Opinion
18-CV-2570 (VSB) (OTW)
05-27-2021
STEVEN FINKELSTEIN, Petitioner, v. STEPHEN CLAUDIO[1], Respondent.
To the Honorable VERNON S. BRODERICK, United States District Judge
REPORT AND RECOMMENDATION
ONA T. WANG, United States Magistrate Judge
I. Introduction
Petitioner Steven Finkelstein, proceeding pro se, brings this habeas corpus proceeding in accordance with 28 U.S.C. § 2254 to challenge his July 2008 New York conviction, following a jury trial, for two counts of first-degree coercion. (ECF 1, the “Petition”). Petitioner, a second felony offender, was sentenced to two consecutive prison terms of three-and-a-half to seven years. Petitioner challenges his conviction on the following grounds: (1) he was denied his right to refuse counsel; (2) the trial court improperly refused to submit to the jury the charges of coercion in the second degree as a lesser included offense; (3) the trial court improperly precluded witnesses; and (4) the prosecution, not the jury, improperly made a finding of heinousness. For the following reasons, I recommend that the Petition be DENIED.
II. Background
A. Underlying Facts
Petitioner was convicted for harassing a former girlfriend, Sharyn Lewis. He incessantly called her, her friends, and her family, threatened violence, threatened to destroy her financial livelihood, and refused to leave her home.
1. Petitioner's Prior Relationship
Before meeting Lewis in May 2005, Petitioner had been involved in multiple abusive relationships. First, there was a relationship with Barbara Segreto, in which Petitioner harassed Segreto and Segreto's friends, which ultimately resulted in Petitioner being convicted of extortion. (ECF 8-2 at 434, 470, 557). From Segreto's trial testimony, Petitioner called Segreto and her friends and family hundreds of times. (ECF 8-2 at 501, 558-59, 561-84). Segreto estimated that around forty people in her life were harassed by Petitioner. (ECF 8-4 at 32). Segreto could not use her phone for her business of providing geriatric care management. (ECF 8-3 at 575). Segreto lost her business and her rent-stabilized apartment, and she was reduced to living in her office space. (ECF 8-3 at 564-65, 574-76).
During the relationship with Segreto, Petitioner told her, “You cannot break a date with me. You have an obligation to me.” (ECF 8-4 at 7). Petitioner monitored Segreto's calls, and Segreto testified that she “reduced the amount of contact that [she] had with people in the outside world because, for one thing, they - if [she] continued relationships with them, it was gonna possibly open them up to abuse from him.” (ECF 8-4 at 11-12, 14). At Petitioner's direction, Segreto contacted Petitioner's prior victims/partners and learned that they all had similar experiences with him. Segreto stated that she “became a nervous wreck [and was] completely socially isolated.” (ECF 8-4 at 22). According to her, Petitioner “seemed to know people in my life that I had told him about, he knew their addresses, their telephone numbers, their social security numbers. And I felt that, you know, he had such control over me because maybe he could cause problems to somebody else.” (ECF 8-4 at 22).
Petitioner also had refused to leave the homes to two prior ex-girlfriends, Naomi Polanetska and Estelle Margolin. They had to pay thousands of dollars to try to evict Petitioner from their homes. (ECF 8-3 at 573, ECF 8-4 at 18).
2. Petitioner's Relationship with Sharyn Lewis
Petitioner and Lewis began dating in May 2005. (ECF 8-2 at 351-53). Early into the relationship, Lewis discovered that Petitioner had recently been in prison for extortion of a former girlfriend (Segreto). (ECF 8-2 at 352-54). Petitioner explained that it was over a misunderstanding over furniture. (ECF 8-2 at 355). Although the relationship started well, Lewis grew fearful of Petitioner during the course of the relationship as Petitioner began to verbally abuse and control her. See, e.g., ECF 8-2 at 368-69, 410-11.
