Opinion
9:13-cv-1370 (GTS/TWD)
01-18-2017
ANTHONY FUDGE, Petitioner, v. D. LACLAIR, Superintendent, Respondent.
APPEARANCES: ANTHONY FUDGE Petitioner, pro se 1208 Hawley Avenue Syracuse, New York 13203 HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Counsel for Respondent 120 Broadway New York, New York 10271 OF COUNSEL: MICHELLE ELAINE MAEROV, ESQ. Assistant Attorney General
APPEARANCES: ANTHONY FUDGE
Petitioner, pro se
1208 Hawley Avenue
Syracuse, New York 13203 HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Respondent
120 Broadway
New York, New York 10271 OF COUNSEL: MICHELLE ELAINE MAEROV, ESQ.
Assistant Attorney General THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER and REPORT-RECOMMENDATION
This action has been referred to the undersigned by the Hon. Glenn T. Suddaby, Chief United States District Judge, for a report-recommendation pursuant to 28 U.S.C. § 636(b) and Northern District of New York Local Rule 72.3(c). Petitioner Anthony Fudge, a former New York State prisoner proceeding pro se, has commenced this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. For the following reasons, the Court recommends denying the petition.
I. THE HABEAS PETITION
Petitioner challenges a judgment of conviction entered June 17, 2009, following a jury trial in Onondaga County Supreme Court, the Hon. John J. Brunetti, Acting Supreme Court Justice, presiding. (Dkt. No. 1.) Petitioner was convicted of assault in the second degree, unlawful fleeing a police officer in a motor vehicle in the third degree, resisting arrest, and criminal possession of a controlled substance in the seventh degree. (Dkt. No. 8-3 at 497-53.) Petitioner was sentenced as a second felony offender to concurrent terms of six years imprisonment, to be followed by five years of post-release supervision. Id. at 508.
Page references to documents identified by docket number are to the numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office.
The Appellate Division, Fourth Department unanimously affirmed Petitioner's conviction on March 15, 2013, and leave to appeal to the New York Court of Appeals was denied on August 7, 2013. People v. Fudge, 960 N.Y.S.2d 792 (4th Dep't 2013), lv denied, 972 N.Y.S.2d 539 (2013). Petitioner timely filed this petition on November 4, 2014. (Dkt. No. 1.)
Petitioner challenges his conviction for second-degree assault, claiming the prosecution "failed to show sufficient evidence beyond a reasonable doubt" that Onondaga County Sheriff's Deputy Terrance Fischer ("Fischer") "was in fact injured in a motor vehicle pursuit" of Petitioner on July 3, 2008. Id. at ¶ 11. In support of his petition, Petitioner relies on Fischer's grand jury testimony, Fischer's medical records, and the trial testimony of Lawrence Moloff, M.D., who treated Fischer at Crouse Hospital after Petitioner's arrest. Id. at ¶¶ 12-16. Petitioner further alleges "such issues were not challenged" by his trial counsel, "which contributed to [his] false imprisonment." Id. at ¶ 17.
Liberally construed, Petitioner argues that (1) the assault indictment and conviction were based on insufficient evidence, and (2) trial counsel was ineffective for not challenging the sufficiency of the evidence on the assault count. Id. at ¶¶ 11-18. Respondent has answered the petition, arguing that it should be dismissed on various grounds, including the merits. (Dkt. No. 8.) Petitioner has filed a traverse. (Dkt. No. 10.)
II. FACTUAL AND PROCEDURAL BACKGROUND
Petitioner's traverse succinctly and accurately summarizes the relevant facts as follows:
On July 03, 2008, in the City of Syracuse, State of New York, Petitioner was pulled over for a traffic infraction. Petitioner then, after driving away, led [the] Syracuse Police Department/Onondaga County Sheriff on a high speed car chase.Id. at ¶¶ 2-5 (emphasis in original, internal citations omitted).
Fischer, who engaged in the pursuit of Petitioner, traveled over a dirt berm, alledegly (sic) hitting his head on the interior of his patrol car, alledegly (sic) suffering a fractured C-7, broken neck.
Fischer, then got out of his patrol car, chased Mr. Lee (passenger) 50 to 75 feet, and fought with passenger. These events occurred with Fischer alledegly (sic) having a broken neck.
