Opinion
20 Civ. 7833 (CS)(PED)
07-25-2022
Marcus Gross, Petitioner, v. James Johnson, Acting Superintendent of Green Haven Correctional Facility Respondent.
REPORT AND RECOMMENDATION
Paul E. Davison, U.S.M.J.
TO THE HONORABLE CATHY SEIBEL, UNITED STATES DISTRICT JUDGE.
I. INTRODUCTION
Petitioner Marcus Gross, acting pro se, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his conviction and sentence in County Court for the County of Westchester. [Dkt. 2.] On February 21, 2007, Petitioner was found guilty by jury verdict of sexual conduct against a child in the first degree and endangering the welfare of a child. He was sentenced to a determinate term of 25 years in prison, to be followed by five years of post-release supervision. Petitioner is currently serving his sentence at the Green Haven Correctional Facility in Dutchess County, New York. The Petition comes before me pursuant to an Order of Reference entered on October 9, 2019. [Dkt. 8.] For the reasons set forth below, I respectfully recommend that Your Honor DENY the Petition, II. BACKGROUND
The information in this section is taken from the Petition [Dkt. 2], Respondent's Answer [Dkt. 17], associated exhibits [Dkt. 18], and the state court transcripts [Dkts. 19, 21].
1. The Crime
Over a period of years, Petitioner repeatedly sexually abused his daughter, beginning when she was approximately four years old. Petitioner inserted his penis into his daughter's vagina, anus, and mouth. He also performed oral sex on her and forced her to masturbate him with her hands. Petitioner would also engage in sexual acts with his daughter and girlfriend, and have his girlfriend participate in the sexual abuse of his daughter.
On July 15, 2005, Petitioner's daughter attended a youth program at Christ United
Church. At the youth program, Petitioner's daughter confided in her cousin and told him about the sexual abuse. Her cousin took the daughter to the youth leader who drove her home to her mother. Her mother then took her to the emergency room at Vassar Hospital, where a nurse examined the daughter and took photographs. Petitioner was arrested on June 8, 2006.
2. Petitioner's Trial
a. The State's Case
Petitioner's trial began with voir dire on January 30, 2007. [Dkt. 19-2 at 35.] After the jury was empaneled, the parties gave their opening statements on February 9, 2007. In her opening statement, the prosecutor referred to Petitioner as a “puppet master” and a “supreme manipulator” who used his daughter as a prop. [Dkt. 21-1 at 35-36.] After the prosecutor's opening statement, the state put on its case which consisted of testimony from Petitioner's daughter, as well as the daughter's mother, and twelve additional witnesses.
b. The Defense's Case
In response to the state's case, the defense called a single witness, an expert named Dr, Robert Fay. In terms of his credentials, Dr. Fay testified that upon completion of his residency, he worked as a pediatrician in Saranac Lake, New York from 1968 to 1971. [Dkt.21-12 at 45.] He testified that he then worked in the emergency room in Plattsburgh, New York. [Id.] He worked in Plattsburgh for approximately six months before he went on to work at Weston Memorial Hospital in Springfield, Massachusetts. [Id.] While there, he became the chief of pediatrics from 1972 to 1975. [Dkt. 21-13 at 1.] From there he went to a hospital in Oneonta, New York where he worked in the pediatric department at Fox Memorial Hospital until 1983. [Id. at 2.] Dr. Fay then testified that he obtained a position in Albany, New York where he would substitute for 14 pediatricians in the area, because he was a single parent, taking care of two children on a fifty percent basis, and that he wanted to sleep at night. [Id. at 2-3.] He further testified that he retired in 1997. [Dkt. 21-12 at 43.]
Dr. Fay also testified that after he attended a course on child sex abuse in June 1987, he began to make himself available to attorneys in the Albany area and that he worked primarily with defense attorneys. [Dkt. 21-13 at 4, 5.] Dr. Fay further testified that over the past twenty years, he had been consulted as an expert on child sexual abuse about 450 time and that he had testified about 75 times in 19 states. [Id. at 5-6.]
