Curet v. Graham

Full title: JOSE CURET, Petitioner, v. HAROLD D. GRAHAM, Respondent.

Court: United States District Court, S.D. New York

Date published: May 11, 2022

14cv04831 (VSB) (DF) (S.D.N.Y. May. 11, 2022)

Opinion

14cv04831 (VSB) (DF)

05-11-2022

JOSE CURET, Petitioner, v. HAROLD D. GRAHAM, Respondent.

Mr. Jose Curet Sullivan Corr. Facility Counsel for Respondent

DEBRA FRIEMAN, UNITED STATES MAGISTRATE JUDGE

Mr. Jose Curet

Sullivan Corr. Facility

Counsel for Respondent

REPORT AND RECOMMENDATION

DEBRA FRIEMAN, UNITED STATES MAGISTRATE JUDGE

TO THE HONORABLE VERNON S. BRODERICK, U.S.D.J.:

Pro se petitioner Jose Curet (“Petitioner”) seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, following his conviction in state court, upon a jury verdict, of one count of Murder in the Second Degree, in violation of New York Penal Law § 125.25(3) (i.e., felony murder); Attempted Murder in the Second Degree, in violation of New York Penal Law § 110/125.25(1); Burglary in the First Degree, in violation of New York Penal Law § 140.30(1); Attempted Robbery in the First Degree, in violation of New York Penal Law § 110/160.15(2); and Criminal Possession of a Weapon in the Second Degree, in violation of New York Penal Law § 265.03(2). (See Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody, filed Jun. 11, 2014 (“Petition” or “Pet.”) (Dkt. 1) ¶ 5.) At the time he filed his Petition, Petitioner was incarcerated at the Auburn Correctional Facility (“Auburn”), in Auburn, New York (see Pet., at 1), although he has since been transferred to the Sullivan Correction Facility (“Sullivan”), in Fallsburg, New York (see Dkt. 24). Petitioner is presently serving a sentence of 43-years-to-life imprisonment, to be followed by five years of post-release supervision. (Pet. ¶ 3.)

In this habeas proceeding, Petitioner raises a number of challenges to his conviction, generally focused on the trial court's refusal to submit to the jury a statutory defense to felony murder that Petitioner claims was supported by the evidence at trial; the claimed ineffective assistance provided to Petitioner by his appellate counsel, who, according to Petitioner, failed to raise numerous meritorious claims on direct appeal; and the alleged deprivation of a fair and impartial jury, based on the fact that one of the jurors had personal knowledge relevant to the crimes that she failed to disclose during voir dire and then shared with other jurors. (See Pet. ¶ 12; see also generally Petitioner's Memorandum of Law in Support of Petitioner's Petition uner 28 U.S.C. § 2254 for Writ of Habeas Corpus, dated May 7, 2015 (“Pet. Mem.”) (Dkt. 11, at 1-28).) Respondent, the Superintendent of Auburn, ¹ argues that the various claims that Petitioner has asserted should be dismissed either because they lack merit or because they are unexhausted (and, in any event, without merit). (See generally Respondent's Memorandum of Law, dated June 3, 2015 (“Resp. Mem.”) (Dkt. 18).)

1 Given that Petitioner is now in custody at Sullivan, I recommend that (if the Petition is not dismissed), the Superintendent of Sullivan be substituted for the Superintendent of Auburn as Respondent in this proceeding, as the proper respondent in a habeas petition challenging present confinement is “the warden of the detention facility with physical custody of the petitioner . . . with the ability to produce the petitioner pursuant to a writ of habeas corpus.” Adikov v. Mechkowski, No. 16cv3797 (JPO), 2016 WL 3926469, at *1 (S.D.N.Y. Jul. 18, 2016) (internal quotation marks and citations omitted)).

For the reasons set forth below, I recommend that the Petition be dismissed in its entirety.

BACKGROUND

A. Factual Background

Petitioner and his codefendant, Noel Bruno (“Bruno”), stood trial together in 2009 for crimes related to a home invasion in the Bronx and multiple homicides that were committed in the course of that home invasion. Based on the evidence presented by the prosecution at trial, ²the events underlying Petitioner's conviction may be summarized as follows:

2 The trial transcript (“Trial Tr.”) submitted in this action by Respondent, supposedly as Exhibits 16 through 37 to the Declaration in Opposition of Orrie A. Levy, dated June 3, 2015 (“Levy Decl.”) (Dkt. 16) (docketed on the Court's Electronic Case Filing (“ECF”) system as Dkts. 16-16 through 16-37), is incomplete, as it does not include any of the proceedings that were apparently conducted prior to opening statements, or the proceedings that followed the prosecution's direct case - including Petitioner's direct case, the jury charge, and the return of the verdict. To the extent this Court cites to any portion of the trial transcript that has been submitted, it will refer both to the Docket number and the page number(s) printed on the transcript itself (the pages of which were consecutively numbered).

1. Johanna Hartley's Testimony at Trial

On the evening of September 20, 2005, Johanna Hartley (“Johanna”) and her husband, Elvis Hartley (“Elvis”) were visiting the apartment of Miguel Aquino (“Aquino”), ³ Dilcia Tejada (“Tejada”), and Tejada's two-year old son. (Trial Tr., Dkt. 16-16, at 3; 16-20, at 644-46.) Johanna testified that, after Aquino “made some food” (id., Dkt. 16-21, at 655), the two couples were on the couch talking when “[s]omeone knocked on the door” (id., at 657). Aquino opened the door, and Johanna testified that she heard him shout in Spanish, “oh, my mother, ” before three men, including two individuals Johanna identified as Bruno and Petitioner, ⁴ entered the apartment. (Id., at 657-59.) Johanna testified that Petitioner said “move over there, move over there, and go in there, get in there to the bathroom, ” and then pointed a gun at Elvis's head. (Id., at 660; see also id., Dkt. 16-22, at 788.)

3 During the trial, Aquino was sometimes referred to by his nickname, “Miguelito.” (See, e.g., Trial Tr., Dkt. 16-21, at 655.)

4 Throughout the course of Johanna's testimony, she referred to Bruno as the “assassin, ” Petitioner as “the ponytail, ” and the third man as the “blonde.” As of the time of Petitioner's trial, the third man had not been located and apprehended. (See Trial Tr., Dkt. 16-30, at 1915-16.)

Johanna testified that Petitioner put everyone into the bathroom, except for Aquino, who remained in the living room with Bruno. (Id., Dkt. 16-21, at 675.) From the bathroom, Johanna could hear Aquino yelling “that's enough; don't hit me anymore.” (Id., at 675, 680.) She also testified that she overheard Bruno asking Aquino, “Where is the stuff? Where is the stuff? You have it here.” (Id., at 682.) Johanna asked Petitioner “[w]hat was happening, ” and, according to Johanna, Petitioner and the third man both responded, “[T]his is the guy we are looking for, this jerk. [I]f he doesn't talk, you are all going to die here.” (Id., at 683.)

Johanna testified that Bruno and Petitioner searched the apartment, “removing and tossing stuff, ” while the third man held the gun (id., at 684), although, around this time, “[a]ll three” of the men were also asking Aquino, “Where is the stuff, if not we are going to kill you” (id.). According to Johanna, Bruno instructed either Petitioner and/or the third man to “bring one from the bathroom over [to the living room].” (Id., at 685; but see Dkt. 16-22, at 803.) Johanna was chosen, and taken to the living room, where the third man forced her to lie face down on the floor next to Aquino, who, according to Johanna, was already bound with tape. (Id., Dkt. 16-21, at 685, 688.) After Bruno continued to question Aquino, to no avail, the third man “started pressuring [Aquino] with the gun, ” including “hit[ting] [Aquino] in the head.” (Id., at 687.)

Johanna testified that Petitioner, at Bruno's behest, then brought Elvis to the living room. (Id., at 689-90.) All three of the men then continued to tell Aquino: “[T]alk, talk, because if you don't, all of you are going to die here. If you don't say where the stuff is, all of you are going to die.” (Id.) According to Johanna, Bruno had, at some point, taken the gun (she also indicated that the gun was being passed around among the three men) and was hitting Aquino with it while the other two men searched the apartment. (Id., at 690-91.)

Some time later, while Bruno was binding and gagging Johanna and her husband Elvis, Tejada emerged from the bathroom and begged Aquino to answer the men's questions. (Id., at 711-12.) When her pleas were unsuccessful, Tejada returned to the bathroom and the three men continued their search of the apartment, “searching” and “tossing stuff.” (Id., at 712-16.)

Johanna testified that, after Elvis was bound, Bruno removed Elvis's wallet, his ring, and a chain. (Id., at 718, 720.) A card in Elvis's wallet indicated to Bruno that Elvis had family in the police force. (Id., at 719.) Around this time, Johanna pleaded with Petitioner that her bracelet was impeding her blood flow, and she testified that Petitioner cut the bracelet off, along with the tape binding her wrists, scratching her in the process. (Id., at 721.) Bruno, however, then bound her up again. (Id., at 723.) Johanna testified that, at this point, “[t]hey seemed desperate. They seemed jittery, nervous.” (Id.) Johanna also testified that she requested a glass of water from Petitioner, informing him that she was “choking” (id., at 725), and, according to Johanna, Petitioner, after giving her the water, said to her: “Drink this water .... [T]his is the last water that you will drink .... All of you are going to die because of [Aquino's] fault” (id.).

Johanna testified that Bruno then pulled out a rope and was moving toward Aquino when Tejada came “running” and begged Bruno not to kill Aquino. (Id., at 726.) Bruno proceeded to strangle Aquino while the other two participants watched. (Id., at 728.) Johanna testified that, after strangling Aquino, Bruno “walked away and got a telephone cable.” (Id.) Elvis then “stood up, ” presumably to intervene or defend himself from an attack by Bruno, but was knocked down by all three of the men. (Id., at 729.) Bruno started to kick Elvis in the stomach while Tejada yelled at the three men not to kill “him, ” which, according to Johanna, caused the three men to go “crazy” because Tejada was “yelling too loudly.” (Id., at 730.) Johanna testified that, at some point, Bruno placed a pillow on Aquino's head and shot him there, killing him. (Id., at 742-43.) Afterwards, Bruno also shot Johanna, and she lost consciousness. (Id., at 738).⁵When Johanna regained consciousness, she saw Petitioner “at the door, ” and she testified that Petitioner saw her “open[] [her] eyes, ” and she watched Petitioner say to Bruno: “[S]he's alive, come back.” (Id., at 739.) Bruno returned to Johanna with the gun “in his hand.” (Id.) At this point, Johanna stated that she “felt that no one else was moving.” (Id., at 740.)

5 It was later confirmed that Johanna sustained a gunshot wound to her shoulder. (See Trial Tr., Dkt. 16-24, at 1137.)

Johanna testified that Bruno “got on top of [Johanna] with the gun, ” and they struggled. (Id., at 744.) According to Johanna, Bruno then shot her in her right cheek, although she testified that she did not lose consciousness again.⁶ (Id.) Johanna further testified that, as Bruno and Petitioner were leaving the apartment, she observed Bruno “shooting behind him” and heard Petitioner protesting and telling Bruno, “you hit me.” (Id., at 745.) After Bruno and Petitioner left the apartment, Johanna knocked on neighboring doors for help. (Id., at 746.) Eventually, a man invited her in, and called the police. (Id., at 747.)

6 Medical testimony revealed, however, that there was no gunshot wound to Joanna's cheek, just “abrasions” on her face. (Id., Dkt. 16-24, at 1146.)

Johanna testified that, during an initial interview by Detectives Luis Aponte and Carlos Infante at St. Barnabas Hospital, she gave a description of the individuals involved in the crimes, telling the detectives that “one had a hat and the other had a ponytail, and the other had the spikey hair spiked up.” (Id., at 758.) Johanna also testified that, on November 3, 2005, she went to the District Attorney's office to view the first of two line-ups, where she specifically identified Petitioner. (Id., at 766-67.) She further testified that, on November 17, 2005, she viewed the second line-up and identified Bruno. (Id., at 768.) Looking at Petitioner during her testimony at trial, Johanna confirmed that she had “no doubt” that, on the night of the incident, Petitioner was the person whom she had described as participating in the crimes (stating, specifically, “I have no doubt. It's him.” (id., at 770)), and that Bruno “was the one who did the shooting” (id.).

2. Testimony of Maria Negron

While the testimony of Maria Negron (“Negron”), Petitioner's girlfriend at the time the incident occurred, was missing from the copy of the trial transcript provided to this Court, the content of her testimony can be derived from the brief filed by Petitioner on his direct appeal. (See generally Levy Decl., Ex. 5 (Brief for Defendant-Appellant, dated Dec. 2011 (“App. Br.”)).) According to that brief, Negron testified at trial as follows:

On the night of the incident, she had called Petitioner at around 10:00 p.m., and Petitioner informed her that he would be home by around 2:00 a.m. (Id., at 14.) At around 11:00 p.m., Bruno pulled up in his car while Negron was outside playing cards with a neighbor, and informed Negron that Petitioner had been shot. (Id.) Bruno also told Negron that he, Bruno, “had to kill all three of them, ” and that he thought he had “shot [Petitioner] in the shoulder or chest.” (Id., at 15.) Bruno then told Negron to go with him to the hospital and ask for Jose Cruz, and instructed her that if anybody asked her how Petitioner had gotten shot, she was to say that he had been shot in Manhattan while trying to purchase “weed.” (Id.) Before Negron was able to see Petitioner at the hospital, however, she was intercepted by police and taken to the precinct. (Id.) A few hours later, after she was permitted to go home, Bruno arrived at her address and she called the police. (Id.)

3. Other Evidence Presented at Trial

The prosecution also introduced the testimony of several other witnesses at trial, some of whom described the police investigation that was performed in the case, the medical treatment that was provided to Johanna and Petitioner following the incident, and the forensic evidence that was developed, including blood evidence of Petitioner's presence at the apartment building where the incident occurred.

Sergeant Patrick Brown, one of the officers who responded to the scene of the crimes, testified that he had entered the apartment to find multiple bodies on the floor and Tejada “slumped over” in the bathtub, with her two-year old son, still alive, “sitting [next to her].” (Trial Tr., Dkt. 16-17, at 235.) EMS arrived afterwards and officially pronounced that Elvis, Aquino, and Tejada were dead. (Id., at 239.)

Also of relevance here is the testimony of Detectives Aponte, and Infante, as well as that of Detective Michael Morales, describing the events that led to the identification and arrest of Petitioner and Bruno. Detective Morales testified that, on the night of the incident, at approximately 11:55 p.m., he interviewed an individual at Columbia Presbyterian Hospital who identified himself as “Jose Cruz” and who was being treated for a gunshot wound. (See id., Dkt. 16-25, at 1277-93.) Detective Morales further testified that, while at the hospital, he also spoke to Negron, and that, in the course of his conversation with her, Negron alerted him to the fact that the individual identified as “Jose Cruz” was actually Jose Curet. (Id., at 1296.) Detective Morales testified that, after this conversation, he transported Negron to the police precinct for a further interview. (Id., at 1299; Dkt. 16-26, at 1314.)

Separately, Detective Aponte visited Johanna on the night of the incident at St. Barnabas Hospital. Detective Aponte's testimony indicated that Johanna had initially described the three males by their general characteristics. (Id., Dkt. 16-27, at 1495.) After Detective Aponte was made aware that “there was a male shot at Columbia Presbyterian” (id., at 1497) and that the individual was Petitioner (id., at 1498), he compiled a series of photographs and returned to the hospital to show the photographs to Johanna. (Id., at 1514-15.) Detective Aponte's testimony implied that, from the series, Johanna “signed the photo” of Petitioner (id., at 1512, 1515), at which point Detective Aponte contacted the police officers at Columbia Presbyterian Hospital who, in turn, arrested Petitioner. (Id., at 1515.) After cross-examination, Detective Aponte testified on redirect that Johanna had informed him that it was Petitioner (i.e., “the man that gave her water twice with the kinky hair”) who had put the gun to her husband's head, although Detective Aponte conceded that Johanna had not told him that Petitioner had also put a gun to her own head. (Id., Dkt. 16-30, at 1908.)

During cross-examination, Detective Aponte further indicated that he had spoken to Negron on the morning after the incident, and that Negron had assisted him in the investigation. (Id., at 1898.) Detective Aponte also indicated that he had interviewed Petitioner that same morning, although, at trial, he was prohibited from testifying as to the substance of Petitioner's statements. (Id., at 1904-05.)

Accompanying Detective Aponte to St. Barnabas Hospital on the night of the incident was Detective Infante, who, after spending a few minutes with Johanna at the hospital, returned to the police precinct. (Id., at 1910-12.) Based on Detective Infante's testimony, Negron provided information to him and other detectives that led them to Bruno, who had, at some point after the incident, showed up at the residence that Negron shared with Petitioner. (Id.) Detective Infante brought Bruno back to the police precinct, placed him in an interview room and read him his Miranda rights. (Id., Dkt. 16-29, at 1737-40.)

As explained below (see Background, infra, at Section B(1)), Petitioner and Bruno were tried jointly, although with separate juries, which, to some extent, heard different evidence. Before Bruno's jury, but not before Petitioner's jury, the prosecutor questioned Detective Infante regarding the substance of his conversation with Bruno, and Detective Infante read aloud the written statement Bruno had prepared in the interview room. Bruno's written statement gave the following account of events on the night of the crimes:

Geo had called me and said that he had to speak to me about going to get the guy that owed him ten key.

We met and started talking about what was going to take place.

So, we went and got Light a/k/a Jose Cruz. We spoke about what was going to happen, but things did not go the way it was supposed to happen.

Went up the first time, it was me, Light, the Spanish guy, and Nuni, but nothing happened, so we came down and Nuni had left ‘cause he did not feel like it was going right. So, Geo got desperate and said, ‘Fuck that. Y'all niggers ain't about nothing.'

So, he left in his car and went to get the young kid. He came back and then us four had went upstairs. And the young kid knocked on the door and rushed in and hit the guy and told him to chill.

I, Noel Bruno, went back down, ‘cause Geo was talking shit, so I left my phone with the young kid for we could know what was going on. So, I'm downstairs with Geo, started talking about what was going on. Then the young kid called him on the phone. That's when I went back up there. Two dead people. I tied one up. I freaked out and said, ‘what the fuck is going on here?' And the young kid said, ‘Fuck that. If we leave them alive, they will call the police.'

That's when we went and shot the other two people, and then everyone ran out and jumped into Geo's car and left the scene.

He left me around my way. I got my car, took Light to the hospital, and then I went and got his wife and took her to the hospital and I left and don't know what happened from there.

The young kid was the one manhandling everyone, ‘cause he was the one with the gun. Don't know what kind. I think it was a .45 or .9 millimeter.

(Id., at 1750-52.) Although this statement referred to several people (including “Geo, ” “Nuni, ” and “the young kid”) without giving their full identities, it plainly implicated Petitioner (identified as “Light a/k/a Jose Cruz” in the statement) as having participated in the incident. (See id.) Notably, while Bruno's statement was also received in evidence at Petitioner's trial, it was not brought out during the prosecution's case-in-chief. Rather, Petitioner's trial counsel introduced the statement during his cross-examination of another detective. (See id., Dkt. 16-33, at 2224-35.)

Finally, in addition to the testimony of the various detectives regarding the circumstances leading to Petitioner's arrest, Nana Lamouse Smith, an expert in the field of forensic biology and DNA analysis, also testified at trial confirming that DNA evidence obtained at the apartment building where the incident occurred matched that of Petitioner. (Id., at 2321; see also Dkt. 1634, at 2346).

B. Procedural History

1. Petitioner's Indictment, Trial, and Conviction

On September 26, 2005, Petitioner was indicted on six counts of Murder in the Second Degree, for acting in concert with others to murder Aquino, Tejada, and Elvis (three counts of intentional murder, and, in the alternative, three counts of felony murder). Petitioner was also charged in the Indictment with one count of Attempted Murder in the Second Degree (intentional) with respect to the shooting of Johanna, Burglary in the First Degree, Attempted Robbery in the First Degree, and Criminal Possession of a Weapon in the Second and Fourth Degrees. (Levy Decl., Ex. 1 (Indictment, dated Sept. 26, 2005 (“Indictment”).)

Beginning on September 29, 2009, Petitioner and Bruno were tried by jury, in the Supreme Court of the State of New York, Bronx County, with the Honorable John W. Carter, J.S.C, presiding. (See Trial Tr., Dkt. 16-16, at 1.) Before trial, another justice of the court denied motions by Petitioner and Bruno to sever the trial, except to the extent of determining that two separate juries would hear the evidence and then deliberate separately as to the charges against each defendant.⁷ Most significantly for purposes of this habeas proceeding, the evidence presented against Bruno and the evidence presented against Petitioner held one key difference with respect to the prosecution's case in chief - as described above, Bruno's written, post-arrest statement was presented by the prosecution in its case against Bruno, but that statement was only introduced by the defense in the case against Petitioner.

7 Although this Court has not been provided with the transcript of the pretrial proceedings where Petitioner's motion for severance was addressed, it appears from Petitioner's recitation of events (as set out in his eventual state coram nobis petition) that the decision to conduct the trial with dual juries was made by Justice David Stadtmauer, over Petitioner's objection. (See Levy Decl., Exs. 9-10 (Notice of Motion for Writ of Error Coram Nobis, stamped “received” Apr. 14, 2014; Petitioner's Affidavit Supporting Motion for a Writ of Error Coram Nobis, sworn to Apr. 6, 2014 (“Pet. Coram Nobis Aff.”), at 7-8.) The court's conducting of the trial with dual juries is, as discussed below, the subject of certain of Petitioner's current challenges to the fairness of his trial. To the extent other trial rulings are also the subject of Petitioner's habeas claims, those rulings will be addressed below, in the context of this Court's description and review of Petitioner's specific claims.

Although trial proceedings were not held every day, the joint trial, with dual juries, took approximately a month and a half to complete. (See Levy Decl. ¶ 7.) The jury verdict against Bruno was apparently returned first, although it was placed under seal until November 9, 2009. (See Dkt. 12-1, at 29, in Bruno v. Griffin, 16cv4432 (LGS) (S.D.N.Y.).) The jury verdict against Petitioner was then returned on November 15, 2009. (Levy Decl. ¶ 7.) Bruno was ultimately convicted of murder with respect to all three of the homicide victims (on one count of first-degree and two counts of second-degree murder). (See Levy Decl. ¶ 4 n.1.) Petitioner, on the other hand, was convicted of murder only with respect to the death of Elvis (on the count of second-degree felony murder); he was acquitted of murder with respect to Aquino and Tejada. (See App. Br., at 16; Trial Tr., Dkt. 16-38, at 4.) Both Bruno and Petitioner were separately convicted of attempted murder (with respect to Johanna), burglary, attempted robbery, and weapon possession. (See Levy Decl. ¶ 4 n.1; Pet. ¶ 5.)

2. Section 330.30 Motion and Hearing

On November 28, 2009, following the verdict, but prior to Petitioner's sentencing, Petitioner submitted a motion to the trial court to set aside the verdict pursuant to Section 330.30 of the New York Criminal Procedure Law. (Levy Decl., Ex. 2.⁸)

8 Exhibit 2 to the Levy Declaration consists of (1) Petitioner's Notice of Motion Pursuant to CPL § 330.30, dated Nov. 28, 2009; (2) the supporting Affirmation of Edward D. Wilford, Esq. (Petitioner's trial counsel), dated Dec. 3, 2009; and Petitioner's Memorandum of Law in Support of Motion To Set Aside Verdict, dated Dec. 3, 2009 (“Pet. § 330.30 Mem.”). Although both Respondent and the trial court noted that Petitioner's Section 330.30 motion was also supported by affidavits from two jurors (see Levy Decl. ¶ 10 and Ex. 4 (Decision of the trial court, dated Apr. 26, 2010, denying Petitioner's Section 330.30 motion (“§ 330.30 Decision”), at 17), those affidavits have not been included in this exhibit.

a. Claims Raised Under Section 330.30(1)

In his motion, as set out below, Petitioner raised four grounds to set aside the verdict pursuant to Section 330.30(1), which provides for such relief on “[a]ny ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court.” N.Y. C.P.L. § 330.30(1).

i. Denial of Unanimity of Verdict

First, Petitioner argued that he had been denied his constitutional right to a unanimous verdict, as the court's jury instructions had permitted some jurors to find that “burglary” and others to find that “attempted robbery” was the underlying felony for his felony-murder conviction for the death of Elvis. (See Pet. § 330.30 Mem., at 1-5.) More specifically, Petitioner claimed that it was error for the trial court, over a defense objection, to have charged the jury regarding felony murder in the same way that the Indictment was drafted, i.e., to have instructed the jury that the felony-murder count could be supported by the underlying felony of “burglary and/or robbery.” (Id. at 1 (emphasis added); see also Indictment (Counts 8, 9, 10 (emphasis added)).) According to Petitioner, post-verdict conversations with jurors revealed that “some jurors felt robbery was the underlying felony and some jurors believed burglary was the underlying felony” (Pet. § 330.30 Mem., at 3), demonstrating that the verdict had, in fact, not been unanimous (id.).

On a related point, Petitioner argued that, by only requiring the jury to find simple burglary and/or simple robbery (or attempted robbery) as the underlying felony, rather than first-degree burglary or first-degree robbery (or attempted robbery), “the court improperly created a variance in the [I]ndictment [which had separately charged those crimes in the first degree] and inappropriately lowered the prosecution's burden of proof.” (Id., at 1-2; see also id., at 3-5.) On this additional point, Petitioner asserted that certain jurors with whom counsel had spoken indicated that they had, in fact, found only simple burglary as a predicate for the felony-murder conviction, as they had reportedly relied on Petitioner's unlawful entry into the building to support the offense, rather than on his entry into the apartment in question (i.e., the “dwelling”), as would have been required for first-degree burglary. (See id., at 4.) Petitioner also argued that this report by jurors served to undermine Petitioner's felony-murder conviction for the death of Elvis, in light of the fact that Elvis, who did not reside in the apartment, lacked “sufficient privity of estate to be able to grant or deny access to the dwelling.” (Id.)

ii. Inconsistency of Verdict

As a second ground for relief under Section 330.30(1), Petitioner argued in his motion that the verdict against him was inconsistent and legally insufficient. (Id., at 5-6.) Reiterating that burglary in the first degree would have required an unlawful entry into a dwelling, Petitioner highlighted his felony-murder acquittal with respect to the deaths of Aquino and Tejada (the actual residents of the dwelling), and contended that, to the extent the felony-murder charges related to those two victims were based on an underlying felony of first-degree burglary, this acquittal was inconsistent with his conviction on the first-degree burglary charge. (Id., at 5.) Further, he argued that, to the extent the felony-murder charges related to Aquino and Tejada were based on an underlying felony of first-degree attempted robbery, his acquittal on the felony-murder charges as to those victims was inconsistent with his first-degree attempted-robbery conviction - especially as, according to Petitioner, the theory of attempted robbery on which the prosecution had proceeded at trial was that there had been an attempt to steal specific property (drugs and/or money) from Aquino. (Id., at 5-6.) Finally, Petitioner argued that his acquittals on the felony-murder charges relating to the deaths of Aquino and Tejada could not be reconciled with his conviction on the same type of charge relating to the death of Elvis, rendering the verdict “inconsistent and repugnant.” (Id., at 5.)

iii. Failure of the Court To Charge the Affirmative Defense to Felony Murder

The third argument raised by Petitioner under Section 330.30(1) was that the trial court had committed reversible error by failing to submit to the jury the statutorily available affirmative defense to felony murder, a defense which Petitioner claimed was supported by evidence in the trial record, including Bruno's statement to the police. (See Pet. § 330.30 Mem., at 6-12.) Specifically, New York law provides for an affirmative defense to felony murder where the defendant can show, based on a preponderance of the properly-admitted evidence at trial, that he:

(a) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and

(b) Was not armed with a deadly weapon, or any instrument, article or substance readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons; and

(c) Had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article or substance; and

(d) Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.

N.Y. Penal Law § 125.25(3); see also Thompson v. Kelly, 22 F.3d 450, 453 (2d Cir. 1994). Petitioner argued in his motion that, upon request, a trial court must submit this affirmative defense to the jury, as long as “any reasonable view of the evidence, ” viewed in the light most favorable to the defendant, supports the defense. (Pet. § 330.30 Mem., at 8.) In this instance, Petitioner contended that Johanna's trial testimony that Petitioner was not the killer and was not armed, together with Bruno's post-arrest statement - from which, according to Petitioner, the jury could have deduced that Petitioner had no reasonable ground to believe that any other participant was armed or intended to engage in violent conduct - provided sufficient evidentiary support for the affirmative defense to have required the trial court to submit it the jury (see id., at 9-10), and that the court's failure to do so “usurped the jury function” (id., at 8).

In connection with his argument that the affirmative defense should have been submitted to the jury, Petitioner also contended that the trial court erred in not permitting Petitioner's own pretrial statements (one that was in writing, and another that was taken by video) to be introduced into evidence at trial. (Id., at 11.) According to Petitioner, the prosecution had initially indicated that it intended to introduce those statements as part of its direct case against Petitioner, and this indication, in fact, had led to the trial court's decision to conduct a dual-jury trial (presumably as it would have enabled the statements to be introduced against Petitioner, but not heard by the jury deciding the case against Bruno). (See id.) When the prosecution then changed course, and decided not to introduce Petitioner's statements, Petitioner sought to introduce them himself, arguing that they would provide support for the affirmative defense, but the court then declined to allow their introduction. (See id., at 11-12.) Plaintiff asserted, in his Section 330.30 motion, that

[t]he purposeful conduct of the prosecution to deprive [Petitioner] of the affirmative defense to felony murder and cause [Petitioner] to participate in a dual jury when the prosecution had no intention of using [Petitioner's] statements[, ] in the interest of justice and fundamental fairness required that the court permit [Petitioner] to introduce his statements in the first instance, or at the very least permit[] [Petitioner] to argue to the jury the affirmative defense based on the evidence in the case.

(Id., at 12.)

iv. Erroneous Charge of Alternate Theories of Murder

For his fourth ground for relief under Section 330.30(1), Petitioner argued that the Indictment against him had been defective for charging him both with intentional murder (acting in concert with Bruno) and with felony murder, with respect to each of the homicide victims; relatedly, Petitioner argued that the trial court had erred by failing to require the prosecution to choose the theory of murder on which it wished to proceed against Petitioner and then instructing the jury accordingly. (See id., at 12-13.) In support of this argument, Petitioner cited then-recent precedent of the New York Court of Appeals, rejecting as improper the previously accepted practice of charging both intentional and reckless homicide in one indictment, and holding that the prosecution must choose the theory under which it wishes to proceed. (See id., at 13 (citing cases).) Reasoning by analogy, Petitioner argued that the People had improperly charged Petitioner simultaneously with both intentional conduct (acting-in-concert murder) and conduct that did not require proof of intent (felony murder), and that the court should have proceeded to dismiss the intentional-murder charges and not submit them to the jury. (Id.)

b. Claim Raised Under Section 330.30(2) (Deprivation of a Fair and Impartial Jury)

In addition to all of the above arguments that Petitioner set forth under Section 330.30(1), Petitioner also argued, in his motion, that the verdict against him should be set aside pursuant to Section 330.30(2), which provides for such relief when, “during the trial there occurred, out of the presence of the court, improper conduct by a juror, or improper conduct by another person in relation to a juror, which may have affected a substantial right of the defendant and which was not known to the defendant prior to the rendition of the verdict.” N.Y. C.P.L. § 330.30(2).

In this regard, Petitioner contended that, based on “post[-]verdict conversations with jurors[, ] there was outside influence which invaded the jury room and caused the jury to return the verdict that it did.” (Pet. § 330.30 Mem., at 14.) In particular, Petitioner asserted that an alternate juror, who ended up participating in the deliberations of Petitioner's assigned jury, had failed to disclose, during voir dire, that a co-worker of hers lived in the building where the crimes had occurred, and that this co-worker had discussed the case with her. (Id.) Further, Petitioner asserted that this juror “was significantly impacted by this circumstance and informed other jurors of that fact.” (Id.) As noted above (see supra, at n.8), Petitioner apparently submitted two juror affidavits to support this assertion. Although this Court has not seen copies of these affidavits, Respondent describes them as “recounting that, prior to deliberations, another juror informed them that the juror knew the neighbor of the victims and that the victims were ‘good people and were not involved in drugs.'” (Levy Decl. ¶ 10.)

In addition, Petitioner contended in his motion that certain members of the jury assigned to Petitioner's case had, improperly, been in communication with members of the jury assigned to Bruno's case, and that this communication “unduly influenced” the deliberative process of Petitioner's jury. (See Pet. § 330.30 Mem., at 14-15.)

c. Section 330.30 Hearing Conducted by the Trial Court on Petitioner's Claim of Juror Misconduct

On February 17, February 23, and March 10, 2010, Justice Carter held a hearing with respect to Petitioner's claim of juror misconduct.⁹ Both of the two affiants, as well as two other jurors (including the particular juror who had purportedly brought the external information to the other jurors' attention), testified at the hearing.

9 The transcript of this hearing (“§ 330.30(2) Hearing Tr.”) has been filed as Exhibit 39 to the Levy Declaration. (Dkt. 16-39.) As with the trial transcript, the pages to this hearing transcript, over the course of its three days, are consecutively numbered, and those numbered pages will be cited herein.

First, affiant and juror Fabiola Gomez (“Gomez”) testified that, toward the end of the case, but prior to the jury's deliberations, another juror, Shawntonette Stallings (“Stallings”), ¹⁰told her (but only her) in the jury room that Stallings knew the neighbor of the victims where the incident had occurred, that the neighbor had told Stallings that “they” (i.e., Aquino and Tejada) were “good, ” and did not “sell drugs, ” and that Stallings believed Petitioner was guilty. (Section 330.30(2) Hearing Tr., at 11, 25, 29.) Despite this initial testimony by Gomez that Stallings' statements were made in Gomez's presence alone (id., at 10), Gomez then went on to testify that other jurors were also present when Stallings made these statements, including jurors Rosa Tejada (“Rosa”), Shelly Carrier (“Carrier”), and Jolene Perez (“Perez”) (id., at 12-14, 31). Gomez believed Stallings relayed the information from her neighbor because “she [was] trying to convince us that these people was [sic] good.” (Id., at 15.) Gomez further testified that when Stallings made the statements, there was no response from any of the other jurors that were present. (Id., at 34.) In response to questioning by Petitioner's trial counsel, Gomez testified that Stallings' statements did not have any impact on her ultimate decision in the case. (Id., at 16, 33.)

10 Gomez identified Stallings as “Shawny” during the hearing. (Id., at 12.)

Second, affiant and juror Carrier testified that, during the course of deliberations, while sequestered at a hotel, Stallings had told Carrier that Stallings had a co-worker who had a neighbor (who was also Stallings' co-worker) who used to live in the building where the incident occurred, that Stallings had spoken to “this person” (id., at 56), and that “they [had] told her what happened and she knows everything that happened and therefore knows that the defendant, Mr. Curet, is guilty” (id., at 38). When questioned by the prosecution, however, Carrier clarified that she had been told that the neighbor was not an eyewitness and was not inside the apartment; but rather that the neighbor had only “heard the banging on the door and the gunshots.” (Id., at 57-58.) Carrier further testified that Stallings' statements were made in the presence of only one other juror, whom she identified as Jasmin Scudder (“Scudder”). (Id., at 39.) Carrier denied that Gomez, Perez, and Rosa were present when the statements were initially made to her. (Id.) Carrier further testified that she did not discuss these statements with any of the other jurors, and that the only time the statement was made in her presence while jurors other than Scudder were present was after the verdict had been rendered, and not during deliberations. (Id., at 40, 48; see also id., at 51 (testifying that, after the verdict was rendered, Stallings repeated the statement to “the whole jury”).) Upon questioning by the prosecution, Carrier testified that, while Stallings' statement to her had made her “question the situation a little more, ” her decision at the end of the case that Petitioner was guilty was made “after reviewing all the evidence and the facts.” (Id., at 59-61.)

After Carrier's testimony, Petitioner's counsel suggested that the court contact juror Stallings, and the court agreed. Stallings testified that, toward the end of the trial, a co-worker had informed her that there was a “shootout next door in [the co-worker's] apartment, ” and had informed Stallings of the number of the building where the shootout had occurred. (Id., at 73.) When asked by the court if the conversation “with this person affect[ed] [her] verdict in any way, ” Stallings responded, “[n]o.” (Id., at 77.) Stallings further testified that she “only told [Scudder]” about this conversation prior to the jury's deliberations, and that she did not tell any other jurors because “it had nothing to do with anything.” (Id., at 85-86.)

After Stallings' testimony, Petitioner's counsel noted that there were “two very different assertions of events from three people all who were sworn, ” and that there remained “some question as to when the conversation with [] Stallings was had.” (Id., at 87-88.) The prosecution argued that the information provided by Stallings was, based on the testimony of Gomez and Carrier, “innocuous, ” as it was “nothing more than any information that came out during the course of the case . . . and it [did] not affect any substantive right of [Petitioner].” (Id., at 88-89.) Petitioner's counsel nevertheless urged the court for further testimony from Scudder to “just complete the picture, ” including for purposes of clarifying what impact the information had on Stallings, when Stallings received the information, her failure to disclose the information to the court, and whether Stallings had other discussions with the jurors about the information. (Id., at 90-91.) The court agreed that, for the sake of “complet[ing] the record, ” Scudder could testify. (Id., at 94.)

Juror Scudder then testified that, before deliberations had begun, Stallings had told her that Stallings had a co-worker who lived in the building where the incident occurred, and that the co-worker moved after the incident. (Id., at 100.) Scudder testified that, when Stallings made these statements to her, she did not remember any other jurors being present. (Id.) Scudder further testified that she never spoke to Carrier or any of the other jurors regarding these statements, and that Carrier was not present when these statements were made to Scudder by Stallings. (Id., at 102.) Scudder testified that the statements did not influence her verdict “at all.” (Id., at 105.)

d. The Trial Court's Decision on the Motion

At a brief proceeding on April 26, 2010, Justice Carter stated on the record that he had denied Petitioner's Section 330.30 motion to set aside the verdict (see Dkt. 16-39, at 107-08), and, on that same day, he issued a written decision, setting out his reasoning for that decision (see generally § 330.30 Decision.) The court's reasoning is summarized below, as to each of the arguments raised by Petitioner on the motion.

i. Denial of Claim of Alleged Lack of Unanimity of Verdict

As to Petitioner's contention that the jurors' potential reliance on different underlying felonies to support his conviction for felony murder rendered the verdict less than unanimous, the trial court noted that

where a count[] charges a single offense, here felony murder, but the evidence that was presented suggests alternate means by which an element of that offense was committed, the count is not duplicitous. Thus, a court charging that the jury could find that the defendant intended to commit the crime of Burglary or Attempted Robbery as the underlying felony is not faulty.

(Id., at 3 (citation omitted).) The court also noted that, in this case, the jury had convicted Petitioner of both Burglary in the First Degree and Attempted Robbery in the First Degree. (Id., at 4.)

Moreover, as to Petitioner's argument that the court had erred by charging the jury that simple burglary and/or robbery (rather than first-degree burglary or first-degree attempted robbery, as separately charged in the Indictment) could satisfy the underlying felony requirement of felony murder, thereby allegedly lowering the People's burden of proof, the court found that “[t]he courts of [New York] state have long held that a felony murder conviction may stand even if the underlying felony which serves as it[]s predicate is not submitted to the jury, . . . or if the underlying felony has been dismissed.” (Id., at 5 (citations omitted).) As, in the court's view, the evidence at trial would have supported “any degree of burglary or attempted robbery, ” the charge given to the jury was not improper. (Id.)

ii. Denial of Claim of Alleged Inconsistency of Verdict

As to Petitioner's claim that the verdict should have been set aside as “inconsistent” or “repugnant, ” the court, as a threshold matter, acknowledged the People's response that this claim was subject to denial for not having been raised before the jury was discharged. (See id., at 6; see also Levy Decl., Ex. 3 (Memorandum of Law in opposition to Petitioner's Section 330.30 motion, dated Feb. 4, 2010), at 8-9.) Noting that, “[f]or a defendant to preserve a repugnancy claim, he is required[, ] as a matter of law, to raise the issue by alerting the court prior the discharge of the jury when any infirmity in the verdict can be remedied by re-submission of the case to the jury” (§ 330.30 Decision, at 7 (citation omitted)), the court accepted the People's argument that, as Petitioner had not done this, “the repugnancy issue was not preserved and the motion should be denied” (id.).

Nonetheless, the court proceeded to address the claim on the merits, and further found that, “in any event, the verdict was neither repugnant nor inconsistent.” (Id.)¹¹ On this point, the court stated that a conviction could be set aside for repugnancy “only in those instances where ‘an acquittal on one crime as charged to the jury is conclusive as to a necessary element of the other crime as charged for which the guilty verdict was rendered.'” (Id. (citations omitted).) The court noted that the court's inquiry on a repugnancy challenge must look not to the evidence, but rather to the elements of each count, as charged by the court; where two counts “have the same basic elements and a verdict of guilty is returned on one and a verdict of not guilty is returned on the other, ” then the verdicts are considered repugnant, and the count on which the defendant was convicted must be dismissed. (Id.) In this case, the court found that Petitioner's repugnancy claim was “unavailing, ” as the three murder counts involved different victims, and as Petitioner's challenge was “based on an evaluation of the trial testimony rather than the court's charge.” (Id.) Although the court noted that the jury's verdict - convicting Petitioner of felony murder of Elvis, while acquitting him of felony murder of Aquino and Tejada - was “seemingly illogical, ” it found that the verdict was not inherently repugnant, under the applicable standards. (Id., at 7-8.)

11 The court also noted that, whether the verdict was being described as allegedly “inconsistent” or as allegedly “repugnant” was “substantively inconsequential[, ] as the two terms are used interchangeably.” (§ 330.30 Decision, at 6.)

The court also expressly rejected Petitioner's argument that his conviction for first-degree burglary (i.e., burglary of a dwelling) was inconsistent with his acquittal for felony murder of Aquino and Tejada, as they owned the apartment (the “dwelling”). (See id., at 8.) After considering precedent holding that “[a] dwelling does not lose its character based on the temporary absence of it[]s occupant or even the death of its owner, ” the court concluded that “a proprietary interest in the dwelling [was] not necessary in order for the [first-degree burglary] charge to be sustained.” (Id. (citations omitted).) The court similarly rejected Petitioner's contention that his conviction for first-degree attempted robbery was inconsistent with his acquittal for felony murder of Aquino, where, according to Petitioner, the prosecution had proceeded at trial on a theory that Petitioner, acting in concert with others, had attempted to rob Aquino, in particular, of drugs and money. (Id.) As to this contention, the court summarized some of the trial evidence (including testimony that the codefendants had looked through both Johanna's purse and Elvis's pockets), and found that the count of first-degree attempted robbery, as charged, was not specific to only Aquino. (Id., at 8-9.)

Finally, the court noted that where a jury verdict is not “repugnant” under applicable legal standards, “it is imprudent to speculate concerning the factual determinations that underlay the verdict because what might appear to be an irrational verdict may constitute a jury's permissible exercise of mercy or leniency.” (Id., at 9 (citations omitted).)

iii. Denial of Claim Challenging Court's Failure To Charge Affirmative Defense

As to Petitioner's claim that the court had erred by failing to submit to the jury the statutory affirmative defense to felony murder, the court noted that “[a] defendant is entitled to the submission of an affirmative defense when and only when the defendant has demonstrated that a reasonable view of the evidence would have allowed a jury to find that each and every one of those elements of the defense was established by a preponderance of the evidence.” (Id., at 11 (citation omitted).) In this case, the court noted that, in arguing that the evidence was sufficient to support the submission of the affirmative defense, Petitioner relied on the post-arrest statement by Bruno (id., at 11-12), but the court found that Bruno's statement contained “nothing to indicate” that Petitioner lacked reasonable grounds to believe that one of the others was armed, and that one of the others intended to engage in conduct likely to cause serious injury or death (Id., at 12). “Thus, ” the court determined, “Bruno's statement [did] not meet the burden required for the affirmative defense.” (Id.)¹²

12 Although this had not been raised in Petitioner's motion, the court also found that nothing in Negron's testimony indicated that Petitioner did not know that one of the participants was armed, and that the participants intended to engage in conduct likely to cause serious physical injury or death. (Id., at 13.)

The court also addressed Petitioner's related argument that it had deprived him of a fair trial by refusing to permit the defense to introduce Petitioner's own post-arrest statements, which, according to Petitioner, would have supported the affirmative defense. (See id., at 13.)¹³The court found that the statements in question were inadmissible hearsay, and that their admission “would have allowed [Petitioner] to introduce self-serving statements without being subject to cross-examination.” (Id., at 14 (citations omitted).) Further, noting that nothing in Petitioner's out-of-court statements evidenced that “[he] or another participant did not have a gun, or that the other participants were not going to engage in conduct likely to cause serious physical injury or death” (id.), and that the statements showed, inter alia, that Petitioner had knowingly aided a robbery/burglary scheme to get money and/or drugs from the apartment, the court also found that, in any event, Petitioner's statements would not have been sufficient to satisfy the elements of the affirmative defense, even if viewed in the light most favorable to him (id.).

13 Although Petitioner's post-arrest statements are absent from the Record, Petitioner, in his reply, has provided the following description of at least one of his statements:

[Petitioner] gave a statement to police investigator indicating that he had been with Mr. Bruno, on the day of the murders and had been present while the crimes took place. The statement, while placing the Petitioner at the scene of the crime, also tended to exculpate him .... This [statement] recounted how Petitioner had at various points in the course of the evening attempted to show that he did not share the intent or purpose of the principal actor and it also indicated his shock and surprise at Mr. Bruno's actions and his own fear that Mr. Bruno would harm him as well if he did not keep silent and cooperate when instructed to do so by Mr. Bruno.

(Pet. Reply, at 10.)

iv. Denial of Claim Challenging Jury Charge of Both Intentional Murder and Felony Murder

As to Petitioner's argument that the court erred by submitting both intentional murder and felony-murder counts to the jury, the court noted that the recent New York Court of Appeals precedent cited by Petitioner - all of which related specifically to depraved-indifference murder - was inapplicable to Petitioner's case. (Id., at 15-16.) The court explained that “[d]epraved indifference murder and intentional murder are now considered in almost all circumstances to be inconsistent counts when they arise from a single murder because guilt of one count necessarily negates guilt of the other count.” (Id. (citations omitted).) The court further explained that, in contrast (and as the People had “correctly argue[d]”), “it is legally permissible to be convicted of both intentional and felony murder if it is proven that the defendant intentionally killed a nonparticipant during the commission of a[n] enumerated felony.” (Id., at 16 (citations omitted).) The court thus found that it had been properly within its discretion to charge Petitioner with both intentional murder and felony murder, based on alternative theories that would have both been supported by the evidence. (Id.)

v. Denial of Juror-Misconduct Claim

Finally, the court rejected Petitioner's juror-misconduct claim, based on the evidence adduced at the hearing that the court had conducted with respect to that claim. (See id., at 1720.) The court summarized the testimony given by the four jurors who were called to testify at that hearing, and, although the court noted certain inconsistencies in that testimony, it also noted that each of those jurors who had received relevant, out-of-court information had “indicated emphatically that this information did not impact their ultimate verdict in the case” or “their ability to be fair.” (Id., at 19.) In light of this, the court found that “no substantial right of [Petitioner] was impacted.” (Id., at 19-20 (citation omitted).)

3. Petitioner's Sentencing

Petitioner's sentencing was conducted on May 6, 2010, before Justice Carter.¹⁴ At sentencing, the court adjudicated Petitioner a second felony offender, based on his earlier conviction of Criminal Possession of a Weapon in the Third Degree. (See Sentencing Tr., at 2-3.) After hearing statements from a member of Elvis's family and from both counsel, the court recounted some of the evidence, commented on Petitioner's history, and imposed consecutive prison sentences of 25 years to life for the felony murder of Elvis and 18 years for the attempted murder of Johanna (for a total of 43 years to life), as well as concurrent prison sentences of 20 years on the burglary count, 15 years on the attempted-robbery count, and 15 years on the weapon-possession count. (Id., at 21-22.) The court also sentenced Petitioner to a term of 10 years of post-release supervision, on all of the determinate sentences. (Id., at 23.)

14 The transcript of Petitioner's sentencing (“Sentencing Tr.”) has been filed as Exhibit 38 to the Levy Declaration. (Dkt. 16-38.)

4. Direct Appeal

On or about December 13, 2011, Petitioner filed a counseled brief in the Appellate Division, First Department, on direct appeal, raising only two claims: (1) that the trial court violated his state and federal constitutional right to present a defense by refusing to submit to the jury the affirmative defense to felony murder; and (2) that the trial court erroneously imposed a term of post-release supervision of 10 years, when the statutory maximum was five years. (See generally App. Br.) Petitioner did not raise on direct appeal, either through counsel or in a supplemental Pro se brief, the additional claims that had been raised by trial counsel in the earlier Section 330.30 motion.

The People submitted a responsive brief that opposed Petitioner's first claim, but conceded the validity of the second claim. (Id., Ex. 5.)

On October 24, 2012, the Appellate Division unanimously modified Petitioner's sentence to reduce the period of post-release supervision from 10 years to five years, and otherwise affirmed Petitioner's conviction. People v. Curet, 952 N.Y.S.2d 871 (1st Dep't 2012) (copy attached to Levy Decl., as Ex. 7). With respect to Petitioner's claim regarding the trial court's failure to submit the affirmative defense to the jury, the Appellate Division held:

The [trial] court properly declined to charge the affirmative defense to felony murder (Penal Law § 125.25[3]) since there was no reasonable view of the evidence, viewed in the light most favorable to [Petitioner], to support that defense (see e.g. People v. Baity, 178 A.D.2d 190 [1st Dept 1991], lv denied 79 N.Y.2d 943 [1991]). [Petitioner] bases his argument for charging the affirmative defense on speculative inferences from evidence that tends to negate the affirmative defense more than it supports it. If anything, the evidence cited by [Petitioner] suggests that he had reason to believe he was embarking on the kind of robbery that could only be carried out by means of deadly weapons, and that had the potential for lethal violence.

Id.

The record before this Court does not include a copy of a letter from Petitioner to the New York Court of Appeals, seeking leave to appeal from the affirmance of his conviction. The record does, however, contain a copy of an Order dated January 10, 2013, denying leave to appeal, without opinion. People v. Curet, 20 N.Y.3d 1010 (N.Y. 2013) (copy attached to Levy Decl., as Ex. 8).

5. Coram Nobis Petition

On April 6, 2014, Petitioner filed a lengthy Pro se motion in the Appellate Division for a writ of error coram nobis, ¹⁵ seeking an order vacating the affirmance of his conviction on the ground that he had received ineffective assistance of appellate counsel. (See generally Pet. Coram Nobis Aff.¹⁶)

15 In this Court, a Pro se prisoner's papers are deemed filed when they are handed over to prison officials for forwarding to the Court. See Houston v. Lack, 487 U.S. 266, 270 (1988). Similarly, at least for purposes of calculating the statute of limitations in federal habeas cases, this Court applies the “prison mailbox rule” to determine the filing dates of submissions made in state court by a Pro se prisoner. See Fernandez v. Artuz, 402 F.3d 111, 116 (2d Cir. 2005) (applying prison mailbox rule to state coram nobis filing). In this case, Petitioner's coram nobis petition bears a stamp from the Appellate Division showing that it was received for filing on April 14, 2014 (see Levy Decl., Ex. 9), but the petition itself is dated April 6, 2014 (see id., Ex. 10), and, in the absence of direct evidence as to when Petitioner provided it to prison officials for mailing, this Court will assume that he did so on the date that he signed it, see, e.g., Ross v. Miller, No. 14cv3098 (RA) (JLC), 2016 WL 1376611, at *7, n.11 (S.D.N.Y. Apr. 7, 2016), report and recommendation adopted (Aug. 27, 2018).

16 Given the length of the coram nobis petition, Respondent has submitted it here in two installments - the first half as Exhibit 9 to the Levy Declaration, and the second half as Exhibit 10.

In his coram nobis petition, Petitioner asserted that his appellate counsel was constitutionally ineffective for failing to raise, on direct appeal, most of the claims that Petitioner's trial counsel had raised, unsuccessfully, in the earlier Section 330.30 motion. Specifically, Petitioner claimed that his appellate counsel should have raised, on appeal, Petitioner's previously asserted claim challenging the jury charge on the felony-murder counts, on the ground that the charge as given (which, as noted above, required an underlying felony of “burglary and/or robbery”) resulted in the denial of Petitioner's right to a unanimous verdict and a lowering of the burden of proof. (See Pet. Coram Nobis Aff., at 16-17.) Petitioner also claimed that his appellate counsel should have raised Petitioner's previously asserted claim challenging the supposed inconsistency and related legal insufficiency of the verdict. (See id., at 13-24.) Further, in light of the trial court's decision finding the “repugnancy” claim to be unpreserved, Petitioner added in his coram nobis petition that his appellate counsel should also have asserted, on appeal, that Petitioner's trial counsel was constitutionally ineffective for having failed to preserve that claim by raising it before the jury was discharged. (See id., at 21-26.) Finally, Petitioner claimed that his appellate counsel should have raised Petitioner's previously asserted claim that he was deprived of a fair and impartial jury, as the result of juror misconduct. (See id., at 38-60.)

Apart from the claims that had been raised in his Section 330.30 motion, Petitioner also included, in his coram nobis petition, certain additional claims that, he argued, were strong claims that should have been raised on appeal, but that were also ignored by his appellate counsel. In this regard, Petitioner asserted that his appellate counsel should have challenged the trial court's denial of Petitioner's motion to sever his trial from Bruno's and its decision to try the case with dual juries (see id., at 5-12); that his appellate counsel should have raised a claim of prosecutorial misconduct, based on the prosecutor's alleged improper appeal to the jurors' sympathies in his single opening statement to the two juries (Id.); and that, especially in light of the combined trial, his appellate counsel should have claimed a Bruton violation¹⁷ based on the introduction of Bruno's post-arrest statement into evidence, when Bruno was not subject to cross-examination (see id., at 30-37).

17 In Bruton v. United States, 391 U.S. 123 (1968), the Supreme Court held that a defendant's rights under the Confrontation Clause of the Sixth Amendment are violated when, during a joint trial, a statement made by a non-testifying codefendant that incriminates the defendant is introduced by the prosecution and admitted into evidence, even when the jury has been given a limiting instruction. 391 U.S. 123, 137 (1968); see also U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”).

Before his coram nobis petition was decided by the Appellate Division, and, indeed, before the People had even filed their opposition, Petitioner filed his federal habeas petition in this Court.

6. Petitioner's Federal Habeas Petition

Petitioner filed his Pro se habeas Petition in this Court on June 11, 2014. (See Pet. (Dkt. 1).¹⁸) In his Petition, Petitioner asserted four grounds for habeas relief, the first of which mirrored the single substantive claim that he had raised, though counsel, on his direct appeal (after having earlier raised it in his Section 330.30 motion) - i.e., his claim that the trial court's refusal to submit to the jury the affirmative defense to felony murder violated his right to present a defense. (Id. ¶ 12 (“Ground One”).) As his second ground for habeas relief, Petitioner asserted that his appellate counsel was ineffective for failing to raise a claim, on direct appeal, that Petitioner's trial counsel was ineffective for failing to preserve a repugnancy claim. (Id. (“Ground Two”).) Petitioner's third and fourth stated grounds for habeas relief seem essentially co-extensive; for his third ground, Petitioner asserted that he was denied his right to a “fair trial” as a result of juror misconduct (Id. (“Ground Three”)), and, for his fourth ground, he asserted that he was denied his right to a “fair and impartial jury, ” based on the same underlying facts (id. (“Ground Four”)).

18 Although the Court's docket reflects a filing date of June 25, 2014 for the Petition (see Dkt. 1), and although the Petition itself is unsigned and undated (see Pet.), the Petition attaches an Affidavit of Service, in which Petitioner swore before a notary on June 11, 2014, that he was placing the Petition in the prison mailbox. Accordingly, this Court will deem the Petition to have been filed on that date (see supra, at n.15, for discussion of “prison mailbox rule”).

In his Petition, Petitioner acknowledged that his second, third, and fourth claims had not been exhausted in the state courts, but stated that all three had been raised in his coram nobis petition, which was still pending. (See id.)

7. This Court's Stay of These Proceedings, Pending Resolution of the State Coram Nobis Proceedings

On or about July 1, 2014, the People filed an attorney affirmation in the Appellate Division, opposing Petitioner's coram nobis petition. (Levy Decl., Ex. 11.) Then, on August 8, 2014, Respondent filed a letter with the Court, requesting, under Rhines v. Weber, 544 U.S. 269 (2005), that the Court stay these proceedings and hold Petitioner's habeas Petition in abeyance, pending resolution of the state coram nobis proceedings. (See Letter to this Court from Orrie A. Levy, Esq., dated Aug. 8, 2014 (Dkt. 7) (copy attached to Levy Decl., at Ex. 12).)

By Order dated August 19, 2014, this Court granted the requested stay. (See Order, dated Aug. 19, 2014 (Dkt. 8).) In its Order, this Court specifically noted that, under Rhines, a habeas petitioner seeking a stay so as to allow for full exhaustion of his claims must demonstrate good cause for his failure to exhaust and that his habeas claims are not plainly meritless. (Id. (citing Rhines, 544 U.S. at 277).) This Court also noted that, “[i]n some circumstances, concern over the potential running of the habeas statute of limitations may constitute ‘good cause' for the filing of a ‘protective' habeas petition, prior to exhaustion of the petitioner's claims.” (Id. (citing Pace v. DiGuglielmo, 544 U.S. 408, 41617 (2005)).) This Court then explained that,

[i]n this instance, the Court has reviewed the Petition on a preliminary basis, and notes that Petitioner may be extremely close to the end of the one-year limitations period in which he may assert his habeas claims. Further, it appears that Petitioner has exercised reasonable diligence in seeking to have his claims reviewed by the state courts, given that, according to the Petition, all of his still-unexhausted claims have been raised before the Appellate Division, and Petitioner is now awaiting decision. Finally, this Court cannot say that all of Petitioner's claims are plainly

meritless. In particular, Petitioner may have a viable constitutional claim that he was denied an impartial jury for his criminal trial, given his allegation that one of the jurors had actual knowledge, from an outside source, of the crimes charged and of Petitioner's alleged involvement in those crimes.

(Id., at 2.) This Court also observed that, “[t]ypically, in this type of situation, a petitioner will request a stay of the habeas proceedings, so as to avoid the Court's potential dismissal of his unexhausted claims, ” and found that, here, where “Respondent ha[d] asked for the stay, . . . it seem[ed] that a stay would be in both parties' interests.” (Id. (emphasis in original).) Upon granting the stay, this Court directed Petitioner to supplement his habeas Petition within 30 days of exhausting his unexhausted claims. (See id.)

8. The Lifting of the Stay, and Petitioner's Subsequently Asserted Claims

By Order dated October 30, 2014, the Appellate Division denied Petitioner's coram nobis petition, without opinion. (See Levy Decl., Ex. 14.) Petitioner then apparently sought leave to appeal from that denial to the New York Court of Appeals, although neither party has provided this Court with a copy of Petitioner's application for leave to appeal. In any event, the Court of Appeals denied leave to appeal on April 20, 2015. (See Levy Decl., Ex. 15.)

In May 2015, Petitioner wrote to this Court to inform it that his state coram nobis proceedings were complete. (See undated Letter to the Court from Petitioner, received May 19, 2015 (Dkt. 11, at 29).) With his letter, Petitioner submitted a memorandum of law, dated May 7, 2015, supplementing his Petition. (See Pet. Mem.)

In his supplemental memorandum of law, Petitioner addressed, in varying degrees of detail, the four claims he had raised in his habeas Petition, together with a number of additional claims, most, but not all, of which he had raised in the state coram nobis proceedings. While, at the outset of his supplemental memorandum, Petitioner seemed to indicate that, as in his coram nobis petition, he was focusing on claims of ineffective assistance of appellate counsel (see id., at 2-8), his memorandum could also be liberally construed¹⁹ to raise each of the substantive claims that, according to Petitioner, his appellate counsel had failed to raise on appeal, as well as certain other claims, many of which had been raised by Petitioner's trial counsel in the earlier Section 330.30 motion. A number of the seemingly new habeas claims addressed in Petitioner's memorandum can be viewed as related, in some way, to the four claims pleaded in his habeas Petition, while others more clearly stand apart from any of the claims that Petitioner initially raised here.

19 This Court is required to interpret “[t]he complaint of a Pro se litigant . . . liberally [] in his favor.” Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir. 1995) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)).

With respect to the claims pleaded in the Petition itself and related claims, Petitioner's memorandum addressed the following: (1) his first stated ground for habeas relief - i.e., the alleged deprivation of his right to present a defense, based on the trial court's refusal to submit to the jury the affirmative defense to felony murder (see id., at 15-22) - and the related claim that the trial court erred in excluding from evidence Petitioner's own prior statements, which, he contended, would have supported the affirmative defense (see id., at 22-23); (2) his second stated ground for habeas relief - i.e., the alleged ineffective assistance of appellate counsel for the failure to raise, on direct appeal, a claim that Petitioner's trial counsel had been ineffective for failing to preserve a challenge to the alleged “repugnancy” of the verdict (see id., at 6-7, 8) - and the related claims that (a) the inconsistencies in the verdict actually rendered it repugnant, (b) due to the inconsistencies in the verdict, the evidence should be viewed as legally insufficient to support the verdict, and (c) appellate counsel was ineffective for failing to raise, on direct appeal, both a repugnancy and legal insufficiency claim (see id., at 6-7, 13-15); and (3) his third and fourth stated grounds for habeas relief - i.e., the lack of a fair trial and a fair jury, based on juror misconduct (see id., at 8) - and the related claims that (a) the two juries charged with separately considering the charges against Petitioner and his codefendant had improper communications, and (b) appellate counsel was ineffective for failing to raise any jurymisconduct claim on Petitioner's direct appeal (see id., at 6, 7-8, 26-27).

Petitioner also raised the following additional claims in his supplemental memorandum:

• that the trial court's denial of Petitioner's motion to sever Petitioner's trial from that of his codefendant, Bruno, and the court's ordering trial to proceed, instead, as a single proceeding with dual juries, violated Petitioner's due-process rights (see id, at 7-8), and, relatedly, that the prosecutor engaged in misconduct by appealing to the jurors' sympathies in his opening statement to the two juries (see id., at 7), and that the trial court permitted a Bruton violation by allowing Petitioner's jury to consider Bruno's postarrest statement without the benefit of cross-examination (see id., at 6, 7-8);

• that the trial court erred by instructing the jury that, to support a conviction of felony murder, it would need to find that Petitioner committed burglary “and/or” robbery as an underlying felony (allegedly depriving Petitioner of his right to a unanimous verdict) and that the underlying felony could be “simple” burglary and/or robbery (allegedly lowering the burden of proof) (see id., at 9-12); and

• that the Indictment was defective to the extent it charged alternative theories of murder - i.e., intentional murder or felony murder - and that the trial court erred by submitting both alternative theories to the jury, rather than requiring the prosecution to pick the theory under which it wished to proceed (see id., at 24-26).

Respondent filed an opposition to the Petition on June 3, 2015 (Dkts. 12 (Levy Decl.), 13 (Resp. Mem.)), and, apparently due to filing errors, twice refiled the same opposition papers on June 4, 2015 (Dkts. 15, 16 (seemingly duplicate copies of Levy Decl.); 17, 18 (seemingly duplicate copies of Resp. Mem.)).

On July 29, 2015, Petitioner filed a reply memorandum. (Petitioner's Reply to Opposition, dated July 29, 2015 (“Pet. Reply”) (Dkt. 22).) In his reply, Petitioner reiterated many of his earlier arguments, including that his appellate counsel was ineffective for failing to raise, on direct appeal, Petitioner's claims that the verdict was “repugnant” (Id., at 3-5); that there was jury misconduct (Id., at 7-9); and that the evidence was legally insufficient to support the verdict (Id., at 9-13). In addition, Petitioner raised, for the first time, a wholly new ineffective-assistance-of-appellate-counsel claim, based his appellate counsel's failure to assert on appeal that the Spanish language interpreter at trial had failed to interpret certain testimony accurately, and that, although this was brought to the trial court's attention by jurors who were bilingual, the trial court failed to correct the inaccuracies. (See id., at 6-7.) Respondent did not seek leave to respond to this new claim.

DISCUSSION

I. APPLICABLE LEGAL STANDARDS

A. Statute of Limitations

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a habeas petition must be filed within one year of the latest of four dates specified by statute, usually “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.”²⁰ 28 U.S.C. § 2244(d)(1)(A); see also Williams v. Artuz, 237 F.3d 147, 150-51 (2d Cir. 2001) (judgment becomes “final” for purposes of Section 2244 upon “the completion of direct appellate review in the state court system and either the completion of certiorari proceedings in the United States Supreme Court, or - if the prisoner elects not to file a petition for certiorari - [the expiration of] the time to seek direct review via certiorari”).

20 The limitations period may alternatively begin to run on the following dates: (1) where the petitioner was prevented from filing an application by state action, the date on which the impediment is removed; (2) where the right asserted is a newly recognized one made retroactively applicable, the date on which the constitutional right asserted was initially recognized by the Supreme Court; and (3) the date on which the factual predicate of the claim presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1)(B)-(D).

The limitations period is tolled during the pendency of any “properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim.” 28 U.S.C. § 2244(d)(2).

B. Exhaustion of State Remedies

As a general matter, a federal court may not consider a petition for a writ of habeas corpus unless the petitioner has exhausted the remedies available in the state courts. 28 U.S.C. § 2254(b)(1)(A); see also Baldwin v. Reese, 541 U.S. 27, 29 (2004); Picard v. Connor, 404 U.S. 270, 275 (1971). To satisfy the exhaustion requirement, a habeas petitioner must have “fairly presented” his claims to the state courts, thereby affording those courts the “‘opportunity to pass upon and correct' alleged violations of . . . prisoners' federal rights.” Picard, 404 U.S. at 275 (quoting Wilwording v. Swenson, 404 U.S. 249, 250 (1971)). A petitioner may fairly present a federal claim in several ways, including by citing relevant provisions of the federal Constitution in his appellate brief, see Davis v. Strack, 270 F.3d 111, 122 (2d Cir. 2001), or by relying on “pertinent federal cases employing constitutional analysis, ” see Mallet v. Miller, 432 F.Supp.2d 366, 374 (S.D.N.Y. 2006) (enumerating the ways a petitioner may fairly present his federal claims in state court).

Aside from setting out the federal nature of his claims, the petitioner must also, for purposes of the exhaustion requirement, present those claims to “the highest court of the pertinent state.” Chebere v. Phillips, No. 04cv296 (LAP), 2013 WL 5273796, at *19 (S.D.N.Y. Sept. 18, 2013) (quoting Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994)). In New York, for a claim that can be raised on direct appeal, a petitioner must first appeal his conviction to the Appellate Division and then 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).²¹ To exhaust a claim of ineffective assistance of appellate counsel, the petitioner must first raise the claim to the Appellate Division in an application for a writ of error coram nobis, and must then seek leave to appeal the denial of that motion to the Court of Appeals. See Shomo v. Maher, No. 04cv4149 (KMK), 2005 WL 743156, at *3 (S.D.N.Y. Mar. 31, 2005) (citing N.Y. C.P.L. §§ 450.90(1), 460.10(5)(a)).

21 A claim is appropriate for direct appeal when it can be demonstrated on the basis of the pretrial record, the trial record, or a record developed in the trial court on a motion made under Section 330.30 to set aside the verdict. Cf. Ford v. Smith, 12cv8993 (VB) (LMS), 2016 WL 7647042, at *12 (S.D.N.Y., Aug. 3, 2016) (noting that a claim raised in a Section 330.30 litigation made the claim a part of the record on appeal), report and recommendation adopted, 2017 WL 27982 (Jan. 3, 2017). Where a claim is inappropriate for direct appeal because it cannot be reviewed on the record developed in the trial court, it may be raised in a collateral post-conviction motion, typically in a motion made pursuant to Section 440 of the New York Criminal Procedure Law. To exhaust a claim raised collaterally in a Section 440.40 motion, the petitioner must seek leave to appeal the denial of the motion to the Appellate Division, see Ture v. Racette, No. 9:12cv01864 (JKS), 2014 WL 2895439, at *4 (N.D.N.Y. June 26, 2014), although New York law then provides for no further discretionary appeal to the Court of Appeals, see Ramos v. Walker, 88 F.Supp.2d 233, 234 n.3 (S.D.N.Y. 2000).

A federal claim initially raised to the Appellate Division, either on direct appeal or on coram nobis, can be abandoned and thus held to be unexhausted, where it is not raised again in a request for leave to appeal to the Court of Appeals. See Galdamez, 394 F.3d at 74; see, e.g., U.S. ex rel. Brock v. LaVallee, 306 F.Supp. 159, 161 (S.D.N.Y. 1969) (noting abandonment of coram nobis claims). If, for example, in his letter seeking leave to appeal to the New York Court of Appeals from the Appellate Division's denial of his claims on direct appeal, a petitioner raises only certain of the claims he raised below, and omits any explicit reference - even a general one - to the remainder, then the omitted claims will not be considered exhausted. See Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991); Ramirez v. Att'y Gen'l of the State of N.Y., 280 F.3d 87, 97 (2001); Jordan v. LaFevre, 206 F.3d 196, 198-99 (2d Cir. 2000); Parrish v. Lee, No. 10cv8708 (KMK), 2015 WL 7302762, at *10 (S.D.N.Y. Nov. 18, 2015). Similarly, raising a claim to the Court of Appeals purely in state-law terms will generally be insufficient to exhaust a federal claim. See LeGrand v. Lee, No. 13cv05282 (PKC) (KHP), 2016 WL 7468195, at *8-9 (S.D.N.Y. Dec. 28, 2016), report and recommendation adopted, 2017 WL 837683 (Mar. 2, 2017) (discussing Diguglielmo v. Senkowski, 42 Fed.Appx. 492, 495 (2d Cir. 2002) (Summary Order)).

Where a claim has not been exhausted in the state courts, but the petitioner no longer has any available avenue to return to the state courts to exhaust the claim, the habeas court should “deem” the claim exhausted. See Grey, 933 F.2d at 120-21; cf. 28 U.S.C. § 2254(c) (“An applicant shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented.”).

C. Procedural Default of Federal Habeas Claims

As a general matter, federal habeas review is not available where a claim has been raised before the state courts, and the last-reasoned decision of the state courts “rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 722, 729 (1991); Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).²² Where a petitioner presents an unexhausted claim that is “deemed exhausted” because, under state procedural law, the petitioner no longer has any available avenue to pursue the claim in the state courts, the procedural bar that gives rise to the exhaustion “provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas corpus review of the defaulted claim, ” unless the petitioner can demonstrate a basis for overcoming the bar to habeas review. Gray v. Netherland, 518 U.S. 152, 162 (1996) (citations omitted); see also, e.g., Sweet v. Bennett, 353 F.3d 135, 140 (2d Cir. 2003) (“[W]e conclude that [the petitioner's] appellate counsel unjustifiably failed to argue this ineffective assistance claim on direct appeal despite a sufficient record .... Accordingly, [the petitioner's] claim is procedurally defaulted for the purposes of federal habeas review as well.”).

22 For a state-law ground to be found to have been an “independent” basis for a state court's decision, the court's reliance on that ground “must be clear from the face of the opinion.” Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000) (citing Coleman, 501 U.S. at 732; internal quotation marks omitted). To be deemed “adequate, ” the state procedural rule on which the court's decision was based must be a rule that is “firmly established and regularly followed” by the state, see Ford v. Georgia, 498 U.S. 411, 423-24 (1991) (internal quotation marks and citation omitted), and must not have been “misapplied in [the petitioner's] case in particular, ” Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (internal quotation marks and citation omitted).

In order to overcome the procedural bar to federal habeas review, the petitioner must show both “cause” for the procedural default and that “prejudice” resulted therefrom. See Coleman, 501 U.S. at 749; Gray, 518 U.S. at 162. “Cause” is established when “some objective factor external to the defense” impeded the petitioner's efforts to comply with the state's procedural rule. Murray v. Carrier, 477 U.S. 478, 488 (1986); see also Ayuso v. Artuz, No. 99cv12015 (AGS) (JCF), 2001 WL 246437, at *8 (S.D.N.Y. Mar. 7, 2001). More specifically, a petitioner can show “cause” for a procedural default when (1) “the factual or legal basis for a claim was not reasonably available, ” (2) “some interference by state officials made compliance [with the procedural rule] impracticable, ” or (3) “the procedural default is the result of ineffective assistance of counsel.” Bossett, 41 F.3d at 829 (internal quotation marks and citations omitted). As for the “prejudice” prong, while the Supreme Court has not given “precise content” to the term “prejudice, ” see Wainwright v. Sykes, 433 U.S. 72, 91 (1977), it has made clear that a petitioner must show more than “a possibility of prejudice, ” and that the legal errors raised in the petition “worked to [the petitioner's] actual and substantial disadvantage, ” United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original). This is “a significantly higher hurdle than would exist on direct appeal, ” Id. at 166, as the degree of prejudice must be sufficient “to overcome society's justified interests in the finality of criminal judgments, ” Id. at 175.

Certainly, where a petitioner's claim lacks merit, he cannot demonstrate that his procedural default of the claim has resulted in prejudice sufficient to overcome the procedural bar. See McDowell v. Heath, No. 09cv7887 (RO) (MHD), 2013 WL 2896992, at *25 (S.D.N.Y. June 13, 2013) (“Petitioner also cannot establish actual prejudice because this ineffectiveassistance claim has no merit.”); see also Stanley v. Smith, No. 12cv6362 (AT) (SN), 2014 WL 5039444, at *16 (S.D.N.Y. Sept. 26, 2014) (“[I]f the underlying claim could not prevail, denying an opportunity to raise that claim is not fundamentally unfair.” (citations omitted)); Grullon v. United States, No. 04cv7144 (SAS), 2006 WL 559668, at *7 (S.D.N.Y. Mar. 8, 2006) (“[Petitioner] has not shown any prejudice because he has failed to demonstrate that his [claim] would succeed on the merits.”).

A defaulted claim may also be reviewed on federal habeas where a “fundamental miscarriage of justice” would result from the court's failure to review the claim, but to satisfy this exception to the procedural bar, the petitioner must make a showing of actual innocence. See Schlup v. Delo, 513 U.S. 298, 326-27 (1995); Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002). “Actual innocence” means “factual innocence, not mere legal insufficiency.” Dunham, 313 F.3d at 730 (citations omitted). To support an allegation of a fundamental miscarriage of justice, the petitioner must bring forward “new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial.” Schlup, 513 U.S. at 324.

D. Standard of Review

When this Court reviews a federal constitutional claim that has been adjudicated on the merits by the state court, the Court must accord substantial deference to the state court's decision under the standard of review dictated by AEDPA. See 28 U.S.C. § 2254(d); see also Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001) (noting that “adjudicated on the merits” means “a decision finally resolving the parties' claims, with res judicata effect, that is based on the substance of the claim advanced, rather than on a procedural, or other, ground”). The relevant section of AEDPA provides that:

[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim - (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established [f]ederal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).²³

23 In addition, under AEDPA, where not manifestly unreasonable, a state court's factual findings are presumed correct, and can only be overcome by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

Under AEDPA, a state court decision is “contrary to” clearly established federal law where the state court either applies a rule that “contradicts the governing law” set forth in Supreme Court precedent or “confronts a set of facts that are materially indistinguishable from a [Supreme Court] decision” and arrives at a different result. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable application” of clearly established federal law occurs when the state court identifies the correct governing legal principle, but unreasonably applies that principle to “a set of facts different from those of the case in which the principle was announced.” Lockyer v. Andrade, 538 U.S. 63, 76 (2003). The state court's decision, however, “must have been more than incorrect or erroneous”; rather, “[t]he state court's application must have been ‘objectively unreasonable.'” Wiggins v. Smith, 539 U.S. 510, 520-21 (2003) (quoting Williams, 529 U.S. at 409). In order to be entitled to habeas relief, the petitioner must “show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)).

When this Court proceeds to consider a substantive claim that has not been decided by the state courts on the merits, this Court must consider the claim under a de novo standard of review. See Carvajal v. Artus, 633 F.3d 95, 111 n.12 (2d Cir. 2011), cert. denied 565 U.S. 888; see also Bell v. Miller, 500 F.3d 149, 155 (2d Cir. 2007).

II. THE PETITION SHOULD BE DISMISSED.

A. Timeliness of Petition

As a threshold matter, this Court finds that Petitioner filed his federal habeas Petition within the one-year statute of limitations provided by AEDPA. On January 10, 2013, the Court of Appeals denied Petitioner's request for leave to appeal the Appellate Division's affirmance of his conviction. (See Levy Decl., Ex. 8.). His conviction became final for AEDPA purposes 90 days later, on April 10, 2013, triggering the commencement of the one-year limitations period for filing a federal habeas petition. See Williams, 237 F.3d at 150; see also Epps v. Poole, 687 F.3d 46, 49 (2d Cir. 2012) (noting 90-day period for filing petition for writ of certiorari).

Although Petitioner did not file his habeas petition until June 11, 2014, the statute of limitations would have been tolled during the pendency of his state coram nobis petition, provided it was filed within the one-year limitations period. 28 U.S.C. § 2244(d)(2). While, as noted above (see supra, at n.15), Petitioner's coram nobis petition was apparently not received by the Appellate Division until April 14, 2014, a date falling outside the applicable one-year period, this Court deems that petition to have been filed when it was signed, on April 6, 2014 (see id.), a date falling within that period. Accordingly, the filing of Petitioner's coram nobis petition should be found to have tolled the AEPDA statute of limitations until that petition was resolved. Given that Petitioner protectively filed his habeas Petition on June 11, 2014 (see Pet.; see also Background, supra at Section B(6), n.18, and Section B(7)), prior to the date of the Appellate Division's decision in the coram nobis proceeding, his habeas Petition should be considered timely.

B. The Claims Raised in the Petition, as Well as the Related Claims Raised in Petitioner's Supplemental Memorandum, Are Without Merit.

In considering Petitioner's habeas claims, this Court will first address the four claims set out in the Petition itself, together with any closely related claims that Petitioner has included in his supplemental memorandum.

1. Ground One: The Trial Court's Refusal To Submit to the Jury the Affirmative Defense to Felony Murder

Petitioner's first ground for habeas relief, as pleaded in his Petition, is that he was deprived of his constitutional right to present a defense at trial, when the trial judge denied his request to submit to the jury the statutory affirmative defense to felony murder. (See Pet. ¶ 12.) Although Petitioner raised this claim on direct appeal to the Appellate Division, this Court notes, as a preliminary matter, that it is unable to discern from the presented record whether Petitioner fully exhausted the claim, by seeking leave to appeal the claim, in federal terms, to the New York Court of Appeals, after the claim was rejected by the Appellate Division. Yet, regardless of whether the claim was exhausted, it should be dismissed as without merit. The Court should also dismiss a related claim that Petitioner has attempted to raise in his supplemental memorandum - that the trial court erred by excluding from evidence Petitioner's own post-arrest statements, which, had they been admitted, would have purportedly supported the affirmative defense. This claim is plainly unexhausted and procedurally barred, and, given that the claim lacks merit, Petitioner cannot show the “prejudice” necessary to overcome that bar.

a. Exhaustion Analysis

In his brief to the Appellate Division, Petitioner relied primarily on state law in challenging the trial court's denial of his request to submit the affirmative defense to the jury, although he also cited, in support of that claim, the Sixth and 14th Amendments of the U.S. Constitution (see App. Br., at 18), thereby apprising the appellate court that the claim was being raised on both state and federal grounds. The state-court record, though, as submitted to this Court by Respondent, does not include a copy of Petitioner's letter seeking leave to appeal to the New York Court of Appeals from the Appellate Division's affirmance of his conviction. As, before the Appellate Division, Petitioner was unsuccessful on only a single substantive claim (his claim that it was error for the trial court to refuse to submit the affirmative defense to the jury), and as the record includes an order by the Court of Appeals denying leave to appeal, it is logical to assume that Petitioner sought leave to appeal the denial of this particular claim. Nonetheless, without a copy of Petitioner's letter to the Court of Appeals, this Court cannot determine whether, in seeking leave to raise the claim to that court, Petitioner relied only on state law, or again relied on federal law, as well. As the Court of Appeals did not then decide the claim on the merits, but merely denied leave to appeal (see Levy Decl., Ex. 8), nothing in that court's order sheds further light on the question of how Petitioner cast his claim, in seeking leave to appeal. While it is possible that Petitioner exhausted his federal claim (i.e., his claim that the failure of the court to submit the affirmative defense to the jury deprived him of his federal constitutional right to present a defense, as opposed to a state-law right), it is also possible that he abandoned his federal claim.

If Petitioner's federal claim is unexhausted, then it must be “deemed” exhausted (as Petitioner cannot now seek further leave to appeal to the Court of Appeals), rendering it procedurally barred from habeas review. See Gray, 518 U.S. at 162. In order to overcome the procedural bar, Petitioner would then have to demonstrate both “cause” for, and “prejudice” resulting from, the procedural default, or that a fundamental miscarriage of justice would result from the Court's failure to review the claim. Coleman, 501 U.S. at 749. If, on the other hand, the claim is actually exhausted, as Respondent appears to assume, ²⁴ then, given the fact that the Appellate Division adjudicated the claim on the merits, the claim would be subject to review under the standard of review set out in AEDPA. See 28 U.S.C. § 2254(d). Yet, if the claim would fail upon even de novo review, then it would be subject to dismissal regardless of whether it is exhausted - either because (if the claim is unexhausted) Petitioner would be unable to demonstrate the requisite prejudice to overcome the procedural bar, ²⁵ or because (if the claim is exhausted) the claim would necessarily fail under the more deferential AEDPA standard of review. As discussed below, this Court finds, in fact, that the claim has no merit, even if considered de novo.

24 In opposition to the Petition, Respondent has only argued that this claim should be dismissed for lack of merit, based on the AEDPA standard of review that is applicable to exhausted claims. (See Resp. Mem., at 3.) Thus, although it does not discuss the exhaustion issue, Respondent is apparently assuming that the claim is exhausted. This Court notes, however, that proceeding on such an assumption is not the equivalent of waiving the habeas exhaustion requirement, as a waiver of exhaustion must be express. See 28 U.S.C. § 2254(b)(3) (“A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.”); see also Cornell v. Kirkpatrick, 665 F.3d 369 (2d Cir. 2011) (unequivocal concession of exhaustion constitutes a waiver, even if in error); Carvajal v. Artus, 633 F.3d 95 (2d Cir. 2011) (equivocal concession of exhaustion is not an express waiver).

25 As nothing in the record even remotely suggests that Petitioner is “actually innocent, ” he would not be able to overcome the bar to any procedurally defaulted claim by showing that the Court's failure to review the claim would result in a “fundamental miscarriage of justice.” See Schlup, 513 U.S. at 324.

In his supplemental habeas memorandum, Petitioner also contends, as he did in his presentence Section 330.30 motion (see Pet. § 330.30 Mem., at 11-12), that his own post-arrest statements would have supported the affirmative defense, thereby requiring the submission of the defense to the jury had the statements been made part of the trial record, and that the trial court erred by denying his request to introduce the statements at trial. Petitioner did not exhaust this claim of evidentiary error, as he did not raise it on his direct appeal, either as a state-law claim or as a federal due process claim, even though such a claim would have been capable of review on the basis of the record. See, e.g., Lewis v. Batista, No. 01cv4316 (KMW) (DF), 2002 WL 31202712, at *6 (S.D.N.Y. Aug. 30, 2002) (holding that claim involving state evidentiary violation that was not raised on direct appeal was not exhausted by the petitioner). As Petitioner can no longer appeal the trial court's evidentiary ruling, and as no other avenues are available to him to raise this record-based claim in the state courts, this separate claim must be deemed exhausted and procedurally barred. See Gray, 518 U.S. at 162.

With respect to this separate claim, Petitioner has shown no basis to overcome the procedural bar. To the extent he may be attempting to assert that the default of this claim resulted from the ineffective assistance of his appellate counsel, this Court notes that he did not raise that particular ineffective-assistance claim in his coram nobis proceeding, and thus cannot now rely on it here, to satisfy the “cause” requirement. See Murray, 477 U.S. at 488-49.²⁶ For the reasons discussed below, he also has not shown the requisite “prejudice, ” given that the trial court's evidentiary ruling was not erroneous.

26 Although not every attorney error will be sufficient to establish cause for a procedural default, the Supreme Court has held that, where counsel's conduct fails to meet the standards guaranteed by the Sixth Amendment, the cause requirement will be satisfied. Murray, 477 U.S. at 486-88. In Murray, however, the Supreme Court added that “the exhaustion doctrine . . . generally requires that a claim of ineffective assistance be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default ....” Id. at 488-89.

b. Merits Analysis

i. The Evidence Presented at Trial Was Insufficient To Require the Court To Charge the Affirmative Defense.

Turning first to Petitioner's claim that the trial court's failure to submit the affirmative defense to the jury violated his right to defend himself at trial, this Court acknowledges that the right to present a defense is among the “minimum essentials of a fair trial.” Chambers v. Mississippi, 410 U.S. 284, 294 (1973). The Supreme Court has held that this encompasses, in general, “the right to present the defendant's version of the facts” and includes the right to confront the prosecution's witnesses for the purposes of challenging their testimony . . . [and] the right to present [the defendant's] own witnesses.” Washington v. Texas, 388 U.S. 14, 19 (1967). Nevertheless, the right to present a defense is not unlimited, and “[r]estrictions on a defendant's presentation of evidence are constitutional if they serve ‘legitimate interests in the criminal trial process' . . . and are not ‘arbitrary or disproportionate' to the purposes they are designed to serve.” United States v. Almonte, 956 F.2d 27, 30 (2d Cir.1992) (quoting Rock v. Arkansas, 483 U.S. 44, 55 (1987)). Moreover, the Supreme Court has noted that the constitutional right to present a defense is a principle that is more properly invoked when challenging exclusions of evidence, rather than when challenging a jury instruction that omits a potential affirmative defense. Gilmore v. Taylor, 508 U.S. 333, 344 (1993) (“[R]espondent argues that the right to present a defense includes the right to have the jury consider [an affirmative defense], and that confusing instructions on state law which prevent a jury from considering an affirmative defense therefore violate due process. But such an expansive reading of our cases would make a nullity of the rule . . . that instructional errors of state law generally may not form the basis for federal habeas relief.”).

Here, the issue raised by Petitioner is not whether he was permitted to present a defense at trial - he was plainly given an opportunity both to cross-examine the prosecution's witnesses and to introduce evidence on his own behalf, and, in fact, he called Negron to the stand to testify on his direct case. (See App. Br., at 14-15.) Rather, the narrower issue presented by Petitioner's claim is whether he was entitled to have the trial court instruct the jury regarding a specific statutory defense to felony murder that was available under state law. As set out above, under New York law, the court was required to submit that statutory defense to the jury only if a reasonable view of the evidence, viewed most favorably to Petitioner, could be found to support each of its stated elements by a preponderance of the evidence. See Thompson, 22 F.3d at 453; see also People v. Diaz, 576 N.Y.S.2d 144, 145 (2d Dep't 1991) (in case involving felonymurder charge, finding that defendant failed to establish that there was a reasonable view of the evidence that would have permitted the jury to find that every one of the four elements of the defense was established).

In this instance, the trial court found, in the context of Petitioner's Section 330.30 motion, that no evidence in the trial record reasonably supported two of the elements of the defense: (1) the element that Petitioner had no reasonable ground to believe that any other participant in the underlying felony was armed with a deadly weapon (or any instrument, article or substance readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons); and (2) the element that Petitioner had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury. (See generally § 330.30 Decision, at 9-14.) In particular, the trial court rejected Petitioner's argument, as advanced on the Section 330.30 motion (and as then later advanced again on his direct appeal and now in his habeas Petition), that Bruno's post-arrest statement, reasonably read and construed in Petitioner's favor, was sufficient to support these elements. (See id., at 12-13.) Upon independently reviewing the content of Bruno's statement, this Court also rejects this argument.

Even if read most favorably to Petitioner, Bruno's statement evidences, at most, that the “young kid, ” rather than Petitioner, was the one who had a gun and thus, presumably, the one who committed the shootings. (See Trial Tr., Dkt. 16-29, at 1752.) On its face, however, the statement also indicates that Bruno was not present during the killings of the first two victims. (See id., at 1751 (stating that Bruno went “downstairs, ” and that when he eventually “went back up there, ” he found “[t]wo dead people”).) Taken at face value, then, Bruno's statement indicates that he lacked personal knowledge as to whether the “young kid's” gun might have been passed to, or used by, Petitioner, in connection with those first two homicides. Moreover, the statement indicates that Bruno and Petitioner had discussed how to “go get the guy” that “[owed Geo] 10 key[s], ” and that, because initially “nothing happen[ed], ” Geo then went and got “the young kid, ” who had a gun. (Id.) As the trial court noted (§ 330.30 Decision, at 12), Bruno's statement wholly omits any indication that Petitioner did not know that there was a gun, or that Petitioner did not know, at least, that the “young kid” intended to engage in conduct likely to result in death or serious physical injury, cf. People v. Hernandez, 82 N.Y.2d 309, 314 (1993) (noting that, under the felony murder statute, a person is culpable for felony murder even when, during the commission of an enumerated felony or attempt, it was the defendant's accomplice that caused the death). In fact, the statement, if credited, strongly suggests that Petitioner knew that he was entering into a situation where serious physical injury was likely, and shows that Petitioner did not leave the situation even after an initial attempt was unsuccessful, but rather was present for the entirety of the incident, even after Bruno had purportedly left the apartment for a period of time, and even after the first two killings had been committed. Absent from Bruno's statement is any indication that Petitioner lacked a reasonable ground to believe that at least one participant in the events was armed with a deadly weapon, or that at least one participant intended to engage in conduct likely to result in death or serious physical injury. Consequently, there is no merit to Petitioner's argument that Bruno's statement reasonably supported the last two elements of the affirmative defense. See, e.g., Gunter v. Lee, No. 12cv8331 (VEC) (KNF), 2014 WL 5430565, at *2 (S.D.N.Y., Oct. 24, 2014) (holding that evidence did not warrant a jury charge regarding the affirmative defense to felony murder, where the petitioner's videotaped statements indicated that he knew or strongly suspected that one of his co-conspirators had a gun).

It is apparent, therefore, that state law was not violated by the trial court's denial of Petitioner's request to charge the jury regarding the affirmative defense. Further, as argued by Respondent, in the absence of a state-law violation, Petitioner cannot show that his constitutional right to present a defense was violated by the state court's ruling. (See Resp. Mem., at 13 (citing Thompson, 22 F.3d 450).) This would be the result even upon de novo review of the claim, and, certainly, Petitioner had not shown that the Appellate Division's rejection of this claim was either contrary to, or an unreasonable application of, federal law. See 28 U.S.C. § 2254(d).

Accordingly, Petitioner's claim that his constitutional right to present a defense was violated by the trial court's refusal to submit the statutory affirmative defense to the jury should be dismissed for lack of merit.

ii. It Was Not Error for the Trial Court To Exclude Petitioner's Own Post-Arrest Statements.

Petitioner also has no valid basis for contending that the trial court erred in denying his request to introduce his own pre-trial statements into evidence, as support for the affirmative defense. As well explained by the trial court in denying this claim in the context of Petitioner's Section 330.30 motion (see § 330.30 Decision, at 14), Petitioner's own out-of-court statements constituted inadmissible hearsay, and thus it was not error under state law for the court to have excluded them.

As for federal law, a trial court's exclusion of evidence will only offend constitutional due process if the exclusion was not just erroneous, but constituted such egregious error that it rendered the petitioner's trial “fundamentally unfair.” See Chambers, 410 U.S. at 302-03. “[G]enerally, rulings by state trial courts on evidentiary issues, even if erroneous, do not rise to the level of a constitutional violation, ” and thus a habeas petitioner faces a “heavy burden” in demonstrating that an allegedly erroneous state-court evidentiary ruling violated his due-process rights. Kanani v. Phillips, No. 03cv2534 (PKCAJP), 2004 WL 2296128, at *15 (S.D.N.Y. Oct. 13, 2004) (internal quotation marks and citation omitted)), report and recommendation adopted, 2005 WL 2431416 (Oct. 3, 2005). Here, absent any state-law error, and where Petitioner chose not to take the stand, he cannot show that the exclusion of his own self-serving, hearsay statements violated his constitutional rights.²⁷

27 While, as noted above (see supra, at n.13), Petitioner contends that his post-arrest statements “indicated his shock and surprise at Mr. Bruno's actions and his own fear that Mr. Bruno would harm him, ” the statement he describes (see id.), even if admitted at trial, would not have supported the last two elements of the affirmative defense. Based on Petitioner's own description of his statement, not only did he admit that he was with Bruno on the day of the murders and was present when the crimes took place, but he gave no indication that he lacked a reasonable ground to believe that any of the other participants was armed with a deadly weapon or intended to engage in conduct likely to result in death or serious physical injury. Accordingly, Petitioner has not demonstrated any flaw in the trial court's determination that, even if Petitioner's own statements had been admitted into evidence at trial, the evidence, overall, would still have been insufficient to support each and every element of the affirmative defense. (See § 330.30 Decision, at 14.)

Accordingly, Petitioner's first asserted ground for habeas relief - that his constitutional right to present a defense was violated by the trial court's failure to submit the affirmative defense to the jury - should be dismissed, together with Petitioner's related claim that his due process rights were violated by the trial court's exclusion of his out-of-court statements.

2. Ground Two: Appellate Counsel's Failure To Assert, on Direct Appeal, That Trial Counsel Was Ineffective for Failing To Object to the Verdict as Repugnant at the Time It Was Rendered.

The second ground for habeas relief stated in the Petition is a claim of ineffective assistance of appellate counsel - specifically, that Petitioner's appellate counsel was constitutionally ineffective for failing to claim, on direct appeal, that Petitioner had received ineffective assistance of trial counsel, when trial counsel failed to object to the verdict as “repugnant” before the jury was discharged, and thus failed to preserve that objection. (See Pet. ¶ 12 (Ground Two).) The impetus for Petitioner's assertion of this ineffective-assistance-of-appellate-counsel claim was presumably the decision of the trial court in rejecting Petitioner's Section 330.30 motion. In that motion, Petitioner had argued, inter alia, that the verdict was inconsistent, and that it should be set aside as repugnant. (See Pet. § 330.30 Mem., at 1-6.) As set out above, the trial court rejected that particular argument as unpreserved (see § 330.30 Decision, at 6-7), although the court also went on to find that it was, in any event, without merit (see id., at 7-9).

In addition to claiming, in his Petition, that his appellate counsel was ineffective for failing to raise trial counsel's failure to preserve the repugnancy claim, Petitioner also claims, in his supplemental memoranda, that his appellate counsel should have claimed on direct appeal (seemingly regardless of the lack of preservation of the claim) that the verdict was, in fact, repugnant, and also that, due to the inconsistencies in Petitioner's acquittals and convictions, the evidence presented at trial could not have been legally sufficient to support his convictions. (See Pet. Mem., at 6-7, 8.) Petitioner's memorandum also arguably asserts the underlying claims of repugnancy of the verdict and legal insufficiency of the evidence (in other words, the claims that he contends should have been raised on his appeal). (See id.) Even apart from the question of whether any of these claims have been exhausted in the state courts, all are subject to dismissal for lack of merit.

a. Exhaustion Analysis

In his state coram nobis petition, Petitioner set out the claim that is now pleaded as his second habeas claim - i.e., that his appellate counsel was ineffective for failing to challenge trial counsel's failure to preserve the repugnancy claim. (See Pet. Coram Nobis Aff., at 21-26.) Petitioner also argued, on coram nobis, that his appellate counsel was ineffective for failing to raise the repugnancy claim itself on direct appeal, and for failing to raise a purportedly related legal insufficiency claim. (Id.)

By staying these proceedings pending the outcome of the state coram nobis proceedings, this Court allowed Petitioner the opportunity to exhaust any ineffective-assistance-of-appellate-counsel claims that he had raised on coram nobis. Once again, however, a gap in the state-court record, as presented to this Court, makes it impossible for this Court to determine the extent to which Petitioner's ineffective-assistance claims should now be considered fully exhausted. Just as this Court has not been provided with a copy of Petitioner's letter to the Court of Appeals seeking leave to appeal from the Appellate Division's affirmance of his conviction on direct appeal, so, too, this Court has not been given a copy of Petitioner's letter to the Court of Appeals seeking leave to appeal from the Appellate Division's denial of his coram nobis petition. Without a copy of that letter (or a reasoned opinion from the Court of Appeals addressing Petitioner's claims), this Court is unable to determine whether Petitioner sought leave to appeal from the denial of all of his coram nobis claims, or if he selected only certain of those claims to raise to the Court of Appeals. For this reason, this Court cannot determine whether all of the ineffective-assistance claims raised in his coram nobis petition have been fully exhausted, or if some were abandoned, such that they should now be deemed exhausted and considered procedurally barred.²⁸

28 With respect to these claims, Respondent has again not addressed the exhaustion issue (see Resp. Mem.), and thus this Court cannot conclude that there has been an express waiver of the exhaustion requirement.

Certainly, to the extent Petitioner is now attempting to assert the underlying claims that, he contends, his appellate counsel failed to raise, those claims must be considered unexhausted and defaulted. Any claim directly challenging the supposed repugnancy of the verdict or insufficiency of the evidence could have been raised on direct appeal, on the basis of the trial record. As these claims were not raised on direct appeal, they should now be deemed exhausted and may not be considered by this Court, unless Petitioner can overcome the procedural bar that results from his default of these claims.

Once again, however, any issues regarding lack (or potential lack) of exhaustion are ultimately of no consequence. Even reviewed de novo, none of Petitioner's claims relating to the supposed repugnancy of the verdict, including those claims framed in terms of ineffective assistance of appellate counsel, can be found to have merit.²⁹ For this reason, the claim presented as Petitioner's second ground for habeas relief and his related claims should either be dismissed outright as meritless or they should be dismissed because, given the claims' apparent lack of merit, Petitioner cannot demonstrate the “prejudice” necessary to overcome the procedural bar.

29 Where, as here, the Appellate Division rejects a coram nobis petition in a summary order, without opinion, the Court should construe the decision as having rejected on the merits the claims raised in the petition. See Washington v. Brown, No. 09cv544 (JG), 2009 WL 1605553, at *3 (E.D.N.Y. June 8, 2009) (“If a state court's summary disposition of a petition does not expressly indicate that a claim was denied as procedurally barred, a federal court must presume that the state court denied that claim on the merits.” (citing Jimenez v. Walker, 458 F.3d 130, 146 (2d Cir. 2006))). Thus, to the extent Petitioner fully exhausted any of the claims that he raised on coram nobis, habeas relief may only be granted on those claims if the Appellate Division's decision was contrary to, or involved an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d). If the claims cannot be found meritorious under even a de novo review standard, then habeas relief also cannot be warranted under the more deferential AEDPA standard.

b. Merits Analysis

i. The Verdict Was Not “Repugnant.”

New York's rule regarding repugnant jury verdicts is that “[w]hen there is a claim that repugnant jury verdicts have been rendered in response to a multiple-count indictment, a verdict as to a particular count shall be set aside only when it is inherently inconsistent when viewed in light of the elements of each crime as charged to the jury ....” People v. Tucker, 55 N.Y.2d 1, 4-6 (1981); People v. Trappier, 87 N.Y.2d 55, 48 (1995) (“A verdict is inconsistent or repugnant . . . where the defendant is convicted of an offense containing an essential element that the jury has found the defendant did not commit. In order to determine whether the jury reached ‘an inherently self-contradictory verdict' a court must examine the essential elements of each count as charged.” (citations omitted)).

In this case, the verdict convicting Petitioner of felony murder for the death of Elvis was not legally repugnant, merely because the jury acquitted Petitioner of the same charge for the deaths of Aquino and Tejada. As aptly pointed out by Respondent, juries may choose to extend mercy when rendering their verdicts, compromise with each other and reject evidence, and even make illogical factual findings. (See Resp. Mem., at 6; see also Tucker, 55 N.Y.2d at 7.) Here, because Elvis, Aquino, and Tejada were separate individuals and Petitioner was thus charged in separate counts for their deaths, it is possible, in theory, that the jury found the evidence regarding Petitioner's role in the killing of Elvis to be more compelling for purposes of conviction than the evidence regarding his role in the killings of Aquino and Tejada.³⁰ It is also possible that the jury was mistaken or confused about certain evidence, or that it reached a compromise verdict, or that it exercised mercy when deciding to acquit Petitioner of the felonymurder charges relating to Aquino and Tejada - none of which would have rendered the verdict legally “repugnant.” See People v. Muhammad, 17 N.Y.3d 532, 542-43 (2011) (holding that factual repugnancy, which can be attributed to mistake, confusion, compromise or mercy, is dissimilar to the legal repugnancy required under Tucker). Whatever the jury's actual reasoning, which should not be the subject of judicial speculation, see id., 17 N.Y.3d at 544, it was not legally impossible, even if it was factually illogical, for the jury to have found Petitioner guilty of felony murder for the death of one individual, while acquitting him of charges for the deaths of two others, see People v. DeLee, 24 N.Y.3d 603, 608-09 (2014) (noting that a verdict is only repugnant if all the elements of the charge are included in the elements of another charge, such that to find the defendant not guilty of one charge necessarily means that at least one of the elements of the other charge was not proven beyond a reasonable doubt (internal quotation marks and citations omitted)).

30 In this regard, this Court notes that, according to Johanna, after Bruno had already begun to assault Aquino violently, by hitting him in the head with the gun, Petitioner - at Bruno's instruction - brought Elvis out of the bathroom, to Bruno. (See Trial Tr., Dkt 16-21, at 687-90.)

Further, there is no merit to Petitioner's related argument that the verdict convicting him of felony murder for Elvis's death, and of the underlying felonies of first-degree burglary and attempted robbery, was repugnant because the conduct allegedly giving rise to those underlying crimes was specifically directed to Aquino and Tejada, rather than to Elvis - and because Petitioner was acquitted of felony murder with respect to Aquino's and Tejada's deaths. In this regard, Petitioner asserts that, whereas Aquino and Tejada resided in the apartment (such that it was their “dwelling, ” as required for first-degree burglary), Elvis was neither the apartment's owner nor resident. (Pet. Mem., at 14.) Petitioner further asserts that the attempted-robbery theory advanced by the prosecution was that the participants in the crimes were seeking to steal drugs and money from Aquino, not from Elvis. (Id.) Neither of these points undermine the verdict.

First, under New York law, a person is guilty of burglary in the first degree “when he knowingly enters or remains unlawfully in a dwelling with intent to commit a crime therein ....” N.Y. Penal Law § 140.30. As a general matter, and as pointed out by Respondent (see Resp. Mem., at 7), there is no requirement under New York law that a particular victim own or reside in the “dwelling, ” for the elements of this crime to be satisfied, cf. People v. Barney, 99 N.Y.2d 367, 370 (2003) (noting that a “dwelling” is defined under New York Penal Law § 140.00[3] as a “building which is usually occupied by a person lodging therein at night”). Although, to establish the elements of burglary in the first degree, the prosecution must prove beyond a reasonable doubt that the entry into the dwelling was “unlawful, ” People v. Marsden, 16 N.Y.S.3d 563, 566 (2d Dep't 2015), this merely means that the dwelling's owner, or another whose relationship to the premises gives him or her authority to consent to entry, did not give such consent, see id.

Here, there was evidence in the record that, although Aquino, a resident of the apartment, opened the apartment door, he did not consent to Petitioner's entry, supporting both the first-degree burglary charge and each of the separate felony-murder charges against Petitioner, including the charge relating to Elvis's death. Accordingly, even if Petitioner's felony-murder conviction for the death of Elvis seems logically inconsistent with his felony-murder acquittals for the deaths of Aquino and Tejada, the inconsistency does not necessarily mean that the requisite element of unlawful entry was not proven beyond a reasonable doubt for purposes of establishing first-degree burglary as a predicate felony to Elvis's death. Theoretically, the jury may have made a factual finding, based on the evidence, that Petitioner's entry into the apartment was unlawful because he did not obtain the consent of Aquino or Tejada, and may have chosen, for other reasons, not to convict Petitioner of felony murder with respect to Aquino's and Tejada's deaths.

Second, under New York law, a person is guilty of attempted robbery in the first degree when, with the intent to forcibly steal property, he engages in conduct which tends to do so, “and when, in the course of the [attempted] commission of the crime or of immediate flight therefrom, he or another participant . . . [i]s armed with a deadly weapon.” N.Y. Penal Law § 160.15(2); see N.Y. Penal Law § 110.00. In this case, there was evidence in the record that Petitioner intended to steal drugs forcibly from Aquino, and that either Petitioner or one of the other two participants possessed a gun when they entered the apartment with that intention. Similar to the analysis above, even if Petitioner's conviction for the felony murder of Elvis seems logically inconsistent with his acquittal for Aquino's death (where Aquino was the principal target of the attempted robbery), that inconsistency does not necessarily mean that the elements of attempted robbery were not established, and that such a crime therefore could not have served as a predicate felony to the deaths of each of the victims, including Elvis.

In any event, it is well settled that “inconsistent jury verdicts are not a ground for habeas relief.” Estrada v. Senkowski, No. 98cv7796 (WHP), 1999 WL 1051107, at *13-14 (S.D.N.Y. Nov.19, 1999) (citing cases, including, inter alia, United States v. Powell, 469 U.S. 57, 58, 64-65 (1984) (“[W]here truly inconsistent verdicts have been reached, ‘[t]he most that can be said . . . is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt.' . . . It is equally possible that the jury, convinced of guilt, properly reached its conclusion . . . then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the [other] offense.”); Harris v. Rivera, 454 U.S. 339, 345 (1981) (“Inconsistency in a verdict is not a sufficient reason for setting it aside.”); Dunn v. United States, 284 U.S. 390, 393-94 (1932); Suarez v. Bennett, 207 Fed.Appx. 114, 116 (2d Cir. 2006) (“[W]e are not permitted to grant habeas simply because a jury's verdicts are inconsistent.”) (Summary Order), cert. denied, 551 U.S. 1106 (2007); United States v. Acosta, 17 F.3d 538, 545 (2d Cir.1994) (“[I]t has long been established that inconsistency in jury verdicts of guilty on some counts and not guilty on others is not a ground for reversal of the verdicts of guilty.”)).

For these reasons, Petitioner's underlying repugnancy claims should be dismissed as meritless.

ii. The Evidence Presented at Trial Was Legally Sufficient To Support Petitioner's Convictions.

In his supplemental memorandum, Petitioner also contends, as he did in his Section 330.30 motion, that the verdict was not only repugnant, but that the inconsistencies between his acquittals and convictions show that his convictions could not have been supported by legally sufficient evidence. (See Pet. Mem., at 6-7, 13-15.) Essentially, Petitioner recasts his “repugnancy” claims, discussed above, as “legal insufficiency” claims, by arguing (1) that his acquittal of felony murder of Tejada and Aquino (the residents of the apartment, or “dwelling”) shows that there was insufficient evidence to support his conviction for first-degree burglary; (2) that his acquittal of felony murder of Aquino (the victim whose “drugs and/or money” was supposedly being sought) shows that there was insufficient evident to support his conviction for first-degree attempted robbery; and (3) that his acquittal of felony murder of Tejada and Aquino shows that there was insufficient evidence to support his conviction for felony murder of Elvis (who was not a resident of the dwelling, and whose property was not targeted in the robbery attempt). (Id.) Petitioner's arguments, however, misapprehend the nature of a “legal insufficiency” claim.

A claim that the evidence presented at trial is legally insufficient to support the verdict is grounded in the Due Process Clause of the 14th Amendment, which prohibits conviction “except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [the defendant] is charged.” In re Winship, 397 U.S. 358, 364 (1970). A habeas petitioner “bears a heavy burden because the government receives the benefit of having all permissible inferences drawn in its favor.” Dixon v. Miller, 293 F.3d 74, 81 (2d Cir. 2002) (internal quotation and citation omitted). Habeas relief is only warranted where a court finds that, when viewing the evidence most favorably to the prosecution, no rational jury could find guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 324, (1979). Such an inquiry “does not require a court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt, '” Id. at 318-19 (quoting Woodby v. Immigration & Naturalization Serv., 385 U.S. 276, 282 (1966)); rather, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, ” Id. at 319.

In this case, Petitioner challenges the sufficiency of the evidence to support his convictions for violations of New York Penal Law §§ 110/160.15(2) (attempted first-degree robbery), 140.30(1) (first-degree burglary), and 125.25(3) (felony murder (as to the death of Elvis)). The elements of these crimes are as follows:

Under New York Penal Law § 160.15, a person a person is guilty of robbery in the first degree “when he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime: (1) [c]auses serious physical injury to any person who is not a participant in the crime; or (2) [i]s armed with a deadly weapon; or (3) [u]ses or threatens the immediate use of a dangerous instrument; or (4) [d]isplays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.” N.Y. Penal Law § 160.15. In addition, “[a] person is guilty of an attempt to commit [robbery in the first degree] when, with intent to commit [that] crime, engages in conduct which tends to effect the commission of such crime.” N.Y. Penal Law § 110.00.

Under New York Penal Law § 140.30, a “person is guilty of burglary in the first degree when he knowingly enters or remains unlawfully in a dwelling with intent to commit a crime therein, and when, in effecting entry or while in the dwelling or in immediate flight therefrom, he or another participant in the crime (1) [i]s armed with explosives or a deadly weapon; or (2) [c]auses physical injury to any person who is not a participant in the crime; or (3) [u]ses or threatens the immediate use of a dangerous instrument; or (4) [d]isplays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.” N.Y. Penal Law § 140.03.

Finally, under New York Penal Law § 125.25(3), a person is guilty of murder in the second degree (felony murder) if he or she commits or attempts to commit one of 10 enumerated felonies, “and, in the course of and in furtherance of such crime . . . causes the death of [another].” The felony murder statute includes, in its list of predicate felonies, “robbery” and “burglary.” N.Y. Penal Law § 125.25(3).

There was evidence in the record of Petitioner's trial from which a rational jury could have found each of the elements of these crimes beyond a reasonable doubt. Johanna - who was an eyewitness to the crimes - testified at trial that Petitioner unlawfully entered the private residence of Aquino and Tejada with two accomplices and attempted to forcibly steal drugs, that Petitioner was armed, and that he personally pointed the gun at Johanna and then her husband (see Trial Tr., Dkt. 16-21, at 657-59; 16-22, at 788, 791); that Petitioner actively participated in the crime by holding the gun while his accomplices searched the apartment and by searching the apartment himself (Id., Dkt. 16-21, at 684, 690-91); and that Petitioner brought Elvis from the bathroom to the living room, where Elvis was eventually shot and killed by one of Petitioner's accomplices (Id., at 685, 690). Overall, viewing the evidence in the light most favorable to the prosecution and drawing all possible inferences in the prosecution's favor, Petitioner has hardly shown that the jury's verdict fell “below the threshold of bare rationality.” Coleman v. Johnson, 566 U.S. 650, 656 (2012).

As a rational jury could have found each of the elements of the crimes in question beyond a reasonable doubt, Petitioner's legal-insufficiency claim should be dismissed as meritless.

iii. Petitioner's Trial Counsel Was Not Ineffective For Failing To Raise a Meritless Repugnancy Objection.

Strickland v. Washington sets out a two-pronged test for evaluating whether a criminal defendant has been deprived of his constitutional right to the effective assistance of counsel. 466 U.S. 668 (1984). To prevail on an ineffective assistance claim under Strickland, a habeas petitioner must show (1) that his counsel's performance “fell below an objective standard of reasonableness, ” and (2) that he suffered prejudice as a result. Id. at 688, 691, 694. As to the first prong of this test, there is a strong presumption that counsel's conduct will have fallen within the range of reasonably professional assistance. See id. at 689. With regard to prejudice, the petitioner must demonstrate “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. The Strickland standard is a difficult one to meet: in order for counsel to be deemed constitutionally “ineffective, ” counsel's conduct must have “so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 686.

Given that the verdict against Petitioner, even if seemingly illogical, was not legally “repugnant, ” it is of little moment that trial counsel failed to preserve an objection to the verdict on that ground. Had trial counsel raised the objection in a timely manner, before the jury was discharged, it would have been proper for the trial court to overrule that objection - just as the trial court found the objection to be meritless when Petitioner's trial counsel raised it later, in the context of the Section 330.30 motion. 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, see Forbes v. United States, 574 F.3d 101, 106 (2d Cir. 2009) (“It is well established that ‘[t]he failure to include a meritless argument does not fall outside the wide range of professionally competent assistance to which [a defendant is] entitled.'” (quoting Aparicio v. Artuz, 269 F.3d 78, 99 (2d Cir. 2001)), and because a meritless objection cannot be found likely to have affected the outcome of the proceedings, see Cox v. Donnelly, 387 F.3d 193, 199 (2d Cir. 2004) (“In order to meet the second prong of the Strickland test, [Petitioner] must show that his counsel's . . . failure to object . . . prejudiced the outcome of his trial, such that our confidence in the outcome is undermined.”). For these reasons, Petitioner's claim that his trial counsel was ineffective for failing to preserve a repugnancy objection to the verdict should be denied.

iv. Appellate Counsel Was Not Ineffective For Failing To Raise Meritless Claims on Appeal.

As applied to a claim for ineffective assistance of appellate counsel, the two-pronged test articulated in Strickland requires a habeas petitioner to show that (1) appellate counsel acted objectively unreasonably in failing to raise a particular issue on appeal, and (2) absent counsel's deficient performance, there was a reasonable probability that the petitioner's appeal would have been successful. See Smith v. Robbins, 528 U.S. 259, 285 (2000) (applying Strickland to claim for ineffective assistance of appellate counsel). A petitioner may demonstrate the objectively unreasonable performance of appellate counsel “if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker.” Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994).

Appellate counsel does not, however, have a duty to advance every available non-frivolous argument on appeal. Jones v. Barnes, 463 U.S. 745, 751 (1983). Rather, deference is accorded to an appellate counsel's strategic decision to focus an appeal on select issues, instead of raising every potentially “colorable” claim. Id., at 753-54. This is because “[e]xperienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most a few key issues.” Id. at 751-52. A brief that raises every colorable claim “runs the risk of burying good arguments . . . in a verbal mound made up of strong and weak contentions.” Id. at 753 (citations omitted).

As Petitioner lacks a meritorious claim that the verdict against him was repugnant, he cannot show, under Strickland, that his appellate counsel deprived him of effective assistance by failing to raise a repugnancy claim on direct appeal. See, e.g., Muldrow v. Herbert, 299 F.Supp.2d 166, 169 (W.D.N.Y. 2004) (finding that appellate counsel was not ineffective for not raising the repugnant verdict issue, which was neither significant nor promising on appeal). Similarly, as Petitioner lacks a meritorious legal-insufficiency claim, he cannot show that his appellate counsel was ineffective for failing to raise that claim. Aparicio, 269 F.3d at 99. Finally, absent a meritorious claim that Petitioner's trial counsel was ineffective for failing to preserve the repugnancy objection, Petitioner necessarily cannot show that his appellate counsel was ineffective for failing to raise, on direct appeal, a challenge to the performance of trial counsel. See id. at 100 (holding that because, under the circumstances, the jury instructions were not improper, the failure of trial counsel to object or request an additional instruction was not objectively unreasonable and that appellate counsel was not ineffective for failing to raise it).

In addition, this Court notes, as Respondent also points out (see Resp. Mem., at 4), that Petitioner's appellate counsel presented, on direct appeal, a well-drafted 27-page brief, presenting two claims - one of which (regarding a sentencing error) was successful and resulted in a reduction of Petitioner's sentence. Viewed in the totality of the circumstances, appellate counsel's presumed strategic decision to omit weaker (and, indeed, meritless) claims relating to the alleged inconsistency of the verdict cannot be found to have been constitutionally deficient.

3. Grounds Three and Four: Juror Misconduct

As noted above, Petitioner's third and fourth grounds for habeas relief, as stated in the Petition, are effectively coextensive. The third ground is essentially a due-process claim that Petitioner was denied a fair trial as a result of the misconduct of a particular juror (see Pet. ¶ 12 (Ground Three)), and the fourth ground is similarly a claim that Petitioner was denied a fair and impartial jury, based on the same misconduct (see id. (Ground Four)). Relatedly, Petitioner asserts in his supplemental memorandum that his jury was tainted by pre-verdict communications with the jury that deliberated on the charges against his codefendant, Bruno (see Pet. Mem., at 27), and that his appellate counsel was ineffective for failing to raise a jurormisconduct claim on appeal, based on the record of the hearing conducted by the trial court on Petitioner's Section 330.30 motion (id., at 6, 7-8). At least some of these claims are unexhausted, but, regardless of any lack of exhaustion, they should all, in any event, be dismissed for lack of merit.

a. Exhaustion Analysis

Petitioner's due-process claims regarding juror misconduct are unexhausted, given that, in light of the record of the hearing held by the trial court on Petitioner's Section 330.30 motion, Petitioner could have raised the claims on direct appeal, but failed to do so. These claims are consequently “deemed” exhausted, rendering them procedurally barred from habeas review. See, e.g., Walton v. Ricks, No. 01cv5265 (LMM), 2003 WL 1873607, at *8 (S.D.N.Y. Jan. 31, 2003). As for Petitioner's claim that his appellate counsel was ineffective for failing to raise a jurormisconduct claim on direct appeal, this Court notes that Petitioner raised such a claim in his coram nobis petition, but, as discussed above, this Court is unable to determine if he then fully exhausted the claim by raising it in his subsequent application for leave to appeal the denial of that petition to the Court of Appeals. In any event, Petitioner's juror misconduct claims, as well as his related ineffective-assistance claims, either fail for lack of merit or because, absent merit, Petitioner cannot demonstrate the “prejudice” necessary to overcome any procedural bar.

b. Merits Analysis

i. The Record of Petitioner's Section 330.30 Hearing Does Not Support His Claim That He Was Denied a Fair and Impartial Jury.

The Sixth Amendment provides, in relevant part, that, “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury, ” and guarantees criminal defendants the right to confront their accusers. U.S. Const. Amend. VI. The Supreme Court has held that, as a general matter, these provisions of the Sixth Amendment require a jury's verdict to be based upon the evidence developed at trial. See Irvin v. Dowd, 366 U.S. 717, 722 (1961); see also Turner v. Louisiana, 379 U.S. 466, 472-73 (1965) (holding that “trial by jury in a criminal case necessarily implies at the very least that the ‘evidence developed' against a defendant shall come from the witness stand in a public courtroom where there is a full judicial protection of the defendant's right of confrontation, of cross-examination, and of counsel”). When the jury learns of potentially incriminating information that is outside of the record, a criminal defendant's Sixth Amendment rights are implicated. See United States v. Simmons, 923 F.2d 934, 943 (2d Cir. 1991), cert. denied, 500 U.S. 919 (1991); United States ex rel. Owen v. McMann, 435 F.2d 813, 817-18 (2d Cir. 1970), cert. denied, 402 U.S. 906 (1971).

In a federal prosecution, a showing on direct appeal that extra-record information was introduced to a jury gives rise to a presumption that the information was prejudicial. See Remmer v. United States, 347 U.S. 227, 229 (1954); United States v. Weiss, 752 F.2d 777, 782-83 (2d Cir. 1985), cert. denied, 474 U.S. 944 (1985); United States v. Hillard, 701 F.2d 1052, 1064 (2d Cir. 1983), cert. denied, 461 U.S. 958, 103 (1983). On the other hand, a federal court's habeas review of a state conviction is more limited, such that the petitioner must make a showing that the introduction, to the jury, of extra-record information had a “substantial and injurious effect or influence in determining the jury's verdict, ” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). “In other words, the petitioner must show ‘actual prejudice' flowing from the alleged error.” Bibbins v. Dalsheim, 21 F.3d 13, 16 (2d Cir. 1994). The court must apply an objective test, assessing for itself the likelihood that the influence would affect a typical juror. See, e.g., Corines v. Sup't Otisville Corr. Facility, 621 F.Supp.2d 26, 40-41 (E.D.N.Y. 2008).

In applying the objective test, courts have looked to factors such as whether the external information was cumulative; whether the information could have been part of the jury's fund of ordinary knowledge and experience; what any objective statements made by the jurors postverdict reflect regarding the circumstances of how the information was introduced; and whether the introduced information could be construed as essential to the prosecution's case. See, e.g., Loliscio v. Goord, 263 F.3d 178, 185-89 (2d Cir. 2001) (finding that no prejudice resulted from jurors' hearing negative rumors about the defendant and victim, where the circumstances of how the information was introduced meant, inter alia, that only a few jurors had heard the rumors before the information was brought to the court's attention); Bibbins, 21 F.3d at 16 (finding that a juror's statement was insufficiently prejudicial to warrant habeas relief, where the extra-record information was cumulative of evidence introduced at trial).³¹

31 In Bibbins, which was decided before the enactment of AEDPA, the Second Circuit held that, in making a determination as to whether, as an “objective” matter, particular extrarecord evidence would have influenced a reasonable jury, a federal court should not consider subjective statements by jurors as to whether the evidence in fact affected their states of mind or the jury's deliberations. See Bibbins, 21 F.3d at 16. In Loliscio, the Second Circuit then observed that, by holding that jurors' subjective statements should be disregarded even if relied upon by the state court, Bibbins “appear[ed] to be in some tension with the heightened degree of deference to state court decisions mandated by AEDPA.” Loliscio, 263 F.3d at 187. The Loliscio court, however, did “not reach the question of Bibbins' vitality in the wake of AEDPA” because, on the facts of Loiscio, the court was able to conclude, based on the jurors' objective statements regarding how the evidence came to their attention and other factors not implicating their subjective reports, that the extra-record evidence did not prejudice the petitioner. Id., at 190.

In this case, the extra-record evidence at issue - Stallings' purported statements that a co-worker of hers, who had been a neighbor to Aquino and Tejada, had heard gunshots and “banging on the door” on the night of the crimes, and had known Aquino and Tejada to have been “good” people who did not sell drugs (§ 330.30(2) Hearing Tr., at 11, 50) - was largely cumulative of other evidence in the record. In particular, this extra-record evidence was cumulative to Johanna's testimony at trial, which indicated that the perpetrators did not find what they were looking for in the apartment (presumably drugs and/or money) (see generally Trial Tr., Dkt.16-21), that the victims were shot (see id., at 738, 740, 742-43), and that she knocked on neighbors' doors for help (Id., at 746). Further, nothing in the various statements purportedly made by Stallings suggested that her co-worker had actually witnessed the commission of the crimes and could thus directly implicate Petitioner in the crimes. In contrast, the prosecution's case against Petitioner was built on Johanna's eyewitness identification of Petitioner and her detailed account of his actions within the apartment (see generally id.), as well as Johanna's identification of Petitioner from a line-up (see id., at 766-67), Detective Morales' testimony regarding the circumstances surrounding Petitioner's arrest (see id., Dkt. 16-25, at 1277-96), and forensic evidence (see id., Dkt. 16-33, at 2321; Dkt. 16-34, at 2346). In these circumstances, the extra-record evidence cannot be construed as having been essential to the prosecution's case against Petitioner. Finally, while a few jurors were plainly made privy to part or all of Stallings' statements, the recollection of those jurors who testified was generally consistent that the information was not imparted to the jury as a whole, prior to the verdict being rendered. (See § 330.30(2) Hearing Tr., at 39, 51, 85-86, 100.)

For these reasons, Petitioner has not demonstrated, based on objective evidence, that the extra-record information had a substantial and injurious effect on the jury's deliberations, such that it resulted in “actual prejudice” to him. See, e.g., Smith v. Graham, No. 10cv3450 (JPO) (THK), 2012 WL 2428913, at *19 (S.D.N.Y. May 7, 2012) (taking into account “the strong evidence” of petitioner's guilt in finding that error was harmless), report and recommendation adopted, 2012 WL 2435732 (Jun. 27, 2012); cf. Benjamin v. Fisher, 248 F.Supp.2d 251, 262 (S.D.N.Y. 2002) (holding that error was not harmless where prosecution's case was thin, and where jury was deadlocked prior to learning of the extra-record information); Taus v. Senkowski, 134 Fed.Appx. 468, 470 (2d Cir. 2005) (Summary Order) (holding that any error arising from jury's exposure to extraneous evidence could not be found to have swayed the verdict, where the evidence against petitioner was overwhelming). As the introduction of external evidence to the jury was thus harmless under the applicable standard, see Brecht, 507 U.S. at 623; Fry v. Pliler, 551 U.S. 112, 121-22 (2007) (confirming applicability of Brecht harmless-error standard in Section 2254 habeas cases), Petitioner cannot prevail on his juror-misconduct claim regarding Stallings' statements.³²

32 This Court notes that juror Carrier's testimony as to Stallings' mental state - that Stallings “k[new]” Petitioner was guilty - does not change this Court's determination that, based on the objective evidence, and under the standards set forth in Bibbins, Loliscio, and Brecht, the extra-record information did not have a substantial and injurious effect on the jury's deliberations, especially as Stallings herself testified under oath at the Section 330.30(2) hearing that her conversation about the extra-record information did not affect her verdict. (See § 330.30(2) Hearing Tr., at 77.)

Petitioner also raises another juror misconduct claim, alleging, as he did in his Section 330.30 motion, and then again in his coram nobis petition, that he was denied a fair and impartial jury because, according to Petitioner, certain members of his jury were in telephonic contact with members of Bruno's jury subsequent to a verdict having been reached in Bruno's case, but before Petitioner's jury began its deliberations, and that Petitioner's jury was unduly influenced by the decision of Bruno's jury to convict Bruno. (See Pet. Mem., at 27.) Petitioner's allegations in this regard, however, are threadbare and conclusory. As Petitioner has come forward with absolutely no evidence to support this claim, he cannot prevail on it. See, e.g., Skeete v. New York, No. 1:03-CV-2903, 2003 WL 22709079, at *2 (E.D.N.Y. Nov. 17, 2003) (noting that “vague, conclusory and unsupported claims do not advance a viable claim for habeas corpus relief”); see also People v. Covington, 843 N.Y.S.2d 606 (1st Dep't 2007) (rejecting claim where allegations of improper discussion of the case were not supported with a sworn affidavit or affirmation).

ii. Appellate Counsel Was Not Ineffective For Failing To Raise a Juror Misconduct Claim.

As Petitioner lacks a meritorious claims regarding juror misconduct, he also cannot show, under Strickland, that his appellate counsel gave him ineffective assistance by failing to raise his juror-misconduct claims on direct appeal. Moreover, appellate counsel's decision to omit, from Petitioner's appeal, the juror-misconduct claim that the trial court had addressed after holding a hearing on the issue was plainly based on counsel's considered view of its likelihood of success. (see Pet. Coram Nobis Aff., at 67-68.) This type of strategic decision by appellate counsel cannot be found to have been constitutionally deficient.

C. The Additional Claims Raised in Petitioner's Supplemental Memoranda Are Also Without Merit.

As noted above, Petitioner's supplemental habeas memoranda (including both his initial memorandum and his reply) also appear to raise a number of additional claims, not directly related to those claims pleaded in the Petition. These claims are all generally framed in terms of ineffective assistance of appellate counsel, but, liberally construed, Petitioner's memoranda could also be read to assert the underlying substantive claims that, he contends, his appellate counsel should have raised on direct appeal. Regardless of whether these additional claims have been exhausted or should be deemed exhausted and procedurally barred, ³³ they are all subject to dismissal for lack of merit, even if considered under a de novo standard of review.

33 To the extent Petitioner's additional claims are framed in terms of the alleged ineffective assistance of his appellate counsel, Petitioner raised most of them in his coram nobis petition (except for his most recently-asserted claim arising out of his counsel's failure to raise, on appeal, a claim based on the purported inaccuracy of the translations given at trial by the Spanish interpreter). For the same reasons discussed above with respect to the other claims raised by Petitioner in the coram nobis proceeding, it is impossible for this Court to determine, on the presented record, whether such claims have been fully exhausted. (See Discussion, supra, at Section II(B)(2)(a).) As for any of Petitioner's additional claims that he did not raise in his coram nobis petition (including the additional underlying claims that he contends his appellate counsel should have raised), those claims should be found to be unexhausted and generally should be deemed exhausted and procedurally defaulted.

1. Prejudicial Use of Dual Juries

In his supplemental memorandum, Petitioner asserts that his appellate counsel was ineffective for failing to raise a claim on appeal challenging the trial court's denial of his motion for a complete severance of his trial from Bruno's, and instead ordering that the case be tried by dual juries. (Pet. Mem., at 7-8.) Relatedly, Petitioner seems to assert that his appellate counsel should have raised a claim of prosecutorial misconduct, based on allegedly improper remarks made by the prosecutor in his single opening statement to the two juries (see id., at 7), and should also have argued on appeal that the trial court's refusal to sever the case entirely resulted in or contributed to the seriousness of a Bruton violation, when Bruno's post-arrest statement was placed before the jury deciding Petitioner's case, even though Bruno did not take the stand (see id., at 6, 7-8). These same assertions, as noted above, might also be construed as an attempt by Petitioner to raise underlying due-process claims relating to the trial court's allegedly prejudicial ruling regarding the use of a dual jury in Petitioner's trial, the prosecutor's alleged misconduct, and the purported Bruton violation. (See id.) None of these claims have merit.

a. Dual Juries Are Not Inherently Unconstitutional.

The Supreme Court has noted, in the context of federal prosecutions, that “[t]here is a preference . . . for joint trials of defendants who are indicted together, ” as joint trials “promote efficiency and ‘serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.'” Zafiro v. United States, 506 U.S. 534, 537 (1993) (quoting Richardson v. Marsh, 481 U.S. 200, 210 (1987). Under federal law, the decision as to whether to grant a motion for severance is generally “committed to the sound discretion of the trial judge, ” Grant v. Hoke, 921 F.2d 28, 31 (2d Cir. 1990) (internal quotation marks and citations omitted), cert. denied, 493 U.S. 1081 (1990), and “severance need not be granted simply because codefendants have made incriminating statements, ” United States v. Shareef, 190 F.3d 71, 77 (2d Cir. 1999). Nor may a trial court's denial of severance be found to have been improper merely because the defendant “might have had a better chance for acquittal at a separate trial.” Grant, 921 F.2d at 31.

To demonstrate a due-process violation resulting from the denial of a severance motion, the defendant “must show that he was so severely prejudiced by the joinder as to have been denied a fair trial.” Id. Even “[m]utually antagonistic defenses [of codefendants] are not prejudicial per se, ” Zafiro, 506 U.S. at 538; see also Grant, 921 F.2d at 31 (noting that a “simple showing of some antagonism between defendants' theories of defense” is not sufficient to show a constitutional violation (internal quotation marks and citation omitted)). Rather, the defendant must show that denial of severance rendered the trial “fundamentally unfair” because “the jury, in order to [have] believe[d] the core of testimony offered on behalf of [one] defendant, must necessarily [have] disbelieve[d] the testimony offered on behalf of his codefendant, ” Id. (internal quotation marks and citation omitted). While these due-process standards have been developed in the context of federal litigation, the same standards have been held to apply when a federal court considers whether a federal constitutional violation has occurred in a state-court prosecution. See id. (“At least this much must be shown when a federal habeas court reviews a state court denial of a severance motion.”).

As for the specific question of whether and when the use of dual juries - as a partial, but not entire, grant of severance - may violate a defendant's constitutional rights, the Supreme Court has not had occasion to address the issue. Bruno v. Griffin, 16cv4432 (LGS), 2018 WL 4521213, at *4 (S.D.N.Y., Sept. 21, 2018); see also Hedlund v. Ryan, 854 F.3d 557, 571 (9th Cir. 2017) (“The Supreme Court has not spoken on the issue of dual juries ....”). The circuit courts that have been faced with challenges to dual juries, however, have upheld their use. See, e.g., Brown v. Sirmons, 515 F.3d 1072, 1078 (10th Cir. 2008) (“[E]very federal appellate court that has considered a dual jury system has finally concluded that its use is not structural error, and we conclude the same.” (citing cases)); see also Vasquez v. Rock, No. 08 Civ. 1623, 2010 WL 2399891, at *9 (E.D.N.Y. June 10, 2010) (noting that “there is simply no federal precedent holding that a joint trial before separate juries runs afoul of federal constitutional law”); United States v. Al Fawwaz, 67 F.Supp.3d 581, 588 (S.D.N.Y. 2014) (finding that “the use of a dual jury system may very well be a reasonable response to prejudicial joinder” (citation omitted)).

Thus, although Petitioner contends, in his supplemental memorandum, that “the trial court committed reversible error in granting severance to the extent of ordering [Petitioner] to be jointly tried by dual jur[ie]s” (Pet. Mem., at 8), the case law does not support a determination that the use of a dual jury in his case per se violated his due-process right to a fair trial.

b. The Prosecution's Joint Opening Statement to the Dual Juries Was Not Unduly Prejudicial to Petitioner.

Although, in his habeas submissions, Petitioner has not explained precisely why, in his case in particular, the trial court's decision to employ dual juries resulted in a violation of his due-process rights, he seems to focus, in part, on the fact that the prosecutor was permitted by the trial court, over the objection of Petitioner's counsel, to make a single opening statement to both juries. (See Pet. Mem., at 8.) Liberally construing his claim with reference to the arguments he articulated in his coram nobis submissions, this Court understands Petitioner to be complaining that the prosecutor's single opening statement was unduly prejudicial both because the prosecutor used language that generally linked Petitioner with Bruno in the commission of crimes, and because, at the same time, the prosecutor improperly appealed to the jurors' sympathies. (See Pet. Coram Nobis Aff., at 10.) Neither aspect of Petitioner's challenge to the prosecutor's opening statement is persuasive.

i. The Prosecutor's References to “They”

In his coram nobis papers, Petitioner particularly quoted certain colloquy between counsel and the trial court that had occurred prior to opening statements. (See Pet. Coram Nobis Aff., at 7-9.³⁴) In that colloquy, as quoted by Petitioner, Petitioner's counsel argued that permitting the prosecutor to make one opening statement to both juries, simultaneously, would be prejudicial to Petitioner's rights because Petitioner was not accused of being the shooter, but rather was being charged with crimes on a theory that he acted “in concert” with Bruno. (See id., at 7.) Petitioner's counsel took the position that a jury of lay people would “not have the intuitive ability to separate” the codefendants and understand that Petitioner's trial should only be about Petitioner (rather than Bruno), and about what the prosecution would be able to prove about Petitioner's conduct. (Id.) Contending that it would be “very difficult” in the context of a single opening statement for the prosecutor not to refer to the codefendants “as a group, ” Petitioner's counsel argued that the prosecutor's “referring to the defendants [in the] plural” would “defeat the purpose” of having separate juries. (Id.)

34 The portion of the trial transcript containing this colloquy has not been submitted to this Court (see supra, at n.2), but Respondent has not suggested that Petitioner quoted the transcript inaccurately in his coram nobis submissions.

At times in his opening statement, the prosecutor then did refer to Petitioner and Bruno together, as “they” (see Trial Tr., Dkt. 16-16, at 4 (“When [Aquino] indicated that he didn't have any money and drugs, they didn't believe him.”); Id., at 6 (“As one point, they had all three, [Aquino], Evis, and Johanna on the floor.”); Id., at 7 (“Johanna watched as they started to leave the apartment ....”), and, although Petitioner's counsel objected to these plural references, the court overruled the objections (see id., at 4, 6, 8). Then, after the prosecutor's opening statement, Petitioner's counsel moved for a mistrial, arguing, in part, as follows:

[The prosecutor] continually referred to they did this, they did that, and as I mentioned before, the problem with the case [is that] acting in concert without being able to attribute the specific actions to a particular individual and grouping everyone together as ‘they' reduces the burden of proof with respect to acting in concert. That was exactly what I was afraid of in opening to both juries.

(Id., at 17 (emphasis added).) The court denied the motion, rejecting Petitioner's suggestion that there was any impropriety in the prosecutor's referring to the codefendants collectively. (See id., at 19-20 (“This is an acting in concert case. I think [the prosecutor] was appropriate ”).)³⁵

35 On his direct appeal, Petitioner did not challenge the denial of his motion for a mistrial, nor did he otherwise claim that he suffered prejudice from the use of dual juries in his case. Petitioner's codefendant, Bruno, however, did assert a claim on appeal that challenged the use of dual juries as having been prejudicial to his own defense. As to Bruno's claim, the Appellate Division held:

The court properly exercised its discretion in denying, in part, [Bruno's] request for a severance of his trial from that of his codefendant and instead utilizing separate juries (see People v. Ricardo B., 73 N.Y.2d 228, 233-235 [1989]). The court excused [Bruno's] jury during certain portions of the trial pertaining specifically to the codefendant, which minimized any potential prejudice resulting from the two defendants' antagonistic defenses (see People v. Mahboubian, 74 N.Y.2d 174, 183184 [1989]). [Bruno] failed to present sufficiently strong grounds for ordering completely separate trials, given that the proof against the two defendants was supplied by the same evidence .... The use of separate juries effectively prevented [Bruno's] jury from hearing unduly prejudicial arguments or evidence relating to the codefendant. To the extent [Bruno's] jury may have heard anything it might not have heard at a separate trial, this did not deprive [Bruno] of a fair trial under the circumstances.

People v. Bruno, 975 N.Y.S.2d 22 (1st Dep't 2013) (record citation omitted). The Appellate Division also found that, in any event, any error claimed by Bruno with respect to the use of dual juries was harmless, in light of the overwhelming evidence of Bruno's guilt. (Id.)

In this habeas proceeding, Petitioner has not shown that he was unfairly prejudiced by the prosecutor's references to “they” during his single opening statement to both juries. As noted by the trial court, the prosecutor's references were made in the context of his laying out, with respect to the People's case against Petitioner, an acting-in-concert theory - a theory that necessarily required more than a single actor to have been involved in the commission of the crimes. Indeed, the prosecutor then proceeded to introduce, during Petitioner's trial, a substantial amount of evidence that the crimes with which Petitioner was charged were perpetrated by three men who, in various ways, could be found to have acted “in concert.” Under these circumstances, the suggestion in the prosecutor's opening that Petitioner engaged in the charged criminal conduct together with Bruno was not improper. See, e.g., People v. Umoja, 894 N.Y.S.2d 159, 160-61 (2d Dep't 2010) (holding that defendant's contention that he was deprived of a fair trial by the prosecutor's assertion in his opening statement that the defendant was guilty of the crimes with which he was charged was not error, as the statement adequately described what the prosecution intended to prove, and properly prepared the jury to resolve the factual issues at trial); Parks v. Sheahan, 104 F.Supp.3d 271, 290 (E.D.N.Y. 2015) (holding that, “while the prosecutor may have somewhat overstated her case, ” there was no evidence that petitioner was prejudiced by the opening statements or that, but for those statements, the petitioner would have been acquitted, as the evidence strongly supported the prosecutor's theme).

ii. The Prosecutor's Appeal to Sympathy

Petitioner also apparently contends that the prosecutor's opening statement to the combined dual juries improperly appealed to the sympathies of the jurors. (Pet. Mem., at 7.) In particular, Petitioner complained in his coram nobis submissions that, after rejecting Petitioner's arguments regarding the prejudice that would result from the use of two juries,

[t]he Court went on to allow the prosecution to open to both juries to the defendants['] detriment when the prosecution elicited sympathy and drew on the emotion of the juries when the prosecution stated:

‘The families of Miquel Aquino, Dilcia Tejada, Elvis Hartley, Johanna Hartley have waited for this moment.'

(Pet. Coram Nobis Aff., at 10.) Petitioner's counsel objected to this statement by the prosecutor, and the trial court sustained the objection, giving the following curative instruction to the jury: “Remember, I told you sympathy for any party is not a basis for your decision.” (Id. at 11.) As already noted, Petitioner's counsel moved for a mistrial after the completion of the prosecutor's opening, primarily because of the prosecutor's repeated use of the word “they” in referring to Petitioner and Bruno; that motion, though, was also partially based on the prosecutor's appeal to the jury's sympathy. (Trial Tr., Dkt. 16-16, at 17-18.) In denying the motion, the trial court stated, “With regard to the sympathy, it was an objectionable comment and I sustained the objection. I instructed the juries not to, you know, let sympathy play a part. The juries are known to follow the Judge's instructions.” (Id., at 19.)

While Petitioner may be trying to tie his challenge to this ruling to his general challenge to the use of dual juries in his case, his claim here is more aptly described as a straightforward prosecutorial-misconduct claim. Prosecutorial misconduct, however, must be “egregious” to be found to have violated a defendant's constitutional rights. Donnelly v. DeChristoforo, 416 U.S. 637, 647-48 (1974). The relevant question is whether the prosecutorial misconduct “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Id. at 643. In considering whether a trial was infected with unfairness, so as to make the resulting conviction a denial of due process, the Supreme Court has looked to whether the prosecutor's statements manipulated or misstated the evidence, or implicated other specific rights of the accused, such as the right to counsel or the right to remain silent. See Darden v. Wainwright, 477 U.S. 168, 181-82 (1986). The Supreme Court has found a prosecutor's comments not to have resulted in fundamental unfairness where the trial court provided curative instructions to the jury - directing the jury to base its verdict on the evidence, and instructing it that statements by the prosecutor did not constitute evidence - and where the weight of the evidence against the defendant was heavy. Id., at 182; see also Tankleff v. Senkowski, 135 F.3d 235, 251 (2d Cir. 1998) (“In deciding whether a defendant has suffered actual prejudice as a result of the prosecutorial misconduct, we have considered the severity of the misconduct; the measures adopted to cure the misconduct; and the certainty of conviction absent the improper statements” (internal quotation marks and citations omitted)).

In this instance, Petitioner cannot show that the prosecutor's single comment appealing to the jurors' sympathies was so egregious that it violated Petitioner's due-process rights, especially as the trial court sustained an objection to the comment and immediately gave a curative instruction. See, e.g., Tankleff, 135 F.3d at 253 (noting that where a prosecutor's comments are short and fleeting, they are much less likely to have had a substantial effect on the jury's verdict, especially where the trial judge instructed the jury that the burden of proof rested on the prosecution, and that the arguments on summation were not evidence and the verdict could not be based on them); see also People v. Flowers, 57 N.Y.S.3d 598, 600-01 (4th Dep't 2017) (prosecution's improper appeal to the sympathy of the jury was alleviated by the judge's curative instruction, which the jury is presumed to have followed). This is also not a case where the prosecutor misstated the evidence, or explicitly implicated Petitioner's rights. Moreover, taken as a whole, the prosecution's evidence against Petitioner was strong. Accordingly, Petitioner has not shown that the prosecution's appeal to the jury's sympathies resulted in unconstitutional prejudice. For these reasons, this claim is meritless. See, e.g., Roman v. Filion, No. 04cv8022 (KMW) (AJP), 2005 WL 1383167, at *21-22 (S.D.N.Y. Jun. 10, 2005) (holding that prosecutorial misconduct during summation did not rise to level required to grant habeas petition), report and recommendation adopted (Dec. 19, 2005).

c. The Use of Dual Juries Neither Gave Rise to, nor Exacerbated, a Bruton Violation.

Petitioner additionally appears to argue that, by admitting Bruno's post-arrest statement into evidence at Petitioner's trial, without affording Petitioner an opportunity to cross-examine Bruno regarding the statement, the trial court denied Petitioner his Confrontation Clause rights under Bruton, and that this constitutional violation was particularly prejudicial in light of the fact that Bruno was seen by the jury as having been Petitioner's codefendant. (See Pet. Mem., at 8 (complaining of use of dual juries “at the same time when there[] [was] an adverse inculpatory statement by the co-defendant”).) Petitioner also appears to argue that, even if a joint trial with dual juries would have otherwise been permissible, the introduction of Bruno's out-of-court statement created a heightened antagonism between the codefendants' positions that rendered any form of joint trial constitutionally impermissible. (See Pet. Reply, at 10 (arguing that, “once the trial court ruled this statement admissible under certain conditions, ” the codefendants' positions “became mutually antagonistic”); see also Pet. Coram Nobis Aff., at 14 (“The only evidence offered by the People as to [Petitioner's] exact role in the killings was Mr. Bruno's statement. Clearly, once the trial court ruled this statement admissible under certain circumstances, the two defendants' position[s] became mutually antagonistic - especially given the fact of a joint trial ....”).

Petitioner has not shown, however, that Bruno's statement, the content of which is set out above (see Background, supra, at Section A(3)), introduced an irreconcilable conflict between Petitioner's and Bruno's defenses, see Grant, 921 F.2d at 31. In fact, as discussed above, Petitioner has argued at great length that Bruno's statement would have supported Petitioner's affirmative defense to felony murder. (See Discussion, supra, at Section II(B)(1)(b)(i).) In any event, Petitioner's underlying assumption regarding the court's admission of Bruno's statement -that this constituted a Bruton violation (see Pet. Mem., at 6; see generally Pet. Coram Nobis Aff., at 26-36) - is flawed. In Bruton, as noted above (see supra, at n.17), the Supreme Court held that a defendant may be deprived of his Sixth Amendment Confrontation Clause rights when the government introduces the confession of a non-testifying codefendant in a joint trial. Here, however, as pointed out by Respondent (see Resp. Mem., at 8) and contrary to Petitioner's claims, it was Petitioner's own counsel, not the prosecution, who introduced Bruno's post-arrest statement at trial, during cross-examination of a prosecution witness. While the prosecution had introduced Bruno's post-arrest statement in the trial against Bruno, it had not done so against Petitioner, and, until Petitioner's counsel introduced it, the statement had apparently not been placed before Petitioner's jury. Moreover, the prosecution did not address Bruno's statement further on re-direct. (See Trial Tr., Dkt. 16-33, at 2224-47.)

Under these specific circumstances, where the Record strongly suggests that the admission of Bruno's statement was a strategic decision by Petitioner's own trial counsel, and where the prosecution did not further expound upon the statement, this Court cannot find that the introduction of the statement constituted a Sixth Amendment violation. Cf. Lilly v. Virginia, 527 U.S. 116, 130 (1999) (where hearsay statements are “offered by the accused, the admission of such statements does not implicate Confrontation Clause concerns”); see also Taylor v. Phillips, 05-CV-2596, 2016 WL 5678582, at *8 n.6 (E.D.N.Y. Sept. 30, 2016) (“Bruton is inapplicable[, ] . . . as trial counsel consented to the admission of [the] statements as part of a coherent trial strategy.”); cf. United States v. Bullock, No. 1:06-CR-0120 (LEK), 2009 WL 1707363, at *7 (N.D.N.Y. Jun. 17, 2009) (finding that, where defendants had “affirmatively used” the inconsistencies in codefendants' statements “to bolster their defense, ” and then later tried to raise a Bruton violation, defendants' Bruton objection was waived, as the statements could not be used “as both a sword and shield”).

Finally, even if the trial court erred by admitting Bruno's statement into evidence without his being made available for cross-examination, the admission of that evidence would have constituted harmless error. See Schneble v. State of Florida, 405 U.S. 427, 430 (1972). A Confrontation Clause error is subject to harmless error review by a federal habeas court. See Samuels v. Mann, 13 F.3d 522, 526 (2d Cir. 1993), cert. denied, 513 U.S. 849 (1994). As set out above, the question for the habeas court upon such review is whether the error “had substantial and injurious effect or influence in determining the jury's verdict.” Brecht, 507 U.S. at 623 (internal quotation marks and citation omitted); Fry, 551 U.S. at 121-22. Conclusive effect is not to be given to the reviewing court's view of the evidence, but rather to “the impact that the improperly admitted evidence had or reasonably may have had upon the minds of the jury.” Samuels, 13 F.3d at 528. The factors relevant to the determination of whether an error is harmless include “the importance of the . . . testimony in the prosecution's case, whether the testimony was cumulative, the absence or presence of evidence corroborating or contradicting the testimony, and the overall strength of the prosecution's case.” See Latine v. Mann, 25 F.3d 1162, 1167 (2d Cir. 1994), cert. denied, 514 U.S. 1006 (1995).

In this case, wholly apart from Bruno's statement, the prosecution's evidence against Petitioner was strong on all of the charges on which Petitioner was convicted. While Bruno's statement generally implicated Petitioner as having had an advance discussion with Bruno regarding “what was going to happen” and as having then being present at the crime scene, the prosecution also presented independent evidence - including Johanna's eyewitness testimony and forensic evidence of Petitioner's DNA - identifying Petitioner as an active participant in the commission of the felonies that led to the death of Elvis (and, for that matter, Aquino and Tejada), and placing Petitioner in the apartment at the moment of the unlawful entry and throughout the course of the killings. Moreover, the testimony of the various detectives, as well as the testimony of Negron, linked Petitioner to Bruno on the night of the crimes.

Accordingly, Bruno's statement was, at most, cumulative to the other inculpatory evidence admitted at Petitioner's trial, and Johanna's testimony was, in fact, significantly more incriminating as to Petitioner's role in the crimes than was Bruno's statement. In light of the overall strength of the prosecution's case against Petitioner, there was no reasonable possibility that a Bruton violation - even assuming there was one, in Petitioner's case - infected the verdict. See, e.g., Ortiz v. Artuz, 113 F.Supp.2d 327, 343-44 (E.D.N.Y. 2000) (finding no violation where the statement in question did not provide the sole proof at trial of an essential element of the crime of which petitioner was found guilty).

d. Petitioner's Appellate Counsel Was Not Ineffective For Failing To Raise a Claim Relating to the Use of the Dual Juries.

As Petitioner lacks meritorious claims regarding the use of dual juries at his trial (including, as described above, any claims involving the prosecutor's opening statement and the admission of Bruno's post-arrest statement), he also cannot show, under Strickland, that his appellate counsel provided him with ineffective assistance on direct appeal by not raising these claims. See generally Jones v. Barnes, 463 U.S. 745 (1983) (counsel may winnow out weaker arguments on appeal and focus on central issues without being found ineffective); see also Aramas v. Donnelly, No. 99cv11306 (JSR)(AJP), 2002 WL 31307929, at *15-16 (S.D.N.Y. Oct. 15, 2002) (denying ineffective assistance of counsel claim for failure to contest non- severance of joint trial and related Bruton violation where there was no likelihood that the motion would be granted), report and recommendation adopted (Mar. 11, 2004).

2. Erroneous Jury Instructions

In his habeas submissions, Petitioner also appears to challenge his appellate counsel's failure to raise, on direct appeal, two claims regarding the propriety of the trial court's jury instructions: first, a claim that the court's instruction on felony murder deprived him of his right to a unanimous verdict and improperly lowered the prosecution's burden of proof, and, second, a claim that the court's instructions improperly permitted the jury to find him guilty of intentional murder or, alternatively, felony murder. And, again, it appears that Petitioner is also attempting to raise the underlying claims that he contends his appellate counsel should have raised on appeal. (See Pet. Mem., at 9-12.) None of these claims have merit, as, for the reasons discussed below, the jury charge was not defective, in either way that Petitioner cites.

a. The Felony Murder Jury Charge Neither Deprived Petitioner of a Unanimous Verdict, Nor Lowered the Prosecution's Burden of Proof.

Petitioner contends that he was denied his constitutional right to a unanimous verdict because the trial court instructed the jury that the count of felony murder could be supported by an underlying felony of burglary and/or robbery. (Pet. Mem., at 9.) This instruction, according to Petitioner, resulted in a non-unanimous verdict, because, as purportedly evidenced by postverdict conversations with jurors (conversations which are absent from the Record), some jurors found the predicate felony to be robbery, while others found the predicate felony to be burglary. (Id., at 11.) Additionally, Petitioner argues that, by only requiring the jury to find simple burglary and/or robbery (or attempted robbery), rather than first-degree burglary and/or robbery (or attempted robbery), as the predicate felony, the trial court improperly lowered the prosecution's burden of proof. (Id.) In support, Petitioner alleges that certain jurors indicated that they had, in fact, found only simple burglary as a predicate for the felony-murder conviction, which, according to Petitioner, undermines his felony-murder conviction for the death of Elvis, in light of the fact that Elvis, who did not live at the apartment, could not have denied Petitioner lawful entry. (Id.) None of these arguments are persuasive.

First, as a threshold matter with respect to any claim by Petitioner that he was denied a federal constitutional right to a unanimous verdict, the Supreme Court has “never held jury unanimity to be a requisite of due process of law.” Johnson v. Louisiana, 406 U.S. 356, 359 (1972); see also Schad v. Arizona, 501 U.S. 624, 630 (1991) (declining to hold that the Sixth, Eighth, and 14th Amendments require a unanimous jury even in state capital cases). It is nonetheless true that, to comport with the Sixth Amendment “fair notice” requirement, a criminal indictment must (1) contain all of the elements of the offense so as to inform the defendant fairly of the charges against him, and (2) enable the defendant to plead double jeopardy in defense of future prosecutions for the same offense, see United States v. Santeramo, 45 F.3d 622, 624 (2d Cir. 1995) (citing Hamling v. United States, 418 U.S. 87, 117 (1974)), but Petitioner does not allege that the Indictment in his case failed to specify his involvement in each of the charged crimes or to include all of the essential elements of the offenses.³⁶

36 While the state may define different courses of conduct or states of mind as alternative means of committing an offense, its ability to do so is not limitless. For example, as “no person may be punished criminally save upon proof of some specific illegal conduct, ” Schad, 501 U.S. at 632-33, the state may not forbid conduct so vague that people of common intelligence would be relegated to guessing its meaning. No such issue, however, has been raised here.

Second, while New York law does provide a criminal defendant with a right to a unanimous verdict, see N.Y. Const., art. I, § 2, New York law also provides that, “in felony murder[, ] the underlying felony is not so much an element of the crime but instead functions as a replacement for the mens rea or intent necessary for common-law murder, ” People v. Berzups, 49 N.Y.2d 417, 427 (1980). Therefore, the jury in Petitioner's case did not need to be unanimous in deciding whether burglary or robbery (each of which was enumerated in the felony murder statute as a permissible underlying felony, see N.Y. Penal Law § 125.25(3)) provided the predicate for Petitioner's felony murder conviction; rather, as long as each juror was persuaded that one of the enumerated felonies had been established, the prosecution “had proved what, under state law, it had to prove, ” Schad, 501 U.S. at 630; see also Dawson v. Donnelly, 111 F.Supp.2d 239, 251-52 (W.D.N.Y. 2000) (holding that, where indictment specified two of the felony murder statute's enumerated felonies - kidnapping and robbery - as the basis for the felony murder charge, it was not necessary for the jury to be unanimous in finding which felony was in progress at the time of the killings, so as to establish felony murder). Petitioner has not shown that the jury was not unanimous as to whether he had committed at least one of the underlying felonies listed in the statute, and as to whether he had committed felony murder with respect to Elvis. In any event, as pointed out by Respondent (see Resp. Mem., at 10), the jury convicted Petitioner of both burglary and attempted robbery, either of which, independently, would have sufficed to serve as the predicate felony for purposes of the felony murder statute.

Third, there is simply no merit to Petitioner's argument that the prosecution's burden of proof was lowered because the jury may have found Petitioner guilty of simple burglary and/or robbery, rather than first-degree burglary and/or robbery, as independently charged in the Indictment. A finding of even simple burglary or robbery would have been sufficient to establish the underlying felony under New York law, see N.Y. Penal Law § 125.25(3), and the law does not require all lesser degrees of the underlying felonies to be separately charged; see Hall v. Phillips, No. 04-CV-1514 (NGG) (VVP), 2007 WL 2156656, at *7 (E.D.N.Y., Jul. 25, 2007) (noting that New York state courts have eschewed any requirement that the prosecution, when indicting felony murder, must specify the degree of the predicate offense, and collecting cases); cf. People v. Adinolfi, 672 N.Y.S.2d 432, 433 (2d Dep't 1998) (in a case where defendant was convicted of felony murder based on underlying felony of burglary in the third degree, rejecting defendant's claim that felony murder statute was unconstitutionally vague and overbroad because it did not specify the degrees of burglary that could serve as the predicate felony).

b. The Trial Court Was Permitted To Charge the Jury on Both Intentional Murder and Felony Murder.

Petitioner further argues in his supplemental memorandum that, before delivering its jury instructions, the trial court should have required the prosecution to choose to proceed with only one of the two murder theories charged in the Indictment - either intentional murder or felony murder - and that it was error for the court to have instructed the jury, in the alternative, as to both. (Pet. Mem., at 24-26.) This claim is also without any merit.

In support of this claim, Petitioner points out that, in certain circumstances, New York law prohibits the prosecution from pursuing charges of both intentional and reckless homicide arising from the same events. (Pet. Mem., at 25.) The cases cited by Petitioner, however, do not relate to felony murder; rather, they relate, very specifically, to depraved-indifference murder.³⁷Unlike charges of intentional murder and felony murder, which, as Respondent points out, can both be supported by the same evidence (see Resp. Mem., at 11-12), charges of intentional murder and depraved-indifference murder have been held to be mutually exclusive, see People v. Suarez, 6 N.Y.3d 202, 208 (2005) (noting that there cannot be depraved indifference where there is a manifest intent to kill). In this regard, both intentional murder and depraved-indifference murder require a mens rea finding for the killing, People v. Feingold, 7 N.Y.3d 288, 296 (2006) (holding that depraved indifference is a culpable mental state), whereas felony murder does not. Rather, for felony murder, a jury's finding that the underlying felony occurred is sufficient. See N.Y. Penal Law § 125.25(3).³⁸ Thus, contrary to Petitioner's suggestion, the reasoning behind the New York jurisprudence on depraved-indifference murder does not extend to cases involving felony murder. In short, nothing in the case law regarding depraved indifference prohibits the State from indicting a defendant on alternative charges of intentional murder and felony murder, and nothing in that case law prohibits a trial court from instructing a jury as to such alternative charges.

37 A person commits depraved-indifference murder when “[u]nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.” N.Y. Penal Law § 125.25(2).

38 “[F]elony murder covers nonintentional killings. The very purpose of the felony murder doctrine is to utilize the underlying felony as a substitute for the defendant's murderous intent and thereby raise an unintentional killing to the level of murder.” People v. Cahill, 2 N.Y.3d 14, 67 (2003).

c. Petitioner's Appellate Counsel Was Not Ineffective For Failing To Raise Claims Challenging the Jury Instructions.

As there is no merit to Petitioner's claims that the trial court's jury charge was improper (either with respect to its instruction regarding felony murder, or with respect to its instruction that the jury could consider both the intentional murder and felony murder charges contained in the Indictment), there can necessarily be no merit to Petitioner's claim that his appellate counsel was constitutionally ineffective for failing to raise such claims on direct appeal. See Mayo, 13 F.3d at 534 (“To establish prejudice in the appellate context, a petitioner must demonstrate that there was a reasonable probability that [his] claim would have been successful.” (internal quotation marks omitted)).

3. Trial Interpreter's Inaccurate Translation of Spanish-Language Testimony

Although not raised on his direct appeal, in his coram nobis petition, or in his original habeas Petition or supplemental supporting memorandum, Plaintiff has now asserted, in his reply memorandum, new allegations that, at trial, certain jurors informed the trial court that the Spanish interpreter at trial was “not translating correctly what the witness was telling him.” (Pet. Reply, at 5-7.) According to Petitioner, the court responded to this by directing the jury to “follow the translation from the interpreter, ” stating: “For those of you who speak Spanish, I know that it may be tough. I have never been in that situation, but you must do that so everyone can have the same situation.” (Id.) Petitioner appears to claim that this direction by the trial court, which, according to Petitioner, did not “in any way correct, or strike from the record the in[c]orrect, or inaccurate testimony of the interpreter” (id., at 7), was improper, and that his appellate counsel was ineffective for failing to raise this claim on appeal.

Even if the Court were inclined to reach the merits of these claims, which - given that they were raised for the first time on reply, it need not do, see Silvestre v. Capra, 15cv9425 (KPF) (DCF), 2018 WL 3611988, at *31 n.27 (S.D.N.Y. Jul. 27, 2018) - the claims should be denied, as Petitioner has failed to demonstrate that the trial court's response to the jurors' concern regarding the interpretation of testimony deprived him of a fair trial. First, Petitioner has merely asserted that certain jury members expressed disagreement with some unspecified aspect of the interpreter's translation of a witness's testimony; he does not explain what the disagreement was and has made no showing that the translation was, in fact, inaccurate. Absent Petitioner's development of the record on this point, this Court cannot conclude that any testimony was actually mistranslated. See People v. Rolston, 486 N.Y.S.2d 768 (2d Dep't 1985) (“It was clearly error for the trial court to assume that the court interpreter's translations were sacrosanct .... Nevertheless, defendant made no record of any serious error in translation and provides us with no basis for reversal.”); People v. Frazier, 552 N.Y.S.2d 841 (1st Dep't 1990) (“There was no showing that any serious error in translation occurred which would warrant a reversal.” (citing Rolston)). Second, even if the translation was inaccurate, Petitioner has not shown that it was materially so, such that the mistranslation caused him actual and substantial prejudice, which would be required to demonstrate a constitutional, due-process violation. See, e.g., Chen v. Mukasey, 271 Fed.Appx. 104, 105 (2d Cir. 2008) (Summary Order) (declining to find due-process violation where mistranslation of testimony did not result in prejudice).

Thus, on the record presented, Petitioner cannot prevail on a claim that he was deprived of his due-process rights by a flawed translation of testimony. By logical extension, he also cannot prevail on a claim, under Strickland, that his appellate counsel deprived him of effective assistance by failing to raise such a claim on direct appeal.

CONCLUSION

For all of the foregoing reasons, I respectfully recommend that Petitioner's habeas Petition be dismissed in its entirety. Further, I recommend that the Court decline to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1)(A), because Petitioner has not “made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6 (allowing three (3) additional days for service by mail). Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Vernon S. Broderick, United States Courthouse, 40 Centre Street, Room 415, New York, New York 10007, and to the chambers of the undersigned, United States Courthouse, 500 Pearl Street, Room 1660, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Broderick. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frankv. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd, 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).

If Petitioner does not have access to cases cited herein that are reported only on Westlaw, then he may request copies from Respondent's counsel. See Local Civ. R. 7.2 (“Upon request, counsel shall provide the Pro se litigant with copies of cases and other authorities that are unpublished or reported exclusively on computerized databases that are cited in a decision of the Court and were not previously cited by any party”).