A. Indictment
On September 11, 2008, an Onondaga County grand jury returned a six-count indictment charging Petitioner with assault on a peace officer, police officer, fireman or emergency medical services professional (Penal Law § 120.08), criminal mischief in the third degree (Penal Law § 145.05), unlawful fleeing a police officer in a motor vehicle in the third degree (Penal Law § 270.25), resisting arrest (Penal Law § 205.50), criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03), and reckless driving (Veh. and Traf. Law § 1212). (Dkt. No. 8-2 at 35-36.)
Relevant to this action, count one of the indictment alleged that Petitioner:
on or about the 3rd day of July, 2008, at the City of Syracuse, in [Onondaga] County, intending to prevent a police officer from performing a lawful duty, caused serious physical injury to such police officer, to wit: a broken neck to Deputy Terrence Fischer.Id. at 35.
On September 29, 2008, Petitioner appeared with retained counsel, Paul G. Carey, and entered a plea of not guilty to all charges. (Dkt. No. 8-3 at 7-9.) On October 14, 2008, Petitioner filed an omnibus motion, moving for, inter alia, inspection of the grand jury minutes for legal sufficiency and dismissal of the indictment on legal defectiveness grounds. (Dkt. No. 8-2 at 65-84.) Petitioner's motion to inspect the grand jury minutes was granted, while his motion to dismiss the indictment was denied with leave to renew. Id. at 49-51. Thereafter, as a result of additional motion practice, by Decision and Order dated January 30, 2009, count one of the indictment was reduced to the lesser included offense of assault in the second degree (Penal Law § 120.05(3)), based upon the lack of legally sufficient evidence of serious physical injury to Fischer in the grand jury record. Id. at 53-59. Accordingly, count one of the amended indictment alleged that Petitioner:
on or about the 3rd day of July, 2008, at the City of Syracuse, in [Onondaga] County, intending to prevent a police officer from performing a lawful duty, caused physical injury to such police officer, to wit: an injured neck and substantial pain to Deputy Terrence Fischer.Id. at 38.
On March 24, 2009, Petitioner appeared for a status conference with newly retained counsel, Tynan Bozeman ("Bozeman"). Id. at 57. Thereafter, on May 29, 2009, Petitioner informed Judge Brunetti that he wanted to retain a new attorney because Bozeman was not meeting with him as promised. Id. at 99-101, 104. Bozeman disagreed, stating that, "I see [Petitioner] every other week it feels like." Id. at 101. Judge Brunetti advised Petitioner he could obtain new counsel if desired but his trial date of June 15, 2009, would not be adjourned. Id. at 106-07. Petitioner advised he would "get a new lawyer." Id. at 109. Petitioner did not, however, retain new counsel and Petitioner was represented by Bozeman at trial. Id. at 146.
B. Trial
Petitioner's trial began on June 15, 2009. Id. Five members of the Onondaga County Sheriff's Department involved in the pursuit testified for the People, including Fischer and his partner, Deputy Sheriff William June ("June"). Id. 277-363. Emergency room physician, Dr. Moloff, also testified for the People. Id. at 404-13. Three videotapes of the pursuit, captured by dashboard cameras installed in the patrol cars, were received into evidence. Id. at 135-37, 158, 187-88. Petitioner and his sister, JoAnne Fudge testified for the defense. Id. at 372-390, 417-47.
On June 17, 2009, Petitioner was convicted of second-degree assault, third-degree unlawful fleeing of a police officer in a motor vehicle, resisting arrest, and seventh-degree criminal possession of a controlled substance. Id. at 497-98. On July 14, 2009, Petitioner was sentenced as a second felony offender to concurrent terms of six years imprisonment on the second-degree assault count, and one-year on each of the remaining counts, to be followed by five years of post-release supervision. Id. at 508.
The jury was instructed it did not need to consider the reckless driving count if they found Petitioner guilty of unlawful feeling of a police officer in a motor vehicle. (Dkt. No. 8-3 at 463, 472.) Petitioner was found not guilty of criminal mischief in the third degree. Id. at 497.
C. Direct Appeal
With the assistance of new counsel, Petitioner appealed his conviction to the Appellate Division, Fourth Department. (Dkt. No. 8-2 at 3-23.) Petitioner argued (1) trial counsel was ineffective due to a conflict of interest, (2) he was deprived of a fair trial because the trial judge repeatedly made denigrating comments directed toward his trial counsel, and (3) the sentence was excessive and punished Petitioner for exercising his right to a trial. Id. Plaintiff also filed a pro se supplemental brief in which he argued (1) count one of the original indictment was based on false evidence that Fischer broke his neck, (2) the trial court's reduction of count one was improper, and (3) and he was found guilty of a crime not charged and voted on by the grand jury. Id. at 199-218.