Petitioner's counsel offered Dr. Fay as an expert in the field of child abuse pediatrics, but the prosecution requested to conduct voir dire. [Dkt. 21-13 at 7-8.] During voir dire, Dr. Fay testified that he was paid an hourly fee in connection with his work in the 450 cases, as well as for the 75 instances in which he testified. [Id. at 20.] Dr. Fay further testified starting in 1991 and up until 1999, half of his practice was as a disability review physician. [Dkt. 21-13 at 21.] He testified that during this time he was primarily an independent contractor at Urgent Car Services, and that he was also a school doctor and “would go once every week or two to do the school physical examinations.” [Id.] He testified that he tried to work hard during the day so that he could be home with his children at night. [Id. ] Upon completion of the prosecution's voir dire, the prosecution submitted that Dr. Fay was an expert in the field of pediatrics and the court recognized him as such, [Dkt. 21-13 at 23.]
The defense then continued its direct examination of Dr. Fay. [A/.] Dr. Fay testified that he knew that there were no abnormalities in the examination of Petitioner's daughter and that he did not believe that a child who was raped by an adult would have no abnormalities. [Dkt. 21-13 at 24-25.] On cross examination, Dr. Fay testified that he had never performed a colposcopic exam, and that the examination had been around for roughly twenty years. [Dkt. 21-14 at 15.]
c. Summations
Before summations, the court instructed the jury regarding the evidence of the case and specifically noted that anything the lawyers said in their summations was not evidence. [Dkt. 21-15 at 24.] The defense then presented its summation to the jury. [Id. at 26.]
On summation, the prosecutor made similar statements to those in her opening. The prosecutor stated, “[a]nd in the beginning of this trial I told you that this defendant is a puppet master, that he operates on power and control and there is God cutting a string for her.” [Dkt. 21 -16 at 2.] Later in the summation, the prosecutor again referred to Petitioner as a “puppet master”, and also called him a “master manipulator” and a “con man.” [Dkt. 21-16 at 17, 25, 26.] The prosecutor also attacked Petitioner's expert in her summation. The prosecutor stated that Petitioner's expert was a retired pediatrician, not a child abuse expert, and argued that Petitioner's expert had no expertise in the area. [Dkt. 21-15 at 37-38.] The prosecutor further stated that what Petitioner's doctor feels is irrelevant. [Id. at 38.] In addition to attacking Petitioner's expert, the prosecutor also observed that the mother of Petitioner's daughter had no motive to lie in her testimony. [Dkt. 21-16 at 29.]
d. The Jury A Verdict and Petitioner's Sentencing
Upon the completion of the prosecution's summation, the court charged the jury. [Id. at 31.] After deliberation, the jury found Petitioner guilty of sexual conduct against a child in the first degree and endangering the welfare of a child. [Dkt. 21-17 at 28-29.] Later, on April 5, 2007, Petitioner was sentenced to a determinate term of 25 years and five years post-release supervision, [Dkt. 19-28 at 18.]
B. Procedural History
1. Petitioner's First CPL § 440.10 Motion
On June 6, 2009, Petitioner filed a CPL § 440,10 motion, seeking to vacate his conviction. [Dkt. 18-2 at 2.] Petitioner argued, in essence, that the indictment was improperly amended, the indictment was insufficient because it failed to allege physical injury to a child, and the indictment was multiplicitous. [See id. at 13-20.] On September 11, 2009, the state submitted its opposition. [Dkt. 18-3 at 10.] Petitioner submitted his reply to the state's opposition on September 23, 2009. [Dkt. 18-4 at 5.] The County Court for the County of Westchester issued a Decision and Order on March 18, 2010. [Dkt. 18-5 at 4.] The County Court found that Petitioner's claims were procedurally barred because they should have been raised on direct appeal. [Id. at 3.] The County Court further found that even if it reached the substance of Petitioner's claims, “it would find them to lack merit.” [Id.]
Petitioner titled his motion as a motion for a “writ of coram vobis [sic].” [Dkt. 18-2 at 2.] However, because a motion for a writ of error of coram nobis is used to challenge the effectiveness of appellate counsel, the County Court interpreted Petitioner's motion as one to vacate his conviction. [Dkt. 18-5 at 2.]
2. Petitioner's CPL § 440.20 Motion and Second CPL § 440.10 Motion
On July 7, 2010, Petitioner filed motion to set aside the sentence under CPL § 440.20. [Dkt. 18-6 at 3.] Petitioner argued that he was improperly sentenced as a second felony offender and denied a second felony offender hearing. [Id. at 14-20.] The state submitted its opposition on April 7, 2011. [Dkt. 18-7 at 9.] By papers filed October 6, 2011, Petitioner replied to the state's opposition. [Dkt. 18-8 at 2.]
