Opinion
19 Civ. 2910 (VB)(JCM)
07-28-2023
LARRY GANTT, JR., Petitioner, v. CHRISTOPHER MILLER, Respondent.
REPORT AND RECOMMENDATION
JUDITH C. McCARTHY UNITED STATES MAGISTRATE JUDGE
To the Honorable Vincent L. Briccetti, United States District Judge:
Petitioner Larry Gantt, Jr. (“Petitioner”), proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (“§ 2254”) on March 11, 2019 in the Eastern District of New York (Docket No. 1 at 22) (“Petition”). The Petition was transferred to the Southern District of New York on March 29, 2019. (Docket No. 4). Respondent opposed the Petition on July 22, 2019, (Docket No. 16) (“Resp't Br.”), and Petitioner replied on February 17, 2021, (Docket No. 22) (“Pet'r Reply”). For the reasons set forth herein, I respectfully recommend that the Petition be denied in its entirety.
A pro se prisoner's papers are deemed filed at the time he or she delivers them to prison authorities for forwarding to the court clerk. Houston v. Lack, 487 U.S. 266, 276 (1988); see also Walker v. Jastremski, 430 F.3d 560 (2d Cir. 2005) (analyzing the “Houston prison mailbox rule”). Petitioner certified that he delivered his Petition to prison authorities for mailing on March 11, 2019. (See Petition at 22). Because the timeliness of the Petition is not challenged, the Court adopts Petitioner's dates for this filing and all other filings discussed herein.
I. BACKGROUND
A. The Crimes and Indictment
Petitioner's convictions arise out of a stabbing that occurred on November 3, 2012 at approximately 2:30 a.m. outside of the Dry Dock nightclub (“Dry Dock”) located at 90 Broadway in Newburgh, New York. (Trial Tr. at 5-16). Construing the evidence in the light most favorable to the State, see, e.g., Murden v. Artuz, 497 F.3d 178, 184 (2d Cir. 2007), the following facts were established at trial.
Refers to the transcript of Petitioner's trial, which began on November 6, 2013.
In the early morning of November 3, 2012, Petitioner, his brother Malcolm Melvin (“Melvin”), and a friend named Mindu Allah (“Allah”) entered the Dry Dock. (Trial Tr. at 188081). The men were dancing when they noticed another man on the dance floor who appeared inebriated and was “making wild gestures.” (Id. at 1887). The seemingly drunk man told Petitioner and his friends to “back . . . up” and then “forceful[ly]” pushed Petitioner. (Id. at 1888-89). Petitioner pushed the man in the face. (Id. at 1890). Allah grabbed Petitioner and Melvin suggested that the group leave the club. (Id.). Petitioner heard a “ruckus” toward the back of the nightclub and observed people running off the dance floor. (Id.). The trio quickly exited the club and ran to Petitioner's car. (Id. at 1891). While in the car, Melvin “complain[ed]” to Petitioner that they needed to go back to the Dry Dock to retrieve his friend. (Id. at 1893). When Petitioner refused, Melvin jumped out of the car and ran toward the nightclub. (Id.). Petitioner followed him to the club, outside of which a crowd of between eighty-and-one-hundred people had formed. (Id. at 559, 1893).
Police Officer (“Officer”) Kevin Lahar (“K. Lahar”) was the first to respond to the scene at the Dry Dock. (Id. at 85). After noticing that fights were breaking out, K. Lahar immediately called for backup, (id. at 574), prompting Detective Michael Pitt (“Pitt”) and his partner Officer Eric Henderson (“Henderson”), to respond to the Dry Dock, (May 21, 2013 Tr. at 5-7) (“Pretrial Hr'g Tr.”). Thereafter, Officer William Lahar (“W. Lahar”), and Officer Robert Pedrick (“Pedrick”) arrived on the scene. (Trial Tr. at 579).
Detective Pitt and Officer K. Lahar observed approximately six-to-ten individuals fighting in a semicircle and recognized Petitioner striking a man he later learned to be Adrian Hargrove Jr. (“Hargrove Jr.”) in the chest and stomach. (Pretrial Hr'g Tr. at 9). Officer Henderson, who was in uniform, shouted “Police!” and Detective Pitt drew his taser. (Trial Tr. at 564, 1149, 1153). Nevertheless, Petitioner continued to strike Hangrove Jr., even as Hangrove Jr. lay bleeding on the ground. (Id. at 1152, 1154, 1400). Officer Henderson grabbed Petitioner and pulled him off Hargrove Jr. (Id. at 1156, 1403). Petitioner tried to run eastbound toward Grand Street, but Officer Henderson and Detective Pitt stopped him. (Id. at 1156-59). Officer Henderson tackled Petitioner to the ground, straddling Petitioner with his knees, while Petitioner lay flat on his back. (Id. at 1159-60). Officer Henderson and Petitioner engaged in a “fist fight,” and Officer Henderson “threw punches” at Petitioner to defend himself. (Id. at 1413-14).
Officer Henderson observed a blade in Petitioner's left hand and seized Petitioner's wrist to avoid being stabbed. (Id. at 1426). Petitioner moved the knife into his right hand and Officer Henderson quickly squeezed Petitioner's right wrist to extricate the knife. (Id. at 1427).
Moments later, Officer Henderson observed “large amounts of blood forming on the back side of [his hand], and shouted to Detective Pitt: “Mike, Mike, I'm hit, am I hit[?]” (Id. at 1429, 1162). Detective Pitt noticed blood “pouring out” of Officer Henderson's neck. (Id. at 1432, 1162-63). Officer Henderson realized that Petitioner had stabbed him and described feeling as if “water [was] being poured down his neck.” (Id. at 1430).
Petitioner was handcuffed by Officer James Cerrone (“Cerrone”). (Id. at 1166). Detective Pitt, Sergeant Aaron Weaver (“Weaver”), and Officer Cerrone observed a bloodied knife about two feet from where the scuffle between Petitioner and Officer Henderson had ensued. (Id. at 887, 1019, 1172). Officer Henderson recognized the knife with which he was stabbed, which was shown to the jury, (id. at 1445-46), and which contained Petitioner's, Henderson's, and Hargrove Jr.'s DNA, (id. at 1132, 1135-36).
Petitioner was severely injured when he arrived at the hospital. (Pretrial Hr'g Tr. at 4144). He was stabbed six-to-seven times in the head, back, hand, and under his armpit. (Id. at 44). Petitioner, Hargrove Jr., and Officer Henderson were transferred to Westchester Medical Center (“WMC”) later that day. (Id. at 82). At approximately 2:30 p.m. on November 3, 2012, Detective Joseph Rutigliano (“Rutigliano”), Officer Thomas Nafey (“Nafey”), and Lieutenant Daniel Cameron (“Cameron”) went to WMC to interview Petitioner and others involved in the incident. (Trial Tr. at 82, 1293-94). After obtaining clearance from medical staff, the officers went to Petitioner's hospital room to speak with him. (Id. at 1297). Immediately after introducing themselves, Petitioner “apologize[d]” to the men “for stabbing [their] officer” and stated that “he didn't mean to do that at any particular time.” (Id. at 1298). The police interrupted Petitioner to read him Miranda warnings. (Id. at 1299-300). Petitioner agreed to speak with the officers. (Id. at 1330). Petitioner admitted that after Officer Henderson had pinned him to the ground, he grabbed a knife “and he just started swinging it” out of fear of “los[ing] [his] life.” (Id. at 1314-15). He also stated that he “believe[d] [Officer Henderson] had a vest or something that said ‘police.'” (Id. at 1314). After being released from the hospital, Petitioner was taken into custody. (Id. at 541-47).
B. Pretrial Hearings
On May 15, 2013, the Honorable Nicholas De Rosa granted the defense's motions for, inter alia, Wade, Sandoval, and Ventimiglia hearings, (Docket No. 16-1 at 58-62), which were held on May 15, 2013. Among other things, Judge De Rosa found that the statements Petitioner made to Officer Nafety, Detective Rutigliano, and Lieutenant Cameron, including Petitioner's apology for stabbing Officer Henderson, were admissible. (Docket No. 16-1 at 72-73).
C. Trial and Verdict
The Honorable Nicholas DeRosa presided over the trial. (See, e.g., Trial Tr. at 38). Jury selection took place on November 6, 7, and 8, 2013. (Id. at 1-407). Trial commenced on November 8, 2013 with opening statements. (Id. at 463-523). In support of its case-in-chief, the People called: Officer Robert Donahue, (id. at 540-47); Officer Andrew Ghiold, (id. at 547-55); Sergeant Peter Van Cura, (id. at 555-58); Officer K. Lahar, (id. at 559-656); Officer W. Lahar, (id. at 657-704); Detective Peter Frederick, (id. at 706-79); Kim Hardwick, (id. at 780-823); Detective Kevin Burns, (id. at 824-64); Officer Anthony Giudice, (id. at 864-68); Sergeant Weaver, (id. at 868-939); Dr. Hannah Brooks, (id. at 944-87); Officer Pedrick, (id. at 987-98); Officer Cerrone, (id. at 998-1070); John Thomas, (id. at 1068-71); Peter Lewis, (id. at 107191); Daniel Myers, (id. at 1091-112); Kurt Sickinger, (id. at 1112-38); Detective Pitt, (id. at 1140-283); Detective Nafey, (id. at 1284-369); and Officer Henderson, (id. at 1371-538).
On November 12, 2013, defense counsel moved for an in camera inspection of Detective Pitt's and Officer Henderson's disciplinary records. (Id. at 535-39). Counsel argued that she discovered three “civil lawsuits of excessive force [and] . . . falsifying police reports” brought against Detective Pitt on PACER. (Id. at 535-36, 538). The court reserved decision on the issue. (Id. at 539). Defense counsel raised the issue again later in the trial. (Id. at 753). The court denied counsel's motion to review Detective Pitt's disciplinary records in camera, finding that “[t]he mere fact that [Detective Pitt had] been sued before is not evidence of anything, and not an indication of anything. A police officer gets sued all the time.” (Id. at 753-54). The trial court did not rule with respect to Officer Henderson's disciplinary record. (See id.).
PACER stands for “Public Access to Court Electronic Records” and “is an electronic public access service for United States federal court documents.” PACER, https://pacer.uscourts.gov/ (last visited July 28, 2023).
The People rested on November 19, 2013. (Id. at 1536). The defense moved to dismiss the indictment in its entirety for failure to state a prima facie case, which was denied. (Id. at 1537). Petitioner called the following witnesses in support of his defense: Catherine Torres, (id. at 1540-75); Dominick McKenzie, (id. at 1576-609); Melvin, (id. at 1610-54); Latricia Hines, (id. at 1657-54); Amanda Cole, (id. at 1731-80); Durrell Johnson, (id. at 1781-813); Demetrius Ware, (id. at 1814-40); LaMont Collins, (id. at 1841-59); and Hargrove Jr., (id. at 1863-68). Petitioner testified in his own defense. (Id. at 1869-2053). Both sides delivered closing statements on November 22, 2013, (id. at 2066-214), and the jury was charged on the same day, (id. at 2215-304).
After deliberating for five days, the jury reached a verdict on December 2, 2013, finding Petitioner guilty of First Degree Attempted Assault, Attempted Aggravated Assault Upon a Police Officer, two counts of Second Degree Assault, and Third Degree Criminal Possession of a Weapon. (Id. at 2411-13). The trial court held a prior felony offender hearing on March 27, 2014. (Docket No. 16-29). On April 30, 2014, Petitioner was sentenced to fifteen-years imprisonment plus five years of post-release supervision for the Assault and Aggregated Assault Upon a Police Officer convictions, as well as seven-years imprisonment plus five years of postrelease supervision for Attempted Assault, and an indeterminate sentence of three-and-a-half to seven-years imprisonment for Criminal Possession of a Weapon. (Id. at 47).
All the counts for which Petitioner was found guilty related to crimes committed against Officer Henderson and, thus, are the basis of the instant Petition. (See, e.g., April 30, 2014 Hr'g Tr. at 18-19). Therefore, the Court does not include Petitioner's alleged crimes against other individuals at the Dry Dock on November 3, 2012 in this Report & Recommendation.
D. Direct Appeal
Petitioner filed a direct appeal through counsel on December 21, 2016 arguing that: (1) the trial court erroneously failed to instruct the jury that an acquittal of Petitioner on the top count based on a justification defense precluded subsequent deliberations; (2) the trial court erred by denying Petitioner's request for a state-funded psychological expert; and (3) the trial court erred when it precluded defense counsel from examining Detective Pitt about several civil lawsuits involving allegations of excessive force and falsifying police records, and by denying the defense's request to subpoena Detective Pitt's and Officer Henderson's disciplinary records. (Docket No. 16-2 at 2-56). The People submitted a brief in opposition on July 19, 2017, (Docket No. 16-2 at 59-105), and Petitioner replied on July 27, 2017, (Docket No. 16-3 at 2-17). The New York Supreme Court Appellate Division for the Second Department (“Appellate Division”) denied Petitioner's appeal in its entirety on March 28, 2018. People v. Ganntt, 159 A.D.3d 986 (2d Dep't 2018). Petitioner filed leave to appeal to the New York State Court of Appeals (“Court of Appeals”) on April 27, 2018, (Docket No. 16-3 at 29-32), which the People opposed, (id. at 26). The Court of Appeals denied Petitioner's motion for leave on June 21, 2018. People v. Ganntt, 31 N.Y.3d 1117 (2018).
Petitioner's last name was misspelled in his submissions to the Appellate Division due to a typographic error by appellate counsel. (See Docket No. 16-2 at 28 (letter from Court of Appeals to defense counsel stating that “[t]he spelling of the defendant's name in the order sought to be appealed differs from that in other papers submitted on the application,” and instructing counsel to contact the clerk's office to fix this error). Petitioner's last name is spelled “Gantt,” not “Ganntt.”
E. Petitioner's § 440.20 Motion
On February 4, 2019, Petitioner moved to set aside his sentence pursuant to New York Criminal Procedure Law (“N.Y.C.P.L.”) § 440.20(1)(4), on the ground that Petitioner's sentence violated New York Penal Law § 70.04(3)(B), (Docket No. 16-3 at 35-42), which the People opposed, (id. at 44-47). The Honorable William L. DeProspo denied Petitioner's motion on May 20, 2019. (Id. at 48-50).
F. Federal Habeas Corpus Proceedings
Petitioner filed his Petition on March 11, 2019. (Petition at 22). Respondent opposed the Petition on July 22, 2019 (Resp't Br.), and Petitioner replied on February 17, 2021, (“Pet'r Reply”).
II. APPLICABLE LAW
“The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).” Harrington v. Richter, 562 U.S. 86, 97 (2011). “Before a federal district court may review the merits of a state court criminal judgment in a habeas corpus action, the court must first determine whether the petitioner has complied with the procedural requirements set forth in 28 U.S.C. §§ 2244 and 2254.” Visich v. Walsh, No. 10 Civ. 4160 (ER)(PED), 2013 WL 3388953, at *9 (S.D.N.Y. July 3, 2013). The procedural and substantive standards are summarized below.
If Petitioner does not have access to cases cited herein that are available only by electronic database, then he may request copies from Respondent's counsel. See Local Civ. R. 7.2 (“Upon request, counsel shall provide the pro se litigant with copies of such unpublished cases and other authorities as are cited in a decision of the Court and were not previously cited by any party.”).
A. Exhaustion as a Procedural Bar
A habeas petition may not be granted unless the petitioner has exhausted his claims in state court. See 28 U.S.C. § 2254(b). As the statute prescribes:
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that-
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.28 U.S.C. § 2254(b)-(c).
Exhaustion requires a prisoner to have “fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts.” Turner v. Artuz, 262 F.3d 118, 123 (2d Cir. 2001) (internal quotations omitted). If a petitioner “cites to specific provisions of the U.S. Constitution in his state court brief, the petitioner has fairly presented his constitutional claim to the state court.” Davis v. Strack, 270 F.3d 111, 122 (2d Cir. 2001); see also Reid v. Senkowski, 961 F.2d 374, 376 (2d Cir. 1992) (even “a minimal reference to the Fourteenth Amendment” presents a federal constitutional claim to the state courts). However, a petitioner may fairly present his claim even without citing to the U.S. Constitution. See Daye v. Att'y Gen. of State of N.Y., 696 F.2d 186, 194 (2d Cir. 1982). Fair presentation includes petitioning for discretionary review in the state's highest appellate court. See O'Sullivan v. Boerckel, 526 U.S. 838, 839-40 (1999) (“[A] state prisoner must present his claims to a state supreme court in a petition for discretionary review in order to satisfy the exhaustion requirement[.]”).
“[T]he ways in which a state defendant may fairly present to the state courts the constitutional nature of his claim, even without citing chapter and verse of the Constitution, include (a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.” Daye, 696 F.2d at 194.
However, “a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred.” Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (internal quotations omitted). In such cases, although the claim is technically unexhausted, the district court may deem the claim to be exhausted but procedurally barred from habeas review. See id. at 140 (“[A] claim is procedurally defaulted for the purposes of federal habeas review where ‘the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.'” (quoting Coleman v. Thompson, 501 U.S. 722, 735 (1991)).
Under New York law, defendants are permitted only one direct appeal. See Dasney v. People of the State of New York, No. 15 Civ. 5734 (RJS), 2017 WL 253488, at *5 (S.D.N.Y. Jan. 19, 2017) (citing N.Y. Ct. App. R. § 500.20); see also Roa v. Portuondo, 548 F.Supp.2d 56, 78 (S.D.N.Y. 2008) (“Any attempt to raise these claims at this stage as part of a direct appeal would be rejected because a criminal defendant is entitled to only one direct appeal and one application for leave to appeal to the Court of Appeals.”). Petitioners must raise record-based claims by direct appeal rather than by a collateral motion in state court. See, e.g., O'Kane v. Kirkpatrick, No. 09 Civ. 05167 (HB)(THK), 2011 WL 3809945, at *7 (S.D.N.Y. Feb. 15, 2011) (“[A]ll claims that are record-based must be raised in a direct appeals. It is only when a defendant's claim hinges upon facts outside the trial record, that he may collaterally attack his conviction by bringing a claim under CPL § 440.10.”), report and recommendation adopted, 2011 WL 3918158 (S.D.N.Y. Aug. 25, 2011); Lowman v. New York, No. 09 Civ. 0058T, 2011 WL 90996, at *9 (W.D.N.Y. Jan. 11, 2011) (“Collateral review of this claim - by way of another CPL § 440 motion - is also barred because the claim is a matter of record that could have been raised on direct appeal, but unjustifiably was not.”) (citing N.Y.C.P.L. § 440.10(2)(c)).
This rule states, in relevant part, that a letter application for leave to appeal “shall indicate . . . (2) that no application for the same relief has been addressed to a justice of the Appellate Division, as only one application is available.” N.Y. Ct. App. R. 500.20(a) (emphasis added).
N.Y.C.P.L. § 440.10(2)(c) states, in relevant part, that a court must deny a § 440.10 motion to vacate judgment when “[a]lthough sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him.”
B. Adequate and Independent State Grounds as a Procedural Bar
Furthermore, “[i]t is well established that federal courts will not review questions of federal law presented in a habeas petition when the state court's decision rests upon a state-law ground that ‘is independent of the federal question and adequate to support the judgment.'” Cone v. Bell, 556 U.S. 449, 465 (2009) (quoting Coleman, 501 U.S. at 729); see also Downs v. Lape, 657 F.3d 97, 23 (2d Cir. 2011). This preclusion applies even if the state court alternatively rules on the merits of the federal claim, so long as there is an adequate and independent state ground that would bar the claim in state court. See, e.g., Harris v. Reed, 489 U.S. 255, 264 n.10 (1989); Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999).
“A state court decision will be ‘independent' when it ‘fairly appears' to rest primarily on state law.” Taylor v. Connelly, 18 F.Supp.3d 242, 253 (E.D.N.Y. 2014) (quoting Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir. 2006)). In the normal case, a ground is adequate “only if it is based on a rule that is ‘firmly established and regularly followed' by the state in question.” Garcia, 188 F.3d at 77 (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)); see also Cotto v. Herbert, 331 F.3d 217, 239 (2d Cir. 2003). A decision that a state procedural rule is inadequate should not be made “lightly or without clear support in state law.” Garcia, 188 F.3d at 77 (internal quotations omitted).
To avoid procedural default of an unexhausted claim or a claim decided on an adequate and independent state ground, a petitioner must “show ‘cause' for the default and ‘prejudice attributable thereto,' . . . or demonstrate that failure to consider the federal claim will result in a ‘fundamental miscarriage of justice.'” Harris, 489 U.S. at 262 (quoting Murray v. Carrier, 477 U.S. 478, 485 (1986)). “The cause requirement is met if some objective factor, external to [the] [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). The petitioner may establish prejudice by showing that the alleged trial errors “substantially] disadvantage[]” the petitioner and “infect[ed] his entire trial with error of constitutional dimensions.” See id. at 112. A fundamental miscarriage of justice is established where a petitioner demonstrates that he “is actually innocent of the crime for which he has been convicted.” Dunham v. Travis, 313 F.3d 724, 729 (2d Cir. 2002)).
C. AEDPA Standard of Review
When a federal court reaches the merits of a habeas petition, AEDPA prescribes a “highly deferential” standard for reviewing state court rulings. Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997); see also Fischer v. Smith, 780 F.3d 556, 561 (2d Cir. 2015). AEDPA provides that an application for a writ of habeas corpus:
shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established 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 in the State court proceeding.28 U.S.C. § 2254(d)(1)-(2).
Courts have interpreted the phrase “adjudicated on the merits” in AEDPA as meaning that a state court “(1) dispose[d] of the claim on the merits, and (2) reduce[d] its disposition to judgment.” Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001) (internal quotation marks omitted). Courts examine the “last reasoned decision” by the state courts in determining whether a federal claim was adjudicated on the merits. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (“Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.”). “[W]hen the state court addresses some of the claims raised by a defendant but not a claim that is later raised in a federal habeas proceeding,” the federal habeas court must assume the claim was adjudicated on the merits. Johnson v. Williams, 568 U.S. 289, 292 (2013). This “presumption is a strong one that may be rebutted only in unusual circumstances.” Id. at 302.
If a state court adjudicates a federal claim on the merits, the Court must apply AEDPA deference to that state court ruling. 28 U.S.C. § 2254(d)(1)-(2). In the context of AEDPA deference, the phrase “clearly established Federal law” means “the holdings, as opposed to the dicta, of [the Supreme Court of the United States'] decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 365 (2000). “A state court decision is contrary to such clearly established federal law if it ‘applies a rule that contradicts the governing law set forth in the Supreme Court's cases or if the state court confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from its precedent.'” Lewis v. Conn. Comm'r of Corr., 790 F.3d 109, 121 (2d Cir. 2015) (quoting Boyette v. Lefevre, 246 F.3d 76, 90 (2d Cir. 2001)).
If, by contrast, a state court does not adjudicate a federal claim on the merits, “AEDPA deference is not required. . . . [and] conclusions of law and mixed findings of fact and conclusions of law are reviewed de novo.” DeBerry v. Portuondo, 403 F.3d 57, 66-67 (2d Cir. 2005).
A state court decision involves an “unreasonable application” of Supreme Court precedent if: (1) “the state court identifies the correct governing legal rule from [Supreme Court] cases but unreasonably applies it to the facts of the particular state prisoner's case,” or (2) “the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Williams, 529 U.S. at 407. For a federal court to find a state court's application of Supreme Court precedent unreasonable, the state court's decision must have been more than “incorrect or erroneous” -- it must have been “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003). In other words, “[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 665 (2004)). However, “the trial court's decision need not teeter on ‘judicial incompetence' to warrant relief under § 2254(d).” Alvarez v. Ercole, 763 F.3d 223, 229 (2d Cir. 2014) (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)). If a state court decision does not contain reasons for the dismissal of a defendant's federal claim, the Court must “consider ‘what arguments or theories . . . could have supported[] the state court's decision,' and may grant habeas only if ‘fairminded jurists could [not] disagree that those arguments or theories are inconsistent with the holding in a prior decision of' the Supreme Court.” Lynch v. Superintendent Dolce, 789 F.3d 303, 311 (2d Cir. 2015) (alterations in original) (quoting Harrington, 562 U.S. at 102).
AEDPA “sets forth a precondition to the grant of habeas relief . . . not an entitlement to it.” Fry v. Pliler, 551 U.S. 112, 119 (2007) (“‘a writ of habeas corpus . . . shall not be granted' unless the conditions of § 2254(d) are met”) (quoting 28 U.S.C. § 2254(d)). Therefore, even if a state court decision is “contrary to, or involved an unreasonable application of” federal law, the petitioner still carries “the ultimate burden of proving by a preponderance of the evidence that his constitutional rights have been violated.” Epps v. Poole, 687 F.3d 46, 50 (2d Cir. 2012); 28 U.S.C. § 2254(d).
III. DISCUSSION
Petitioner argues that he is entitled to habeas relief because the trial court improperly denied his request (1) for an in camera review of Detective Pitt's disciplinary file, and (2) to cross-examine Detective Pitt and Officer Henderson about supposed misconduct. (Id. at 19- 21). Respondent addresses the foregoing claims simultaneously in its briefing. (See Resp't Br. at 34-38). The Court will address each claim in turn.
Petitioner also argues in his Petition that he is entitled to habeas relief because the trial court failed to properly instruct the jury on Petitioner's justification defense, violating his Due Process rights. (Petition at 16-19). In his Reply, Petitioner “concede[d] that [Respondent] is correct ... that challenges to the trial court's jury instructions appear to be barred from habeas review, based upon the N.Y. State contemporaneous objection rule.” (Pet'r Reply at 2). Accordingly, Petitioner “respectfully withdr[ew] this claim.” (Id.). As such, this claim is not presently before the Court. See Moore v. Yehl, Case # 21-CV-6760-FPG, 2023 WL 2540399, at *10 n.5 (W.D.N.Y. Mar. 16, 2023) (where petitioner admitted that claims had not been properly exhausted, court deemed such claims “withdrawn” and held that “those claims-while technically contained in the petition-are not presently before the Court.”). Regardless, the Court agrees with the parties that Petitioner's justification-charge claim is procedurally barred, as it was decided on an adequate and independent state ground, specifically, New York's “contemporaneous objection” rule, which is both “firmly established and regularly followed.” See Downs, 657 F.3d at 102 (quoting Walker v. Martin, 562 U.S. 307, 316 (2011)). Nor has Petitioner argued cause and prejudice to overcome this default. See Campino v. United States, 968 F.2d 187, 190 (2d Cir. 1992); (see generally Petition; Pet'r Reply).
A. Denial of Petitioner's Request to Cross-Examine Detective Pitt and Officer Henderson About Then-Pending Lawsuits
Petitioner maintains that the state court violated his Sixth Amendment right to confront his accusers by denying his motion to cross-examine Detective Pitt and Officer Henderson about then-pending lawsuits. (Petition at 19-21; Pet'r Reply at 2-5). Respondent argues that Petitioner's claim is unexhausted and fails on the merits. (Resp't Br. at 34-38). The Court finds that Petitioner's claim presents an issue of state law and is, therefore, not cognizable on habeas review. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
Petitioner did not raise his request to cross-examine the officers about supposed pending litigation before the trial court. See Ganntt, 159 A.D.3d at 986 (noting that defendant never moved the trial court to cross-examine Officer Henderson or Detective Pitt about then-pending litigation). Petitioner raised this claim for the first time in his appellate brief, and the Appellate Division denied it on the merits, opining that “defendant's contention that he was erroneously denied the opportunity to cross-examine a police officer regarding prior bad acts in lawsuits against the officer” was “unavailing.” Ganntt, 159 A.D.3d at 968.
Notably, the Appellate Division did not deny Petitioner's claim pursuant to New York's contemporaneous objection rule, N.Y.C.P.L. § 470.05(2), but instead adjudicated the claim simultaneously with Petitioner's contention that he was entitled to Detective Pitt's disciplinary file, discussed infra, Section III.B, holding that: “Similarly unavailing is the defendant's contention that he was erroneously denied the opportunity to cross-examine a police officer regarding prior bad acts alleged in lawsuits against the officer. The defendant never made such a request, but instead merely asked the County Court to conduct an in camera review of the officer's disciplinary file without establishing the requisite factual predicate therefor.” Ganntt, 159 A.D.3d at 986.
It is well-settled that “[a] State court's evidentiary rulings, even if erroneous under State law, generally do not present constitutional issues cognizable in a habeas corpus petition.” Linton v. Bradt, 775 F.Supp.2d 574, 577 (E.D.N.Y. 2011) (citing Crane v. Kentucky, 476 U.S. 683, 689 (1986)); see also Steinhilber v. Kirkpatrick, 18 Civ. 1251(VB)(JCM), 2020 WL 9074808, at *17 (S.D.N.Y. Aug. 21, 2020) (“The erroneous admission of evidence does not rise to the level of a constitutional violation upon which a writ of habeas corpus may be issued unless the evidence is so extremely unfair that its admission violates fundamental concepts of justice.”) (internal quotations omitted). Thus, Petitioner is only entitled to relief if he establishes that the “erroneous exclusion of evidence . . . deprived [him] of a fundamentally fair trial.” Huber v. Schriver, 140 F.Supp.2d 265, 280 (E.D.N.Y. 2001) (citing Estelle, 502 U.S. at 71-72). The standard to determine whether Petitioner was denied a fair trial is whether the supposed evidentiary error “viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it.” Stewart v. Mazzuca, 275 F.Supp.2d 308, 312-13 (E.D.N.Y. 2003).
Petitioner contends that “the trial court erroneously precluded [him] from cross examining the state's two (key) witnesses, regarding allegations of prior misconduct, similar to what was alleged in the instant case, despite the fact that it was highly relevant to their credibility.” (Pet'r Reply at 5-6). Petitioner's argument is insufficient to establish a due process violation. See Rosario v. Kuhlman, 839 F.2d 918, 925 (2d Cir. 1988).
Assuming, arguendo, that Petitioner had moved at trial to cross-examine these officers about specific lawsuits, Petitioner has not shown (considering the record as a whole) that such evidence would have “remove[d] a reasonable doubt that would have existed on the record without it.” See Stewart, 275 F.Supp.2d at 312-13; accord United States v. Agurs, 427 U.S. 97, 112 (1976). Petitioner does not provide any detail concerning the supposed litigations filed against Detective Pitt, aside from alleging that one such litigation allegedly concerned “falsifying police reports,” nor does he provide any detail about supposed litigation against Officer Henderson. (See generally Petition; Pet'r Reply at 2-7).
Furthermore, even if the jury were to have found Detective Pitt and Officer Henderson incredible, ample evidence was introduced at trial sufficient to find Petitioner guilty beyond a reasonable doubt. First, a knife was recovered approximately two feet from where Petitioner was laying when the scuffle between Petitioner and Officer Henderson ensued. (Pretrial Hr'g Tr. at 15). In addition to Detective Pitt, Officer Cerrone testified that he “immediately saw the knife right to [Mr. Gantt's] side,” (Trial Tr. at 1019), which was corroborated by Sergeant Weaver, who also testified that he observed the knife, (id. at 887). Second, Kurt Sickinger testified that Petitioner's DNA was a “major contributor” to that found on the handle of the knife. (Id. at 1135-36). Third, Petitioner admitted to “manag[ing] to” get the knife from an unknown person, which he held in his left hand, and “sw[inging]” the knife at the person who was restraining him. (Id. at 1996-98). This corroborates Officer Henderson's testimony that Petitioner was holding the knife in his left hand. (Id. at 1426; see also id. at 1996 (Petitioner testifying that he was lefthanded)). Fourth, Dr. Brooks testified that Officer Henderson's injuries were consistent with someone who was stabbed from the angle that Petitioner was facing as Officer Henderson tried to restrain him. (See id. at 958-62). Fifth, while at WMC, Petitioner “apologize[d]” to several Newburgh police officers for stabbing one of their officers, stating that he did not intend to do so. (Id. at 1297-98). Petitioner also told the officers that he grabbed a knife and “just started swinging it” out of fear of “los[ing] [his] life,” and that he “believe[d] [Officer Henderson] had a vest or something that said ‘police.'” (Id. at 1314-15).
On this record, even if the jury had not found Detective Pitt and Officer Henderson to be credible witnesses, there was sufficient evidence for the jury to find Petitioner guilty beyond a reasonable doubt of the crimes for which he was convicted. Consequently, had Petitioner moved to cross-examine the officers about other lawsuits during trial, the denial of such a request would not have rendered Petitioner's trial fundamentally unfair. See Rosario, 839 F.2d at 925. Accordingly, Petitioner's claim cannot provide a basis for habeas relief. See, e.g., Huber, 140 F.Supp.2d at 280-81.
B. Denial of Petitioner's Motion to Subpoena Detective Pitt's Disciplinary File
Construing the Petition liberally, Petitioner argues that the trial court's denial of his motion to subpoena Detective Pitt's disciplinary records violated his Sixth Amendment right under the Confrontation Clause. (Petition at 19; Pet'r Reply at 22-23). Respondent argues that Petitioner's claim is unexhausted and is not cognizable on habeas review. (Resp't Br. at 34-35).
“[W]here . . . a party appears pro se, courts must construe [their] pleadings broadly and interpret them ‘to raise the strongest arguments that they suggest.'” Torres v. Carry, 800 F.Supp.2d 577, 582 (S.D.N.Y. Aug. 4, 2011) (quoting Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996)).
During trial, defense counsel sought to subpoena Detective Pitt's disciplinary file and asked the court to review the records in camera, (Trial Tr. at 535-39), which is the proper procedure under New York law. See People v. Gissendanner, 48 N.Y.2d 543, 550 (1979). The trial court denied Petitioner's application. (Trial Tr. at 753 (“I don't think there is sufficient basis to bring in his disciplinary file.”)). Petitioner challenged the trial court's ruling on direct appeal, (Docket No. 16-2 at 48-55), which the Appellate Division denied on the merits, holding that defendant had not established the requisite factual predicate for the County Court to conduct an in camera review of Detective Pitt's disciplinary file. Ganntt, 159 A.D.3d at 986.
Respondent argues that Petitioner did not fairly present his federal constitutional claim to the state court. (See generally Resp't Br. at 34-35). The Court disagrees. Petitioner presented his claim in federal constitutional terms to the Appellate Division. See Daye, 696 F.2d at 194. While the thrust of Petitioner's argument on direct appeal was that the state court misapplied state law, (see Docket No. 16-2 at 50-55), Petitioner framed his claim as violating the federal Confrontation Clause and cited to pertinent federal cases employing a constitutional analysis. (Id. at 48-49); see Daye, 696 F.2d at 194 (“a state defendant may fairly present to the state courts the constitutional nature of his claim . . . [by, inter alia,] reliance on pertinent federal cases employing constitutional analysis . . . [or] assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution . . .”). As such, Petitioner “fairly present[ed]” his Sixth Amendment claim regarding Detective Pitt's disciplinary records to the Appellate Division. See Daye, 696 F.2d at 194
This case is unlike Gumbs v. Kelly, No. 97 CIV 8755 (WHP)(AJP), 2000 WL 1172350, at *6 (S.D.N.Y. Aug. 18, 2000), the only federal case to which Respondent cites, in which the court found that counsel, in his appellate briefing, “cited dozens of non-constitutional New York cases and New York statutes, but made no mention of ‘due process' or ‘fair trial' . . .” Compare id.; with (Docket No. 16-2 at 48-50) (citing to the federal Confrontation Clause and analyzing Supreme Court cases discussing the Sixth Amendment).
Moreover, Petitioner presented his Sixth Amendment claim in his letter for leave to appeal to the Court of Appeals on April 27, 2018 by attaching his appellate brief. (Docket No. 16-3 at 29-30). “References in attached briefs without more [may] preserve issues . . . if the Court of Appeals is clearly informed that the reference is asserting issues in those briefs as bases for granting leave to appeal.” Galdamez v. Keane, 394 F.3d 68, 76 (2d Cir. 2005) (quoting Ramirez v. Att'y Gen. of State of N.Y., 280 F.3d 87, 97 (2d Cir. 2001)). In his letter requesting leave to appeal, Petitioner “ask[ed] the court to review the issues he presented to the Appellate Division,” which informed the Court of Appeals that he was asserting the issues cited therein as a basis of his appeal. See id. (“[Petitioner's] leave application reasonably could be construed [] as a request for further appellate review of all issues in the attached briefs” where petitioner's appellate briefs were attached to letter seeking leave to appeal, and such briefs fairly presented state claims to appellate courts); (Docket No. 16-3 at 29). Accordingly, the Court finds that Petitioner's Sixth Amendment claim concerning Detective Pitt's disciplinary file was properly exhausted before the state courts. See, e.g., Ramirez, 280 F.3d at 96 (claim was properly exhausted where “counsel's letter application sufficiently incorporated by reference the pertinent portions of the Appellate Division brief.”).
Respondent next argues that violations of state discovery rules, the basis of Petitioner's claim, are generally not cognizable on federal habeas review. (Resp't Br. at 36). The Court agrees with Respondent. A habeas court may only review issues of federal law. See 28 U.S.C. § 2254(a). As such, challenges to state court discovery rulings are generally not cognizable on federal habeas review. See, e.g., Adams v. Greiner, No. 02 Civ. 6328(GEL), 2004 WL 912085, at *7 (S.D.N.Y. Apr. 24, 2004) (claimed “violations of state discovery rules . . . are not cognizable on habeas corpus, since they are not based on federal constitutional law.”).
Thus, Petitioner's claim that the trial court erroneously denied his motion to subpoena the Newburgh Police Department for Detective Pitt's disciplinary records cannot be reviewed by this Court, unless such a ruling rendered Petitioner's trial fundamentally unfair. See, e.g., Parker v. Ercole, 582 F.Supp.2d 273, 303 (N.D.N.Y. Oct. 15, 2008) (“to the extent that petitioner is claiming an error of New York state's discovery rules, that claim is not cognizable on habeas review unless the error amounts to a violation of petitioner's due process rights.”) (collecting cases). Furthermore, even if the jury had found Detective Pitt's testimony incredible, there was ample other evidence supporting Petitioner's convictions, including, inter alia, Petitioner's own admission that he grabbed a knife and swung it at the officer who was attempting to restrain him (and who he recognized to be a police officer), as well as Petitioner's admission to police that he did not intend to stab a police officer. See supra, Section III.A. Accordingly, Petitioner's claim regarding Detective Pitt's disciplinary records is not cognizable on federal habeas review. See Adams, 2004 WL 912085, at *7.
IV. CONCLUSION
For the foregoing reasons, I conclude and respectfully recommend that the Petition be denied. Further, because reasonable jurists would not find it debatable that Petitioner has failed to demonstrate by a substantial showing that he was denied a constitutional right, I recommend that no certificate of appealability be issued. See 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). The Clerk of Court is requested to mail a copy of this Report and Recommendation to the pro se Petitioner.
V. NOTICE
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts, the parties shall have fourteen (14) days from the receipt of this Report and Recommendation to serve and file written objections. If copies of this Report and Recommendation are served upon the parties by mail, the parties shall have seventeen (17) days from receipt of the same to file and serve written objections. See Fed.R.Civ.P. 6(d). Objections and responses to objections, if any, shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Vincent L. Briccetti at the United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Requests for extensions of time to file objections must be made to the Honorable Vincent L. Briccetti and not to the undersigned. Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be rendered. See 28 U.S.C. § 636(b)(1); Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008).
RESPECTFULLY SUBMITTED,