The Appellate Division unanimously affirmed Petitioner's conviction. Fudge, 960 N.Y.S.2d at 792. First, the Appellate Division rejected Petitioner's contention that he was denied effective assistance of counsel, stating that "[w]hile defense counsel need not support a defendant's pro se motion for the assignment of new counsel, a defendant is denied the right to counsel when defense counsel become a witness against the defendant by taking a position adverse to the defendant in the context of such a motion." Id. at 793 (internal citations omitted). The Appellate Division held that trial counsel's "brief defense of her own performance . . . did not create a prejudicial conflict." Id. (internal citations omitted).
Second, the Appellate Division held Petitioner "failed to preserve for [its] review his further contention that he was deprived of his right to a fair trial because the court improperly denigrated defense counsel in the presence of the jury" and that "in any event," Petitioner's "contentions were without merit." Id. (internal citations omitted).
Third, regarding the challenge to the severity of Petitioner's sentence, the Appellate Division found Petitioner's contention that he was "improperly penalized for asserting his right to a trial," was "not preserved for [its] review and, in any event, that contention lacks merit." Id. (internal citations omitted). The Appellate Division held Petitioner's sentence was "not unduly harsh or severe." Id.
Lastly, after reviewing Petitioner's pro se supplemental brief, the Appellate Division held the claims were "unpreserved for [its] review, and in any event are without merit." Id. (internal citation omitted).
Petitioner sought leave to appeal to the New York Court of Appeals, raising the single issue of whether he was denied effective assistance of trial counsel where counsel took an adverse position to Petitioner's pro se motion to be provided with new counsel. Id. at 239-241. The Court of Appeals denied Petitioner's application on August 7, 2013. Fudge, 972 N.Y.S.2d at 539.
III. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant habeas corpus relief with respect to a claim adjudicated on the merits in state court only if, based upon the record before the state court, the adjudication of the claim (1) 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) was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citing 28 U.S.C. § 2254(d)(1), (2)); Premo v. Moore, 562 U.S. 115, 120-21 (2011); Schriro v. Landrigan, 550 U.S. 465, 473 (2007).
The AEDPA "imposes a highly deferential standard for evaluating state-court rulings" and "demands that state-court decisions be given the benefit of the doubt." Felkner v. Jackson, 562 U.S. 594, 598 (2011) (per curiam) (quoting Renico v. Lett, 559 U.S. 766, 1862 (2010) (internal quotation marks omitted)). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable - a substantially higher threshold." Id. at 473.
Federal habeas corpus review is limited to determining whether a petitioner is in custody in violation of the Constitution, laws, or treaties of the United States. See 28 U.S.C. §§ 2241(c), 2254(a); see Wainwright v. Goode, 464 U.S. 78, 83 (1983) ("[F]ederal courts may intervene in the state judicial process only to correct wrongs of a constitutional dimension."); Swarthout v. Cooke, 562 U.S. 216, 221 (2011) (per curiam) (holding that it is of no federal concern whether state law was correctly applied). It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (a federal habeas court cannot reexamine a state court's interpretation and application of state law). Federal habeas courts must presume that the state courts' factual findings are correct unless a petitioner rebuts that presumption with "'clear and convincing evidence.'" Schriro, 550 U.S. at 473-74 (quoting 28 U.S.C. § 2254(e)(1)).
IV. DISCUSSION
Petitioner claims that the second-degree assault indictment and conviction were not supported by legally sufficient evidence because the People did not prove that Petitioner caused Fischer to sustain a serious injury and that trial counsel was ineffective for not challenging the sufficiency of the evidence. (Dkt. No. 1 at ¶¶ 12-18.) Respondent contends Petitioner's claims are unexhausted and procedurally barred, partially noncognizable, and entirely meritless. (Dkt. No. 8-1 at 12-20.) Respondent is correct.