Petitioner pressured Lewis into letting him stay in her apartment and leave his belongings there, even though she did not want him living them and told him so. (ECF 8-2 at 391; 8-3 at 194-95). In mid-August 2005, Lewis agreed that Petitioner could stay with her for two weeks until he found a new home because his lease was expiring. (ECF 8-2 at 426). Later, Petitioner told Lewis that he needed to stay at her apartment for three months; Lewis agreed, contingent on Petitioner paying rent. (ECF 8-2 at 407-08, 426). Petitioner refused to pay, but continued to stay in Lewis's home. (ECF 8-2 at 408). According to Lewis, she did not want to store Petitioner's belongings in her home, but agreed to do so because Petitioner badgered her, got angry with her, and said that otherwise “he would lose everything” and that it would all be Lewis's “fault.” (ECF 8-2 at 378-79). Lewis ultimately acceded to Petitioner temporarily storing his belonging in her apartment until Petitioner found a permanent place.
Petitioner found a Brooklyn apartment, but did not remove his belongings from Lewis's home. (ECF 8-2 at 389). When Lewis told Petitioner to move out, Petitioner again refused Lewis's demands that he leave or pay rent. Petitioner told Lewis that she owed him six free months and he was her “legal tenant.” (ECF 8-2 at 423-25). Petitioner also threatened to take her to housing court. (ECF 8-2 at 424-26). Lewis feared that she would lose her rent-stabilized apartment.
In addition to the belongings stored in Lewis's apartment, Petitioner also stored 29 bags of property at Lewis's mother's home. (ECF 8-2 at 410).
As a threat to Lewis, Petitioner often referred to a scene in the movie The Godfather, in which a betrayer was strangled. (ECF 8-2 at 451-52). Lewis became fearful of her physical safety, but was afraid to force Petitioner out of her apartment given his threat of taking her to housing court. (ECF 8-2 at 456). Lewis also discussed with Segreto, Segreto's relationship with Petitioner, and was aware of the challenges that Segreto faced in ending her relationship.
As with Segreto, Petitioner accessed, reviewed, and saved Lewis's emails and contacts.(ECF 8-2 at 412-14, 428). After Lewis discovered Petitioner's lists of her contacts, she attempted to hide them, but Petitioner threatened harm to Lewis if she did not return them to her. (ECF 8-2 at 432-33).
Petitioner claimed at trial that this was done to arrange a surprise party for Lewis's birthday. (ECF 8-5 at 341).
On September 12, 2005, in an attempt to remove Petitioner from her home, Lewis called Petitioner's parole officer. (ECF 8-2 at 444, 447). The parole officer said that she would advise Petitioner to move out because his parole was partly conditioned on not living with a woman. Petitioner then told Lewis that his parole officer said that he could stay in Lewis's apartment during the day, but not at night. Lewis acceded to Petitioner spending days in her apartment, and Petitioner would leave the apartment in the evenings, only to return after 10:00 pm. (ECF 8-6 at 311). Petitioner also vowed to get revenge on whomever reported him to his parole officer.
On September 30, 2005, after Petitioner made remarks that suggested that he had killed a landlord, Lewis called the parole officer to ask that Petitioner be removed. (ECF 8-6 at 312). Parole officers arrested Petitioner, who was then jailed at Rikers Island.
3. Petitioner Continues Calling Lewis From Rikers Island
Starting on Petitioner's first day at Rikers, fax machines started calling Lewis's phones as well as those of her mother's every few minutes through the night. (ECF 8-2 at 461, 520). Lewis was bombarded with calls and messages for the next seven to eight months: collect calls, calls from fax machines, calls that played the “death march” on touch-tones, and text messages containing her friends' and associates' social security numbers.
There was an incident on October 1, 2005, where Petitioner called Lewis's mother, who had Alzheimer's, at 4:30 am. (ECF 8-4 at 311-13). The call was answered by Lewis's mother's caretaker, and Petitioner told her that Lewis was hospitalized and might not make it. (ECF 8-4 at 313-14).
Not only did the calls go to Lewis and her mother, they also went to the extension Lewis shared with Byju Abraham, from whom she rented space to run her travel agency. (ECF 8-2 at 522-24, 551; ECF 8-4 at 166). The office would receive constant fax calls, “hundreds of calls, ” every two minutes. (ECF 8-4 at 168-69). Lewis's clients also received numerous collect calls, which included a call with a man's voice stating, “I'm calling to warn you about doing business with Sharyn Lewis. She misappropriates funds. She doesn't protect her data. She is dishonest.” (ECF 8-3 at 83). The caller also used the collect call name recording space to leave messages such as, “I know all your numbers. I know your credit card information. I know where you live. I know where you do business. Your information isn't safe with Ms. Lewis. You shouldn't be doing business her.” (ECF 8-3 at 83-84). As a result, Lewis lost clients.