By papers dated August 11, 2011, Petitioner submitted a second CPL § 440.10 motion. [Dkt. 18-10 at 2.] Petitioner again argued that the indictment was improperly amended and that the indictment was duplicitous. [Id. at 8-12.] Petitioner also argued that the evidence was legally insufficient because his daughter failed to testify to particular dates and times. [Id. at 12-13.]
On October 3, 2011, the County Court for the County of Westchester issued a Decision and Order deciding Petitioner's motion under CPL § 440.20, as well as Petitioner's motion under CPL § 440.10. [Dkt. 18-11 at 5.] The County Court held that Petitioner was appropriately sentenced as a second felony offender, and denied Petitioner's § 440.20 motion. [Id. at 4-5.]
The County Court further held that Petitioner's § 440.10 motion raised issues for direct appeal and accordingly denied the motion. [Id. at 3.]
3. Petitioner's Direct Appeal
On September 5, 2017, Petitioner, through counsel, submitted a brief appealing his conviction. [Dkt. 18-14 at 43.] Petitioner raised ten grounds for appeal, including: (1) the Dial court improperly denied defense counsel's challenge for cause of a prospective juror; (2) Petitioner was denied his right to a fair trial and due process when the trial court denied defense counsel's request to qualify Dr. Fay as an expert in the area of child sexual abuse; (3) Petitioner was denied his right to a fair trial and due process because he was unable to hire a qualified expert in the field of child sexual abuse and rape accommodation syndrome; (4) Petitioner was denied his right to confront the witnesses against him; (5) the trial judge erred in permitting the prosecution to introduce Petitioner's prior convictions and alleged bad acts for impeachment purposes; (6) Petitioner was denied his right to a fair trial when the prosecution presented evidence of uncharged crimes; (7) Petitioner was denied his right to a fair trial due to improper remarks by the prosecution during opening and summation; (8) the trial court erred when it permitted the testimony of a witness to be bolstered by prejudicial and inflammatory pretrial statements and mistakenly labeled them as a prompt outcry; (9) Petitioner received ineffective assistance of counsel; and (10) Petitioner's sentence was excessive and unduly harsh. [Dkts. 18-13 at 4-40; 18-14 at 1-36.] The state submitted its opposition to Petitioner's appeal on December 22,2017. [Dkt. 18-17at38.] By papers dated August 24, 2018, Petitioner submitted a pro se supplemental brief, [Dkt. 18-18 at 23.] Petitioner argued that his trial counsel was ineffective because he failed to object to statements that the prosecution made during summation. [M at 11- 23.] The state submitted an opposition to Petitioner's supplemental brief on October 11,2018. [Dkt 18-19 at 19.]
The Appellate Division, Second Department ultimately affirmed Petitioner's conviction on May 1, 2019. People v. Gross, 99 N.Y.S. 3d 367 (App. Div. 2019). The Appellate Division held that the trial court appropriately exercised its discretion in permitting the prosecution to present evidence of Petitioner's prior convictions for impeachment purposes and eliciting testimony of uncharged crime. Id. at 369-70. With respect to Petitioner's argument concerning the prospective juror, the Appellate Division held that the trial court appropriately exercised its discretion in denying Petitioner's challenge for cause. Id. at 743 (citations omitted). The Appellate Division further held that Petitioner failed to preserve for appellate review the argument that complainant's outcry was not prompt. Id. The Appellate Division next addressed Petitioner's argument that the prosecutor made improper remarks in her opening statement and summation. Id. at 744. The court held that such argument was “without merit, as the challenged remarks were responsive to arguments raised by the defendant's counsel during summation or constituted fair comment on the evidence.” Id. (citations omitted). The Appellate Division next held that Petitioner's argument that he was deprived of ineffective assistance of counsel contained references to matters outside of the record and thus needed to raised in a CPL 440.10 proceeding. Id. The Appellate Division further held that Petitioner's sentence was not excessive and his contention regarding his proffered expert was unpreserved for appellate review. Id. For Petitioner's remaining claims, the Appellate Division held that they were unpreserved for appellate review. Id.
On May 13, 2019, Petitioner's counsel submitted an application for leave to appeal to the Court of the Appeals. [Dkt. 18-21 at 2-3.] The state submitted its opposition to Petitioner's application on June 20, 2019. [Dkt. 18-21 at 5.] On July 8, 2019, the Court of Appeal summarily denied Petitioner leave to appeal the Appellate Division's decision. People v, Gross, 130 N.E.3d 1302 (Table) (N.Y. 2019).