A. Exhaustion and Procedural Bar
An application for a writ of habeas corpus may not be granted until a prisoner has exhausted all remedies available in state court unless "there is an absence of available State corrective process" or "circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254 (b)(1)(A), (B)(I), (ii). To satisfy the exhaustion requirement, a petitioner must do so both procedurally and substantively. Procedural exhaustion requires that a petitioner raise all claims in state court prior to raising them in the habeas corpus petition. Substantive exhaustion requires that a petitioner "fairly present" each claim for habeas relief in "each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim." Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam) (quoting Picard v. Connor, 404 U.S. 270, 275 (1981))). The petitioner bears the burden of proving exhaustion. Colon v. Johnson, 19 F. Supp. 2d 112, 119-20 (S.D.N.Y. 1998) (citations omitted).
Here, Petitioner has not exhausted any of his claims. First, Petitioner never raised the sufficiency of the trial evidence of Fischer's injury in his direct appeal. (See Dkt. No. 8-2 at 3-23, 199-218.) Second, while Petitioner raised the issue of conflict-free counsel on direct appeal and sought leave to appeal to the Court of Appeals (id. at 10-13, 239-40), Petitioner did not argue trial counsel was ineffective for failing to challenge the sufficiency of the grand jury and trial evidence. See, e.g., Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991) (holding each separate factual claim made in support of an ineffective assistance of counsel claim must be fairly presented to a state court before a federal habeas court may rule on it). Third, as Respondent correctly notes, although Petitioner's pro se supplemental brief raised several issues regarding the indictment and conviction, Petitioner relied exclusively on state law and, thus, did not identify any constitutional principle at issue with the indictment. (See Dkt. No. 8-1 at 13.) As such, Petitioner has failed to fairly present his claims to the state courts for one complete round of the appellate review process. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Daye v. Att'y General of New York, 696 F.2d 186, 194 (2d Cir. 1982) (en banc).
A claim that was not fairly presented to the state courts and does not satisfy the requirements of § 2254(b)(1) may still be "deemed" exhausted by the federal habeas court "if it is clear that the state court would hold the claim procedurally barred." Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (collecting cases); Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001) ("When a claim has never been presented to a state court, a federal court may theoretically find that there is an 'absence of available State corrective process' under § 2254(b)(1)(B)(I) if it is clear that the unexhausted claim is procedurally barred by state law and, as such, its presentation in the state forum would be futile.").
Here, Petitioner cannot return to the state courts to fairly present his unexhausted claims because he has already sought direct appeal of his conviction and, in New York, a defendant is "entitled to one (and only one) appeal to the Appellate Division." Aparicio, 269 F.3d at 91. Moreover, because "New York does not otherwise permit collateral attacks on a conviction when the defendant unjustifiably failed to raise the issue on direct appeal," Petitioner could not now properly raise his claims, which are all record-based, in an Article 440 motion. Id. (citing N.Y. Crim Proc. § 440.10(2)(c)); Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995). As such, Petitioner's claims are deemed exhausted but procedurally barred. See Ramirez v. Attorney General, 280 F.3d 87, 94 (2d Cir. 2001); Spence v. Superintendent, Great Meadow Corr. Fac., 219 F.3d 162, 170 (2d Cir. 2000).
A petitioner with a claim that is deemed exhausted because state remedies are no longer available may avoid the procedural bar if he "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. 722, 750 (1991); Gutierrez v. Smith, 702 F.3d 103, 110-11 (2d Cir. 2012) (citations omitted); DiGuglielmo v. Smith, 366 F.3d 130, 135 (2d Cir. 2004) (citations omitted). "Cause" requires a showing that "some objective factor external to the defense impeded counsel's efforts to raise the claim in state court" or that the basis for a claim was not reasonably available to counsel. Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 127 (2d Cir. 1995) (internal quotation marks and citations omitted). As for a miscarriage of justice, this necessarily involves a showing that the petitioner is actually innocent. Sweet v. Bennett, 353 F.3d 135, 141 (2d Cir. 2003). A federal habeas court will reach the merits of a petitioner's procedurally barred claim only if he can establish cause and prejudice, or a miscarriage of justice. Gutierrez, 702 F.3d at 110-11.
In this case, neither is present in the record. Ineffective assistance of counsel may constitute cause, and to successfully allege it, the petitioner must raise it as a separate and meritorious claim. Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000). Even though Petitioner has raised ineffective assistance of trial counsel as a separate claim, as discussed below, he has failed to demonstrate that the claim is meritorious. See also Reyes v. Keane, 118 F.3d 136, 140 (2d Cir. 1997) ("[A] claim of cause for procedural default is not itself excepted from the doctrine of procedural default. Thus, a petitioner may not bring an ineffective assistance claim as a cause for a default when the ineffective assistance claim itself is procedurally barred.") (citation omitted). Petitioner has failed to establish cause for overcoming the procedural bar. Since cause is not established, the Court does not need to reach the inquiry on actual prejudice. Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir. 1985); Horton v. Ercole, 557 F. Supp. 2d 308, 323 (N.D.N.Y. 2008) (citations omitted).
