Opinion
1:21-cv-10423 (LGS) (SDA)
09-24-2022
Tarrek Arnold, Petitioner, v. Superintendent of Upstate Correctional Facility,[1] Respondent.
REPORT AND RECOMMENDATION
STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE.
TO THE HONORABLE LORNA G. SCHOFIELD, UNITED STATES DISTRICT JUDGE:
INTRODUCTION
Pro se Petitioner Tarrek Arnold (“Arnold” or “Petitioner”), currently incarcerated at Upstate Correctional Facility in New York State,seeks a writ of habeas corpus under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254. (Pet., ECF No. 1, at 1.) On March 20, 2016, following a jury trial, a judgment was rendered in the Supreme Court of the State of New York, New York County, convicting Petitioner of the following charges: one count of Attempted Murder in the Second Degree under Penal Law § 110-125.25(1) sentencing him to twenty-two years imprisonment and five years of post-release supervision (“PRS”); one count of Assault in the First Degree under Penal Law § 120.10(1) sentencing him to twenty years imprisonment and five years of PRS; two counts of Criminal Possession of a Weapon in the Second Degree under Penal Law § 265.03(1)(b) and (3) sentencing him to fifteen years imprisonment and five years of PRS; one count of Assault in the Second Degree under Penal Law § 120.05(3) sentencing him to five years imprisonment and five years of PRS; and one count of Escape under Penal Law § 205.15(2) sentencing him to two to four years imprisonment to run consecutively to the concurrent sentences. (Pet. at 2-3; Answer, ECF No. 16, ¶ 5.)
Because Petitioner was incarcerated within this District at the time he filed his Petition, the Court retains jurisdiction. See Phillips v. Hufford, No. 13-CV-00998 (ALC), 2014 WL 3871195, at *1 n.1 (S.D.N.Y. Aug. 6, 2014).
Petitioner challenges his conviction on seven grounds he raised in state court on appeal, plus two additional grounds. (See Pet. at 4-12.) For the reasons set forth below, I respectfully recommend that the Petition be DENIED.
BACKGROUND
I. Facts Giving Rise to Arnold's Conviction
The incidents giving rise to Arnold's conviction occurred on June 8, 2015 and June 23, 2015. (SR 862, 869-74(Det. Cabbell).) On June 8, 2015, Jamal McCaskill (”McCaskill”) was shot four times on a sidewalk on the corner of 140th Street and Seventh Avenue in New York City. (Id. 862-64.) On June 23, 2015, following Arnold's arrest in connection with the shooting, Arnold escaped police custody in handcuffs after knocking down an officer. (Id. 874.)
The state court record was filed by Respondent in three parts with Part I filed at ECF No. 16-1 (SR 1-465), Part II filed at 16-2 (SR 466-1240), and Part III filed at 16-3 (SR 1241-1262). Citations to pages of the record are made using the prefix “SR” followed by the page number(s) of the record itself (e.g., “SR 1”). The transcript of the trial testimony is part of the state court record, and where trial testimony is cited, the name of the witness providing such testimony is included in parentheses following the page number(s).
New York City Police Department (“NYPD”) Detective Darnell Cabbell of the 32nd Precinct was in charge of the police investigation for the shooting at issue in this case. (See Background Section I.C., infra.)
A. The Shooting
On June 8, 2015, Ricardo Santos, the manager of the bodega in front of which McCaskill was shot, heard noises and gunshots around 10 p.m. when he was checking out customers at the cash register. (SR 772, 774 (Santos).) Video footage from outside the bodega showed a man walking south on Seventh Avenue from the direction of the residential building 2400 Seventh Avenue to the corner of 140th Street and Seventh Avenue. (Id. 971, 973 (Det. Hull);People's Ex. 4.) The man was wearing a gray hooded sweatshirt, three quarter pants that came around the calf, black socks and black sneakers. (SR 972, 977 (Det. Hull).) The man pulled a firearm out of his sweatshirt pocket and fired numerous shots at another male. (Id. 971 (Det. Hull).) According to Detective Hull, that man was McCaskill. (Id. 972.) The shots were fired around 10 p.m. (Id. 864 (Det. Cabbell).)
Detective Daniel Hull (“Det. Hull”) was a detective for the NYPD who was with the Anticrime Unit at the time of the shooting. (See Background Section I.C., infra.)
The video contained in People's Exhibit 4 was included as part of People's Exhibit 12 at trial. (SR 978 (Det. Hull).) People's Exhibit 12 was provided to the Court (see 5/20/22 Mem. End., ECF No. 18), and was reviewed by the Court in making its recommendation herein.
McCaskill fell to the ground in a puddle of his own blood. (SR 864 (Det. Cabbell).) Two women ran into 2400 Seventh Avenue into Apartment 6. (Id. 886.) The shooter was right behind them running into the same building. (Id. 886 (Det Cabbell), 972, 976 (Det. Hull).) Arnold later was seen coming out of Apartment 5 right next door to where the women entered. (Id. 1025 (Det. Hull).)
The police detectives were able to testify regarding movements inside the apartment building because, as discussed infra, there were cameras inside the building and the detectives reviewed video footage from those cameras.
Around the same time, off-duty NYPD Officer Lorenzo Jones was leaving his apartment in 2400 Seventh Avenue for work when he heard three or four gunshots coming from 140th Street. (SR 831, 834 (Off. Jones).) Officer Jones looked out his window and saw a man stumble at the southwest corner of 140th street and collapse to the ground, and twenty to thirty seconds later, Officer Jones saw a police van pull up. (Id.) After Officer Jones went downstairs to see if he could help, another officer sent him a video of footage of the shooting outside the bodega that had been obtained from the bodega.(Id. 831-32.)
The bodega had five cameras inside the building and two outside the building that captured and recorded footage on both 140th Street and Seventh Avenue. (SR 772-73 (Santos).)
Officer Jones did not recognize the shooter from the video, but the shooter's walk “looked familiar,” and he noted that the shooter was wearing black shorts, high black socks and black boots. (SR 833 (Off. Jones).) As he was heading back to his apartment, Officer Jones noticed someone coming down the stairs leaving the building wearing the same type of clothing. (Id. 83334.) Officer Jones recognized this man to be Arnold who Officer Jones knew from when Arnold lived in the building about a year earlier. (Id. 834, 829.) Officer Jones was friends with Arnold's brother with whom Arnold lived with for about fourteen years, and Officer Jones would see Arnold nearly every day since they lived on the same floor in the apartment building. (Id. 830, 841.)
B. Aftermath Of The Shooting
On June 8, 2015, working with the Fire Department, Jonathan Nazaroff (“Nazaroff”) and his partner were assigned to the ambulance that responded at 9:54 p.m. to McCaskill being shot. (SR 749-50 (Nazaroff).) Nazaroff and his partner were the first emergency services personnel to arrive, and when they arrived, the police were surrounding McCaskill who was laying on the south side of the street. (Id. 750-51). They removed McCaskill's clothing and found four gunshot wounds located in his abdomen, flank and both arms to which they applied dressings in order to control the bleeding and transported him to Harlem Hospital. (Id. 751-52.)
