Opinion
18-CV-3158 (GHW) (BCM)
07-15-2024
NABIL FAWZI, Petitioner, v. MARLYN KOPP, Superintendent, Sing Sing Correctional Facility, Respondent.
REPORT AND RECOMMENDATION TO THE HON. GREGORY H. WOODS
BARBARA MOSES, UNITED STATES MAGISTRATE JUDGE
Petitioner Nabil Fawzi, proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Fawzi was convicted by a jury in New York Supreme Court, New York County, of murder in the second degree, in violation of N.Y. Penal Law (PL) § 125.25(1), and imprisoned for an indeterminate term of 20 years to life. See Petition (Pet.) (Dkt. 2) at 1.
In this action, referred to me for report and recommendation (Dkt. 7), petitioner asserts that he is entitled to the writ for six reasons: (1) the verdict was not supported by legally sufficient evidence; (2) the verdict was against the weight of the evidence; (3) the warrantless searches of his home were neither consensual nor justified by exigent circumstances; (4) he proved the defense of extreme emotional disturbance (EED) by a preponderance of the evidence; (5) the People's summation was prejudicial; and (6) his sentence is excessive. Pet. at 5-12. The Appellate Division, First Department, considered and rejected each of these arguments on direct appeal, People v. Fawzi, 155 A.D.3d 548, 65 N.Y.S.3d 191 (1st Dep't 2017), and the New York Court of Appeals denied further review. People v. Fawzi, 30 N.Y.3d 1104, 101 N.E.2d 389 (2018) (summary order). For the reasons that follow, I recommend that the Petition be denied.
I. BACKGROUND
A. Factual Background
1. The Stabbing
At approximately 4:40 a.m. on March 20, 2012, petitioner, who was then 20 years old, entered a grocery store and deli located at 1869 Lexington Avenue in Manhattan. Trial Transcript (Tr.) (Dkt. 19) at 26-27, 60. Fawzi approached the counter and asked Adeeb Al-Saaidi, the store owner, for a loose cigarette. Id. at 28. Al-Saaidi refused Fawzi's request, "because he asks me for that daily," id. at 29, but petitioner obtained 50 cents from another customer, which he used to purchase a loosie, and then lingered in the store. Id. at 29-30. When petitioner spat on the floor, id. at 30, Al-Saaidi and Kendall Green told him to leave. Id. at 31. Al-Saaidi described Green as a customer who sometimes helped in the store in exchange for free food. Id. at 27. A shoving match ensued between petitioner and Green, prompting Al-Saaidi to grab a baseball bat from behind the counter and chase petitioner out. Id. at 31-32. Petitioner loitered on the sidewalk near the store door. Id. at 32-33. After an exchange of words, Green left the store and punched petitioner in the mouth. Id. at 33-34. Al-Saaidi then broke up the altercation, reminding both men that their actions were being recorded by the store's surveillance cameras ("I pointed to the cameras") and threatening to call the police if they continued to fight. Id. at 34. Petitioner then walked north on Lexington Avenue, and Green returned to the store. Id. at 34-35.
Between 116th Street and 117th Street, petitioner went into a bodega next to a food cart operated by Rachid Tahzima, who knew Fawzi by sight. Tr. at 107. Tahzima, who also entered the bodega, observed that petitioner had a bloodied mouth, which he checked by looking at his reflection at a nearby ATM machine. Id. at 108-09. Tahzima told him to clean himself up and gave him a cigarette, id., whereupon petitioner continued north on Lexington Avenue. Id. at 112.
Petitioner walked to his apartment, located in a building at 2305 Second Avenue, where he acquired a six-inch knife from a drawer in the kitchen, a scarf, and a hat. Tr. at 274-76, 279-80. Approximately 16 minutes later, petitioner returned to Tahzima's food cart, wearing the scarf and hat, with the blood removed from his face. Id. at 113. The pair listened to music on Tahzima's phone for several minutes. Id. at 113-15. Petitioner then walked away from Tahzima and his cart. Id. at 116.
At approximately 5:17 a.m., moments after parting ways with Tahzima, petitioner returned to Al-Saaidi's deli. Tr. at 35-36. He paused momentarily, peered inside the store - where Green was making coffee, with his back to petitioner - and then drew the kitchen knife from his waistband and rushed in. Id. at 285-86. Petitioner stabbed Green "15 or 16 times" before Al-Saaidi threatened him with the baseball bat, causing petitioner to flee. Tr. at 37-38, 289, 291; see also PX 1 (store surveillance video). Al-Saaidi then called the New York Police Department (NYPD), and officers arrived within minutes, finding blood pooled on the floor and Green lying face-down, unresponsive. Tr. at 38-40, 71-72. Several minutes later, emergency medical technicians arrived, performed CPR, and then took Green to Harlem Hospital by ambulance. Id. at 74-75, 95. At 5:50 a.m., Green was pronounced dead. Id. at 95.
2. Petitioner's Arrest and Statements
After the stabbing, Al-Saaidi spoke with police officers and described the attack by petitioner, whom Al-Saaidi referred to as "the Arab guy." Transcript of September 10, 2013 Suppression Hearing (Supp. Tr.) (Dkts. 27, 27-1) at 9. Through one police officer's recollection of petitioner from an unrelated incident, as well as a conversation with Tahzima, the officers were able to deduce that "the Arab guy" was likely Nabil Fawzi. Id. at 11-14. Consequently, police officers created a photo array that included a photograph of petitioner from a previous arrest, brought Al-Saaidi to the 25th Precinct, and presented the array to him at 9:10 a.m. Id. at 14, 16. Al-Saaidi immediately identified petitioner as the person who stabbed Green. Id. at 19-20.
At trial, Al-Saaidi testified (through an Arabic translator) that he was from Yemen; that petitioner Fawzi was from Morocco; and that he had known Fawzi, as a customer, for "about a year or a year and a half" before the stabbing. Tr. 28, 56, 59.
Following Al-Saaidi's identification, Detective Kevin Walla, Detective Joseph Sanatore, and other NYPD officers went to petitioner's residence at 2305 Second Avenue. Supp. Tr. at 21; Tr. at 147-49. Detective Walla knocked on the apartment door, identifying himself as the police, and a woman - later identified as petitioner's mother - opened the door. Supp. Tr. at 23. Detective Walla "said that we would like to speak to Nabil," and the woman said that he was sleeping. Id. Walla asked "if it was OK if we could go speak to him, wake him up." Id. Petitioner's mother then led the officers into the apartment and brought them to the room where her son was asleep. Id. at 25-26. The exchange between Detective Walla and petitioner's mother was "a regular conversation." Id. at 24. "[N]o one was yelling or screaming, it was very calm." Id. No weapons were pointed at petitioner's mother. Id.
Detective Sanatore woke petitioner, Supp. Tr. at 25, and Detective Walla explained that he needed to accompany the NYPD to the precinct to investigate a complaint. Id. at 26. Fawzi put his shoes on, and the officers guided him out of the apartment by the forearm, handcuffed him in the hallway, and transported him to the 25th Precinct. Id.
At approximately 10:20 a.m., Detectives Walla and Sanatore read the Miranda warnings to petitioner, obtained his waiver, and then questioned him. Supp. Tr. at 31; Tr. at 152. Petitioner did not appear to have "any trouble understanding or speaking English." Id. at 154. In response to the detectives' questions, petitioner made an oral statement, which Detective Sanatore transcribed, petitioner read, and then petitioner and both detectives signed. Tr. at 157; see also PX 29 (written statement). In the statement, petitioner recalled that "about 4:00 in the morning," he "went to the store on Lexington Avenue between East 115th Street and East 116th Street" and attempted to get a cigarette, "but the clerk on the phone wasn't paying attention to me," so he left the store. Id. at 158. According to petitioner, "the black guy followed me out" because "[t]he black guy, Kendall, wanted to show his boy in the store he was tough." Id. Petitioner told Kendall to "get back," because "[w]e don't want to do anything stupid," but "Kendall then punched me one time in the left side of my face." Id. Petitioner recalled that he "walked up Lexington Avenue to another store and got a cigarette," after which he "walk[ed] home smoking [his] cigarette," "got in the house all nervous and just got the knife," "walked back to the store that Kendall was working at," and "just walked in and stabbed Kendall more than one time but I don't know how many times." Id. at 159. Thereafter, petitioner stated, "I walked home listening to my music. When I got by McDonalds at East 117th Street and Third Avenue, I threw the knife over a fence and went back home to listen to music." Id. Once at home, petitioner "told [his] mom what had happened." Id. Thereafter, NYPD officers recovered a knife from a lot behind 2144 Third Avenue. Id. at 192.