As for a fundamental miscarriage of justice, "[t]o establish actual innocence, the petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Bousley v. U.S., 523 U.S. 614, 623 (1998) (internal quotation marks and citations omitted). Furthermore, "[i]t is important to note in this regard that 'actual innocence' means factual innocence, not mere legal sufficiency." Id. Petitioner has not met this burden. Even though Petitioner devotes the entirety of his traverse discussing Fischer's medical records, Petitioner does not allege new evidence tending to establish his actual innocence. (Dkt. No. 10.)
Based on the above, Petitioner's claims are unexhausted, deemed exhausted, and procedurally defaulted. Petitioner's claims are thus barred from habeas review.
Although Petitioner's claims are unexhausted, this Court may exercise its discretion to review and deny the claims on the merits if the claims are "plainly meritless." Contant v. Sabol, 987 F. Supp. 2d 323, 348 (S.D.N.Y. 2013) (citing Rhines v. Weber, 544 U.S. 269, 277 (2005)). As discussed below, Petitioner's claims are plainly meritless. Therefore, it is recommended that the Court exercise its discretion to review and deny Petitioner's claims on the merits.
B. Merits
Turning to the merits, Respondent agues Petitioner's challenge to the sufficiency of the trial and grand jury evidence is partially noncognizable and entirely meritless, and his related ineffective assistance of trial counsel claim is meritless. (Dkt. No. 8-1 at 14-21.) Respondent is correct.
1. Sufficiency of Grand Jury Evidence
Petitioner argues Fischer falsely testified before the grand jury on August 18, 2008, and September 2, 2008, by testifying that he "had a broken neck." (Dkt. No. 1 at ¶ 12.) Yet, the preliminary radiological report, dated July 4, 2008, indicated Fischer had "[n]o abnormalities of cervical spine. No acute abnormality of C7." Id. at ¶ 13. Accordingly, Petitioner claims Fischer's grand jury testimony was "premature, without further diagnostic treatment until two (2) months after testimony." Id. at ¶ 14.
First, a federal court will not ordinarily review a federal claim presented in a habeas petition if it has been rejected by the state courts on an "independent and adequate" state law ground. Coleman, 501 U.S. at 750; Murden v. Artuz, 497 F.3d 178, 194 (2d Cir. 2007); see also Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) ("[F]ederal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim.").
In its decision, the Appellate Division dismissed Petitioner's claim attacking the validity of the indictment on state law preservation grounds. Fudge, 960 N.Y.S.2d at 792. There, the court expressly found Petitioner's challenges to the indictment raised in his pro se supplemental brief were "unpreserved for [its] review (see [N.Y. Crim. Proc. §] 470.05[2]), and in any event are without merit." Fudge, 960 N.Y.S.2d at 792. New York's preservation rule, which forbids direct appellate review of issues not preserved at trial, has consistently been held to be an independent and adequate state law ground. Richardson v. Greene, 497 F.3d 212, 219 (2d Cir. 2007). Because the Appellate Division rejected this claim on independent and adequate state procedural grounds, federal review is barred unless Petitioner establishes cause for the default and resulting prejudice, or that a fundamental miscarriage of justice will result from the Court's failure to review the claim. See Coleman, 501 U.S. at 750.
In this case, as discussed above, Petitioner has failed to establish either of these mitigating factors in this case. Even if Petitioner could demonstrate cause, which does not appear from the record, for the reasons set forth below, he cannot show prejudice insofar as this claim is meritless. Pettigrew v. Bezio, No 1:10-CV-1053, 2012 WL 1714934, at *4 (W.D.N.Y. May 15, 2012) (concluding that a petitioner cannot show actual prejudice where the underlying defaulted claim is meritless); Stepney, 760 F.2d 40, 45 (2d Cir. 1985) (noting that federal habeas relief is unavailable as to procedurally defaulted claims unless both cause and prejudice are demonstrated); see also Williams v. Brown, No. 1:08-CV-10044, 2010 WL 850182, at *3 (S.D.N.Y. Mar. 11, 2010) (rejecting actual innocence claim where "[t]he evidence adduced by [the petitioner] in his petition solely concerns certain alleged procedural irregularities . . . none of which casts any doubt on [the petitioner's] underlying guilt"). Therefore, this claim is further barred by an independent and adequate state law ground.
