Opinion
13 Civ. 7317 (KMK)(PED)
05-14-2021
PATRICK BOWIE, Petitioner, v. WILLIAM LEE, Superintendent, Green Haven Correctional Facility Respondent
REPORT AND RECOMMENDATION
HONORABLE KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Patrick Bowie (“Petitioner”), proceeding pro se, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his conviction and sentence upon a jury verdict in New York Supreme Court, Orange County (De Rosa, J.). [Dkt. 1.] On August 31, 2007, Petitioner was convicted of two counts of murder in the first degree, four counts of robbery in the first degree, criminal possession of a weapon in the second degree, and conspiracy in the second degree. On October 4, 2007, Petitioner was sentenced to life in prison without parole, which he is currently serving at the Green Haven Correctional Facility in Dutchess County, New York.
The Petition comes before me pursuant to an Order of Reference entered January 15, 2014. [Dkt. 7.] For the reasons that follow, I respectfully recommend that Your Honor DENY the Petition.
The information in this section is taken from the Petition, Petitioner's January 14, 2019 Supplemental Brief [Dkt. 80], Respondent's Memorandum of Law in Opposition and attached exhibits [Dkt. 89, 90], and Petitioner's Reply [Dkt. 103].
A. Factual History
1. Events Leading to the Crime
Petitioner had been in a romantic relationship with the victim, Fermina Nunez, for several years. In September 2006, Nunez ended their relationship after Petitioner moved his exwife, Francesca Cappellan, and their child into his home in Middletown, New York. Between September and December 2006, Petitioner attempted to contact Nunez hundreds of times. On numerous occasions he traveled to Nunez's place of business, the Final Touch Salon in Middletown. Sometimes he would stay outside and watch her work. Other times he would enter the salon and try to speak to Nunez. Petitioner would travel to Nunez's home unannounced and wait for her. He called Nunez over a thousand times. He approached Nunez's children and family to ask them to convince Nunez to return to him. On December 3, Petitioner arrived unannounced to Nunez's brother's place of business and offered him $10,000 to $15,000 to persuade Nunez to restart their relationship. He declined. Petitioner's attempted contacts with Nunez continued through the end of December.
On December 1, Petitioner began contacting Melvin Green. According to Sharae Green, Melvin Green's wife, Green and Petitioner had been friends for years. Petitioner placed 74 calls to Green between December 1 and December 19. Green did not respond to any of them. Petitioner visited Green's apartment in the Bronx, New York on December 19. After a meeting with Petitioner, Green shut off his phone until December 25 when Petitioner visited Green's home again. According to Sharae Green, Petitioner and Green spoke to each other behind closed doors for 45 minutes that day. Between December 28 and December 30, Petitioner and Green made 91 additional calls to each other. On December 29, Green traveled from the Bronx to Middletown where he stayed until 2:00 a.m. the following morning before returning home.
On December 30, Green returned to Middletown. That morning, Petitioner arrived at Nunez's salon but did not speak to her. He returned again in the afternoon with flowers and asked Nunez to dinner and to restart their relationship. Nunez refused. According to Petitioner, Nunez stated she was busy, and Petitioner left. According to eyewitnesses, Petitioner and Nunez had an argument, at which point Petitioner stated that Nunez and her family would see “what he was capable of” before leaving. Green and Petitioner remained near the salon that evening.
2. The Crime
Nunez's salon stayed open late on December 30 to accommodate customers styling their hair for New Year's Eve. At around 11:00 p.m., three individuals were in the salon with Nunez: two of her friends and employees, Deborah Carabello and Milagros Picon, and another patron, Esther Deslanedes. Between 10:45 p.m. and 11:45 p.m., Petitioner and Green made ten phone calls to each other.
At 11:45 p.m., Green entered the salon unmasked wearing a New York Yankees hat, a dark leather jacket, blue jeans, and black Timberland work boots. He carried a loaded, chipped, black and brown .38 caliber revolver. Green ordered the women to the floor and demanded their valuables. He walked to the cash register and unsuccessfully attempted to open it. Green asked for the owner, and Nunez responded. Green ordered her to open the cash register, which she did, and Green placed its contents into his coat pockets. Green forced Nunez onto the ground next to Carabello and pushed Carabello away. He stepped onto the back of Nunez's leg. He pointed the gun at the back of her head and fired a single shot. Green fled the scene. Nunez died instantly.
The Orange County Police Department were called at 11:54 p.m.. At that same minute, Green called Petitioner. After that call, all communication between Petitioner and Green ceased.
3. Investigation and Arrest
Detective Thomas Miller of the City of Middletown Police Department investigated the crime scene. He discovered Nunez lying face down with a gunshot wound to her head. Deslanedes, Carabello, and Picon each gave statements. They identified Nunez, and each provided a physical description of the shooter and his clothing. Detective Miller observed a boot impression on Nunez's pant leg where Green had stepped on her. There were numerous pieces of potato on the floor around Nunez's body.
Police interviewed Nunez's friends and relatives and quickly learned of her relationship with Petitioner. On December 31, Investigator Jan Golding and Sergeant Gerald Mishk of the New York State Police Department interviewed Nunez's brother who provided them with Petitioner's cell phone number. The same day, Investigator Jim Reilly of the Orange County District Attorney's Office prepared a subpoena to obtain records associated with Petitioner's cell phone number. The records revealed the over one thousand calls Petitioner placed to Nunez, as well as the numerous calls with a number associated with Green. The records also revealed cellular tower data indicating Petitioner's general location when placing calls. Investigator William Manley of the New York State Police analyzed the cellular tower data and mapped Petitioner's and Green's locations.
At around noon that same day, Petitioner arrived at the Middletown Police Department with his attorney and met with Detective Thomas Keating and Investigator Rene Ferro. Petitioner was not under arrest, and he arrived voluntarily. He was interviewed with his attorney present. Detective Keating asked Petitioner's attorney if he could ask Petitioner questions, and he agreed. Petitioner stated that he was home the night of December 30 when he received a call from his sister that something had happened to Nunez. Petitioner stated that he contacted his attorney in the early morning hours of December 31 and met with him in person at around 8:00 a.m. that day before arriving at the police station.
Later that day, Detective Keating met with Officer Larry Beresnoy of the Middletown Police Department, as well as Sergeant Brendan Duke of the 43rd Precinct of the New York Police Department, which covers the southeast portion of the Bronx. Using Petitioner's cell phone records and the police database, they were able to identify Green as the owner of the phone number appearing in Petitioner's call logs. The next day on January 1, 2007, Deslandes identified Green in a photo array conducted by Senior Investigator Terry Mullin of the New York State Police. That same day, Detective Matthew Johnson and Investigator John Ramos met with Picon at her home and presented her with a photo array. She identified Green's photograph and stated that he was present at the salon during the shooting.
Based on this information, the investigators contacted Green at his home in the Bronx on January 1, 2007. Investigator Paul Dequato arrived at Green's home with members of the Middletown Police. He spoke with Sharae Green who confirmed that Green had known Petitioner for years. Investigator Dequato spoke with Green who admitted that he knew Petitioner and that he had had a phone conversation with him on the night of the murder. Green was taken into custody and brought to the Middletown Police Department where he met with Detectives Johnson and Miller who read him his Miranda rights.
During the interview, Green admitted that he shot and killed Nunez on the order of Petitioner with a weapon supplied by Petitioner. He admitted that Petitioner had hired him to carry out the murder. He stated that he and Petitioner had surveyed Nunez's salon on the evening of the crime. He explained that he had used a potato as a suppresser on the gun and that he hid the gun in his home. Green signed a written confession of the crime. He was then remanded to the Orange County Jail.
On the same day, Middletown Police Detective Joseph Tobin was assigned to surveil Petitioner's home. In the early morning hours of January 2, Sgt. Mishk and other officers arrived at Petitioner's residence and secured the premises in anticipation of a warrant. Petitioner refused to allow police into the home and refused to come out. Petitioner called a cab to pick him up from the rear of his home, but was unable to leave due to the police securing the premises. Shortly after midnight, Detective Tobin, who was a paramedic, was asked to respond to the front of Petitioner's residence for a medical emergency. Petitioner exited the residence, and Detective Tobin observed puncture wounds on Petitioner's neck, arms, and groin. Petitioner admitted that the wounds were self-inflicted, and that he had stabbed himself numerous times over the past two hours. Petitioner was taken into custody and arrested for murder. He was turned over to medical personnel and later remanded to the Orange County Jail.
Following the arrest, police executed a search warrant of Petitioner's home. [Dkt. 90-1 at 25.] They recovered, among other things, a Nextel cell phone. Police executed a search warrant at Green's home on the same day. [Dkt. 90-1 at 18.] They recovered a black and brown .38 caliber revolver with a defaced serial number that was wrapped in a towel. The revolver contained four live rounds and one spent shell casing. Police also recovered a pair of black Timberland work boots, a pair of blue jeans with a belt, a black leather jacket, five prepaid cell phones, a blackberry cell phone, and a New York Yankees hat.
A DNA analysis revealed trace amounts of Petitioner's and Green's DNA on the towel in which the revolver had been wrapped. Police observed that the bullet found in Nunez was shot from a .38 caliber revolver. The boot impression on Nunez's pant leg was consistent with the size and tread pattern of the Timberland work boots recovered from Green's home. The .38 caliber revolver found in Green's home was identified by Nunez's brother as belonging to Petitioner. He stated that he had seen Petitioner with the revolver as recently as the previous summer, believing him to be a detective. Picon and Carabello also identified the revolver as the one Green had used the night of the murder. Picon, Carabello, and Deslanedes identified the clothes obtained from Green's home as the same clothes he wore during the murder.
On January 4, 2007, Detective Johnson conducted a photo array with assistance from an interpreter, Ricardo Arias, at the Orange County District Attorney's Office. They presented the photo array to Picon who selected Petitioner's photograph and identified him by name.
On February 6, 2007, by Orange County Indictment No. 2007-040, Petitioner and Green were charged with two counts of murder in the first degree, two counts of murder in the second degree, four counts of robbery in the first degree, one count of criminal possession of a weapon in the second degree, and one count of conspiracy in the second degree. [Dkt. 90-1 at 3-16.]
Over the next six months, Petitioner and Green were detained in the Orange County Jail and housed in separate areas. During that time, they corresponded through letters which they passed through another inmate, Marlon Avila. On June 1, 2007, Investigator Reilly interviewed Avila with Avila's attorney present. Avila stated that he had had separate conversations with Green and Petitioner regarding the murder. He reported that Petitioner complained about Green calling him after the murder and admitted that he was supposed to meet with Green after the murder to collect the gun. He also reported that Petitioner instructed Green to change his statement made to the police.