McCaskill was admitted to the Harlem Hospital on June 8, 2015 at 10:42 p.m., where a trauma team responded. (SR 998, 1003 (Dr. Safavi).) After his initial resuscitation in the emergency room, McCaskill was taken to the operating room to undergo exploration of both arm wounds because his pulse was diminished. (Id. 1007.) Through this exploration, the vascular surgeon found the ulnar nerve severed causing nerve damage for which he needed surgery, and he also found a fracture in McCaskill's arm above the elbow. (Id. 1008.) In addition, McCaskill had gunshot wounds to the right chest, both arms and face; a collapsed lung; and three nondisplaced fractures to three different ribs. (Id. 1003-04, 1006.) A chest tube was placed in McCaskill in order to drain blood and re-expand his lung and two lacerations were stapled on his chin. (Id. 1006, 1003-04.) Several days later, Dr. Safavi performed surgery to drain residual blood clots that would not drain through the tube. (Id. 1005.)
Dr. Ali Safavi was the Chief of Cardiothoracic Surgery at Harlem Hospital. (SR 998.)
C. The Police Investigation
On June 8, 2015, Detective Hull arrived on location where the crime scene already was secured and McCaskill had been removed. (R. 962, 968 (Det. Hull).) While doing a video canvas, Detective Hull noticed video cameras on the outside of the bodega where the shooting occurred. (Id. 969.) Detective Hull, with permission of the owner, downloaded footage from the cameras to assist in the investigation of the shooting. (Id.) After viewing the bodega video and noticing the shooter came from 2400 Seventh Avenue, Detective Hull conducted a building canvas of the apartment complex and found numerous cameras on the outside and inside of the building. (Id. 973.) Detective Hull then called the building manager, who requested the footage from the company that had installed the cameras.(Id.)
Later, after receiving and viewing the video footage from the apartment building, Detective Hull, who had known Arnold for ten to twelve years, recognized Arnold in the video and noticed he was wearing the same clothes the shooter was wearing in the footage from the bodega. (SR 975, 980 (Det. Hull).) Detective Hull had not seen anyone else wearing that clothing in any of the footage he reviewed. (Id. 977, 991.)
Detective Darnell Cabbell of the 32nd Precinct was in charge of the police investigation, and he and his partner responded to the scene the night of June 8, 2015. (SR 863, 880-81 (Det. Cabbell).) There were about eight to ten NYPD officers already on scene when they arrived. (Id.) They began their investigation by canvassing the area looking for witnesses and other evidence. (Id. 863, 880-81.) After canvassing the area, Detective Cabbell attempted to speak with McCaskill twice about the shooting, but McCaskill was not willing to answer any questions. (Id. 863-65, 89091.)
NYPD Officer Contreras of the Evidence Collection Team arrived at the scene at 11:45 p.m. and collected evidence, including four .45 caliber shell casings. (SR 780-83 (Off. Contreras).) Thereafter, NYPD Detective Jason Bomberger of the Police Crime Laboratories Firearm Analysis Section performed a microscopic examination on the four shell casings, which revealed that all four casings came from the same gun. (SR 790 (Off. Contreras), 799 (Det. Bomberger).)
Over the course of multiple days from June 9, 2015 to June 17, 2015, Officer Jones met with Detective Cabbell to view footage of the video surveillance from the bodega and the apartment building at 2400 Seventh Avenue.(SR 834, 892-94 (Det. Cabbell).) After Officer Jones identified the shooter as Arnold, Detective Cabbell issued an I-card alerting NYPD officers that the detectives were looking for Arnold in connection with this shooting. (Id. 835, 839, 869.)
Victor Zambrano, a Media Services Technician for the Manhattan District Attorney's office, and Andrew Rowland Robinson, the Assistant Media Services Technician for the District Attorney's office, created a single exhibit, i.e., People's Exhibit 12, consisting of a compilation of the surveillance videos from the bodega and the apartment building. (R. 950-59 (Zambrano).) As set forth above, the Court reviewed People's Exhibit 12 in making its recommendation herein. See footnote 6, supra.
D. Arnold's Arrest And Escape
On June 23, 2015, Arnold was arrested and brought to the precinct around 10:30 a.m. (SR 871 (Det. Cabbell).) Arnold's cellphone was taken, and he was processed in relation to the shooting. (Id. 869, 895.) Arnold was “calm” and “cooperative” during the process, and Detective Cabbell and another detective, i.e., Detective Pacheco, rear cuffed Arnold to take him downtown to the detention center near the courthouse. (Id. 873, 895, 896.) After leading Arnold down the stairs of the precinct, Detective Pacheco was distracted by a speeding bus going eastbound, but Detective Cabbell held Arnold by the bicep waiting for the unmarked vehicle that would take them downtown. (Id. 873-74.) As Detective Cabbell pulled Arnold back from a vehicle going around a car, Arnold used his body and shoulder to shove Detective Cabbell back causing Detective Cabbell to fall to the ground. (Id. 874, 897-98.)
Arnold then turned around and ran westbound on the sidewalk on 135th Street leaving Detective Cabbell and Detective Pacheco chasing after him. (SR 874-75 (Det. Cabbell).) Arnold, still in handcuffs, turned on Eighth Avenue and ran southbound through parked cars and through oncoming traffic remaining two car lengths in front of the detectives until he reached 480 St. Nicholas Avenue. (SR 875, 899.) A review of video footage obtained from cameras inside the building at 480 St. Nicholas Avenue, showed that Arnold ran up the staircase, entered an apartment, came out, put on a sweater and maneuvered his cuffed hands in front of himself. (SR 876-77 (Det. Cabbell), 1058 (Det. Vazquez).) Arnold then escaped the building. (SR 877-78 (Det. Cabbell).)
Detective Heriberto Vazquez was on duty with the Anticrime Department for the NYPD in the 32nd Precinct and was the lead investigator on Arnold's escape. (SR 1052-55.)
Detective Cabbell later was taken to St. Luke's Hospital to receive treatment for the “throbbing” pain in his left knee that had swelled to “the size of a grapefruit” from landing on it when Arnold shoved him to the ground. (SR 878, 874, 901-02 (Det. Cabbell).) Detective Cabbell's knee injuries prevented him from returning to work and required physical therapy and surgery. (Id. 879, 904, 908.)
E. The Continued Investigation And Arnold's Second Arrest
After Arnold's escape, Officer Richard Pengel collected Arnold's phone that was left behind at the precinct and received a search warrant to search the cellphone. (SR 912-13 (Off. Pengel).) Officer Pengel then took the cellphone to an analyst with the Violent Crimes Unit where it was given to analyst Brendan Fallon who then brought it to the High-Tech Analysis Unit. (Id. 914, 917.) At the unit, Borislav Vestfrid, a Computer Forensic Analysist for the DA's Office, conducted a physical extraction of the phone by which he was able to access the phone's text messages. (R. 923, 926 (Vestfrid).) One of the text messages Arnold sent from the phone stated, “I just clapped something the other day so shit kind of Brazy feel me.” (SR 993 (Det. Hull).) Detective Hull testified that “to clap” means “to shoot.” (Id. 994.) A later texts states that the “Older nigga got hit 4 times.” (Id. 994.) McCaskill was around twenty years older than Arnold, and there were four gunshots on the night of the shooting. (Id. 994, 995, 831.)