Later that same day, two assistant district attorneys (ADAs) came to the 25th Precinct, read the Miranda warnings to petitioner again, and, with his consent, questioned him further. Supp. Tr. at 47, 49. This session, which began at approximately 4:55 p.m., was video recorded. Id. at 49-51; see also PX 31 (video recorded interview).
3. Searches of Petitioner's Home
While petitioner was being questioned in the 25th Precinct, NYPD officers obtained a warrant to search petitioner's home, where they seized certain items of clothing that they believed could be evidence. Tr. at 186; Supp. Tr. at 72. At approximately 7:25 p.m., Detective Walla showed the seized items of clothing to petitioner - who was still in the interview room in the 25th Precinct - and "ask[ed] him if he's familiar with the clothes he was wearing the day when the murder occurred." Supp. Tr. at 72. Petitioner responded that he had been wearing different clothes at the time, that "the shirt he was wearing was behind the TV," and "the shoes he was wearing was underneath his bed." Id.
At approximately 8:10 p.m., Detective Gregory Redford - who had by then reviewed surveillance footage from 1869 Lexington Avenue and another nearby location - returned to petitioner's home to look for the clothing he wore when he stabbed Green. Tr. at 184-85. The NYPD once again requested consent to enter from Fawzi's mother, and she documented her consent by signing a "consent to search form." Id. at 186-87. Detectives recovered a sweater and a hat matching those that defendant had worn in surveillance footage, which they brought back to the 25th Precinct for vouchering. Id. at 185, 188-90.
B. Indictment and Suppression Hearing
On March 23, 2012, a grand jury charged petitioner with murder in the second degree. See Resp. App. (Dkt. 17) Ex. A (Indictment). Thereafter, petitioner moved to suppress his identification from the photo array, his transcribed and video-recorded statements, and the clothing recovered from his apartment. Supp. Tr. at 2-3. On September 10, 2013, the Hon. Rena K. Uviller, J.S.C., held a suppression hearing, at which Detectives Sanatore and Walla testified. At the conclusion of the hearing Justice Uviller issued an oral ruling denying the motion to suppress "with regards to all of the matters." Id. at 90.
Justice Uviller found that the photo array was "remarkably good," in that the other men in the array were of similar "age and facial complexion and so forth," Supp. Tr. at 84; that once the identification was made, the NYPD had "probable cause to arrest the defendant," id. at 89; that the officers were "understandably concerned that they find the perpetrator immediately" and that he "be given no opportunity to flee," id.; that under the circumstances "it was understandable that a warrant was not [obtained] immediately," id.; and that after the officers knocked on the apartment door, "the mother consented to their entry" and "consented to their going into . . . her son's bedroom." Id. at 90. Justice Uviller further found that petitioner was given the required Miranda warnings before his initial interview at the 25th Precinct, acknowledged that he understood them, and "agreed to speak," adding that the circumstances of the interview were "certainly reasonable" and that petitioner was not "threatened" or "mistreated in any way." Id. Similarly, his video recorded statement, made after his rights were again "explained to him carefully," was "entirely voluntary." Id.
C. Trial
Beginning on October 28, 2013, the case was tried to a jury before the Hon. Bonnie Wittner, J.S.C. Tr. at 1. The only contested issue at trial was whether, in killing Green, Fawzi was acting under the influence of an extreme emotion disturbance.
Under New York law, it is an affirmative defense to the crime of murder in the second degree that "[t]he defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be." PL § 125.25(1)(a). The defense, if successful, does not result in an acquittal. Rather, "[t]he fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree[.]" PL § 125.20(2). Murder in the second degree is a class A-1 felony, see PL § 125.25, while manslaughter in the first degree is a class B felony. PL § 125.20. The defendant has the burden of establishing the EED defense by a preponderance of the evidence. People v. Roche, 98 N.Y.2d 70, 75, 772 N.E.2d 1133, 1137 (2002); People v. Moronta, 96 A.D.3d 418, 419, 945 N.Y.S.2d 303, 305 (1st Dep't 2012).
Both parties addressed this issue in their opening statements. ADA Megan Joy told the jury that there would be "no credible evidence that the defendant snapped," or "couldn't control what he was doing," or otherwise "acted under extreme emotional disturbance." Tr. at 16-17. Rather, according to the ADA, the evidence would show that Fawzi "acted deliberately with planning and premeditation," and was therefore guilty as charged. Id. at 17. Petitioner's trial counsel, Alexi Schact, told the jury that his client suffered from "seriously untreated mental illness," id. at 18, which, together with "the trigger of Mr. Green assaulting him, put him in a state of extreme emotional disturbance that influenced his commission of the crime." Id. at 19.
1. The People's Case
During the case in chief, the People called Mr. Al-Saaidi, who described the events inside his store and authenticated the surveillance video footage, which showed the stabbing; Mr. Tahzima, who testified about his interactions with petitioner after the fistfight with Green and before the stabbing; City Medical Officer Dr. Jennifer Hammers, who testified that Green died from multiple stab wounds to the torso, which pierced his superior venae cavae, liver and aorta; criminalist Christina Aligazakis, who testified that DNA samples obtained from the sweater recovered from petitioner's apartment and the knife recovered from 2144 Third Avenue matched the DNA profile for Kendall Green; and several NYPD officers, including Detectives Walla, Sanatore, and Redford.
2. The Defense
The defense called one witness, psychiatrist Dr. Eric Goldsmith, who testified that he conducted a forensic interview of petitioner in September 2012 for approximately three hours, reviewed his videotaped interrogation and written statement, among other documents, and spoke with his mother. Tr. at 221-22. At that point, Dr. Goldsmith concluded that petitioner "had some long-standing emotional problems, that he suffered what appeared to be significant anxiety, perhaps post traumatic stress disorder stemming from some childhood abuse," and "had developed a problem with alcohol abuse as well as cocaine abuse." Id. at 222.
Closer to trial, Dr. Goldsmith reviewed petitioner's medical records from Metropolitan Hospital (where he was treated prior to the stabbing), Bellevue Hospital (where he was taken for observation for ten days in April 2012, after his arrest), and Rikers Island, and interviewed petitioner again, for two more hours. Tr. 225-231. Dr. Goldsmith concluded from this additional investigation that petitioner "had been hearing voices for some period of time prior to the killing," and at the time of the killing "was frightened, thinking he was going crazy, thinking he might be possessed by the devil or some demons might be involved in his life." Id. at 236. At trial, Dr. Goldsmith testified that petitioner was "more than just anxious" on March 20, 2012, id. at 240; he was "schizophrenic," id. at 241, and - particularly after Green punched him - was in "a highly agitated, paranoid state of mind, such that he lost control over his behavior." Id. at 245. Thus, in Dr. Goldsmith's view, Fawzi committed the killing in a state of "extreme emotional disturbance." Id.
Dr. Goldsmith also testified that the approximately 20 minutes that elapsed between Green punching petitioner and petitioner stabbing Green did not dispel petitioner's state of extreme emotional disturbance. Tr. at 246 ("[A]fter he is punched in the face, that high level of paranoia, that agitated state of mind does not go away. He does not cool off and he ends up getting the knife, bringing it back to the site of the store and stabbing Kendall Green still in that very agitated paranoia [sic] state of mind."). As evidence of petitioner's "loss of control," Dr. Goldsmith cited the fact that he stabbed Green numerous times, explaining, "The extensive stabbing[,] sometimes referred to as overkill[,] is reflective of a loss of control over a behavior and emotions. Repeatedly stabbing is impulsive, not premeditated in any way." Id.
On cross-examination, Dr. Goldsmith conceded that petitioner's pre-arrest Metropolitan Hospital records did not reflect any psychiatric symptoms. Tr. at 305-10. Similarly, when petitioner's mental health was initially assessed at Rikers Island, post-arrest, "all criteria were normal or within normal ranges." Id. at 323-24. It was not until April 11, 2012 (approximately three weeks after petitioner's arrest) that he displayed psychotic behavior at Rikers Island, which caused correctional officials to send him to Bellevue for 10 days, where he was diagnosed with paranoid schizophrenia and stabilized on anti-psychotic medication. Id. at 329-37. Dr. Goldsmith further conceded that, although petitioner was frequently noncompliant with his medication once back at Rikers Island, his mental condition did not appear to deteriorate, and he showed no further symptoms of paranoid schizophrenia. Id. at 339-44. Dr. Goldsmith agreed that these facts "could be an indication he was malingering," that is, "faking symptoms for the purpose of some secondary gain," such as "to support a mental illness defense." Id. at 344-45. On redirect, however, Dr. Goldsmith opined that petitioner was not malingering; rather, he "put great efforts in keeping his symptoms under control," with variable success. Tr. at 371-72.
