statements, the state's evidence was sufficient to convict Petitioner.” Loucks v. Capra, 2019 WL 2330295, at ¶ 3 (S.D.N.Y. Apr. 22, 2019), report and recommendation adopted, 2019 WL 2326225 (S.D.N.Y. May 30, 2019). Thus, Petitioner's statement, and the inclusion thereof, did not have a “substantial and injurious effect or influence in determining the jury's verdict.” Fry, 551 U.S. at 116. Accordingly, I recommend that Petitioner's claim be denied.
In addition to his Miranda claim, Petitioner also argued on direct appeal that his post-arrest statements should have been suppressed because (1) he requested counsel during the interview, and (2) he was under the influence of medications when he waived his Miranda rights. Finding a Miranda violation, the Appellate Division did not reach Petitioner's alternative pounds 01 suppression See People v. Alfonso, 38 N.Y.S. 3d at 568-69. There is no reason to revisit . Petitioner's alternative grounds for suppression here because any constitutional error resulting in admission of Petitioner's statement would be subject to an identical harmless error analysts under the Brecht “substantial and injurious effect” standard. Fry, 551 U.S. at 1.
B. Grounds 2 - 7: Petitioner's Remaining Claims are Deemed Exhausted But Procedurally Barred
Petitioner's remaining grounds are deemed exhausted but procedurally barred. For his second ground, Petitioner argues that Perez-Colon's identification of Petitioner was infected by suggestiveness and that he was unsure whether he participated in a Sandoval hearing. [Dkt. 1 at 84.] Petitioner's third ground for relief distills down to two arguments: (1) Petitioner was deprived of his right to be present during a material stage of the trial because he did not execute the Antommarchi waiver until after jury selection was completed, and (2) Perez-Colon's 911 recording should have been suppressed. [Id. at 95.] In his next ground for relief, Petitioner argues that the evidence adduced at trial warranted the entry of an acquittal. [Id. at 104.] For hrs fifth ground, Petitioner argues that there was prosecutorial misconduct that warranted the declaration of a mistrial. [Id. at 118.] For his penultimate ground for relief, Petitioner argues that he was denied a fair trial because the jury was not instructed regarding a lesser included offense. [Id. at 17.] For his final ground, Petitioner argues that accepted sentencing principles were overlooked. [Id. at 141.] Given that Petitioner raises the same arguments here as he did in his direct appeal, Petitioner properly raised these issues to the Appellate Division. [Dkt. 8-18 at 58-69.] However, whether Petitioner properly exhausted his remaining claims on appeal to the New York Court of Appeals is a closer question.
Petitioner's enclosed brief from his direct appeal raised additional arguments, but Petitioner did not direct this Court to review those arguments in his brief. [Dkt 1 at 17.] This stands in stark contrast to Petitioner's other claims whereby Petitioner specifically instructed the Court to see enclosed brief.” [Dkt. 1 at 6, 8, 9, 11, 17-18.] Accordingly, I recommend that Your Honor decline to consider to these arguments.
In this Circuit, there are two lines of cases that lay out how to exhaust a claim to the New York Court of Appeals in the instance where a petitioner attaches their appellate brief. In one line of cases, the Second Circuit has held that the New York Court of Appeals will be sufficiently apprised of petitioner's arguments when a petitioner encloses their brief and requests review. See Galdamez v. Keane, 394 F.3d 68, 76 (2d Cir. 2005) (finding exhaustion where the petitioner enclosed his brief and stated “Enclosed please find copy [sic] of the decision of the Appellate Division affirming this conviction. The appellant hereby requests leave to appeal this Court.”); Morgan v. Bennett, 204 F.3d 360, 369-70 (2d Cir. 2000) (finding exhaustion where the petitioner enclosed his brief and stated “1 am enclosing copies of the briefs filed in the Appellate Division and that Court's order and opinion. Please advise me of the judge designated to decide this application so that I may send that judge a follow-up letter in support of the application. We request this Court to consider and review all issues outlined in defendant-appellant's brief and pro se supplemental brief.”) In the other line of cases, the Second Circuit has held that the Court of Appeals will not be sufficiently apprised of a petitioner's argument where a petitioner encloses their brief, but spends the majority of their leave application arguing a single claim and makes “only passing reference to possible other claims to be found in the attached briefs.” Jordan v. Lefevre, 206 F.3d 196, 198 (2d Cir. 2000); see Ramirez v. Att 'y Gen. N. Y, 280 F.3d 87, 97 (2d Cir. 2001) (finding that a petitioner had not fairly apprised the Court of Appeals of arguments contained in Point III of the appellant's brief where the leave application asserted: “This issue raises important questions of Due Process of law, under N.Y. Const., Art. I, sec. 6; U.S. Const. 14th Amend. It was properly preserved in the Appellate Division. See Appellant's Brief at Points II, III and V.”)
