Opinion
9:21-CV-00174 (AMN/ML)
01-23-2024
JAVON BOYD, Petitioner, v. EARL BELL, Superintendent, Clinton Correctional Facility, Respondent.
JAVON BOYD Petitioner, Pro Se LETITIA A. JAMES New York State Attorney JAMES F. GIBBONS, ESQ. General Assistant Attorney General Counsel for Respondent
JAVON BOYD Petitioner, Pro Se
LETITIA A. JAMES New York State Attorney JAMES F. GIBBONS, ESQ. General Assistant Attorney General Counsel for Respondent
REPORT-RECOMMENDATION
MIROSLAV LOVRIC, United States Magistrate Judge
On February 16, 2021, Javon Boyd (“Petitioner”) filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging a judgment of conviction in Oneida County Court for three counts of criminal sexual act in the first degree, one count of rape in the first degree, one count of strangulation in the second degree, two counts of criminal obstruction of breathing, and one count of assault in the third degree, following a jury trial in May 2013. (Dkt. No. 1 Petition (“Pet.”) at 1.) For the reasons set forth below, I recommend that all of Petitioner's claims be rejected and the Petition be denied and dismissed.
I. BACKGROUND AND PROCEDURAL HISTORY
On May 15, 2023, this Court issued a narrowly tailored order granting Respondent's motion to file an unredacted memorandum of law and the state court record under seal in order to protect the privacy of the sexual assault victim mentioned throughout those documents. (Dkt. No. 42.) Consistent with that order and Local Rule 5.2(a)(6), this Court will refer to that individual as “Victim” and only discuss such details as are necessary to evaluate the habeas corpus petition.
A. Factual Background
At approximately three p.m on November 23, 2012, a dispatcher for Oneida County 911 received a transfer call from Madison County 911. (Dkt. No. 44, Attach. 2 at 147.) The woman on the line conferenced in Victim, who reported that she had been sexually assaulted multiple times that day by Petitioner Javon Boyd. (Id. at 149.) Victim had texted her friend for assistance because she was afraid of alerting Petitioner, who was asleep in the next room. (Id. at 150-151, 158-159.)
When officers from the City of Rome Police Department arrived at the residence where Victim had placed the call, they met Victim at the back door and learned that Boyd was asleep on the couch in an adjoining room. (Dkt. No. 44, Attach. 3 at 111.) As described in trial testimony, Victim told the responding officers that Petitioner had raped her. (Id. at 87.) The responding officers arrested Boyd without incident, and escorted Victim to an area hospital for medical evaluation and collection of forensic evidence.
B. New York State Proceedings
1. Grand Jury Indictment
On January 8, 2013, a grand jury in Oneida County handed up an indictment charging Petitioner with three counts of Criminal Sexual Act in the First Degree (New York Penal Law § 130.50(1)), one count of Rape in the First Degree (New York Penal Law § 130.35), one count of Strangulation in the Second Degree (New York Penal Law § 121.12), two counts of Criminal Obstruction of Breathing (New York Penal Law § 121.11(a)), two counts of Assault in the Third Degree (New York Penal Law § 120.00(1)), three counts of Endangering the Welfare of a Child (New York Penal Law § 260.10(1)), and three counts of Criminal Mischief in the Fourth Degree (New York Penal Law § 145.00)). (Dkt. No. 44 at 33-37.) The child endangerment and criminal mischief counts were dismissed prior to trial. (Dkt. No. 44 at 97.)
2. New York State Court Trial and Appeals
a. Three Day Trial
Petitioner's jury trial commenced in Oneida County Court on May 6, 2013 before Judge Barry M. Donalty. (Dkt. No. 44, Attach. 2 at 20.) Over the course of the three day trial, the prosecution presented testimony from a number of witnesses including Victim, the friend she initially contacted about the assault, the responding police officers, and experts who had collected and reviewed the relevant medical and forensic evidence. (Dkt. Nos. 44, Attach. 1-3.) The defense did not call any witnesses.
b. Victim's Trial Testimony
At the outset of her May 7, 2013 trial testimony, Victim recounted a February 2013 telephone call from Petitioner during which he discouraged her from testifying against him. (Dkt. No. 44, Attach. 3 at 10.) She then described Petitioner's repeated sexual assault of her that took place on the morning and early afternoon of November 23, 2012. (Id. at 11-83.) Victim testified that Petitioner became angry during an argument in an upstairs bedroom and put his hands on her throat. (Id. at 14.) Petitioner then dragged Victim by the throat into a bathroom down the hall, pinned her against the mirror over the sink, and choked her. (Id. at 15-16.)
As described in Victim's testimony, Petitioner then forced Victim back into the bedroom and pulled her onto the floor by her hair. (Id. at 17.) Petitioner ripped Victim's clothes off and asked her “what possible way can I humiliate you?” (Id. at 19.) He then sexually assaulted her while holding her down on the floor. (Id. at 22-23.) Victim testified that she attempted to fight back, and called Petitioner a “rapist,” but her resistance only made Petitioner more aggressive. (Id. at 23-24.) During this assault, Petitioner bit Victim on her face, leaving a mark on her right cheek. (Id. at 24-25.)
Victim testified that Petitioner kept his arm wrapped around Victim's neck after the first sexual assault until she passed out. (Id. at 26-27.) Petitioner woke her up by squirting rubbing alcohol in her face and slapping her. (Id. at 26-27.) Petitioner then asked Victim if she was “ready for Round 2” and sexually assaulted her on the bed. (Id. at 28-30.) In her testimony, Victim quoted Petitioner as telling her that “[y]our mouth is the reason this happened to you. You made me angry, so I'm going to take my anger out on your ass.” (Id. at 29-31.)
Victim testified that following this second assault, Petitioner allowed her to dress and leave the bedroom but followed her throughout the house. (Dkt. No. 44, Attach. 3 at 31-35.) This included watching Victim use the toilet and attempt to take a shower. (Id.at 32-33.) Victim testified that Petitioner then sat with her on a downstairs couch but became angry when she again accused him of rape. (Id. at 34.) Victim testified that Petitioner forced her back upstairs to the bedroom and sexually assaulted her again. (Id. at 35-36.) Eventually, Petitioner went back downstairs and fell asleep on the couch. (Id. at 40.) Victim took this opportunity to text her friend for assistance, leading to the 911 call and Petitioner's arrest. (Id. at 41.)
Petitioner's counsel cross-examined Victim regarding the assault, the photographic and forensic evidence, and the scope of her injuries and medical treatment, as well as her statements to responding officers and medical personnel regarding the scope of her injuries. (Dkt. No. 44, Attach. 3 at 55-80.)
c. Inattentive Juror Inquiry
In addition to Victim's testimony, the jury also heard testimony on May 7, 2013 from the responding police officers, the nurse who evaluated Victim, and forensic experts who tested the swabs, clothing, bedding, and other material obtained during the police investigation. (Dkt. No. 44, Attach. 3 at 187-216.) After the final witness for the day testified, Judge Donalty excused the jury but asked one female juror to stay behind to clarify her behavior during the day's testimony. The following discussion ensued, with all counsel present:
The Court: It would appear to me on a couple of occasions this afternoon that you had your eyes closed. And I'm not certain whether you were asleep or paying attention with your eyes closed or what. Can you - -
Juror: It's a combination of both. I have epilepsy, and sometimes that causes me to lose consciousness for a few seconds.
The Court: Okay. But -
Juror: I was listening. Towards the end I did, yes, at one time.
The Court: Did you feel you heard all the testimony, and when and if the case - -
Juror: Yes.
The Court: - - the case is presented to you for your consideration, you'll be able to deliberate with the other jurors, as well?
Juror: Yes, I do.
The Court : Any questions?
[Prosecution]: No, thank you.
[Petitioner's counsel]: No.
The Court: Are you taking medication for that?
Juror: Absolutely.
The Court: Okay.
Juror: I'll keep my fingers jammed into my palm to stay awake. Sorry about that. I apologize.
The Court: You're all set. Thanks for coming in.(Dkt. No. 44, Attach. 3 at 217-218.)
d. Guilty Verdict and Sentencing
On May 8, 2013, the jury heard from a forensic expert witness before the prosecution rested. (Dkt. No. 44, Attach. 4 at 2-34.) Petitioner's counsel moved for dismissal on the basis that the prosecution had not proven a prima facie case, but Judge Donalty denied the motion. (Id. at 35.) The defense elected not to present additional evidence, and Judge Donalty confirmed with Petitioner that he did not intend to testify. (Id. at 36.) Following jury instructions and summations by both parties, the jury deliberated and found Petitioner guilty of three counts of criminal sexual act in the third degree, one count of rape in the first degree, one count of strangulation in the second degree, two counts of criminal obstruction of breathing or blood circulation, and one count of assault in the third degree. (Id. at 96-98.) The jury found Petitioner not guilty of one count of assault in the third degree. (Id.)
On June 25, 2013, Judge Donalty sentenced Petitioner to consecutive sentences of fifteen years incarceration and twenty years of post-release supervision for each conviction of Criminal Sexual Act in the First Degree and the conviction of Rape in the First Degree as well as concurrent sentences of seven years incarceration and three years post-release supervision on the conviction for Strangulation in the Second Degree and one year of incarceration each for the two Criminal Obstruction of Breathing convictions and the Assault in the Third Degree conviction. (Dkt. No. 44 at 30.) Petitioner's aggregate sentence was thus sixty years in prison followed by twenty years of post-release supervision. (Id.)
e. State Court Direct Appeal
On August 22, 2019, the New York Supreme Court Appellate Division, Fourth Department decided Petitioner's direct appeal and modified the judgment by reducing the sentences to an aggregate of twenty five years incarceration followed by twenty years postrelease supervision, but otherwise affirmed Petitioner's conviction. (Dkt. No. 44 at 157-159); People v. Boyd, 175 A.D.3d 1030 (4th Dep't 2019). More specifically, the Appellate Division unanimously held, inter alia, that Petitioner's sentence should be modified in the interest of justice by reducing the sentences imposed for each of the three counts of criminal sexual act in the first degree to determinate terms of incarceration of six years and a period of post-release supervision of twenty years, reducing the sentence imposed for rape in the first degree to a determinate term of incarceration of seven years with twenty years of post-release supervision, to run consecutively. (Dkt. No. 44 at 157); Boyd, 175 A.D.3d at 1032.
Addressing the other issues raised in the brief filed by Petitioner's appellate counsel, the Appellate Division found that the jury's verdict was not against the weight of the evidence, and there was “no reason to disturb the jury's credibility determinations here.” (Dkt. No. 44 at 158); Boyd, 175 A.D.3d at 1031. The Appellate Division also rejected the arguments raised in Petitioner's supplemental pro se brief. Specifically, the appellate panel found that Petitioner's contention that the indictment should have been dismissed as multiplicitous had not been preserved for review and was without merit, because each count was based on a separate and distinct criminal act. (Dkt. No. 44 at 158-159); Boyd, 175 A.D.3d at 1032. It further found that Petitioner had received effective assistance of counsel, and that Petitioner's contention that the court's failure to dismiss a “sleeping juror” had not been preserved for appeal, and there was no reason for the appellate court to exercise its discretionary power to consider the question in the interest of justice. (Dkt. No. 44 at 159); Boyd, 175 A.D.3d at 1032.
Petitioner's pro se supplemental appellate brief made only general reference to “numerous deficiencies in counsel's performance.” (Dkt. No. 44 at 154.)
On November 13, 2019, the New York Court of Appeals denied leave to appeal. (Dkt. No. 44 at 162); People v. Boyd, 31 N.Y.3d 1018 (N.Y. 2018).
f. Coram Nobis Application
On or about April 28, 2021, Petitioner filed a pro se motion in the Appellate Division, Fourth Department for a writ of error coram nobis to vacate the Appellate Division's August 22, 2019 Order. (Dkt. No. 44 at 570-654.) In his application, Petitioner argued that appellate counsel was ineffective for failing to argue that the evidence was legally insufficient “to prove the unwillingness and ‘forcible compulsion' element of rape in the first degree and Criminal Sexual Act in the First Degree” and that he received ineffective assistance of trial counsel for “failing to challenge the Unwillingness element of Rape in the first Degree during his trial order of dismissal.” (Dkt. No. 44 at 165.) Petitioner's arguments were premised on select excerpts of Victim's testimony that “she did not fight him,” “did not scream or cause a scene,” and was able to communicate. (Dkt. No. 44 at 182-183.)
On August 20, 2021, the Appellate Division, Fourth Department summarily denied Petitioner's application. (Dkt. No. 44 at 188.) On June 8, 2022, the Court of Appeals denied leave to appeal. (Dkt. No. 44 at 197.)
C. Federal Habeas Proceeding
On February 16, 2021, Petitioner commenced this proceeding by the filing of a verified Petition for writ of habeas corpus, along with a motion to proceed in forma pauperis (“IFP”). (Dkt. Nos. 1, 2.) On February 17, 2021, District Court Judge David N. Hurd issued an Order denying Petitioner's IFP Application as incomplete, and directing the clerk to administratively close the action, pending timely compliance with the filing fee or IFP requirements. (Dkt. No. 3.) The matter was reopened on April 5, 2021 upon payment of the appropriate filing fee. (Dkt. No. 5.)
This case was reassigned from District Court Judge Hurd to District Court Judge Anne M. Nardacci on January 19, 2023. (Dkt. No. 33.)
On May 13, 2021, I issued a Decision and Order that, in relevant part, stayed the Petition to allow Petitioner an opportunity to exhaust his state court remedies by pursuing a writ of error coram nobis with the appropriate state court. (Dkt. No. 8.) Petitioner filed a coram nobis application as described above. On July 5, 2022, I lifted the stay in light of Petitioner's notification that his state court proceedings had concluded, and I allowed Petitioner an opportunity to file a motion to amend his Petition by August 1, 2022. (Dkt. No. 25.) The Court did not receive any motion to amend. Therefore, on August 16, 2022, I directed respondent to file and serve an answer to the original Petition. (Dkt. No. 26.)
On November 14, 2022, January 13, 2023, March 14, 2023, and April 13, 2023, I granted Respondent's successive motions for an extension of time to answer. (Dkt. Nos. 30, 32, 35, 38.) On May 15, 2023, I granted Respondent's motion for leave to file an unredacted memorandum of law and the state court record under seal to protect Victim's privacy and accepted Respondent's answer and a redacted memorandum of law for filing. (Dkt. Nos. 40, 41, 42.) On May 23, 2023, I issued an order advising Petitioner of the June 22, 2023 deadline to file a traverse or reply, if any. (Dkt. No. 45, 46.)
Petitioner did not file a traverse by the deadline. Therefore, the matter is considered fully briefed, and it has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed.R.Civ.P. 72(b).
II. SUMMARY OF PARTIES' ARGUMENTS
Petitioner argues that he is entitled to habeas corpus relief because (1) the evidence presented against Petitioner was legally insufficient because “the testimonial evidence submitted to the jury was inconsistent with the physical evidence in the case;” and (2) Petitioner's trial counsel was ineffective for failing to seek dismissal of a juror who fell asleep during the trial and failing to move for dismissal due to the lack of the purportedly required “unwillingness” element to support conviction of Rape in the First Degree. (Dkt. No. 1 at 4-5.)
Generally, Respondent makes the following arguments in support of the answer: (1) Petitioner's legal sufficiency claim is unexhausted, procedurally barred, and meritless; and (2) Petitioner's ineffective assistance of counsel claims are unexhausted and meritless. (See generally Dkt. No. 40 at 13-23 [Resp't's Redacted Mem. of Law].)
More specifically, Respondent asserts that Petitioner failed to explicitly argue that the evidence was legally insufficient during his state court appeals, and thus this claim is unexhausted. (Dkt. No. 40 at 14.) Respondent contends that because there are no other state avenues for Petitioner to raise this claim, it should be considered “technically exhausted” but procedurally defaulted. Respondent further argues that this default cannot be excused because Petitioner has not established “cause and prejudice” for the default, or shown that a miscarriage of justice has occurred. (Id. at 14-15.) Respondent makes the alternative argument that, if the court were to consider the substance of Petitioner's legal sufficiency claim, it would find the claim meritless because the jury was entitled to credit Victim's testimony describing the violence of her sexual assault. (Id. at 16.)
If a state court would dismiss a habeas petitioner's claims for their procedural failures, such claims are technically exhausted because, in the habeas context, “state-court remedies are ... ‘exhausted' when they are no longer available, regardless of the reason for their unavailability.” Shinn v. Ramirez, 596 U.S. 366, 378, 142 S.Ct. 1718, 1732, 212 L.Ed.2d 713 (2022) (internal quotation omitted).
With regard to Petitioner's dual claims of ineffective trial counsel, Respondent argues that both claims are unexhausted. (Id. at 17.) While Petitioner raised a generic ineffective assistance of trial counsel claim in his August 2019 direct appeal to the Appellate Division, Fourth Department, he failed to mention the specific claims raised in this Petition. Petitioner also omitted any ineffective assistance of counsel claim from his application for leave to appeal to the New York Court of Appeals. Despite this failure to exhaust, Respondent suggests that Petitioner could still potentially raise the issues in a state court motion for relief available under N.Y. C.P.L. § 440.10(1)(h). Thus, Respondent argues that the ineffective assistance of counsel claim cannot qualify as technically exhausted.
Respondent further contends that setting aside Petitioner's failure to exhaust his ineffective assistance of counsel claims, his arguments on this point are clearly meritless because Petitioner cannot show that (1) his counsel's acts or omissions were outside the range of professionally competent assistance, and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would be different. With respect to the purportedly sleeping juror, Respondent cites the juror's explanation that she closed her eyes and may have “lost consciousness” for a few seconds due to epilepsy, but that she could manage her symptoms and would not allow it to impact her consideration of the evidence. (Dkt. No. 44, Attach. 3 at 217-218.) Respondent argues that Petitioner's claim fails to identify any prejudice that resulted from this episode during the trial or jury deliberations, and that Petitioner's counsel may have had a “reasonable strategic justification” for failing to object to this particular juror. (Dkt. No. 40 at 20.)
Similarly, Respondent contends that trial counsel's failure to seek dismissal of the rape charge is meritless because “unwillingness” is not an element of the charged crime. In addition, Respondent contends that Victim's testimony that she was slapped, pinned against a mirror, squirted in the eyes with rubbing alcohol, and choked by the larger and stronger Petitioner was more than enough evidence to support the actual “forcible compulsion” element of a first degree rape charge. (Dkt. No. 40 at 22.) Therefore, Respondent argues, Petitioner's counsel cannot be deemed ineffective for failing to raise a meritless point.
III. LEGAL STANDARDS
Many of Petitioner's claims and Respondent's arguments raise similar issues of state law, exhaustion, and procedural default. In the interest of efficiency, I will recite the generally applicable legal standards here, and apply those standards to the individual arguments as they arise.
A. Legal Standard Governing Review of a Habeas Corpus Petition
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996) a federal court may grant habeas corpus relief with respect to a claim adjudicated on the merits in state court only if, based upon the record before the state court, the adjudication of the claim (1) 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) was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citing 28 U.S.C. § 2254(d)); Premo v. Moore, 562 U.S. 115, 120-21 (2011); Thibodeau v. Portuondo, 486 F.3d 61, 65 (2d Cir. 2007) (Sotomayor, J.).
The AEDPA “imposes a highly deferential standard for evaluating state-court rulings” and “demands that state-court decisions be given the benefit of the doubt.” Felkner v. Jackson, 562 U.S. 594, 598 (2011) (per curiam) (quoting Renico v. Lett, 559 U.S. 766, 773 (2010)); accord, Cullen, 563 U.S. at 181. Federal habeas courts must presume that the state court's factual findings are correct “unless applicants rebut this presumption with ‘clear and convincing evidence.'” Schriro v. Landrigan, 550 U.S. 465, 473-74 (2007) (quoting 28 U.S.C. § 2254(e)(1)); see also Boyette v. Lefevre, 246 F.3d 76, 88 (2d Cir. 2001). “The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold.” Schriro, 550 U.S. at 473 (citing Williams v. Taylor, 529 U.S. 362, 410 (2000)).
As required by section 2254, on federal habeas review, a court may only consider claims that have been adjudicated on the merits by the state courts. 28 U.S.C. § 2254(d); Cullen, 563 U.S. at 181; Washington v. Schriver, 255 F.3d 45, 52-55 (2d Cir. 2001). The Second Circuit has held that, when a state court adjudicates a claim on the merits, “a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim-even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.” Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001); see Willson v. Sellars, 138 S.Ct. 1188, 1192 (2018) (holding that a federal habeas court reviewing an unexplained state court decision on the merits “should ‘look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale” and “presume that the unexplained decision adopted the same reasoning,” but that “the State may rebut the presumption by showing that the unexplained affirmance relied or most likely did rely on different grounds than the lower state court's decision”).
B. Legal Standard Governing State Law Claims in Habeas Proceeding
State courts are “the ultimate expositors of state law.” Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); see also Ring v. Arizona, 536 U.S. 584, 603, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Therefore, “it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions,” Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Even where there has been no pertinent decision by the state's highest court, and “we are left only with the state intermediate court's interpretation of the terms in the state statute[,] ... we are bound by that interpretation.” Ponnapula v. Spitzer, 297 F.3d 172, 183 (2d Cir.2002); see, e.g., McGuire, 502 U.S. at 66, 6768, 112 S.Ct. 475 (rejecting federal court's holding that a state-intermediate-court error with respect to state law constituted a basis for federal habeas relief). “Simply put, “'federal habeas corpus relief does not lie for errors of state law.'” DiGuglielmo v. Smith, 366 F.3d 130, 137 (2d Cir. 2004) (quoting McGuire, 502 U.S. at 67, 112 S.Ct. at 475).
C. Legal Standard Governing Exhaustion of Remedies
Before seeking federal habeas relief, a petitioner must exhaust available state remedies or establish either an absence of available state remedies or that such remedies cannot adequately protect his rights. Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir. 2001) (quoting 28 U.S.C. § 2254(b)(1)); Ellman v. Davis, 42 F.3d 144, 147 (2d Cir. 1994). The exhaustion doctrine recognizes “respect for our dual judicial system and concern for harmonious relations between the two adjudicatory institutions.” Daye v. Attorney Gen. of New York, 696 F.2d 186, 191 (2d Cir. 1982); see also Galdamez v. Keane, 394 F.3d 68, 72 (2d Cir. 2005) (“Comity concerns lie at the core of the exhaustion requirement.”). Although both federal and state courts are charged with securing a state criminal defendant's federal rights, the state courts must initially be given the opportunity to consider and correct any violations of federal law. Galdamez, 394 F.3d at 72 (citing O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999)). “The chief purposes of the exhaustion doctrine would be frustrated if the federal habeas court were to rule on a claim whose fundamental legal basis was substantially different from that asserted in state court.” Daye, 696 F.2d at 192 (footnote omitted).
This exhaustion requirement is satisfied if the federal claim has been “fairly present[ed]” to the state court. Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)). A claim has been “fairly presented” if the state court was apprised of “both the factual and the legal premises of the claim [the petitioner] asserts in federal court.” Daye, 696 F.2d at 191. Thus, “the nature or presentation of the claim must have been likely to alert the court to the claim's federal nature.” Id. at 192.
Significantly, “[t]he exhaustion doctrine ‘requires only that a petitioner present his claim once on direct or collateral review.'” Salahuddin v. Strack, 97-CV-5789, 1998 WL 812648, at *5 (E.D.N.Y. Aug. 12, 1998) (quoting Sanford v. Senkowski, 791 F.Supp. 66, 69 (E.D.N.Y. 1992)); see Fielding v. LeFevre, 548 F.2d 1102, 1106 (2d Cir. 1977) (“In order to meet the exhaustion requirement, a petitioner must have presented his claim to the state courts at least once, on direct or collateral review.”). “Therefore, even if a claim is not raised at trial or on direct appeal, a claim pursued throughout a full round of state post-conviction proceedings is exhausted.” Salahuddin, 1998 WL 812648, at *5 (citing, inter alia, Castille v. Peoples, 489 U.S. 346, 350-51 (1989)); see also Harvey v. Portuondo, 98-CV-7371, 2002 WL 2003210, at *5 (E.D.N.Y. Aug. 5, 2002). Unexhausted claims are generally barred from habeas corpus review by the rules concerning procedural default. See Aparicio, 269 F.3d at 90 (2d Cir. 2001) (citing Coleman v. Thompson, 501722, 735 n.1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)).
D. Legal Standard Governing Procedural Default
Procedurally defaulted claims are not subject to habeas review unless a petitioner shows cause for the default and that actual prejudice results, or that the denial of habeas relief would result in a fundamental miscarriage of justice. House v. Bell, 547 U.S. 518, 536-539, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006); Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). To meet the “cause” requirement, a petitioner must show that some objective external factor impeded his ability to comply with the relevant procedural rule. Maples v. Thomas, 565 U.S. 266, 280, 132 S.Ct. 912, 181 L.Ed.2d 807 (2012); Coleman, 501 U.S. at 753, 111 S.Ct. 2546. Prejudice requires a petitioner to show “not merely that the errors at . . . trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Murray v. Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) (quoting United States v. Frady, 456 U.S. 154, 170 (1982).
Additionally, there is an exception to the procedural bar in cases where a petitioner can prove actual innocence. McQuiggin v. Perkins, 569 U.S. 383, 392, 133 S.Ct. 1924, 185 L.Ed.2d 1019 (2013) (“[A] credible showing of actual innocence may allow a prisoner to pursue his constitutional claims ... on the merits notwithstanding the existence of a procedural bar to relief.”). “[A]ctual innocence means factual innocence, not mere legal insufficiency.” Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (quoting Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)). “To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts or critical physical evidence- that was not presented at trial.” Schlup, 513 U.S. at 324, 115 S.Ct. 851 ; see also Whitley v. Senkowski, 317 F.3d 223, 225 (2d Cir. 2003). In addition, “prisoners asserting innocence as a gateway to defaulted claims must establish that, in light of new evidence, ‘it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.' ” House, 547 U.S. at 536-37, 126 S.Ct. 2064 (quoting Schlup, 513 U.S. at 327, 115 S.Ct. 851); see also Doe v. Menafee, 391 F.3d 147, 160-62 (2d Cir. 2004).
IV. LEGAL FINDINGS AND ANALYSIS
For many of the reasons stated in Respondent's memorandum of law, I find that (1) Petitioner's legal sufficiency claim, to the extent it relies upon federal law, is unexhausted and procedurally barred, and if the Court were to consider the substance of Petitioner's arguments, meritless; and (2) Petitioner's ineffective assistance of counsel claims are partially unexhaustedand meritless. As a result, I recommend all of Petitioner's claims for habeas relief be denied.
In arguing that all of Petitioner's ineffective assistance of counsel claims are unexhausted, Respondent did not address the content of Petitioner's April 2021 coram nobis application.
A. Whether Petitioner's Legal Sufficiency Claim Should be Dismissed
As discussed previously, Petitioner contends that the evidence presented against him is legally insufficient because the “testimonial evidence submitted to the jury was inconsistent with the physical evidence in the case.” (Dkt. No. 1 at 4.) After carefully considering the matter, this court recommends dismissal of Petitioner's legal sufficiency claim.
To begin with, to the extent that Petitioner's legal sufficiency claim is based upon state law, that portion of his claim is non-cognizable in federal habeas proceeding. McGuire, 502 U.S. at 63, 112 S.Ct. at 477, 116 L.Ed.2d at 385. The record before this court also shows that any federal legal sufficiency claim is unexhausted and procedurally defaulted because Petitioner did not raise the argument in any of his state court appeals. Petitioner raised a “weight of the evidence” question before the Appellate Division, Fourth Department involving a purported disparity between Victim's testimony and the physical evidence, but framed the question solely in terms of state law, and the Appellate Court treated it as such. (Dkt. No. 44 at 15-16, 157-159.) Petitioner's leave application requested review by the Court of Appeals of only two state law questions:
a.) Whether Mr. Boyd's conviction should be vacated as a matter of law as a result of the conviction being against the weight of the evidence.
b.) Whether Mr. Boyd's sentence as modified by the Appellate Division, Fourth Department is unduly harsh as a matter of law.(Dkt. No. 44 at 160.)
Accordingly, habeas review is unavailable for a federal legal sufficiency argument because Petitioner's failure to “explicitly alert” the New York Court of Appeals to the issue “does not fairly present such claims.” Jordan v. Lefevre, 206 F.3d 196, 198-99 (2d Cir. 2000) (holding that “counsel may not transfer to the state courts the duty to comb through an applicant's appellate brief to seek and find arguments not expressly pointed out in the application for leave); see also Smith v. Duncan, 411 F.3d 340, 345 (2d Cir. 2005) (finding evidentiary issue procedurally defaulted because petitioner's correspondence to the New York Court of Appeals never raised the issue). Courts have generally found a distinct difference between “weight of the evidence” under state law and “legal sufficiency” under federal law. Hughes v. Sheahan, 312 F.Supp.3d 306, 343 (N.Y.N.D. 2018) (“Recent cases which have examined the nature of the weight of the evidence and sufficiency claims have concluded that “the two claims are no more than somewhat similar.”) (quoting Pham v. Kirkpatrick, 209 F.Supp.3d 497, 512 (N.D.N.Y. 2016)), aff'd 711 Fed.Appx. 67 (2d Cir. 2018). Thus, a weight of the evidence claim may not “stand in” for a legal sufficiency claim. See Romero v. Miller, No. 9:18-CV-381, 2019 WL 5743500, at *5-6 (N.D.N.Y. Apr. 18, 2019), report-recommendation adopted, 2019 WL 5703612 (N.D.N.Y. Nov. 5, 2019), cert. of appeal. denied, No. 19-4033, 2020 WL 2945010 (2d Cir. May 14, 2020 (collecting cases).
Some courts have found the exhaustion requirement met where a habeas petitioner's state court pleadings at least imply a federal legal sufficiency argument, but this court finds no such implication in Petitioner's arguments to the Appellate Division, Fourth Department or the New York State Court of Appeals. C.f,. Tripp v. Superintendent, No. 9:21-CV-0406 (TJM/DJS), 2023 WL 7383170, at *8 (N.D.N.Y. November 8, 2023) (collecting cases).
Because Petitioner's federal legal sufficiency claim is unexhausted, Petitioner has no avenue in state court to exhaust his claim. See Grey v. Hoke, 933 F.2d 117, 120-21 (2d Cir. 1991); N.Y. Crim. Proc. Law § 440.10 (2)(c) (barring collateral review if a claim could have been raised on direct review). Therefore, he is barred from litigating the merits of that claim in federal habeas proceedings, absent a showing of cause and prejudice. Grey, 933 F.2d at 121. In his coram nobis application, Petitioner argued that his appellate counsel was ineffective for failing to raise a different legal sufficiency argument, but Petitioner did not pursue the claim in this federal habeas proceeding. Additionally, on the record before the Court, there is no basis to conclude that the failure to consider the merits of Petitioner's legal sufficiency claim would result in a fundamental miscarriage of justice or other prejudice. Accordingly, the procedural default bars federal review of Petitioner's legal sufficiency claim, and this Court recommends that portion of his Petition be denied and dismissed on this ground.
Even if Petitioner had raised an appropriate ineffectiveness of appellate counsel argument in this federal habeas proceeding, it is highly unlikely that it would have provided sufficient cause to excuse his procedural default. See Wright v. LaManna, No. 9:18-CV-1063, 2021 WL 5095292, at *8 n.5 (MAD/TWD) (N.D.N.Y. April 21, 2021), report and recommendation adopted, 2021 WL 4452094 (September 29, 2021) (reciting principle that ineffective assistance of counsel may be sufficient to show cause only when counsel's performance was so ineffective that the representation violated the petitioner's Sixth Amendment right to counsel).
Even if this court considered Petitioner's legal sufficiency claim on the merits, it would still recommend dismissal of this claim. A convicted defendant seeking federal habeas review for sufficiency of evidence to support a conviction bears a heavy burden. Fama v. Comm'r of Corr. Svcs., 235 F.3d 804, 822 (2d Cir. 2000); see also Flowers v. Fisher, 296 Fed.Appx. 208, 210 (2d Cir. 2008). A petitioner making this claim is entitled to habeas relief only if it is found “that upon the record evidence adduced at trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 324 (1979).
When making an analysis concerning sufficiency of the evidence, the reviewing court is required to “consider the evidence in the light most favorable to the prosecution and make all inferences in its favor[,] and must defer to the credibility assessments made by the jury without substituting its view for that of the factfinder. Fama, 235 F.3d at 811; see also Jackson, 443 U.S. at 319. Viewing the evidence in this light, the habeas court must uphold the verdict “if any rational trier of fact could have found the essential elements of the crime [of conviction] beyond a reasonable doubt. Jackson, 443 U.S. at 319 (emphasis in original).
Here, Petitioner's legal sufficiency argument is essentially that the jury should have disbelieved Victim's testimony and instead adopted the defense interpretation of the physical and forensic evidence. (Dkt. No. 1 at 10, 12.) Arguments that merely contest the credibility of the prosecution's evidence are insufficient to disturb a jury verdict. See Marshall v. Lonberger, 459 U.S. 422, 432-435 (1983) (holding that a federal court reviewing a habeas petition may not revisit the fact-finder's credibility determinations); Vera v. Hanslmaier, 928 F.Supp. 278, 284 (S.D.N.Y. 1996) (noting that a habeas court is not free to make a credibility judgment about the evidence or weight of conflicting testimony). Here, as in many cases,
the jury's decision was largely a matter of choosing whether to believe [Petitioner's] version of the events or to believe the version offered by the State. The jury chose to believe the State's witnesses, despite the inconsistencies in the evidence . . . We cannot say that no reasonable jury could have found guilt beyond a reasonable doubt on all the evidence.Gruttola v. Hammock, 639 F.2d 922, 928 (2d Cir. 1981). Based on the record before this Court, it does not appear “more likely than not that no reasonable juror would have convicted. Schlup, 513 U.S. at 329; see also Flowers v. Noeth, No. 9:20-CV-997 (BKS/ATB), 2021 WL 4267814, at *7 (N.D.N.Y. July 27, 2021) (finding victim's testimony was legally sufficient for rational trier of fact to find petitioner guilty of Rape in the First Degree, despite “lack of overwhelmingly corroborative evidence.”); Williams v. McCoy, 7 F.Supp.2d 214, 221-222 (E.D.N.Y. June 3, 1998) (victim's testimony provided legally sufficient evidence of rape despite lack of corroborating medical evidence). Accordingly, if this Court were able to consider the merits of Petitioner's legal sufficiency claim, it would still recommend dismissal.
B. Whether Ineffective Assistance of Counsel Claim Should Be Dismissed
In his pro se supplemental brief to the Appellate Division, Fourth Department, Petitioner made a general claim that he received ineffective assistance of trial counsel but did not specify any particular errors that impeded his defense. (Dkt. No. 44 at 153-154.) In his application for leave to appeal to the New York State Court of Appeals, Petitioner did not raise any ineffective assistance of counsel claims. (Id. at 160.)
Petitioner's habeas corpus petition argues that his trial counsel was ineffective on two grounds: (1) failure “to move to withdraw a juror who fell asleep during the trial”, and failure to “place a trial order of dismissal in regards to the legal insufficiency of the ‘unwillingness' element of rape in the first degree.” (Dkt. No. 1 at 5.) Because the petition made clear that these claims had not been exhausted, this Court imposed a stay on May 13, 2021 to allow Petitioner an opportunity to exhaust his state court remedies. (Dkt. No. 8.); Boyd v. Bell, No. 9:21-CV-174 (DNH/ML), 2021 WL 1920539, at *2-3 (N.D.N.Y. May 13, 2021).
When this proceeding was stayed, Petitioner filed an application for a writ of coram nobis that argued, in relevant part, that “Trial Counsel was ineffective for failing to challenge the Unwillingness element of Rape in the first Degree during his trial order of dismissal.” (Id. at 165.) As described above, the Appellate Division, Fourth Department and the New York State Court of Appeals denied Petitioner's application. (Dkt. No. 44 at 188,197.)
1. Counsel's Failure to Seek Dismissal Based on “Unwillingness” Element
Because he raised the specific question in his application for a writ of coram nobis, Petitioner adequately exhausted his state court remedies with regard to his claim that trial counsel should have sought dismissal for the prosecution's failure to prove the “unwillingness element” of Rape in the First Degree. However, dismissal of this claim is still warranted on the merits.
Under the well-established standard governing ineffective assistance of counsel claims,
the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.Strickland v. Washington, 466 U.S. 668, 687 (1984); accord, Murden v. Artuz, 497 F.3d 178, 198 (2d Cir. 2007).
To be constitutionally deficient, the attorney's conduct must fall “outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690; accord, Rivas v. Fischer, 780 F.3d 529, 547 (2d Cir. 2015). An attorney's performance is judged against this standard in light of the totality of the circumstances and from the perspective of counsel at the time of trial, with every effort made to “eliminate the distorting effects of hindsight[.]” Strickland, 466 U.S. at 689; see also Rivas, 780 F.3d at 547 (quoting Strickland, 466 U.S. at 689) (noting the court's “scrutiny of counsel's performance must be ‘highly deferential'”).
Addressing the second prong of the Strickland test, courts have generally held that prejudice is established by showing that there is a “reasonable probability” that, but for the attorney's deficient conduct, “the result of the proceeding would have been different.” Strickland, 466 U.S. at 694; see also Murden, 497 F.3d at 198 (“Under Strickland, a defendant must show that . . . there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” (quotation marks omitted)). In short, Petitioner's claim should be dismissed because “unwillingness” is not a required element of Rape in the First Degree. As Respondent points out, the lack of consent element of Rape in the First Degree is established by “forcible compulsion,” a statutory term of art including implicit or explicit threats which place the victim in fear of immediate death or physical injury to herself or others.” See N.Y. Penal Law §§ 130.00(8)(b), 130.05(2)(a), 130.35(1) .
By contrast, lack of consent for the lesser charge of Rape in the Third Degree may be proven by evidence that the victim's words or actions “clearly expressed an unwillingness to engage in the sexual act.” People v. Perry, 154 A.D.3d 1168, 1169 (3d Dep't 2017) (citing N.Y. Penal Law § 130.05(2)(d)).
Effective assistance of counsel does not require the filing of every possible motion, rather only those that have a solid foundation. See Carpenter v. Unger, Nos. 9:10-CV-1240, 2014 WL 4105398, at *24 (N.D.N.Y. August 20, 2014) (refusal of client's request to file frivolous motion was not ineffective assistance of counsel). “The failure to include a meritless argument does not fall outside the ‘wide range of professionally competent assistance' to which [a p]etitioner [i]s entitled.” Aparicio v. Artuz, 269 F.3d 78, 99 (2d Cir. 2001). Therefore, counsel's failure to seek dismissal over the “unwillingness” element does not meet the performance prong of Strickland. Petitioner has also failed to show prejudice, due to the impossibility that the indictment would have been dismissed on this imaginary ground. This Court also notes that regardless of whether the statute required a showing of “unwillingness” or “forcible compulsion,” Petitioner would have been unable to establish prejudice in light of Victim's testimony detailing Petitioner's threats and violent acts, several of which occurred after she accused him of being a rapist.
2. Counsel's Failure to Seek Dismissal of Purportedly Sleeping Juror
Petitioner has not provided any evidence that he presented his ineffective assistance of counsel claim related to the purportedly sleeping juror to the Appellate Division or any other state court. Without presentation of this specific argument to a state court, “the matter is not ripe for adjudication on the instant habeas petition.” See Tripp v. Superintendent, No. 9:21-CV-0406 (TJM/DJS), 2023 WL 7383170, at *8 (N.D.N.Y. November 8, 2023); see also Caballero v. Keane, 42 F.3d 738, 740 (2d Cir. 1994) (“To reach the merits of an ineffective representation claim, all of the allegations must have been presented to the state courts.”); Beniquez v. Johnson, No. 21 CIV.v1467 (PAE), 2023 WL 3948738, at *15 (S.D.N.Y. June 12, 2023) (“To exhaust an ineffective assistance of counsel claim, a petition must have ‘asserted in state court the specific conduct giving rise to the claim.'”) (quoting Moreno-Gratini v. Sticht, No. 19 Civ. 05964 (GHW) (SN), 2022 WL 1425712, at *7 (S.D.N.Y. Apr. 18, 2022), report and recommendation adopted, 2022 WL 1423298 (S.D.N.Y. May 5, 2022). Thus, Petitioner's ineffective assistance of counsel claim can only be considered partially exhausted, and his claim related to trial counsel's failure to seek removal of the purportedly sleeping juror should be dismissed on procedural grounds.
Even if this Court were to consider the merits of Petitioner's second ineffective assistance of counsel claim, it would still recommend dismissal. At the outset, the record evidence shows that the juror in question was not asleep or deliberately inattentive but was instead having a medical episode. (Dkt. No. 44, Attach. 3 at 217-218.) But even assuming that she was sleeping, the court cannot conclude that trial counsel's performance was deficient, where “counsel's decision not to object may well have been based on his desire to retain the inattentive juror rather than to seek to replace [her] with an alternate.” Ciaprazi v. Senkowski, 151 Fed.Appx. 62, (2d Cir. 2005) (holding that trial counsel's decision not to object to juror who was possibly sleeping during key stages of trial was not ineffective assistance of counsel). This Court notes that trial counsel had an opportunity to use a peremptory challenge to remove this individual during jury selection but found her acceptable. (Dkt. No. 44, Attach. 2 at 111-112.) See United States v. Lawes, 292 F.3d 123, 128 (2d Cir. 2002) (characterizing jury selection and trial strategy as “inseparable”).
Petitioner also cannot show that the retention of this juror prejudiced the outcome of the trial. Petitioner does not demonstrate, and the record does not suggest, that the purportedly sleeping juror “adversely affected the jury's deliberations or had a substantial and injurious effect on its ultimate conclusions.” Ragsdale v. Warden, No. 11-CV-1681 (DLI), 2015 WL 5675867, at *5 (E.D.N.Y. September 24, 2015) (internal citation omitted).
V. CERTIFICATE OF APPEALABILITY
To appeal a final order denying a request by a state prisoner for habeas relief, a petitioner must obtain from the court a certificate of appealability (“COA”). 28 U.S.C. § 2253(c)(1)(A); see also Fed. R. App. P. 22(b)(1) (“[T]he applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c).”). In the absence of a COA, a federal court of appeals lacks jurisdiction to entertain an appeal from the denial of a habeas petition. Hoffler v. Bezio, 726 F.3d 144, 152 (2d Cir. 2013). A COA may issue only “if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Hoffler, 726 F.3d at 154. A petitioner may demonstrate a “substantial showing” if “the issues are debatable among jurists of reason; . . . a court could resolve the issues in a different manner; or . . . the questions are adequate to deserve encouragement to proceed further.” Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983) (quotation marks omitted).
A similar standard applies when a COA is sought to challenge the denial of a habeas petition on a procedural basis. See Slack v. McDaniel, 529 U.S. 473, 478 (2000) (“[A] COA should issue . . . if the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.”).
In this instance, I find that jurists of reason would not find it debatable as to whether the petition in this matter is meritorious. Accordingly, I recommend against the issuance of a COA.
ACCORDINGLY, it is
RECOMMENDED that the Petition be DENIED and DISMISSED, and that a certificate of appealability not be issued to Petitioner; and it is further
ORDERED that the Clerk of the Court shall file a copy of this Report and Recommendation on the parties, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW . 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed.R.Civ.P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).
If you are proceeding pro se and served with this report, recommendation, and order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation, and order was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed.R.Civ.P. 6(a)(1)(C).