At the close of all of the evidence, defendant's counsel made an oral motion "to have a directed verdict of not guilty." Tr. at 386. Counsel did not identify any specific errors or evidentiary deficiencies, nor otherwise explain why his motion should be granted. Justice Wittner denied the motion, stating that "there is enough evidence for the jury to consider the charges." Id.
3. Summations, Charge, and Verdict
During summations, on November 4, 2013 ADA Larry Glasser replayed the tape of petitioner's video-recorded statement on the day of his arrest, highlighting for the jury that petitioner referred to Green - on tape - as "some black guy," even though he knew his victim's name. Tr. at 414. This, the ADA argued, "tells you all you need to know about how much defendant valued Kendall Green's life on March 20 of 2012." Id. Additionally, the prosecutor argued that Dr. Goldsmith (who testified that he was paid $250 per hour for his work and spent about 50 hours on this case) "did not give you an honest medical opinion in this case. He gave you an opinion the defendant bought and paid for $250 an hour, 12 thousand 5 hundred[] dollars for his work on this case." Id at 423. at Dr. Goldsmith, according to the prosecutor, had an "agenda," id. at 428, as evidenced by his failure to interview anyone other than petitioner and his mother, and by what the ADA characterized as contradictions between Dr. Goldsmith's conclusions and the underlying medical records. Id. at 424-28. The ADA then walked the jury through the elements of the EED affirmative defense, arguing that if petitioner were genuinely acting in a state of extreme emotional disturbance, he would have behaved very differently. Id. at 442-48.
For example, the ADA argued, "[s]omebody who is agitated and paranoid but they are undiagnosed" would "be a mess," which would be "noticeable to everyone around him," whereas petitioner "was able to interact with everyone else in a perfectly normal manner," such as "the cashier in the store [and] Rachid Tahzima." Tr. at 447. As another example, according to the ADA, a man who had "truly lost self control" would not "have been able to stop" his assault on Green, but petitioner did stop - when he saw Al-Saaidi approach with the baseball bat - and "ran away, holding the knife." Tr. at 446.
At the close of the summations, defense counsel moved for a mistrial on the ground that the People misrepresented petitioner's mental health records. Tr. at 452. According to the defense, it was misleading for the ADA to read from petitioner's August 29, 2013 records - which stated that he was being discharged from the mental health service at Rikers Island - without mentioning a more recent record calling for mental health follow-up and repeating the diagnosis of paranoid schizophrenia. Id. Justice Wittner denied the motion, because both sides "had a full and fair opportunity to point out whatever you liked." Id. The court then cautioned the jury:
The summations are the summary of evidence and certain things each side thinks are important. To the extent either side referred to the medical records and claimed
certain facts, if there is any question about it, such as the history of illness, when diagnosis was made, neither side claims to have said everything. I suggest if you have any questions, you should ask for the medical records which are in evidence in their entirety.Id. at 453.
After the summations, Justice Wittner instructed the jury on the elements of the second-degree murder charge and the EED affirmative defense. Tr. at 462-69. During deliberations, at the jury's request, those instructions were read again. Id. at 473-78. At 2:50 p.m. on November 4, 2013, the jurors informed Justice Wittner that they had reached a verdict. Tr. at 478. Petitioner was found guilty of second-degree murder. Id. at 479.
4. Sentence
At petitioner's sentencing on December 2, 2013, the People called the crime "nothing short of cold-blooded murder," and asked for the maximum sentence: "a term of 25 years to life." Sentencing Tr. (Dkt. 27-8) at 15. Defense counsel argued that even though the jury rejected the EED defense, Fawzi "obviously[] suffers from many mental health issues," which - along with his "age and life experience" - would make the maximum sentence inappropriate. Id. at 17-19.
Justice Wittner noted that the crime was "heinous and really unprovoked," but that petitioner was "very young," and "he does have - at least as of today, he does have a definite mental illness." Sentencing Tr. at 20. For these reasons, Justice Wittner imposed a sentence of 20 years to life. Id. at 21.
D. Petitioner's Direct Appeal
On direct appeal to the Appellate Division, First Department, petitioner raised five grounds for relief. See Resp. App. (Dkt. 17) Ex. D (Pet. Appeal Br.), at 22-23. First, he argued, "[t]he bloody clothing recovered from Fawzi's apartment, as well as statements he made after his arrest should have been suppressed as the result of his unlawful arrest in his home and the subsequent unlawful re-entry into the apartment." Id. at 22. Second, he asserted that the evidence presented as trial "was insufficient to establish . . . guilt beyond a reasonable doubt, and if it was, the verdict was against the weight of the evidence." Id. Third, he argued that "when Fawzi killed Kendall Green, he was acting under an extreme emotional disturbance." Id. at 23. Fourth, petitioner asserted that "the prosecutor's comments during summation deprived [him] of a fair trial and due process of law." Id. Fifth and finally, he argued that "[t]he sentence of twenty years to life was excessive," and called upon the Appellate Division to exercise its discretion to reduce the sentence. Id.
On November 28, 2017, the Appellate Division unanimously affirmed petitioner's conviction. First, it held that the initial police entry into the apartment "was justified by both consent and exigent circumstances" because, "[b]ased upon information supplied by witnesses, the police had reason to fear that defendant was armed and would soon flee," and the consent obtained from petitioner's mother was voluntary and "not the product of a ruse." Fawzi, 155 A.D.3d at 54849. As to the subsequent warrantless search of the apartment, which produced the clothing worn during the killing, the court held that petitioner failed to preserve the point for appeal and declined to review it in the interest of justice. Id. at 549. As an alternative, the court held that "the record on this issue provides no basis for suppression." Id.
Second, the Appellate Division held that petitioner's "legal insufficiency claim is also unpreserved," declined to review it in the interest of justice, and - in the alternative - rejected it on the merits. Fawzi, 155 A.D.3d at 549, 65 N.Y.S.3d at 192. The court then found that the verdict was not against the weight of the evidence, explaining that the jury "properly rejected defendant's theory that his intoxication negated the element of intent," since petitioner "exhibited purposeful behavior in walking home to obtain a knife after an altercation with the victim, approaching the victim from behind, and repeatedly stabbing him." Id.
Third, the court held that petitioner failed to establish the EED defense by a preponderance of the evidence. Fawzi, 155 A.D.3d at 549, 65 N.Y.S.3d at 192. The court pointed out that, during the approximately 20 minutes between the punch and the stabbing, petitioner had a "casual conversation with the food vendor," id., after which he committed the homicide in a "purposeful manner," and made efforts to conceal the crime. Id. The court added that the evidence "failed to support defendant's assertion that a reasonable person in defendant's position would have lost control and been extremely disturbed 20 minutes after the altercation." Id.
Next, the Appellate Division rejected petitioner's claims concerning the People's summation as "unpreserved," finding in the alternative that there was "no basis for reversal" and that "any error was harmless in light of the overwhelming evidence of defendant's guilt." Fawzi, 155 A.D.3d at 549-50, 65 N.Y.S.3d at 193. Fifth and finally, the court "perceive[d] no basis for reducing the sentence." Id. at 550, 65 N.Y.S.3d at 193.
On December 14, 2017, petitioner sought leave to appeal to the New York Court of Appeals, enclosing his Appellate Department briefs and highlighting three points: that" the entry into his home was neither consensual nor justified by exigent circumstances," that Fawzi's "defense of extreme emotional disturbance was proven by a preponderance of the evidence," and that "the prosecutor's summation was so prejudicial as deprive the Appellant of a fair trial." Resp. App. Ex. G (Dkt. 17-4, at ECF pp. 136-37). On January 31, 2018, the Court of Appeals denied leave. Fawzi, 30 N.Y.3d 1104, 101 N.E.2d 389.
E. The Habeas Petition
On April 10, 2018, petitioner filed his habeas petition in this Court, pro se, asserting the same claims (slightly renumbered) that he raised in the Appellate Division: (1) that the verdict was not supported by legally sufficient evidence; (2) that it was against the weight of the evidence; (3) that the warrantless searches of his home were neither consensual nor justified by exigent circumstances; (4) that he proved the EED affirmative defense by a preponderance of the evidence; (5) that the People's summation was prejudicial; and (6) that his sentence is excessive. Pet. at ECF pp. 5-12. Petitioner did not elaborate on any of his claims, and did not file any supporting materials. On May 2, 2018, he was granted leave to proceed in forma pauperis (Dkt. 3), and on May 4, 2018, the Honorable Gregory H. Woods, United States District Judge, referred the case to me for report and recommendation. (Dkt. 7.)
On August 29, 2018, respondent answered and filed the state court record (Dkt. 17), along with a memorandum of law (Resp. Mem.) (Dkt. 18) urging this Court to deny the Petition. At the outset, respondent notes that many of petitioner's arguments to the Appellate Division "turned solely on state law," and argues that by "simply repeating those state-court claims, petitioner has failed to state a cognizable claim for habeas corpus relief." Resp. Mem. at 5. Turning to petitioner's individual claims, respondent argues that petitioner's challenges to the sufficiency and weight of the evidence are "unreviewable," either because they are procedurally barred or not cognizable under federal law, Id. at 6-14; that his Fourth Amendment claims are not cognizable on habeas review, Id. at 14-17; that his claim concerning the People's summation is procedurally barred and, in any event, meritless, Id. at 17-23; and that his excessive sentence claim presents no issue of federal law cognizable on habeas review. Id. at 23-24.
Petitioner did not reply to respondent's memorandum. On February 26, 2019, he filed an application seeking the appointment of counsel pursuant to 18 U.S.C. § 3006(A)(g) (Dkt. 20), which I denied on March 4, 2019. (Dkt. 21.)
II. DISCUSSION
A. Timeliness
Under 28 U.S.C. § 2244, as amended by the Antiterrorism and Effective Death Penalty Act (AEDPA), a petitioner must file his habeas corpus petition within one year of the date his conviction becomes "final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). Here, the New York Court of Appeals denied petitioner's leave application on January 31, 2018. His conviction became final 90 days later, on May 1, 2018, when his time to file a certiorari petition to the U.S. Supreme Court expired. See Williams v. Artuz, 237 F.3d 147, 150-51 (2d Cir. 2001). Petitioner timely filed his Petition in this Court on April 10, 2018, before that period elapsed.
B. Exhaustion and Procedural Default
Exhaustion of state court remedies is a condition precedent to federal habeas relief. 28 U.S.C. § 2254(b)(1)(A). A petitioner satisfies the exhaustion requirement by fairly presenting each of his claims to the highest state court available to him before presenting them to the federal court. Baldwin v. Reese, 541 U.S. 27, 29 (2004). To fairly present a claim, a petitioner must identify both the facts that entitle him to relief, Picard v. Connor, 404 U.S. 270, 276-77 (1971), and the federal constitutional basis for the claim, Duncan v. Henry, 513 U.S. 364, 365-66 (1995), thereby giving the state courts "a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). There are a number of ways to accomplish this task, see Rustici v. Phillips, 308 Fed.Appx. 467, 469 (2d Cir. 2009), and the petitioner need not cite "book and verse on the federal constitution." Picard, 404 U.S. at 278. However, the claim must be presented with enough specificity to permit the state court to address it. See, e.g., Gray v. Netherland, 518 U.S. 152, 153 (1996) (it is not "enough to make a general appeal to a constitutional guarantee as broad as due process to present the 'substance' of such a claim to a state court").
Even if a petitioner has fairly presented all of his claims in state court, federal habeas review is barred if the state court's decision "rests on a state law that is independent of the federal question and adequate to support the judgment," such as where the state court "decline[s] to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement." Coleman v. Thompson, 501 U.S. 722, 729-730 (1991) (citing Wainwright v. Sykes, 433 U.S. 72, 87 (1977)). For a state law procedural ground to be "independent," the state court must have actually relied on that ground as a sufficient basis for its ruling. Harris v. Reed, 489 U.S. 255, 26162 (1989) (independent and adequate state grounds exist if "the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar") (citations and internal quotation marks omitted). However, as long as the state court is "explicit in its reliance on a procedural default," federal habeas review is barred even if the state court chooses, in the alternative, to address the merits of the constitutional claim. Id. at 264 n.10 (federal courts must "honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law"). For a state law procedural ground to be "adequate," the procedure must be "firmly established and regularly followed by the state in question." Monroe v. Kuhlman, 433 F.3d 236, 241 (2d Cir. 2006) (quoting Cotto v. Herbert, 331 F.3d 217, 239 (2d Cir. 2003)). "Before accepting a procedural bar defense, a federal court must examine the adequacy of the alleged procedural default." Cotto, 331 F.3d at 239.
"In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. at 750. To establish "cause" for a procedural default, the petitioner must show that "some objective factor, external to Petitioner's defense, interfered with his ability to comply with the state's procedural rule." Gutierrez v. Smith, 702 F.3d 103, 111 (2d Cir. 2012). To establish "prejudice," the petitioner must show that the default "resulted in 'substantial disadvantage, infecting [the] entire trial with error of constitutional dimensions.'" Id. at 112 (quoting Murray v. Carrier, 477 U.S. 478, 494 (1986)). To establish a "fundamental miscarriage ofjustice" (which, in the Supreme Court's "collateral-review jurisprudence . . . means that the defendant is actually innocent," United States v. Olano, 507 U.S. 725, 736 (1993)), the petitioner "must establish that, in light of new evidence, 'it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'" House v. Bell, 547 U.S. 518, 536-37 (2006) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).
C. Merits
Federal claims that have been decided on the merits in the last reasoned state court ruling are reviewable in federal district court under AEDPA's deferential standard of review. That standard permits a district court to grant habeas relief only when the state court's opinion:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented by the State court proceedings.28 U.S.C. § 2254(d).
"Clearly established" federal law means "the holdings, as opposed to the dicta," of the decisions of the United States Supreme Court "as of the time of the relevant state-court decision," and does not include opinions of lower federal appellate courts. Green v. Travis, 414 F.3d 288, 296 (2d Cir. 2005) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)). A decision is "contrary to" clearly established federal law if the state court "arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 41213. A decision involves an "unreasonable application" of clearly established federal law if the state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. at 413.
This standard is intentionally difficult to meet. It preserves for federal courts "authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme Court's] precedents," but "goes no further." Harrington v. Richter, 562 U.S. 86, 102 (2011). A federal court cannot grant habeas relief "simply because [the] court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001) (quoting Williams, 529 U.S. at 411). Similarly, an adjudication of a claim is not based on an unreasonable determination of facts "merely because the federal habeas court would have reached a different conclusion in the first instance." Wood v. Allen, 558 U.S. 290, 301 (2010) (citation omitted).
D. Petitioner's Claims
Three of petitioner's claims - the first, third, and fifth - raise federal issues potentially cognizable on habeas review, and were fairly presented, in constitutional terms, to the Appellate Division. See Pet. Appeal Br. at 39-43 (arguing that the People failed to prove beyond a reasonable doubt that Fawzi intended to cause the death of Green, and thus that his conviction violated the Due Process Clause); Id. at 24-39 (arguing that the warrantless entries into petitioner's home violated the Fourth Amendment and consequently that his post-arrest statements, as well as the clothing found in the home, should have been suppressed); Id. at 50-65 (arguing that the cumulative effect of the prosecutor's prejudicial conduct during the People's summation deprived petitioner of his "due process right to a fundamentally fair trial"). As to these claims, "[b]y asserting the same . . . grounds for relief on direct appeal that [he] asserts here, petitioner has exhausted his state court remedies." Pierre v. Ercole, 594 F.Supp.2d 469, 470 (S.D.N.Y. 2009).
Respondent is correct, however, that all three of these claims are procedurally barred, at least in part, because the Appellate Division rejected them on independent and adequate state grounds as unpreserved. See Resp. Mem. at 10, 15, 17-18. Moreover, petitioner's second, fourth, and sixth claims (that the verdict was against the weight of the evidence; that the evidence supported his EED defense, and that his sentence is excessive) present only state-law issues, and consequently are not cognizable on federal habeas review. I address each claim in turn.
1. First Claim: Insufficiency of the Evidence
Petitioner asserts that the jury's guilty verdict was not supported by legally sufficient evidence. Pet. at 6. "[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). Consequently, "assuming that state remedies have been exhausted . . . and that no independent and adequate state ground stands as a bar," a claim that the evidence was insufficient to support the verdict "is cognizable in a federal habeas corpus proceeding." Jackson v. Virginia, 443 U.S. 307, 321 (1979) (internal citations omitted). In such a case, the "critical inquiry" is "whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." Id. at 318.