Lewis's friends also received harassing phone calls, up to hundreds of calls, often from a fax-on-demand service. (ECF 8-4 at 32, 70; ECF 8-4 at 320-29, 339-40). Lewis's friend, Linda Weinstein, received fax calls on her home, cell, and vacation phones for months, including collect calls from a correctional facility. (ECF 8-4 at 70-73, 75-76). Another friend of Lewis, Kathy Clarke, also received numerous fax calls on her home and business numbers for months; the calls to her business number also impacted Clarke's business. (ECF 8-4 at 114-16).
These calls were traced to Petitioner from an investigation via a pen register at Rikers Island, by the Bronx District Attorney's office. This investigation revealed that many of the calls to Lewis originated from Rikers, and many of Petitioner's calls were being routed through a Time Warner system to an answering machine set up with Time Warner. (ECF 8-4 at 460). On Petitioner's cell phone, there were also lists of inmate identification numbers used to make calls and contact information for Lewis's friends and business associates.
At the time of Petitioner's trial, Lewis was still paying to store Petitioner's belongings. Petitioner threatened Lewis that she and her family would have “hell to pay” if she did not safeguard his property. (ECF 8-6 at 317).
B. Procedural History
1. Trial
In New York State Supreme Court, Petitioner was indicted on charges of menacing, stalking, witness tampering, unlawful possession of personal identification information, and first-degree coercion. The tampering charge was dismissed prior to trial, and the menacing, stalking, and unlawful possession of personal information charges were dismissed during trial. (ECF 8-4 at 222-23, 473).
In the pre-trial proceedings, the trial court allowed Petitioner to represent himself contingent on Petitioner having the resources to do so properly, such as expanded law library access, the ability to listen to audio recordings, and the ability to use phones. The trial court also appointed attorney Brian Konoski as Petitioner's legal advisor. However, these extra privileges were terminated by the jail, because, Petitioner had been found in possession of the warden's, Konoski's, and Konoski's spouse's personal information. (ECF 8-7 at 582-86, 602-07).
Konoski asked to be relieved because (1) Petitioner claimed Konoski was providing ineffective assistance of counsel, accusing him of sabotaging his defense, and (2) Konoski was concerned that Petitioner had Konoski's family's personal information. And, because these extra privileges were terminated, the trial court, citing Faretta v California, 422 U.S. 806 (1975), found that Petitioner had forfeited his right to represented himself. (ECF 8-1 at 81-86). The trial court relieved Konoski and appointed attorney Eugene Nathanson, who was chosen by Petitioner. The trial court had offered to let Petitioner represent himself if he waived his right to use phones, but Petitioner agreed with the court that it would be “folly” to do so. (ECF 8-1 at 181).
During Petitioner's trial, the trial court generally allowed Petitioner to make his legal arguments prior to those of Nathanson and addressed Petitioner directly regarding his case. E.g. ECF 8-5 at 98-105. In this capacity, Petitioner represented himself, up until the verdict. The trial court granted Petitioner's request to reappoint Nathanson for the sentencing. (ECF 8-5 at 794).
On July 30, 2008, the jury convicted Petitioner of two counts of first-degree coercion. On August 22, 2008, the trial court sentenced Petitioner, as a second felony offender, to an aggregate indeterminate term of seven to fourteen years imprisonment.
2. Appeal
Petitioner appealed to the Appellate Division, First Department, arguing: (1) the evidence of first-degree coercion was legally insufficient; (2) the trial court erred in temporarily rescinding its order permitting Petitioner to proceed pro se; (3) the trial court improperly admitted uncharged crime evidence; (4) the indictment was duplicative; (5) the prosecutor, and not the jury, made a finding of “heinousness” with respect to first-degree coercion; (6) the court erred in not submitting second-degree coercion as a lesser included offense; (7) the court erred in precluding the testimony of three defense witnesses; (8) the trial court disparaged Petitioner, and thus his defense violated his due process and fair trial rights; and (9) the court wrongly imposed consecutive sentences.