The Second Circuit draws the line between these cases as follows:
References to attached briefs without more will preserve issues only if the Court of Appeals is clearly informed that the reference is asserting issues in those briefs as bases for granting leave to appeal. In Morgan, the language unmistakably requested review of each point in the Appellate Division brief. In Jordan the words “for all of these reasons and the reasons set forth in [the] Appellate Division briefs” might as easily have been a reference to additional reasons for reviewing the Batson claim as an incorporation of other, different claims asserted in the lower court.Ramirez, 280 F.3d at 97.
Here, when Petitioner raised his remaining claims to the Court of Appeals, he enclosed his brief and indicated that it contained “further reasons for error.” [Dkt. 8-21 at 1-4.] In his conclusion, he also requested leave to appeal “[b]ased on the above mentioned arguments and those arguments contained in the appellate brief.” [Id. at 4.] Nonetheless, Petitioner's leave application allocated three pages to the harmless error issue and made only passing reference to his appellate brief. See Jordan, 206 F.3d at 198. Further, Petitioner's reference to his appellate brief “might as easily have been a reference to additional reasons for reviewing” Petitioner's harmless error argument. Ramirez, 280 F.3d at 97. Thus, Petitioner's leave application did not “fairly apprise” the Court of Appeals that Petitioner sought review of Petitioner's remaining claims and as a result Petitioner's arguments here are unexhausted. Jordan, 206 F.3d at 198. Although Petitioner's arguments are unexhausted, Petitioner “no longer has remedies available in the courts of the State” for his remaining claims. Grey, 933 F.2d at 120; see N.Y. Crim. Proc. Law § 440.10(2)(c). Thus, Petitioner's arguments are deemed exhausted but procedurally barred. Petitioner may still prevail if he can show actual innocence or cause for the procedural default and resulting prejudice. However, Petitioner makes no such showing here. Accordingly, I conclude, and I respectfully recommend Your Honor conclude, that this Court cannot review Petitioner's remaining claims.
V. CONCLUSION
For the reasons set forth above, I conclude, and respectfully recommend that Your Honor conclude, that the Petition for a Writ of Habeas Corpus be denied. I recommend that no certificate of appealability be issued 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. See 28 U.S.C. § 2253 (c); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
NOTICE
Pursuant to 28 U.S.C. § 636 (b)(1)(C), Rule 72 (b) of the Federal Rules of Civil Procedure, and Rule 8 (b) of the Rules Governing Section 2254 Cases in the United States District Courts, the parties shall have fourteen (14) days from service of this Report and Recommendation to serve and file written objections. If copies of this Report and Recommendation are served upon the parties by mail, the parties shall have an additional three (3) days, or a total of seventeen (17) days, from service of this Report and Recommendation to serve and file written objections. See also Fed.R.Civ.P. 6 (d). Such objections, if any, along with any responses to the objections, shall be filed with the Clerk of the Court with extra copies delivered to the chambers of the Honorable Kenneth M. Karas, at the Honorable Charles L. Brieant Jr. Federal Building and United States Courthouse, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered. See Caidor v. Onondaga County, 517 F.3d 601, 604 (2d Cir. 2008).
Requests for extensions of time to file objections must be made to Judge Karas. A copy of this Report and Recommendation has been mailed to:
Justin V. Alfonso 13-A-3294 Wende Correctional Facility Wende Rd., P.O. Box 1187 Alden, NY 14004-1187