On July 10, 2007, Avila wrote to the Orange County District Attorney's Office through his attorney and stated that he was in possession of letters between Petitioner and Green. He provide fifteen letters to Orange County Investigator Thomas Reinle two weeks later. On July 24, 2007, police executed search warrants of Petitioner's and Green's jail cells. [Dkt. 90-1 at 83, 93.] They recovered a cache of letters hidden in Petitioner's pillow. Portions of the letters were written using code words. DNA analysis revealed Green's and Petitioner's DNA on the letters. Later, police matched the handwriting to handwriting on Petitioner's bank records, and his handwriting was identified by eyewitnesses. The letters made numerous references to Judge De Rosa, who had been assigned to the case, Petitioner's defense counsel Jose Camacho, and Petitioner's scheduled court appearances. The letters also made references to Petitioner and Green by name in the third person.
The letters stated that Petitioner provided Green with a “burner, ” meaning a gun, for a “party, ” referring to the hit on Nunez, in exchange for “jellybeans, ” referring to payment. Petitioner instructed Green to change the statement he had given to police and to tell investigators that Green was looking at various properties with Petitioner. Petitioner gave Green the location and description of specific homes and instructed Green to tell police that they had been visiting those properties during the night of the murder. They also discussed their attorneys and legal strategy, and Petitioner assured Green that he would be able to reduce the charges to possession of a weapon and not murder. Green expressed his frustration with Petitioner after not having received full payment. Petitioner also expressed frustration with Green for speaking to the police, which, according to Petitioner, implicated him in the crime.
B. Procedural History
1. Pre-Trial Motions
a. Omnibus Motion
Petitioner, through counsel, filed an omnibus motion on April 22, 2007. [Dkt. 90-1 at 3351.] Petitioner sought, inter alia, production of all evidence favorable to Petitioner pursuant to Brady v. Maryland, 373 U.S. 83 (1963); suppression of any statements made by Petitioner to police on the grounds that they were illegally obtained pursuant to People v. Huntley, 15 N.Y.2d 72 (N.Y. 1965); suppression of any out of court police arranged identification of Petitioner pursuant to United States v. Wade, 388 U.S. 218 (1968); severance of Petitioner's trial from Green's; and authorization to obtain compensation to obtain experts, including but not limited to experts on DNA and ballistics.
By Decision and Order dated June 1, 2007, Judge De Rosa scheduled an omnibus pretrial hearing. [Dkt. 90-1 at 70-74.] He granted Petitioner's application under Brady, which was unopposed. Id. He denied Petitioner's application for compensation to hire experts and the application for severance, with leave to renew both applications. Id.
b. Joint Pre-Trial Hearing
Judge De Rosa held hearings addressing all remaining pre-trial motions pertaining to both Petitioner and Green on June 4, June 18, and July 2, 2007. [Dkt. 90-14, 90-15, and 90-16.] Petitioner and Green were both present and represented by separate counsel. Judge De Rosa rendered a decision on August 16, 2007. [Dkt. 90-2 at 78-83.]
Pursuant to Wade, Petitioner moved to suppress the January 4 photo array identification by Picon and administered by Detective Johnson with assistance from Arias. [Dkt. 90-14 at 5.] Detective Johnson testified that he met with Arias and Picon on January 4. Id. at 50. The photo array and instructions were admitted into evidence. Id. at 51. Detective Johnson read Picon the instructions and placed the photo array in front of her. Id. at 52. Picon selected Petitioner's photograph and identified him by the name Patricio. Id. at 53. Arias testified that he translated Detective Johnson's instructions to Picon as well as Picon's responses to Detective Johnson. Id. at 5-6. Judge De Rosa held that the photo array was admissible at trial, finding that it was conducted in a reasonable manner with no undue suggestiveness. [Dkt. 90-2 at 83.]
Pursuant to Huntley, Petitioner moved to suppress the use of his statements made to police on December 31. Detective Keating testified that he met with Petitioner and his attorney on December 31, 2006 in the Middletown Police Department. [Dkt. 90-14 at 83-85.] He identified Petitioner and Attorney Camacho in the courtroom. Id. at 84. He testified that Petitioner had arrived at the police department with his attorney voluntarily, and he was not under arrest and not in handcuffs. Id. at 85. Detective Keating asked counsel whether he could ask Petitioner questions, and counsel agreed. [Dkt. 90-14 at 85-86]. During the interview, Petitioner stated that he knew Nunez, that she had broken up with him two months earlier, and that he was home on the night of her death. Id. at 86-87. He stated that his sister had called him that night, and thereafter Petitioner called his attorney at 2:00 a.m. on December 31. Id. at 86. He stated that he had met with Nunez at approximately 4:00 p.m. on December 30 at her salon, at which point counsel did not let police ask additional questions. Id. at 88-89. After the interview, Petitioner and counsel left, and Petitioner was not placed under arrest. Id. at 89. Judge De Rosa held that the statements were admissible because they were made voluntarily and in the presence of Petitioner's attorney. [Dkt. 90-2 at 82.]
Petitioner also moved to suppress the use of statements made to Detective Tobin on January 2. Detective Tobin testified that he was assigned to surveil Petitioner's residence on January 1. [Dkt. 90-14 at 17.] During the early morning hours of January 2, Detective Tobin was called to the front of Petitioner's residence to evaluate him for medical purposes. Id. at 1718. Detective Tobin explained that he had been a paramedic for 13 years. Id. at 18. He identified Petitioner in the courtroom. Id. He testified that he observed Petitioner on January 2 with a puncture wound to his neck and multiple wounds to his arms. Id. at 19. He had asked Petitioner whether he had any other injuries, and Petitioner told him that he had stabbed himself in the arms. Id. He testified that Petitioner appeared calm and was able to answer his questions logically. Id. at 19-20. He then turned Petitioner over to medical personnel. Id. at 20-21. Judge De Rosa held that these statements were admissible because Detective Tobin's questions were non-accusatory and related to Petitioner's medical condition, and Petitioner's answers were voluntary. [Dkt. 90-2 at 82-83.]
Judge De Rosa granted Petitioner's motion for severance and scheduled Green's trial for August 6, 2007 and Petitioner's trial for August 20, 2007. [Dkt. 90-16 at 70.]
2. Trial Motions
At trial, Petitioner, through counsel, moved to exclude any reference to the use of a “Bronx silencer.” [Dkt. 90-17 at 4.] Without objection, Judge De Rosa granted the application. Id. Petitioner also moved to exclude any mention of potatoes being found in his kitchen shortly after the murder on the grounds of prejudice given the presence of potato scraps found at the crime scene. Judge De Rosa denied the application, reasoning that the evidence was not overly prejudicial and was a question of fact as to weight and not admissibility. Id. at 5. Petitioner, through counsel, also moved to exclude photographs of his wounds during the early morning hours of January 2, as well as evidence that he attempted to call a taxi to the back of his home that morning. Id. Judge De Rosa denied both applications. Id.
“Bronx silencer” is apparently a colloquial term describing a potato affixed to the barrel of a gun as a makeshift suppressor. It does not work. See, e.g., David Emery, Potato Used as Suppressor, The Museum of Hoaxes. http://hoaxes.org/weblog/comments/ potatousedassilencer. Retrieved October 24, 2020.
On the morning of August 20, Petitioner through counsel sought an adjournment of the trial to obtain funds to hire a DNA identification expert and a ballistics expert. Id. at 9-12. Judge De Rosa denied the request for an adjournment, but reserved ruling on whether the county would be able to provide funds. Id. at 12-15. The next day, he granted Petitioner $2,500.00 to obtain experts, with leave to seek an additional $2,500.00 if needed. [Dkt. 90-19 at 5].
3. Trial, Conviction and Sentencing
Trial commenced on August 20, 2007. At the end of the prosecution's case in chief, Petitioner through counsel moved to dismiss all charges against him on the sole basis that the prosecution had failed to meet its burden. [Dkt. 90-27 at 76.] Viewing the evidence in the light most favorable to the non-moving party, Judge De Rosa held that the prosecution had made a prima facie case and dismissed the motion. Id. at 77-78. Just prior to summations, Petitioner through counsel also made an application to redact the letters obtained from Petitioner's jail cell as to any portions referring to a false alibi or a confession by Green. [Dkt. 90-29 at 27.] The application was denied. Id. at 33.
On August 31, 2007, the jury returned a verdict of guilty on two counts of murder in the first degree, four counts of robbery in the first degree, one count of criminal possession of a weapon in the second degree, and one count of conspiracy in the second degree. [Dkt. 90-31 at 71-88.] Petitioner through counsel moved to set aside the verdict, which Judge De Rosa denied. Id. at 88. On October 4, 2007, Petitioner was sentenced to two life sentences without parole, with additional sentences in the aggregate of 25 years imprisonment to be served consecutively to the life sentences, and an additional five years of post-release supervision. [Dkt. 90-31 at 129.]
4. Direct Appeal
Petitioner, through counsel, timely appealed his conviction to the Appellate Division, Second Department, on the grounds that: (1) the evidence was legally insufficient to support his conviction, and (2) the verdict was against the weight of the evidence. [Dkt. 90-2 at 85-109.] Petitioner filed a pro se supplemental brief raising additional grounds: (1) the court failed to properly instruct the jury on the use of circumstantial evidence; (2) the search of his jail cell pursuant to a warrant was improper; (3) Petitioner was prejudiced when Green was presented to the jury during Petitioner's trial for identification wearing an orange jumpsuit; and (4) the trial court erred by admitting into evidence bank records and “other evidence” which Petitioner did not identify, as well as testimony through the use of a court interpreter. [Dkt. 90-3 at 47-62.]
By decision and order dated April 5, 2011, the Appellate Division affirmed the judgment and dismissed the appeal. People v. Bowie, 83 A.D.3d 729 (N.Y. A.D.2d Dep't 2011). The Appellate Division held that Petitioner's challenge to the legal sufficiency of the evidence was unpreserved. Id. The Appellate Division, nevertheless, dismissed the claim on the merits and held that the evidence was legally sufficient to establish Petitioner's guilt. Id. The Appellate Division also held that the verdict was not against the weight of the evidence and summarily denied the remaining contentions on the merits. Id.
Petitioner, through counsel, filed an application before the New York State Court of Appeals for leave to appeal the Appellate Division's denial, which was summarily denied on July 26, 2011. People v. Bowie, 17 N.Y.3d 804 (N.Y. 2011). On July 16, 2012, the Court of Appeals summarily denied Petitioner's motion for reconsideration. People v. Bowie, 19 N.Y.3d 971 (N.Y. 2012).