Detective Vasquez went to the building at 410 St. Nicholas Avenue, where Arnold was last seen after his escape, and reviewed the video of the escape captured by the cameras on the inside and outside of the building. (SR 1052-55 (Det. Vazquez).) About a month later, Detective Vasquez with the assistance of the Violent Felony Apprehension Unit, apprehended Arnold. (Id. 1059.)
II. Relevant State Court Proceedings
A. Indictment
By New York County Indictment Number 1975-2015, filed on July 6, 2015, Arnold was charged with Attempted Murder in the Second Degree, Assault in the First Degree, two counts of Criminal Possession of a Weapon, Assault in the Second Degree and Escape in the First Degree. (SR 290-93.)
B. Pretrial Proceedings
In August 2015, Mark Jankowitz (“Jankowitz”), defense counsel for Arnold, filed a Motion to Suppress Physical Evidence. (SR 313-14, 323-24, 332.)Arnold had been informed that the prosecution intended to introduce Arnold's cellphone and its content into evidence at trial. (Id. 323-24.) Arnold argued that “[t]he police detained and searched [him] for no apparent reason.” (Id. 323.) Arnold thus asserted that “[t]he police action constituted an illegal, warrant less [sic] arrest based upon conduct which failed to constitute probable cause” and that all evidence obtained subsequent to the initial stop or arrest are the direct fruit of the illegality and must be suppressed.” (Id. 324.)
Although the motion and supporting affirmation are dated September 22, 2015, the motion has a date stamp of August 20, 2015. (SR 313.)
On September 22, 2015, Justice Edward J. McLaughlin denied Arnold's motion to suppress, explaining that, because a civilian identified Arnold as the shooter in a still photograph and later video surveillance footage, the police had probable cause to arrest Arnold. (SR 349.) Further, “[Arnold's] denial that he is the shooter does not create a factual question about the factual and legal basis for his arrest.” (Id. 349-50 (citations omitted).)
C. Trial
On January 14, 2016, Arnold's trial began before Justice McLaughlin in New York County Supreme Court. (SR 722.) Arnold was represented at trial by Jankowitz. (Id.)
1. State's Case
During trial, the State offered testimony from numerous witnesses regarding the facts and circumstances set forth in Background Section I, supra.
2. Defense's Case
During trial, Arnold offered testimony from a single witness, i.e., McCaskill, the victim of the shooting. (SR 1062-77.) McCaskill acknowledged during his testimony that he had been a friend of Arnold for all of Arnold's life. (Id. 1063.) McCaskill testified that, on June 8, 2015, he was “hanging out” on West 140th Street and Seventh Avenue when he heard gunshots. (Id. 1065-66.) He stated that he had turned around to see who the shots came from, but could not see the shooter's face. (Id. 1066.) However, he said that he “kn[e]w” that the shooter was taller than him, and that Arnold is the same height as McCaskill. (Id.) McCaskill testified that he did not believe it was Arnold who shot him. (Id. 1066-67.)
Video footage obtained later does not show McCaskill turning around to look at the shooter. (See SR 1159 (Prosecution Summation); see People's Ex. 12.)
3. Summations, Jury Charge, Jury Deliberations and Verdict
During summation, Arnold's counsel argued that McCaskill voluntarily testified that Arnold was a friend and would not have shot him, and thus there was reasonable doubt. (SR 1097, 1099.) He further argued that the description McCaskill gave of the shooter did not match Arnold and that Officer Jones' testimony and identification of Arnold could not be trusted. (Id. 1097, 1100-03.) In addition, he argued that the clothing evidence of the shooter was inconsistent because the top layer changes; the video footage could not be trusted since one camera did not capture footage during the time of the crime; and the investigation was not thorough. (Id. 110608, 1109-10, 1111-14.) As for the escape charge, counsel argued that the arrest was not authorized, so no crime was committed. (Id. 1118.)
After showing the video compilations in their entirety, the prosecution in its summation argued that motive was not an element; Arnold was a “rash” man; and all the elements were proven beyond a reasonable doubt. (SR 1122-62.) The prosecution also argued that the only witness Arnold put forth at trial, i.e., McCaskill “was one that you know was lying to you.” (Id. 1160.) The prosecution then asked the jury to “[s]end a message to both Jamal McCaskill and Tarrek Arnold.” (Id.) Following the defense's objection, Justice McLaughlin stated: “Message sending is one of those phrases that has been disqualified from use at least in our setting, so no message sending. They do what they think is appropriate based on the proof and then as I've [said] the chips fall where they may.” (Id. 1161) The prosecution thereafter completed their summation and asked the jury to find Arnold guilty. (Id. 1162.)
The transcript contains the word “heard,” instead of “said.” (SR 1131.) However, since Justice McLaughlin used the expression “let the chips fall where they may” elsewhere during the trial (Id. 632, 697), it is clear from context that the word in the transcript should have been “said,” not “heard.”
Justice McLaughlin charged the jury on six counts: Attempted Murder (see SR 1182-84); Assault in the First Degree (see id. 1184-87); two counts of Criminal Possession of a Weapon in the Second Degree (see id. 1187-90); Assault in the Second Degree (see SR 1190-92); and Escape in the First Degree. (See id. 1192-93.) Justice McLaughlin advised the jury of the difference between direct and circumstantial evidence and informed them that either type “may be enough to establish guilt beyond a reasonable doubt depending on the facts of the case as the jury finds them” and from inferences that can “fairly and reasonably be drawn from the facts.” (Id. 118081.) Justice McLaughlin further advised the jury that “the fact that two separate incidents are combined in one trial in and of itself is irrelevant to [their] consideration, but depending on the facts [they] determine, there may be a justifiable interaction and usage of the evidence one to the other.” (Id. 1182.)
During jury deliberations, the jury sent certain notes to the judge. (See SR 1207-24.) The second note requested “any evidence related to the injury other than the testimony of Officer Cabbell.” (Id. 1221.) In response to the jury's note, Justice McLaughlin stated: “The evidence is what it is, deal with it. The definitions of serious physical injury and physical injury are different. There is no evidence in the record. Remember, it's the record on which you base your decision and your assessment of it.” (Id. 1224.) A third jury note was received but the trial transcript does not reflect its contents.(See id. 1207-24.) After deliberations, the jury convicted Arnold of all six counts. (Id. 1225-28.)
According to the People's state court appeal brief, the third jury note requested “a video exhibit that jurors could not locate on the computer in the jury room.” (SR 156.)
D. Sentencing
On March 29, 2016, Arnold was sentenced to a prison term a twenty-two years determinate followed by five years PRS for the charge of attempted murder in the second degree; a twenty-year determinate term followed by five years PRS for the charge of assault in the first degree; a fifteen-year determinate term followed by five years PRS for the two weapon convictions; a concurrent five years for the assault to the police officer; and two to four years consecutive to the twenty-two year sentence already imposed for the charge of escape. (SR 124143.) The total aggregate sentence was twenty four to twenty eight years imprisonment. (Id. 1242.)
E. Direct Appeal
In September 2019, Arnold, through his appellate counsel, the Office of the Appellate Defender, filed a direct appeal to the Supreme Court of the State of New York, Appellate Division, First Department. (SR 10, 81.) In a seventy-one-page brief, Arnold raised the following claims: (1) the trial court allowed the prosecution to introduce identification testimony without providing the pre-trial notice required by state law which warranted reversal; (2) the trial court included notations next to two counts on the verdict sheetwithout providing the jurors with the statutorily-mandated instruction that the sole purpose of the notations was to distinguish between those counts, which could have led the jurors to believe there was special significance to the markings, warranting reversal; (3) the trial court committed two errors during jury deliberations requiring reversal: (a) Arnold was not informed about the third jury note that was “ambiguous” since it requested video surveillance of the escape which may have been additional footage not in evidence, and (b) the court included extraneous and prejudicial information in its response to the jury's second note; (4) the sole identification testimony was based on a clothing comparison made by two law enforcement officers who did not witness the incident rather than McCaskill's testimony that exculpated Arnold, and therefore, the conviction was against the weight of evidence; (5) the trial court erroneously denied the defense's motion to suppress the contents of Arnold's cellphone since the officer's lacked probable cause to search the phone; (6) the prosecution's closing remarks were prejudicial and shifted the burden to the defense, requiring reversal; and (7) the sentence should be reduced in the interest of justice. (Id. 14-15.)
On the verdict sheet, the court included annotations next to the third and fourth counts, such that Count Three stated, “Criminal Possession of a Weapon in the 2nd Degree (Intent)” and Count Four stated, “Criminal Possession of a Weapon in the 2nd Degree (Not in Home or Place of Business).” (SR 30.) At trial, Arnold did not object to any part of the jury charge, and his attorney consented to the wording of the verdict sheet by signing his initials on the bottom of the sheet. (Id. 153.)
In a footnote to its Appellate Division brief, appellate counsel also argued, in the alternative, that trial counsel was ineffective with respect to the handling of the verdict sheet. (See SR 48 n.9.)
On June 25, 2020, the Appellate Division unanimously affirmed Arnold's conviction. People v. Arnold, 184 A.D.3d 524 (1st Dep't 2020); see also SR 1245-48. With respect to the first ground for appeal, the Appellate Division held that the “[d]efendant abandoned any argument that the detective's testimony identifying defendant in a surveillance video based on prior familiarity should have been precluded for lack of notice....” Arnold, 184 A.D.3d at 524. The Appellate Division found that the lower court never made a final ruling when defense counsel raised the issue, but rather the court deferred the issue pending further discussion, and defense counsel never raised again the issue even when the officer was testifying. Id. at 525. In the alternative, the Appellate Division found that, based upon the record before it, the detective's testimony did not require C.P.L. § 710.30(1)(b) notice. Id. Regardless, the Appellate Division found “any error in this regard was harmless.” Id.
Before the start of trial and before Detective Hull testified, defense counsel raised the issue that, if an identification of the defendant was made and it was the police that arranged it, or the police had a suspect in mind, there must have been notice. (SR 942.) Furthermore, defense counsel argued that, because Detective Hull knew Arnold prior to this incident, that would create a problem for identification purposes. (Id. 943.) Justice McLaughlin agreed to give limiting instructions if the defense requested (see id. 947), but the issue never was brought up again.
Section 710.30 of the New York Criminal Procedure Law provides in relevant part, as follows: “Whenever the people intend to offer at a trial . . . (b) testimony regarding an observation of the defendant either at the time or place of the commission of the offense or upon some other occasion relevant to the case, to be given by a witness who has previously identified him or her or a pictorial, photographic, electronic, filmed or video recorded reproduction of him or her as such, they must serve upon the defendant a notice of such intention, specifying the evidence intended to be offered.” C.P.L. § 710.30(b).
With respect to the second ground for appeal, regarding the verdict sheet, the Appellate Division found the claim “require[d] preservation . . .” and “decline[d] to review it in the interest of justice.” Arnold, 184 A.D.3d at 525. In the alternative, the Appellate Division found that Arnold was not prejudiced. Id. The Appellate Division further held that “Defendant's ineffective assistance claim relating to the verdict sheet is unavailing.” Id.
With respect to the third ground, regarding the juror notes, the Appellate Division held that “[t]he procedure set forth in People v O'Rama (78 N.Y.2d 270 [1991]) was not implicated by a jury note that merely requested an exhibit, along with a request for ministerial assistance in locating it on a computer, but did not request any information about the exhibit.” Arnold, 184 A.D.3d at 525. The Appellate Division held that the trial court's response to the other juror note “correctly stated the law and the response could not have caused any prejudice.” Id.
In O'Rama, the New York Court of Appeals held that the trial court's decision to withhold from defense counsel the contents of a juror's note referring to difficulties the jury was having in reaching a verdict before responding with an Allen charge constituted reversible error. People v. O'Rama, 78 N.Y.2d 270, 277-80 (1991).
With respect to the fourth ground, the Appellate Division held that the verdict was not against the weight of the evidence, and “[t]here [was] no basis for disturbing the jury's credibility determination” since Arnold's guilt was established by “compelling circumstantial evidence.” Arnold, 184 A.D.3d at 524.
With respect to the fifth ground, regarding Arnold's motion to suppress, the Appellate Division held that the trial court properly denied Arnold's motion to controvert a warrant for the search on the cellphone because “[t]he affidavit in support of the warrant set forth the video evidence, from which a compelling inference of probable cause could be drawn similar to the inference of guilt that supported the verdict.” Arnold, 184 A.D.3d at 524.
With respect to the sixth ground, regarding the prosecutor's summation, the Appellate Division held that “[b]ecause the court gave curative instructions and defense counsel failed to request any further relief, defendant did not preserve his challenges to the prosecutor's summation.” Arnold, 184 A.D.3d at 525. The Appellate Division declined to review Arnold's challenges in the interest of justice, and in the alternative found no basis for reversal. Id.
With respect to the seventh ground, the Appellate Division held that it “perceive[d] no basis for reducing the sentence.” Arnold, 184 A.D.3d at 525.
F. Denial Of Leave To Appeal To The Court Of Appeals
Petitioner filed a counseled leave application with the Court of Appeals of the State of New York, asking the court to review the issues raised in his Appellate Division brief.(Pet. at PDF p. 19.) On December 15, 2020, Judge Leslie E. Stein of the New York State Court of Appeals denied Arnold's application for leave to appeal. (SR 1262.)
The administrative record also contains a supplemental letter from the Office of the Appellate Defender explaining in greater detail why Arnold's application for leave to appeal should be granted. (See SR 125061.)
