Opinion
22 Civ. 03818 (PMH)(JCM)
11-07-2023
GARFIELD D. BENTLEY, Petitioner, v. SUPERINTENDENT, Green Haven Correctional Facility, Respondent.
ORDER
Honorable Philip M. Halpern, United States District Judge
Petitioner Garfield D. Bentley (“Petitioner”), proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on April 28, 2022 (Docket No. 1) (the “Petition”). The District Attorney of Orange County, on behalf of the Superintendent of Green Haven Correctional Facility, (“Respondent” or the “State”) opposed the Petition on November 4, 2022. (Docket Nos. 31, 32). Petitioner did not submit a reply but has submitted numerous letters since filing the Petition seeking updates and reiterating the same arguments made therein, which the Court has carefully reviewed. (Docket Nos. 17-19, 38, 41, 42). For the reasons set forth below, I respectfully recommend that the Petition be denied.
A pro se prisoner's papers are deemed filed at the time he or she delivers them to prison authorities for forwarding to the court clerk. See Houston v. Lack, 487 U.S. 266, 270 (1988); Walker v. Jastremski, 430 F.3d 560 (2d Cir. 2005) (analyzing the “Houston prison mailbox rule”). Petitioner certified that his Petition was delivered to the prison authorities for mailing on April 28, 2022. (Docket No. 1 at 11-12). Consequently, the Court adopts Petitioner's date for this filing and all other filings discussed herein.
I. BACKGROUND
A. The Crimes, Trial and Sentence
Petitioner's conviction arises out of events that took place in the fall of 2016. After his girlfriend of almost three years, Jo Marie Acevedo, ended their relationship in August 2016, Petitioner began a campaign of violent harassment culminating in his arrest. The harassment began shortly after the relationship ended, when Petitioner left Ms. Acevedo a voicemail on August 26, 2016, threatening to assault her. (Docket No. 32 at 3). Fearing for her safety, Ms. Acevedo obtained an order of protection three days later. (Id. at 3-4).
The Court construes the evidence presented at trial in the light most favorable to the State. See, e.g., Murden v. Artuz, 497 F.3d 178, 184 (2d Cir. 2007).
Notwithstanding the order of protection, Petitioner proceeded to contact Ms. Acevedo with increasing intensity. On September 27, 2016, Petitioner appeared outside of Ms. Acevedo's apartment and attempted to talk to her as she walked to a nearby library. (Trial Tr. at 287-90). He told Ms. Acevedo that she could not be with anyone but him, and that if she refused, he would resort to violence. (Id.). Ms. Acevedo reminded Petitioner of the order of protection and then changed her route, going instead to the nearest police station to report the incident. (Id.). Two weeks later, on October 13, 2016, Petitioner accosted Ms. Acevedo's friend, pressuring her to put him in contact with Ms. Acevedo and to give him Ms. Acevedo's cell phone number. (Id. at 438-40). The friend gave him a fake number. (Id.).
“Trial Tr.” refers to the transcript of Petitioner's trial, held from June 5 through 14, 2017. (Docket Nos. 32-13, 3214, 32-15, 32-16, 32-17, 32-18, 32-19, 32-20, 32-21, 32-22, 32-23, 32-24).
On October 15, 2016, Petitioner appeared outside of Ms. Acevedo's apartment and accosted her for a second time since the order of protection was issued. (Docket No. 32 at 5). Ms. Acevedo immediately called the police and an officer arrived shortly thereafter, but Petitioner had already left. (Id.). Around the same time, Petitioner called the police and falsely reported that Ms. Acevedo was walking around the neighborhood brandishing a dangerous weapon. (Id.). Recognizing that this was a false report from Petitioner, the police did not respond. (Id.). Later the same day, Petitioner went back to Ms. Acevedo's apartment after the police had left-this time peering into her window while she was getting ready to go out for the evening. (Id. at 6). Ms. Acevedo called the police again, but Petitioner evaded capture again. (Id. at 7). A few hours later, when the police were gone and Ms. Acevedo left her apartment, Petitioner reappeared. (Trial Tr. at 298-300, 363-70). He grabbed Ms. Acevedo by her hair, choked her, and dragged her to the side of the apartment building. (Id.). Petitioner then poured what appeared to be gasoline or motor oil on her while threatening further assault. (Id.). Ms. Acevedo fought back, escaped Petitioner's hold, and ran back to her apartment where she called the police for a third time. (Docket No. 32 at 8-10). Officers responded to the call and upon their arrival observed that the hallway floor of Ms. Acevedo's apartment building was slippery, and someone had left bottles of alcohol and motor oil on the porch and in the apartment vestibule. (Id. at 10). After taking photos of the scene, police began canvassing the area to collect evidence and locate Petitioner. (Id. at 11). They ultimately found him in a backyard two houses away from Ms. Acevedo's apartment carrying a bottle of alcohol (the same brand found in front of Ms. Acevedo's apartment), as well as a lighter. (Id.). Petitioner was promptly arrested.
Petitioner was indicted on November 3, 2016 in the County Court for Orange County, New York (“Orange County Court”) (the “Indictment”) for: (1) one count of Burglary in the Second Degree; (2) one count of Burglary in the Third Degree; (3) three counts of Criminal Contempt in the First Degree; (4) five counts of Criminal Contempt in the Second Degree; (5) one count of Criminal Obstruction of Breathing or Blood Circulation; (6) one count of Falsely Reporting an Incident in the Third Degree; and (7) one count of Stalking in the Third Degree. (Docket No. 32-1). Petitioner pleaded not guilty and after a jury trial in June of 2017, he was convicted on all counts. (Trial Tr. at 801-03). He was sentenced on October 5, 2017, to a term of nine years imprisonment and five years of supervised release. (Sentencing Tr. at 34).
