Opinion
1:20-cv-06025 (GBD) (SDA)
05-03-2021
Jonathan Cotto, Petitioner, v. Superintendent Michael Capra of Sing Sing Correctional Facility, Respondent.
REPORT AND RECOMMENDATION
STEWART D. AARON UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE GEORGE B. DANIELS, UNITED STATES DISTRICT JUDGE:
INTRODUCTION
Pro se Petitioner Jonathan Cotto (“Cotto” or “Petitioner”), currently incarcerated at Sing Sing Correctional Facility in New York State, seeks a writ of habeas corpus under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254. On April 14, 2015, a judgment was rendered in the Supreme Court of the State of New York, Bronx County, convicting Petitioner, following a jury trial, of Attempted Second Degree Murder, and sentencing him to a determinate term of incarceration of sixteen years and five years of post-release supervision. (Kublin Decl., ECF No. 12, ¶ 7.)
In his Petition, which was filed on July 30, 2020, Petitioner challenges his conviction on three grounds: (1) that the trial court erred when it instructed the jury that Petitioner was under a duty to retreat before using deadly physical force (Ground One); (2) that the trial court abused its discretion when it admitted testimony about a telephone call between a witness, Noelia Suarez (“Suarez”), and a man the prosecution alleged was Petitioner (Ground Two); and (3) that, since Petitioner had been offered a sentence of ten years immediately prior to trial, his sentence of sixteen years was excessive and amounts to a penalty for exercising his constitutional right to a trial (Ground Three). (See Pet., ECF No. 1, at 5-14.) For the reasons set forth below, I recommend that the Petition be DENIED in its entirety.
BACKGROUND
I. Facts Giving Rise To Cotto's Conviction
The following facts are derived from trial testimony. The trial transcript was filed by Respondent at ECF No. 15. Citations to pages of the trial transcript are made using the prefix “Tr.” followed by the page number of the transcript itself (e.g., “Tr. 1”). Where citation is being made to witness testimony, the name of the witness is identified in parentheses following the page number.
The incident that gave rise to Cotto's conviction occurred on April 24, 2014. On that date, Cotto attacked Santos Martinez (“Martinez”) with an axe. (Tr. 631-34, 702-15 (Martinez).) Martinez considered himself the father of an infant child (named J.J.) of Cotto's then-girlfriend, Suarez. (See id. 579-83, 655-57.)
At about 6:00 p.m. on April 24, 2014, Suarez's mother called Martinez at work and told him that Suarez and Cotto had been in an altercation, that Suarez had been arrested and that he needed to pick up J.J. (Tr. 607-08 (Martinez).) Martinez left work early, picked up J.J., brought him to his home and put him to bed. (Id. 608.) Martinez was angry because he heard that J.J. had been hit with a belt during the incident. (Id. 690.)
At about 11:30 p.m., Suarez called Martinez and asked where her son was. (Tr. 609 (Martinez).) Martinez said that he would bring J.J. back the next morning. (Id.) Suarez demanded that Martinez bring J.J. back right away. (Id.) Martinez woke up J.J., dressed himself and the baby quickly, and took a cab to Suarez's apartment (Id. 609-10.)
Cotto was double-parked in his van outside Suarez's building in the Bronx when Martinez brought J.J. up to Suarez's apartment. (Tr. 610-11 (Martinez).) After Martinez left the building, Cotto said to Martinez from Cotto's van, “mind your fuckin' business.” (Id. 612.) Thereafter, Martinez walked between two parked cars and approached the driver's side window of Cotto's van. (See id. 612, 614.) He told Cotto that, when Cotto engaged in violence in front of J.J., it was his business, because he did not want J.J. to get hurt. (See id. 612-14.) Cotto again said, “Mind your business” and rolled up his window and locked his door. (Id. 615.)
Martinez turned around to leave when he heard the van door open. (Tr. 615 (Martinez).) He then felt a blow to his face just above his left eyebrow, and he fell sitting down between the two cars. (Id. 615-16.) Cotto stood over Martinez holding a metal object with a black grip over his head with both hands, and said, “I told you mind your fucking business, right, ” and then hit Martinez in the head again. (Id. 617.) When Martinez later saw a photograph of the axe, he recognized it as the weapon Cotto had used based on the black grip. (Id. 631, 707.) In total, Cotto struck Martinez four or five times in the head with the axe. (Id. 618-19.) Martinez had no weapons and never touched Cotto. (Id. 715.) After striking Martinez, Cotto drove away. (See id. 619.)
Martinez felt blood coming down his face and he began to feel dizzy. (Tr. 619 (Martinez).) He walked to the corner and an ambulance arrived shortly thereafter. (Id. 620-21.) In the ambulance, Martinez spoke with Police Officer Tiburcio. (Tr. 691-92 (Martinez).) Martinez gestured to Suarez (who had arrived to see Martinez) and said, “her boyfriend did it, ” and said he drove a white van. (Id. 691-92 (Martinez); 803 (P.O. Tiburcio).)
Martinez had three lacerations on his head-one was over his left eyebrow and was consistent with having been hit with the sharp blade portion of the axe, the second was located on the top left side of the head and the third was to the back of Martinez's head. (Tr. 947, 953-56, 968-69, 978, 983-86, 990 (Dr. Caputo).) The attack also fractured his facial bones and skull. (Id. 957-58, 967-68, 975-76, 987.) Martinez faced a substantial risk of death due to internal and external hemorrhaging. (Id. 958-61, 966-67.)
Suarez agreed to canvas the area with Police Officers Tiburcio and Wooten. (Tr. 731 (P.O. Wooten); 805 (P.O. Tiburcio).) She told the officers that her boyfriend's name was Jonathan Cotto, that he was short, Hispanic and heavy-set, and that he would likely be driving a white, beat-up, Econoline van. (Id. 731-32 (P.O. Wooten).)
After they began canvasing, Suarez received a telephone call. (Tr. 733 (P.O. Wooten).) She said, “[T]his is him, this is him calling right now. Shh, be quiet, I'm going to put it on speaker.” (Id.) She answered the call and put the phone on speaker, and the officers heard a male voice on the other end of the phone. (Id.) Suarez asked him where he was, but he would not say, telling her he knew that she was with police. (Id. at 734.) She asked, “why did you do that him?” (Id.) The caller replied, “[Y]ou know he disrespect me. You know I can't let him do that. So I had to do what I had to do.” (Id.) Suarez said, “yeah, but my dude, my dude, you OD'd.... Jonathan, you OD'd.” (Id.) The two then began talking about their relationship and whether they would remain together. (Id.) Neither Officer Tiburcio nor Officer Wooten told Suarez to put the phone on speaker or to ask any questions, nor did they become involved in the conversation in any way. (Tr. 734-35 (P.O. Wooten); 810 (P.O. Tiburcio).)
Early the following morning, April 25, 2014, Cotto was apprehended outside of Suarez's building. (Tr. 764-65 (P.O. Perez-Romero).) Later that morning, the axe (with a dried red substance appearing to be blood on the head) was found in Cotto's van over the front passenger compartment, hidden between the metal roof and the headliner hanging below. (Id. 878-83, 893, 905-06 (P.O. Behan).) A DNA sample taken from the axe matched Martinez's DNA. (Tr. 909-15 (Det. Banek); 1009-30 (Criminalist Hansen).)
II. Relevant State Court Proceedings
On May 23, 2014, the Bronx County Grand Jury charged Cotto with Attempted Second Degree Murder (Penal Law § 110/125.25[1]); First Degree Assault (Penal Law § 120.10[1]); Second Degree Assault (Penal Law §§ 120.05[1] & 120.05[2]); Third Degree Assault (Penal Law § 120.00[1]); and Fourth Degree Criminal Possession of a Weapon (Penal Law § 265.01[2]). (Kublin Decl. ¶ 6.)
A. Pretrial Proceedings
On March 9, 2015, Cotto appeared before Justice Michael Gross. (Tr. 1.) The prosecutor recommended fifteen years of incarceration with five years of post-release supervision, adding, “[w]e haven't really been able to make any headway with [defense counsel] in terms of anything below that and at this point don't see any other reason for reducing that offer, particularly since the defendant has been arrested four times since then.” (Id. 6.) Justice Gross told Cotto that if Cotto were convicted of either top count on the indictment post-trial, he would face up to twenty-five years of incarceration with five years of post-release supervision, which could run consecutively with a possible fifteen year sentence on his open burglary case, if convicted of Burglary in the Second Degree on that case. (Id. 13-16.) Cotto confirmed that he understood. (Id. 17.)
Page 6 of the trial transcript indicates that the recommendation was five years of incarceration. (Tr. 6.) This appears to be a typographical error, since other references to the prosecutor's pretrial offer indicates it was fifteen years. (See, e.g., Tr. 16.)
On March 10, 2015, the prosecutor stated that, per defense counsel, Cotto wished to receive a sentence of eight years of incarceration with five years of post-release supervision, to run concurrently with the sentences in his other matters. (Tr. 36.) The prosecutor said that he needed to speak with his supervisor and the victim before responding. (Id. 36-38.) Ultimately, the prosecution did not reduce its recommendation. (Id. 106.) However, the court recommended a sentence of ten years of incarceration. (See id.) On March 11, 2015, defense counsel stated that, after thoroughly discussing with Cotto the pre-trial offer, including the possibility of consecutive sentences, Cotto wished to go to trial. (See id. 163.)
On March 18, 2015, the trial court addressed the admissibility of the police officers' testimony regarding the phone call that Cotto made to Suarez soon after attacking Martinez. (Tr. 419-22.) The court granted defense counsel's request for an authentication hearing. (Id. 424.) On March 19, 2015, Justice Gross held the authentication hearing, at which Officer Wooten testified. (Id. 534-53.) Following arguments by counsel, Justice Gross held, in relevant part, as follows:
Officer Wooten's testimony during this hearing regarding the phone call is consistent with the testimony he later gave at trial, which is summarized in Background Section I, supra.
It is clear to me beyond any reasonable doubt the substance of the conversation furnished clear confirmation of the identity of the voice at the other end.... [T]he voice on the other end responded to the question why did you do this to him, with words to the effect of, the voice did what the actor believed he had to do based on what the actor perceived to be a sign of disrespect. Based further on an apparent look that the speaker felt he had received from the victim all leads to the conclusion that the person on the end was, in fact, Jonathan Cotto, the person who was being sought by the police after being named by the woman Noelia [Suarez].
It should be noted further she actually . . . used the name Jonathan to the voice at the other end without any apparent denial of the voice contending that the speaker was not Jonathan. I do now find that the testimony of Officer Wooten not
only permitted the drawing of the inference that it would be improbable that the voice at the other end was - belonged to anyone other than Jonathan Cotto. I think it is virtually inconceivable on the facts before the Court that the speaker could have been anyone other than Jonathan Cotto. ...
The People have met the burden of establishing that the testimony of Wooten with respect to the phone call he overheard qualifies as a self-authenticating conversation to permit the jury to conclude, should it so choose, that the speaker on the other end was this defendant, Jonathan Cotto.(Tr. 560-67.) Justice Gross noted that he was basing his decision on People v. Lynes, 49 N.Y.2d 286 (1980), as well as the “host” of authorities cited in Lynes. (Id. at 566.)
In Lynes, the Court of Appeals affirmed a trial court's decision to admit into evidence, over the defendant's objection, a telephone conversation between a police detective and a caller who identified himself as the defendant. 49 N.Y.2d at 291-93. Although the detective admittedly was unfamiliar with the defendant's voice, other evidence, such as the timing and substance of the call, supported an inference that the caller was, in fact, the defendant and, thus, the trial judge properly left the question for the jury to decide. See id. (setting forth rule that trial judge “must determine that the proffered proof permits the drawing of inferences which make it improbable that the caller's voice belongs to anyone other than the purported caller”).
B. Trial
Commencing on March 19, 2015, Cotto was tried by jury before Justice Gross. A summary of the trial testimony offered by the prosecution is set forth in Background Section I, supra. Cotto testified in his own defense at trial, as follows:
On April 24, 2014, Cotto was double-parked outside of Suarez's building waiting to take her to dinner. (Tr. 1107-08 (Cotto).) He had his keys in his pocket. (Id. 1107.) Cotto texted and called Suarez to see what was taking so long. (Id. 1063.) Then, suddenly, Martinez knocked on his window. (Id. 1063-64.) Cotto rolled down the window, and Martinez asked what was going on between him and Suarez. (Id. 1064.) Cotto told him to mind his business, rolled up the window, and continued texting Suarez. (Id.) Next, Cotto's car door opened, Martinez grabbed him with one hand, and Cotto moved his body away toward the passenger side. (Id.) Martinez grabbed Cotto with two hands, and Cotto “grabbed the hammer which was an axe” and hit Martinez. (Id.) They both fell out of the van, with Cotto falling on top of Martinez. (Id. 1065.) Martinez still had “a firm grip, ” so Cotto hit him again, and Martinez let go. (Id.) Cotto testified that the first strike was to Martinez's left eye and the second strike was “somewhere in the head, ” or “at the hairline, ” both with the back of the axe. (Id. 1065, 1116-18.) Then, Cotto threw the axe in the van and left. (Id. 1065, 1120.)
According to Cotto, Suarez had been arrested earlier in the day after a “little argument” between Suarez and Cotto, but Cotto had declined to press charges. (Tr. 1059-60, 1100-03 (Cotto).)
During the charging conference, there was a dispute regarding the justification language in the jury charge related to the circumstances under which a defendant would not be justified in using deadly physical force. (Tr. 1211.) The parties agreed to the instruction that the defendant would not be justified if he was the initial aggressor of deadly physical force, but disagreed as to whether to include the “second alternative” that the defendant would not be justified in using deadly physical force “if he knew that he could with complete safety to himself and others, avoid the necessity of using deadly physical force by retreating.” (Id.) The prosecutor argued that the duty to retreat was appropriate based on the fact that Cotto, “by his own testimony, had the car keys on his person at the time that the incident began, and that he could . . . retreat.” (Id. 121112.) Defense counsel opposed because “it might somehow mislead the jurors since his claim . . . is that the duty to retreat may have arisen after the complainant was already engaged in conduct that Mr. Cotto took to be a threat of immediate deadly physical force.” (Id. 1212). The trial court stated: “Over defense objection, I am going to include that second alternative. The jurors will be told to consider the charge carefully and it will be for them to decide whether, in fact, there was any possibility if they reach this issue at all, of safely retreating by Mr. Cotto.” (Id.)
Defense counsel reiterated his concern that, based on the prosecutor's suggestion during summation that Cotto could have just driven away, the jury would misunderstand the law. (Tr. 1212.) Defense counsel then asked for an additional instruction that Cotto's “duty to retreat did not begin until [Martinez], if you find, tried to use physical force to try to pull him out of the car, or words to that effect.” (Id. 1212-13). The prosecutor opposed, and the court decided to read the standard jury instructions without addition, noting: “Appellate Courts have repeatedly indicated that judges vary from the C.J.I.[7] at their own peril. Appellate judges strongly urge the courts to use the C.J.I. language and only the C.J.I. language. Accordingly, the application to add additional facts becomes dangerously close to marshaling the evidence which I, as a trial Judge, believe it is not appropriate for this Court to do.” (Id. 1213-14).
The judge charged the jury on three counts: Attempted Murder in the Second Degree, Assault in the First Degree and Assault in the Second Degree. (Tr. 1227.) The jury convicted Cotto of Attempted Murder in the Second Degree. (Id. 1274.)
C. Sentencing
On April 14, 2015, Justice Gross sentenced Cotto. Cotto was adjudicated a second violent felony offender based on his October 7, 2009 conviction of Attempted Second Degree Criminal Possession of a Weapon. (S. Tr. 6). The prosecutor requested a sentence of twenty years of incarceration with five years of post-release supervision based on Cotto's extensive criminal history and pattern of domestic violence. (Id. 11-22.) In addition, the prosecutor made offers on Cotto's two pending criminal cases, which Cotto accepted. (Id. 46-55.)
Referring to the pattern Criminal Jury Instructions. See http://www.nycourts.gov/judges/cji/index.shtml (last visited May 3, 2021).
Justice Gross sentenced Cotto as a second violent felony offender to sixteen years of incarceration, noting that Cotto had “really taken no personal responsibility” for his crime. (S. Tr. 43.) Justice Gross also stated that the ten-year sentence offered pre-trial was “before [he] had the opportunity to hear over the course of these weeks at trial, just what [Cotto] did, what it means to strike a person in the head with an ax[e], a most dangerous instrument, not once, not twice, but at least three separate times.” (Id. 44-45.)
D. Direct Appeal
On or about September 28, 2018, Cotto, through assigned counsel, Office of the Appellate Defender, filed a direct appeal to the Supreme Court of the State of New York, Appellate Division, First Department. (Kublin Decl. ¶ 8.) Cotto raised the following claims: (1) the trial court committed multiple reversible errors when it instructed the jury that Cotto was under a duty to retreat before using deadly physical force; (2) the trial court abused its discretion when it admitted testimony about a telephone call between Suarez and a man the prosecution alleged was Cotto; and (3) Cotto's sentence of sixteen years should be reduced since the trial court offered Cotto a sentence of ten years immediately prior to trial, and his sentence amounts to a penalty for exercising his Constitutional right to a trial. (Pet.'s Appellate Brief, ECF No. 12-1, at 36-59.)
On May 28, 2019, the Appellate Division unanimously affirmed Cotto's conviction. People v. Cotto, 172 A.D.3d 595 (1st Dep't 2019). With respect to the first ground for appeal, the Appellate Division held:
The court providently exercised its discretion when it included the concept of the duty to retreat in its justification charge. The evidence introduced by both sides, viewed as a whole, presented a jury issue as to whether defendant had a duty to retreat. The standard charge sufficiently conveyed the principle that defendant's duty to retreat arose at the time deadly physical force was contemplated or threatened The language proposed by defendant was unnecessary and potentially misleading. In any event, any error in the court's instructions was harmless.Cotto, 172 A.D.3d at 595-96.
With respect to the second ground for appeal, the Appellate Division held:
The court properly permitted police officers to testify about the conversation they heard shortly after the incident when defendant's girlfriend put her phone on speaker so the officers could hear it. Although the girlfriend did not testify, there was sufficient circumstantial evidence to establish that defendant was the caller .... This included the girlfriend addressing the caller by defendant's first name, and the fact that the content of the call was obviously about the incident that had just occurred, about which the caller was making potentially incriminating statements. Contrary to defendant's argument, there is no reason to believe that an impostor was maliciously generating false evidence against defendant, and was able to deceive defendant's girlfriend as to his identity. In any event, defendant's challenges to this evidence go to weight rather than admissibility.Cotto, 172 A.D.3d at 596. Finally, with respect to the third ground for appeal, the Appellate Division held that it “perceive[d] no basis for reducing the sentence.” Id. at 596.
E. Denial Of Leave To Appeal To The Court Of Appeals
By letter dated June 26, 2019, Cotto, through assigned counsel, Office of the Appellate Defender applied for leave to appeal to the New York State Court of Appeals, enclosing copies of the briefs that had been filed in the Appellate Division. (Kublin Decl. ¶ 10.) In a supplemental leave letter dated July 26, 2019, Cotto argued that the Court of Appeals should grant leave “to consider whether the duty to retreat applies to defendants who are under physical restraint at the time they exercise deadly physical force.” (Id. ¶ 11.) Cotto also argued that the Appellate Division's alternative holding (that any charging error was harmless) was incorrect, and that the Court of Appeals should also review the following two issues: (1) the trial court's denial of counsel's request to issue a modified duty-to-retreat jury instruction (citing U.S. Const. amends. V, XIV); and (2) the trial court's admission of police testimony about a phone call that Cotto allegedly made to Suarez (citing U.S. Const. amends. V, XIV). (Id.)
On August 27, 2019, Associate Judge Michael J. Garcia of the New York Court of Appeals denied Cotto's application for leave to appeal. People v. Cotto, 34 N.Y.3d 929 (2019).
III. Habeas Petition
On July 30, 2020, Cotto filed his Petition that is now before the Court seeking relief on the same three grounds that he raised in his direct appeal to the Appellate Division. (See Pet. at 514.) On September 22, 2020, this case was referred to me for a report and recommendation. (See Order of Ref., ECF No. 6.) On January 21, 2021, Respondent filed its papers in opposition to the Petition. (See Kublin Decl.; Resp. Mem., ECF No. 13.) On March 3, 2021, Petitioner filed his reply. (Traverse, ECF No. 18.)
LEGAL STANDARDS
I. AEDPA Generally
Under 28 U.S.C. § 2254(a), a person in custody pursuant to a state court judgment only may prevail on an application for a writ of habeas corpus on the ground that his or her custody violates “the constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The petitioner must show that the state court decision, having been adjudicated on the merits, is either “contrary to, or involved an unreasonable application of, clearly established Federal law” or is “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
For the purposes of federal habeas review, “clearly established law” is defined as “the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000). A state court decision is “contrary to, ” or an “unreasonable application of, ” clearly established law if it: (1) is contrary to Supreme Court precedent on a question of law; (2) arrives at a conclusion different than that reached by the Supreme Court on “materially indistinguishable” facts; or (3) identifies the correct governing legal rule but unreasonably applies it to the facts of the petitioner's case. Id. at 41213. The state court decision must be “more than incorrect or erroneous;” it must be “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003). The AEDPA “dictates a highly deferential standard for evaluating state-court rulings” and “demands that state-court decisions be given the benefit of the doubt.” Bell v. Cone, 543 U.S. 447, 455 (2005) (internal quotation marks and citations omitted).
II. Exhaustion Requirement And Procedural Bar
“[B]efore a federal court can consider a habeas application brought by a state prisoner, the habeas applicant must exhaust all of his state remedies.” Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011) (citing 28 U.S.C. § 2254(b)(1)(A)). The exhaustion requirement has two components. See Parrish v. Lee, No. 10-CV-08708 (KMK), 2015 WL 7302762, at *6 (S.D.N.Y. Nov. 18, 2015). First, a court considers whether the petitioner “‘fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts.'” Id. (quoting Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981)). “Second, having presented [the] federal constitutional claim to an appropriate state court, and having been denied relief, the petitioner must have utilized all available mechanisms to secure [state] appellate review of the denial of that claim.” Parrish, 2015 WL 7302762, at *7 (quoting Klein, 667 F.2d at 282). In connection with this requirement, “the Supreme Court has held that when a ‘petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred,' federal habeas courts also must deem the claim procedurally defaulted.” Sweet v. Bennett, 353 F.3d 135, 139 (2d Cir. 2003) (quoting Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991)).
“In New York, . . . a criminal defendant must first appeal his or her conviction to the Appellate Division, and then must seek further review of that conviction by applying to the Court of Appeals for a certificate granting leave to appeal.” Galdamez v. Keane, 394 F.3d 68, 74 (2d Cir. 2005). “New York procedural rules bar its state courts from hearing either claims that could have been raised on direct appeal but were not, or claims that were initially raised on appeal but were not presented to the Court of Appeals.” Sparks v. Burge, No. 06-CV-06965 (KMK) (PED), 2012 WL 4479250, at *4 (S.D.N.Y. Sept. 28, 2012); see also DiGuglielmo v. Smith, 366 F.3d 130, 135 (2d Cir. 2004) (affirming the “denial of [a] habeas petition on the grounds, inter alia, that [petitioner's] claims were not properly exhausted” where “they were not properly presented to New York's highest court”).
“When a petitioner can no longer present his unexhausted claim of trial error to the state courts, ” a federal court sitting in habeas review “deem[s] the claim procedurally barred.” Richardson v. Superintendent of Mid-Orange Corr. Facility, 621 F.3d 196, 201 (2d Cir. 2010) (internal quotation marks and citations omitted). The merits of a procedurally defaulted claim may not be reviewed by a federal court “unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claim[ ] will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750; see also Dretke v. Haley, 541 U.S. 386, 388 (2004) (“[A] federal court will not entertain a procedurally defaulted constitutional claim in a petition for habeas corpus absent showing of cause and prejudice to excuse the default, ” or by showing petitioner was “actually innocent of the underlying offense.”).
Finally, because Petitioner is Pro se, the Court must liberally construe his petition and interpret it “to raise the strongest arguments that [it] suggest[s].” Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (internal citation omitted).
DISCUSSION
I. Ground One
In Ground One, Petitioner argues that that the trial court erred when it instructed the jury that Petitioner was under a duty to retreat before using deadly physical force. (See Pet. at 5-7.) He also argues that, even if the trial court was “justified” in giving its instruction, the trial court should have added the language to the charge that defense counsel requested to clarify that the duty to retreat did not attach until Cotto faced the imminent use of deadly physical force. (See id. at 7-8.) Respondent argues that Petitioner failed to exhaust this ground in state court because he did not fairly present it as a federal constitutional issue and, in any event, it should be denied on the merits. (Resp. Mem. at 24-41.)
The Court need not decide whether Ground One of the Petition was fairly presented as a federal constitutional issue to the Appellate Division because, even assuming it properly was exhausted, I find that Ground One lacks merit and, thus, recommend that it be dismissed under 28 U.S.C. § 2254(b)(2). Accord Herron v. Fields, No. 17-CV-07221 (VEC) (DF), 2021 WL 706334, at *17 (S.D.N.Y. Jan. 7, 2021), report and recommendation adopted, 2021 WL 695111 (S.D.N.Y. Feb. 19, 2021).
The April 14, 2015 sentencing transcript (“S. Tr.”) is filed at ECF No. 15 at PDF pages 1279 to 1342.
A state trial court's jury instructions are ordinarily a matter of state law and do not raise a federal constitutional question. See Cupp v. Naughten, 414 U.S. 141, 146 (1973) (discussing deference to trial court jury instructions). Thus, on habeas review, courts have been “careful to distinguish” claims that a petitioner was erroneously deprived of a jury instruction to which he was entitled under state law from claims that “the contours of the defense, under [state] law, were not properly explained.” Mojica v. Fischer, 254 Fed.Appx. 28, 30 (2d Cir. 2007) (quoting Davis v. Strack, 270 F.3d 111, 123 n.4 (2d Cir. 2001) (internal quotation marks and alterations omitted)).
Here, a justification instruction was given, and Petitioner's arguments concern only the contents of the charge, which is a matter of state law. See Gonzalez v. Cunningham, 670 F.Supp.2d 254, 263 (S.D.N.Y. 2009) (citing DiGuglielmo, 366 F.3d at 136-37). On direct appeal, the Appellate Division held that the trial court “providently exercised its discretion when it included the concept of the duty to retreat in its justification charge.” Cotto, 172 A.D.3d at 595. The Appellate Division also held that “[t]he language proposed by defendant was unnecessary and potentially misleading.” Id. at 596. The Appellate Division cited People v. Gonzalez, which held that “by instructing the jury that defendant's duty to retreat arose only ‘if he knows that he can, with complete safety to himself, avoid the necessity of using deadly physical force by retreating,' the court informed the jury that such duty only arose at the time when the use of deadly physical force was contemplated or threatened, not sometime prior.” 38 A.D.3d 439, 440 (2007). The trial judge gave a virtually identical instruction here. (Tr. 1232 (“The defendant would not be justified if he knew that he could with complete safety to himself and others, avoid the necessity of using deadly physical force by retreating.”).) Because the Appellate Division found that the jury charge was proper under state law, this Court cannot second-guess that ruling. See Mojica, 254 Fed.Appx. at 30 (“When a state court holds that a jury charge comports with the law of that state, ‘[w]e are not empowered to second-guess that ruling.'”) (quoting DiGuglielmo, 366 F.3d at 137).
Even if the Court were to find that the jury charge was erroneous, “a jury instruction that is erroneous under state law rises to the level of constitutional error only if, ‘viewed in the context of the overall charge,' the erroneous instruction ‘so infected the entire trial that the resulting conviction violates due process.'” Mojica, 254 Fed.Appx. at 30 (quoting Cupp, 414 U.S. at 147); see also Moronta v. Griffen, 610 Fed.Appx. 78, 79 (2d Cir. 2015). In weighing the prejudice from an allegedly improper charge, a reviewing court must view the instruction in its total context. See Cupp, 414 U.S. at 146-47. The question is “whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.” Id. at 147. Cotto has made no such showing, particularly considering the strong evidence “negating any claim of justification.” Mojica, 254 Fed.Appx. at 30 (alleged error in jury instruction could not have impacted jury decision in light of “strong overall evidence negating any claim of justification”).
For these reasons, I recommend that Ground One of the Petition be denied.
II. Ground Two
In Ground Two, Petitioner argues that the trial court abused its discretion when it admitted testimony about a telephone call between Suarez and a man the prosecution alleged was Petitioner. (See Pet. at 10-12.) On this point, the Appellate Division held: “Although the girlfriend [Suarez] did not testify, there was sufficient circumstantial evidence to establish that defendant was the caller . . . includ[ing the fact that Suarez] address[ed] the caller by defendant's first name, and the fact that the content of the call was obviously about the incident that had just occurred, about which the caller was making potentially incriminating statements.” Cotto, 172 A.D.3d at 596. In addition, the Appellate Division held that Petitioner's challenges to the telephone call evidence “go to weight rather than admissibility.” Id.
When a petitioner on habeas review challenges evidentiary rulings made by the state courts below, “a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991); see also 28 U.S.C. § 2254(a). To prevail on a claim that evidentiary error resulted in a constitutional deprivation of due process, a petitioner must establish “the error was so pervasive as to have denied him a fundamentally fair trial.” Collins v. Scully, 755 F.2d 16, 18 (2d Cir. 1985) (citation omitted). In so doing, a petitioner “bears a heavy burden because evidentiary errors generally do not rise to constitutional magnitude.” Copes v. Schriver, No. 97-CV-02284 (JGK), 1997 WL 659096, at *3 (S.D.N.Y. Oct. 22, 1997) (citation omitted).
Under 28 U.S.C. § 2254(b)(2), “[a]n 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.”
“As a first step, the Court must determine whether the State court did reach an erroneous conclusion about New York evidence law.” Mulligan v. Griffin, No. 15-CV-06502 (MAT), 2016 WL 6248850, at *6 (W.D.N.Y. Oct. 26, 2016) (citing Evans v. Fischer, 712 F.3d 125, 133 (2d Cir. 2013)). “If so, the Court then must determine whether the errors were ‘so egregious as to implicate the Fourteenth Amendment's guarantee of due process.'” Id.
In the present case, Petitioner has not demonstrated that the trial court misapplied state evidentiary standards. The trial court's decision to admit evidence regarding the telephone call was consistent with the New York Court of Appeals decision in Lynes, which, as discussed in footnote 5 supra, affirmed a trial court's decision to admit into evidence a telephone conversation between a police detective and a caller who identified himself as the defendant when other evidence supported an inference that the caller was, in fact, the defendant. 49 N.Y.2d at 291-93; see also Joseph v. McGinnis, 249 F.Supp.2d 236, 240-41 (S.D.N.Y. 1999) (“Under New York law, the identity of a person speaking over a telephone may be established by circumstantial evidence in a situation where the listener does not recognize the speaker's voice . . . if the conversation reveals that the speaker had knowledge of facts that he alone would be likely to know, or if other confirmatory circumstances make it probable that he was the speaker.”) (internal citation and quotation marks omitted). Thus, the rulings by the trial court and the Appellate Division regarding the admissibility of the telephone call evidence are consistent with New York law.
Nonetheless, even if such evidence was admitted in error, it cannot be said to rise to the level of a due process violation. “For a petitioner to successfully demonstrate denial of a fundamentally fair trial on grounds of a state court's erroneous admission of . . . unfairly prejudicial evidence, the challenged evidence must have been sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it.” Williams v. Jacobson, No. 15-CV-05319 (ER) (JLC), 2016 WL 4154700, at *13 (S.D.N.Y. Aug. 5, 2016), report and recommendation adopted, 2016 WL 7176648 (S.D.N.Y. Dec. 7, 2016) (citing, inter alia, Johnson v. Ross, 955 F.2d 178, 181 (2d Cir. 1992) (internal quotation marks and additional citations omitted); see also Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985) (evidence must be “crucial, critical, highly significant”). Given the overwhelming evidence of guilt present in this case, the Court does not find that, even if the telephone conversation evidence was erroneously admitted, it was sufficiently material. Cf. Thompson v. Artus, No. 10-CV-01443 (CBA), 2013 WL 6408354, at *12 (E.D.N.Y. Dec. 6, 2013) (holding that elicitation of hearsay testimony did not violate due process “given the overwhelming evidence of [petitioner's] guilt”).
Thus, I recommend that Petitioner's claim under Ground Two be denied.
See also Crane v. Kentucky, 476 U.S. 683, 689 (1986) (acknowledging a “traditional reluctance to impose constitutional constraints on ordinary evidentiary rulings by state trial courts”); DiGuglielmo, 366 F.3d at 136 (alleged errors of state law “cannot be repackaged as federal errors simply by citing the Due Process Clause”) (internal quotations marks and citation omitted); Ponnapula v. Spitzer, 297 F.3d 172, 182 (2d Cir. 2002) (“not every error of state law can be transmogrified by artful augmentation into a constitutional violation”) (internal quotation marks and citation omitted).
III. Ground Three
In Ground Three, Petitioner argues that, since Petitioner had been offered a sentence of ten years immediately prior to trial, his sentence of sixteen years was excessive and amounts to a penalty for exercising his constitutional right to a trial. (See Pet. at 13-14.) Respondent argues that Ground Three is unexhausted, but that, in any event, the Appellate Division's decision on the merits was not an unreasonable application of Supreme Court precedent. (Resp. Mem. at 4550.)
A. Exhaustion
In his application for leave to appeal to the New York Court of Appeals, Petitioner failed to raise Ground Three of the Petition. Petitioner's initial letter to the Court of Appeals stated that “there is a question of law in the above-captioned case as stated in appellant's brief, which ought to be reviewed by the Court of Appeals” and requests leave “to file a supplemental letter with the judge to whom this matter is assigned, addressing in greater detail the reasons why the Court should review his case and how the issues are preserved for this Court's review.” (Leave App., ECF No. 12-4.) The initial letter also attached copied of the briefs submitted to the Appellate Division. (See id.) Petitioner's supplemental letter did not address Petitioner's claim regarding his sentence. (See Supp. Ltr., ECF No. 12-5.)
Where, as here, Petitioner argues only certain claims in his application for leave to appeal to the Court of Appeals without reference to another, except by attaching the Appellate Division briefs, the unstated claim is not exhausted. See Jordan v. Lefevre, 206 F.3d 196, 198 (2d Cir. 2000) (“Arguing a single claim at length and making only passing reference to possible other claims to be found in the attached briefs does not fairly apprise the state court of those remaining claims.” (citing Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991))). Since the claim contained in Ground Three is unexhausted, it is procedurally barred and should be denied. See Sparks, 2012 WL 4479250, at *5 (habeas claim held to be procedurally barred where raised on direct appeal to Appellate Division, but not included in leave application to Court of Appeals).
As with Ground One, the Court finds that, regardless of whether Ground Two was exhausted (see Resp. Mem. at 25-31; Traverse at 6), it should be denied on the merits. See 28 U.S.C. § 2254(b)(2).
B. Merits
Even if Petitioner had exhausted his sentencing-related claim (Ground Three) by raising it on his leave application to the New York Court of Appeals, the Appellate Division's rejection of such claim was not an unreasonable application of relevant Supreme Court precedent.
“A court may not ‘vindictive[ly]' sentence a defendant for exercising a constitutional right, such as going to trial instead of accepting a plea bargain.” Scott v. Graham, No. 16-CV-02372 (KPF) (JLC), 2018 WL 5257613, at *20 (S.D.N.Y. Oct. 22, 2018) (quoting North Carolina v. Pearce, 395 U.S. 711, 725 (1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794 (1989)). “However, a petitioner's post-trial sentence is not unconstitutional simply because it exceeds a plea offer.” Id. As the Supreme Court has observed:
[W]hen a greater penalty is imposed after trial than was imposed after a prior guilty plea, the increase in sentence is not more likely than not attributable to the vindictiveness on the part of the sentencing judge. Even when the same judge imposes both sentences, the relevant sentencing information available to the judge after the plea will usually be considerably less than that available after a trial. A guilty plea must be both “voluntary” and “intelligent, ” . . ., because it “is the defendant's admission in open court that he committed the acts charged in the indictment, ” ....But the sort of information which satisfies this requirement will usually be far less than that brought out in a full trial on the merits.
As this case demonstrates, . . . in the course of the proof at trial the judge may gather a fuller appreciation of the nature and extent of the crimes charged. The defendant's conduct during trial may give the judge insights into his moral character and suitability for rehabilitation.Alabama, 490 U.S. at 801; see also Scott, 2018 WL 5257613, at *20 (“Though the risk of a more severe punishment may discourage a defendant from going to trial, ‘the imposition of these difficult choices is an inevitable-and permissible-attribute of any legitimate system which tolerates and encourages the negotiation of pleas.'”) (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978)).
Accordingly, “the mere fact” that Cotto's sentence following trial was greater than the offer made during plea negotiations, does not indicate that he “has been punished for exercising his right to proceed to trial.” Scott, 2018 WL 5257613, at *20 (citing cases). Notably, at sentencing, the trial judge stated that Cotto took no personal responsibility for his crime and that the ten-year sentence offered pre-trial was “before [he] had the opportunity to hear over the course of these weeks at trial, just what [Petitioner] did, what it means to strike a person in the head with an ax[e], a most dangerous instrument, not once, not twice, but at least three separate times.” (S. Tr. 4345.) Thus, the Appellate Division's rejection of Cotto's sentencing claim was not an objectively unreasonable application of federal law. For these reasons, I recommend that Ground Three be denied.
CONCLUSION
For the foregoing reasons, I respectfully recommend that the Petition be denied in its entirety. The Clerk of Court is respectfully requested to mail a copy of this Report and Recommendation to Petitioner.
SO ORDERED.
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