III. Habeas Petition
On December 7, 2021, Arnold filed the Petition now before the Court. (See Pet.) Arnold first raises the seven grounds he raised in the Appellate Division: (1) the trial court erred in allowing the prosecution to introduce identification testimony precluded by law (Ground One); (2) the trial court erred by failing to instruct the jury of the meaning behind the added notations distinguishing two counts on the verdict sheet (Ground Two); (3) the trial court deprived Petitioner of a fair trial by failing to respond “meaningfully” to a note from the jury and failing to apprise Petitioner of another jury note (Ground Three); (4) the conviction was against the weight of evidence since the victim provided exculpatory testimony (Ground Four); (5) the trial court violated Petitioner's State and Federal constitutional rights by failing to suppress evidence obtained pursuant to a search warrant not based on probable cause (Ground Five); (6) Petitioner was denied a fair trial due to statements made during the prosecution's summation (Ground Six); and (7) Petitioner's sentence is excessive (Ground Seven). (See Pet. at 4-7.) Petitioner also added two additional grounds: (1) Petitioner's Due Process rights were violated (Ground Eight); and (2) ineffective assistance of counsel (Ground Nine).(See Pet. at 8-11.)
In his Petition, Petitioner labels his two additional grounds as Ground One and Ground Two. (See Pet. at 8, 11.) In order to avoid confusing these two grounds with Grounds One and Two raised in the Appellate Division, the Court refers herein to the latter two grounds as Ground Eight and Ground Nine.
On January 4, 2022, this case was referred to me for a report and recommendation. (See Am. Order of Reference, ECF No. 8.) On April 28, 2022, Respondent filed his papers in opposition to the Petition. (See Answer; Resp.'s Mem., ECF No. 15.) On June 1, 2022, Petitioner filed a declaration in further support of his Petition. (Pet.'s 6/1/22 Decl., ECF No. 20.)
LEGAL STANDARDS
I. AEDPA Generally
Under 28 U.S.C. § 2254(a), as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a person in custody pursuant to a state court judgment only may prevail on an application for a writ of habeas corpus on the ground that his or her custody violates “the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The petitioner must show that the state court decision, having been adjudicated on the merits, is either “contrary to, or involved an unreasonable application of, clearly established Federal law” or is “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). For the purposes of federal habeas review, “clearly established law” is defined as “the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000).
A state court decision is “contrary to,” or an “unreasonable application of,” clearly established law if it: (1) is contrary to Supreme Court precedent on a question of law; (2) arrives at a conclusion different than that reached by the Supreme Court on “materially indistinguishable” facts; or (3) identifies the correct governing legal rule but unreasonably applies it to the facts of the petitioner's case. Id. at 412-13. The state court decision must be “more than incorrect or erroneous;” it must be “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003). The AEDPA “dictates a highly deferential standard for evaluating state-court rulings” and “demands that state-court decisions be given the benefit of the doubt.” Bell v. Cone, 543 U.S. 447, 455 (2005) (internal quotation marks and citations omitted).
II. Ineffective Assistance Of Counsel
“The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686 (1984). “To prevail on a claim of ineffective assistance of counsel, a petitioner must show (1) that his counsel's representation ‘fell below an objective standard of reasonableness,' and (2) that he suffered prejudice[.]” Momplaisir v. Capra, 718 Fed.Appx. 91, 92 (2d Cir. 2018) (citing Strickland, 466 U.S. at 688, 694).
Under the first Strickland prong, there is a “strong presumption” that a lawyer's conduct “falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. Thus, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” Id.; see also Silva v. Keyser, 271 F.Supp.3d 527, 546 (S.D.N.Y. 2017) (“a defendant has the burden of proving ‘that counsel's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy.'”) (quoting Kimmelman v. Morrison, 477 U.S. 365, 381 (1985) (citing Strickland, 466 U.S. at 688-89)). “In considering whether counsel ‘failed to exercise the skills and diligence that a reasonably competent attorney would provide under similar circumstances,' Boria v. Keane, 99 F.3d 492, 496 (2d Cir. 1996) (emphasis omitted), the Court looks to the totality of the record and must make ‘every effort . . . to eliminate the distorting effects of hindsight.'” Guerrero v. United States, No. 07-CR-00248 (GHW), 2017 U.S. Dist. LEXIS 60923, 2017 WL 1435743, at *6 (S.D.N.Y. Apr. 20, 2017) (quoting Strickland, 466 U.S. at 688-89).
Under the second Strickland prong, a petitioner must demonstrate that the ineffective assistance prejudiced the defense, which means showing “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.
In evaluating whether counsel's performance was ineffective, appellate counsel is subject to the same standard as trial counsel. See Smith v. Robbins, 528 U.S. 259, 285 (2000).
“The Strickland standard is rigorous, and the great majority of habeas petitions that allege constitutionally ineffective counsel founder on that standard.” Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001). Moreover, under AEDPA, a petitioner must show that the state court's application of the Strickland standard was not simply incorrect, but was objectively unreasonable. See Harrington v. Richter, 562 U.S. 86, 101 (2011); see also Fischer v. Smith, 780 F.3d 556, 561 (2d Cir. 2015) (“The standards created by Strickland and § 2254(d) are both highly deferential, and when the two apply in tandem, review is doubly so.”) (internal citations omitted). Thus, on habeas review, a federal court may reverse a state court ruling “only where it was so lacking in justification that there was . . . no possibility for fair minded disagreement.” Fischer, 780 F.3d at 561 (internal quotation omitted).
III. Exhaustion Requirement And Procedural Bar
“[B]efore a federal court can consider a habeas application brought by a state prisoner, the habeas applicant must exhaust all of his state remedies.” Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011) (citing 28 U.S.C. § 2254(b)(1)(A)). The exhaustion requirement has two components. See Parrish v. Lee, No. 10-CV-08708 (KMK), 2015 WL 7302762, at *6 (S.D.N.Y. Nov. 18, 2015). First, a court considers whether the petitioner “‘fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts.'” Id. (quoting Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981)). “‘Second, having presented [the] federal constitutional claim to an appropriate state court, and having been denied relief, the petitioner must have utilized all available mechanisms to secure [state] appellate review of the denial of that claim.'” Parrish, 2015 WL 7302762, at *7 (quoting Klein, 667 F.2d at 282). In connection with this requirement, “the Supreme Court has held that when a ‘petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred,' federal habeas courts also must deem the claim procedurally defaulted.” Sweet v. Bennett, 353 F.3d 135, 139 (2d Cir. 2003) (quoting Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991)).
“When a petitioner can no longer present his unexhausted claim of trial error to the state courts,” a federal court sitting in habeas review “deem[s] the claim procedurally barred.” Richardson v. Superintendent of Mid-Orange Corr. Facility, 621 F.3d 196, 201 (2d Cir. 2010) (internal quotation marks and citations omitted). The merits of a procedurally defaulted claim may not be reviewed by a federal court “unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claim[] will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750; see also Dretke v. Haley, 541 U.S. 386, 388 (2004) (“[A] federal court will not entertain a procedurally defaulted constitutional claim in a petition for habeas corpus absent a showing of cause and prejudice to excuse the default,” or by showing petitioner was “actually innocent of the underlying offense.”).