4. The Instant Petition
Petitioner executed the instant Petition and delivered it to prison officials for mailing on September 11, 2020. [Dkt. 2 at 22.] The Petition was received by the Clerk's Office and filed on September 22, 2020. The Respondent filed a response in opposition to the Petition on March 5, 2021. [Dkt. 16.] On May 21, 2021, Petitioner filed a traverse in reply to Respondent's answer. [Dkt. 24.]
III. APPLICABLE LAW
“Habeas review is an extraordinary remedy.” Bousley v. United States, 523 U.S. 614, 621 (1998) (citing Reed v. Farley, 512 U.S. 339, 354 (1994)). Before a federal district court may review the merits of a state 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. If there has been procedural compliance with these statutes, the court must then determine the appropriate standard of review applicable to the petitioner's claim(s) in accordance with § 2254 (d). The procedural and substantive standards applicable to habeas review, which were substantially modified by the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), are summarized below.
A. Exhaustion Requirement
A federal court may not grant habeas reliefunless the petitioner has first exhausted his claims in state court. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); see 28 U.S.C. § 2254(b)(1) (“[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted 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 corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant”); id. § 2254(c) (the petitioner “shall not be deemed to have exhausted the remedies available in the courts of the State ... if he has the right under the law of the State to raise, by any available procedure, the question presented”). The exhaustion requirement promotes interests in comity and federalism by demanding that state courts have the first opportunity to decide a petitioner's claims. Rose v. Lundy, 455 U.S. 509, 518-19 (1982).
To exhaust a federal claim, the petitioner must have “fairly present[ed] his claim 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,” and thus “giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotation marks and citations omitted). “Because non-constitutional claims are not cognizable in federal habeas corpus proceedings, a habeas petition must put state courts on notice that they are to decide federal constitutional claims.” Petrucelli v. Coombe, 735 F.2d 684, 687 (2d Cir. 1984) (citing Smith v. Phillips, 455 U.S. 209, 221 (1982)). Such notice requires that the petitioner “apprise the highest state court of both the factual and legal premises of the federal claims ultimately asserted in the habeas petition.” Galdamez v. Keane, 394 F.3d 68, 73 (2d Cir. 2005) (internal citation omitted). A claim may be “fairly presented” to the state courts therefore, even if the petitioner has not cited “chapter and verse of the Constitution,” in one of several ways:
(a) [R]eliance 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 v. Atty Gen. of N.Y, 696 F.2d 186, 194 (2d Cir. 1982). A habeas petitioner who fails to meet a state's requirements to exhaust a claim will be barred from asserting that claim in federal court. Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
However, “[f]or exhaustion purposes, 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 quotation omitted). “In such a case, a petitioner no longer has ‘remedies available in the courts of the State' within the meaning of 28 U.S.C. § 2254(b).” Grey v. Hoke, 933 F,2d 117, 120 (2d Cir. 1991). Such a procedurally barred claim may be deemed exhausted by a federal habeas court. See, e.g., Reyes, 118 F.3d at 139. However, absent a showing of either “cause for the procedural default and prejudice attributable thereto,” Harris v. Reed, 489 U.S. 255, 262 (1989), or “actual innocence,” Schlup v. Delo, 513 U.S. 298 (1995), the petitioner's claim will remain umeviewable by a federal court.
Finally, notwithstanding the procedure described above, a federal court may yet exercise its discretion to review and deny a mixed petition containing both exhausted and unexhausted claims, if those unexhausted claims are “plainly meritless.” Rhines v. Weber, 544 U.S. 269, 277 (2005); see 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”); Padilla v. Keane, 331 F.Supp.2d 209, 216 (S.D.N.Y. 2004) (interests in judicial economy warrant the dismissal of meritless, unexhausted claims).
B. Procedural Default
Even where an exhausted and timely habeas claim is raised, comity and federalism demand that a federal court abstain from its review when the last-reasoned state court opinion to address the claim relied upon “an adequate and independent finding of a procedural default” to deny it. Harris, 489 U.S. at 262; see also Coleman v. Thompson, 501 U.S. 722, 730 (1991); Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 126 (2d Cir. 1995). A state court decision will be “independent” when it “‘fairly appears” to rest primarily on state law. Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir. 2006) (citing Colman, 501 U.S. at 740). A decision will be “adequate” if it is “‘firmly established and regularly followed' by the state in question.” Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999) (quoting Ford v. Georgia, 498 U.S. 411,423-24 (1991)).
The Supreme Court has held that a federal court may review a claim that is procedurally barred if the petitioner can show a “miscarriage of justice,” which occurs where a petitioner is “actually innocent of the crime for which he has been convicted.” Cotto v. Herbert, 331 F.3d 217, 239 n.10 (2d Cir. 2002); see Coleman v. Thompson, 501 U.S. 722, 729 (1991).
C. AEDPA Standard of Review
Before a federal court can determine whether a petitioner is entitled to federal habeas relief, the court must determine the proper standard of review under AEDPA for each of the petitioner's claims. 28 U.S.C. § 2254(d)(1)-(2). This statute “modifie[d] the role of federal habeas corpus courts in reviewing petitions filed by state prisoners,” and imposed a more exacting standard of review. Williams v. Taylor, 529 U.S. 362, 402 (2000). For petitions filed after AEDPA became effective, federal courts must apply the following standard to cases in which the state court adjudicated on the merits of the claim:
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 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.§ 2254(d)(1)-(2). The deferential AEDP A standard of review will be triggered when the state court has both adjudicated the federal claim “on the merits,” and reduced its disposition to judgment. Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001).
Under the first prong, a state court decision is contrary to federal law only if it “arrives at a conclusion opposite to that reached by the [the Supreme Court] on a question of law or if [it] decides a case differently than [the Supreme Court] on a set of materially indistinguishable facts.” Williams, 529 U.S. at 413. A decision involves an “unreasonable application” of Supreme Court precedent if the state court “identifies the correct governing legal rule from the Supreme Court cases but unreasonably applies it to the facts of the particular state prisoner's case,” or if it “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.” Id. at 407.
Under the second prong of AEDPA, the factual findings of state courts are presumed to be correct. 28 U.S.C. § 2254(e)(1); see Nelson v. Walker, 121 F,3d 828, 833 (2d Cir. 1997). The petitioner must rebut this presumption by “clear and convincing evidence.” § 2254(e)(1).
IV. ANALYSIS
In his timely filed Petition, Petitioner advanced two grounds for habeas relief First, Petitioner argued that his Sixth and Fourteenth Amendment rights were violated when the trial court erroneously denied his trial counsel's challenge for cause of a prospective juror. [Dkt. 2 at 5-13.] Second, Petitioner argued that his Fourteenth Amendment due process rights were violated based on the prosecution's improper comments during opening and summation. [Id. at 13-22.] In his Traverse, however, Petitioner has withdrawn his first claim “based on the law and the juror not being seated, the argument is moot.” [Dkt. 24 at 4,] Because Petitioner withdraws his first ground, the Court will only review Petitioner's second ground. See Rhodes v. Lee, 2014 WL 1764509, at *2 (N.D.N.Y. May 1, 2014) (declining to review petitioner's claims withdrawn in his traverse).
Copies of unreported cases cited herein will be mailed to Petitioner as a pro se litigant. See Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
A. Petitioner's Due Process Rights Were Not Violated By the Prosecution's Opening and Summation
Petitioner argues that the prosecutor made improper comments during her opening statement and in her summation. Petitioner exhausted this argument in his direct appeal to the Appellate Division and in his leave application to the Court of Appeals. When considering the issue, the Appellate Division found this claim to be without merit, “as the challenged remarks were responsive to arguments raised by the defendant's counsel during summation or constituted fair comment on the evidence.” Gross, 99 N.Y.S.3d at 371.
“The Supreme Court has instructed that habeas relief is appropriate based on improper prosecutorial comments in summation only where the prosecutor's comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.'” Griggs v. Lempke, 797 Fed.Appx. 612, 616 (2d Cir. 2020) (quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)). Accordingly, “[t]he habeas court must consider the record as a whole when making this determination, because even a prosecutor's inappropriate or erroneous comments or conduct may not be sufficient to undermine the fairness of the proceedings when viewed in context.” Id. “When reviewing such claims under the ‘unreasonable application prong' of § 2254(d)(1), the habeas court must keep in mind that this standard is a ‘very general one' that affords courts ‘leeway in reaching outcomes in case-by-case determinations.'” Jackson v. Conway, 763 F.3d 115, 146 (2d Cir. 2014) (quoting Parker v. Matthews, 567 U.S. 37, 48 (2012)).