The First Department unanimously affirmed Petitioner's conviction. People v. Finkelstein, 121 A.D.3d 615 (1st Dep't 2014). As relevant herein, the First Department found that:
• The trial court “properly exercised its discretion in revoking [Petitioner's] pro se status during portions of the proceedings on the ground that he had forfeited his right of self-representation by his conduct.” Id. at 615.
• Arguments that the lesser charge of second-degree coercion should have been submitted to the jury was “unavailing.” Id. at 616.
• The trial court exercised proper discretion “in precluding evidence offered by [Petitioner] that was irrelevant, collateral or cumulative, and the evidentiary rulings at issue did not deprive [Petitioner] of a fair trial or the right to present a defense.” Id.
At the Court of Appeals, Petitioner argued that (1) the trial court erred in temporarily rescinding its order permitting Petitioner to represent himself; (2) the court erred in not submitting second-degree coercion as a lesser included offense of first-degree coercion; (3) the prosecutor and court, and not the jury, made a finding of heinousness in connection with first-degree coercion, in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000); and (4) the trial court erred in precluding defense witnesses.
In Apprendi v. New Jersey, 530 U.S. 466 (2000), the United States Supreme Court ruled that judges could not enhance criminal sentences beyond the statutory maximum based on facts other than those decided by the jury.
The Court of Appeals affirmed the conviction. People v. Finkelstein, 28 N.Y.3d 345 (2016). The Court of Appeals found that the Apprendi argument was unpreserved for appellate review, and denied relief on that ground. Regarding the argument of submitting second-degree coercion as a lesser included offense, the Court of Appeals also denied relief. It noted that first-and second-degree coercion “are identical when the coercion is committed by instilling a fear that a person will be physically injured or that property will be damaged.” Id. at 348 (quoting People v. Eboli, 34 N.Y.2d 281, 285 (1974)). The Court of Appeals further noted that although the statutes' language does not provide guidance on which crime is to be charged, the Court of Appeals previously held in Eboli that the “legislative history reveals an intention that the felony of ‘coercion in the first degree . . . be charged whenever the method of coercion was to instill a fear of injury to a person or damage to property.'” Id. at 348-49 (quoting Eboli, 34 N.Y.2d at 287). Thus, “[t]he legislature, by making the misdemeanor offense “all-inclusive, ” created a “safety-value” feature “in the event an unusual factual situation should develop where the method of coercion is . . . by threat of personal or property injury, but for some reason . . . lacks the heinous quality the Legislature associated with such threats.” Id. at 349. Thus, “second-degree coercion should be charged as a lesser included offense only in the ‘unusual factual situation' in which the coercion by threat of personal or property injury lacks ‘the heinousness ordinarily associated with this manner of commission of the crime.'” Id. (quoting People v. Discala, 45 N.Y.2d 39, 43 (1978)). Depending on the case and the evidence presented, the trial court, in its discretion, “could submit second-degree coercion as a lesser included offense of coercion in the first degree if the threatened physical injury is not truly fearsome.'” Id. (quoting Discala, 45 N.Y.2d at 42)).
Judge Rivera dissented on the grounds that “it was reversible error for the court to deny an instruction on the required factual element of heinousness, and to refuse a misdemeanor second-degree coercion charge.” 28 N.Y.3d at 353.
III. Analysis
Under AEDPA, there are three sets of circumstances under which a federal court may grant a writ of habeas corpus to a state prisoner: (i) if the state court's denial of relief “resulted in a decision that was contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States;” (ii) if the state court's denial of relief “resulted in a decision that . . . involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States;” or (iii) if the state court's denial of relief “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). The phrase “clearly established Federal law, as determined by the Supreme Court of the United States” limits the law governing a habeas petitioner's claims to the holdings (not dicta) of the Supreme Court existing at the time of the relevant state court decision. Williams v. Taylor, 529 U.S. 362, 412 (2000); Leslie v. Artuz, 230 F.3d 25, 32 (2d Cir. 2000).