In this case, an independent and adequate state ground stands as a bar to federal habeas review of petitioner's insufficiency claim. The Appellate Division held that petitioner's challenge to the sufficiency of the evidence was "unpreserved," and declined to review the unpreserved claim in the interest of justice. Fawzi, 155 A.D.3d at 549. The state court's holding was squarely based on the well-settled New York rule that a "generalized" motion to dismiss, such as the motion made by petitioner's trial counsel at the close of the evidence, is "inadequate to preserve a claim of insufficient evidence." Black v. Johnson, 2024 WL 1537699, at *11 (S.D.N.Y. Mar. 14, 2024), report and recommendation adopted, 2024 WL 1533514 (S.D.N.Y. Apr. 9, 2024); see also Calderon v. Perez, 2011 WL 293709, at *24 (S.D.N.Y. Jan. 28, 2011) ("New York case law makes clear that such a boilerplate motion, without explanation, is not sufficient to preserve a challenge to the sufficiency of the evidence."), report and recommendation adopted, 2011 WL 1405029 (S.D.N.Y. Apr. 5, 2011); People v. Carncross, 14 N.Y.3d 319, 324, 927 N.E.2d 532, 534 (2010) (insufficiency claim was unpreserved where trial counsel's motion to dismiss argued "only that the evidence was insufficient to prove a 'causal connection' between the defendant's conduct and the trooper's death to dismiss," but did not specifically argue, "as he does now, that the evidence failed to establish he acted with the requisite mens rea"); People v. Hawkins, 11 N.Y.3d 484, 493, 900 N.E.2d 946, 951 (2008) (trial counsel's motion for dismissal on the grounds that the People "failed to prove that [defendant] acted with Depraved Indifference Murder" was not specific enough to preserve the insufficiency issue for review). Thus, by declining to rule on an unpreserved challenge to the sufficiency of the evidence, the Appellate Division rested its decision on an independent and adequate state ground.
The fact that the Appellate Division went on to reject the sufficiency claim on the merits, "as an alternative holding," Fawzi, 155 A.D.3d at 549, 65 N.Y.S.3d at 192, does not alter this result. See Harris, 489 U.S. at 264 n.10; Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 811 n.4 (2d Cir. 2000) ("[W]here a state court says that a claim is 'not preserved for appellate review' and then ruled 'in any event' on the merits, such a claim is not preserved."); Gutierrez v. Johnson, 2023 WL 6385382, at *6 (E.D.N.Y. Sept. 29, 2023).
Moreover, Fawzi has failed to demonstrate that he is entitled to an exception to the procedural default bar, because he has not shown either (i) cause for his state court default and resulting prejudice, or (ii) that a fundamental miscarriage of justice would occur if the merits of the federal claim were not considered. Coleman v. Thompson, 501 U.S. at 750; see also Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (a prisoner seeking habeas relief must "demonstrate cause for his state-court default of any federal claim, and prejudice therefrom, before the federal habeas court will consider the merits of that claim," unless he can "demonstrate a sufficient probability that our failure to review his federal claim will result in a fundamental miscarriage of justice"). Petitioner's insufficiency claim is therefore "barred from review here by the independent and adequate state law doctrine." Tavarez v. Graham, 2023 WL 3628412, at *4 (E.D.N.Y. May 24, 2023); see also Santiago v. Uhler, 2022 WL 18096765, at *18 (S.D.N.Y. Dec. 7, 2022) ("[T]he Appellate Division's determination that Petitioner's legal sufficiency claim was unpreserved presents an independent and adequate state procedural ground upon which to deny habeas relief."), report and recommendation adopted, 2023 WL 22625 (S.D.N.Y. Jan. 2, 2023); accord Black, 2024 WL 1537699, at *11; Calderon, 2011 WL 293709, at *24.
Even if this Court were to review the Appellate Division's alternative holding on the merits, petitioner's insufficiency claim would fail. When a state court has passed on an insufficiency claim, the federal habeas court reviews that decision through a "doubly deferential" lens. Garbutt v. Conway, 668 F.3d 79, 81-82 (2d Cir. 2012). As the Supreme Court explained:
We have made clear that Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference. First, on direct appeal, . . . [a] reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury. And second, on habeas review, "a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court," but only if the federal court finds the state court decision "objectively unreasonable."Coleman v. Johnson, 566 U.S. 650, 651 (2012) (quoting Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam)). Here, the Appellate Division's ruling cannot be characterized as "objectively unreasonable." To the contrary: as the state court pointed out, the evidence as to petitioner's inebriation was equivocal at best, and he "exhibited purposeful behavior in walking home to obtain a knife after an altercation with the victim, approaching the victim from behind, and repeatedly stabbing him," Fawzi, 155 A.D.3d at 549, 65 N.Y.S. 3d at 192, before fleeing and disposing of the murder weapon. Moreover, the events in the store, including the killing itself, were captured on videotape, allowing the jurors to assess Fawzi's demeanor. Viewing the evidence in the light most favorable to the prosecution, as required, I conclude that the Appellate Division quite reasonably rejected petitioner's contention that no rational trier of fact could have found him guilty of second-degree murder. Petitioner's first claim should therefore be denied.
In the Appellate Division, petitioner argued that there was insufficient evidence to establish that Fawzi's "conscious objective" was to kill Green, because (among other things) "he was intoxicated at the time he stabbed Green," and told the police that he had consumed eight beers that evening. Pet. Appeal Br. at 40. Mr. Al-Saaidi, the store proprietor, agreed that petitioner "seemed drunk" when he first entered the store at approximately 4:40 a.m. Tr. at 60. But Mr. Tahzima, the food cart vendor, "didn't see him drunk," Id. at 121, even though he encountered petitioner twice between the fistfight and the stabbing, and the two men spent "four to five minutes" listening to music together on Tahzima's phone. Id. at 114-15. Similarly, Detective Walla saw no indication, at 10:30 that morning, that petitioner was either drunk or hung over. Id. at 153. The petitioner himself stated, on videotape, that he was not drunk when he killed Green, "just a little tipsy, perhaps." Id. at 374.
2. Second Claim: Weight of the Evidence
Petitioner argues that, even if the evidence was constitutionally sufficient to convict him, the jury's verdict was against the "weight of the evidence." Pet. at 8. This claim should be denied because "the argument that a verdict is against the weight of the evidence states a claim under state law, which is not cognizable on habeas corpus." McKinnon v. Superintendent, 422 Fed. App'x 69, 75 (2d Cir. 2011); accord Fashaw v. Griffin, 2020 WL 6482924, at *12 (S.D.N.Y. Nov. 4, 2020); Cintron v. Fisher, 2012 WL 213766, at *3 (S.D.N.Y. Jan. 24, 2012).
A weight-of-the-evidence claim arises under N.Y. Crim. Proc. L. (CPL) § 470.15(5), which allows state appellate courts "to make weight of the evidence determinations." Cintron, 2012 WL 213766, at *3. Such a claim does not implicate the Due Process Clause, or any other provision of federal law, because "as a matter of federal constitutional law a jury's verdict may only be overturned if the evidence is insufficient to permit any rational juror to find guilt beyond a reasonable doubt." McKinnon, 422 Fed.Appx. at 75 (citing Jackson, 443 U.S. at 324, and Policano v. Herbert, 507 F.3d 111, 116 (2d Cir. 2007)).
Here, the Appellate Division considered petitioner's CPL § 470.15(5) argument and rejected it, concluding that "the verdict was not against the weight of the evidence." Fawzi, 155 A.D.3d at 549, 65 N.Y.S.3d at 192. This Court has no power to review that conclusion - which, in any event, was well grounded in the record. Petitioner's second claim should therefore be denied.
3. Third Claim: Warrantless Searches
Petitioner next claims that the "entry to his home was neither consensual nor justified by exigent circumstances." Pet. at 9. To the extent he seeks to challenge the second warrantless entry, which was based on his mother's written consent, the claim was rejected by the Appellate Division as "unpreserved," see Fawzi, 155 A.D.3d at 549, 65 N.Y.S.3d at 192, and is therefore procedurally barred in this Court, where Fawzi has again failed to demonstrate either cause and prejudice or that a fundamental miscarriage of justice would occur if the merits of that Fourth Amendment claim were not considered. See Coleman v. Thompson, 501 U.S. at 750. He has also failed to provide any basis from which this Court could conclude that his mother's written consent - entered into the trial record without objection, Tr. at 185 - was obtained through coercion or was otherwise not voluntary.
In the Appellate Division, petitioner conceded that "there was no testimony at all concerning the interaction between Fawzi's mother and the police that led to the consent to the seizure of the bloody clothing that he was wearing." Pet. Appeal Br. at 30; see also id. at 32 ("There was no testimony whatsoever at the suppression hearing concerning the second consent."). There was thus no evidentiary basis for his assertion, on direct appeal, that "[i]t is clear that Fawzi's mother merely acquiesced to the authority of the police, which is not consent." Id. at 32.
Petitioner's challenge to the NYPD's first warrantless entry, which resulted in his arrest, was heard initially by Justice Uviller, who ruled, after a suppression hearing, that the NYPD had probable cause for the arrest and that Fawzi's mother "consented to their entry," including "their going into . . . her son's bedroom." Supp. Tr. at 90. The claim was then addressed and rejected on the merits by the Appellate Division, which agreed that there was probable cause for the arrest and that "defendant's mother voluntarily consented to the entry," and further held that "[t]he entry was also justified by exigent circumstances," in that the police had "reason to fear that [petitioner] was armed and would soon flee." Fawzi, 155 A.D.3d at 549, 65 N.Y.S.3d at 192.
Although this aspect of petitioner's Fourth Amendment claim was preserved and exhausted, respondent is correct that it cannot be heard on habeas review. As the Supreme Court explained in Stone v. Powell, 428 U.S. 465 (1976), "[w]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Id. at 482; see also Carrasco v. Miller, 2021 WL 1040473, at *2 (S.D.N.Y. Mar. 18, 2021) ("[I]it is well-settled that a petitioner cannot obtain habeas relief for an alleged Fourth Amendment violation unless he was denied an opportunity for full and fair litigation of the claim in the state courts.") (quoting Applewhite v. McGinnis, 2006 WL 1317016, at *2 (S.D.N.Y. May 15, 2006)) (cleaned up). Courts review Fourth Amendment claims in habeas proceedings in only "one of two instances: (a) if the state has provided no corrective procedures at all to redress the alleged fourth amendment violations; or (b) if the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process." Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992). "An unconscionable breakdown occurs when the state court fails to conduct a reasoned inquiry into the petitioner's claim." Valtin v. Hollins, 248 F.Supp.2d 311, 317 (S.D.N.Y. 2003).
It is well-settled that New York provides adequate "corrective procedures" that give criminal defendants a full and fair opportunity to litigate their Fourth Amendment challenges. See, e.g., Capellan, 975 F.2d at 70 n.1 (2d Cir. 1992) ("[F]ederal courts have approved New York's procedure for litigating Fourth Amendment claims . . . as being facially adequate.") (collecting cases); Paulino v. Griffin, 2019 WL 9362540, at *9 (S.D.N.Y. Aug. 26, 2019) ("New York's procedures for challenging searches and seizures (see N.Y. Crim. Proc. Law § 710.10 et seq.) are adequate corrective procedures to constitute a full and fair opportunity to litigate a defendant's Fourth Amendment claims."). Petitioner did not claim in the Appellate Division, and does not claim here, that he lacked a full and fair opportunity to litigate his Fourth Amendment challenges. Nor has he ever alleged that an "unconscionable breakdown in the review process" occurred. Instead, he claims only that the state courts reached the wrong result. Pet. at 9. That claim is barred by the rule of Stone v. Powell, 428 U.S. at 482.
Any such claim would be inconsistent with the record, which shows that, during the suppression hearing, the testifying detectives were thoroughly questioned by the ADA, by Fawzi's counsel, and - frequently - by Justice Uviller herself. See Supp. Tr. at 5-75. Petitioner did not call his mother, or anyone else, to testify concerning the consent issue. Nor, for that matter, did he argue that the mother's consent was inadequate or that the circumstances were not exigent. Instead, after hearing the detectives' testimony, he urged Justice Uviller to suppress all of his post-arrest statements because Al-Saaidi's identification of petitioner after viewing the photo array was "way too tenuous" to provide probable cause for Fawzi's arrest. Supp. Tr. at 75-79. In the Appellate Division, petitioner took a different approach, arguing - for the first time - that the initial entry to petitioner's apartment should have been found unlawful because the NYPD "lied" to petitioner's mother to obtain her consent (telling her they merely wanted to "talk to" her son) and "never told her she did not have to allow them to enter." Pet. Appeal Br. at 26-27.
Even if this Court could review the merits of the state court's Fourth Amendment analysis, plaintiff would be entitled to no relief. Under federal law, consent to a warrantless search must be "voluntarily given, and not the result of duress or coercion, express or implied." United States v. Arango-Correa, 851 F.2d 54, 57 (2d Cir. 1988) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973)). In determining whether this standard is met, however, "no one factor is controlling." United States v. Sanchez, 635 F.2d 47, 58 (2d Cir. 1980). "While the subject's knowledge of [her] right to refuse consent is a relevant factor," Id., "the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent." Schneckloth, 412 U.S. at 249.
Similarly, consent is not vitiated simply because the police officers told petitioner's mother part of the truth - that they needed to speak with her son, see Supp. Tr. at 64 - but did not expressly state that they intended to arrest him. Id. at 66. In the Appellate Division, petitioner did not cite a single federal case suggesting that law enforcement officers must outline their arrest plans in detail in order to obtain effective consent to enter a home. And for good reason. "The Second Circuit has held that it is generally permissible for law enforcement to use 'stratagem or deception' to obtain evidence without a warrant," United States v. Peterson, 2018 WL 6061571, at *6 (D. Conn. Nov. 20, 2018) (quoting United States v. Alejandro, 368 F.3d 130, 135 (2d Cir. 2004), supplemented, 100 Fed.Appx. 846 (2d Cir. 2004)), provided that the stratagem employed "did not create a false sense of exigent circumstances that deprived the defendant of his ability to assess the need to surrender his privacy." United States v. Monzon-Luna, 2013 WL 6175818, at *5 (E.D.N.Y. Nov. 22, 2013) (finding consent voluntary where law enforcement agents, who suspected that defendant was engaged in child sex trafficking, gained entry to his rented room by telling him they were looking for an individual who stole a cell phone); see also Peterson, 2018 WL 6061571, at *6 (finding consent voluntary where ATF agents told defendant that they wished to speak to him about a robbery he had reported, when "the real purpose of the officers' visit" was to interview defendant about his potentially unlawful firearm purchases); cf. United States v. Giraldo, 743 F.Supp. 152, 154 (E.D.N.Y. 1990) (finding consent not voluntary where law enforcement officers "falsely induc[ed] fear of an imminent life-threatening danger" by claiming they were gas company workers checking for gas leaks).
Moreover, the police do not require a warrant where "exigent circumstances" justify entry into a home, such as where "Petitioner was wanted for murder, the [weapon] used during the shooting was [not yet] located and, as such, Petitioner could have been armed, or could have attempted to destroy the evidence." Duren v. Lamanna, 2020 WL 509179, at *12 (E.D.N.Y. Jan. 30, 2020); see also, e.g., Delgado v. Walker, 798 F.Supp. 107, 111 (E.D.N.Y. 1992) (defense counsel reasonably determined that a suppression motion would likely fail "given the exigent circumstances leading up to the arrest of Delgado," namely, that "[a] violent murder had occurred, no weapon had been found at the scene of the crime which suggested that the alleged assailant remained armed, and eyewitnesses . . . had identified Delgado as the perpetrator," making it "reasonable for a police detective to conclude that the suspect might seek to flee the jurisdiction"); Wise v. Scully, 581 F.Supp. 1545, 1547 (S.D.N.Y. 1984) (exigent circumstances justified warrantless entry into home where homicide suspect's wife, who answered the door, told the police he was sleeping, but "[t]he possibility of Wise attempting to escape or attempting to destroy evidence was too real a potential for the officer to ignore"), aff'd, 795 F.2d 80 (2d Cir. 1985).
Taken as a whole, the evidence adduced at the suppression hearing amply supported the state court's conclusions that "defendant's mother voluntarily consented to the entry," and that exigent circumstances existed. Fawzi, 155 A.D.3d at 549, 65 N.Y.S.3d at 192. Since that conclusion was neither contrary to "clearly established Federal law" nor "based on an unreasonable determination of the facts in light of the evidence presented by the State court proceedings," 28 U.S.C. § 2254(d), this Court cannot second-guess the decision of the Appellate Division. Consequently, petitioner's third claim should be denied.
4. Fourth Claim: The Strength of the EED Evidence
Petitioner believes that the affirmative defense of extreme emotional disturbance "was proven by a preponderance of the evidence." Pet. at 11. As noted above, EED is a partial affirmative defense to the crime of murder in the second degree, see PL § 125.25(1)(a), as to which the defendant has the burden of proof. Roche, 98 N.Y.2d at 75, 772 N.E.2d at 1137; see also Patterson v. New York, 432 U.S. 197, 206-08 (1977) (noting that EED is one of many affirmative defenses which, under New York law, "exculpate or mitigate but which must be established by the defendant to be operative," and holding that New York's decision to place that burden on the defendant, by a preponderance of the evidence, does not violate the Due Process Clause).
Petitioner's claim that the jury should have credited his EED defense is, in effect, an argument as to the weight of the EED evidence. See Alexis v. Griffin, 2014 WL 3545583, at *19 (S.D.N.Y. July 18, 2014) ("Although he does not frame it this way, [petitioner] essentially is advancing a claim that, by rejecting [his] insanity defense and convicting [him] of the charged offenses, the jury reached a verdict that was against the weight of the evidence."). Moreover, the EED defense itself "is purely a matter of state law." Salcedo v. Artuz, 107 F.Supp.2d 405, 416 n.4 (S.D.N.Y. 2000). For the same reasons discussed in connection with petitioner's second claim, therefore, his fourth claim does not present any issue cognizable in a federal habeas proceeding, see Pallonetti v. Racette, 2014 WL 4161957, at *3 (E.D.N.Y. Aug. 19, 2014) (denying habeas claim premised on the strength of petitioner's EED evidence because it presented a "pure state law claim"), and should be denied.
5. Fifth Claim: The People's Summation
In this Court, petitioner alleges that "the prosecution summation was so prejudicial as to deprive [him] of a fair trial." Pet. at ECF p. 12. However, the only contemporaneous objection made to the summation by defense counsel complained that the ADA "creat[ed] a false impression" by discussing petitioner's August 2013 mental health records without also discussing his "most recent record," from September 2013, which arguably lent more support to his EED defense. Tr. at 452. On direct appeal, petitioner added a host of complaints never articulated in the trial court, including: that the prosecutor's comments were "racially charged" and intended to "inflame the jury's passions," Pet. Appeal Br. at 53, 55; that the prosecutor "called Dr. Goldsmith a liar" and "conveyed his belief that the defense and counsel were putting on a fabricated, offensive, and ridiculous defense," Id. at 56-57; that he "muddled the legal standards" governing "intent," "preponderance of the evidence," and "loss of control," Id. at 58; and that he made "obvious intentional misstatements of fact regarding critical matters at issue at this trial," including by arguing that Fawzi was malingering, for which there was "no basis in the trial record." Id. at 59.
The Appellate Division rejected all of petitioner's arguments concerning the People's summation as "unpreserved," Fawzi, 155 A.D.3d at 549, 65 N.Y.S.2d at 193, which is an independent and adequate state ground for dismissal, rooted in the "firmly established and regularly followed" New York requirement that a challenge to the People's summation "be preserved by contemporaneous objection," as required by CPL 470.05(2), in order to secure appellate review. Richardson v. Greene, 497 F.3d 212, 217-18 (2d Cir. 2007). Moreover, petitioner has failed, once again, to demonstrate either cause and prejudice or that a fundamental miscarriage of justice would occur if the merits of his summation-related claim were not considered, as required by Coleman v. Thompson, 501 U.S. at 750. Respondent is therefore correct that petitioner's fifth claim is procedurally barred. See Joseph v. Conway, 671 F.Supp.3d 248, 257 (E.D.N.Y. 2023) (Chin, J.) ("Because the Appellate Division rejected [petitioner's claim of prosecutorial misconduct during summation] on the ground that it was 'largely unpreserved for appellate review,' this determination constitutes an independent and adequate state ground that precludes habeas review of this claim in federal court.") (internal citations omitted); accord Tavarez, 2023 WL 3628412, at *2; Murray v. Greene, 2006 WL 3751294, at *14-17 (S.D.N.Y. Dec. 21, 2006); Roberts v. Batista, 2003 WL 1900866, at *7 (S.D.N.Y. Apr. 16, 2003).
In any event, the Appellate Division's alternative holding, finding "no basis for reversal" due to the prosecutor's summation, Fawzi, 155 A.D.3d at 549, 65 N.Y.S.2d at 193, is neither contrary to "clearly established Federal law" nor "based on an unreasonable determination of the facts in light of the evidence presented by the State court proceedings." 28 U.S.C. § 2254(d). For constitutional purposes, only "egregious misconduct" that "amount[s] to a denial of constitutional due process" warrants relief. Donnelly v. DeChristoforo, 416 U.S. 637, 647-48 (1974) (habeas relief was correctly denied, even though prosecutor made improper remarks, because "not every trial error or infirmity which might call for application of supervisory powers correspondingly constitutes a 'failure to observe that fundamental fairness essential to the very concept of justice'") (quoting Lisenba v. California, 314 U.S. 219, 236 (1941)). "The relevant question is whether the prosecutors' comments 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly, 416 U.S. at 643). The Second Circuit applies a three-factor test: "the severity of the misconduct; the measures adopted to cure the misconduct; and the certainty of conviction absent the improper statements." Floyd v. Meacham, 907 F.2d 347, 355 (2d Cir. 1990) (citation omitted).
Analyzing these factors, I conclude that there was no "severe" misconduct by the ADA, so as to implicate the Due Process Clause, and that, to the extent there was misconduct at all, it was promptly corrected by the trial judge. When the prosecutor reminded the jury that Fawzi referred to Green as "some black guy" even though he knew his victim's name, Tr. at 414, he was not appealing to racial prejudice - indeed, the comment had nothing to do with petitioner's race, cf. U.S. ex rel. Haynes v. McKendrick, 481 F.2d 152 (2d Cir. 1973), or, for that matter, the race of any trial witness. Cf. McFarland v. Smith, 611 F.2d 414 (2d Cir.1979). Rather, the ADA was suggesting to the jury that petitioner stabbed Green because he was angry and did not value Green's life - not because, as defense counsel argued, he "lost control" under the influence of extreme emotional distress.
In Haynes, the Second Circuit affirmed the issuance of the writ to a black petitioner who was convicted of robbery by an all-white jury after the prosecutor spent much of his summation discussing "the colored race," including their "weaknesses" and the difficulty of telling "them" apart, and then urged the jury to believe a black witness on a question of identity because "she knows her own. She knows the young bucks in that neighborhood." 481 F.2d at 154-55.
In McFarland, the Second Circuit held that a black petitioner was entitled to the writ where the prosecutor, during his summation, explicitly urged the jury to credit the testimony of an African-American undercover police officer because, as a black woman, she was unlikely to falsely testify against a "a member of her own race." 611 F.2d at 416-17.
The prosecutor's attacks on Dr. Goldsmith's credibility constituted fair comment on a shaky performance by an expert witness, particularly after petitioner's counsel urged the jury, in his own summation, "to find Doctor Goldsmith to be a thoroughly credible and comprehensive and impressive witness" who "is not simply someone . . . who will show up and say whatever a defense counsel wants him to say." Tr. at 391. Similarly, after petitioner's counsel told the jury that Dr. Goldsmith's testimony was "totally uncontradicted," Id. at 392, and that there was "no evidence" that Fawzi was malingering, Id. at 396, it was not unfair for the ADA to remind the jury that most of petitioner's medical records - both before he killed Green and during his first few weeks of postarrest incarceration - did not reflect any serious mental illness. Under federal law, "[b]oth prosecution and defense are entitled to broad latitude in the inferences they may suggest to the jury during closing arguments." United States v. Suarez, 588 F.2d 352, 354 (2d Cir. 1978); see Escobar v. Senkowski, 2005 WL 1307939, at *14 (S.D.N.Y. May 26, 2005) (allowing prosecutorial "leeway" in challenging credibility of witnesses when responding to defense summation); see also Darden, 477 U.S. at 182 (noting that where the defense summation invites a particular response from the prosecution, such a response is less likely to jeopardize the trial's fairness). Moreover, the trial judge correctly instructed the jury, in response to defense counsel's complaint about the ADA's use of some but not all medical records to create a "false impression," Tr. at 453, that the summations were argument, not evidence, and that if they had any questions about what was in the medical records, they "should ask for the medical records, which are in evidence in their entirety." Id. at 453.