“Sentencing Tr.” refers to the transcript of Petitioner's sentencing hearing, held on October 5, 2017. (Docket No. 32-26).
B. Direct Appeal
Petitioner filed a direct appeal through counsel on May 2, 2019, arguing that: (1) his conviction was against the weight of the evidence, (Docket. No. 32-1 at 22-29); (2) the Orange County Court violated his constitutional right to present a defense by: (i) denying Petitioner's request to call his mother as a witness at trial, (ii) requiring that he submit an order of proof on her proposed testimony, and (iii) precluding defense counsel from questioning police officers about whether Petitioner could have climbed Ms. Acevedo's fire escape, as she claimed, (id. at 30-34); (3) the State violated Petitioner's constitutional rights by exceeding the scope of the Orange County Court's Molineux ruling at trial, (id. at 34-37); (4) the Stalking and Criminal Contempt charges were “multiplicitous, duplicitous or lessor included charges,” (id. at 38-42); and (5) the State should have been judicially estopped from filing contempt charges relating to two incidents that were the subject of Petitioner's guilty plea in another court, (id. at 42-46).
Molineux refers to the case People v. Molineux, 168 N.Y. 264 (1901), in which the Court of Appeals held that the prosecution cannot use crimes charged in another indictment as evidence of a defendant's guilt in the case at bar.
By Decision and Order, dated February 28, 2020, the Supreme Court of the State of New York, Appellate Division, Second Judicial Department (the “Second Department”) vacated Petitioner's conviction on count 11 of the Indictment for Criminal Contempt in the Second Degree holding that it was a lesser included offense of the First Degree Criminal Contempt charge, but otherwise affirmed Petitioner's conviction and sentence. See People v. Bentley, 127 N.Y.S.3d 779 (2d Dep't 2020). Petitioner then sought leave to appeal the Second Department's decision to the New York Court of Appeals (the “Court of Appeals”), which was summarily denied on December 20, 2020. People v. Bentley, 138 N.Y.S.3d 461 (N.Y. 2020).
C. C.P.L. § 440.10 Motions
After his conviction, Petitioner filed successive motions to vacate the judgment under New York Criminal Procedure Law (“C.P.L.”) § 440.10. The first was filed on May 7, 2018, arguing ineffective assistance of counsel and that his prosecution was barred by the U.S. Constitution's double jeopardy clause. (Docket No. 32-3 at ECF pp. 2-9). This motion was denied on November 20, 2018. (Id. at ECF pp. 255-58). Petitioner moved for leave to appeal this decision to the Second Department on December 12, 2018, which was denied on March 1, 2019. (Docket No. 32-4 at ECF p. 96). Petitioner filed a second C.P.L. § 440.10 motion on May 5, 2022, arguing that the Orange County Court violated his constitutional right to present a defense and to due process of law by denying his request to call his mother as a witness at trial. (Docket No. 32-5 at ECF pp. 11-28). This motion was denied on October 28, 2022, (Docket No. 32-6 at ECF pp. 58-63), and no appeal was filed.
Unless otherwise noted, as here, all page numbers refer to the pagination used by the filing party.
D. The Petition and Motion for Stay and Abeyance
On April 28, 2022, Petitioner filed the instant Petition. (Docket No. 1). The State filed its opposition on November 4, 2022. (Docket Nos. 31, 32). No reply was filed. While the Petition was pending, Petitioner filed a motion for a stay and abeyance pending exhaustion of his second C.P.L. § 440.10 motion. (Docket Nos. 26, 35). Respondent opposed that motion, (Docket Nos. 28, 33, 37), and the Court denied it on February 2, 2023. (Docket No. 39) (denying the motion for a stay and abeyance because the deadline to appeal the trial court's denial of his § 440.10 motion had passed, and Petitioner did not file an appeal).
Construing the Petition broadly, see Williams v. Kullman, 722 F.2d 1048, 1051 (2d Cir. 1983) (holding that pleading requirements in habeas proceedings should not be “overly technical and stringent”), Petitioner argues a single ground for relief: that his right to a fair trial under the Sixth Amendment and his right to due process of law under the Fourteenth Amendment was violated when: (1) the State failed to produce physical evidence prior to trial as Brady material; and (2) the trial court barred him from calling his mother as a witness at trial. (Docket No. 1 at 6).
In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that the government must disclose exculpatory evidence to defense counsel.
II. APPLICABLE LAW
“The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996” (“AEDPA”). Harrington v. Richter, 562 U.S. 86, 97 (2011). “Before a federal district court may review the merits of a state criminal judgment in a habeas corpus action, the court must first determine whether the petitioner has complied with the procedural requirements set forth in 28 U.S.C. §§ 2244 and 2254.” Visich v. Walsh, No. 10 Civ. 4160 (ER) (PED), 2013 WL 3388953, at *9 (S.D.N.Y. July 3, 2013). The procedural and substantive standards are summarized below.
If Petitioner does not have access to cases cited herein that are available only by electronic database, then he may request copies from Respondent's counsel. See Local Civ. R. 7.2 (“Upon request, counsel shall provide the pro se litigant with copies of such unpublished cases and other authorities as are cited in a decision of the Court and were not previously cited by any party.”)
A. Exhaustion as a Procedural Bar
A habeas petition may not be granted unless the petitioner has exhausted his claims in state court. See 28 U.S.C. § 2254(b). As the statute prescribes:
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that-
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant. ...
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.28 U.S.C. § 2254(b)-(c).
Exhaustion requires a prisoner to have “fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts.” Turner v. Artuz, 262 F.3d 118, 123 (2d Cir. 2001) (internal quotations omitted). If a petitioner “cites to specific provisions of the U.S. Constitution in his state court brief, the petitioner has fairly presented his constitutional claim to the state court.” Davis v. Strack, 270 F.3d 111, 122 (2d Cir. 2001); see also Reid v. Senkowski, 961 F.2d 374, 376 (2d Cir. 1992) (even “a minimal reference to the Fourteenth Amendment” presents a federal constitutional claim to the state courts). A petitioner may fairly present his claim even without citing to the U.S. Constitution, by, inter alia: “(a) [relying] on pertinent federal cases employing constitutional analysis, (b) [relying] on state cases employing constitutional analysis in like fact situations, (c) [asserting] . . . [a] claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) [alleging] . . . a pattern of facts that is well within the mainstream of constitutional litigation.” Daye v. Attorney Gen. of State of N.Y., 696 F.2d 186, 194 (2d Cir. 1982). Fair presentation includes petitioning for discretionary review in the state's highest appellate court. See O'Sullivan v. Boerckel, 526 U.S. 838, 839-40 (1999) (“[A] state prisoner must present his claims to a state supreme court in a petition for discretionary review in order to satisfy the exhaustion requirement”).
However, “a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred.” Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (internal quotations omitted). In such cases, although the claim is technically unexhausted, the district court may deem the claim to be exhausted but procedurally barred from habeas review. See id. at 140 (“[A] claim is procedurally defaulted for the purposes of federal habeas review where ‘the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.'”) (quoting Coleman v. Thompson, 501 U.S. 722, 735 (1991)).
Under New York law, defendants are permitted only one direct appeal. See Dasney v. People of the State of New York, No. 15-cv-5734 (RJS), 2017 WL 253488, at *5 (S.D.N.Y. Jan. 19, 2017) (citing N.Y. Ct. App. R. § 500.20); see also Roa v. Portuondo, 548 F.Supp.2d 56, 78 (S.D.N.Y. 2008) (“Any attempt to raise these claims at this stage as part of a direct appeal would be rejected because a criminal defendant is entitled to only one direct appeal and one application for leave to appeal to the Court of Appeals.”). Petitioners must raise record-based claims by direct appeal rather than by a collateral motion in state court. See, e.g., O'Kane v. Kirkpatrick, No. 09 Civ. 05167 (HB)(THK), 2011 WL 3809945, at *7 (S.D.N.Y. Feb. 15, 2011) (“[A]ll claims that are record-based must be raised in a direct appeal. . . . It is only when a defendant's claim hinges upon facts outside the trial record, that he may collaterally attack his conviction by bringing a claim under CPL § 440.10.”), report and recommendation adopted, 2011 WL 3918158 (S.D.N.Y. Aug. 25, 2011); Lowman v. New York, No. 09-CV-0058T (MAT), 2011 WL 90996, at *9 (W.D.N.Y. Jan. 11, 2011) (“Collateral review of this claim-by way of another CPL § 440 motion-is also barred because the claim is a matter of record that could have been raised on direct appeal, but unjustifiably was not.)” (citing N.Y. Criminal Procedure Law (“C.P.L.”) § 440.10(2)(c)).
This rule states, in relevant part, that a letter application for leave to appeal “shall indicate . . . (2) that no application for the same relief has been addressed to a justice of the Appellate Division, as only one application is available.” N.Y. Ct. App. R. 500.20(a) (emphasis added).
C.P.L. § 440.10(2)(c) states, in relevant part, that a court must deny a § 440.10 motion to vacate judgment when “[a]lthough sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him. . . .”
To avoid the procedural default of an unexhausted claim, a petitioner may show “cause for the default and prejudice, or that failure to consider the claim will result in miscarriage of justice, i.e., the petitioner is actually innocent.” Sweet v. Bennett, 353 F.3d 135, 141 (2d Cir. 2003).
B. Adequate and Independent State Grounds as a Procedural Bar
“It is well established that federal courts will not review questions of federal law presented in a habeas petition when the state court's decision rests upon a state-law ground that ‘is independent of the federal question and adequate to support the judgment.'” Cone v. Bell, 556 U.S. 449, 465 (2009) (quoting Coleman, 501 U.S. at 729). This preclusion applies even if the state court alternatively rules on the merits of the federal claim, so long as there is an adequate and independent state ground that would bar the claim in state court. See, e.g., Harris v. Reed, 489 U.S. 255, 264 n.10 (1989); accord Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999).
“A state court decision will be ‘independent' when it ‘fairly appears' to rest primarily on state law.” Taylor v. Connelly, 18 F.Supp.3d 242, 253 (E.D.N.Y. 2014) (quoting Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir. 2006)). Typically, a ground is adequate “only if it is based on a rule that is ‘firmly established and regularly followed' by the state in question.” Garcia, 188 F.3d at 77 (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)); see also Cotto v. Herbert, 331 F.3d 217, 239 (2d Cir. 2003). A decision that a state procedural rule is inadequate should not be made “lightly or without clear support in state law.” Garcia, 188 F.3d at 77 (internal quotations omitted). However, “there are ‘exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question.'” Cotto, 331 F.3d at 240 (quoting Lee v. Kemna, 534 U.S. 362, 376 (2002)). In determining whether a case is “exceptional” in that the state ground should be held inadequate, the Second Circuit uses the following factors as “guideposts”:
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had substantially complied with the rule given the realities of trial, and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.Id. (internal quotations omitted).
To avoid a procedural default based on independent and adequate state grounds, a petitioner must “show ‘cause' for the default and ‘prejudice attributable thereto,' . . . or demonstrate that failure to consider the federal claim will result in a ‘fundamental miscarriage of justice.'” Harris, 489 U.S. at 262 (quoting Murray v. Carrier, 477 U.S. 478, 485, 495 (1986)).
C. AEDPA Standard of Review
When a federal court reaches the merits of a habeas petition, AEDPA prescribes a “highly deferential” standard for reviewing state court rulings. Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997); see also Fischer v. Smith, 780 F.3d 556, 561 (2d Cir. 2015). An application for a writ of habeas corpus:
shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d)(1)-(2).
Courts have interpreted the phrase “adjudicated on the merits” in AEDPA as meaning that a state court “(1) dispose[d] of the claim on the merits, and (2) reduce[d] its disposition to judgment.” Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001) (internal quotations omitted). Courts examine the “last reasoned decision” by the state courts in determining whether a federal claim was adjudicated on the merits. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (“Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.”).
If a state court adjudicates a federal claim on the merits, the Court must apply AEDPA deference to that state court ruling. 28 U.S.C. § 2254(d)(1)-(2). In the context of AEDPA deference, the phrase “clearly established Federal law” means “the holdings, as opposed to the dicta, of [the Supreme Court of the United States'] decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 365 (2000). “A state court decision is contrary to such clearly established federal law if it ‘applies a rule that contradicts the governing law set forth in the Supreme Court's cases' or ‘if the state court confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from its precedent.'” Lewis v. Conn. Comm'r of Corr., 790 F.3d 109, 121 (2d Cir. 2015) (quoting Boyette v. Lefevre, 246 F.3d 76, 90 (2d Cir. 2001)). A state court decision involves an “unreasonable application” of Supreme Court precedent if: (1) “the state court identifies the correct governing legal rule from [Supreme Court] cases but unreasonably applies it to the facts of the particular state prisoner's case,” or (2) “the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Williams, 529 U.S. at 407.
If, by contrast, a state court does not adjudicate a federal claim on the merits, “AEDPA deference is not required . . . [and] conclusions of law and mixed findings of fact and conclusions of law are reviewed de novo.” DeBerry v. Portuondo, 403 F.3d 57, 66-67 (2d Cir. 2005).
For a federal court to find a state court's application of Supreme Court precedent unreasonable, the state court's decision must have been more than “incorrect or erroneous” - it must have been “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003). In other words, “[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of [the state court's] decision.” Richter, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 665 (2004)). However, “the trial court's decision need not teeter on ‘judicial incompetence' to warrant relief under § 2254(d).” Alvarez v. Ercole, 763 F.3d 223, 229 (2d Cir. 2014) (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)). If a state court decision does not contain reasons for the dismissal of a defendant's federal claim, the Court must “consider ‘what arguments or theories . . . could have supported[] the state court's decision,' and may grant habeas only if ‘fairminded jurists could [not] disagree that those arguments or theories are inconsistent with the holding in a prior decision of' the Supreme Court.” Lynch v. Superintendent Dolce, 789 F.3d 303, 311 (2d Cir. 2015) (alterations in original) (quoting Richter, 562 U.S. at 102).
When reviewing an application for a writ of habeas corpus, “a determination of a factual issue made by a State court shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). The petitioner has the burden of rebutting the state court's factual holding by “clear and convincing evidence.” Id.; see also Chapman v. Vanzandt, No. 96 CIV. 6940 (JGK), 1997 WL 375668, at *4 (S.D.N.Y. July 8, 1997).
III. DISCUSSION
A. Timeliness of the Petition
As a threshold matter, Respondent argues that the Court should deny the Petition as untimely. (Docket No. 32 at 13). Respondent contends that the statute of limitations expired on March 22, 2022, which was one year plus 90 days after the Court of Appeals denied Petitioner's application for leave to appeal the Second Department's Decision and Order. (Id. at 14). According to Respondent, the statute of limitations was never tolled and the Petition-filed on April 28, 2022-was, therefore, untimely. (Docket No. 22 at 30-32). Petitioner did not address this argument in the Petition, but an independent review of the record indicates that the Petition is not time-barred.
“The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).” Richter, 562 U.S. at 97. “Before a federal district court may review the merits of a state court criminal judgment in a habeas corpus action, the court must first determine whether the petitioner has complied with the procedural requirements set forth in 28 U.S.C. §§ 2244 and 2254.” Visich, 2013 WL 3388953, at *9 (emphasis in original). Pursuant to 28 U.S.C. § 2244, “[a] 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1). This 1-year period begins to run starting on the latest of:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.Id. Here, Petitioner does not argue that the State prevented him from filing his Petition. Nor does he explicitly seek to toll the statute of limitations based on a newly recognized constitutional right or argue that the factual bases of his claims were unknown to him prior to filing the Petition. Therefore, the appropriate triggering date is “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” Id. at § 2244(d)(1)(A).
However, pursuant to AEDPA, a petitioner's conviction does not become final for review until the “time to seek direct review in the United States Supreme Court by writ of certiorari expires.” Williams v. Artuz, 237 F.3d 147, 150 (2d Cir. 2001) (internal quotation marks and brackets omitted). A petitioner has 90 days to file a petition for a writ of certiorari requesting review of a state court decision. Sup. Ct. R. 13(1); Bowles v. Russell, 551 U.S. 205, 212 (2007); Saunders v. Senkowski, 587 F.3d 543, 547-548 (2d Cir. 2009); Valverde v. Stinson, 224 F.3d 129, 133 (2d Cir. 2000). On March 19, 2020, “[i]n light of the . . . public health concerns relating to COVID-19,” the Supreme Court extended this 90 day period “for a writ of certiorari due on or after the date of this order” to “150 days from the date of the lower court judgment, order denying discretionary review, or order denying a timely petition for rehearing.” Miscellaneous Order Addressing the Extension of Filing Deadlines, 334 F.R.D. 801, 589 U.S. -- (Mar. 19, 2020), rescinded, 338 F.R.D. 801, 594 U.S. -- (July 19, 2021) (holding that the extension still applies to “any case in which the relevant lower court judgment, order denying discretionary review, or order denying a timely petition for rehearing was issued prior to July 19, 2021”); see also United States v. Reynoso, No. 22-2119, 2023 WL 3017136, at *2 n.2 (10th Cir. Apr. 20, 2023) (same).
Here, Petitioner's application for leave to appeal the Second Department's Decision and Order was denied by the Court of Appeals on December 20, 2020. Bentley, 138 N.Y.S.3d 461. As a result, the 150 day extension applied to the instant Petition and the statute of limitations did not expire until May 19, 2022-one year plus 150 days from December 20, 2020. Therefore, the Petition was timely filed on April 28, 2022. See e.g., Harris v. Schroeder, Case No. 2:22-cv-126 (HYJ), 2023 WL 5925623, at *4 (W.D. Mich. Sept. 12, 2023) (holding that a petitioner's deadline to file for habeas relief was November 27, 2021 where state's highest court denied petitioner's leave application on June 30, 2020 and no petition for a writ of certiorari was submitted).
Accordingly, I conclude and respectfully recommend finding that the Petition was timely filed.
B. Petitioner's Sixth and Fourteenth Amendment Claims
1. The State's Alleged Brady Violation
Petitioner asserts that the State violated his right to a fair trial under the Sixth Amendment and his right to due process under the Fourteenth Amendment by failing to produce clothing the victim wore on the night of the crime prior to trial as Brady material. (Docket No. 1 at 6). Petitioner contends that he was “deprived of his fundamental constitutional rights to a fair trial because state court trial proceedings relied upon material evidence, to wit: the dress or clothing wore during the alleged attack which were not produced prior to trial.” (Id.). In response, the State argues that “Petitioner's claims are unexhausted and procedurally barred, and in any event, fail to establish grounds for relief.” (Docket No. 32 at 16).
Petitioner's claim is unexhausted and thus ineligible for habeas relief. It is well-settled that federal courts may not entertain claims in habeas petitions if they were not previously presented, and exhausted, in state court. “This Court has long held that a state prisoner's federal habeas petition should be dismissed if the prisoner has not exhausted available state remedies as to any of his federal claims.” Coleman, 501 U.S. at 731. Furthermore, when a defendant may no longer present his federal claim in state court because it is procedurally barred, federal courts may deem the claim exhausted for purposes of habeas review. Id. at 732 (“a habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance . . . [and] meets the technical requirements for exhaustion”); see also Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001) (“when ‘the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred,' federal habeas courts also must deem the claims procedurally defaulted”) (quoting Coleman, 501 U.S. at 735 n.1).
Here, Petitioner failed to raise his Brady violation claim during trial, in his direct appeal to the Second Department, or to the Court of Appeals. (See, e.g., Trial Tr. at 526-29 (failing to object to introduction of the victim's clothing into evidence at trial); Docket No. 32-1 at 30 (Second Department brief arguing that the only violation of Petitioner's Sixth and Fourteenth Amendment rights was the trial court's refusal to allow his mother to testify); Docket No. 32-2 (Second Department reply brief devoid of any mention of his Sixth Amendment claim); Docket No. 32-5 (letter application to the Court of Appeals arguing that the only violation of Petitioner's Sixth and Fourteenth Amendment rights was the trial court's refusal to allow his mother to testify)). Moreover, Petitioner cannot raise it now since New York only allows defendants a single direct appeal from conviction. See C.P.L. § 450.10; People ex rel. Baumgart v. Martin, 214 N.Y.S.2d 370, 373 (N.Y. 1961) (“If, as here, the claimed error has been finally answered in the highest appellate courts of the State and the United States, nothing can be accomplished by a repeated review of the same question because it is dressed in different procedural garments.”)
In addition, Petitioner is precluded from filing a third C.P.L. § 440.10 motion on this basis since: (i) record-based collateral appeals are not permitted in New York; (ii) the issue was not preserved because he failed to contemporaneously object to the evidence at trial; and (iii) New York bars defendants from raising the same issue in a successive § 440.10 motion that could have been raised in the prior one. See C.P.L. § 440.10(2)(b) (“the court must deny a motion to vacate a judgment when . . . [t]he judgment is . . . appealable or pending on appeal . . . and sufficient facts appear on the record with respect to the ground or issue raised upon the motion to permit adequate review thereof upon such an appeal”); Id. at § 470.05(2) (“[f]or purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court . . . is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction”); St. Helen v. Senkowski, 374 F.3d 181, 183 (2d Cir. 2004) (noting that “failure to have raised [a] claim on direct review now forecloses further collateral review in [New York] state court”).
Consequently, Petitioner's Brady violation claim is procedurally barred and, therefore, deemed exhausted. “When a claim is in that posture, it . . . cannot be heard on federal habeas corpus review.” Ortiz v. Bradt, No. 13 CIV. 5420 (BMC), 2013 WL 5775695, at *6 (E.D.N.Y. Oct. 25, 2013). The only way Petitioner can overcome this procedural default is to show: (1) cause for the default and prejudice therefrom; or (2) actual innocence such that refusal to consider the defaulted claim will result in a miscarriage of justice. Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011) (“An applicant seeking habeas relief may escape dismissal of the merits of a procedurally defaulted claim only by demonstrating cause for the default and prejudice or by showing that he is actually innocent of the crime for which he was convicted”) (internal quotations omitted); Reese v. Alexander, 37 Fed.Appx. 5, 8 (2d Cir. 2002) (same). This is an exacting standard that Petitioner has not met.
First, Petitioner does not argue or show cause for failing to raise the Sixth Amendment claim previously-either in his counseled direct appeal or his pro se C.P.L. § 440.10 motions. Therefore, the Court need not analyze whether Petitioner would be prejudiced by the Court's refusal to consider this claim. Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 127 (2d Cir. 1995) (“Since [petitioner] has failed to show cause, there is no need to address the prejudice requirement, and federal habeas review . . . is unavailable”); Frazier v. United States, Nos. 19-CV-8738 (CS), 17-CR-364-7 (CS), 2021 WL 111638, at *3 n.6 (S.D.N.Y. Jan. 12, 2021) (“[a]s there is no showing of cause, I need not address prejudice”). However, even if Petitioner had shown cause for failing to raise his Brady violation claim previously, he could not prove prejudice because the evidence introduced (the clothing Ms. Acevedo wore the night of the attack) was not exculpatory and did not constitute impeachment material. United States v. Paredes-Cordova, No. S8 03 Cr. 987 (DAB), 2010 WL 11507538, at *3 (S.D.N.Y. Feb. 17, 2010) (“[t]o constitute a Brady violation, the evidence at issue must have been [] favorable to the accused, either because it is exculpatory or impeaching; and [] suppressed by the Government, either willfully or inadvertently”), aff'd, 504 Fed.Appx. 48 (2d Cir. 2012). The officers that collected the clothing testified at trial that it was covered in oil. (Trial Tr. at 90-104, 162-65, 47679, 532-38). This is consistent with the State's case in chief that Petitioner stalked Ms. Acevedo, violently confronted her at her home, poured gasoline on her, and threatened to set her on fire. (See Trial Tr. at 50-57, 526-30). Thus, it was not exculpatory evidence. Moreover, contrary to Petitioner's contention, the State disclosed the existence of the evidence to him prior to trial in a Voluntary Disclosure Form served on him at his arraignment, (Docket No. 32 at 19), so Petitioner cannot establish a Brady violation. Paredes-Cordova, 2010 WL 11507538, at *3 (holding that Brady violations also require the defendant to prove that the evidence was “suppressed by the Government, either willfully or inadvertently”).
Second, Petitioner has failed to demonstrate actual innocence or that application of the procedural default would result in a miscarriage of justice. This is a “heavy burden” that only applies in “extraordinary cases,” requiring presentation of new evidence establishing, by a preponderance of the evidence, that no reasonable juror would have found defendant guilty under the circumstances. Calderon v. Perez, No. 10 Civ. 2562 (GBD)(AJP), 2011 WL 293709, at *21 (S.D.N.Y. Jan. 28, 2011) (citations and internal quotations omitted). Petitioner presents no new evidence in the Petition to doubt the fairness of the jury's verdict, which was based on: (1) testimony from Ms. Acevedo describing how Petitioner stalked and harassed her; (2) testimony from responding officers corroborating Ms. Acevedo's account of what occurred the night of October 15, 2016; and (3) physical evidence collected at the scene of the crime and on Petitioner at the time of his arrest, including motor oil and a lighter. (See generally Trial Tr. at 191-320).
Accordingly, I respectfully recommend denying Petitioner's claim that his constitutional rights were violated by the State's alleged failure to produce Brady material prior to trial.
2. Denial of Petitioner's Request to Call His Mother as a Witness
Petitioner also argues that his Sixth Amendment right to a fair trial and Fourteenth Amendment right to due process of law were violated when the Orange County Court refused to allow him to call his mother as a witness at trial. According to Petitioner, he sought to call his mother as a witness “to factually, reasonably controvert and impeach [the victim's] testimony for truthfulness.” (Docket No. 1 at 6). In response, the State contends that this claim is: (1) unexhausted and procedurally barred from review because (i) it was presented differently on direct appeal, and (ii) “petitioner did not challenge” the court's rulings “on federal constitutional grounds;” (2) precluded from habeas review because the decision to exclude Petitioner's mother's testimony was based entirely on state law; and (3) substantively meritless. (Docket No. 32 at 20-35).
Upon review of the record, the Court finds that Petitioner's claim is exhausted. (Id. at 21). Both Petitioner's appellate brief filed in the Second Department and his letter motion to the Court of Appeals for leave to appeal the Second Department's decision argue that his Sixth Amendment rights were violated when the trial court precluded him from calling his mother as a witness. (See e.g., Docket Nos. 32-1 at 30-33; 32-2 at 21). While Petitioner framed the claim slightly differently on direct appeal-by arguing that his rights were violated when the trial court would not let him call his mother as a witness without requiring him to first submit an order of proof-his briefs in support cite to the U.S. Constitution and the case Chambers v. Mississippi, 410 U.S. 284, 294 (1973). In Chambers, the Supreme Court analyzed a defendant's due process right to “defend against the State's accusations . . . and to call witnesses in one's own behalf.” (Id.). Therefore, he presented the Sixth and Fourteenth Amendment claims generally on direct appeal as he was not required to cite “book and verse” of the U.S. Constitution to give the state court “notice of the constitutional nature of the claim.” Daye, 696 F.2d at 192. Indeed, “courts may be alerted to the constitutional nature of a claim in a number of ways,” including “if the defendant has claimed the deprivation of a particular right specifically protected by the Constitution.” Id. at 192-93. Therefore, Petitioner's claim has been exhausted for purposes of habeas review.
Nevertheless, the Orange County Court's decision to preclude Petitioner's mother's testimony was an evidentiary ruling based on independent and adequate state law, barring federal habeas review. Garraway v. Phillips, 591 F.3d 72, 75 (2d Cir. 2010) (“When a state court has decided a case on an independent and adequate state ground-whether substantive or procedural-we decline to review the state court's decision.”). The Supreme Court has held that “[t]he Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense, but . . . state and federal rule-makers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials.” Nevada v. Jackson, 569 U.S. 505, 509 (2013) (citations and internal quotations omitted). “Only rarely have we held that the right to present a complete defense was violated by the exclusion of defense evidence under a state rule of evidence,” Id., and a “defendant's right to present relevant evidence is not [] unlimited; rather it is subject to ‘reasonable restrictions.'” Wade v. Mantello, 333 F.3d 51, 58 (2d Cir. 2003) (quoting United States v. Scheffer, 523 U.S. 303, 308 (1998)).
Thus, “[t]he right to present a defense . . . does not give criminal defendants carte blanche to circumvent the rules of evidence.” United States v. Almonte, 956 F.2d 27, 30 (2d Cir. 1992). “Restrictions on a defendant's presentation of evidence are constitutional if they serve ‘legitimate interests in the criminal trial process,' and are not ‘arbitrary or disproportionate to the purposes they are designed to serve.'” Id. (quoting Rock v. Arkansas, 483 U.S. 44, 55-56 (1987)). Furthermore, the Supreme Court is “‘traditional[ly] reluctan[t] to impose constitutional constraints'” on “‘ordinary evidentiary rulings by state trial courts' concerning the admissibility of evidence[.]” Wade, 333 F.3d at 60 (quoting Crane v. Kentucky, 476 U.S. 683, 689 (1986)). “In determining whether the exclusion of evidence violated a defendant's right to present a defense, a district court must first consider the propriety of the state trial court's evidentiary ruling.” Olivo v. Graham, No. 15 Civ. 9938 (VLB)(AEK), 2021 WL 3272080, at *17 (S.D.N.Y. Mar. 23, 2021), report and recommendation adopted, 2021 WL 3271833 (S.D.N.Y. July 30, 2021). “If the state trial court's ruling was not proper, then the district court must determine ‘whether the omitted evidence evaluated in the context of the entire record creates a reasonable doubt that did not otherwise exist.'” Id. (quoting Wade, 333 F.3d at 58-60).
Here, the Orange County Court precluded Petitioner from calling his mother as a witness because her testimony was being used solely to impeach Ms. Acevedo's credibility as to collateral matters that had no bearing on whether a crime was committed. Specifically, Petitioner sought to ask his mother whether he paid rent or received mail at Ms. Acevedo's residence while living with her and whether he was given a copy of the order of protection entered against him. However, whether he received mail or paid rent at Ms. Acevedo's residence was irrelevant since the order of protection barred him from residing with Ms. Acevedo (or coming within 500 feet of her), making his mother's testimony on this fact immaterial. (Docket No. 32 at 3). Under New York law, “[t]he general rule is that a party may not introduce extrinsic evidence on a collateral matter solely to impeach credibility.” People v. Kerley, 63 N.Y.S.3d 538, 540 (3d Dep't 2017) (internal quotations omitted) (collecting cases). “The issue of whether a matter is collateral or relevant to some issue must be determined under the particular circumstances of each case.” People v. Johnson, 533 N.Y.S.2d 345, 347 (2d Dep't 1988). Therefore, because Petitioner was no longer permitted to reside at Ms. Acevedo's residence, the Orange County Court's decision to preclude his mother from testifying was correct as the testimony was being introduced solely to contradict Ms. Acevedo on a point that had no bearing on whether he committed the crimes charged.
Since Petitioner was barred from residing with Ms. Acevedo due to the protective order, regardless of whether he was paying rent for the residence or receiving mail there, the trial court also could have precluded Petitioner's mother's testimony on this point as irrelevant to any charge or defense. People v. Aska, 674 N.Y.S.2d 271, 272 (N.Y. 1998) (“As a general rule, the trial court is granted broad discretion in making evidentiary rulings precluding or admitting such evidence and, absent an abuse of discretion, a trial court's decision should not be disturbed on appeal”); Torres v. Fisher, No. 06-CV-6579 (SLT)(VVP), 2010 WL 1338088, at *8 (S.D.N.Y. Mar. 31, 2010) (same).
The same is true for Petitioner's mother's anticipated testimony on whether he received a copy of the order of protection. Petitioner sought to use his mother's testimony only to impeach witnesses who testified that he was aware of it. However, even if Petitioner's mother testified that she did not see him receive a copy of the order, this would not have been sufficient to rebut his actual knowledge of the order since he was present in court when the order was signed. See People v. Nichols, 78 N.Y.S.3d 590, 598-99 (4th Dep't 2018) (“Because the service element is phrased disjunctively-i.e., it is satisfied if the defendant violates either a duly served protective order or a protective order of which he or she has actual knowledge because of his or her presence in court-the People need prove only one of the statutory alternatives beyond a reasonable doubt”) (emphasis in original) (internal quotations omitted). Moreover, numerous witnesses testified that Petitioner was given a copy of the order of protection and made aware of its terms, (see, e.g., Trial Tr. at 76-79) (court reporter from order of protection proceeding confirming that the terms of the order were read to Petitioner, that he said he understood them, and that he signed the order before leaving); (Id. at 83-89) (county clerk confirming that a copy of the order was served on Petitioner during the ordinary course of business), and Petitioner's mother could not testify as to his state of mind, so the trial court was within its discretion to preclude further testimony on this point as having a “strong potential for undue prejudice, delay and confusion.” People v. Powell, 35 N.Y.S.3d 675, 679 (N.Y. 2016). As a result, the Orange County Court's decision to preclude this testimony was correct and, because it was based on a state evidentiary rule, it is not eligible for habeas review. See, e.g., Olivares v. Ercole, 975 F.Supp.2d 345, 363 (S.D.N.Y. 2013) (“[g]enerally, evidentiary rulings by a state trial court are matters of state law and do not present questions of constitutional dimension for habeas corpus review); see also McKinnon v. Superintendent, Great Meadow Corr. Facility, 422 Fed.Appx. 69, 72-73 (2d Cir. 2011) (“[u]nder Supreme Court jurisprudence, a state court's evidentiary rulings, even if erroneous under state law, do not present constitutional issues cognizable under federal habeas review.”)
While Petitioner may overcome this bar by showing that the state court's decision: (1) “was contrary to, or involved an unreasonable application of” federal law; or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented,” Driver v. Coveny, 19 Civ. 3860 (DC), 2023 WL 4066558, at *5 (E.D.N.Y. June 15, 2023) (quoting 28 U.S.C. § 2254(d)), Petitioner cannot meet either of these requirements. First, the Orange County Court's ruling was not based on federal law, but rather New York's evidentiary rule that “a party cross-examining a witness may not introduce extrinsic documentary evidence or call other witnesses to contradict a witness's answers concerning matters collateral to the issues at trial, solely for the purposes of impeaching that witness's credibility.” 34 N.Y. Jur. 2d Criminal Law: Procedure § 2367. Second, the trial court's decision was not unreasonable since Petitioner's mother's testimony would not have disproven his awareness of the order of protection or that he attacked Ms. Acevedo, which was the entire purpose of her testimony. (Trial Tr. at 610-11) (defense counsel providing order of proof that Petitioner's mother would be testifying solely on whether he paid rent or received mail at Ms. Acevedo's residence, as well as whether Petitioner's mother saw him receive a copy of the order of protection entered against him).
Finally, even assuming, arguendo, that the Orange County Court's evidentiary decision was wrong, and that Petitioner's mother should have been permitted to testify because the topics were not collateral to the charges against him, this would not be sufficient to warrant habeas relief. “[A]n erroneous state evidentiary ruling that is asserted to be a constitutional violation will merit habeas relief only where [the] petitioner can show that the error deprived [him] of a fundamentally fair trial.” Harris v. Woods, No. 05 Civ. 5582 (PAC)(AJP), 2006 WL 1140888, at *37 (S.D.N.Y. May 1, 2006) (emphasis in original) (citations and internal quotations omitted), report and recommendation adopted, 2006 WL 1975990 (S.D.N.Y. July 10, 2006). “A defendant is deprived of a fundamentally fair trial when the excluded evidence was material to the presentation of the defense.” Bryant v. Lord, No. 01 Civ. 5753 (KMW)(FM), 2007 WL 3284629, at *2 (S.D.N.Y. Nov. 6, 2007) (internal quotations omitted). In other words, the evidence must “create[] a reasonable doubt that did not otherwise exist.” Id. Petitioner has not met this high bar. Assuming his mother's testimony was exactly as defense counsel proffered it would be in the order of proof (i.e. that Petitioner was paying rent and receiving mail at Ms. Acevedo's apartment and that she did not see him receive a copy of the order of protection), this would not negate the allegation that he violently accosted Ms. Acevedo and soaked her in a flammable liquid on the night of October 15, 2016. Nor would this testimony have proven that Petitioner was not aware of the order of protection. Nichols, 78 N.Y.S.3d at 598-99. Therefore, the trial court's ruling, even if erroneous, does not warrant habeas relief.
Accordingly, I respectfully recommend denying this claim as non-cognizable and substantively meritless.
IV. CONCLUSION
For the foregoing reasons, I conclude and respectfully recommend that the Petition be denied. Further, because reasonable jurists would not find it debatable that Petitioner has failed to demonstrate by a substantial showing that he was denied a constitutional right, I recommend that no certificate of appealability be issued. See 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
The Clerk of Court is requested to mail a copy of this Report and Recommendation to the pro se Petitioner.
V. NOTICE
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts, the parties shall have fourteen (14) days from the receipt of this Report and Recommendation to serve and file written objections. If copies of this Report and Recommendation are served upon the parties by mail, the parties shall have seventeen (17) days from receipt of the same to file and serve written objections. See Fed.R.Civ.P. 6(d). Objections and responses to objections, if any, shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Philip M. Halpern at the United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Requests for extensions of time to file objections must be made to the Honorable Philip M. Halpern and not to the undersigned. Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be rendered. See 28 U.S.C. § 636(b)(1); Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008).