A state court 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 does on a materially indistinguishable set of facts. Williams, 529 U.S. at 405. The “unreasonable application of federal law” clause is independent of the “contrary to” standard and means more than simply an erroneous or incorrect application of federal law. See Id. at 411; see also Henry v. Poole, 409 F.3d 48, 68 (2d Cir. 2005). Under this clause, a federal court may grant a writ of habeas corpus “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 the prisoner's case.” Williams, 529 U.S. at 413; see also Henry, 409 F.3d at 68. A federal court reviewing a habeas petition “may permissibly conclude that the federal law has been unreasonably applied by the state court even though not all reasonable jurists would agree that the state court's application was unreasonable.” Henry, 409 F.3d at 68 (citing Williams, 529 U.S. at 409). Ultimately, the inquiry is whether the state court's application was “objectively unreasonable, ” Williams, 529 U.S. at 409, a standard that falls “somewhere between merely erroneous and unreasonable to all jurists.” Henry, 409 F.3d at 68 (internal quotation marks and citation omitted).
A. Petitioner Forfeited His Right to Represent Himself
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. This also grants defendants in criminal cases the right to represent themselves pro se. See Faretta v. California, 422 U.S. 806, 819 (1975) (“[T]he right to self-representation - to make one's own defense personally - is . . . necessarily implied by the structure of the Amendment.”). The waiver of the right to counsel must be intelligent and “an intentional relinquishment or abandonment of” the right and “must depend, in each case, upon the particular facts and circumstances surround that case, including the background, experience, and conduct of the accused.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938). “The matter of whether a defendant must be allowed to represent himself at trial requires answers to two principal questions: whether the defendant is competent to represent himself at trial, and whether the request to proceed pro se in genuine.” United States v. Barnes, 693 F.3d 261, 271 (2d Cir. 2012) (citations omitted). In addition to the requirements that the defendant be mentally competent to represent himself and that the waiver is clear and unequivocal, “a court may deny a defendant's request to proceed pro se if it finds that the request is manipulative or abusive in some other way.” Id. (quoting Wilson v. Walker, 204 F.3d 33, 38 n.4 (2d Cir. 2000)). “A judge may use willingness and ability to abide by courtroom protocol as prerequisites for accepting a defendant's waiver of his right to counsel.” United States v. Hausa, 922 F.3d 129, 135-36 (2d Cir. 2019) (quoting Davis v. Grant, 532 F.3d 132, 143 (2d Cir. 2008)) (emphasis in original) (denying right to proceed pro se where defendant's misconduct was egregious and intolerable by any measure: he hummed and screamed, and rambled incoherently; he cursed at the judge, declared him an enemy and threatened to kill him.”). Courts engage in a balancing of interests when determining whether a defendant can represent himself pro se.
The trial court in its discretion may qualify the right to represent oneself with the appointment of standby counsel to, inter alia, “assist the defendant overcoming routine obstacles that stand in the way of the defendant's achievement of his own clearly indicated goals.” Clark v. Perez, 510 F.3d 382, 395 (2d Cir. 2008) (quoting McKaskle v. Wiggins, 465 U.S. 168, 184 (1984)). “[R]espect for all of a defendant's Constitutional rights, including his Fifth Amendment right to ‘due process of law' . . . and his Sixth Amendment rights to an ‘impartial jury' and ‘to be confronted with the witnesses against him' . . . support the appointment of standby counsel.” Davis, 532 F.3d at 143. Stand-by counsel's role is limited, and it should be clear to the jury that the stand-by counsel is not speaking instead of the defendant. See Clark, 510 F.3d at 395.
Here, the record conclusively shows that Petitioner forfeited his right to represent himself. After being found in possession of the personal information of the jail warden, his attorney, and the attorney's spouse, Petitioner's privileges in accessing the law library, listening to evidence, and using the phones were revoked. This effectively nullified his ability to prepare and conduct his own defense. See Barnes, 693 F.3d at 271. The trial court, appropriately citing Faretta, found that Petitioner forfeited his right to represent himself because Petitioner lost the resources to prepare his defense. Further, the trial court's appointment of Nathanson was in essence an appointment of standby counsel. See Clark, 510 F.3d at 395. At trial, Petitioner was allowed to make his argument before Nathanson spoke and the trial court addressed Petitioner directly. Accordingly, I reject Petitioner's argument that his Sixth Amendment rights were violated.
B. There Are No. Grounds for Federal Habeas Review of the Trial Court's Decision Not to Submit a Lesser Included Offense to the Jury
Although the Supreme Court has held that in capital cases due process requires a trial court to submit jury instructions on lesser-included offenses, it has reserved the question in non-capital cases. See Beck v. Alabama, 447 U.S. 625, 637-38, 638 n.14 (1980); see also Jones v. Hoffman, 86 F.3d 46, 48 (2d Cir. 1996) (acknowledging that the Second Circuit has not yet ruled on the issue). Thus, a habeas claim that a trial court erred by not submitting lesser-included offenses in non-capital cases is not reviewable because there is no Supreme Court precedent on this issue, and thus the claim “could not have been contrary to, or an unreasonable application of, clearly established federal law.” Collins v. Greiner, No. 02-CV-4727 (JBW), 2003 WL 22953067, at *12 (E.D.N.Y. Oct. 15, 2003) (citations omitted) (denying petitioner's claim that the trial court erred by refusing the charge the jury on lesser-included offenses).
Accordingly, there are no grounds for federal habeas review in Petitioner's non-capital case that the trial court erred in not submitting a misdemeanor, second-degree coercion charge, as a lesser included offense of the felony charge of first-degree coercion.
The Court of Appeals has previously rejected this argument on its merits. See Finkelstein, 28 N.Y.3d at 348.
C. Petitioner's Argument that the Court and Prosecution Improperly Made a Finding of Heinousness is Procedurally Barred
Federal courts are generally procedurally barred from considering a state court ruling “if the decision of that court 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) (emphases added). Examples of such include failure to comply with a state's filing deadline. Id. at 743-44. A state procedural bar is “adequate” if it “is firmly established and regularly followed by the state in question” in the specific circumstances in the instant case. See Monroe v. Kuhlman, 433 F.3d 236, 241 (2d Cir. 2006). The bar is “independent, ” if the “state court must actually have relied on the procedural bar as an independent basis for its disposition of the case, ” by “clearly and expressly stat[ing] that its judgment rests on a state procedural bar.” Harris v. Reed, 489 U.S. 255, 261-64 (1989) (internal quotation marks omitted).
The procedural bar is based on the “comity and respect” that state judgments must be accorded, see House v. Bell, 547 U.S. 518, 536 (2006), and its purpose is to maintain the delicate balance of federalism by retaining a state's rights to enforce its laws and to maintain its judicial procedures as it sees fit, see Coleman, 501 U.S. at 730-31. The Second Circuit generally defers to state findings of procedural default as long as they are supported by a “fair and substantial basis” in state law. Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999). There is a “small category” of “exceptional cases in which [an] exorbitant application of a generally sound [procedural] rule renders the state ground inadequate to stop consideration of a federal question.” Lee v. Kemna, 534 U.S. 362, 376 (2002). However, principles of comity “counsel that a federal court that deems a state procedural rule inadequate should not reach that conclusion lightly or without clear support in state law.” Garcia, 188 F.3d at 77 (quotations omitted).
If a claim is procedurally barred, a district court may not review it on the merits unless the petitioner demonstrates both cause for the default and prejudice resulting therefrom, or if he demonstrates that the failure to consider the claim will result in a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750. The “fundamental miscarriage of justice” exception is narrow, reserved for situations “where a constitutional violation has probably resulted in the conviction of one who is actually innocent of the substantive offense.” Dretke v. Haley, 541 U.S. 386, 393 (2004). To establish cause for a default, a petitioner must adduce “some objective factor external to the defense” that explains why he did not raise the claim previously. See Gonzalez v. Sullivan, 934 F.2d 419, 422 (2d Cir. 1991) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). A showing of prejudice requires a petitioner to demonstrate that the failure to raise a claim previously had a substantial injurious effect on the petitioner's case such that he was denied fundamental fairness. See Carrier, 477 U.S. at 493-94. Finally, to establish a fundamental miscarriage of justice, a petitioner must demonstrate that he is “actually innocent.” See Schlup v. Delo, 513 U.S. 298, 324 (1995).
Petitioner argues that the jury should have made the determination whether his acts amounted to the level of heinousness required for first-degree coercion. He further argues that the prosecutor, by electing to charge first-degree coercion, and the court, by declining to submit second-degree coercion and instruct the jury that it had to make a finding of heinousness, co-opted the jury's role, violating the rule in Apprendi, 530 U.S. at 490. Pet. ¶ 12. The Court of Appeals denied relief on the grounds that the issue was unpreserved because Petitioner never previously objected to his conviction or sentence on Apprendi grounds. Finkelstein, 28 N.Y.3d at 348.