Copies of unreported cases cited herein will be provided to Petitioner. See Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
In addition to being procedurally defaulted, Petitioner's claims related to the grand jury proceedings are not cognizable on federal habeas review. "[N]ew York's constitution creates a right to indictment by a grand jury for felony charges, [and] state law governs how these proceedings are to be conducted and creates the remedies for any procedural violations." Nelson v. New York, No. 10-CV-9021, 2013 WL 796276, at *2 (S.D.N.Y. Mar. 5, 2013). "A state criminal defendant has no federal right to have felony charges against him presented to a grand jury[.]" Id.; see also Bransburg v. Hayes, 408 U.S. 665, 688, n25 (1972) (the right to "indictment by grand jury is not part of the due process of law guaranteed to state criminal defendants by the Fourteenth Amendment); LanFranco v. Murray, 313 F.3d 112, 118 (2d Cir. 2002) (noting the Fifth Amendment right to an indictment by a grand jury does not apply to the states as it is not incorporated by the due process clause of the Fourteenth Amendment).
Therefore, "claims of deficiencies in . . . state grand jury proceedings are [not] cognizable in a habeas corpus proceeding." Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989); see also Nelson, 2013 WL 796276, at *2 ("[B]ecause New York State law, and not federal law, prescribes how state grand jury proceedings are to be conducted, any claimed irregularity in state grand jury proceedings is necessarily a state law claim and cannot be a basis for habeas corpus relief."); Rivers v. Costello, No. 9:08-CV-107 (TJM/RFT), 2011 WL 4592041, at *9 (N.D.N.Y. Sept. 9, 2011) (The petitioner's claim regarding the validity of evidence presented to the grand jury "does not present a federal question and is therefore not cognizable on federal habeas review.") (emphasis omitted); Louis v. Fischer, No. 04-C-2887, 2007 WL 4198255, at *22-23 (E.D.N.Y. June 5, 2007) (holding that the petitioner's claim that a witness perjured herself in a grand jury proceeding is not cognizable on federal habeas review).
For these reasons, the Court recommends denying this claim.
2. Sufficiency of Trial Evidence
Petitioner contends that his conviction for second-degree assault was not supported by legally sufficient evidence because the People failed to show sufficient evidence beyond a reasonable doubt, that Fischer was in fact injured in a motor vehicle pursuit Petitioner. (Dkt. No. 1 at ¶ 11.)
A convicted defendant seeking federal habeas review for sufficiency of evidence to support a conviction bears a heavy burden. Fama v. Commissioner of Corr. Servs., 235 F.3d 804, 811 (2d Cir. 2000); Flowers v. Fisher, 296 F. App'x 208, 210 (2d Cir. 2008); United States v. Brewer, 36 F.3d 266, 268 (2d Cir. 1994). A petitioner making this claim is entitled to habeas relief only if it is found "that upon the record evidence adduced at trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 324, (1979).
When making an analysis concerning sufficiency of the evidence, the reviewing court is required to "consider the evidence in the light most favorable to the prosecution and make all inferences in its favor[,]" and must defer to the credibility assessments made by the jury without substituting its view for that of the factfinder. Fama, 235 F.3d at 811; see also Jackson, 443 U.S. at 319. Viewing the evidence in this light, the habeas court must uphold the verdict "if any rational trier of fact could have found the essential elements of the crime [of conviction] beyond a reasonable doubt." Jackson, 443 U.S. at 319 (emphasis in original).
Under New York law, a person is guilty of second-degree assault when "[w]ith intent to prevent . . . a police officer . . . from performing a lawful duty . . . he . . . causes physical injury to such . . . police officer." N.Y. Crim. Proc. § 120.05(3). Thus, the People were required to prove beyond a reasonable doubt that (1) on or about July 3, 2008, in the City of Syracuse, Petitioner acted with intent to prevent a police officer from performing a lawful duty, (2) Fischer was a police officer and was performing a lawful duty, and (3) Petitioner caused physical injury to Fischer. (See Dkt. No. 8-3 at 466.) As set forth above, count one of the indictment charged Petitioner with causing "an injured neck and substantial pain" to Fischer. (Dkt. No. 8-2 at 38.)