IV. Adequate and Independent State Ground Doctrine
Under the Adequate and Independent State Ground doctrine, “the Supreme Court will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Davis v. Racette, 99 F.Supp.3d 379, 387 n.3 (E.D.N.Y. Apr. 21, 2015) (internal quotation marks omitted) (citing Coleman, 501 U.S. at 729). “In the context of federal habeas review, if a state prisoner's federal challenge was not addressed in state court because the prisoner failed to meet a state procedural requirement, federal habeas review is barred.” Id. (citing Coleman, 501 U.S. at 730). “A procedural rule is considered adequate if it is firmly established and regularly followed by the state in question.” Davis v. Walsh, No. 08-CV-04659 (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 citations omitted).
“A habeas petitioner may bypass the independent and adequate state ground bar by demonstrating a constitutional violation that resulted in a fundamental miscarriage of justice, i.e., that he is actually innocent of the crime for which he has been convicted.” Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002); see also Coleman, 501 U.S. at 750.
Finally, because Petitioner is Pro se, the court must liberally construe his petition and interpret it “to raise the strongest arguments that [it] suggest[s].” Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (internal citation omitted).
DISCUSSION
I. Petitioner's Claim Regarding Identification Testimony At Trial (Ground One) Is Not Cognizable
In Ground One, Petitioner asserts, as he did in the Appellate Division, that “[t]he trial court erred by allowing the prosecution to introduce identification testimony that was precluded by law.” (See Pet. at 4.) The legal basis for Ground One is set forth in Petitioner's Appellate Division Brief, which is attached to his Petition. In his Brief, Petitioner argued that the trial court erred by allowing Detective Hull to testify to an identification procedure without pretrial notice to the defense under New York Criminal Procedural Law (“C.P.L.”) § 710.30(1)(b). (See Pet. at PDF pp. 59-67.) The Appellate Division held that Petitioner had abandoned any argument predicated on C.P.L. § 710.30; that Detective Hull's testimony did not require notice under C.P.L. § 710.30(1)(b); and that, in any event, any error was harmless. See Arnold, 184 A.D.3d at 524-25.
Petitioner's claim based upon C.P.L. § 710.30 does not present an issue of federal or constitutional law and, thus, is not cognizable on federal habeas review. See Brown v. Woods, No. 07-CV-10391 (JGK), 2010 WL 2605744, at *4 (S.D.N.Y. June 29, 2010) (“Because the claim [predicated on the notice requirements of C.P.L. § 710.30] does not present an issue of federal or constitutional law, it is not cognizable by this Court in a petition for habeas corpus.”); see also Arocho v. Walker, No. 01-CV-01367 (NRB), 2001 WL 856608, at *3 (S.D.N.Y. July 27, 2001) (“Violation of the notice requirement of New York Criminal Procedure Law § 710.30 is purely a matter of state law and raises no constitutional issues for a habeas court to review.”).
Accordingly, I recommend that Petition based upon Ground One be denied.
II. Petitioner's Claim Regarding The Verdict Sheet (Ground Two) Is Procedurally Barred
In Ground Two, Petitioner incorporates his Appellate Division argument that the verdict sheet was improperly annotated. (See Pet. at 4.) On appeal to the Appellate Division, Petitioner had argued that the trial court violated C.P.L. § 310.20(2) when it added statutory language to differentiate counts three and four-the two counts charging criminal possession of a weapon, each under a different theory-but failed to instruct the jury that the sole reason for the notation was to distinguish between the counts. (See Pet. at PDF pp. 36, 52-53.) The Appellate Division held that Petitioner's claim regarding the verdict sheet was “a claim requiring preservation,” and declined to review it since it was not preserved. See Arnold, 184 A.D.3d at 525.
Section 310.20 of the New York Criminal Procedure Law provides in relevant part that, “[w]henever the court submits two or more counts charging offenses set forth in the same article of the law, the court may set forth the dates, names of complainants or specific statutory language, without defining the terms, by which the counts may be distinguished; provided, however, that the court shall instruct the jury in its charge that the sole purpose of the notations is to distinguish between the counts.” C.P.L. § 310.20(2).
Given the Appellate Division's express finding that Petitioner's claim regarding the verdict sheet was unpreserved, that claim is procedurally barred. See Porter v. Martuscello, No. 16-CV-01417 (WHP) (HBP), 2018 WL 8895807, at *9 (S.D.N.Y. Aug. 10, 2018), report and recommendation adopted, 2019 WL 2537415 (S.D.N.Y. June 20, 2019) (“Given the Appellate Division's express findings that the claims concerning the verdict sheet . . . were unpreserved, the claims are procedurally barred ....”). Courts in the Second Circuit routinely uphold New York's contemporaneous objection rule as an adequate and independent state procedural bar sufficient to preclude federal review. See Garcia v. Lewis, 188 F.3d 71, 79 (2d Cir. 1999) (“[W]e have observed and deferred to New York's consistent application of its contemporaneous objection rules.” (citation omitted)); see also Downs v. Lape, 657 F.3d 97, 104 (2d Cir. 2011) (“we have held repeatedly that the contemporaneous objection rule is a firmly established and regularly followed New York procedural rule”).
Petitioner is unable to overcome the procedural bar. First, he has not demonstrated cause for the default since his counsel affirmatively signed the verdict sheet and then failed to object to the charge as given. Second, he cannot establish actual prejudice, given the overwhelming evidence of his guilt. See Wright v. Conway, No. 08-CV-01426 (JFB), 2009 WL 3273901, at *18 (E.D.N.Y. Oct. 9, 2009) (no showing of actual prejudice where there exists overwhelming evidence of petitioner's guilt).
Accordingly, I recommend that the Petition based upon Ground Two be denied.
III. Petitioner's Claims Regarding Two Of The Jury Notes (Ground Three) Lack Merit
In Ground Three, Petitioner incorporates his Appellate Division arguments that the trial court improperly handled the second and third jury notes. (See Pet. at 5.) Petitioner argues that the trial court deprived him of a fair trial in handling the second jury note, by failing to meaningfully respond to the note and by inserting prejudicial commentary. (See id. at PDF pp. 77-79.) As to the third note, Petitioner argues that the trial court failed to bring the note to defense counsel's attention and thus committed a mode-of-proceedings error under C.P.L. § 310.30 and People v. O'Rama, 78 N.Y.2d 270 (1991). (See id. at PDF pp. 71-76.) The Appellate Division held with respect to the second note that “[t]o the extent the [trial] court's response to [that] note went slightly beyond the jury's request, the court correctly stated the law and the response could not have caused any prejudice.” Arnold, 184 A.D.3d at 525. With respect to the third note, the Appellate Division held that “[t]he procedure set forth in [the New York Court of Appeals decision in O'Rama] was not implicated by a jury note that merely requested an exhibit, along with a request for ministerial assistance in locating it on a computer, but did not request any information about the exhibit.” Id.
Section 310.30 of the New York Criminal Procedure Law provides in relevant part:
At any time during its deliberation, the jury may request the court for further instruction or information with respect to the law, with respect to the content or substance of any trial evidence, or with respect to any other matter pertinent to the jury's consideration of the case. Upon such a request, the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper....C.P.L. § 310.30.
Section 310.30 of the New York Criminal Procedure law addresses how trial courts are to handle jury notes. See C.P.L. § 310.30. “‘A claim premised on a violation of [§ 310.30] does not allege a violation of a federally protected right,' as required by AEDPA.” Serrano v. Kirkpatrick, No. 11-CV-02825 (ER) (PED), 2013 WL 3226849, at *11 (S.D.N.Y. June 25, 2013) (citing cases). To the extent that Petitioner is arguing that the jury improperly was instructed, even if there was “some ambiguity, inconsistency, or deficiency in the instruction, such an error does not necessarily constitute a due process violation.” Waddington v. Sarausad, 555 U.S. 179, 190 (2009) (citation and internal quotation marks omitted). “Rather, the defendant must show both that the instruction was ambiguous and that there was a reasonable likelihood that the jury applied the instruction in a way that relieved the State of its burden of proving every element of the crime beyond a reasonable doubt.” Id. at 190-91 (citation and internal quotation marks omitted).
The second note requested “any evidence related to the injury other than the testimony of Officer Cabbell” (SR 1221), and in response the trial court stated: “The evidence is what it is, deal with it. The definitions of serious physical injury and physical injury are different. There is no evidence in the record. Remember, it's the record on which you base your decision and your assessment of it.” (SR 1224.) The Appellate Division's holding, i.e., that “the court correctly stated the law and the response could not have caused any prejudice,” Arnold, 184 A.D.3d at 525, was not objectively unreasonable. Moreover, the trial court's statements on their face did not relieve the State of its burden of proving any element of the crime beyond a reasonable doubt.
With respect to the third note, Petitioner is challenging the Appellate Division's rejection of his claim that the New York Court of Appeals decision in O'Rama required the trial court to give notice to both parties of the jury's third note and address that note on the record. This claim is based solely on state law and cannot provide a basis for federal habeas relief. Feliciano v. Lee, No. 18-CV-09591 (GHW), 2020 WL 5076865, at *10 (S.D.N.Y. Aug. 26, 2020) (“The Court cannot grant relief based on this [O'Rama] argument.”). In any event, it cannot be said that the Appellate Division's decision regarding the inapplicability of O'Rama was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. See 28 U.S.C. § 2254(d).
Accordingly, I recommend that the Petition based upon Ground Three be denied.
IV. Petitioner's Weight Of The Evidence Claim (Ground Four) Is Not Cognizable
In Ground Four, the Petition incorporates the same weight-of-the-evidence challenge as was before the Appellate Division. (See Pet. at 5.) In the Appellate Division, Petitioner argued that verdict was against the weight of the evidence. (See id. at PDF pp. 80-88.) The Appellate Division rejected this claim, holding:
The verdict was not against the weight of the evidence .... There is no basis for disturbing the jury's credibility determinations. Defendant's guilt was established by compelling circumstantial evidence. This included videotapes that supported the conclusion that defendant was the assailant, particularly in light of his distinctive clothing, as well as text messages by defendant that could reasonably be interpreted as containing admissions of guilt. The jury could also have reasonably discredited the victim's attempt to exonerate defendant.Arnold, 184 A.D.3d at 524.
“Unlike a sufficiency of the evidence claim, which is based upon federal due process principles, a weight of the evidence claim is ‘an error of state law, for which habeas review is not available.'” Garrett v. Perlman, 438 F.Supp.2d 467, 470 (S.D.N.Y. 2006) (citing Douglas v. Portuondo, 232 F.Supp.2d 106, 116 (S.D.N.Y. 2002)); see also McKinnon v. Superintendent, Great Meadow Corr. Facility, 422 Fed.Appx. 69, 75 (2d Cir. 2011) (“the argument that a verdict is against the weight of the evidence states a claim under state law, which is not cognizable on habeas corpus”).
Accordingly, I recommend that the Petition based upon Ground Four be denied.
V. Petitioner's Claim Regarding His Motion To Suppress (Ground Five) Lacks Merit
In Ground Five, Petitioner argues, as he did before the Appellate Division, that the trial court violated his state and federal rights by failing to suppress the contents of his cell phone. (See Pet. at 6; see also id. at PDF p. 37.) The legal basis for Ground Five is set forth in Petitioner's Appellate Division Brief, which is attached to his Petition. In his Brief, Petitioner argued that the warrant authorizing the search was not supported by probable cause. (See id. at PDF pp. 89-92.) The trial court rejected this argument, and the Appellate Division affirmed, holding that the “affidavit in support of the warrant set forth the video evidence, from which a compelling inference of probable cause could be drawn, similar to the inference of guilt that supported the verdict.” Arnold, 184 A.D.3d at 524.
“[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” Stone v. Powell, 428 U.S. 465, 482 (1976); accord Graham v. Costello, 299 F.3d 129, 133-34 (2d Cir. 2002) (“As a general rule, Fourth Amendment claims are not reviewable by the federal courts when raised in a petition brought under § 2254 unless the state prisoner shows that he or she has not had a full and fair opportunity to litigate that claim in the state court.”) (citations omitted). A federal court therefore will review a Fourth Amendment claim in a habeas petition 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).
There is no question that New York has provided corrective procedures for litigating alleged Fourth Amendment violations. Indeed, federal courts have approved New York's procedure for litigating Fourth Amendment claims. See Capellan, 975 F.2d at 70. In addition,
Petitioner has failed to establish that he was “precluded from using that mechanism because of an unconscionable breakdown in the underlying process.” Id. at 70. “An unconscionable breakdown occurs when the state court fails to conduct a reasoned inquiry into the petitioner's claim.” Valtin v. Hollins, 248 F.Supp.2d 311, 317 (S.D.N.Y. 2003). By contrast, “a mere disagreement with the outcome of a state court ruling is not the equivalent of an unconscionable breakdown in the state's corrective process.” Capellan, 975 F.2d at 72.
Moreover, both the trial court and the Appellate Division considered Arnold's alleged Fourth Amendment violations and ruled against him in reasoned decisions. The trial court held that, because a civilian identified Petitioner as the shooter in a still photograph and later video surveillance footage, the police had probable cause to arrest Arnold. (SR 349.) Similarly, the Appellate Division decision thoughtfully addressed and rejected the Fourth Amendment issues raised by Petitioner. See Arnold, 184 A.D.3d at 524.
Accordingly, I recommend that the Petition based upon Ground Five be denied.
VI. Petitioner's Prosecutorial Misconduct Claim (Ground Six) Is Procedurally Barred
In Ground Six, Petitioner incorporates his Appellate Division argument that the prosecutor committed misconduct during summation by disregarding sustained objections. (See Pet. at 6.) The Appellate Division held that, “[b]ecause the court gave curative instructions and defense counsel failed to request any further relief, [Petitioner] did not preserve his challenges to the prosecutor's summation.” Arnold, 184 A.D.3d at 525.
Petitioner's claim regarding the prosecutor's summation is procedurally barred. “Courts in this circuit have consistently held that a state court's reliance on defendant's failure to object contemporaneously to a prosecutor's allegedly improper summation constitutes an adequate and independent state ground for deciding the claim.” Perez v. Lempke, No. 10-CV-00303 (MAT), 2011 WL 2746785, at *6 (W.D.N.Y. July 13, 2011). Moreover, as set forth above, courts in this circuit routinely uphold New York's contemporaneous objection rule as an adequate and independent state procedural bar sufficient to preclude federal review. See Garcia, 188 F.3d at 79.
Petitioner is unable to overcome the procedural bar. First, he has not demonstrated cause for the default since no objective outside factor prevented Petitioner from renewing an objection to the prosecutor's summation before the trial court. See Brunson v. Tracy, 378 F.Supp.2d 100, 106 (E.D.N.Y. 2005). Second, he cannot establish actual prejudice, given the overwhelming evidence of his guilt and given the nature of the purported misconduct. “[P]rosecutorial misconduct cannot give rise to a constitutional claim unless the prosecutor's acts constitute egregious misconduct.” Miranda v. Bennett, 322 F.3d 171, 180 (2d Cir. 2003) (internal quotation omitted). Here, the conduct was not egregious and, in any event, was cured.
Even putting aside the procedural bar, as an alternative holding, the Appellate Division rejected Petitioner's prosecutorial misconduct claim on the merits. See Arnold, 184 A.D.3d at 525 (“As an alternative holding, we find no basis for reversal.”). This ruling was not objectively unreasonable, which is an independent reason for denying relief under Ground Six. See Lockyer, 538 U.S. at 75.
Accordingly, I recommend that the Petition based upon Ground Six be denied.
VII. Petitioner's Claim Based Upon The Length Of His Sentence (Ground Seven) Is Not Cognizable
In Ground Seven, as he did before the Appellate Division, Petitioner argues that his 22-year sentence is excessive. (See Pet. at 7.) The Appellate Division held that it “perceive[d] no basis for reducing the sentence.” Arnold, 184 A.3d at 525.
Generally, “[a]n excessive sentence claim may not provide grounds for habeas corpus relief where a petitioner's sentence is within the range prescribed by state law.” Edwards v. Superintendent, Southport C.F., 991 F.Supp.2d 348, 372 (E.D.N.Y. 2013); see also White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (“No federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law.”). Thus, if a petitioner's sentence is within state statutory limits, he must show that the state court's decision was “wholly devoid of discretion or amounted to an arbitrary or capricious abuse of discretion, or that an error of law resulted in the improper exercise of the sentencer's discretion and thereby deprived the petitioner of his liberty.” Roache v. Connell, No. 06-CV-03567 (WHP) (RLE), 2010 WL 6512333, at *1 (S.D.N.Y. May 24, 2010), report and recommendation adopted, 2011 WL 1465989 (S.D.N.Y. Apr. 14, 2011) (citation omitted).
In the present case, Petitioner conceded in his Appellate Division Brief that his 22-year sentence was within the statutorily prescribed range of 10 to 25 years' imprisonment. (See Pet. at PDF p. 98.) Petitioner has not argued that his sentence is wholly devoid of discretion or amounted to an arbitrary or capricious abuse of discretion, or that an error of law resulted in the improper exercise of the trial court's discretion. Thus, no federal constitutional issue is present.
Accordingly, I recommend that the Petition based upon Ground Seven be denied.
VIII. Petitioner's Ground Eight Should Be Denied
In Ground Eight, Petitioner argues, in substance, that each of the grounds he raised in state court set forth cognizable grounds for federal habeas relief. (See Pet. at 8-11.) For the reasons set forth in Discussion Sections I through VII, supra, I find that those grounds are not cognizable, procedurally barred and/or without merit. Accordingly, I recommend that the Petition based upon Ground Eight be denied.
To the extent that Ground Eight asserts ineffective assistance of counsel claims, such claims are addressed in the following section, with respect to Ground Nine.
IX. Petitioner's Ineffective Assistance Of Counsel Claims (Ground Nine) Should Be Denied
Construing the Petition to raise the strongest argument that it suggests, it appears that Petitioner argues that his defense counsel was ineffective for abandoning his identification claim, failing to make additional objections to the prosecutor's summation and failing to object to the verdict sheet. (See Pet. at 9 (noting “ineffective defense attorney trial representation is noted by appellate findings in that, counsel's performance in fact ‘abandoned reversible claims' that required preservation”); id. at 10 (listing “‘sub-par advocacy” and mentioning abandoned claim).)
Because Petitioner never presented an ineffectiveness argument in state court regarding the identification claim or the failure to make additional objections to the prosecutor's summation, any habeas claims based upon such arguments are unexhausted. “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.” 28 U.S.C. § 2254(b)(2). This is an appropriate case to deny Petitioner's unexhausted ineffective assistance claims, pursuant to 28 U.S.C. § 2254(b)(2), since they are meritless. See Rhines v. Weber, 544 U.S. 269, 277 (2005) (recognizing dismissal appropriate where “unexhausted claims are plainly meritless”).
Petitioner's ineffective assistance claim based upon trial counsel's failure to preserve an identification claim and failure to make additional objections to the prosecutor's summation do not meet either of the Strickland prongs. First, counsel was not deficient in abandoning the identification claim or in failing to make additional objections to the prosecutor's summation. Since the Appellate Division held that the identification claim was meritless, and that there was no basis for reversal based upon the prosecutor's summation, counsel cannot be found ineffective for declining to raise the identification claim and for failing to make additional objections to the summation. See Aparicio v. Artuz, 269 F.3d 78, 100 (2d Cir. 2001) (counsel not ineffective for failing to raise meritless argument). Second, Petitioner suffered no prejudice. As noted above, the Appellate Division concluded that any error with respect to the identification would have been harmless. The identification at issue was cumulative to the testimony of Officer Jones and also was cumulative to the video showing Petitioner on it. In addition, defense counsel objected to the prosecutor's summation. (SR 1161.) As a result of such objection, the trial court gave curative instructions (see id.), as the Appellate Division noted. See Arnold, 184 A.D.3d at 525. Thus, Petitioner suffered no prejudice as a result of the failure of his counsel to make additional objections to the summation.
With respect to Petitioner's ineffective assistance claim based upon the verdict sheet, the Appellate Division held that such claim failed under the second Strickland prong, i.e., prejudice. The Appellate Division held that Petitioner suffered no prejudice from the fact that the jury was not provided with “certain instructions” to accompany “an otherwise properly annotated verdict sheet.” Arnold, 184 A.D.3d at 525. Given the deference due to the Appellate Division's holding, it cannot be said that such holding “was so lacking in justification that there was . . . no possibility for fair minded disagreement.” Fischer, 780 F.3d at 561. Thus, this aspect of Petitioner's ineffective assistance of counsel claim also fails.
Accordingly, I recommend that the Petition based upon Ground Nine be denied.
CONCLUSION
For the reasons set forth above, I respectfully recommend that Arnold's Petition for a Writ of Habeas Corpus be DENIED in its entirety. Further, I recommend that the Court decline to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1)(A), because Petitioner has not “made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Schofield.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).