The Court of Appeals relied on state procedural law, New York's preservation rule, CPL § 470.05(2), which specifies that “at the very least, that any matter which a party wishes the appellate court to decide have been brought to the attention of the trial court at a time and in a way that gave the latter the opportunity to remedy the problem and thereby avert reversible error.” Id. (quoting Garcia v. Lewis, 188 F.3d 71, 78 (2d Cir. 1999)). The purpose of this rule is to apprise the trial court of the nature and scope of the contested matter so that the court may address it in a timely fashion. See Garvey v. Duncan, 485 F.3d 709, 714 (2d Cir. 2008).
Thus, the Court of Appeals's ruling rested on New York state law grounds that were both independent of the federal question and adequate to support the judgment. See Coleman, 501 U.S. at 729. The ruling is independent because the Court of Appeals stated that it was denying relief because the claim had not been preserved. See Finkelstein, 28 N.Y.3d at 348. The ruling is adequate to support the judgment because the Second Circuit has already determined that the preservation rule is an adequate ground to bar federal habeas review. See Richardson v. Greene, 497 F.3d 212, 220 (2d Cir. 2007) (“[I]n accordance with New York case law, application of the state's preservation rule is adequate - i.e. firmly established and regularly followed.”); Edwards v. Fischer, 414 F.Supp.2d 342 (S.D.N.Y. 2006). Accordingly, because the procedural bar is both independent of the federal question and adequate to support the judgment, there are no grounds for habeas review.
Petitioner has demonstrated neither a fundamental miscarriage of justice nor cause for the default and ensuring prejudice. See Coleman, 501 U.S. at 750. Petitioner makes no arguments for the failure to raise the issue at trial. Further, a review of the record does not indicate that Petitioner is actually innocent. Accordingly, Petitioner's claim for relief is procedurally barred from review.
D. The Trial Court Did Not Err in Precluding Three Witnesses from Testifying for the Defense
The “fundamental” right to present witnesses in one's own defense has “long been recognized as essential to due process.” Chambers v. Mississippi, 410 U.S. 284, 294-95, 302 (1973); Crane v. Kentucky, 476 U.S. 683, 690 (1986) (“[T]he Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense.” (internal quotation marks omitted)). The right is “not without limitation, ” however, but the limitations “may not be arbitrary or disproportionate to the interests they are designed to serve.” Rock v. Arkansas, 483 U.S. 44, 55-56 (1987). The right to present evidence “may be limited by evidentiary and procedural rules ‘designed to assure both fairness and reliability in the ascertainment of guilt and innocence.'” Scrimo v. Lee, 935 F.3d 103, 112 (quoting Chambers, 410 U.S. at 302). “The accused does not have an unfettered right to offer testimony that is competent, privileged, or otherwise inadmissible under the standard rules of evidence.” Taylor v. Illinois, 484 U.S. 400, 410 (1988). “[T]he accused, as is required of the State, must comply with established rules of . . . evidence to assure both fairness and reliability in the ascertainment of guilt and innocence.'” Taylor, 484 U.S. at 411 n.15 (quoting Chambers, 410 U.S. at 203). To establish a Sixth Amendment violation, “a defendant must demonstrate that he was deprived of the opportunity to present a witness who would have provided testimony that was both material and favorable to his defense.” United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982) (citations omitted).
The New York evidentiary rules generally prohibit prior consistent statements, i.e. “bolstering.” As the Court of Appeals has remarked, “[t]he term ‘bolstering' is used to describe the presentation in evidence of a prior consistent statement - that is, a statement that a testifying witness has previously made out of court that is in substance the same as his or her in-court testimony.” People v. Ludwig, 24 N.Y.3d 221, 230 (2014) (quoting People v. Smith, 22 N.Y.3d 462, 465 (2013)). The exclusion of prior consistent statements is “notably less prejudicial to the opposing party than other forms of hearsay, since by definition the maker of the statement has said the same thing in court as out of it, and so credibility can be tested through cross-examination.” Id.