In this case, the evidence at petitioner's trial was sufficient to support a reasonable finder of fact in finding that petitioner was guilty of second-degree assault. As to the first element, Petitioner testified on his own behalf, and admitted that on July 3, 2008, after being stopped for a traffic violation, he fled from the police. (Dkt. No. 8-3 at 417-18, 440, 442.) He acknowledged that, in an effort to evade the police, he drove through stop signs and stop lights. Id. at 440. He travelled in the wrong direction on one-way streets. Id. He admitted to driving through courtyards and over sidewalks. Id. at 441. Petitioner admitted driving over a dirt berm at a housing complex on the South Side of Syracuse. Id. at 442.
As to the second element, Fischer testified that he was employed as a Deputy Sheriff for the Onondaga County Sherriff's Department and was performing a lawful duty while pursuing Petitioner on July 3, 2008. Id. at 327-28.
As to the third element, New York law defines "physical injury" as "impairment of physical condition or substantial pain." Penal Law § 10.00[9]. Significantly, under New York law, "physical injury" requires no particular degree of pain or impairment. See Witt v. Racette, No. 10 Civ. 9180 (JPO), 2012 WL 3205177, at *7 (S.D.N.Y. Aug. 7, 2012) (citing People v. McDowell, 321 N.Y.S.2d 894, 895 (1971)). "So long as the pain is 'more than slight or trivial' it is considered sufficient to constitute physical injury under New York law." Id. (quoting People v. Chiddick, 834 N.Y.S.2d 710, 711-12 (2007)). In Chiddick, the Court of Appeals further held "[i]t is also relevant that [the victim] sought medical treatment . . . an indication that his pain was significant." 834 N.Y.S.2d at 712.
Fischer testified his head struck the interior roof of his patrol car while following Petitioner's vehicle over the dirt berm. (Dkt. No. 8-3 at 330-31.) He testified that he experienced "really bad" pain, rated about an "8" on a scale of 1 to 10. Id. at 331. After Petitioner's arrest, Fischer and June sought emergency medical treatment at Crouse Hospital. Id. 332, 336. Fischer was examined by Dr. Moloff, administered morphine, and placed in a cervical collar. Id. at 336, 337-38, 339. Fischer spent the night at the hospital and underwent an MRI, a CT scan, and x-rays, and was told he had fractured his seventh cervical vertebrae. Id. at 336-37.
Fischer testified that he took pain medication twice daily for the next three weeks and that he wore the cervical collar for three months. Id. at 338. Fischer underwent a month of physical therapy, and missed five and one-half months of work because he could not drive or turn his head. Id. at 338-39. Fischer testified that months after the incident, he still experienced occasional pain. Id. at 339-40. In light of the above, the evidence presented at trial was more than sufficient for a rational trier of fact to conclude that the essential elements of the crime were present beyond a reasonable doubt.
Petitioner raises several arguments contesting the veracity of Fischer's testimony and challenging the medical evidence of Fischer's neck injury. (See Dkt. No. 10 at ¶¶ 7-9.) However, these arguments merely contest the credibility of the prosecution's evidence, and are insufficient to disturb the verdict. See Marshall v. Lonberger, 459 U.S. 422, 432-35 (1983) (holding that a federal court reviewing a habeas petition may not revisit the fact-finder's credibility determinations); Vera v. Hanslmaier, 928 F. Supp. 278, 284 (S.D.N.Y. 1996) (noting that a habeas court is not free to make credibility judgments about the evidence or weigh conflicting testimony). Here, as in many cases,
the jury's decision was largely a matter of choosing whether to believe [Petitioner's] version of the events or to believe the version offered by the State. The jury chose to believe the State's witnesses, despite the inconsistencies in the evidence . . . . We cannot say that no reasonable jury could have found guilt beyond a reasonable doubt on all the evidence.Gruttola v. Hammock, 639 F.2d 922, 928 (2d Cir. 1981).
Considering the evidence presented at trial, this Court is not persuaded that "it is more likely than not that no reasonable juror would have convicted." Schlup, 513 U.S. at 329. Accordingly, the Court recommends denying this claim.