5. The Instant Petition and Stay of Proceedings
Petitioner, pro se, timely filed the Petition on October 8, 2013 on the following grounds: (1) the evidence was insufficient to support the verdict; (2) the verdict was against the weight of the evidence; (3) ineffective assistance of trial counsel; and (4) ineffective assistance of appellate counsel. [Dkt. 1.]
Petitioner conceded that his claims for ineffective assistance of trial and appellate counsel had not been exhausted. By letter dated March 5, 2014, Petitioner informed me that he had filed a motion pursuant to New York Criminal Procedure Law (N.Y.C.P.L.) § 440.10 in October 2013, and he requested a stay in order to exhaust his claims. [Dkt. 10.] The request was unopposed. Finding good cause and no undue delay, I granted a stay by Order dated March 21, 2014. [Dkt. 12.] Petitioner was required to file a motion to lift the stay and reopen his case within 30 days of the resolution of his subsequent state applications. Id.
6. Post-Petition State Court Proceedings
Petitioner, pro se, filed a motion to vacate and set aside his conviction pursuant to N.Y.C.P.L. § 440.10 before the Supreme Court of New York, Orange County on October 15, 2013. [90-6 at 3-13.] Petitioner made the following claims: (1) ineffective assistance of trial counsel, insofar as his counsel failed to call fact and expert witnesses, including a bank employee to explain Petitioner's financial transactions, and by failing to object to the introduction of the letters obtained from Petitioner's jail cell on the grounds of a confrontation clause violation; (2) violation of his right to due process when Green was presented during Petitioner's trial for identification wearing an orange jumpsuit; (3) actual innocence; (4) the evidence was insufficient to support the conviction and instead based on improper inferences; and (5) prosecutorial misconduct by introducing Petitioner's bank records into evidence. Id.
The County Court denied the motion by Decision and Order dated July 30, 2014. [Dkt. 90-6 at 56-58.] Regarding the claims for ineffective assistance of trial counsel, the County Court reasoned that Petitioner failed to offer any evidence other than his own conclusory allegations. Id. at 57. The County Court dismissed Petitioner's remaining claims pursuant to N.Y.C.P.L. § 440.10(2) because they had been raised on appeal and denied. Id. Petitioner moved for reconsideration, which was denied on December 9, 2015. [Dkt. 21 at 4-6.]
Petitioner made an application to the Appellate Division for leave to appeal, which was summarily denied on February 20, 2015. [Dkt. at 90-7 at 3.] Petitioner then filed an application for leave to appeal before the New York Court of Appeals, which was denied on May 25, 2015 on the basis that the Appellate Division's denial was not appealable under N.Y.C.P.L. § 450.90(1). [Dkt. 90-7 at 5.] Petitioner made a second application to the Appellate Division for leave to appeal the County Court's December 9 denial, which was summarily denied on March 9, 2016. [Dkt. 90-7 at 87.] Petitioner appealed the Appellate Division's denial again before the New York Court of Appeals, which was summarily denied on June 9, 2016. [Dkt. 27 at 2.] Petitioner moved for reconsideration before the Court of Appeals, which was denied on November 1, 2016 by summary order. [Dkt. 90-8 at 22.]
Respondent moved to lift the stay by letter motion dated November 23, 2016 on the basis that Petitioner had exhausted his state court remedies. [Dkt. 32.] By Order dated March 27, 2017, I denied the motion and directed Petitioner to file a Writ of Error Coram Nobis, if he had not already done so, within 30 days. [Dkt. 33.] Upon Petitioner's request, I extended his deadline to file to May 31, 2017. [Dkt. 38.]
Petitioner, pro se, timely filed an application for a Writ of Error Coram Nobis before the Appellate Division on May 23, 2017 claiming ineffective assistance of appellate counsel. [Dkt. 90-8.] He claimed that appellate counsel failed to raise errors caused by alleged ineffective assistance of trial counsel. Id. at 60. Petitioner alleged that trial counsel: (1) failed to object to testimony concerning notes which Petitioner claimed were written by Avila; (2) failed to object to the admission of the letters seized from Petitioner's jail cell; (3) failed to object to the presence of Green at Petitioner's trial wearing an orange jumpsuit; (4) did not call expert witnesses; and (5) failed to rebut the prosecution's theory that Petitioner engaged in a conspiracy and their use of circumstantial evidence. Id. at 54, 62-65. Petitioner separately claimed that testimony from Investigator Manley deprived him of a fair trial. Id. at 4, 66. The Appellate Division denied the application by summary Order and Decision dated December 6, 2017. [Dkt. 90-9 at 53.]
Petitioner filed for leave to appeal before the Court of Appeals on January 2, 2018 [Dkt. 90-10 at 37-41], which was denied by Order dated March 15, 2018. [Dkt. 90-10 at 3.] Petitioner filed an application to reargue the application for a Write of Error Coram Nobis, which was denied by the Appellate division on May 17, 2018. [Dkt. 90-10 at 54.]
7. Termination of the Stay and Full Submission
On June 5, 2018, I issued an Order to Show Cause as to why I should not lift the stay and reopen the case for further proceedings. [Dkt. 54.] By letter dated June 6, 2018, Petitioner asked that I continue the stay because he had retained a private investigator who allegedly acquired new evidence. [Dkt. 60.] Petitioner referred to new witnesses and affidavits, which he did not name and did not provide. Id. The only new documents Petitioner included were a copy of a check dated December 7, 2006 for $10,000.00, stating in the memo section “Re: Patrick Bowie 57 Prospect Avnue, ” and information regarding Avila's arrest records. Id. at 30, 34-72.
On July 2, 2018, prior to my decision on the Order to Show Cause, Petitioner, pro se, filed a second § 440.10 motion. [Dkt. 90-10 at 56-64.] In addition to the claims contained in the Petition, Petitioner raised new allegations of prosecutorial misconduct. Id. The attached exhibits were the same documents which Petitioner filed in his response to the Order to Show Cause. [Dkt. 90-10 at 65-102 and 90-11 at 1-74.] By order dated November 30, 2018, I determined that Petitioner had exhausted the claims made in his Petition, and that the Petition was ripe for consideration. [Dkt. 69.] Accordingly, I lifted the stay. Id. I allowed Petitioner to file a supplemental brief and any other papers he may choose to submit. Id.
Petitioner timely filed a supplemental brief on January 14, 2018, which reasserted the claims made in his Petition. [Dkt. 80.] Petitioner also made new claims which were presented to me for the first time: (1) prosecutorial misconduct, including a violation under Brady v. Maryland, 373 U.S. 83 (1963); and (2) actual innocence. Id. at 12-14. Following the submission of Respondent's memorandum of law, Petitioner was granted an additional ninety days to file a reply, which he did on August 12, 2019. [Dkt. 103.]
The documents filed at Dkt. 79 and Dkt. 80 are identical, except that Dkt. 79 is missing certain pages. Petitioner refiled the supplemental brief at Dkt. 80 for completion.
By letter dated April 20, 2020, Petitioner requested leave to file a supplemental submission, which Your Honor granted. [Dkt. 108.] Petitioner filed no new evidence, and instead asked for another stay pending additional state court proceedings. [Dkt. 112.] Considering the amount of time afforded to Petitioner, the lack of new evidence, and my finding that the Petition was ripe for consideration, I denied Petitioner's request for a further stay and deemed the matter fully submitted. [Dkt. 116.]
III. APPLICABLE LAW
“Habeas review is an extraordinary remedy.” Bousley v. United States, 523 U.S. 614, 621 (1998) (citing Reed v. Farley, 512 U.S. 339, 354 (1994)). Before a federal district court may review the merits of a state criminal judgment in a habeas corpus action, the court must first determine whether the petitioner has complied with the procedural requirements set forth in 28 U.S.C. §§ 2244 and 2254. If there has been procedural compliance with these statutes, the court must then determine the appropriate standard of review applicable to the petitioner's claim(s) in accordance with § 2254(d). The procedural and substantive standards applicable to habeas review, which were substantially modified by the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), are summarized below.
A. Timeliness Requirement
A federal habeas corpus petition is subject to AEDPA's strict, one-year statute of limitations. See 28 U.S.C. § 2244(d). The statute provides four different potential starting points for the limitations period, and specifies that the latest of these shall apply. See id. § 2244(d)(1). Under the statute, the limitation period is tolled only during the pendency of a properly filed application for State post-conviction relief, or other collateral review, with respect to the judgment to be challenged by the petition. See id. § 2244(d)(2). The statute reads as follows:
(d)(1) 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. The limitation period shall run from 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.
(d)(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.Id. § 2244(d).
The one-year limitation period is subject to equitable tolling, which is warranted when a petitioner has shown “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way' and prevented timely filing.” Holland v. Florida, 130 S.Ct. 2549, 2262 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). In the Second Circuit, equitable tolling is confined to “rare and exceptional circumstance[s], ” Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (per curiam) (internal quotation omitted), which have “prevented [the petitioner] from filing his petition on time, ” Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000) (internal quotation marks and emphasis omitted). The applicant for equitable tolling must “demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing - a demonstration that cannot be made if the petitioner, acting with reasonable diligence, could have filed on time notwithstanding the extraordinary circumstances.” Valverde, 224 F.3d at 134.
B. Exhaustion Requirement
A federal court may not grant habeas relief unless the petitioner has first exhausted his claims in state court. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); see 28 U.S.C. § 2254(b)(1) (“[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that - (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant”); Id. § 2254(c) (the petitioner “shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented”). The exhaustion requirement promotes interests in comity and federalism by demanding that state courts have the first opportunity to decide a petitioner's claims. Rose v. Lundy, 455 U.S. 509, 518-19 (1982).
To exhaust a federal claim, the petitioner must have “fairly present[ed] his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim, ” and thus “giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotation marks and citations omitted). “Because nonconstitutional claims are not cognizable in federal habeas corpus proceedings, a habeas petition must put state courts on notice that they are to decide federal constitutional claims.” Petrucelli v. Coombe, 735 F.2d 684, 687 (2d Cir. 1984) (citing Smith v. Phillips, 455 U.S. 209, 221 (1982)). Such notice requires that the petitioner “apprise the highest state court of both the factual and legal premises of the federal claims ultimately asserted in the habeas petition.” Galdamez v. Keane, 394 F.3d 68, 73 (2d Cir. 2005) (internal citation omitted). A claim may be “fairly presented” to the state courts therefore, even if the petitioner has not cited “chapter and verse of the Constitution, ” in one of several ways:
(a) [R]eliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.Daye v. Attorney Gen. of State of N.Y., 696 F.2d 186, 194 (2d Cir. 1982). A habeas petitioner who fails to meet a state's requirements to exhaust a claim will be barred from asserting that claim in federal court. Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
However, “[f]or exhaustion purposes, a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred.” Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (internal quotation omitted). “In such a case, a petitioner no longer has ‘remedies available in the courts of the State' within the meaning of 28 U.S.C. § 2254(b).” Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991). Such a procedurally barred claim may be deemed exhausted by a federal habeas court. See, e.g., Reyes, 118 F.3d at 139. However, absent a showing of either “cause for the procedural default and prejudice attributable thereto, ” Harris v. Reed, 489 U.S. 255, 262 (1989), or “actual innocence, ” Schlup v. Delo, 513 U.S. 298 (1995), the petitioner's claim will remain unreviewable by a federal court.
Finally, notwithstanding the procedure described above, a federal court may yet exercise its discretion to review and deny a mixed petition containing both exhausted and unexhausted claims, if those unexhausted claims are “plainly meritless.” Rhines v. Weber, 544 U.S. 269, 277 (2005); see 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”); Padilla v. Keane, 331 F.Supp.2d 209, 216 (S.D.N.Y. 2004) (interests in judicial economy warrant the dismissal of meritless, unexhausted claims).
C. Procedural Default
Even where an exhausted and timely habeas claim is raised, comity and federalism demand that a federal court abstain from its review when the last-reasoned state court opinion to address the claim relied upon “an adequate and independent finding of a procedural default” to deny it. Harris, 489 U.S. at 262; see also Coleman v. Thompson, 501 U.S. 722, 730 (1991); Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 126 (2d Cir. 1995).
A state court decision will be “independent” when it “‘fairly appears” to rest primarily on state law. Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir. 2006) (citing Colman, 501 U.S. at 740). A decision will be “adequate” if it is “‘firmly established and regularly followed' by the state in question.” Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999) (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)).
D. AEDPA Standard of Review
Before a federal court can determine whether a petitioner is entitled to federal habeas relief, the court must determine the proper standard of review under AEDPA for each of the petitioner's claims. 28 U.S.C. § 2254(d)(1)-(2). This statute “modifie[d] the role of federal habeas corpus courts in reviewing petitions filed by state prisoners, ” and imposed a more exacting standard of review. Williams v. Taylor, 529 U.S. 362, 402 (2000). For petitions filed after AEDPA became effective, federal courts must apply the following standard to cases in which the state court adjudicated on the merits of the claim:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim - -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.§ 2254(d)(1)-(2). The deferential AEDPA standard of review will be triggered when the state court has both adjudicated the federal claim “on the merits, ” and reduced its disposition to judgment. Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001).
Under the first prong, a state court decision is contrary to federal law only if it “arrives at a conclusion opposite to that reached by the [the Supreme Court] on a question of law or if [it] decides a case differently than [the Supreme Court] on a set of materially indistinguishable facts.” Williams, 529 U.S. at 413. A decision involves an “unreasonable application” of Supreme Court precedent if the state court “identifies the correct governing legal rule from the Supreme Court cases but unreasonably applies it to the facts of the particular state prisoner's case, ” or if it “either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Id. at 407.
Under the second prong of AEDPA, the factual findings of state courts are presumed to be correct. 28 U.S.C. § 2254(e)(1); see Nelson v. Walker, 121 F.3d 828, 833 (2d Cir. 1997). The petitioner must rebut this presumption by “clear and convincing evidence.” § 2254(e)(1).
IV. ANALYSIS
Petitioner presents the following claims: (1) the verdict was based on insufficient evidence; (2) the verdict was against the weight of the evidence; (3) ineffective assistance of trial counsel; (4) ineffective assistance of appellate counsel; (5) prosecutorial misconduct; and (6) actual innocence.
I recommend that Your Honor decline to consider these arguments. See Flemming v. New York, Case No. 06 Civ. 16255 (LAP), 2013 WL 4831197, at *8 n.11 (S.D.N.Y. Sept. 10, 2013 (“To the extent petitioner raises claims for the first time in reply papers, or in subsequent letters to the Court, I decline to consider those arguments.”); Johnson & Johnson v. Guidant Corp., 525 F.Supp.2d 336, 359 (S.D.N.Y.2007) (“[a]rguments first raised in reply memoranda are not properly considered....”). In his August 15, 2019 Reply, Petitioner set forth, for the first time, a laundry list of additional contentions, including that the indictment was jurisdictionally defective, the trial court lacked subject matter jurisdiction over his case, there were deficiencies in service, and a vague reference to Rule 11 sanctions. [See Reply, Dkt. 103 at 34-35, “Grounds For Release that Petitioner Did Not Know”.]
1. Exhaustion and Timeliness
Petitioner timely filed and properly exhausted his first four claims, but the remaining claims of prosecutorial misconduct and actual innocence were neither timely nor properly exhausted. Petitioner's conviction became final on October 14, 2012, after the 90-day expiry of Petitioner's time to file a writ of certiorari following the New York Court of Appeals' denial of his leave to appeal. See Chrysler v. Guiney, 14 F.Supp.3d 418, 433 (S.D.N.Y. 2014) (“Pursuant to 28 U.S.C. § 2244(d)(1)(A), a judgment becomes final only after the denial of certiorari or the expiration of time for seeking certiorari-in the latter case, ninety days after a decision by the New York Court of Appeals.”). Therefore, AEDPA's one-year limitations period ended on October 14, 2013.
The Petition was filed on October 8, 2013, six days before the expiry of the one-year limitations period. There, Petitioner asserted his first two claims, that the verdict was based on insufficient evidence, and that the verdict was against the weight of the evidence. Both claims were exhausted prior to filing the Petition. Petitioner asserted both claims on direct appeal, and he properly exhausted his opportunities to appeal those claims in subsequent state court proceedings. Therefore, these two claims are both timely and exhausted.
The Petition also contained claims of ineffective assistance of trial and appellate counsel. Petitioner acknowledged that neither claim had been exhausted at the time of filing. Nevertheless, Petitioner exhausted his claim for ineffective assistance of trial counsel by filing a post-petition motion to vacate, and he exhausted his claim for ineffective assistance of appellate counsel by filing a motion for Writ of Error Coram Nobis. However, Respondent argues that neither claim should be considered timely by virtue of the fact that they had been unexhausted when Petitioner originally asserted them in his Petition.
Contrary to Respondent's argument, both claims were timely filed. The Supreme Court has observed that where, as here, a petitioner files a mixed petition containing both exhausted and unexhausted claims, and a district court dismisses the petition, the one-year limitations period would lapse before a petitioner has the opportunity to exhaust his claims. Rhines, 544 U.S. at 275. The Court explained:
If a petitioner files a timely but mixed petition in federal district court, and the district court dismisses it under Lundy after the limitations period has expired, this will likely mean the termination of any federal review.... Similarly, if a district court dismisses a mixed petition close to the end of the 1-year period, the petitioner's chances of exhausting his claims in state court and refiling his petition in federal court before the limitations period runs are slim.Id. As a result, district courts may grant reasonable stays, rather than dismissing unexhausted petitions, to allow a petitioner to exhaust otherwise unexhausted claims before returning to federal court. Id. at 274-76. “Once the petitioner exhausts his state remedies, the district court will lift the stay and allow the petitioner to proceed in federal court.” Id. at 275-76. Under this scheme, therefore, unexhausted claims filed in a timely petition are still “timely” for habeas purposes, even where they are not exhausted until after the expiry of the limitations period. See, e.g., Keating v. New York, 708 F.Supp.2d 292 (E.D.N.Y. 2010) and Keating v. New York, 2013 WL 3187032 (E.D.N.Y. June 20, 2013) (staying a mixed petition to allow the petitioner to exhaust certain claims, and hearing all claims three years later as timely). Therefore, Petitioner's claims for ineffective assistance of trial and appellate counsel are both timely and exhausted.
The Court will provide Petitioner with a copy of all unreported cases cited in this Report and Recommendation.
However, Petitioner's remaining claims of prosecutorial misconduct and actual innocence are neither exhausted nor timely. Presumably, Petitioner maintained his innocence throughout his state court proceedings. He also made a pre-trial motion under Brady, which was granted as unopposed. Nevertheless, Petitioner never raised either argument in any state postconviction proceeding. No New York State court ever had the chance to hear these claims. Petitioner, therefore, failed to exhaust both claims.
These claims are also untimely. The first time Petitioner asserted either claim during the habeas process was in his January 14, 2018 supplemental brief. [Dkt. 80 at 12-14.] The filing of the Petition did not toll AEDPA's one-year limitations period, and therefore the limitations continued to run even when Petitioner initially filed the Petition. See Rhines, 544 U.S. at 274 (“the filing of a petition for habeas corpus in federal court does not toll the statute of limitations.”). Because AEDPA's one-year limitations period ended on October 13, 2013, and the stay was not granted until March 21, 2014, Petitioner's opportunity to file new claims had already expired.
The Supreme Court has held that a habeas petitioner cannot assert new claims that were absent from the original petition after the expiry of the limitations period, even where the original petition was timely. Mayle v. Felix, 545 U.S. 644, 656-57 (2005). To the extent that a petitioner seeks to assert new claims, the Supreme Court instructed district courts to consider such amendments under the meaning of Fed.R.Civ.P. 15(c)(2)'s relation-back provision. Id. at 656. Hence, new claims may be deemed to relate back to the original petition if they arise from the same conduct, transaction, or occurrence. The Supreme Court ruled that each theory under which a habeas petition could be granted is to be considered as a discrete transaction and occurrence, and simply relating to the same trial, conviction, or sentence is insufficient to relate back to original pleadings. Id. at 662.
Given this framework, Petitioner's claims of prosecutorial misconduct and actual innocence are “new” and do not relate back to his original Petition. The alleged Brady violation would have arisen from the prosecution's failure to produce documents and evidence that may have been favorable to Petitioner. The original Petition contains no such argument and does not reference any allegedly exculpatory material relevant under Brady. Additionally, Petitioner's Brady motion was addressed pre-trial and granted, whereas the habeas Petition pertains solely to matters occurring during and after trial. The discrete alleged instances of prosecutorial conduct were also never mentioned in the Petition.
Petitioner's claim of actual innocence is also “new” and does not sufficiently relate back to the complaint. Unlike claims that attack the sufficiency of the evidence used in a conviction which can serve as an independent basis to grant a habeas petition, “actual innocence” is not, in itself, a constitutional claim. Herrera v. Collins, 506 U.S. 390, 404 (1993). Courts have acknowledged that actual innocence is a distinct a separate claim. See, e.g., Poindexter v. Nash, 333 F.3d 372 (2d Cir. 2003) (quoting Smith v. Murray, 477 U.S. 527, 537 (1986) (“the concept of ‘actual[ ]' ... innocence is distinct from [the concept of] ‘legal [ ]' innocence.”). Though Petitioner claimed the evidence was insufficient to support his conviction, he never presented the argument that he was actually innocent to a state court after his conviction. It is, therefore, a new argument that does not relate back to the Petition.
Nevertheless, a district court may still consider unexhausted arguments that are “plainly meritless.” Rhines, 544 U.S. at 277. Additionally, a district court may consider“actual innocence” when determining whether certain claims are precluded by procedural bars. For example, a federal court may review a claim that is procedurally barred if the petitioner can show a “fundamental miscarriage of justice, ” which occurs where a petitioner is “actually innocent of the crime for which he has been convicted.” Coleman v. Thompson, 501 U.S. 722, 729 (1991); Cotto v. Herbert, 331 F.3d 217, 239 n.10 (2d Cir. 2002). Petitioner's stand-alone claim for actual innocence, when viewed liberally, can be interpreted as a request to overcome such procedural bars.
Accordingly, I respectfully recommend your Honor consider Petitioner's stand-alone claim of actual innocence first and deny it on the merits. I recommend that Your Honor deny Petitioner's claim attacking the sufficiency of the evidence as procedurally barred, or, in the alternative, deny it on the merits. Petitioner's claim attacking the weight of the evidence should be dismissed because it is not cognizable under habeas review. Petitioner's claims for ineffective assistance of trial and appellate counsel should be denied on the merits. Petitioner's claim under Brady should be dismissed as time barred, or, in the alternative, denied as plainly meritless.
2. Actual Innocence
The Supreme Court has held that “‘actual innocence' is not itself a constitutional claim but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.” Herrera, 506 U.S. at 404. As such, a claim of actual innocence is analyzed in the same manner as a claim made under the “fundamental miscarriage of justice” standard. Therefore, a party seeking habeas relief on the basis of actual innocence must not only demonstrate some underlying constitutional violation, but must also come forward with newly discovered evidence showing that his conviction was factually incorrect. Id. at 400.
The “fundamental miscarriage of justice” standard is satisfied only under extraordinary circumstances. “Such a miscarriage of justice occurs ‘in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent.'” Washington v. James, 996 F.2d 1442, 1447 (2d Cir.1993). A petitioner must show, “by clear and convincing evidence that but for a constitutional error, no reasonable juror would have found the petitioner [guilty].” Id. (citing Sawyer v. Whitley, 505 U.S. 333, 348 (1992)). Put another way, Petitioner must present an “extraordinarily high and truly persuasive demonstration of actual innocence.” Ortiz v. Barkley, 558 F.Supp.2d 444, 458 (S.D.N.Y. 2008).
Petitioner fails to do so here. In fact, the evidence against him was quite overwhelming. Petitioner was convicted of two counts of first degree murder, both carrying life sentences. Both require a showing that he, “with intent to cause the death of another person, he causes the death of such person or of a third person.” N.Y. Penal Law § 125.27 (McKinney). In addition, the first count required a showing that:
the defendant committed the killing or procured commission of the killing pursuant to an agreement with a person other than the intended victim to commit the same for the receipt, or in expectation of the receipt, of anything of pecuniary value from a party to the agreement or from a person other than the intended victim acting at the direction of a party to such agreement;N.Y. Penal Law § 125.27(1)(a)(vi) (McKinney). The second count required a showing that:
the victim was killed while the defendant was in the course of committing or attempting to commit and in furtherance of robbery ... or in the course of and furtherance of immediate flight after committing or attempting to commit any such crime ... provided however, the victim is not a participant in one of the aforementioned crimes and, provided further that, unless the defendant's criminal liability under this subparagraph is based upon the defendant having commanded another person to cause the death of the victim or intended victim pursuant to section 20.00 of this chapter, this subparagraph shall not apply where the defendant's criminal liability is based upon the conduct of another pursuant to section 20.00 of this chapter;N.Y. Penal Law § 125.27(1)(a)(vii) (McKinney).
There is no question that Fermina Nunez was murdered, or that Green robbed and killed her. The evidence also shows that Petitioner intended to have Nunez killed. Petitioner attempted to contact Nunez thousands of times and stalked her home, place of work, and family following their breakup, demonstrating his obsession with her. The prosecution argued that this behavior showed motive, that Petitioner was obsessed with asserting control over Nunez, which supports intent.
The other physical and documentary evidence also supports a finding of intent, as well as the other elements of the crimes. Eye witness testimony confirmed that the gun used to kill Nunez belonged to Petitioner. Petitioner's DNA was found on the towel in which the murder weapon was wrapped. The cell tower data confirm that Green and Petitioner were together just hours before the murder and had been right outside of the salon together. The cellular phone records showed the two men spoke to each other just minutes before the murder and immediately after the murder. That Petitioner gave his weapon to Green to carry out the murder, along with the timeline of calls between the two, demonstrate premeditation and planning.
This same evidence supports a finding that Petitioner procured the commission of Nunez's murder through Green under § 125.27(1)(a)(vi). He assisted Green in the killing by giving him the location, surveying it location with him, and providing the murder weapon. The letters seized from Petitioner's jail cell also support this finding. The letters were undoubtedly written by Petitioner. They were found in his jail cell hidden in his pillow. They contained his DNA and matched his handwriting. They referred to Petitioner and Green by name, referred to Petitioner's attorney by name, referred to Judge De Rosa by name, and discussed Petitioner's legal proceedings in detail. Therein Petitioner admits that he agreed to pay Green to carry out the murder. The letters used certain code words, but the “code” is easy to break: Green's complaint that Petitioner never paid him “10 jellybeans” for the “party” transparently referred to Petitioner's agreement to pay Green for the murder.
The evidence also supports a finding under§ 125.27(1)(a)(vii). The evidence shows that Green murdered Nunez right after robbing her salon. Eye witnesses confirmed that Green entered the salon with Petitioner's weapon and robbed Nunez, Carabello, Pecon, and Deslanedes. The telephone conversations between Green and Petitioner prior to the crime, their location at the crime scene just prior to the murder, and the jail cell letters written after the fact support a finding that Petitioner commanded Green to commit the crime.
Green's written confession to police that Petitioner hired him to commit the crime, which was consistent with the remaining evidence of record, is extremely damaging to Petitioner's claim for actual innocence. [Dkt. 90-12 at 90-102.] Petitioner not only acknowledged Green's confession, but has asked Green to change his statement and tried to create an false alibi that the two men were viewing properties during the night of the murder. Petitioner expressly asked Green to change his confession, admitting that it implicated Petitioner in the murder. Green's confession was never presented at Petitioner's trial, and, therefore, would not be relevant when examining the sufficiency of the evidence. However, a claim for actual innocence does not concern procedural issues at trial, but instead, “actual, factual innocence.” Schlup, 513 U.S. at 324. Though the confession was not before the jury, it is before the Court for purposes of assessing Petitioner's actual innocence claim, and it presents a compelling case of Petitioner's guilt which he simply does not overcome.
But for Petitioner's conclusory and self-serving assertions, Petitioner provides no compelling evidence that he is actually innocent. Instead, he relies on piecemeal and disjointed statements that, when taken together, defy logic. He attempts to explain his telephone calls with Green by claiming that he was helping Green purchase property in Middletown. Indeed, the evidence showed that Petitioner worked in real estate. Even so, Petitioner's argument falls flat. The prosecution produced a detailed timeline of their phone conversations, and the cellular tower data mapped their physical locations during their calls. For the most part, the two were either nowhere near each other during their calls, or they were in the Bronx, not examining properties in Middletown. The only exception was when both men were calling each other near the salon where the murder took place on the day it took place. Any jury would be hard-pressed to believe that Green and Petitioner were discussing properties minutes before the murder, and that Green called Petitioner to schedule an open house minutes after he murdered Nunez.
Petitioner's bizarre explanation falls apart even more when viewed in light of the letters recovered from his jail cell. Petitioner, after criticizing Green for admitting to the murder to the police, instructed him to change his story. Petitioner directed Green to change his statement to the police and create an alibi that they were viewing properties together, and Petitioner named specific properties and provided Green with their descriptions and locations. This story is the exact argument that Petitioner presents in his Petitioner. The post hoc creation of this false alibi undermines Petitioner's story.
Petitioner's new evidence is unavailing. First, Petitioner introduces a December 7, 2006 check for $10,000 made to Karen Bryant, with the memo reading “Re: Patrick Bowie 57 Prospect Avnue.” Petitioner claims that this check proves that he did not pay Green to carry out the murder. Petitioner also makes an ambiguous reference to testimony from a bank employee to explain the transaction. Petitioner's argument is misplaced. The crime of first degree murder under Section 125.27(1)(a)(vi) requires a showing that Petitioner agreed to pay Green to carry out the murder, not that Petitioner actually paid Green. The evidence showed that such an agreement occurred, namely the jail cell letters where Green and Petitioner discuss exchanging “jellybeans” for the party, and using “jellybeans” to pay their attorneys fees. Green's confession similarly supports that the agreement occurred. The claim that Green never received payment is irrelevant. In fact, it was the prosecution's theory that Green never received payment. When Petitioner chastised Green for confessing to the police, Green complained to Petitioner that Petitioner never paid him. Thus, Petitioner's claim that he never paid Green actually conforms to the prosecution's case.
The fact that Petitioner may have conducted other, legitimate business is irrelevant. The evidence shows that Petitioner worked in real estate, and, therefore, Petitioner had the means to pay Green. The fact that Petitioner may have engaged in other business transactions in no way exonerates him from the commission of a contemporaneous crime, nor does it detract from the overwhelming evidence of his guilt. It is true that the prosecution submitted Petitioner's bank records into evidence, but they never argued that that specific transaction on December 7, 2006 was to pay Green. Instead, the bank records were used to match Petitioner's handwriting with the letters seized from his jail cell. They were also used to demonstrate that Petitioner had the capability of paying Green to carry out the murder. Neither the check nor testimony from a bank employee, therefore, undercut the people's argument that Petitioner agreed to pay Green to carry out the murder.
Petitioner introduced an October 17, 2018 sworn affidavit by Green stating that both he and Petitioner were innocent. He also introduced a second affidavit from Green maintaining his innocence. [Dkt. 80 at 42-43.] Green's sworn affidavit, almost a decade after Petitioner's conviction, carries no weight. Green changed his story multiple times and was eventually convicted in his own trial. The evidence shows that Petitioner urged him to change his story yet again, by way of the letters seized from his jail cell. That Green, once again, changed his story and signed a self-serving affidavit carries no credibility.
Petitioner introduced forensic evidence which similarly does nothing to support his claim. He refers to an April 17, 2007 DNA analysis of the gun, which states there is insufficient residue to determine a DNA match. [Dkt. 80 at 22-24.] He also refers to a January 16, 2007 latent fingerprint report showing that there were no fingerprints on the gun or bullets. [Dkt. 80 at 24.] However, this is irrelevant, particularly because Petitioner was not the shooter; Green fired the weapon. Moreover, Petitioner's DNA was found on the towel in which the gun was wrapped, which Petitioner ignores. The absence of Petitioner's DNA or fingerprints does not overcome the overwhelming evidence linking Petitioner to the weapon.
Finally, Petitioner makes vague references to “additional” evidence allegedly collected by a private investigator. [Dkt. 60 at 15.] Petitioner submitted no such evidence, despite being given the opportunity to do so. Vague references to unknown, unnamed evidence simply do not present a compelling case for innocence. Petitioner's claim that he is actually innocent, therefore, fails to satisfy the high burden, and Petitioner fails to demonstrate a miscarriage of justice.
3. Sufficiency of the Evidence
Petitioner's claim that the verdict was based on insufficient evidence is procedurally barred from federal review because it was decided based on adequate state-law grounds independent of a federal question. Even if not procedurally barred, the claim fails on the merits.
Federal courts are generally not permitted to review questions of federal law presented in a petition for habeas corpus when the decision rests upon state-law grounds independent of the federal question and adequate to support the judgment. Cone v. Bell, 556 U.S. 449, 465 (2009). A state law ground is “adequate” if the rule, “is firmly established and regularly followed by the state in question.” Whitley v. Ercole, 642 F.3d 278, 286 (2d Cir. 2011).
The Appellate Division denied Petitioner's claim of insufficiency of the evidence based on an independent and adequate state law ground, that Petitioner had failed to preserve his claim by raising a contemporaneous objection at trial. People v. Bowie, 83 A.D.3d at *1. Petitioner, through counsel, made a general motion for a trial order of dismissal, but did not specifically direct the motion on the issue of sufficiency of the evidence. [Dkt. 90-27 at 76.] It is well settled that New York State's contemporaneous objection rule is an adequate and independent state-law ground to bar federal habeas review. See, e.g., Kozlowski v. Hulihan, 511 Fed.Appx. 21, 25 (2d Cir. 2013). Under this rule, in order to preserve a challenge to the legal sufficiency of a conviction for review by the Appellate Division, a criminal defendant must move for a trial order of dismissal, and that argument must be “specifically directed” at the error being urged. People v. Hawkins, 11 N.Y.3d 484, 492 (N.Y. 2008). “As we have repeatedly made clear-and underscore again-general motions simply do not create questions of law for this Court's review.” Id. Even though the Appellate Division proceeded to consider, and deny, Petitioner's claim on the merits, the claim is still procedurally barred. “When a state court says that a claim ‘is not preserved for appellate review' but then rules ‘in any event' on the merits, such a claim is procedurally defaulted. Green v. Travis, 414 F.3d 288, 294 (2d Cir. 2005). Therefore, Petitioner's claim is procedurally barred.
As stated, a federal court may review a claim that is barred by an independent and adequate state law ground if, “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 claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 729. In order to establish prejudice, Petitioner must show that the alleged errors at trial resulted in a, “substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Guiterrez v. Smith, 702 F.3d 103, 112 (2d Cir. 2012). A fundamental miscarriage of justice occurs where a petitioner, “is actually innocent of the crime for which he has been convicted.” Cotto v. Herbert, 331 F.3d 217, 239 n.10 (2d Cir. 2002). Petitioner has not argued that there was cause for procedural, default, or actual prejudice, and the record does not demonstrate any such prejudice. As explained, Petitioner's claim for actual innocence fails. Petitioner's claim for legal sufficiency is, therefore, procedurally barred.
Even if this claim is not procedurally barred, it fails on the merits. In reviewing such a claim, the Court must consider whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Cavazos v. Smith, 565 U.S. 1, 7 (2011). Put another way, Petitioner must show that, “no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” McDaniel v. Brown, 558 U.S. 120, 121 (2010). A reviewing court must apply this standard, “with explicit reference to the substantive elements of the criminal offense as defined by state law.” Langston v. Smith, 630 F.3d 310, 314 (2d Cir. 2011).
Here, the prosecution submitted ample evidence to satisfy the charges of first degree murder under Sections 125.27(1)(a)(vi) and (vii) and to support each element of the cimes. Petitioner does not attack the sufficiency of the evidence linking Green to the crime. “There undoubtedly was sufficient evidence to demonstrate that Melvin Green was the robber who killed Fermina Nunez.” [Dkt. 1 at 20.] Rather he attacks the sufficiency of the evidence linking himself to Green, in light of the fact that he himself did not pull the trigger. However, it is well settled under New York State law that, as here, an individual may be convicted under Sections 125.27(1)(a)(vi) and (vii) even when he is not the individual who carried out the murder. See, e.g., People v. Glanda, 5 A.D.3d 945, 945-46 (N.Y. A.D.3d Dep't 2004).
Petitioner argues that the use of circumstantial evidence was insufficient to warrant a conviction, as opposed to direct evidence. Petitioner also challenges the use of the circumstantial evidence charge, without explanation. Federal courts make no such distinction. “Circumstantial evidence in this respect is intrinsically no different from testimonial evidence.” Holland v. United States, 348 U.S. 121, 140 (1954). It is similarly well-settled in New York that criminal defendants may be convicted on the basis of circumstantial evidence. See, e.g., People v. Alexander, 153 A.D.2d 507, 507 (N.Y. App Div. 1st Dep't 1989), aff'd, 75 N.Y.2d 979 (N.Y. 1990). To that end, “the law draws no distinction between direct and circumstantial evidence in requiring the government to carry its burden of proof.” United States v. MacPherson, 424 F.3d 183, 190 (2d Cir. 2005). Juries are thus able to draw reasonable inferences base on circumstantial evidence. Judge De Rosa made this clear in the jury charge on circumstantial evidence. [Dkt. 90-22 at 22.] There was no error, therefore, in the use of circumstantial evidence to convict Petitioner, nor was there any defect in the charge itself.
Petitioner argues that the inferences on which the jury convicted him required “too many leaps in logic and questionable inference to support it.” [Dkt. 1 at 20.] I disagree. In principal, there is no problem in convicting an individual based on reasonable inferences. “The possibility that inferences consistent with innocence as well as with guilt might be drawn from circumstantial evidence is of no matter to sufficiency analyses because ‘it is the task of the jury, not the court, to choose among competing inferences.'” United States v. MacPherson, 424 F.3d at 190. Even so, the inferences were, in fact, reasonable and closely related to the evidence.
Petitioner attacks the circumstantial nature of the evidence used to find that he intended to have Nunez killed, claiming that he never intended her any harm. [Dkt. 1 at 21.] Based on the intangible nature of intent, “intent is often established by circumstantial evidence.” United States v. Anderson, 747 F.3d 51, 66 (2d Cir. 2014). Here, it was reasonable for the jury to find, based on Petitioner's actions and statements to Nunez and her family, his exchanges with Green, and the documentary evidence, that Petitioner both planned the murder and intended for Green to shoot Nunez.
Petitioner argues that the phone calls could have been about anything. This argument is an issue of fact that was left for the jury. Here, the evidence is viewed in the light most favorable to the prosecution. Petitioner, therefore, cannot rely on speculation and hypothetical possibilities, and must instead demonstrate that no reasonable jury could have reached the instant finding. Petitioner's pontificating about possible conversation topics is, therefore, inappropriate here. To be sure, the jury's factual finding as to the content of his conversations with Green was not only reasonable but also sufficiently supported by the evidence, and it is not for the Court to reassess the evidence upon review.
Notably, the jury convicted Petitioner on more than just circumstantial evidence. DNA evidence and eyewitness testimony showed that the murder was committed using Petitioner's weapon. The cellular tower data placed Petitioner near the scene of the crime hours before the murder, and telephone records showed him speaking with Green just before and after the crime. The letters seized from his jail cell, which contained his DNA, were tantamount to a confession. In any event, there was sufficient evidence to convict Petitioner.
Petitioner's remaining arguments are without merit. Petitioner attacks the evidence regarding his self-inflicted wounds when he was arrested. A reasonable jury could infer consciousness of guilt, insofar as Petitioner apparently attempted to take his own life after realizing that he had been caught. Petitioner stated that no one at trial testified that he wanted to harm Nunez, which was simply not true. Nunez's brother, for example, testified that Petitioner made threats against Nunez and her family.
Petitioner challenges the admissibility of the letters seized from his jail cell on the basis that Avila violated a separate court order. Petitioner introduces what appears to be an assortment of documents associated with Avila's criminal history, including a fingerprint record, past addresses, and security alerts. [Dkt. 60 at 34-72.] This includes a court-ordered injunction against Avila from reaching out to law enforcement except with permission. Id. at 63-72. Avila's compliance, or alleged lack thereof, of a separate court order in a completely unrelated case has nothing to do with Petitioner's case and the admissibility of evidence. The prosecution obtained the letters through their investigation with assistance from Avila and his attorney. They successfully established sufficient grounds to lay a foundation for their admission. Therefore, the letters constitute valid, sufficient evidence supporting Petitioner's guilt. In the light most favorable to the prosecution, Petitioner fails to show that the evidence was insufficient.
4. Weight of the Evidence
Petitioner also seeks relief on the basis that his conviction was against the weight of the evidence. A claim based on the “weight of the evidence” is separate and distinct from a claim based on “insufficiency of the evidence.” Smith v. Lee, Case No. 11 Civ. 0530 (MKB), 2014 WL 1343066, at *10 (E.D.N.Y. Mar. 31, 2014). A claim attacking the weight of the evidence is based in state law and is not reviewable in a federal habeas proceeding. Id. (citing McKinnon v. Superintendent, Great Meadow Corr. Facility, 422 Fed.Appx. 69, 75 (2d Cir. 2011)). Accordingly, this claim should be dismissed.
5. Ineffective Assistance of Trial Counsel
Petitioner argues that his trial counsel was ineffective because he: a) failed to meet with and prepare witnesses; b) failed to investigate and prepare for trial; c) failed to object to the search, seizure, and admission of letter's from Petitioner's jail cell; d) failed to object to Green's appearance at trial wearing an orange jumpsuit; e) failed to object to prosecutorial misconduct during summation; f) failed to pay biennial dues; and g) failed to preserve certain arguments for appeal.
In order to establish a claim for ineffective assistance of trial counsel, Petitioner must demonstrate: (1) that his attorney's performance “fell below an objective standard of reasonableness, ” and (2) that there is a “reasonable probability” that, but for counsel's error, “the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). “The Strickland standard is rigorous, and the great majority of habeas petitions that allege constitutionally ineffective counsel flounder on that standard.” Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001). Here, “AEDPA review must be ‘doubly deferential' in order to afford ‘both the state court and the defense attorney the benefit of the doubt.'” Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (quoting Burt v. Titlow, 571 U.S. 12, 15 (2013)) (internal quotations omitted).
Under the first prong, “counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Greiner v. Wells, 417 F.3d 305, 319 (2d Cir. 2005) (quoting Strickland, 466 U.S. at 690). The second prong focuses on prejudice, and Petitioner bears the burden of establishing both deficient performance and prejudice. See Greiner, 417 F.3d at 319. However, “there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697.
a. Failure to Meet with and Prepare Witnesses
“The decision not to call a particular witness is typically a question of trial strategy, ” Pierre v. Ercole, 560 Fed.Appx. 81, 82 (2d Cir. 2014) (quoting Greiner, 417 F.3d at 323), and, “[t]hus, the decision ‘whether to call specific witnesses-even ones that might offer exculpatory evidence-is ordinarily not viewed as a lapse in professional representation.'” Id. (quoting United States v. Best, 219 F.3d 192, 201 (2d Cir.2000)). Moreover, “complaints of uncalled witnesses are not favored in federal habeas review, because the presentation of testimonial evidence is a matter of trial strategy and because allegations of what a witness would have testified [to] are largely speculative.” Hodges v. Bezio, Case No. 09 Civ. 3402, 2012 WL 607659, *10 (E.D.N.Y. Feb. 24, 2012) (citations omitted).
Petitioner argues that his attorney should have called a witness from the bank to explain a certain bank transaction where Petitioner took out a check for $10,000.00 on December 7, 2020, as well as an individual who conducted the alleged real estate transaction. As noted above in connection with Petitioner's actual innocence claim, Petitioner's rationale for this testimony is misdirected, because the prosecution never argued that the $10,000 check was used to finance the murder. Instead, the prosecution theory - bolstered by the jailhouse correspondence - was that Petitioner never paid Green the agreed-upon bounty for the murder. Instead, the bank records served as known samples of Petitioner's handwriting, and also demonstrated that Petitioner had the financial wherewithal to pay for the killing. Counsel's decision not to call witnesses to testify about the purported real estate transaction was therefore well within the bounds of sound trial strategy.
Petitioner argues that his attorney should have called Shawn Weiss, a DNA expert from North Carolina [Dkt. 60 at 9], in order to rebut evidence linking Petitioner to the letters found in his jail cell. The record is clear that counsel acted diligently to obtain expert assistance. He made a pre-trial motion to secure funds for an expert, which he renewed before the trial commenced. The motion was granted, and counsel secured funds with leave to seek more if needed. The record shows that counsel reached out to Mr. Weiss but ultimately decided not to call him. The evidence convincingly demonstrates that Petitioner's DNA was present on the jailhouse letters, and Petitioner provides no evidence that Mr. Weiss would have offered testimony rebutting that evidence. The only other mention of DNA evidence were reports showing Petitioner's DNA on the towel in which Green hid the gun, and showing the absence of DNA on the gun itself. Again, trial counsel is afforded great deference in deciding, as a point of strategy, not to call witnesses who may be superfluous or, at worst, detrimental to his client.
Finally, Petitioner makes a vague reference to “other witnesses” but fails to name any or what they would have allegedly stated. This complete lack of specificity is fatal to this claim. Considering Petitioner's high burden coupled with the deference given to counsel, Petitioner simply cannot rely on pure speculation. In any event, a review of the trial transcript shows that plaintiff's attorney did call witnesses to testify on his behalf, including Cappellan. [Dkt. 90-28 at 2-78, 90-29 at 1-17.] Petitioner's argument that his counsel failed to meet with and prepare witnesses, therefore, should be rejected.
b. Failure to Investigate and Prepare for Trial
Petitioner makes a conclusory accusation that his attorney “fail[ed] to investigate and prepare for trial.” [Dkt. 80 at 5.] Petitioner's state court filings, Petition, and supplemental pleadings shed no further light on this argument. Petitioner merely states, “Trial counsel had substantially failed to rebut the prosecutor's theory at trial” and that he “failed to uncover exonerating evidence.” Id. at 12-13. Petitioner's only specific contention is that counsel did not present evidence regarding the December 7, 2006 check for $10,000.00, which, Petitioner argues, is “unquestionable documentary proof” of his innocence. [Dkt. 80 at 2-3.] As noted above, this argument is meritless. It was well within counsel's discretion in crafting the trial strategy to choose not to proffer meritless arguments.
In general, the right to effective assistance of counsel does not guarantee perfect representation. See, e.g., Morris v. Garvin, Case No. 98 Civ. 4661(JG), 2000 WL 1692845, at *3 (E.D.N.Y. Oct. 10, 2000). Certainly, the fact that Petitioner ultimately lost his case does not show that his attorney was ineffective. Moreover, a review of the record shows that counsel did, in fact, investigate and prepare for trial. Notably, Mr. Camacho was not a court-appointed attorney but was privately retained by Petitioner. Petitioner contacted him hours after the murder. Mr. Camacho immediately met with Petitioner that day before accompanying him to speak with the police and advised Petitioner during the voluntary police interview. Counsel appeared at each hearing and at trial, competently represented Petitioner in pre-trial and trial matters, and adequately presented Petitioner's defense. Petitioner points to no evidence that counsel failed to prepare or investigate, but for Petitioner's dissatisfaction with the ultimate result.
c. Failure to Object to the Search, Seizure, and Admission of Letters from Petitioner's Jail Cell
Petitioner asserts a plethora of arguments as to why his counsel should have challenged the search of his jail cell and the seizure and admission of the letters resulting from the search. He calls the search itself illegal. He argues that the letters were privileged mail. He challenges their foundation, claiming insufficient evidence tying him to the letters. He invokes the Sixth Amendment confrontation clause. He claims that the police were not allowed to speak with Avila. These arguments should be rejected.
The search was not illegal. Pretrial detainees have a limited and diminished reasonable expectation of privacy to their cells. Bell v. Wolfish, 441 U.S. 520, 557 (1979) (“any reasonable expectation of privacy that a detainee retained necessarily would be of a diminished scope.”); United States v. Friedman, 300 F.3d 111, 123 (2d Cir. 2002) (“pretrial detainees may have some residual privacy interests that are protected by the Fourth Amendment...”). Moreover, the police obtained and executed a valid search warrant to obtain the letters. Petitioner does not offer any specific argument to challenge the validity of the search or the warrant, but for a conclusory statement that it was illegal.
The letters were not privileged. They were not attorney/client communications or work product concerning litigation. They did not pertain to medical conditions. They were not between spouses. These were communications between Petitioner and Green. I cannot identify, and Petitioner does not invoke, a single valid privilege under which the communications may fall.
The Supreme Court has recognized certain protections for inmates concerning their mail, but none of those protections apply here. Inmates have a first amendment right to send and receive mail, but non-privileged mail may still be opened outside the presence of an inmate. Martin v. Tyson, 845 F.2d 1451 (5th Cir. 1988) cert. denied 488 U.S. 863 (1988). Moreover, the letters were not “mail.” Instead, these were clandestine messages Petitioner exchanged with Green and transmitted via Avila, messages which Petitioner would have preferred to keep hidden, given how incriminating they were to his case. Merely wishing that a writing be kept secret is insufficient to establish a legal privilege.
There was a sufficient foundation to introduce the letters and link them to Petitioner. There was DNA evidence as well as handwriting identification, the letters were recovered from Petitioner's pillow, and they include identifiable references to Petitioner and his case. Petitioner offers no rebuttal, apart from conclusory and self-serving allegations.
Petitioner also asserts that trial counsel should have objected to the search itself, but this argument, too, would have been meritless. New York, like federal, law limits review of the validity of a search warrant to an analysis of “the sufficiency of what is found within the four corners of the underlying affidavit.” Lopez v. Greiner, 323 F.Supp.2d 456, 473 (S.D.N.Y. 2004), aff'd, 159 Fed.Appx. 320 (2d Cir. 2005) (citing People v. Roberts, 600 N.Y.S.2d 582, 583 (4th Dep't 1993)). A warrant is valid if it describes the places to be searched or items to be seized and is supported by probable cause. Id. The New York Court of Appeals has construed New York State's constitution as requiring a higher threshold showing of probable cause than what federal law requires. Id. The Supreme Court has held that courts should analyze the totality of the circumstances to evaluate the sufficiency of a warrant affidavit. Id. (citing Illinois v. Gates, 462 U.S. 213 (1983)).
In New York, warrants based on informants must satisfy a two-prong test. First, the warrant application must establish the veracity of the informant's information, and second must establish the basis for the informant's knowledge, known as the Aguilar/Spinelli test. Lopez, 323 F.Supp.2d at 473-74 (citing People v. Griminger, 71 N.Y.2d 635, 640 (N.Y. 1988)); see Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969).
Here, the warrant application satisfied both prongs. The warrant sought the written correspondence hidden in Petitioner's jail cell passed through Avila to Green. The warrant set forth ample probable cause, describing with specificity Avila's meetings and communications with Petitioner and Green, and detailing the manner in which he helped them pass letters back and forth. Avila had provided 15 examples of the letters, further bolstering his credibility. Avila had personally observed these conversations and the specific letters. The warrant, and the search that followed, were both valid. Thus, counsel was not required to object to the search, because any such objection would have been plainly meritless.
Petitioner also invokes the Sixth Amendment confrontation clause, to no avail. To the extent that Petitioner ‘s argument is addressed to Avila's role in the recovery of the letters, no confrontation issue arises because no statement from Avila were admitted at trial; instead, the letters were authenticated through other evidence. To the extent that Petitioner suggests that a confrontation clause objection would have barred admission of the letters themselves, that contention is without merit because the letters were not “testimonial” and were admissible as statements in furtherance of the conspiracy between Petitioner and Green. See Crawford v. Washington, 541 U.S. 36, 51, 56 (2004). Because such an objection would have been futile, counsel was under no obligation to make the objection.
d. Failure to Object to Green's Appearance Wearing an Orange Jumpsuit at Petitioner's Trial
Petitioner appears to argue that his attorney should have objected when the prosecution had Green produced during the trial so that eyewitnesses could identify him as the shooter. Although Green had already been tried and convicted of the Nunez murder at the time of Petitioner's trial, those facts were not before the jury, so the prosecution had to prove that Green was the killer in order to establish Petitioner's role in procuring the crime. There is no real argument that Green's identification was not relevant and admissible at Petitioner's trial, so there is also no basis for Petitioner's contention that his attorney was derelict in not objecting to this evidence.
Petitioner also asserts that his attorney should have objected when Green was produced before the jury in an orange prison jumpsuit. But trial counsel may have reasoned that the visual contrast between Petitioner - on trial in street clothes - and Green in the telltale jumpsuit played well for Petitioner before the jury, a strategic judgment which is immune from scrutiny under Strickland. Moreover, in light of the of evidence that Green committed a cold-blooded homicide, it is inconceivable that Green's appearance in prison garb unfairly prejudiced Petitioner or affected the outcome of his trial. Cf. Jefferson v. LeClair, 417 F.Supp.3d 462, 477-78 (E.D.N.Y. 2013) (even claims that the accused defendant was made to appear before the jury in prison garb are subject to harmless error analysis) (collecting cases). The Second Department concluded as much on direct appeal, despite the lack of an objection, summarily rejecting Petitioner's argument (advanced in his supplemental pro se brief) that he was prejudiced by Green's appearance in the jumpsuit. 83 A.D.3d at 729.
e. Failure to Object to Prosecutorial Misconduct During Summation
Petitioner argues that his counsel failed to object to alleged prosecutorial misconduct during summation. Petitioner fails to identify any such misconduct during summation, but for his own vague references. In any event, a review of the prosecutor's summation does not show any misconduct. The prosecutor carefully recounted the evidence and testimony that had been admitted during trial and stayed within the record. The prosecutor did not make any inflammatory or overly prejudicial statements and stayed within the confines of the law.
Petitioner refers to other alleged instances of prosecutorial misconduct as a standalone claim, but not during summation as related to his ineffective assistance of counsel claim. Those allegations are addressed below.
Petitioner fails to make a showing that his counsel should have objected to anything during the prosecutor's summation, and thus fails his burden under Strickland.
f. Failure to Pay Biennial Dues
Petitioner provides an excerpt of a news article indicating that his attorney may not have paid his biennial bar registration fees on time at the time of trial. [Dkt. 60 at 99-100.] Petitioner's argument is nothing more than an ad hominem and completely irrelevant attack against his attorney. This argument is not rooted in Strickland and does nothing to satisfy either prong.
g. Failure to Preserve Claims for Appellate Review
Petitioner argues that he was prejudiced when trial counsel failed to preserve certain arguments for appellate review. [Dkt. 80 at 6.] The Appellate Division, in denying Petitioner's direct appeal, noted that Petitioner's arguments for sufficiency and weight of the evidence were unpreserved. Even though counsel made a motion for a trial order of dismissal, the motion did not specifically raise those grounds. Nevertheless, Petitioner fails to show prejudice under Strickland because the Appellate Division went on to consider both claims in the alternative and denied them on the merits. Moreover, I have reviewed the evidence above and conclude as well that the evidence was sufficient to support the convictions. Petitioner, therefore, fails to satisfy the second prong of Strickland.
6. Ineffective Assistance of Appellate Counsel
Petitioner claims that his appellate counsel was ineffective for failing to raise the confrontation clause issue and for failing to raise ineffective assistance of trial counsel. The two-part test under Strickland applies. See Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001) (“Although it was born in the context of ineffective assistance of trial counsel, Strickland's two-prong test applies equally to claims of ineffective assistance of appellate counsel on a defendant's first appeal as of right.”) (internal citations omitted).
Petitioner's claim clearly fails under Strickland's second, prejudice prong. Even though appellate counsel did not raise these issues, Petitioner filed a pro se supplemental brief raising all of these arguments. The state responded, and the Appellate Division rejected the arguments on the merits. Given that the arguments were raised by Petitioner and rejected on the merits, Petitioner fails to show a reasonable probability that the outcome would have been different had his appellate counsel raised those issues herself.
Regardless, Petitioner's claim fails on the first prong as well. As analyzed above, Petitioner's confrontation clause and ineffective assistance of trial counsel claims are without merit, so Petitioner's appellate counsel had no obligation to raise them. “The failure to include a meritless argument does not fall outside the ‘wide range of professionally competent assistance” to which Petitioner was entitled. Aparicio, 269 F.3d at 99 (internal citation omitted).
7. Prosecutorial Misconduct
As noted above, this claim is untimely and unexhausted. In the event Your Honor concludes otherwise, Petitioner's claim for alleged prosecutorial misconduct should nonetheless be denied as plainly meritless. “The appropriate standard of review for a habeas corpus claim alleging prosecutorial misconduct is the narrow one of due process, and not the broad exercise of supervisory power. The petitioner must demonstrate that the alleged misconduct so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Williams v. Artus, Case No. 11 Civ. 5541, 2013 WL 4761120, at *12 (E.D.N.Y. Sept. 4, 2013). A prosecutor's misconduct cannot give rise to a constitutional claim absent “egregious misconduct.” Morris v. Kikendall, Case No. 07 Civ. 2422, 2009 WL 1097922, at * 15 (E.D.N.Y. Apr. 23, 2009).
Petitioner's accusations that the prosecution committed a “fraud” on the court [Dkt. 80 at 11-12] or “mislead the jury” [Dkt. 80 at 3] are conclusory and should be rejected on that basis. The few articulated allegations, also vague and conclusory, similarly fail.
Petitioner argues that the prosecution mislead the jury by introducing his bank records into evidence. He similarly accuses the prosecution of misconduct because they did not move into evidence a copy of the December 7, 2006 check. Even if the prosecution had argued that the December 7 transaction was used to pay Green, it would not have been “fraud.” Rather, that argument would have been a question of fact about which the jury could draw a reasonable inference. It is well settled that juries are allowed to draw reasonable inferences from evidence presented to them. Jones v. Duncan, 162 F.Supp.2d 204, 216 (S.D.N.Y. 2001) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Even so, the prosecution never made this argument. They introduced Petitioner's bank records to establish that Petitioner had the wherewithal to pay Green, and to identify his handwriting. The prosecution's theory was that Green was never in fact paid for the crime.
Petitioner argues that he was prejudiced when the County Court allowed evidence of potatoes at the scene of the crime, as well as investigators' observations that there were potatoes in Petitioner's kitchen. Judge De Rosa allowed the jury to hear this evidence and determined that any issues related to weight of the evidence. It was proper to allow the jury to make a reasonable inference that when Petitioner gave Green his gun to carry out the murder, he also gave him a potato to use as a “Bronx silencer.” Judge De Rosa excluded the phrase “Bronx silencer, ” but still allowed the jury to hear evidence about the potatoes. Allowing the jury to consider this evidence was certainly reasonable in light of the fact that Green had stated that Petitioner had given him a potato along with the gun. In fact, whereas Petitioner claims that the prosecution spent an exorbitant amount of time discussing potatoes, the prosecution actually only mentioned potatoes once, when questioning Detective Miller about what he saw at the scene of the crime, and never mentioned them again.
Petitioner argues that the testimony of Carabello and Deslandes were both “relevant” and could establish that the prosecution prejudiced Petitioner at trial. Both women were eyewitnesses to the killing, and Petitioner points to testimony, elicited by his attorney on crossexamination, suggesting that their identifications of Green as the shooter were equivocal or were tainted by police coercion. [Dkt. 80, ECF pp. 26 - 33, annotating trial transcript pp. 263 - 366 (Delandes), 26 - 33 (Carabello).] But these facts were fully vetted before the jury at trial, and, as noted elsewhere, there was ample additional evidence implicating Green. Petitioner in no way establishes any prosecutorial misconduct claim on the basis of these witnesses' testimony.
Petitioner argues that he was prejudiced by Investigator Manley's testimony. Investigator Manley was in charge of reviewing cellular tower data tracking Petitioner's phone. The prosecution called another witness, Natalie Erdossy, a custodian of records for Sprint Nextel, who explained that when an individual places a call on a cellular device, it will connect to the strongest tower, which is typically the tower closest to the individual. She also verified the authenticity of the cellular tower data which Investigator Manley used. Investigator Manley explained how the records showed which physical cellular towers were used when Petitioner placed various calls, and how he was able to deduce Petitioner's location during the calls. This evidence was not only probative but extremely damaging to Petitioner's alibi. There was nothing unfair about this testimony, and Petitioner's argument appears to rest simply on the fact that the testimony was harmful to the defense.
Petitioner accuses the prosecution of misconduct in contacting Avila. He points to an injunction, issued in a completely unrelated case, which prohibited Avila from speaking with law enforcement on his own, and then accuses the prosecution of violating the court order. Even if this were true, Petitioner fails to show how this affected his due process rights. In any event, the prosecution did not violate the order. The order prohibited Avila from contacting police on his own. Here, Avila contacted his attorney, who in turn contacted law enforcement. Investigator Reinle testified that Avila spoke through his attorney, to whom Avila provided the documents. Petitioner fails to show, therefore, that the prosecution's communications with Avila violated his due process rights.
Finally, Petitioner alleges that the prosecution violated his rights under Brady. The Supreme Court has held that prosecutors cannot withhold material, exculpatory evidence from a criminal defendant. Brady v. Maryland, 373 U.S.83, 91 (1963). But Petitioner identifies no evidence which would have triggered Brady. The closest Petitioner comes to identify Brady material are his bank records. This material does not fall under Brady, because they were neither exculpatory, nor were they withheld. At trial, when the records were admitted, the prosecution stated that they had already been turned over to Petitioner. The copy of the December 7, 2006 check was already in Petitioner's possession. Petitioner identifies no other possible Bra material.
Petitioner makes no other specific allegations of prosecutorial misconduct. A re the record, including the pre-trial and trial transcripts, similarly do not reveal any misco the prosecution. Petitioner, thus, fails to satisfy the extremely high bar of showing that prosecution acted so egregiously as to deny him his due process rights.
IV. CONCLUSION
For the reasons set forth above, I conclude, and respectfully recommend that Yo conclude, that the instant Petition for a Writ of Habeas Corpus be denied. I recommend certificate of appealability be issued because reasonable jurists would not find it debatab Petitioner has failed to demonstrate by a substantial showing that he was denied a const right. See 28 U.S.C. § 2253 (c); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1)(C), Rule 72(b) of the Federal Rules of Civil Procedure, and Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts, the parties shall have fourteen (14) days from service of this Report and Recommendation to serve and file written objections. If copies of this Report and Recommendation are served upon the parties by mail, the parties shall have an additional three (3) days, or a total of seventeen (17) days, from service of this Report and Recommendation to serve and file written objections. See also Fed.R.Civ.P. 6(a). Such objections, if any, along with any responses to the objections, shall be filed with the Clerk of the Court with extra copies delivered to the chambers of the Honorable Kenneth M. Karas, at the Honorable Charles L. Brieant Jr. Federal Building and United States Courthouse, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered. See Caidor v. Onondaga County, 517 F.3d 601, 604 (2d Cir. 2008).
Requests for extensions of time to file objections must be made to Judge Karas.
Copy Mailed to:
Patrick Bowie
DIN # 07A5516
Green Haven Correctional Facility
P.O. Box 4000
Stormville, NY 12582