Opinion
18 Civ. 6973 (KMK)(PED)
03-04-2022
EDWARD BRIMS, Petitioner, v. J. COLLADO, SUPT., Respondent.
HONORABLE KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
PAUL E. DAVISON U.S.M.J
I. INTRODUCTION
Edward Brims ("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, Rockland County (Kelly, J.). [Dkt. 1.] On April 5, 2012, Petitioner was convicted of two counts of attempted robbery in the first degree, one count of attempted robbery in the second degree, and one count of assault in the second degree, and sentenced to an aggregate prison term of 18 years to life. Petitioner is currently serving his sentence at the Shawangunk Correctional Facility in Ulster County, New York. The Petition comes before me pursuant to an Order of Reference entered August 14, 2018. [Dkt. 7.] For the reasons that follow, I respectfully recommend that Your Honor DENY the Petition.
On December 29, 2021, Petitioner filed a motion seeking to strike certain portions of the Respondent's Opposition. [Dkts. 45-46.] I deny that motion in a contemporaneously-filed order.
II. BACKGROUND
The information in this section is taken from the Petition [Dkt. 1], Respondent's Answer with attached exhibits [Dkts. 16, 17], and Petitioner's Reply [Dkt. 28].
1. The Crime
On October 12, 2010 at approximately 7:00 p.m., Petitioner entered a convenience store in Spring Valley, New York, armed with a black and silver pistol, wearing a black sweatshirt with the hood over his head and a white mesh hairnet covering his face. The store owner was seated behind the counter when Petitioner entered. Petitioner pointed the gun at the store owner and demanded his money. The store owner did not move. Petitioner walked around the counter still pointing the gun at the storm owner and ordered him not to move.
The store owner heard a "click" from the gun, which he thought was the Petitioner attempting to fire the gun when the gun jammed. The store owner rushed Petitioner, and the two men fought. The store owner wrestled the gun away from Petitioner, and it fell onto the floor. Petitioner and the store owner continued fighting, and Petitioner repeatedly struck the store owner in the face and eye. During the altercation, the store owner was able to pull the white hairnet from Petitioner's face, revealing his face, and the hairnet fell to the floor. Petitioner was able to recover the gun from the floor and pointed it at the store owner. The store owner ducked behind the counter and grabbed a hammer, at which point Petitioner fled. The entire incident was recorded on the store's surveillance system.
2. Initial Investigation
The store owner called the police immediately after the incident. Officer Christopher Youngman and Detective Gregory Dunne of the Ramapo Police Department arrived shortly after. The store owner provided a physical description of Petitioner and stated that Petitioner was carrying a silver and dark-colored pistol. Officer Youngman, Detective Dunne, and the store owner drove around the area searching for Petitioner, but returned to the store after they could not locate him. The store owner directed the police to the white hairnet Petitioner had been wearing, which was on the floor. Rockland County Sheriffs Deputy Dean Golemis arrived and found a drop of blood on the floor, which he swabbed for DNA. The next day, Detective Dunne returned to the store with Rockland County Sheriffs Detective Shlomo Konig. The store owner played the surveillance footage for the officers and provided them with a copy.
On November 9, 2010, New York State forensic scientist Linda McKiernan took four swabs from the hairnet and used them to create a DNA profile. Detective Dunne entered the information from the DNA profile into the New York State DNA Databank, which produced a New York State Convicted Offender Lab Report matching Petitioner and which contained Petitioner's address. Detective Dunne learned that Petitioner had been seen driving a white 2000 Lincoln Continental bearing a certain license plate number. Rockland County Police set up surveillance in the area near Petitioner's home.
On December 16, 2010, Rockland County Police spotted the vehicle, which they identified by its license plate, that was being driven by a male matching Petitioner's description. Sergeant Thomas Dolan spotted the vehicle and attempted to pull him over. Detective Dunne was with Sergeant Dolan sitting in the passenger seat. Petitioner's vehicle was stopped behind a bus at a red light. Sergeant Dolan's vehicle approached, and he activated his lights and sirens. Petitioner slowly pulled into the right shoulder. The light turned green, and Petitioner veered around the bus and sped away into oncoming traffic. Petitioner led police on a high-speed chase with five to ten police vehicles following. The chase ended when Petitioner crashed his car into a telephone utility box. He exited the vehicle holding an open beer bottle and was arrested. Upon arrest, Petitioner's clothes, boots, and cellphone were seized.
Clarkstown Police Detective Frederick Parent, who participated in the chase, retraced the chase route and found a 9 mm semi-automatic handgun lying in the street. The side of the gun appeared scratched and appeared to have been thrown out of a vehicle. The gun matched the description of the gun seen on the surveillance footage. However, the operability of the gun could not be tested at that time without destroying any possible DNA evidence contained on the gun's surface. On December 17, 2010, police executed a search warrant of Petitioner's home. -They found two white disposable hairnets that were similar to the hairnet worn by Petitioner during the robbery.
3. Investigation Following Initial Indictment
In March 2011, the trial court approved a request by the Rockland County District Attorney's Office to take a buccal swab of Petitioner who was in custody at the time. Pursuant to the court's signed order, Deputy Golemis obtained the swab from Petitioner on March 8, 2011. Rocldand County Sheriffs Detective Aloysius McMahon examined the gun and confirmed that it matched the appearance of the gun seen in the surveillance footage. DNA samples were taken from the trigger, grip, barrel, and magazine. New York State Police Sergeant Dennis Lyons tested the gun for operability and removed a cartridge from the gun's barrel, confirming that the gun had been operable and ready to fire when it was discovered in December 2010.
Examiner McKieman developed DNA profiles based on the swabs taken from the gun, as well as the buccal swab taken from Petitioner. She determined that the DNA profile taken from the buccal swab matched the DNA samples found on the trigger, grip, barrel, and magazine of the gun. She also determined that both DNA profiles matched the DNA found on the hairnet which Petitioner wore on his face during the robbery.
B. Procedural History
1. First Indictment and Grand Jury Proceedings
Detective Dunn filed a felony complaint on December 17, 2010, accusing Petitioner of two counts of robbery in the first degree, one count of assault in the second degree, and criminal possession of a weapon in the third degree. [Dkt 16-2 at 103-04.] The initial grand jury presentment took place on December 22, 2010 on Indictment No. 11-007. [Dkt. 16-4 at 45-48.] According to a July 16, 2012 affidavit from the public defender assigned to Petitioner's case, Petitioner met with an attorney from the Rockland County Public Defender's Office the morning before the grand jury proceedings began. [Dkt. 16-2 at 43-45.] Petitioner told the public defender that he did not want representation from the Public Defender's Office, and that Petitioner wished to testify before the grand jury. [Id. at 43-44.] The attorney explained to him that doing so would require that Petitioner sign a waiver of immunity under New York Criminal Procedure Law § 190.50. [Id. at 44.] Petitioner demanded that the public defender sign a statement that Petitioner was required to waive immunity in order to testify, at which point the public defender indicated that he would not continue to represent Petitioner. [Id] After a discussion with his supervisor, the public defender agreed to represent Petitioner for the grand jury proceedings. [Id.]
On December 22, 2010, Petitioner testified before the grand jury and signed a waiver of immunity. [Id. at 45.] Later that day, the grand jury indicted Petitioner for two counts of attempted robbery in the first degree, one count of attempted robbery in the second degree, and one count of assault in the second degree. [Dkt. 16-5 at 11-12 to 16-6 at 1.] Following the indictment, the Rockland County Public Defender's Office transferred Petitioner's case to the Rockland County 18-B Attorney's Office and had no additional involvement in the matter. [Dkt. 16-2 at 45.] On December 31, 2010 Petitioner moved to dismiss the indictment, arguing that it was based on insufficient evidence, the prosecutor should not have introduced his prior criminal history, and the indictment was untimely. [Dkt. 28 at 97-109.]
2.Arraignment and Waiver of Counsel
Petitioner was arraigned on January 10, 2011 in New York Supreme Court, Rockland County. [Dkt. 17-6.] An attorney, Martin Gotkin, appeared with Petitioner as his legal representative. [Id] Petitioner pleaded not guilty. [Id. at 3.] Petitioner filed a pro se pre-trial motion to dismiss the indictment and alleged numerous constitutional violations as well as ineffective assistance of counsel. [Id. at 4-11.] The court informed Petitioner that it would only accept motions from counsel if Petitioner wanted to proceed with representation:
COURT: Let me just say initially, Mr. Brims, if you want an attorney to represent you I'm not going to accept any pro se motions from you, okay? You either have an attorney represent you or you represent yourself,
PETITIONER: I'll represent myself.
COURT: You want to?
PETITIONER: That's what I said.
COURT: You want to represent yourself?
PETITIONER: That's what I said.[Dkt. 17-6 at 3-4.] In reviewing Petitioner's pro se submission, the court again asked Petitioner whether he wanted to proceed with an attorney:
COURT: All of these issues would ordinarily be raised by an attorney in various aspects of pretrial relief.... I'm not going to do it with an
attorney and then have you do it at the same time, so you're going to have to make a threshold determination as to whether or not you want an attorney to represent you...so you'll have to tell me what your intention is with regard to whether or not you want an attorney to represent you or whether you wish to proceed pro se, that is represent yourself.... Again, as I say to you, it's a very important decision you would make. You have the right to proceed pro se.. .but before you can be allowed to do that this Court has to make a searching inquiry to determine whether you are voluntarily and knowingly waiving the right to have an attorney represent you. So, if you want time to think about it I'll give it to you. If you think you're ready to make that determination now I'll go through that inquiry with you. If you want to confer with Mr. Gotkin first, that's fine too.... So, tell me what you'd like to do.
PETITIONER: I'm going pro se .
COURT: You want to go pro se?
PETITIONER: That's correct.
COURT: That means you want to represent yourself?
PETITIONER: That's correct. That's correct.
COURT: You don't want the assistance of an attorney?
PETITIONER: Not at all.[Id. at 841.] The trial court then explained to Petitioner that Petitioner was facing a serious prosecution that carried a minimum sentence of five to 25 years of incarceration, and that the prosecution had recommended a 20-year sentence. [Id. at 11.] The trial court explained that Petitioner would be in a "perilous" situation without the assistance of counsel, and that he would need an attorney to adequately protect his legal rights. [Id. at 11-12.] The trial court also explained that even intelligent and educated laymen may lack legal skill and knowledge, whereas an attorney would have comprehensive knowledge of the rules of evidence as well as an understanding of jury selection and examination. [Id., at 12.] The trial court asked Petitioner if he understood, to which Petitioner replied, "Emphatically, yes." [Id. at 12.]
The trial court further explained that pro se representations are rarely successful because a pro se litigants may not have the special skills to represent themselves, even with the aid of an appointment legal advisor. [Id., at 12.] The trial court stated that it would appoint Mr. Gotkin as a legal advisor to assist Petitioner if he chose to proceed pro se, but that Petitioner would be making the legal decisions. [Id. at 12-13.] The trial court asked if Petitioner understood, to which he replied, "Emphatically, yes." [Id. at 13.]
The trial court continued its inquiry and discussed Petitioner's capabilities to represent himself:
COURT: I' m saying that the cases in New York hold that in order for you to make an effective waiver of representation by counsel...the Court must first determine that you are making a knowing, intelligent waiver of a known right, namely the right to have counsel represent you. That's all I'm saying.
PETITIONER: Okay. Eve done this before, Judge. I've represented myself.
PETITIONER: I've taken depositions myself. I know how to cross examination, cross examine witnesses, confront and cross examine witnesses. I've done that before. I am not a new Jack to this area. I just don't see, this is a very serious case, and right now I'm kind of skeptical, maybe my fear, my phobia is over exaggerated but it's real, and I'm not going to jail for some cockamamie charges like these, phony charges like these and have somebody sit beside me and claim to be a lawyer, I know how to beat it. I know how to beat it. He might not know (Indicating),
COURT: When you say "he" you're pointing to Mr. Gotkin?
PETITIONER: That's right.[Dkt. 17-6 at 17-18.]
The trial court explained that Petitioner could possibly face the rest of his life in prison, and he cautioned Petitioner to be careful before making this determination. He offered to adjourn the matter to give Petitioner more time to make a decision, which Petitioner declined:
COURT: If you need an adjournment to decide, after speaking with Mr. Gotkin, I'll give it to you. If you're adamant about representing yourself I'll go through a full allocution with you and I'll make a determination. It's up to you.
PETITIONER: Let's get it on, Judge.
COURT: Well, when you say, "let's get it on." I'm going to go-by that assume you mean you want to represent yourself, right?
PETITIONER: Precisely.[Dkt. 17-6 at 19.] The trial court continued the allocution. Petitioner stated that he was not aware of any mental or physical conditions that might prevent him from understanding the proceedings. [Id. at 20.] The court explained that it would appoint Mr. Gotkin as Petitioner's legal representative who will accompany Petitioner throughout the proceedings, but that Petitioner would still be required to abide by the law and would be held to the same standard as an attorney. [Id. at 24-26.]
The court then explained to Petitioner that he was a predicate felon:
COURT: You're a predicate felon but you wouldn't be sentenced as a predicate felon because it appears, and I haven't decided it, it appears your last conviction was in '92, you got two to four.
PETITIONER: Exactly.
COURT: But you picked up some misdemeanors in the meantime which might toll some of that time.
PETITIONER: Okay.
COURT: You know what I'm saying? Right now I'm just looking at it and it looks like you're not a predicate felon but the People may come up and say listen, he did -
PETITIONER: I'm sure they will.
COURT: If the time period slots don't show that you qualify as a predicate felon they could stand on their head and they couldn't make it. You understand what I'm saying? That's a black and white issue, does the time period fit. That's it. But the point is, even without that you're looking at a minimum of 5 to 25 years on a sentence, even if you're not a predicate here, if they're successful.
PETITIONER: Uh-huh.[Id. at 27-28.] The court then asked Petitioner about his experience in court, and Petitioner indicated that, based on his past criminal history, he had experience in court in New York and New Jersey. [Id. at 28-30.]
Next, the trial court questioned Petitioner about his understanding of the indictment and the current proceedings:
COURT: So, you know what you're charged with then, Mr. Brims?
PETITIONER: I read it.
COURT: And you know the present status of those charges, they're pending now, right?
PETITIONER: Yes.
COURT: Okay. Can you explain to me today what the purpose of the proceeding is here today?
PETITIONER: Today the purpose of the proceeding, as far as I'm concerned, is for arraignment and bail hearing and to present the charges to me as you just did.[Dkt. 17-6 at 32.] The trial court explained that Petitioner would have the responsibility to file motions, to which the prosecution had a right to respond. [Id. at 33.] The court also explained the function of the jury and Petitioner's responsibility to introduce evidence, give a summation, and make objections. [Id. at 33-34.] The trial court noted the Petitioner had never represented himself, but Petitioner indicated that he actively assisted in the defense of his prior matters, and he had himself taken a deposition of a corrections officers as pail of a federal matter. [Id. at 35-36.] The trial court asked Petitioner again why he wanted to represent himself, and Petitioner voiced his distrust of lawyers and the legal system in general. [Id. at 37-39.] The trial court stated that he himself would want an attorney if he were in Petitioner's position and asked Petitioner again if he wanted to represent himself. Petitioner responded, "Emphatically, yes." [Id 41-42.]
The trial court then allowed Petitioner to confer with Mr. Gotkin and take an adjournment to consider his decision to proceed without counsel. [Id. at 48.] Petitioner conferred with counsel and affirmed his decision to proceed without counsel. [Id. at 49-50.] The court determined that Petitioner's decision to waive the right to counsel was made knowingly and voluntarily, and the trial court appointed Mr. Gotkin to provide Petitioner legal assistance throughout the proceedings. [Id. at 54.]
3. Federal Civil Rights Complaint
On January 31, 2011, Petitioner, pro se, filed a federal civil rights complaint in the U.S. District Court for the Southern District of New York, Case No. 11-712 (Bricetti, J.). Petitioner named as defendants all of the police officers involved in his case, as well as, "all Ramapo Police Officials Sgt. Lt. & Captains," the assistant district attorney prosecution his state, the trial court, the attorney assigned represent him before the grand jury, the Public Defender's Office, Rockland County, the Rockland County Sheriff, the Chief of the Rockland County Jail, and various John and Jane Doe defendants. [Case No. 11 Civ. 712 (VB), Dkts. 1,15.]
Petitioner filed an amended complaint on April 8, 2011 and alleged constitutional violations stemming from his arrest on December 16, 2010. [Case No. 11 Civ. 712 (VB), Dkt. 11.] Petitioner alleged that he was asked to waive his Miranda rights and asked to work as an informant for the police, that he was denied counsel when asked for an attorney, and that he was placed in a holding cell for 15 hours where he alleged that he was not timely given food, water, or clothes. [Id. at 3-7.] Petitioner also asserted that the state did not have an adequate grievance procedure. [Id. at 10-11.]
On December 23, 2011, the Court dismissed the amended complaint as to all defendants who had been properly served, finding that Petitioner had failed to assert any triable constitutional violations. [Case No. 11 Civ. 712 (VB), Dkt. 72.] Following proper service, the Court dismissed the remaining claims on March 12, 2013. [Case No. 11 Civ. 712 (VB), Dkt. 139.] Petitioner filed a notice of appeal before the Second Circuit on March 21, 2013, which was dismissed on August 2, 2013. [Case No. 11 Civ. 712 (VB), Dkts. 143, 144.]
4. Pre-Trial Motions
Petitioner filed a series of pro se, handwritten motions for various forms of pre-trial relief. On January 18, 2011, Petitioner filed motions for a writ of habeas corpus, a writ of mandamus, an order to show cause, a protective order, and a motion to stay discovery. [Dkt. 16-2 at 46-54.] Petitioner sought, in the relevant part, his immediate release from custody, a stay of all discovery related to his DNA, a protective ordering to prevent DNA discovery, and dismissal of the indictment. The trial court denied these motions by decision dated February 23, 2011. [See Dkt. 16-4 at 16.]
Petitioner also filed an omnibus motion on February 21, 2011, which the court addressed in a written decision dated March 7, 2011. [Dkt. 16-4 at 16-22.] First, Petitioner sought dismissal of the indictment a second time, which the trial court denied, referring to its February 23,2011 decision denying that same request. [Id. at 16.] Petitioner next requested that certain statements made in the grand jury proceedings be suppressed. [Id] The court denied this request because the prosecution had not noticed its intent to introduce any grand jury statements. [Id] Petitioner then moved to controvert the search warrant of his home in December 2010 following his arrest. [Id. at 17-20.] The trial court reviewed the warrant and the warrant application in camera and found that it was reliable and based on probable cause. [Id] The trial court found that the informant had personal knowledge to allow a search of Petitioner's home for fruits of the robbery, but not for evidence related to other crimes outside of the indictment. [Id] The trial court denied Petitioner's motion, but held that any fruits of the search related to crimes outside of the indictment would be suppressed. [Id]
Petitioner also moved for certain hearings, including one to suppress evidence, as well as hearings pursuant to Sandoval and Ventimiglia concerning his prior convictions, and a hearing pursuant to Brady and Rosario for the production of materials. [Dkt. 16-4 at 20.] The court granted the motions to the extent that hearings on the suppression of evidence and the use of Petitioner's prior convictions would be held prior to trial. [Id] The trial court acknowledged the prosecution's ongoing obligation to produce possibly exculpatory evidence under Brady, but denied Petitioner's Rosario demand as premature. [Id. at 21.]
At some point, Petitioner filed a motion requesting that the trial court to recuse itself in light of Petitioner's federal civil rights action, which, Petitioner argued, rendered it impossible for the trial court to remain impartial. [See Dkt 16-2 at 172.] By decision dated March 31, 2011, the trial court denied the motion, reasoning that Petitioner's allegations were baseless, and finding that the court could remain impartial despite Petitioner's allegations. [Dkt 16-2 at 172-73.]
On March 17, 2011, Petitioner filed a motion for a probable cause hearing and to dismiss all charges against him, asserting there was no probable cause to arrest him. [Diet. 28 at 77-81.] He also asked for bail reduction and for the court to relieve Mr. Gotkins as his attorney advisor. [Id. at 78.] Petitioner filed another motion on April 25, 2011 seeking other various forms of relief [Id. at 83-89.] These included a bill of particulars, materials concerning the suppression of evidence, a hearing on whether police entered his home lawfully, the return of his cellphone, removal of restraints while in court, permission to make phone calls during the week, and he asserted complaints about his access to the law library. [Id] The court denied each request in a decision dated May 5, 2011. [Id. at 93-95.]
5. Speedy Trial Motion
Petitioner later moved to dismiss the indictment under New York Criminal Procedure Law § 30.30 on the basis that the state had violated his right to a speedy trial. [See Dkt. 13 at 4.] The prosecution opposed the motion. [See id.] By decision dated July 29, 2011, the trial court denied the motion on the basis that the prosecution had declared that it was ready for trial during the January 2011 arraignment, and because the indictment was a valid accusatory instrument. [Id. at 4-5.]
6. Second Indictment and Grand Jury Proceedings
On July 7, 2011, the prosecution moved to submit the additional charge of criminal possession of a weapon in the second degree. [Dkt. 16-3*25.1 On July 20, 2011, the court granted the prosecution's motion. [Id] These charges were provided in a second indictment, Indictment No. 2011-342, and Petitioner was notified about the grand jury proceedings by notice dated July 26, 2011. [Dkt. 16-6 at 2.] Petitioner's presentment was on July 29, 2011. [Id] The grand jury later returned an indictment for the criminal possession of a weapon in the second degree. [Id. at 3.] The prosecution then moved to consolidate the second indictment with the first, and by order dated August 26, 2011, the court granted the prosecution's motion. [Id. at 4-7.]
7. State Judicial Conduct Complaint
On August 31,2011, Petitioner filed a pro se complaint with the New York State Commission of Judicial Conduct against the trial court. [Dkt. 16-3 at 111.] The Commission dismissed the complaint by letter dated January 9, 2012, on the basis that Petitioner had alleged insufficient facts to indicate judicial misconduct. [Id.] The Commission also stated that it was not an appellate authority to review the merits of matters within the trial court's discretion, nor could it offer Petitioner legal advice. [Id]
8. Jury Selection
Jury selection commenced on January 10, 2012. [Dkt. 17-1 at 232.] Petitioner appeared pro se with Mr. Gotkin present as his legal advisor. [Id. at 233.] The trial court explained the jury selection procedure to Petitioner, and Mr. Gotkin stated that he had explained the procedure to Petitioner before the proceedings. [Id. at 237-49.]
Jury selection continued on January 12 and 13, 2012. [Dkt. 17-1 at 331; Dkt. 17-2 at 115.] Mr. Gotkin appeared with Petitioner as his legal advisor. [Diet. 17-1 at 332; Dkt. 17-2 at 116.] Neither Petitioner nor the prosecution issued challenges for cause. [Dkt. 17-2 at 27.] The prosecution peremptorily challenged Juror No. 5, a white female; Juror No. 9, a white male; and Juror No. 12, a black female. [Id. at 27, 32.] Petitioner asked the court to identify Juror No. 12, and Petitioner objected to the peremptory challenge:
PETITIONER: Who is that?
COURT: The short black lady with a coat on.
MR. GOTKIN: Is that the one that talks with an accent?
COURT: Yes.
STATE: She's Haitian.
COURT: Okay, you wanted to make an objection?
PETITIONER: That's correct. I don't think-I don't remember any specific answers that she gave that may qualify her being a preempt challenge. Can you state for the record?
COURT: You are only asking to qualify her, not the first two?
PETITIONER: No.
COURT: Ordinarily, you have to show there was a pattern of strikes if you want to invoke a Batson challenge, however for the preservation of the Appellate record, I'll let you give a reason.
STATE: [Juror No. 12] spoke in a very thick accent. I could barely understand her. This is a case that is going to involve D.N.A. evidence which is not ridiculously complex, but could be difficult to understand for people that speak English fluently and regularly. So that being the case that was one of the things I took under consideration.[Id. at 27-31.] Petitioner raised a Batson challenge to the prosecution's peremptory challenge as to Juror No. 12. [Id., at 28.] The trial court found that there was no pattern of invidious strikes, as the prosecution's first three peremptory strikes were against two white individuals and one black individual, and that the prosecution's basis for challenging Juror No. 12 was neutral. [Id. at 31-32.] Based on these findings, the trial court rejected the Batson challenge. [Id.]
Jury selection continued on January 13, 2012. [Dkt. 17-2 at 115.] The prosecution did not challenge any juror for cause. [Id. at 164.] The prosecution peremptorily challenged three potential jurors: Juror No. 1, an Asian male; Juror No. 3, who was black and female; and Juror No. 14, a white male. [Id. at 168-69.] Petitioner raised a Batson objection as to the prosecutor's challenge to Juror No. 3. [Id. at 169-71.] Petitioner alleged that the peremptory challenge was made on the basis of race, referring to the prosecution's earlier challenge to Juror No. 12. [Id. at 169-70.] He also alleged that all of the police officers who will testify in this case were white, and so the prosecution did not want anyone African-American on the jury. [Id. at 170.]
The prosecutor indicated that there was currently another potential juror who was African-American whom the prosecutor wanted to keep on the jury. [Id. at 171-72.] The prosecutor also stated that he challenged Jury No. 3 because she had informed the trial court that she had had a negative experience with the police where she felt that she was treated unfairly and may not be able to impartially consider testimony from the police witnesses. [Id. at 172.] The trial court held that the prosecution had provided race-neutral reason for the challenge and denied Petitioner's Batson objection. [Id.]
9. Trial and Sentencing
The trial commenced on January 17, 2012 and continued through January 26, 2012. [Dkt. 17-2 at 222, Dkt. 17-3 at 1,136, Diet. 17-4 at 1,128.] Mr. Gotkin was present as Petitioner's legal advisor and was available to consult with Petitioner throughout the entire proceeding. [Dkt. 17-2 at 223, Dkt. 17-3 at 2, 137, Diet. 17-4 at 2, 129.] On January 27, 2012, the jury returned a unanimous verdict of guilty on all charges: two counts of attempted robbery in the first degree; one count of attempted robbery in the second degree; one count of assault in the second degree; and one count of possession of a weapon in the second degree. [Dkt. 17-4 at 288-89.]
Petitioner appeared for sentencing on April 5, 2012 with Mr. Gotkin. [Dkt. 17-4 at 293.] The trial court conducted a persistent violent felony offender hearing and Petitioner was sentenced as a mandatory persistent violent felon. [See Dkt. 17-4 at 2, 4-5.] The trial court sentenced Petitioner to a prison term of 18 years to life for attempted first degree robbery and second degree possession charges, and 14 years to life on the second degree attempted robbery and second degree assault charges. [Id. at 307-08.] The trial court ordered that the sentences would be served concurrently. [Id. at 308.]
10. Motion to Vacate Judgment of Conviction
Petitioner filed a pro se motion to vacate the judgment of conviction pursuant to New York Criminal Procedure Law § 440.10, dated June 1, 2014 and received by the court on June 23,2014. [Dkt. 16-2 at 4-13.] Petitioner raised three grounds. First, he argued that he was constructively denied counsel, "and/or ineffective assistance of counsel." [Id. at 5.] Specifically, Petitioner argued that he was deprived the right to counsel when he was arraigned on the initial indictment and denied the right to his choice of counsel during the December 2010 grand jury proceedings. [Id. at 6.] He also argued that his waiver of counsel at the initial arraignment should not have constituted a valid waiver of counsel for the second grand jury proceeding. [Id. at 11.]
Second, Petitioner claimed misconduct by the prosecution and the trial court, citing "misrepresentations and fraud." [Dkt. 16-2 at 5.] Specifically, Petitioner alleged that: (1) the grand jury indictment was obtained illegally and fraudulently; (2) the court and the prosecution ignored Petitioner's request for a protective order against obtaining his DNA; (3) Petitioner was deprived of the right to a fair trial; (4) the prosecution failed to establish the chain of custody for the gun; (5) the judge "created his own facts"; (6) police denied Petitioner the right to an attorney upon arrest; and (7) the indictment was based on insufficient evidence to identify Petitioner. [Id. at 6-12.]
Third, Petitioner argued that he was actually innocent of the crimes based on newly discovered evidence. [Dkt. 16-2 at 5.] But the "newly discovered evidence" that Petitioner attached to his motion was the affidavit from his public defender for his initial grand jury proceedings that described the events that lead to the public defender withdrawing as counsel. [Id. at 43-45.] On July 28, 2014, Petitioner filed an addendum to his CPL § 440.10 motion. [Dkt. 28 at 50-62.] The addendum largely reiterated the arguments in Petitioner's motion to vacate the judgment. [See id.] The People opposed the motion to vacate on August 15, 2014. [Id. at 64-69.]
The trial court denied the motion on September 15, 2014. [Dkt. 1 at 39-41.] The trial court dismissed Petitioner's arguments, finding that many of them should be raised on direct appeal, and holding that Section 440.10 "makes clear that matters of record that are appealable or pending appeal cannot form the basis of a motion to vacate judgment." [Id. at 39-40.] The trial court specifically denied Petitioner's claim of ineffective assistance of counsel, his claims relating to the trial court's written decisions, his claims regarding the sufficiency of the Grand Jury proceedings, his allegations that the trial court "introduced its own factual findings", and his claims of actual innocence, because such claims were matters of the record to be decided on direct appeal. [Wat 40.] Petitioner's remaining arguments were denied on the merits. [Id]
Petitioner sought to appeal the trial court's denial, which the Appellate Division summarily denied on December 29, 2014. People v. Brims, 2014 WL 7356615 (N.Y.App.Div. Dec. 29, 2014). Petitioner filed to appeal the denial, which the Court of Appeals summarily dismissed on May 7, 2015. People v. Brims, 34 N.E.3d 372 (N.Y. 2015). Petitioner also filed for leave to reargue his appeal before the Appellate Division, which was summarily denied on April 29, 2015. People v. Brims, 2015 WL 1920320 (N.Y.App.Div. Apr. 29, 2015). On July 3, 2015, Petitioner filed a letter with the New York Court of Appeals, seeking leave to appeal the Appellate Division's April 29, 2015 decision denying Petitioner's direct appeal of the 440.10 motion. [Dkt. 16-2 at 80-86.] This letter was summarily dismissed on August 28, 2015 on the basis that the order Petitioner sought to appeal was not appealable under CPL § 450.90(1). [Dkt. 16-2 at 119]; see also People v. Brims, 38 N.E.3d 835 (N.Y. 2015).
11. Direct Appeal
Petitioner, through counsel, appealed his conviction to the New York Appellate Division, Second Department, on August 12,2014. [Dkt. 16-2 at 124-71.] Petitioner's initial brief raised the following claims: (1) the trial judge erred by declining to recuse himself after Petitioner had filed the civil rights action; (2) the trial court erred in denying Petitioner's Batson objection as to prospective Juror No. 3, and by denying Petitioner's challenge for cause to a potential jury who was aware of an article about Petitioner's prior convictions; (3) the trial court should have suppressed physical evidence, namely Petitioner's boots, under Mapp and Dunaway; (4) the trial court erred by allowing the state to ask Petitioner about certain crimes under Sandoval; (5) the trial court erred by allowing Petitioner to represent himself at trial; (6) there was insufficient evidence of guilt; (7) ineffective assistance of trial counsel; and (8) the sentence was harsh and excessive. [Id] The state submitted its brief in opposition on January 26; 2015. [Dkt. 16-3 at 9-].
Prior to filing the brief, Petitioner sent his appellate counsel a letter dated July 26, 2014, noting some factual errors in the brief and requesting his counsel to revise some of the arguments in the brief. [Dkt. 16-6 at 11-14.] Appellate counsel responded by letter dated August 12, 2014, stating that he had already submitted the brief and that he incorporated Petitioner's comments regarding the factual errors. [Diet. 16-2 at 122.] Appellate counsel also stated that Petitioner could "file a motion to submit a pro se brief to brief those issues that I did not brief and/or put additional support to the issues briefed." [Id] By motion dated August 25, 2014, Petitioner moved to have his appellate counsel removed or, in the alternative, have appellate counsel brief certain grand jury issues. [See Id. at 121.] Appellate counsel responded by letter dated September 5, 2014, stating that he could not make the arguments regarding the grand jury because they did not have access to the grand jury transcript and further stating that the arguments were without merit. [Id.]
On March 6, 2016, Petitioner filed a pro se supplemental brief that raised six additional grounds that his counsel had not raised in the original brief. [Dkt. 16-3 at 11 -69.] In his supplemental brief, Petitioner argued that: (1) the court lacks jurisdiction over Petitioner because the detective that drafted the felony complaint perjured himself; (2) the indictment was a byproduct of a "perjured felony complaint and prosecutorial misconduct"; (3) the trial court was not fair and impartial as it "created its own facts" in several decisions and orders; (4) Petitioner was deprived of his right to counsel because he was not assigned an attorney until the morning of the grand jury proceeding and he did not knowingly or intelligently waive his right to counsel or immunity at his second grand jury presentation; (5) the verdict was against the weight of the evidence that he possessed a weapon on December 16, 2010; and (6) there was a "mode of proceeding error" because one of the jurors was biased against Petitioner. [Id. at 29-68.] In his argument that the trial court "created its own facts", Petitioner referenced the trial court's decision on Petitioner's motion for a speedy trial and claimed that the state never opposed the motion but that the trial court fraudulently found that the state did indeed oppose the motion. [Id. at 51-52.] The state submitted its brief in opposition on May 20, 2016. [Dkt. 16-3 at 97.]
Petitioner's brief was titled "Amended Pro Se Supplemental Brief. Based on the letter submitted with the brief, it seems Petitioner intended to amend the brief filed by appellate counsel. [Dkt. 16-3 at 11.]
The Appellate Division considered both the brief submitted by Petitioner's appellate counsel, as well as Petitioner's pro se filings, and affirmed the judgment by decision dated December 28, 2016. People v. Brims, 45 N.Y.S.3d488, 489-91 (App. Div. 2016). The Appellate Division held that the trial court "providently exercised his discretion in declining to recuse himself," and Petitioner had failed to establish a basis for recusal. Id. at 489. The Appellate Division further held that the trial court properly denied Petitioner's Batson challenges because the prosecutor had "offered race-neutral reasons for exercising the peremptory challenges, and there was no basis in the record to conclude that those reasons were pretexted" Id. at 490. Additionally, the Appellate Division found that Petitioner's challenge for cause was properly denied because the prospective juror stated unequivocally that he could be impartial. Id.
Next, the Appellate Division dismissed Petitioner's claim that his conviction was not supported by legally sufficient evidence because it was unpreserved for appellate review, but held nonetheless that the evidence was legally sufficient to support the convictions, and the convictions were not against the weight of the evidence. Brims, 45 N.Y.S.3d at 490. The Appellate Division found that Petitioner had made a "knowing, voluntary, and intelligent decision to waive his right to counsel and proceed pro see Id. Regarding Petitioner's Mapp and Dunaway challenge as to the admissibility of his boots, the Appellate Division dismissed this claim as "academic" because the boots were never admitted into evidence at trial. Id. The court further held that the imposed sentence was not excessive. Id. The Appellate Division also held that Petitioner's Sandoval claim was unpreserved for appellate review but also without merit. Id.
Turning to the Petitioner's pro se supplemental brief, the court held that Petitioner's claims concerning the integrity of the grand jury proceeding were partially unpreserved and also without merit. Brims, 45 N.Y.S.3d at 490-91. The court held that Petitioner's argument that the indictment was based on insufficient facts was foreclosed based on his conviction by a jury verdict, and further held that his contention that the prosecutor improperly crossed examined him at the grand jury was without merit. Id. at 491. The court further found that Petitioner's claim that the trial court was biased was unpreserved and without merit, and that his claim that the trial court improperly questioned one of the witnesses was also unpreserved and also without merit. Id. Finally, the Appellate Division denied Petitioner's remaining claims, holding that they were without merit. Id.
Following the Appellate Division's denial, on March 7, 2017, Petitioner's appellate counsel sought leave to appeal before the New York Court of Appeals. [Dkt. 1 at 19.] In the application, Petitioner's appellate counsel argued that the Appellate Division erred when it (1) held that the trial court was correct to not recuse itself; (2) held that Petitioner's Batson challenge was properly denied and that the Petitioner's challenge for cause to an exposed juror was properly denied; (3) decided that the evidence was sufficient to support Petitioner's conviction; (4) decided that Sandoval was unpreserved and that the suppression of evidence was without merit; and (5) held that Petitioner did not receive ineffective assistance of counsel. [Id.] Appellate counsel also reiterated the arguments that Petitioner made in his pro se brief [Id]
In addition to appellate counsel's leave application, Petitioner also filed a series of pro se letters and motions. [See Dkt 16-3 at 123-131, 167-74.] Included among these filings was Petitioner's motion dated March 13, 2017, whereby Petitioner sought to strike his appellate counsel's application as erroneous and frivolous, and requested leave to appeal the Appellate Division's denial of Petitioner's motion to terminate appellate counsel. [Dkt. 16-3 at 128-31.] Petitioner then submitted a two part leave application. [Dkt. 16-3 at 137-53.] In the first part of the leave application, Petitioner sought review of the Appellate Division's ruling on the points he raised in his pro se supplemental brief. [Id. at 138-39.] In the second part of his leave application, Petitioner sought review of the Appellate Division's denial of Petitioner's motion to relieve appellate counsel and assign new counsel. [Id. at 147-48.] In support of his argument, Petitioner contended that appellate counsel rendered less than meaningful representation because he failed to argue Petitioner's Batson challenge to Juror No. 12. [Id. at 151-52.] On May 16, 2017, the state submitted a letter in opposition to Petitioner's leave application. [Id. at 164.]
The Two part application is undated except it indicates that it was from some time in March 2017. [Dkt. 16-3 at 146, 153.]
By decision dated May 3, 2017 the Court of Appeals summarily denied Petitioner's request for leave to appeal the Appellate Division's December 28, 2016 decision affirming the trial court's judgments. People v. Brims, 29 N.Y.3d 1029 (2017).
12. Motion a Writ of Error Coram Nobis
On August 20, 2017, Petitioner, pro se, filed a motion for a Writ of Error Coram Nobis with the Appellate Division. [Dkt 16-4 at 34-44.] Petitioner claimed he received ineffective assistance of appellate counsel because his attorney failed to make the following arguments on direct appeal: (1) Petitioner was deprived of his right to counsel that re-attached upon the state's motion to consolidate the second indictment; (2) the trial court failed to make a searching inquiry to determine whether petitioner knowingly and intelligently waived his right to an attorney, which Petitioner claimed was a "mode of proceeding error"; (3) the indictment was jurisdictionally defective when the prosecution withdrew the gun charge from the original indictment; (4) Petitioner was denied his right to a speedy trial; and (5) the sentence was excessive because the court erroneously held that he was a persistent felony offender. [Id. at 40.] Petitioner also argued that the appellate court abused its discretion by declining to relieve Petitioner's appellate counsel, the trial court erred or abused its discretion when it denied Petitioner's motion to suppress evidence obtained in connection with the search of his apartment, and the trial court erred when it stated that the prosecution opposed Petitioner's speedy trial motion. [Id. at 40-4 L]
On November 28, 2017, the state submitted its opposition to Petitioner's motion for a Writ of Error Coram Nobis. [Diet. 1640 at 3-8.] By decision and order dated January 24, 2018, the Appellate Division denied the motion on the basis that Petitioner had failed to establish ineffective assistance of appellate counsel and did not address Petitioner's remaining claims. People v. Brims, 67 N.Y.S.3d 498 (App. Div. 2018).
Some time in February 2018, Petitioner moved for leave to appeal to the Court of Appeals. [Dkt. 16-10 at 11-17.] He argued, again, that he was denied assistance of appellate counsel, because appellate counsel failed to argue that the trial court did not engage in a searching inquiry as to Petitioner's decision to proceed pro se, and raise arguments concerning the "mode of proceeding error". [Id. at 12, 15-16.] Petitioner also argued that the Appellate Division should not have declined to relieve his appellate counsel, and again alleged that the trial court "creat[ed] its own facts." [Id. at 12.] Petitioner also raised a new argument that his appellate counsel had sent him disparaging letters. [Id. at 12, 16.] On March 9, 2018, the state submitted a letter in opposition to Petitioner's leave application. [Id. at 18.] The Court of Appeals denied Petitioner's application on April 20, 2018. People v. Brims, 102 N.E.3d 1062 (Table) (2018).
The motion is undated except it indicated that it was from some time in February 2018 [Dkt 16-10 at 17.]
13. Proceedings Before This Court
Petitioner signed the instant Petition and delivered it to prison officials for mailing on July 27, 2018. [Dkt. 1 at 16.] The Petition was received by the Clerk's Office and filed on August 2, 2018. [Id]
On November 13, 2018 Petitioner requested the Court to issue an order for the Respondent to answer the Petition or engage in discovery and to answer certain interrogatories proposed by the Petitioner. [Dkt. 10.] The Respondent opposed Petitioner's request on November 19, 2018. [Dkt. 11.] By decision dated November 20, 2018, this Court denied Petitioner's request without prejudice. [Dkt. 12.]
On November 26, 2018, Petitioner filed another letter request for discovery asserting good cause based on the factual allegations made in his Petition, namely that he was wrongfully incarcerated. [Dkt. 13.] The Respondent filed a response in opposition to the Petition on December 21, 2018. [Dkt. 16, 17.] Petitioner filed his reply on April 19, 2019. [Dkt. 28.] Petitioner renewed his request for discovery on April 30, 2020, seeking answers to identical interrogatories as in his initial request, as well as an evidentiary hearing. [Dkt. 33.] Petitioner continued making "renewed" requests for discovery, raising the same arguments as in his previous requests, between May and July 2020. [Dkt. 34-35, 37-38.] By order dated March 18, 2021, the request was denied. [Dkt. 40.]
Most recently, by motion dated December 3, 2021, Petitioner sought to strike portions of the Respondent's answer, alleging that certain statements were misleading. [Dkt. 45.]
III. APPLICABLE LAW
"Habeas review is an extraordinary remedy." Bousley v. United States, 523 U.S. 614, 621 (1998) (citing Seed 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. 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 presented] his claim in each appropriate state court (including a state supreme com! with powers of discretionary review), thereby alerting that court to the federal nature of the claim," and thus "giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotation marks and citations omitted). "Because non-constitutional claims are not cognizable in federal habeas corpus proceedings, a habeas petition must put state courts on notice that they are to decide federal constitutional claims." 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. Att'y Gen. 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).
B. Procedural Default
Even where an exhausted and timely habeas claim is raised, comity and federalism demand that a federal court abstain from its review when the last-reasoned state court opinion to address the claim relied upon "an adequate and independent finding of a procedural default" to deny it. Harris, 489 U.S. at 262; see also Coleman v. Thompson, 501 U.S. 722, 730 (1991); Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); Levine v. Comm'r of Corr. Servs., 44F.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)).
The Supreme Court has held that a federal court may review a claim that is procedurally barred if the petitioner can show a "miscarriage of justice," which occurs where a petitioner is "actually innocent of the crime for which he has been convicted." Cotto v. Herbert, 331 F.3d 217, 239 n.10 (2d Cir. 2002); see Coleman v. Thompson, 501 U.S. 722, 729 (1991).
C. AEDPA Standard of Review
Before a federal court can determine whether a petitioner is entitled to federal habeas relief, the court must determine the proper standard of review under AEDPA for each of the petitioner's claims. 28 U.S.C. § 2254(d)(1)-(2). This statute "modifie[d] the role of federal habeas corpus courts in reviewing petitions filed by state 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 filed the instant petition in a timely manner. Petitioner's pro se submissions must be interpreted liberally to raise the strongest arguments they suggest. See, e.g., Janakievslu v. Exec. Din, Rochester Psychiatric Or., 955 F.3d 314, 319 (2d Cir. 2020). Petitioner raises the following grounds in this Petition: (1) the prosecutor impermissibly struck prospective Juror No. 12 due to her race; (2) the trial court erred in allowing Petitioner to represent himself; (3) the trial judge should have recused himself; (4) Petitioner's appellate counsel was ineffective; (5) the ruling on Petitioner's CPL § 440 motion seemed to indicate that issues were preserved, but the Appellate Division found that such issues were not preserved; (6) the trial court erred in denying Petitioner's motion to a speedy trial; and (7) the Appellate Division improperly denied review of Petitioner's claim that he was denied counsel at critical stages. [Dkt l.]
Parts of Petitioner's Traverse can also be construed to raise the following additional arguments:
(1) the prosecution impermissibly struck Juror No. 3; (2) the trial judge should have reassigned Petitioner's CPL 440 motion to another judge; and (3) Petitioner was arraigned on a perjured felony complaint. [Dkt. 28.]I recommend that Your Honor decline to consider these arguments. See Parker v. Smith, 858 F.Supp.2d 229, 233 n.2 (N.D.N.Y. 2012) ("To the extent that petitioner's traverse could be read to raise new arguments that are not in his petition, they will not be considered because a traverse or reply is not the proper pleading in which to raise additional grounds for habeas relief")
A. Ground 1: Petitioner's Batson Claim
Petitioner first argues that the prosecutor impermissibly struck Juror No. 12 because of her race. [Dkt. 1 at 6.] Petitioner's Batson claim has been properly exhausted as the Appellate Division addressed it in Petitioner's direct appeal and Petitioner raised it in his leave application. See People v. Brims, 45 N.Y.S.3d 488, 490 (App. Div. 2016) ("The defendant's Batson challenges to the prosecutor's exercise of peremptory challenges to black prospective jurors were properly denied." (internal citation omitted)); see also Dkt. 1 at 20; Dkt. 16-3 at 151.
Petitioner's Batson challenge on direct appeal focused on Juror No. 3, not Juror No. 12. [Dkt. 16-2 at 142-45.] However, the state's briefing addressed both challenges, and the Appellate Division likewise discussed both challenges. See People v. Brims, 45 N.Y.S.3d at 490; see also Dkt. 16-2 at 194-99. Petitioner's Batson challenge to Juror No. 12 was therefore fairly presented to the state court, so I recommend Your Honor treat this claim as exhausted.
The Supreme Court held in Batson that "[although a prosecutor ordinarily is entitled to exercise permitted peremptory challenges for any reason at all, as long as that reason is related to his view concerning the outcome of the case to be tried, the Equal Protection Clause forbids the prosecutor to challenge potential jurors on account of their race." 476 U.S. at 89 (internal quotation marks and citation omitted). To determine whether a prosecutor's challenge is unconstitutional on this basis, the court must employ a three-step procedure:
First, the defendant must make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. Second, once the defendant has made out a prima facie case, the burden shifts to the State to explain adequately the racial exclusion by offering permissible race-neutral
justifications for the strikes. Third, if a race-neutral explanation is tendered, the trial court must then decide whether the opponent of the strike has proved purposeful racial discrimination.Johnson v. California, 545 U.S. 162, 168 (2005) (internal citations, quotations, and alterations omitted). The Supreme Court has also held that a trial court's determination of the reason for a prosecutor's peremptory challenge constitutes a finding of fact. Bryant v. Speckard, 131 F.3d 1076, 1077 (2d Cir. 1997). Under AEDPA review, this determination is entitled to considerable deference from a federal court, and is presumed correct unless the habeas petitioner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
In order for this Court to overturn the state court's findings, it must find that the state court's conclusion was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). Respondent argues that the state court's decision denying the claim was neither contrary to, nor an unreasonable application of, clearly established federal law. Respondent is correct. The Appellate Division appropriately applied Batson in concluding that the prosecution offered appropriate race-neutral reasons for striking the prospective juror. People v. Brims, 45 N.Y.S.3d 488, 490 (App. Div. 2016). Such a conclusion is not "opposite to that reached by [the Supreme Court] on a question of law," nor is it decided "differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413.
The trial court found that the prosecution's race-neutral reason for striking Juror No. 12 was "a sufficient reason." [Diet. 17-1 at 32.] This finding is entitled to deference and a "presumption of correctness." Bryant, 131 F.3d at 1077. Petitioner bears "the burden of rebutting this presumption" with "clear and convincing evidence." 28 U.S.C. § 2254(e)(1). Further, although "[Reasonable minds reviewing the record might disagree about the prosecutor's credibility,... on habeas review that does not suffice to supercede the trial court's credibility determination." Rice v. Collins, 546 U.S. 333, 334-35 (2006). Petitioner argues that the "stenographer never asked the juror to repeat herself and that "no one (beside[s] prosecutor) had a problem understanding the juror." [Dkt. 1 at 6.] This argument presents neither "clear and convincing" evidence, nor can it overcome the trial court's credibility determination. A review of the record also reveals that it is reasonable to conclude that the prosecutor's reason not pretextual. Accordingly, given the state court's presumptively correct factual finding, it cannot be said that the Appellate Division's decision was either contrary to, or an unreasonable application of, Batson. Thus, I recommend that this claim be denied.
B. Ground 2: Petitioner's Self-Representation
Petitioner next argues that the trial court erred in permitting him to represent himself. [Dkt. 1 at 8.] Petitioner further argues that the trial court "initiated" his self-representation and provided him with "erroneous sentencing information." [Id] Petitioner also claims that the trial court failed to warn him that he would have to represent himself for any future indictment. [Id.] For the reasons discussed below, Petitioner's arguments that the trial court initiated his self-representation and failed to warn him that he would have to represent himself on any future indictment are unexhausted but deemed exhausted and procedurally barred. Petitioner's remaining argument is without merit as he knowingly and voluntarily waived his right to counsel and decided to proceed pro se.
1. Exhaustion and Procedural Bar
Construed liberally, Petitioner raised the claim that the trial court erred in allowing Petitioner to represent himself and provided him with "erroneous sentencing information" on direct appeal. [Dkt. 16-2 at 156.] On direct appeal, Petitioner argued that during the questioning for waiving his right to counsel, the trial judge had indicated that Petitioner would not be sentenced as a predicate felon, but later Petitioner was indeed later sentenced as a predicate felon. [Dkt. 16-2 at 156-57.] In reviewing this claim on direct appeal, the Appellate Division found that "the record, as a whole, demonstrates that he made a knowing, voluntary, and intelligent decision to waive his right to counsel and proceed pro se" Brims, 45 N.Y.S.3d at 490. Petitioner also reasserted this argument in his leave application for appeal. [Dkt. 1 at 20.] This claim became fully exhausted when the Court of Appeals upheld the Appellate Division's decision. People v. Brims, 84 N.E.3d 970 (N.Y. 2017). In light of the foregoing, this particular argument has been properly exhausted.
Respondent argues that Petitioner's claim that he was not adequately warned that he would have to represent himself on future indictments is unexhausted. [Dkt. 16 at 32-33.] Respondent is correct. On direct appeal, in his pro se supplemental brief, Petitioner argued that he did not knowingly and intelligently waive his right to counsel when testifying in the grand jury proceedings for the second indictment. [Dkt. 16-3 at 60.] In contrast, Petitioner is now arguing that the trial court failed to warn him that he would have to represent himself on any future indictment. [Dkt. 1 at 8.] Because Petitioner did not raise this particular claim on direct appeal, this claim is unexhausted. Although unexhausted, Petitioner "no longer has remedies available in the courts of the State" for this record-based claim. Grey, 933 F.2d at 120; see N.Y. Crim. Proc. Law § 440.10(2)(c). Thus, the claim is deemed exhausted but procedurally barred. Petitioner may overcome this if he can show actual innocence or cause for the procedural default and resulting prejudice. Schlup, 513 U.S. at 315; Harris, 489 U.S. at 262. However, Petitioner makes no such showing here and as a result, this Court cannot review this claim.
Similarly, Petitioner's argument that the trial court "initiated" his self-representation is also deemed exhausted and procedurally barred. Petitioner did not raise this argument in his direct appeal, or in his leave application. There are also no remedies available for Petitioner in state court. Petitioner further does not claim actual innocence or demonstrate cause and prejudice. Thus, this Court cannot review this claim either.
2. Merits
Given that Petitioner properly exhausted the argument that the trial court erred in allowing Petitioner to represent himself and provided him with "erroneous sentencing information", the Court proceeds to the merits of Petitioner's argument. As stated above, in order to overturn the state court's findings, the court must find that the state court's conclusion is contrary to Supreme Court law, or an unreasonable interpretation of the facts. 28 U.S.C. § 2254(d).
Here, the Appellate Division found that "the record, as a whole, demonstrates that he made a knowing, voluntary, and intelligent decision to waive his right to counsel and proceed pro se." Brims, 45 N.Y.S.3d at 490. This conclusion is not contrary to Supreme Court law. Supreme Court law provides that "the Sixth Amendment right to the assistance of counsel implicitly embodies a correlative right to dispense with a lawyer's help." Faretta v. California, ATI U.S. 806, 814 (1975) (internal quotations omitted). It further provides that "[although the [trial] court should strive for a full and calm discussion with the defendant to assure that he fully understands his decision, we have declined to mandate any particular talismanic procedures to this end. In short, the record must establish that a defendant knew what he was doing and his choice was made with eyes open." United States v. Hurtado, 47 F.3d 577, 583 (2d Cir. 1995) (internal citations and alterations omitted).
The trial court here engaged in an extensive line of questioning to confirm that Petitioner wished to proceed pro se. [Dkt. 17-6 at 4-42.] During the questioning, the trial court raised the issue of Petitioner's status as a predicate felon. [Id. at 27.] This part of the questioning occurred as follows:
COURT: You're a predicate felon but you wouldn't be sentenced as a predicate felon because it appears, and I haven't decided it, it appears your last conviction was in '92, you got two to four.
PETITIONER: Exactly.
COURT: But you picked up some misdemeanors in the meantime which might toll some of that time.
PETITIONER: Okay.
COURT: You know what I'm saying? Right now I'm just looking at it and it looks like you're not a predicate felon but the People may come up and say listen, he did -
PETITIONER: I'm sure they will.
COURT: If the time period slots don't show that you qualify as a predicate felon they could stand on their head and they couldn't make it. You understand what I'm saying? That's a black and white issue, does the time period fit. That's it. But the point is, even without that you're looking at a minimum of 5 to 25 years on a sentence, even if you're not a predicate here, if they're successful.
PETITIONER: Uh-huh.[Id] Petitioner contends that this was "erroneous sentencing information." However, under Supreme Court law, the trial court only needed to engage in a line of questioning sufficient to establish that Petitioner knew he was waiving his right to counsel and made such a decision with eyes wide open. Hurtado, 47 F.3d at 583. There is no requirement that the trial court also provide Petitioner with an accurate assessment of his prospects at sentencing. Thus, the trial court's line of inquiry was appropriate and the Appellate Division's holding was not contrary to Supreme Court law.
The Appellate Division's holding was also not an unreasonable interpretation of the facts. Here, the trial court repeatedly asked Petitioner if he was certain he wished to proceed pro se. [Dkt. 17-6 at 3-4, 8-42.] Multiple times, Petitioner responded to this inquiry "[e]mphatically, yes." [Dkt. 17-6 at 12,13, 42.] Further, Petitioner's contention that he was provided with "erroneous sentencing information" is belied by the record as the trial judge flagged the predicate felon issue but did not predict how it would come out. [Dkt. 17-6 at 27.] Given the foregoing, there is nothing on the record that indicates that the Appellate Division's holding was unreasonable. Accordingly, this claim must be denied.
C. Ground 3: The Trial Judge's Recusal
Petitioner's argument for his third ground is that the trial judge should have recused himself, because he was biased against Petitioner. [Dkt. 1 at 9.] For the reasons below, this claim is without merit.
1. Exhaustion and Procedural Bar
Petitioner's claim that the trial judge should have recused himself has been properly exhausted. Petitioner raised the claim in his direct appeal to the Appellate Division. The Appellate Division held that "the defendant did not establish a basis for recusal pursuant to Judiciary Law § 14, and failed to set forth any proof of bias or prejudice on the part of the court." Brims, 45 N.Y.S.3d at 490. Petitioner also raised this claim in his counseled leave application. Respondent argues that the Court should find that Petitioner failed to exhaust this claim because Petitioner's appellate counsel raised the argument in his brief, but Petitioner later moved to strike appellate counsel's leave application. [Dkt. 16 at 42.] In support of this argument, Respondent contends that Petitioner specifically stated in his motion to strike that this claim is without merit, and as such, Petitioner did not mean to raise the claim in an appeal. [Id.] However, as Respondent noted, based on the record, it seems that the Court of Appeals never issued a decision on Petitioner's motion to strike. [Id.] Thus, appellate counsel's brief was never struck and still "fairly presented]" Petitioner's arguments to the Court of Appeals. Baldwin, 541 U.S. at 29. For this reason, this claim was properly exhausted.
In his Petition, Petitioner argues that the trial judge should have recused himself because Petitioner filed federal civil rights claim and because Petitioner filed a judicial conduct complaint against him. [Dkt. 1 at 9.] However, Petitioner did not raise the argument that the trial judge should have recused himself due to the judicial conduct complaint in his direct appeal or his leave application. Accordingly, this claim is unexhausted, but deemed exhausted because Petitioner "no longer has remedies available in the courts of the State." Grey, 933 F.2d at 120. Thus, this claim is deemed exhausted but procedurally barred, and the merits analysis concerns only Petitioner's argument that the trial judge should have recused himself because Petitioner.
2. Merits
In order to prevail, Petitioner must show that the state court's determination was contrary to Supreme Court law, or was an unreasonable interpretation of the facts. 28 U.S.C. § 2254(d). Petitioner fails to do either.
Petitioner argues that the trial judge was biased against him because he filed a federal civil rights action against the trial judge. The Appellate Division recognized Petitioner's federal due process claim and stated the federal standard: "Recusal, as a matter of due process, is required only where there exists a direct, personal, substantial or pecuniary interest in reaching a particular conclusion, or where a clash in judicial roles is seen to exist." Brims, 45 N.Y.S. 3d at 490 (citing People v. Alomar, 711 N.E.2d 958, 962 (N.Y. 1999) (citations omitted) (citing Tumey v. Ohio, 273 U.S. 510, 523 (1927); In re Murchison, 349 U.S. 133 (1955)). The Appellate Division applied this standard, addressed Petitioner's claim on the merits, and concluded that Petitioner "failed to set forth any proof of bias or prejudice on the part of the court." Id. This holding is not contrary to federal law, because "there is no federal law that requires automatic recusal when there is pending litigation between the presiding judge and a party because such a rule would allow a pending litigant to 'judge shop' simply by filing a lawsuit against the presiding judge." Powell v. Graham, 2013 WL 37565, at * 10 (E.D.N.Y.Jan. 3, 2013) (collecting cases). Further, as the Supreme Court noted, "[w]e cannot assume that judges are so irascible and sensitive that they cannot fairly and impartially deal with resistance to their authority or with highly charged arguments about the soundness of their decisions." Ungar v. Sarafite, 376 U.S. 575, 584 (1964). Thus, Petitioner has failed to demonstrate that the Appellate Division's holding was contrary to Supreme Court law. There is also no evidence in the record, much less clear and convincing evidence, that the Trial Judge had a "direct, personal, substantial or pecuniary interest" that would require recusal. Tumey, 273 U.S. at 523. In light of the lack of evidence, the Appellate Division's holding that the Trial Judge did not need to recuse himself was not an unreasonable interpretation of the facts. Accordingly, I recommend that Your Honor deny this claim.
The Appellate Division's holding also found that Petitioner failed to "establish a basis for recusal pursuant to Judiciary Law § 14" Brims, 45 N.Y.S. 3d at 490. To the extent that the Petition is premised on any alleged violation of Judiciary Law § 14, Judiciary Law § 14 is a state law and as a result it is not cognizable in habeas. See Brown v. Senkowski, 152 Fed.Appx. 15, 18 (2d Cir. 2005); see also Wilson v. Corcoran, 562 U.S. 1, 5 (2010).
Copies of unreported cases cited herein will be mailed to Petitioner as a pro se litigant. See Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
D. Ground 4: Ineffective Assistance of Appellate Counsel
In his next claim, Petitioner argues that he was denied his "constitutional right to appellate counsel on direct appeal." [Dkt. 1 at 11.] He specifically claims that his appellate counsel failed to communicate with him, [Id] Petitioner's claim has been exhausted as he filed a writ of error coram nobis and, construed liberally, alleges that there was a lack of effective communication with his counsel. [Dkt. 16-4 at 39.] Petitioner's claim became fully exhausted when the Appellate Division held that Petitioner "failed to establish that he was denied the effective assistance of appellate counsel" and the Court of Appeals denied Petitioner's leave to appeal. People v. Brims, 61 N.Y.S.3d 498 (Mem) (App. Div. Jan. 24, 2018); see People v. Brims, 102 N.E.3d 1062 (Table) (N.Y. 2018).
Petitioner also argues that the Appellate Division denied Petitioner's motion to relieve appellate counsel and his writ of error coram nobis "without minimum inquiry." [Dkt. 1 at 11.] Although Petitioner may not agree with the Appellate Division's holdings, his arguments do not allege a violation of "the Constitution, laws or treaties of the United States", and as such this Court cannot review them. 28 U.S.C. § 2254(a).
For this Court to overturn the Appellate Division's findings, Petitioner must demonstrate that they were contrary to Supreme Court law, or that the Appellate Division made an unreasonable interpretation of the facts. In order to establish a claim for ineffective assistance of appellate 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, 575 U.S. 312, 316-17 (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.
Here, Petitioner claims that his appellate counsel failed to communicate with him and that as a result he was deprived of effective assistance from his appellate counsel. Petitioner's appellate counsel's representation does not fall "below an objective standard of reasonableness." Strickland, 466 U.S. at 694, Petitioner's claim that his appellate counsel failed to communicate with him flies in the face of the record, which demonstrates that appellate counsel and Petitioner exchanged correspondence regarding Petitioner's appellate brief. [Dkt. 16-2 at 121-123, Dkt, 16-3 at 133-36.] Even if the record indicated that Petitioner's appellate counsel did not communicate with him, without more, this would not render appellate counsel's assistance ineffective. See Proctor v. McCarthy, 2020 WL 1149660, at *22 (S.D.N.Y. Mar. 10, 2020) ("The failure to consult with a client on appellate briefing does not, without more, amount to ineffective assistance of counsel"). Petitioner also does not indicate how appellate counsel's alleged failure to communicate with him prejudiced him. Thus, the Appellate Division's determination that Petitioner did not receive ineffective assistance of counsel is neither contrary to Supreme Court law, nor an unreasonable application of the facts. Accordingly, I recommend that Your Honor deny this claim.
E. Ground 5: Issue Preservation
Petitioner next argues that there is a conflict between the trial court's ruling on his CPL § 440 motion and the Appellate Division's subsequent decision on his direct appeal. [Diet. 1 at 17.] Petitioner complains that the trial court's statement in denying his CPL § 440 motion indicated that certain issues could "be raised on direct appeal" but that the Appellate Division later held that the issues were not preserved. [Id.] Conflating as it does CPL § 440.10(2)(b) -which proscribes § 440 review of record-based claims - with CPL § 470.05 which requires preservation via contemporaneous objection as a prerequisite to appellate review - Petitioner's argument stems from a misunderstanding of New York procedural rules and is not, in any event, cognizable on habeas review.
In the trial court's decision on Petitioner's CPL § 440 motion, the trial court noted that "Section 440.10(2)(b) of the C.P.L. makes clear that matters of record that are appealable or pending appeal cannot form the basis of a motion to vacate the judgment." [Dkt. 1 at 39.] The trial court thus held that it could not decide Petitioner's claims because they were matters of the record that could be addressed on direct appeal. [Id. at 39-40.] Contrary to Petitioner's assertion, the trial court did not indicate that these issues were preserved for appeal. [Id. at 17.] Rather, the trial court stated that under CPL § 440.10(2)(b), it could not review Petitioner's record-based claims. [Id. at 39-40.] Later, when Petitioner raised these issues on direct appeal, the Appellate Division had the opportunity to determine whether such claims had actually been preserved for review. See Brims, 45 N.Y.S.3d at 489-91. Thus, there is no conflict between the trial court's ruling on Petitioner's CPL § 440 motion and the Appellate Division's subsequent determination.
Petitioner seems to complain that application of New York procedural requirements prevented him from having certain claims reviewed. [Dkt. 1 at 17.] However, claims of error in post-conviction proceedings are not grounds for habeas review, "because federal law does not require states to provide a post-conviction mechanism for seeking relief." Word v. Lord, 648 F.3d 129, 132 (2d Cir. 2011). Accordingly, I recommend that Your Honor deny this claim.
F. Ground 6: Petitioner's Motion for a Speedy Trial
Petitioner next argues that the trial court erred in denying Petitioner's motion for a speedy trial because the state failed to oppose the motion. [Dkt. 1 at 18.] More specifically, Petitioner argues that in denying the motion, the trial court stated that the prosecution had submitted an opposition when in fact it had not. [Id. ] For the reason discussed in further detail below, Petitioner's federal speedy trial claim is deemed exhausted but procedurally barred, and Petitioner's speedy trial claim under CPL § 30.30 is not cognizable in habeas proceedings.
New York law provides two distinct paths by which a defendant may invoke speedy trial rights. The first is CPL § 30.30, which dictates how much time may elapse between the commencement of the criminal action and when the state is ready for trial. See N.Y. Crim. Proc. § 30.30(1). A § 30.30 motion implicates the defendant's statutory rights, and does not exhaust a claim concerning a defendant's federal constitutional right to a speedy trial. See Gibriano v. Att'y Gen. of N.Y., 965 F.Supp. 489, 491-92 (S.D.N.Y.1997). To exhaust a constitutional speedy trial claim, a defendant must invoke CPL § 30.20, which provides that the defendant is entitled to a speedy trial and that such trials should receive preference over civil cases and that cases where the defendant is in custody should receive preference over other criminal actions. See NY. Crim. Proc. § 30.20. Section 30.20 "embod[ies] the federal constitutional right to a speedy trial[.]" Gibriano, 956 F, Supp. at 492, A § 30.20 motion exhausts a defendant's federal right to a speedy trial. Parrish v. Lee, 2015 WL 7302762, at * 12 (S.D.N.Y. Nov. 18, 2015).
Here, Petitioner's state court speedy trial claim was based entirely on § 30.30 and the six month trial readiness rule set forth therein. [Dkt. 16-3 at 52-55.] This state law statutory claim is not cognizable on habeas review, and Petitioner may not now "federalize" the claim simply by referencing the constitutional right to a speedy trial. To the extent that Petitioner now seeks to advance a Sixth Amendment speedy trial claim, any such record-based claim is unexhaused but deemed exhausted because it is procedurally barred. See Grey, 933 F.2d at 12-21. As Petitioner has made no showing of cause and prejudice or actual innocence, this Court cannot review any such claim.
G. Ground 7: Preservation of Lack of Counsel Claim
Petitioner's final claim is that he could not argue on direct appeal that he did not have counsel at "critical stages." [Dkt. 1 at 18.] In furtherance of this argument, Petitioner alleges that, "[f]he trial court stated that the issue(s) were preserved for direct appeal" but notes that "the Appellate Court disagreed with the trial court. Thereby, defendant was denied leave to appeal via unconstitutional practice/custom adjudicating 440 motion." [Id] This is a variation on the preservation issue Petitioner raised as his fifth ground, and is again premised on Petitioner's misunderstanding of New York procedural rules. See pp. 45-46, infra.
With respect to Petitioner's claim that he did not have counsel at certain critical stages, the Appellate Division held that such a claim "is unpreserved for appellate review and, in any event, without merit." Id. at 490. The Appellate Division's holding is "an adequate and independent finding of a procedural default." Harris, 489 U.S. at 262. As a result, this court is procedurally barred from reviewing such a claim. Accordingly, I recommend that Your Honor deny this claim.
V. CONCLUSION
For the reasons set forth above, I conclude, and respectfully recommend that Your Honor conclude, that the Petition for a Writ of Habeas Corpus be denied. I recommend that no certificate of appealability be issued because reasonable jurists would not find it debatable that Petitioner has failed to demonstrate by a substantial showing that he was denied a constitutional right. See 28 U.S.C. § 2253 (c); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1)(C), Rule 72(b) of the Federal Rules of Civil Procedure, and Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts, the parties shall have fourteen (14) days from service of this Report and Recommendation to serve and file written objections. If copies of this Report and Recommendation are served upon the parties by mail, the parties shall have an additional three (3) days, or a total of seventeen (17) days, from service of this Report and Recommendation to serve and file written objections. See also Fed. R. Civ. P. 6(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. A copy of this Report and Recommendation has been mailed to:
Edward Brims 12-A-1648 Shawwagunk Correctional Facility P.O. Box 700 Wallkill, NY 12589