3. Ineffective Assistance of Counsel
Petitioner contends trial counsel was ineffective for failing to challenge the sufficiency of evidence regarding Fischer's injury. (Dkt. No. 1 at ¶ 17.) To prevail on an ineffective assistance of counsel claim, a habeas petitioner must: (1) show that counsel's performance fell below an "objective standard of reasonableness" under "prevailing professional norms," and (2) demonstrate that the alleged inefficiency resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
Under the first prong of Strickland, the reviewing court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." United States v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990) (quoting Strickland, 466 U.S. at 689). Regarding the second prong of the test, the question is whether there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. A reasonable probability is one sufficient to undermine confidence in the outcome of the trial or appeal. Id. Under Strickland, "counsel should be strongly presumed to have rendered adequate assistance and made all decisions in the exercise of reasonable professional judgment." Id. at 690.
Petitioner contends trial counsel rendered ineffective assistance by failing to challenge the assault indictment. (Dkt. No. 1 at ¶ 17.) However, claims regarding errors in grand jury procedure are not cognizable on federal habeas review where the petitioner was found guilty by a petit jury. King v. Phillips, No. 03-CV-6045 (NGG) (RB), 2009 WL 891763, at *3 (E.D.N.Y. Mar. 31, 2009) (citing, inter alia, United States v. Eltayib, 88 F.3d 157, 173 (2d Cir. 1996) (holding that a claim of prosecutorial misconduct failed because "a guilty verdict by a petit jury remedies any possible defects in the grand jury indictment")); Smith v. Edwards, No. 98 Civ. 7962(DLC), 2000 WL 709005, at *8 n.2 (S.D.N.Y. May 31, 2000) (rejecting claim that trial counsel failed to object to grand jury testimony as noncognizable on federal habeas review where the petitioner was found guilty by a petit jury). Accordingly, trial counsel's failure to challenge the sufficiency of the grand jury evidence does not constitute ineffective assistance of counsel. See, e.g., LanFranco, 313 F.3d at 118-20.
Petitioner further contends trial counsel failed to challenge the sufficiency of the conviction of second-degree assault. (Dkt. No. 1 at ¶ 17.) Respondent correctly argues this claim is obviously meritless because trial counsel moved for an order of dismissal:
Your Honor, I would like to make a motion for trial order of dismissal. I feel that the People have failed to meet their burden that there was substantial pain or a physical impairment. In People v. Calatano, it was held that evidence insufficient [sic] when officer received very substantial blows to the chest, that it hurt a lot, but it failed to interfere with his continuing effort to apprehend the defendant.(Dkt. No. 8-3 at 269.)
In any event, a review of the record reveals Petitioner's trial counsel comported with constitutional standards and rendered effective assistance overall. See Harrington v. Richter, 562 U.S 86, 111 (2011) ("it is difficult to establish ineffective assistance when counsel's overall performance indicates active and capable advocacy"). Trial counsel delivered a persuasive opening argument, arguing the People would not be able to meet their burden of proof on the assault charged, because "[n]o one got injured." (Dkt. No. 8-3 at 268.) Trial counsel explained that Fischer's injury did not interfere with his lawful duties and, in fact, after allegedly striking his head, Fischer "jumped out of the car, ran and even caught the passenger." Id. at 269. Trial counsel cross-examined all of the People's witnesses. Indeed, as discussed above, trial counsel moved for an order of dismissal of the assault charge, arguing the People failed to meet their burden of establishing "physical injury" and also moved to dismiss the criminal mischief count. Id. at 391, 398. During closing arguments, trial counsel again argued Fischer "was not hurt enough" because Fischer was able to run and apprehend the suspect after his alleged injury, and thus, Fischer did not sustain substantial pain and physical impairment. Id. at 451-56. Trial counsel ultimately secured an acquittal on the criminal mischief count. Id. at 497. Finally, at sentencing, trial counsel argued for leniency. Id. at 506-07.
In light of the above, Petitioner's claim of ineffective assistance of counsel is without merit and the Court recommends denying this claim.
WHEREFORE, based on the foregoing, it is hereby
RECOMMENDED that the petition for a writ of habeas corpus (Dkt. No. 1) be DENIED and DISMISSED; and it is further
RECOMMENDED that no certificate of appealability should be issued with respect to any of the claims set forth in the petition as Petitioner has not made "a substantial showing of the denial of a constitutional right" pursuant to 28 U.S .C. § 2253(c)(2); and it is further
ORDERED that the Clerk's Office provide Petitioner a copy of this Order and Report-Recommendation, along with copies of unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of HHS, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Dated: January 18, 2017
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge