Opinion
21-CV-2854 (JHR) (KHP)
09-15-2023
Robert Brown, Petitioner, v. Superintendent W. Lee, Respondent.
REPORT AND RECOMMENDATION
KATHARINE H. PARKER UNITED STATES MAGISTRATE JUDGE
TO: THE HONORABLE JENNIFER H. REARDEN, United States District Judge FROM: KATHARINE H. PARKER, United States Magistrate Judge.
On August 1, 2016, Petitioner Robert Brown was convicted of seven counts of burglary, seven counts of unauthorized use of a vehicle, two counts of third-degree grand larceny, four counts of fourth-degree grand larceny, one count of tampering with physical evidence, and one count of reckless endangerment - all in connection with a series of thefts of commercial vans and the equipment inside the vans in 2014. The Appellate Division, First Department upheld his conviction except as to 2 counts. People v. Brown, 172 A.D.3d 437 (2019), leave to appeal denied, 33 N.Y.3d 1067 (2019). Petitioner is now serving an aggregate prison sentence of between 10 and 21¾ years at Coxsackie Correctional Facility.
Before me for a Report and Recommendation are Petitioner's Petition for a Writ of Habeas Corpus (ECF No. 2 (“Pet.”)) and Motion for Summary Judgment (ECF No. 40 (“Mot.”).) Petitioner's claims include legal insufficiency of the evidence; Fourth Amendment violations; misjoinder; prosecutorial misconduct; ineffective assistance of counsel; and that Petitioner's sentence is excessive, cruel, and unusual.
For the reasons stated below, I recommend that the Petition and Motion be denied, and the case dismissed.
BACKGROUND
1. Facts Giving Rise to the Convictions
Between June and November 2014, at least seven commercial vans were stolen from their parking spots in Manhattan, and in most instances, the equipment inside the vans was missing when the vans were recovered.
The first such theft was on June 12, 2014. That morning, Maurizio Taormina, the owner of N. Pagano Plumbing, parked his van near Fifth Avenue and 74th Street in Manhattan. (Taormina Tr. 137.) At around 12:30 p.m., Taormina's employees went to get supplies from the van and discovered that it was missing. (Id. at 138.) Through a GPS system connected to his cell phone, Taormina located the van in Brooklyn. (Id. at 138-39, 145.) Taormina went to the location in Brooklyn and observed Petitioner and two other men removing items from the van. He photographed Petitioner removing a copper pipe from the back of the van. (Id.; SR. 647 (People's Ex. 18).) By the time the police arrived, Petitioner was gone, as were the tools and equipment inside the van.
Citations to transcripts refer to the trial transcripts filed at ECF No. 20-13 (“Trial Transcripts”). Unless otherwise specified, citations to page numbers refer to the page number provided on the face of the document, which corresponds to the page number for specific witnesses rather than the PDF Page Number. The relevant witness transcripts begin on the following PDF Page numbers: Rossi at PDF Page 477; Reid at 513; Narvaez at 535; Collegio at 566; Rapaport at 591; Taormina at 601; Cheng at 620; Lebensohn at 626; Holcomb at 633; Senabria at 641, McCoy at 671; Houlahan at 684; and Kats at 714.
All citations to “SR.” refer to the state record filed in 9 parts at ECF Nos. 20-3 through -11.
The second theft occurred on July 1, 2014. That morning, Manuel Narvaez, a welder for Maspeth Welding, parked the company van on the corner of Fifth Avenue and 79th Street and walked to a nearby jobsite. By midday, Narvaez noticed that the van was missing. (Narvaez Tr. 73-74.) Two days later, police recovered the van in Park Slope, Brooklyn. (Collegio Tr. 107.) Officer Richard Collegio collected two fingerprints from inside the driver's side window, and Detective Edward Sanabria analyzed the prints and determined that one was a match to Petitioner, whose prints were on file due to a prior arrest. (Id. at 108, 112-15; Sanabria Tr. 184, 186, 188-89, 217-18.) The other print belonged to Narvaez.
On August 20, 2014, police arrested Petitioner as a result of the fingerprint evidence. On August 30, he made a recorded phone call from jail to an individual named Zollo who owned a fish market in Brooklyn. Petitioner tried to get Zollo to support a false alibi for the July 1 theft, stating: “[On] July first . . . from 10 to 2 p.m.... I was working part time at the store . . . Between from 9:35 when we opened up to 2 o'clock in the afternoon I was working at the store. You hear me?” Petitioner said that he would mail a letter “explaining to you what's going on.” Petitioner then told Zollo, “they have me in Manhattan. They . . . found a fingerprint. That's all. They found one fingerprint. . . It happened on July the first. But I - listen - that fingerprint came from somewhere else. I don't know nothing about it. You hear me?” (People's Ex. 27.) Petitioner was released from jail on September 2, 2014. (SR. 238-39.)
The third theft occurred on September 25, 2014. On that day, Allen Rapaport, owner of J. Rapaport Wood Flooring, parked his van near a jobsite in the West Village, Manhattan. The van was later stolen from its parking spot. (Rapaport Tr. 128-31.) Surveillance video footage showed Petitioner park the van in Long Island City, Queens the next day. (People's Ex. 16.) The video showed Petitioner, wearing a green hat, exit the van, wipe down the inside and outside of the van, and then walk away while holding a black drawstring bag with two vertical white stripes. (Id.; SR. 635.) When the van was recovered, the flooring equipment was gone. (Rapaport Tr. 130-35.)
The fourth theft occurred on October 1, 2014. Jeremy Lebensohn, owner of Studio dell'Arte, was informed by one of his employees that the company van was missing from a parking spot in the West Village near the intersection of Hudson Street and Leroy Street. (Lebensohn Tr. 162-65.) Surveillance video from a building on Leroy Street recorded Petitioner walking with a slight limp near the van around 11:30 a.m. wearing a green hat, a lanyard, and a navy Yankees jacket. (People's Ex. 7.) Forty minutes later, the video shows Petitioner return to the van holding a black drawstring bag with a white stripe and put on white work gloves with red palms. (Id.) Although Petitioner's entry into the van is obscured by a parked truck, the video shows the passenger door of the van open and shut, and six minutes later, the van drives off. (Id.) After the van drives off, Petitioner is not seen on the surveillance footage.
The fifth theft occurred on October 16, 2014. That day, Headquarters Mechanical employees notified project manager Genadiy Kats that the company van, which contained tools and materials including copper pipes, had been stolen from outside a jobsite in the Seaport District, Manhattan. (Kats Tr. 249-51.) Police later recovered surveillance footage from a nearby school that showed Petitioner park and exit the van around 12:30 p.m. that day. (People's Ex. 5.) Petitioner wore a baseball cap, lanyard, and white work gloves, and carried a black drawstring bag. (Id.) The video shows Petitioner briefly enter the back of the van and wipe down the van's exterior, including the door handles, and then walk away with an uneven gait. (Id.) When the van was recovered, most of the equipment was missing, and the ignition and back door were broken. (Kats Tr. 251-53.)
The sixth theft occurred on October 28, 2014. Chung Lam Cheng, an electrician for Interlogic Electric, parked the company's van on Hudson Street in Manhattan. The van contained electrical tools and materials. When Cheng returned an hour later to get supplies, the van was gone. (Cheng Tr. 157-59.) Surveillance video from a nearby school captured Petitioner, wearing a green hat, walking back and forth past Cheng's van carrying a black drawstring bag with white stripes and wearing a lanyard around his neck. (People's Ex. 8; SR. 639.) A few minutes later, the video shows Petitioner walk back to the van wearing white work gloves, kneel by the passenger door, and manipulate the lock. When a passerby approaches, Petitioner steps away from the van but returns shortly after, opens the door, gets in, and drives off. (Id.) The next day, a surveillance camera from a Queens hotel recorded the van pull into a parking space and shows Petitioner exit the driver's seat of the van wearing a green hat and white work gloves. (People's Ex. 25.) Petitioner wipes down the interior and exterior of the van using a spray bottle and a rag, grabs a black drawstring bag from the passenger seat, and walks away with a limp. (SR. 637; People's Exs. 19, 25.)
The seventh theft occurred on November 7, 2014. On this day, as part of a New York Police Department (“NYPD”) investigation into the van thefts, Detective Orville Reid was assigned to follow Petitioner. Reid followed Petitioner from 7:00 a.m. until 9:40 a.m. but then lost sight of him. (Reid Tr. 51-58, 60-62.) Meanwhile, that morning, Robert Houlahan, the carpenter at Midtown Masonry, was working at a job site in Manhattan. At approximately 11:00 a.m., Houlahan heard his van, which had been parked outside the jobsite at Prince and Wooster Streets, start up. Houlahan realized that someone was stealing the van and ran after it. (Houlahan Tr. 220-23, 240.) Houlahan reached the van as it was pulling out of the parking spot and grabbed onto the passenger side door. The door was locked, but Houlahan held on and saw Petitioner in the driver's seat. Houlahan banged on the window and shouted, “[g]et the fuck out of my van.” (Id. at 223-25, 229, 237.) Petitioner sped up, and Houlahan released the door handle but continued to pursue Petitioner on foot while yelling, “My van has been stolen, call the police.” (Id. at 225-26.) As Petitioner approached a red light, he drove up onto the sidewalk and then swerved back into traffic.