As noted above, Dr. Goldsmith agreed, on cross-examination, that Fawzi's continued mental stability even after he left Bellevue and stopped taking his medication regularly "could be" an indication of malingering, Tr. at 344-45, although in his opinion that was not the correct conclusion to draw in this case. Tr. at 371-72.
Lastly, although petitioner argued in the Appellate Division that the ADA "muddled the legal standards" concerning "intent," "preponderance of the evidence," and "loss of control," see Pet. Appeal Br. at 58, he never explained how or in what way those legal standards were misstated, Id., and consequently has not shown that any due process violation occurred. Even if the prosecutor did misstate the law during his summation, that is not necessarily grounds for habeas relief. See Chalmers v. Mitchell, 73 F.3d 1262, 1269 (2d Cir. 1996) (prosecutor's misstatement of law excusable in absence of "reasonable likelihood" that misstatement led the jury to apply incorrect standard); Mason v. Greene, 2009 WL 577280, at *12 (S.D.N.Y. Mar. 5, 2009) (habeas relief was not warranted where prosecutor's misstatements of law were "not severe," the trial judge properly charged the jury on the elements of the law, and conviction was certain even absent the prosecutor's argument).
In this case, moreover, both the prosecutor and the trial judge told the jurors, repeatedly, that they were required to follow the law as given to them by Justice Wittner and disregard any contrary constructions from counsel. See Tr. at 450 (ADA Glasser, reminding the jury that "the Judge will tell you, listen to her instructions[,] if she says anything different from me, the Judge's instructions should guide you"); Id. at 455 (Justice Wittner, instructing the jury that "[a]s to the law of the case you must accept it as I give it to you without hesitation."). Thereafter, the court properly instructed the jury - twice - as to all of the elements of second degree murder, including the affirmative defense of extreme emotional distress, in accordance with the same pattern jury instructions that the ADA allegedly distorted. Id. at 462-69, 473-78. Any misimpression created by the prosecution was thereby cured. See Chalmers, 73 F.3d at 1271 ("prosecutor's summation suggest[ing], incorrectly, that the defendant had the burden of providing the reasonable doubt to the jury" was not prejudicial where the trial judge "gave the proper instruction regarding the burden of proof, and ensured that the jury knew the proper standard to apply"); Mason, 2009 WL 577280, at *12 (jury was not unduly influenced by prosecutor's statements concerning unlawful entry where trial judge instructed the jury that closing statements were merely argument and provided a detailed charge to the jury on the elements of burglary in the first degree, including the unlawful-entry element); see also Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985) ("Absent . . . extraordinary situations . . . we adhere to the crucial assumption underlying our constitutional system of trial by jury that jurors carefully follow instructions.").
I further conclude that, given the overwhelming evidence of petitioner's guilt - including the surveillance videos showing the killing, Al-Saaidi's testimony, and petitioner's own written and videotaped statements - the Appellate Division correctly determined that any prosecutorial error during summations was "harmless." Fawzi, 155 A.D.3d at 549, 65 N.Y.S.3d at 193. Thus, the challenged remarks could not have had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 638 (1993). Petitioner's fifth claim should therefore be denied.
6. Sixth Claim: Excessive Sentence
Petitioner's final claim for relief is that his sentence of 20 years to life is excessive. Pet. at ECF p. 13. Although this claim was raised in the Appellate Division, which rejected it on the merits, Fawzi, 155 A.D.3d at 550, 65 N.Y.S.2d at 193, it cannot be considered by this Court, because "a claim for reduction in sentence . . . does not, without more, raise a federal constitutional issue and is therefore not cognizable on habeas review." Bonilla v. Lee, 35 F.Supp.3d 551, 572 (S.D.N.Y. 2014); see also Santiago v. Shanley, 2023 WL 3321665, at *3 (E.D.N.Y. May 8, 2023) (explaining that state law authorizes the Appellate Division to reduce a defendant's sentence "[a]s a matter of discretion in the interest of justice," CPL § 470.15(3)(c), but that if it declines to do so, there is no "basis for federal habeas relief"); Ponder v. Conway, 748 F.Supp.2d 183, 197-98 (W.D.N.Y. 2010) (dismissing claim for sentence reduction "as not cognizable on habeas review" because "[a]t most, [petitioner] has asserted a violation of New York state statutory law").
Even if I were to interpret petitioner's claim as one under the Eighth Amendment, which "prohibits imposition of a sentence that is grossly disproportionate to the severity of the crime," Rummel v. Estelle, 445 U.S. 263, 271 (1980), petitioner still would not be entitled to habeas relief. His sentence - 20 years to life - falls squarely in the middle of the range prescribed by New York law for Class A-I felonies, thus presenting "[n]o federal constitutional issue." White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (per curiam); see also Bonilla, 35 F.Supp.3d at 572 ("[B]ecause the sentence falls within the range prescribed by state statutory law, the length of the sentence cannot be a basis for federal habeas relief.") (footnote omitted). Accordingly, the "mitigating factors" he presented to the Appellate Division - specifically, his lack of a significant criminal record, his mental health issues, his alcohol use, and the provocation by Green, see Pet. Appeal Br. at 67-68 - "are simply not factors that this Court may consider for habeas relief in accordance with the Eighth Amendment." Acosta v. Giambruno, 326 F.Supp.2d 513, 524 (S.D.N.Y. 2004); accord Santiago, 2023 WL 3321665, at *4.
See PL § 70.00(1) (sentences for felonies must be "indeterminate," with the maximum and minimum set in accordance with subsections (2) and (3), respectively); PL § 70.00(2)(a) (the maximum term of for a Class A felony is life imprisonment); PL § 70.00(3)(a)(i) (the minimum term for a Class A-1 felony is "not less than 15 years nor more than 25 years").
As the Santiago court recently pointed out, "there is no Supreme Court case that has ever found a sentence to be in violation of the Eighth Amendment merely because of its length." 2023 WL 3321665, at *4 (quoting Bridges v. Lee, 2019 WL 11816536, at *12 (E.D.N.Y. Aug. 26, 2019)). Nor is there any support in the caselaw for the proposition that the sentencing range prescribed for second degree murder in New York is disproportionate to that crime. See, e.g., Silva v. Keyser, 271 F.Supp.3d 527, 545 (S.D.N.Y. 2017) ("The petitioner's sentence of twenty years to life, which fell below the statutory maximum, is not grossly disproportionate to a conviction for intentional homicide."); Lewis v. Lee, 2015 WL 5751396, at *14 (S.D.N.Y. Sept. 29, 2015) (petitioner's sentence of 25 years for "attempted murder in the second degree" falls within the range prescribed by state law, and "fails to raise a constitutional issue"). Consequently, petitioner cannot show that, in upholding his sentence of 20 years to life, the Appellate Division rendered a decision that was "contrary to, or involved an unreasonable application of, clearly established Federal law." 28 U.S.C. § 2254(d). Plaintiff's sixth claim, like his first five, should therefore be denied.
III. CONCLUSION
For the foregoing reasons, I recommend, respectfully, that the Petition be DENIED. Because petitioner has not "made a substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), I further recommend that no certificate of appealability be issued pursuant to 28 U.S.C. § 2253(c)(1)(A).
Because petitioner is currently incarcerated in the Sing Sing Correctional Facility, the Clerk of Court is respectfully directed to substitute "Marlyn Kopp, Superintendent, Sing Sing Correctional Facility," as the respondent in this action and update the petitioners address as follows:
Nabil Fawzi
DIN No. 13-A-5572
Sing Sing Correctional Facility
354 Hunter Street
Ossing, NY 10562-5442
The Clerk of Court is further directed to mail a copy of this Report and Recommendation to petitioner at his updated address.
NOTICE OF PROCEDURE FOR FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from this date to file written objections to this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). See also Fed.R.Civ.P. 6(a) and (d). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. Gregory H. Woods at 500 Pearl Street, New York, New York 10007. No courtesy copies need be delivered to the chambers of the undersigned magistrate judge. Any request for an extension of time to file objections must be directed to Judge Woods. Failure to file timely objections will result in a waiver of such objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Frydman v. Experian Info. Sols., Inc., 743 Fed.Appx. 486, 487 (2d Cir. 2018); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).