Petitioner challenges the trial court's refusal to allow him to call: (1) Rabbi Irving Bilus, a rabbi at Rikers Island, to testify about Petitioner's and Lewis's interactions, and (2) the two parole officers, George Blackett and Gizelle Castro, to testify about statements Lewis made to them. The trial court ruled that the testimony would have been collateral and inadmissible. The Court of Appeals affirmed the ruling of the Appellate Department in rejecting Petitioner's claims on direct appeal. Finkelstein, 28 N.Y.3d at 349.
1. Rabbi Bilus
Petitioner argued that Rabbi Bilus would testify that Lewis had “willingly consent[ed]” to visiting Petitioner at Rikers Island and Rabbi Bilus witnessed Lewis and Petitioner “together at the Chanukah festival in very loving relationship.” (ECF 8-4 at 265-67). Petitioner argued that this testimony was relevant to Lewis's “state of mind” and would show that she had not been “coerced in any way.” (ECF 8-4 at 265-67). The Court denied Petitioner's request on the grounds that the testimony would have been collateral. (ECF 8-4 at 267).
At best, this testimony may have contradicted Lewis's testimony on immaterial matters, and it may not even have been contradictory to Lewis's testimony about her relationship with Petitioner. Lewis had testified at trial that when she visited Petitioner at Rikers Island she “had a good time.” (Tr. 735). The prosecutor at trial even stated, there was no “dispute that this was a relationship that had an ebb and a flow to it.” (ECF 8-4 at 267). Thus, Rabbi Bilus's statement would have been a prior consistent statement that is inadmissible under the New York Rules of Evidence. See Smith, 22 N.Y.2d at, 465-66 (2013). Petitioner does not argue another exception to the hearsay rule applies, and none does. Even if Rabbi Bilus's testimony were to have conflicted with Lewis's testimony, the proffered testimony would have only contradicted Lewis's testimony on collateral matters. Calling a witness for the sole purpose of impeaching the witness's credibility is not allowed under the New York rules. See People v. Pavao, 59 N.Y.2d 282, 288-89 (1983) (“It is well established that the party who is cross-examining a witness cannot introduce extrinsic documentary evidence or call other witnesses to contradict a witness' answers concerning collateral matters solely for the purpose of impeaching that witness's credibility.”). The trial court's determination that Rabbi Bilus's testimony would have been collateral and inadmissible is consistent with the established rules of evidence and does not violate Petitioner's Sixth Amendment rights.
2. Blackett & Castro
Petitioner additionally argues that he should have been able to call the parole officers Blackett and Castro, who would testify that Lewis “essentially lied . . . just to get [him] incarcerated.” (ECF 8-4 at 267-70). Blackett would purportedly testify that in a September 30, 2005 telephone call, Lewis told him that Petitioner had locked her out and was threatening to hurt her, which was supposedly inconsistent with Lewis's trial testimony, which Petitioner (mis)characterized as either “that she never had any threat of violence from” him or “that [it] was all a mistake.” (ECF 8-4 at 267-70). The trial court explained that Lewis had, in fact, testified that Petitioner's indirect threats and innuendos left her in fear for her life, and ruled Petitioner could not offer “extrinsic evidence” of a “prior inconsistent statement.” (ECF 8-4 at 269-72). The trial court further rejected Petitioner's argument that both officers' testimony would have been “[e]xtrinsic evidence [of Lewis's] motive to lie, ” because the court found that the officers' proposed testimony was unrelated to Lewis's motive. Petitioner was still able to argue at trial that Lewis's testimony undermined her claims of fear and coercion. (Tr. 1857-59). Like with the trial court's exclusion of Rabbi Bilus's testimony, Blackett and Castro were properly excluded because their testimony would have been collateral and inadmissible. Accordingly, Petitioner fails to establish a violation of his Sixth Amendment rights.
IV. Conclusion
For the reasons stated above, I recommend that the Petition be DENIED.
V. Objections
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days (including weekends and holidays) from receipt of this Report to file written objections. See also Fed. R. Civ. P. 6 (allowing three (3) additional days for service by mail). A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be addressed to the Honorable Vernon S. Broderick, United States District Judge. Any requests for an extension of time for filing objections must be directed to Judge Broderick. If Petitioner wishes to review, but does not have access to, cases cited herein that are reported on Westlaw, he should request copies from Respondent. See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009).
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); Frank v. 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).
The Clerk of Court is respectfully directed to mail a copy of this Report and Recommendation to the pro se Petitioner.
Respectfully submitted,