A passerby, Magdalena Holcomb, called 911 and stated that a man was chasing after a van and shouting, “he just stole my van,” and that the van was on West Broadway heading south toward Canal Street. (Holcomb Tr. 169-70; People's Ex. 20.) When Petitioner got stuck at another red light, he drove onto the sidewalk again and struck an iron gate, briefly sending the van airborne. (Houlahan Tr. 226). Petitioner then hit a restaurant sign as pedestrians were “jumping out of the way,” and accelerated back into traffic. (Id.) A driver on a moped pulled beside Houlahan and said, “jump on.” (Id. at 227:1-8.) Houlahan got onto the moped and continued his pursuit of Petitioner but ultimately lost sight of Petitioner. (Id. at 227:8-21.) Shortly thereafter, police officers arrived and Houlahan got into their car to look for Petitioner. At around noon, Houlahan and the officers found the van parked on Varick Street. (Id. at 227-33, 239-40.) A surveillance camera from a nearby building recorded Petitioner park the van and walk away wearing a yellow lanyard and carrying a black drawstring bag. (People's Ex. 9.)
2. Petitioner's Arrest and Indictment
After the November 7, 2014 theft, Detective Emmanuel Rossi, of the NYPD's Auto Crime Division, created a photo array using a computer program to find filler photographs. On January 12, 2015, Houlahan viewed the photo array and identified Petitioner as the person who stole his van. (Rossi Tr. 36-40, 49; Houlahan Tr. 234; SR. 627.) On or about January 13, 2015, Detective Rossi arrested Petitioner. (Rossi Tr. 17-19, 23; SR. 633-36.) On January 15, 2015, Petitioner was arraigned and was assigned counsel from the Legal Aid Society.
The next evening, Detective Rossi and other officers executed a search warrant at Petitioner's residence. (Rossi Tr. 23-24, 40-41, 76.) Petitioner lived in a men's shelter in Brooklyn comprised of several single-person bedrooms, as well as a shared common room, kitchen, and bathroom on each floor. (Id. at 42, 47, 78.) From Petitioner's bedroom, officers seized a yellow lanyard with petitioner's shelter-issued ID card attached to it, two green baseball caps, one brown cargo cap, a navy Yankees jacket, and 14 pairs of white work gloves with red palms. (Id. at 26-28, 44-46.) Police also recovered a black drawstring bag with two vertical white stripes and a circular white logo. (Id. at 28.)
On January 29, 2015, Rossi arranged a lineup using five fillers whose age, race, and facial hair resembled Petitioner's. Petitioner chose to sit in the number 5 position. (Id. at 31.) Houlahan identified Petitioner in the line-up as the man who had stolen his van. (Id. at 31-34.)
On January 30, 2015, Petitioner was charged with crimes related to the thefts of eight commercial vans. (SR. 653-63.) The People were unable to secure the appearance at trial of the witness to one of those thefts, which occurred on July 29, 2014 and is not described above, and the counts associated with that incident were dismissed. Thus, Petitioner went to trial on 24 counts related to the seven commercial van thefts described above. For each of the seven thefts, Petitioner was charged with third-degree burglary and second-degree unauthorized use of a vehicle. For the June 12, September 25, and November 7 thefts, Petitioner was charged with stealing equipment from inside the vans valued in excess of $3,000. For the other four thefts, Petitioner was not charged with stealing equipment but was charged with stealing the vans themselves. Petitioner was also charged with evidence tampering in connection with the October 16 theft and with reckless endangerment for the November 7 theft.
3. Pretrial Severance Motion and Suppression Hearing
Before trial, Petitioner moved to have the counts severed based on the dates of the incidents, requesting a separate trial for each van theft. He argued that the separate incidents were not subject to mandatory joinder, that the jury likely would not be able to consider the charges separately, and there was “more convincing evidence” for the November 7 theft than the others. (SR. 679-88.)
On June 3, 2015, the Honorable Gregory Carro denied severance, holding that the charges with respect to the October 1 and 16 thefts were properly joined with the November 7 theft under the mandatory joinder provision of C.P.L. § 200.20(2)(b), and that the incidents had a distinctive evidentiary overlap in that Petitioner was seen wearing a yellow lanyard in each of the surveillance videos. (SR. 704.) The court further ruled that Petitioner had not shown that there was substantially more proof of any one burglary, and that no prejudice would accrue from having a single trial because the evidence for each incident would be “presented separately,” and the jury would be instructed to consider each incident separately. (Id.)
On or around June 3, 2015, new counsel - Ralph Cherchian - was assigned to represent Petitioner. Petitioner asserts that Cherchian advised the court that he would move to dismiss the indictment but that no such motion was filed. (Pet. 14-15.) Petitioner asserts that Cherchian requested several adjournments during this pre-trial stage. (Id.)
On June 23, 2016, Justice Carro presided over a pretrial Wade/Dunaway hearing. At issue in the hearing was the admissibility of identification testimony from Houlahan. Detective Rossi testified about his investigation into the stolen vans and the events surrounding the photo array and lineup identifications. Rossi testified that he inputted certain criteria, including Petitioner's hair, race, and age into a computer program that then identified approximately fifty photographs, and Rossi chose five photographs that most resembled Petitioner to serve as fillers. (Hearing Tr. 7, 15-18.) He testified that Houlahan viewed the array and identified Petitioner as the van thief. (Id. at 7-9, 19). As to the line-up, Rossi testified that officers found five fillers who resembled Petitioner and they put Petitioner and the fillers in identical shirts and hats. (Id. at 9, 18-19, 23, 27-28.) He testified that when Houlahan arrived at the station, he was taken to a back room to ensure he did not see Petitioner or the fillers, and once the lineup was ready, Houlahan was instructed that the “perpetrator may or may not be” in the lineup. (Id. at 9-12, 25.) Houlahan then identified Petitioner as the person who stole the van. (Id. at 13, 25-26.) Petitioner presented no evidence at the hearing.
The court denied suppression of identification testimony, finding that there was “nothing unduly suggestive” about the photo array or lineup because the fillers were similar in age and build to Petitioner, had “some amount of facial hair” and were bald, and that proper precautions were taken to ensure Houlahan did not see Petitioner or the fillers before the lineup. (Id. at 33-34.)
4. Trial
On June 28, 2016, Petitioner proceeded to a jury trial before the Honorable Michael Sonberg. The prosecution submitted testimony from witnesses regarding each of the van thefts, as well as surveillance footage connecting Petitioner to the September, October, and November thefts. In addition, Taormina, who had followed his van's GPS system to Brooklyn, identified Petitioner in court as one of the men he had seen unloading the van. (Taormina Tr. 141.) Taormina's photograph of Petitioner removing a copper pipe was admitted into evidence. Taormina also testified that it would cost about $20,000 to replace the equipment that was taken from the van. As to the August 20 theft, Rapaport testified that it would cost approximately $15,000 to replace the equipment that was taken from his van. (Rapaport Tr. 132-34.) Houlahan testified about his pursuit of Petitioner on November 7 and his identification of Petitioner in the photo array and line-up.
The prosecution also submitted testimony from Officer Collegio, Detective Reid, and Detective Rossi Collegio testified to recovering the van that was stolen on July 1 and collecting a fingerprint from the van that matched to Petitioner. Rossi testified about the investigation into Petitioner, Petitioner's arrest, and the search of Petitioner's home. Rossi initially incorrectly testified that no items were recovered from the shelter's common area, but after his recollection was refreshed, he recalled that officers recovered a tan canvas bag, tools, and work gloves from a common closet, and corrected his testimony. (Rossi Tr. 47, 78-80, 83.) The items seized from Petitioner's bedroom, including the lanyard, caps, Yankees jacket, gloves, and drawstring bag, were also entered into evidence.
At trial, Petitioner wore an eye patch due to his diabetic retinopathy, and testified that he is legally blind due to nerve damage to both eyes. (Brown Tr. 281:24-25.) Petitioner denied involvement in stealing any of the vans. He accounted for his whereabouts on each relevant date but provided no evidence corroborating this testimony. Petitioner testified that on June 12 and September 25, 2014, he went to the Human Resources Administration office on DeKalb Avenue at 8:00 a.m. and returned home at noon. (Id. at 286-87, 292.) He testified that on July 1, 2014, he and other men at the shelter spent the day cleaning cars for money. Petitioner surmised that he may have washed the Maspeth van that morning and, in doing so, left his fingerprint in the van. (Id. at 342-43.) He testified that on October 1 and November 7, 2014, he went to a program in Queens in the morning and then returned home, and on October 16, 2014, he went to the Social Security Administration office and returned home at 10:30 a.m. (Id. at 293-98, 358-59.) He testified that on October 28, 2014, he stayed home, and the next day, he attended a program in Queens until 10:00 a.m. and went to a welfare center in Manhattan. (Id. at 297-99.) Petitioner testified that residents of his shelter are expected to sign a sheet when they come or go; however, on at least one occasion, Petitioner was able to come and go without signing the sheet. (Id. at 282-84, 294, 315, 332, 334, 344-46.)
Petitioner admitted to regularly wearing a lanyard around his neck that carries his shelter ID card, and that the drawstring bag and Yankees jacket found in his bedroom belonged to him. (Id. at 346-49.) He testified that the gloves found in his apartment were given to him, and all residents, by the shelter to use while performing chores in the building.
The prosecutor confronted Petitioner with the recorded phone call between Petitioner and Zollo. The prosecution did not inform the jury that Petitioner was in jail at the time of the call. After listening to the recording, Petitioner acknowledged that he had not been working at Zollo's store on July 1. (Id. at 340-41.)
Before deliberations, the prosecutor moved to dismiss the count charging Petitioner with stealing more than $3,000 of property on November 7 and the criminal mischief charge pertaining to that date because he had not been able to elicit testimony from Houlahan regarding the value of items taken from the van. (Trial Tr. PDF Page 730.)
The jury found Petitioner guilty of all counts submitted for its consideration. On August 1, 2016, the court adjudicated Petitioner a second felony offender and imposed an aggregate prison sentence of from 10 years to 21 years, 8 months, and 15 days. Petitioner began serving his sentence at Eastern Correctional Facility.
This sentence breaks down as follows: three and one-half to seven years for each third-degree burglary charge (counts 1, 4, 7, 10, 13, 17, and 20); two to four years for each unauthorized use of a vehicle charge (counts 3 6, 9, 12, 15, 19, and 21); three and one-half to seven years for each third-degree grand larceny charge (counts 2 and 8); two to three years for each fourth-degree grand larceny charge (counts 5, 11, 14, and 18); two to four years for tampering with physical evidence (count 16); and one year for reckless endangerment (count 22). Charges within counts 1 through 6; counts 7 through 16; and counts 17 through 22 will be served concurrently with each other, with each of those groups to run consecutively to one another.
5. First C.P.L. § 440.10 Motion
On July 26, 2017, Petitioner filed a motion pursuant to C.P.L. § 440.10 to vacate his conviction on the grounds that his counsel was ineffective for failing to consult a forensic expert in fingerprint evidence, to investigate and present an alibi, and to argue that Petitioner was deprived of his right to testify before the grand jury; and for introducing the photo array in evidence as a defense exhibit and advising Petitioner to testify at trial. (SR. 1-38.) In opposing the motion, the prosecution noted that before trial, defense counsel provided an alibi notice, and the prosecution investigated the alibi and found it was unsupported. (Id. at 47.)
On October 25, 2017, Justice Sonberg denied the motion without a hearing. (Id. at 5365.) The court rejected Petitioner's argument regarding a fingerprint expert as speculative because Petitioner failed to provide a proffer from any expert witness as to what she would have testified. (Id. at 60-61.) Similarly, the court rejected the claim regarding an alibi defense because the record did not support a finding that any witness would have provided exculpatory testimony. (Id.) The court rejected the argument that trial counsel should have argued Petitioner was deprived of the right to testify before the grand jury because Petitioner failed to explain what he would have told the grand jury or how such testimony would have prevented indictment. (Id. at 59-60.) As to the photo array, the court found that Petitioner failed to demonstrate that there was no strategic or legitimate explanation for counsel's conduct. (Id. at 62.) Finally, the court declined to credit Petitioner's uncorroborated contention that counsel coerced him to testify. (Id. at 63.)
6. Direct Appeal
In July 2018, Petitioner - represented by appellate counsel - filed a direct appeal challenging his conviction and the denial of his motion to vacate. Petitioner argued that: (1) the proof on certain counts was legally insufficient and the verdict on those counts was against the weight of the evidence; (2) the trial court improperly denied his severance motion; (3) the photo array was unduly suggestive; (4) the sentence is excessive; (5) the lower court erred in denying the C.P.L. § 440.10 motion without holding a hearing as to the arguments that trial counsel was ineffective for failing to contact witnesses, to investigate, or to give proper legal advice. (Id. at 67-130.) In a pro se supplemental brief, Petitioner argued that the prosecutor engaged in misconduct by failing to correct Detective Rossi's supposedly false testimony that he processed Petitioner's arrest; by incorrectly describing in opening remarks that equipment had been stolen from Houlahan's van on November 7; and by stating in summation that Petitioner steals vans “for a living.” (Id. at 131-69.)
On May 2, 2019, the Appellate Division partially granted the appeal and dismissed two charges pertaining to the June 12 theft. Brown, 172 A.D.3d at 437. Specifically, the court found that there was “insufficient evidence of burglary and unauthorized use of a vehicle regarding the June 12, 2014 incident,” because the evidence at trial “only established that Petitioner was one of the men who unloaded a stolen van, but not that he entered or operated it.” Id. at 437. The court did not disturb the verdict with respect to the charge that Petitioner stole more than $3,000 worth of equipment from the van.
The Appellate Division denied the appeal and affirmed the conviction as to the remaining 20 counts. It rejected Petitioner's challenge that the evidence was insufficient to show the value of the stolen property exceeded $3,000 as required to establish the two charges of third-degree grand larceny, and explained that “[t]he jury could reasonably infer” from Taormina's and Rapaport's testimony as to the cost of replacing the items, that the property in question “could not have depreciated to such a small fraction of its original value by the time of the thefts that the $3000 statutory [threshold] was not met.” Id. The court rejected Petitioner's challenge to the suppression ruling, finding that “any difference in the skin tones and lighting effects” in the photo array “was not noticeable enough to create a substantial likelihood that [Petitioner] would be singled out for identification,” and the alleged deficiencies in the array were unrelated to the description provided by the identifying witness. Id.
Regarding Petitioner's severance claim, the court found that joinder was proper because the seven incidents “involved mutually admissible evidence, including videotapes, that established [Petitioner's] identity.” Id. As to Petitioner's motion to vacate, the court found that the lower court “properly exercised its discretion in denying the motion without a hearing,” because the submissions and the trial record were sufficient to support the conclusion that Petitioner received effective assistance, and Petitioner failed to show that any alleged deficiencies “fell below an objective standard of reasonableness,” or, “viewed individually or collectively, . . . deprived him of a fair trial or affected the outcome of the case.” Id. at 438. Finally, the court rejected Petitioner's claims in his supplemental brief as “unpreserved” and in the alternative, meritless. Id.
Petitioner sought leave to appeal on the grounds that the severance motion was erroneously denied in violation of state law and the Fourteenth Amendment, and Petitioner's constitutional rights to effective trial counsel and a non-suggestive identification procedure were violated. (SR. 286-91.) On June 25, 2019, the Court of Appeals denied leave to appeal. (Id. at 295.)
7. Subsequent State Court Motions and Executive Clemency Application
On August 8, 2019, Petitioner filed a second motion to vacate his conviction pursuant to C.P.L. § 440.10 on the grounds that the proof of his guilt was perjurious in that Detective Rossi had initially testified falsely that none of the items seized from Petitioner's apartment were found in a common area. (Id. at 296-354.) The Honorable Cassandra Mullen denied the motion, holding that Petitioner's claim was ineligible for relief on a motion to vacate because it was based on the trial record; was unreviewable to the extent it was raised on direct appeal; and was barred because it was not presented in the initial motion to vacate. (Id. at 366-71.) On May 26, 2021, the Appellate Division denied leave to appeal the ruling. (Id. at 374-482, 487.)
On May 15, 2020, the Legal Aid Society filed an application on behalf of Petitioner to the New York Department of Corrections and Community Supervision (“DOCCS”) seeking a commutation of Petitioner's sentence because Petitioner's medical conditions, coupled with Eastern Correctional Facility's failure to contain the COVID-19 pandemic, placed him at a high risk of serious illness or death from COVID-19. (SR. 606-07.) Clemency was not granted.
On or about August 11, 2020, Petitioner filed a pro se motion in the Appellate Division for a writ of error coram nobis arguing that his appellate counsel was ineffective for failing to argue that trial counsel was ineffective and that the prosecutor had engaged in misconduct. (Id. at 489-517.) On December 3, 2020, the Appellate Division summarily denied the motion, and leave to appeal was denied. (Id. at 518-45.)
On April 19, 2021, Petitioner filed a pro se motion before the New York Supreme Court pursuant to C.P.L. § 440.20, arguing that his sentence violated the Eighth Amendment (Id. at 546-65.) Petitioner argued that his age and medical conditions make him particularly vulnerable to COVID-19 and that Eastern Correctional Facility had failed to meet CDC guidelines regarding social distancing and other measures to reduce COVID-19, thus creating the extraordinary circumstance whereby his sentence is grossly disproportionate to his crime. On August 16, 2021, the New York Supreme Court denied the motion, holding that Petitioner's claim related to the conditions of his confinement and thus did not constitute a ground for relief under C.P.L. § 440.20. (See Supplemental State Record at ECF No. 48-1.) On November 23, 2021, the Appellate Division denied leave to appeal that order. (Id.)
8. The Instant Petition for Writ of Habeas Corpus and Motion for Summary Judgment
On March 24, 2021, Petitioner, acting pro se, filed the instant habeas Petition setting forth the following seven claims for relief: (A) the evidence at trial was not legally sufficient to establish: (i) his guilt of burglary as to the September, October, and November incidents; (ii) his guilt of unauthorized operation of a vehicle as to the September and October incidents; and (iii) the value of property stolen on June 12 and September 25; (B) Petitioner was arrested without probable cause; (C) the trial court erred in ruling that the photo array was not suggestive; (D) the trial court erred in denying severance; (E) the prosecutor engaged in misconduct by (i) suborning perjury and (ii) making false and inflammatory statements in opening and closing remarks; (F) trial counsel was ineffective in that he failed to: (i) consult or retain a fingerprint expert or object to evidence that Petitioner's fingerprints were on file with the police; (ii) object to the prosecutor's opening and closing remarks; (iii) investigate Petitioner's alibi; (iv) challenge the legal sufficiency of all counts in a motion for a trial order of dismissal; and (v) properly advise Petitioner not to testify; and (G) Petitioner's confinement during the COVID-19 pandemic renders his sentence cruel and unusual.
On or about March 14, 2023, Petitioner was transferred from Eastern Correctional Facility to Coxsackie Correctional Facility. On April 24, 2023, Petitioner filed a Motion for Summary Judgment, asserting that there are no genuine issues in dispute that the prosecutor engaged in misconduct during trial and the trial evidence was insufficient to support certain charges, and thus reversal of his conviction is warranted. (ECF Nos. 40, 41.)
LEGAL STANDARDS
1. Petition for Writ of Habeas Corpus
Federal courts are authorized to issue habeas corpus relief for persons in state custody pursuant to 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Harrington v. Richter, 562 U.S. 86, 97 (2011). A state prisoner can obtain federal habeas relief only by showing that the state court's decision on the merits was either “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court,” or was based on an unreasonable determination of the facts presented to the state court. 28 U.S.C. § 2254(d)(1)-(2).
“To be ‘contrary to' clearly established law, a state court must reach a conclusion of law antithetical to a conclusion of law by the Supreme Court, or decide a case differently than the Supreme Court has when the two cases have ‘materially indistinguishable facts.'” Rosario v. Ercole, 601 F.3d 118, 123 (2d Cir. 2010) (citation omitted). In the AEDPA context, “clearly established” law refers to “only the holdings, as opposed to the dicta,” of the Supreme Court's decisions. Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (citation omitted). Once the clearly established holding has been distilled, an “unreasonable application” of the holding “must be objectively unreasonable, not merely wrong.” Id. If a state court decision does not elaborate on its reasoning, the federal court should look to the last recorded state decision that provides rationale. Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).
Prior to seeking federal habeas review, a state prisoner must exhaust all remedies available in state court. 28 U.S.C. 2254(b)(1)(A); Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014). A petitioner “must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). This requires the petitioner to present the “essential factual and legal premises of his federal constitutional claim to the highest state court capable of reviewing it.” Conway, 763 F.3d at 133 (citation omitted). The federal constitutional nature of the claims must be explicitly presented to the state court in the first instance. Id. at 132-33; Duncan v. Henry, 513 U.S. 364, 365-66 (1995).
When a petition presents an unexhausted claim, the court must determine whether the petitioner can return to state court to exhaust the claim. Conway, at 133. If the petitioner cannot obtain further review of the claim in state court, the federal court must deem the claim procedurally defaulted. Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991); see also Ramirez v. Attorney General, 280 F.3d 87, 94 (2d Cir. 2001). If the petitioner can obtain review of the claim in state court, the district court may in “limited circumstances” hold the petition in abeyance while providing the petitioner an opportunity to exhaust the claim, or may deny the petition in its entirety, or allow the petitioner to “delete the unexhausted claims” and proceed with the exhausted ones. Rhines v. Weber, 544 U.S. 269, 277 (2005).
Additionally, federal habeas review of a state court's denial of a federal constitutional claim is barred if the state court's decision rests on an independent and adequate state procedural ground. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
A claim that is procedurally barred “may be raised in habeas only if the [petitioner] can first demonstrate either ‘cause' and actual ‘prejudice,'” or “that he is ‘actually innocent.'” Bousley v. United States, 523 U.S. 614, 622 (1998) (citations omitted). To demonstrate cause, the petitioner must point to “some objective factor external to the defense.” Murray v. Carrier, 477 U.S. 478, 488 (1986). “[A]ctual prejudice” requires a showing of “substantial disadvantage” that infected the trial “with error of constitutional dimensions.” Id. (citation omitted). “A miscarriage of justice occurs ‘in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent.'” Id. (citation omitted). This requires a showing that it is more likely than not that no reasonable juror would have convicted the petitioner. Dixon v. Miller, 293 F.3d 74, 81 (2d Cir. 2002).
2. Motion for Summary Judgment
A motion for summary judgment may only be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “It is the movant's burden to show that no genuine factual dispute exists.” Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004). In deciding the motion, the Court must resolve all ambiguities and draw all inferences in favor of the nonmoving party. Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005).
A motion for summary judgment may be heard in a Section 2254 case to the extent the motion is consistent with the habeas rules. Whitaker v. Meachum, 123 F .3d 714, 715-16 n.2 (2d Cir.1997); see also Orraca v. Walker, 2012 WL 2152813, at *1, n.2 (S.D.N.Y. June 12, 2012) (summary judgment motion in a habeas action “does not avoid the Section 2254 rules”). However, because “nothing in the Habeas [rules] contemplates the disposition of habeas petitions by motion for summary judgment,” Mitchell v. Goord, 2005 WL 701096, at *3 (N.D.N.Y. Mar. 21, 2018), such motions are “rarely appropriate” in the habeas context, Chase v. Wolcott, 2021 WL 5232689, at *3 (N.D.N.Y. Nov. 10, 2021); see also Corines v. Warden, Otisville Fed. Corr. Inst., 2008 WL 4862732 at *2 (E.D.N.Y. Jun. 10, 2008) (summary judgment is only appropriate in a habeas case “where the motion would avoid the need for a full review of the trial record, such as when there is a question of jurisdiction.”), report and recommendation adopted, 621 F.Supp.2d 26 (E.D.N.Y. 2008).
DISCUSSION
1. Habeas Petition
A. Legal Sufficiency Claims
Petitioner argues that the evidence at trial was insufficient to establish that he burglarized the vans that were stolen in September, October, and November or that he operated the vans stolen in September and October; and was insufficient to establish the value of property stolen on June 12 and September 25. (Pet. 101-05.) These claims are procedurally barred, and in any event are meritless.
i. These Claims are Procedurally Barred
The legal sufficiency claim is unexhausted because Petitioner did not present it to the New York State Court of Appeals. Petitioner's letter to the Court of Appeals raised only the arguments that the severance motion was erroneously denied and that Petitioner's rights to effective trial counsel and a non-suggestive identification procedure were violated. (SR. 28691.) Because the sufficiency argument was not raised in that letter, this claim was not “explicitly identified” to the highest state court, as required to exhaust the claim. Duncan, 513 U.S. at 365-66; Grey, 933 F.2d at 120 (petitioner failed to exhaust constitutional claim not mentioned in his application for leave to appeal). Petitioner can no longer raise this claim to the Court of Appeals because he already used the one direct appeal to which he is entitled under state law. Id. The claim is therefore properly deemed procedurally barred. Grey, 933 F.2d at 120; Ramirez, 280 F.3d at 94.
It is the Petitioner's burden to demonstrate that an exception applies to the procedural bar by showing either cause for the default and prejudice resulting therefrom, or that failure to consider the claim will result in a fundamental miscarriage of justice. Wainwright v. Sykes, 433 U.S. 72, 91 (1977). Petitioner has not demonstrated either here. Petitioner has not shown cause for the default, and in fact proffers no explanation for his failure to seek leave to appeal on this ground. Since he has failed to show cause, there is no need to consider whether he has shown prejudice. Long v. Donnelly, 335 F.Supp.2d 450, 464 n.10 (S.D.N.Y. 2004). In any event, he cannot show prejudice because, as discussed below, this claim is meritless. Petitioner also has not shown that he is actually innocent because he has not pointed to any compelling proof of his innocence of any of the crimes of which he was charged. Accordingly, I respectfully recommend the legal sufficiency claims be dismissed as procedurally barred.
ii. These Claims are Meritless
Evidence is legally sufficient if “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 309, 319 (1979). The court applies “two layers of judicial deference” on federal habeas review: first, it defers to the jury's broad discretion to decide the case, and second, it defers to the state court's decision denying the claim, which should not be overturned unless it is “objectively unreasonable.” Coleman v. Johnson, 566 U.S. 650, 651 (2012). The court must presume that the trier of fact resolved any conflicting inferences in favor of the prosecution even if that does not appear in the record. Wheel v. Robinson, 34 F.3d 60, 66 (2d Cir. 1994). Having reviewed the trial record, this Court agrees with the Appellate Division that there was ample evidence at trial to prove the essential elements of each crime that Petitioner challenges.
Third Degree Burglary: To establish Petitioner's guilt of third-degree burglary, the prosecution needed to prove that Petitioner “knowingly enter[ed] or remain[ed] unlawfully in a building with intent to commit a crime therein.” Penal Law § 140.20. In this context, “building” also includes a “van” used “primarily to transport workers, materials and tools.” People v. Mincione, 66 N.Y.2d 995, 996 (1985); see Penal Law § 140.00(2). Petitioner argues that the evidence did not show that he “knowingly entered or remained unlawfully” in the vans stolen in September, October, or November, and thus was insufficient to establish his guilt of burglary as to these vans. (Pet. 101.)
However, as to the September 25 theft, surveillance video footage showed Petitioner parking and exiting the van in Queens after it was reported stolen. As to the October 1 theft, surveillance video footage showed Petitioner lingering near the van shortly before it was stolen, and although Petitioner's entry into the van is obscured by a parked truck, the video showed the passenger door of the van open and shut and the van drive away. Petitioner does not reappear on the surveillance video after the van drives away, leading to the reasonable inference that he was the one who entered the van. As to the October 16 theft, surveillance footage showed Petitioner parking and exiting the van and then wiping down the van's exterior. Similarly, as to the October 28 theft, surveillance video footage showed Petitioner manipulating the parked van's door lock, get in, and drive off, and footage from the next day shows him parking the van and exiting from the driver's seat. In each instance, Petitioner is wearing distinctive clothing and walking with his idiosyncratic limp. In each instance, witnesses testified that Petitioner did not have permission to be inside the van. In each instance, equipment was missing from the van after it was recovered. As to the November 7 incident, Houlahan testified to witnessing Petitioner drive off with his van. Surveillance video captured Petitioner parking and exiting the van later that day.
In each instance, the evidence was sufficient to show that Petitioner knowingly entered the vans. Since Petitioner did not have permission to take or operate any of the vans, the jury reasonably concluded that he entered the vans in order to steal them or the contents inside.
Second Degree Unauthorized Use : To prove that Petitioner was guilty of second-degree unauthorized use of a vehicle, the prosecution needed to establish that he took, operated, exercised control over, or rode in a vehicle, while knowing that he did not have consent of the owner to do so, and that he had been previously convicted of unauthorized use of a vehicle in the preceding ten years. Penal Law §§ 165.05, 165.06. The prosecution averred that on March 14, 2012, petitioner was convicted of unauthorized use of a vehicle. (SR. 209.)
Petitioner argues that the evidence was insufficient to establish second degree unauthorized use as to the September 25 theft because there was no testimony or footage showing him riding in the van. However, there was surveillance footage showing Petitioner park and exit the van, leading to the reasonable inference that he rode inside the van. Petitioner further argues that for the October thefts, the “only evidence” demonstrating his use of the vans is footage showing him lingering by the vans and entering or exiting the vans rather than driving the vans. However, the jury could reasonably infer Petitioner rode inside the vehicles from the footage showing him entering and exiting the vehicles and from the fact that the vehicles were found in locations different from where they were stolen.
Third Degree Grand Larceny : To prove Petitioner's guilt of third-degree grand larceny, the prosecution needed to show that Petitioner took, obtained, or withheld property from the owner with intent to deprive the owner of the property or to appropriate the property to himself or a third person, and that the property's value exceeded $3,000. Penal Law §§ 155.00(3), 155.05(1), 155.35(1). “Proof of original cost may provide sufficient evidence of value where the difference between the cost of the item and the statutory threshold is substantial and where there is little risk that the item has depreciated in value below the statutory threshold.” People v. Monclova, 89 A.D.3d 424, 424-25 (1st Dep't 2011).
As to the June 12 theft, Taormina, who owned N. Pagano Plumbing and was in charge of purchasing, testified that at the time of the theft, his van contained plumbing tools and equipment that would cost about $20,000 to replace. Taormina photographed Petitioner removing a copper pipe from his van, and when he recovered the van, the equipment was gone. Regarding the September 25 theft, the van owner, Rapaport, testified that the van held relatively new tools and equipment that would cost more than $15,000 to replace. When the van was recovered, the equipment was gone. In both instances, the testimony constituted sufficient proof that Petitioner stole property worth more than $3,000. See id. at 424-25.
Accordingly, the Appellate Division's decision to uphold these convictions was neither contrary to nor an unreasonable application of Supreme Court law. In the event these claims are considered on the merits, I respectfully recommend they be denied as meritless.
B. Arrest without Probable Cause Claim.
Petitioner contends that habeas relief is warranted because he was arrested without a warrant or probable cause in violation of the Fourth Amendment and that the trial court erred in failing to “suppress the illegal seizure, search and arrest.” (Pet. 33-34.)
However, claims based on a Fourth Amendment violation are generally “ineligible for habeas relief.” Grey, 933 F.2d at 121; see also Stone v. Powell, 428 U.S. 465, 494-95 (1976) (holding that “a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial”). A federal court may only review a Fourth Amendment claim where the “state [ ] provided no corrective procedures at all,” or where the petitioner is precluded from using the corrective procedures “because of an unconscionable breakdown in the underlying process.” Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992).
“It has long been acknowledged that New York provides adequate procedures under C.P.L. § 710 et seq., for litigating Fourth Amendment claims.” Montero v. Sabourin, 2003 WL 21012072, at *5 (S.D.N.Y. May 5, 2003) (collecting cases). Petitioner has not shown that there was an unconscionable breakdown in the underlying process, and accordingly, his Fourth Amendment claim is not cognizable on habeas review. Id. Therefore, I respectfully recommend this claim be denied.
Regardless, the probable cause argument lacks merit because at the time of Petitioner's arrest, ample evidence implicated him in the thefts including fingerprint evidence, surveillance videos, and an eyewitness identification. Additionally, the search of Petitioner's home was conducted pursuant to a lawful search warrant.
C. Claim as to the Constitutionality of the Photo Array
Petitioner contends that the photo array was unduly suggestive because Petitioner has the lightest skin of all the men in the array. Petitioner notes that when Houlahan described the van theft to the police, he described Petitioner as “light-skinned,” making it particularly unfairly suggestive that he had the lightest skin in the array. (Pet. 36.) Petitioner also argues that his photograph has a higher level of contrast than the other photographs, which, Petitioner asserts, was the result of computer manipulation of the image. (Id.) Petitioner further argues that because of the suggestiveness of the photo array, Houlahan should not have been permitted to identify Petitioner in court and that the trial court erred in rejecting Petitioner's motion to suppress Houlahan's in-court identification of Petitioner. (Id. at 36-40.)
The Appellate Division rejected this claim on the merits, holding that “any difference in the skin tones and lighting effects” in the photo array “was not noticeable enough to create a substantial likelihood that [Petitioner] would be singled out for identification.” Brown, 172 A.D.3d at 438 (citing People v. Chipp, 75 N.Y.2d 327, 336 (1990)).
In evaluating whether an out-of-court identification procedure violates due process, the federal habeas court must first determine “whether the pretrial identification procedures unduly and unnecessarily suggested that the defendant was the perpetrator,” and if so, “whether the identification was nonetheless independently reliable.” Raheem v. Kelly, 257 F.3d 122, 133 (2d Cir. 2001). A state court's determination of suggestiveness is entitled to substantial deference, and the state court's findings of fact underlying its determination are presumed correct and may be rebutted only by clear and convincing evidence. McGhee v. Uhler, 2019 WL 4228352, at *10 (S.D.N.Y. Apr. 18, 2019), report and recommendation adopted, 2019 WL 3852514 (S.D.N.Y. Aug. 12, 2019).
Here, Plaintiff has not shown that the photo array was unduly suggestive. Both the suppression court and the Appellate Division reasonably found that the array photographs were similar in terms of age, facial shape, hair, and complexion. Although Petitioner points to slight differences in lighting and skin tone, such “[m]inor differences . . . do not rise to the level of suggestiveness in a photo array.” Miller v. Napoli, 2011 WL 8997719, at *5 (S.D.N.Y. Mar. 8, 2011) (differing backgrounds and facial expressions did not render the array suggestive); see also United States v. Bautista, 23 F.3d 726, 731 (2d Cir. 1994) (that the petitioner's photograph was brighter and more close up than the fillers did not render the array suggestive). Petitioner's cited case, United States v. Fernandez, is distinguishable because in that case, unlike here, the defendant was described as having virtually white skin and an afro, and the photo array “contained no photograph remotely resembling” the petitioner in skin color or hair. 456 F.2d 638, 642 (2d Cir. 1972).
Because the photo array was not unduly suggestive, the Court's inquiry ends here. However, even if the array were suggestive, Houlahan's in-court identification of Petitioner was independently reliable. Factors that support a finding that an identification procedure “has reliability independent of the unduly suggestive identification procedures,” include the opportunity of the witness to view the person at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the person, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Brisco v. Ercole, 565 F.3d 80, 89-90 (2d Cir. 2009). These factors weigh in favor of a finding of independent reliability here. Specifically, there is no reason to doubt that Houlahan had an adequate opportunity to observe Petitioner during his pursuit of Petitioner, and nothing in the record indicates that Houlahan was uncertain about his identification. Moreover, corroborating evidence of Petitioner's guilt supported the identification, including a surveillance tape showing Petitioner exiting Houlahan's van after it was stolen. Accordingly, I respectfully recommend this claim be denied as meritless.
D. Severance Claim
Petitioner argues that the trial court erred in denying his severance motion, and that as a result of having one trial for all seven incidents, the jury improperly relied on “propensity evidence” and used evidence from some offenses to “fill in the blanks” as to the other offenses. (Pet. 41-62.)
To the extent that Petitioner claims that the state court incorrectly applied New York law in denying severance, that claim is not cognizable because it is based on New York's joinder statute and is a matter of state law to which federal habeas relief does not extend. Estelle v. McGuire, 502 U.S. 62, 68 (1991); see also McKinnon v. Superintendent, Great Meadow Corr. Facility, 422 Fed.Appx. 69, 72 (2d Cir. 2011) (“Improper joinder of charges against a defendant does not, in itself, amount to a constitutional violation.”) Petitioner's cited cases are inapposite because they were decided under the Federal Rules of Criminal Procedure, not the United States Constitution. (Pet. 51-55 (citing United States v. Carter, 475 F.2d 349 (1973); Drew v. United States, 331 F.2d 85 (1964); Schaffer v. United States, 362 U.S. 511, 515 (1960); and United States v. Byrd, 466 F.Supp.2d 550 (S.D.N.Y. 2006).) Habeas relief under 28 U.S.C. § 2254 is not available for asserted violations of the Federal Rules of Criminal Procedure, which do not apply to state criminal trials. Dizak v. McAuliffe, 2023 WL 4557065, at *2 (W.D.N.Y. July 17, 2023) (citing 28 U.S.C. § 2254).
To the extent Petitioner claims that any misjoinder rises to the level of a constitutional violation, this claim lacks merit. Misjoinder amounts to a constitutional violation “only if it actually renders petitioner's state trial fundamentally unfair and hence, violative of due process.” Herring v. Meachum, 11 F.3d 374, 377 (2d Cir. 1993). To succeed on a due process claim based on misjoinder, a petitioner must prove “that actual prejudice resulted” from the joinder. Id. at 377-78. Although there is “always a danger when several crimes are tried together[] that the jury may use the evidence cumulatively,” the Supreme Court has justified “this type of prejudicial effect . . . on the grounds that (1) the jury is expected to follow instructions in limiting this evidence to its proper function, and (2) the convenience of trying different crimes against the same person . . . in the same trial is a valid governmental interest.'” Id. (quoting Spencer v. Texas, 385 U.S. 554, 562 (1967)); see also United States v. Carpentier, 689 F.2d 21, 27 (2d Cir. 1982) (“A certain amount of prejudice to a defendant is regarded as acceptable given the judicial economies that result from joinder.”).
Here, Petitioner cannot show that prejudice resulted from the joinder because the trial court instructed the jury to separately evaluate each charge, and the Court “is entitled to presume” the jury followed the instruction. Hudson v. Perez, 2013 WL 5229797, at *12 (S.D.N.Y. Sept. 17, 2013) (citing CSX Transp., Inc. v. Hensley, 556 U.S. 838, 841 (2009)); see also United States v. Whitten, 610 F.3d 168, 191 (2d Cir. 2010). Further, the evidence was presented separately to the jury, and the issues were uncomplicated and thus “easily segregated in the minds of the jurors.” Shand v. Miller, 412 F.Supp.2d 267, 272 (W.D.N.Y. 2006).
Petitioner's argument that the joinder must have “tainted” the jury because the evidence for each crime was not sufficient is not persuasive in light of all of the evidence the prosecution put forward to support the elements of each crime. For example, the June 12 theft was supported by Taormina's testimony that he observed and photographed Petitioner removing a copper pipe from his van and Taormina's in-court identification of Petitioner; the July 1 theft was supported by evidence of Petitioner's fingerprint inside the van and Petitioner's admission that he attempted to create a false alibi for that date; and the remaining thefts were supported by video surveillance showing Petitioner linger by, enter, and/or exit the vans wearing clothing and accessories that were later found in his bedroom. The November 7 charges were also supported by eyewitness testimony.
Petitioner also argues that because the Appellate Division later dismissed two convictions relating to the June 12 incident, this indicates that the jury was “tainted” as a result of the joinder. (Pet. 44.) This argument is also unpersuasive. The Appellate Division's dismissal of two convictions was based on that court's careful review of the evidence and its finding that the proof was insufficient to make out specific elements of two specific charges. However, the Appellate Division also carefully and reasonably found that there was sufficient evidence to prove Petitioner's guilt of the remaining charges. The Appellate Division's decision does not provide a basis to doubt the jury's fact-finding as to the remaining convictions.
Accordingly, to the extent the severance claim is cognizable, I respectfully recommend it be denied as meritless.
E. Prosecutorial Misconduct Claims
Petitioner argues that the prosecutor engaged in misconduct in several respects. (Pet. 65-66.) First, he argues that the prosecutor suborned perjury from Detective Rossi at trial and in the grand jury because Rossi's testimony purportedly overstated his involvement in investigation into and arrest of Petitioner and because Rossi initially inaccurately testified that all items seized from Petitioner's apartment were found in Petitioner's bedroom. Second, he argues that the prosecutor engaged in misconduct during his opening and closing statements because he stated that Houlahan's van was found “without many of the valuables inside of it,” which was not proven at trial; and because he denigrated Petitioner by asserting that Petitioner steals vans “for a living.” Petitioner raised these claims on direct appeal, and the Appellate Division ruled that they were unpreserved and declined to review them in the interest of justice. In the alternative, the Appellate Division rejected these claims as meritless.
i. These Claims are Procedurally Barred
These claims are procedurally barred for two reasons. First, the Appellate Division reasonably found that these claims are “unpreserved” under New York's contemporaneous objection rule, which requires a criminal defendant to contemporaneously object to an issue at trial to preserve that issue for appellate review. It is well established that New York's rule requiring a contemporaneous objection is an adequate and independent state law ground sufficient to bar federal habeas review. Whitley v. Ercole, 642 F.3d 278, 286-87 (2d Cir. 2011). Because the Appellate Division rejected these claims as unpreserved, they are barred from habeas review.
Second, Petitioner omitted these claims from his application for leave to appeal the Appellate Division's decision. Thus, for the same reasons discussed in Section A.i., supra, these claims are unexhausted and procedurally barred. See Grey, 933 F.2d at 120.
Petitioner cannot overcome these procedural defaults. To start, Petitioner has not explained any “cause” for either default. To the extent he contends that his trial counsel erred in not raising the objections contemporaneously at trial, such a failure “can suffice to establish cause for a procedural default only when the counsel's ineptitude rises to the level of a violation of a defendant's Sixth Amendment right to counsel.” Aparicio v. Artuz, 269 F.3d 78, 91 (2d Cir. 2001) (citations omitted). As discussed in Section F, infra, Petitioner has not shown ineffective assistance of counsel, and accordingly, he has not shown cause for the procedural default on this basis. As discussed below, Petitioner also cannot show prejudice because these claims are meritless. Additionally, as discussed in Section A, supra, he has not shown that he is actually innocent of any of the convictions.
ii. These Claims are Meritless
Even if these claims were not procedurally barred, they are meritless.
Perjured Testimony: A conviction will be set aside on the ground that the prosecutor suborned perjury at trial only if the petitioner proves that: “(1) false testimony was introduced; (2) the prosecutor knew or should have known that the testimony was false; (3) the false testimony went uncorrected; and (4) there was a reasonable likelihood that the false testimony could have affected the judgment of the jury.” Calderon v. Keane, 115 Fed.Appx. 455, 457 (2d Cir. 2004) (citation omitted). A claim that a prosecutor suborned perjury in the grand jury (as opposed to at trial), is not cognizable on habeas review. Smith v. Hulihan, 2011 WL 4058764, at *10 n.18 (S.D.N.Y. Sept. 13, 2011) (collecting cases), report and recommendation adopted, 2012 WL 4928904 (S.D.N.Y. Oct. 17, 2012).
As to Detective Rossi's testimony regarding his investigation into and arrest of Petitioner, Petitioner has not shown that the testimony was false, but rather argues that the testimony is contradicted by unspecified notepad entries and because other officers' names appear on arrest paperwork. Such arguments are speculative and unsupported. In any event, Petitioner has not shown any reasonable likelihood that the testimony affected the judgment of the jury since the degree of Rossi's own participation in the investigation and arrest were not particularly relevant issues at trial.
As to Rossi's initial testimony regarding the location of items seized from Petitioner's apartment, this testimony was corrected on the record after Rossi's memory was refreshed. (Rossi Tr. 47, 78-80, 83.) Since the testimony was corrected, the initial inaccurate testimony does not amount to a due process violation. Calderon, 115 Fed.Appx. at 457; see also Waiters v. United States, 472 F.Supp.3d 7, 17 (E.D.N.Y. 2020) (“Because the Government corrected the inaccurate testimony, there was no violation of due process.”)
Opening and Closing Remarks : To establish prosecutorial misconduct on the basis of the prosecutor's opening or closing statements, a petitioner must first establish that the remarks “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citation omitted). Second, a petitioner must establish that the state court's rejection of the prosecutorial misconduct claim “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” United States v. Parker, 903 F.2d 91, 98 (2d Cir. 1990)). Only in the “rare case” will a prosecutor's remarks, “even if objectionable,” be deemed sufficiently prejudicial to warrant habeas relief because “the Government has broad latitude in the inferences it may reasonably suggest to the jury during summation.” United States v. Aquart, 912 F.3d 1, 27 (2d Cir. 2018) (citation omitted). Additionally, “statements during summation are permissible if they constitute a ‘fair comment on the evidence' at trial and reasonable inference therefrom, or a ‘fair response to remarks made by the defense counsel during summation.'” Roman v. Filion, 2005 WL 1383167, at *26 (S.D.N.Y. June 10, 2005) (citation omitted).
As to the prosecutor's opening remark that Houlahan's van was found “without many of the valuables inside of it,” although this fact was ultimately not proven at trial, the remark was made based on a reasonable belief about what the evidence would show and thus, is not misconduct. Moreover, after Houlahan was unable to describe the contents of the van, the prosecutor moved to dismiss the third-degree grand larceny charge as to Houlahan's van, and Petitioner was not convicted of any crime relating to the value of items stolen from the van. Additionally, the jury was instructed not to consider counsel's opening remarks as evidence. Petitioner thus cannot establish prejudice resulting from the remark. See United States v. Velazquez, 93 Fed.Appx. 316, 317 (2d Cir. 2004) (where prosecutor remarked in his opening statement that the evidence would show suspicious activity but the evidence did not show such activity, denying prosecutorial misconduct claim because the court instructed the jury that openings were not evidence and because other evidence supported petitioner's guilt).
Petitioner also argues that the prosecutor's closing remark that Petitioner steals vans for a living was improper. Petitioner has not shown prejudice as a result of this remark because the court instructed the jury that closing statements were not evidence and because the evidence of Petitioner's guilt was very strong.
F. Ineffective Assistance of Trial Counsel Claims
Petitioner argues that his trial counsel was ineffective in that counsel failed to: (1) consult or retain a fingerprint expert; (2) object to the prosecutor's opening and closing remarks; (3) investigate Petitioner's alibi; (4) challenge the legal sufficiency of all counts in a motion for a trial order of dismissal; (5) object to evidence that Petitioner's fingerprints were on file with the police; and (6) properly advise Petitioner about whether to testify. (Pet. 8-31.) Most of these claims are procedurally barred and all are without merit.
i. Most of these Claims are Procedurally Barred
In Petitioner's first C.P.L. § 440.10 motion, he raised claims for ineffective assistance of counsel on several bases, all of which were denied by the trial court. (SR. 1-38.) However, Petitioner appealed only a portion of that ruling to the Appellate Division, arguing that the trial court erred in denying without a hearing his claims that his counsel (1) failed to call alibi and medical witnesses; (2) failed to properly investigate the case (which this Court construes as including his counsel's failure to consult a forensic expert in fingerprint evidence); and (3) failed to properly advise Petitioner as to testifying on his own behalf. (Id. at 124-25.) The Appellate Division denied these claims on the merits. Petitioner then sought leave to appeal that portion of the decision (and certain other portions) to the Court of Appeals. Accordingly, Petitioner's ineffective assistance of counsel claims are exhausted to the extent he challenges his counsel's alleged failure to call witnesses, to investigate the case, and to give proper legal advice. While these claims are not procedurally barred, as discussed below, they are meritless.
As to Petitioner's remaining arguments - that his counsel failed to object to the opening and closing remarks, move for a trial order of dismissal, and object to evidence that Petitioner's fingerprints were on file with the police - Petitioner failed to raise these claims to the Court of Appeals, and these claims are unexhausted. For the same reasons discussed in Section A.i., supra, the claims are procedurally barred. Petitioner has not shown either cause and prejudice or actual innocence, so he cannot overcome the procedural bar. Accordingly, I respectfully recommend that Petitioner's claims of ineffective assistance of counsel on the basis of his trial counsel's failure to object to the opening and closing remarks, move for a trial order of dismissal, and object to fingerprint evidence be denied as procedurally barred.
ii. These Claims are Meritless
Regardless of the procedural bar preventing this Court from considering certain of Petitioner's ineffective assistance claims on the merits, all of Petitioner's ineffective assistance claims are meritless. Under the standards set out by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), to prevail on an ineffective assistance of counsel claim, petitioner must show: (1) “that counsel's performance was deficient,” and (2) “that the deficient performance prejudiced the defense.” Id. at 687. In the context of a habeas claim, the operative question is whether the state court unreasonably applied this standard in dismissing the petitioner's ineffective assistance claims. It is the petitioner's burden to show that counsel's performance was deficient, and “the absence of evidence cannot overcome the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance.” Burt v. Titlow, 571 U.S. 12, 23 (2013).
Failure to Object to Opening and Closing Remarks and to Move for Trial Order of Dismissal : “Under Strickland, the failure to raise a meritless objection cannot constitute ineffective assistance, both because such a failure cannot be found to fall below an objective standard of reasonable conduct by counsel, . . . and because a meritless objection cannot be found likely to have affected the outcome of the proceedings.” Curet v. Graham, 2019 WL 13184139, at *33 (S.D.N.Y. Jan. 14, 2019) (citing Forbes v. United States, 574 F.3d 101, 106 (2d Cir. 2009) and Cox v. Donnelly, 387 F.3d 193, 199 (2d Cir. 2004)).
As discussed in Section E, supra, Petitioner has not shown that he was prejudiced by the prosecutor's opening and closing remarks. Id. Accordingly, his trial counsel's failure to object to those remarks necessarily does not rise to ineffective assistance. Similarly, Petitioner's claim that counsel should have moved for a trial order of dismissal has no merit because the Appellate Division found sufficient evidence supported the judgment of conviction as to all but two charges. Petitioner has not shown any reason for this Court to disturb the Appellate Division's decision.
Failure to Object to Fingerprint Evidence: Petitioner's claim that counsel should have objected to the prosecution's fingerprint evidence lacks merit because the trial court entered its own objection to that evidence, leading the prosecution to present testimony from the witness who took Petitioner's fingerprints in 2010 to explain how the police identified the fingerprint found inside the van stolen on July 1 as Petitioner's. (McCoy Tr. 206-13.) The 2010 fingerprint card was redacted so that there was no indication of the charges for which Petitioner had been arrested in 2010. Accordingly, Petitioner was not prejudiced by this failure. Petitioner cites no support for his argument that the fingerprint testimony could be admissible only if the police found a “blind match,” and this Court is aware of none.
Outside of the habeas context, courts in this district have held that an expert's failure to conduct a blind review of a fingerprint analysis goes to weight rather than admissibility of the expert's testimony. See, e.g., United States v. Cortorreal, 2023 WL 2861618, at *9 (S.D.N.Y. Apr. 7, 2023).
Failure to Consult Fingerprint Expert, and to Investigate and Present Alibi Witnesses and Defense: Petitioner's contention that counsel should have consulted a fingerprint expert also lacks merit. Petitioner has not provided factual support for his assertion that his counsel failed to consult a fingerprint expert other than Petitioner's own self-serving affidavit submitted in support of his C.P.L. § 440.10 motion. This is insufficient to overcome the strong presumption that counsel provided reasonable assistance. Pierre v. Ercole, 560 Fed.Appx. 81, 83 (2d Cir. 2014) (rejecting ineffective assistance of counsel claim where petitioner failed to present any sworn statement supporting his assertion that his lawyer failed to investigate his neighbor as a possible witness). Petitioner also has not shown prejudice resulting from the purported failure to consult a fingerprint expert because he has not demonstrated that any fingerprint expert would have provided favorable testimony. See McDowell v. Heath, 2013 WL 2896992, at *36 (S.D.N.Y. June 13, 2013) (rejecting ineffective assistance of counsel claim based on failure to call an expert witness where the petitioner offered no evidence that an expert was available or that he would have testified favorably if called).
Similarly, Petitioner's contention that his counsel failed to investigate his alibi and medical defense is unsupported and belied by the record. The record shows that during a pretrial conference, counsel asked the court to issue a subpoena to Petitioner's treating doctor to support the defense theory that Petitioner's diabetic retinopathy prevented him from driving. (Trial Tr. PDF Page 40-45.) The prosecutor noted that Petitioner's medical record indicated that his disease “only impacts one eye.” (Id. at 42) The court noted that the doctor would not be able to say that Petitioner could not operate a vehicle, but rather that he could not do so safely, which would not get the defense “very far.” (Id.) Counsel also stated that he intended to introduce proof that Petitioner's benefit card had been used in Brooklyn while certain thefts were occurring in Manhattan, and the court noted that Petitioner would need to lay the foundation that nobody else used the card at that time, since Petitioner could “give the card to anyone.” (Id. at 46.) Counsel also stated that he had prepared a subpoena for Petitioner's sister to act as an alibi witness, and represented that he intended to introduce a sign-out sheet from Petitioner's shelter to show that Petitioner had not signed out at the times of certain thefts. (Id. at PDF Page 48-51.)
Although trial counsel did not ultimately pursue these witnesses and defenses, Petitioner has not shown that this was due to ineffective assistance rather than deficiencies with Petitioner's defenses. Thus, the state court reasonably rejected Petitioner's claim that his counsel failed to adequately investigate and present his defense.
Failure to Advise Petitioner Not to Testify: Petitioner claims that his counsel failed to properly dissuade him from testifying because he did not explain to Petitioner that Petitioner could be impeached with the recorded phone conversation with Zollo if he chose to testify. Petitioner has failed to show that prejudice resulted from this alleged deficiency. To start, the trial record demonstrates that counsel warned Petitioner not to testify. Additionally, the record reflects that the phone call and the possibility of impeaching Petitioner with the call were discussed during the trial while Petitioner was present. (S13; Proceedings Tr. 67, 202-03, 268-70.) As such, Petitioner has not meaningfully shown that he was unaware of the risk of testifying or that he would have declined to testify had his attorney more fully advised him. See McCall v. Rivera, 965 F.Supp.2d 311, 330 (S.D.N.Y. 2013) (petitioner was not prejudiced by counsel's failure to warn him that his statements could be used for impeachment purposes because he had been warned of this fact by the district attorney).
Petitioner also has not shown any reasonable probability that but for his testimony, the result of the trial would have been different. As Justice Sonberg recognized in rejecting this same claim, the phone call was just one piece of evidence relating to a single theft that was supported by additional evidence, including fingerprint evidence tying Petitioner to the same van theft. Therefore, the introduction of this evidence was unlikely to have impacted the trial outcome. See id.; see also Akosa v. United States, 219 F.Supp.2d 311, 315-16 (E.D.N.Y. 2002) (alleged ineffective assistance did not prejudice the petitioner in light of the “overwhelming evidence” of his guilt).
Accordingly, to the extent Petitioner's ineffective assistance claims are not dismissed as procedurally barred, I respectfully recommend that they be denied as meritless.
G. Claims as to Constitutionality of Petitioner's Sentence
Finally, Petitioner contends that habeas relief is warranted because the conditions at Eastern Correctional Facility make him vulnerable to severe COVID-19 infection and render his sentence tantamount to cruel and unusual punishment. (Pet. 75-100.) Petitioner also argues that his sentence is unconstitutional because DOCCS does not provide programming that accommodates the visually impaired, and therefore he cannot fully participate in programming at the Facility. (Id. at 83.) Although Petitioner has since been moved to Coxsackie Correctional Facility, the Court construes Petitioner's arguments to concern the conditions of confinement in general and presumes his allegations as to the conditions of his confinement apply with equal effect to that facility. Finally, Petitioner briefly argues that his sentence is excessive because it is longer than what he was offered in exchange for pleading guilty.
To the extent Petitioner argues his sentence is unconstitutional because it is longer than the sentence he was offered prior to trial, this claim is not cognizable on federal habeas review because Petitioner's sentence is within the range prescribed by state law. See White v. Keane, 969 F.2d 1381, 1383 (2d Cir.1992); see also Gonzalez v. Travis, 172 F.Supp.2d 448, 457 (S.D.N.Y.2001) (finding excessive sentence claim not cognizable for habeas review where sentence was within statutory range); Herrera v. Artuz, 171 F.Supp.2d 146, 151 (S.D.N.Y. 2001) (holding the trial court's imposition of consecutive sentences was appropriate and did not provide ground for habeas relief).
As to Petitioner's claims regarding the conditions of confinement as a result of the COVID-19 pandemic and Petitioner's illnesses and visual impairment, it is not clear that these claims are cognizable on habeas review. “Courts in this Circuit have reached different conclusions as to whether a prisoner who seeks his or her release from state custody due to unconstitutional conditions of confinement may bring a habeas corpus petition under 28 U.S.C. § 2254 or instead must proceed under 42 U.S.C. § 1983.” Schmiege v. NYSDOCCS, 2023 WL 4704089, at *2 (W.D.N.Y. July 24, 2023) (collecting cases). The Second Circuit recently heard several appeals that might have resolved whether conditions-of-confinement claims can be brought under 28 U.S.C. § 2254, but the court dismissed those cases because even if the petitioners' claims were cognizable under Section 2254, they were unexhausted. Bowman v. Capra, 2023 WL 4339502 (2d Cir. July 5, 2023); Brooks v. Annucci, 2023 WL 4344581 (2d Cir. July 5, 2023); Green v. Quiros, 2023 WL 4345405 (2d Cir. July 5, 2023).
Several well-reasoned opinions in this District recently held that state prisoners cannot challenge the conditions of confinement by filing a writ for habeas corpus under § 2254. See, e.g., Diaz v. Keyser, 2022 WL 2304271, at *3-5 (S.D.N.Y. June 27, 2022) (noting that if federal courts were permitted to overturn a state prisoner's conviction or sentence because of the impact of the COVID-19 pandemic, this would “run afoul of decades of well-established United States Supreme Court precedent” and “utterly disregard federal-state comity”); Acevedo v. Capra, 545 F.Supp.3d 107 (S.D.N.Y. 2021) (holding that state prisoner challenges to conditions of confinement must be brought under 42 U.S.C. § 1983 rather than a federal habeas petition). These decisions accord with Fielding v. LeFevre, in which the Second Circuit rejected a habeas petition asserting a claim that lack of access to psychiatric care in prison made the petitioner's confinement cruel and unusual and explained that the “proper remedy” for an unconstitutional denial of healthcare “is a suit under 42 U.S.C. § 1983” rather than habeas corpus. 548 F.2d 1102, 1108 (2d Cir. 1977).
Notably, other courts have declined to reach the question whether such a claim is cognizable where an alternate ground for dismissal is present. See, e.g., Lithgow v. Keyser, 2021 WL 4391122 (S.D.N.Y. Sept. 24, 2021) (dismissing habeas petition challenging conditions of confinement as unexhausted without prejudice and finding no clear error in the magistrate judge's recommendation not to dismiss the petition on the alternate ground that the challenge is not cognizable in light of the “varying answers among the district courts within this Circuit”); Elleby v. Smith, 2020 WL 2611921, at *3 (S.D.N.Y. May 22, 2020) (“Because it is an unresolved legal question whether habeas corpus is a proper vehicle for challenges to prison conditions based on COVID-19 that seek release from custody, and because (as follows) there is an independent infirmity with Elleby's habeas petition, the Court declines to dismiss the Petition on these grounds, and reserves on this legal question).
As in Bowman, Lithgow, and Elleby, this Court need not decide whether Petitioner's claim is cognizable, because the claim is unexhausted. Petitioner raised this claim before the state court on a motion to vacate his sentence under C.P.L. § 440.20. However, the law is clear that C.P.L. § 440.20 cannot be used to raise a challenge to the conditions of confinement. People v. White, 69 Misc.3d 425, 131 N.Y.S.3d 488 (Sup. Ct. N.Y. Cnty 2020). Petitioner also filed an executive clemency application based on similar COVID-19-related arguments. This application is insufficient to meet the exhaustion requirements because it was directed to DOCCS rather than the state court. The proper method for Petitioner to exhaust this claim for purposes of habeas review (assuming it is cognizable) is through a state habeas corpus petition under New York's Civil Practice Law and Rules (“CPLR”) Article 70 or Article 78. See Bergamaschi v. Cuomo, 2020 WL 1910754, at *4 (S.D.N.Y. Apr. 20, 2020) (“[A]ny prisoner at any time is free to bring a petition for a writ of habeas corpus in the New York State Supreme Court, pursuant to [CPRL Article 70], on the ground that the conditions of his/her confinement are unlawful. . . [N]umerous such petitions have been brought, and many granted by justices of the New York State Supreme Court.”).
The Court notes that another avenue for Petitioner to assert his claims as to the conditions of his confinement is to bring a federal claim pursuant to 42 U.S.C. § 1983, and to the extent Petitioner argues that the Correctional Facility is not appropriately accommodating his disability, he may be able to assert claims pursuant to the Americans with Disabilities Act and/or the Rehabilitation Act. Claims brought pursuant to these law do not face the same exhaustion requirements that apply to petitions for a writ of habeas corpus, however each of these laws include their own procedural requirements. The relief available under these laws includes injunctive relief to ameliorate the unconstitutional conditions, but does not include release from custody.
This is true notwithstanding the District Attorney's argument in opposing Petitioner's C.P.L. 440.20 motion that the 440.20 motion should be dismissed because Petitioner raised the same argument in the instant habeas Petition, which, the District Attorney argued, is “the correct forum” to hear the challenge. (SR. 570.) This argument by the District Attorney is both incorrect and surprising in light of the fact that his civil counterpart raised the opposite argument here.
“Where a petitioner ‘used the wrong procedural vehicle' to present his claim to the state courts, ‘the state courts never had a fair opportunity to pass on his claim' and the claim is unexhausted.” Ramos v. Racette, 2012 WL 12924, at *16 (E.D.N.Y. Jan. 4, 2012) (quoting Dean v. Smith, 753 F.2d 239, 241 (2d Cir. 1985)). No exception to the exhaustion requirement applies because the New York state courts are “timely hearing and deciding claims the same as or similar to the one Petitioner asserts here.” Tripathy v. Schneider, 473 F.Supp.3d 220, 229 (W.D.N.Y. 2020). Petitioner does not point to any circumstances that render the appropriate state court process ineffective to protect his rights. 28 U.S.C. § 2254(b)(1)(B)(ii).
Although Petitioner has not exhausted this claim for purposes of habeas review, the claim is not procedurally barred because Petitioner still has the opportunity to raise this claim through the appropriate state court procedure. Because Petitioner has not shown good cause for his failure to exhaust this claim, the Court has a choice either to deny the Petition in its entirety or allow Petitioner to “delete the unexhausted claims” and proceed with the exhausted claims. Rhines, 544 U.S. at 277 (2005). Because I recommend finding that all of the exhausted claims should be dismissed on other grounds, there is no practical difference between the two options. However, assuming that Petitioner would prefer to delete the unexhausted claim in the Petition, see, e.g., Parsley v. Lamanna, 2023 WL 5510231, at *1 (S.D.N.Y. Aug. 25, 2023), I respectfully recommend that Petitioner's claims based on the conditions of his confinement be deleted as unexhausted.
2. Summary Judgment Motion
As discussed above, summary judgment motions are rarely appropriate in the habeas context. A motion for summary judgment is an inappropriate procedural vehicle to achieve the relief Petitioner has requested here. In any event, for the same reasons discussed above, Petitioner has not shown the existence of any undisputed material facts that would entitle him to relief as a matter of law. Accordingly, I respectfully recommend that his summary judgment motion be denied. See Chase, 2021 WL 5232689, at *3.
CONCLUSION
For the above reasons, I respectfully recommend that the Petition and Motion for Summary Judgment be denied, and the case be dismissed.
The Clerk of the Court is respectfully directed to mail a copy of this Report to the Petitioner.
NOTICE
Petitioner shall have seventeen days and Respondent shall have fourteen days from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days only when service is made under Fed.R.Civ.P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)). A party may respond to another party's objections after being served with a copy. Fed.R.Civ.P. 72(b)(2).
Petitioner shall have seventeen days and Respondent shall have fourteen days from the date of service of any objections to serve and file any response. Any objections and any responses to such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Jennifer H. Rearden at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and served on the other parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Rearden. The failure to file timely objections shall result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).