Here, Petitioner argues that the prosecutor improperly referred to him as a “puppet master”, a “supreme manipulator”, a “master manipulator”, and a “con man” in order to inflame th jury. [Dkt. 2 at 14-16.] More specifically, in her opening, the prosecutor stated:
What will emerge is the portrait of a puppet master, of a supreme manipulator,
who exercises power and control over all the people in his life. The defendant created an image of himself which allowed him to exploit everyone around him and most profoundly, his daughter .... The evidence will show that the defendant began his career as a puppet master with but one prop, [Petitioner's daughter], bom [in] 1996 to a mentally disabled woman and the defendant.[Dkt. 21-1 at 35-36.] The prosecutor made similar statements in her summation, when she stated, “[a]nd in the beginning of this trial I told you that this defendant is a puppet master, that he operates on power and control and there is God cutting a string for her.” [Dkt. 21-16 at 2.] The prosecutor also referred to Petitioner as a “puppet master” later in the summation, and further described Petitioner as a “master manipulator” and a “con man.” [Id. at 17, 25, 26.]
In the context of this case, however, the prosecutor's use of dramatic and evocative language did not undermine the fairness of the trial. “The Second Circuit has long held that ‘ [a] prosecutor is not precluded from vigorous advocacy, or the use of colorful adjectives, in summation.'” Portes v. Capra, 420 F, Supp. 3d 49, 58 (E.D.N.Y. 2018) (quoting United States v. Rivera, 971 F.2d 876, 884 (2d Cir. 1992)). Similarly, a prosecutor is not precluded from using colorful adjectives in an opening statement. See Jackson, 763 F.3d at 149 (prosecutor's description of petitioner as “controlling”, “twisted”, and “sadistic” in her opening statement was not inflammatory and did not warrant habeas relief). Further, “statements during summation are permissible if they constitute a fair comment on the evidence at trial and reasonable inference therefrom, or a fair response to remarks made by the defense counsel during summation.” Ogletree v. Graham, 559 F.Supp.2d 250, 260 (N.D.N.Y. 2008) (internal quotation marks omitted). '
Here, the prosecutor's statements constituted fair comment on the evidence, which showed that Petitioner indeed exercised control over his daughter and devised manipulative means to influence her mother to prevent his daughter from testifying. Petitioner's daughter testified that she did not inform anyone about the sexual abuse was because Petitioner warned her that if she told anyone, her father would go to jail. [Dkt. 21-5 at 30.] Notes recovered from Petitioner's cell (in his handwriting) suggested that Petitioner plotted to have someone impersonate a Child Protective Services agent and persuade his daughter's mother to discourage her daughter from testifying. [Dkt. 21-7 at 4-5; Dkt. 21-8 at 3, 28-29.] Accordingly, the prosecutor's comments constituted fair comment on the evidence and do not merit habeas relief
Petitioner also argues that the prosecution impermissibly “vouched” for the credibility of the mother of Petitioner's daughter, who was a witness for the prosecution. [Dkt. 2 at 16-17.] In her summation, the prosecutor stated that for the mother of Petitioner's daughter, “[t]here is no motive to lie, no motive to fabricate.” [Dkt, 21-16 at 29.] “It is well established that prosecutors may not vouch for their witnesses' truthfulness.” United States v. Carr, 424 F.3d 213, 227 (2d Cir. 2005) (internal quotation marks omitted). “In other words, a prosecutor is prohibited from expressing his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.” Id. (internal quotation marks and alteration omitted).
However, “as to the prosecutor's supposed comment that [the witness] had no reason to lie, it is not improper for a prosecutor to argue that a witness is credible, where, as here, such an argument is made objectively from the evidence, and is not phrased in terms of the prosecutor's personal subjective beliefs.” Moore v. Greiner, 2005 WL 2665667 at *16 (S.D.N.Y. Oct. 19, 2005).
Because the prosecutor's statement about the testimony of the mother of Petitioner's daughter was an argument that was made objectively from the evidence and not phrased in terms of the prosecutor's personal subjective beliefs, it is not impermissible vouching. Therefore, this statement also does not merit habeas relief.
Finally, Petitioner argues that the prosecution improperly sought to discredit the testimony of Petitioner's expert in her summation. [Dkt. 2 at 18-20.] In her summation, the prosecutor stated:
And just because someone can pay a retired pediatrician ... to come into court as a pediatrician, not as a child abuse expert, someone who hasn't examined kids at all in twenty to thirty years, who has not done child abuse exams since they started using colposcopies, who laudibly made a decision to stay home with his children rather than to advance his career, but what was he doing? He was giving physical exams at schools. He has no expertise in this area. He stopped doing this stuff before it was even a science, before anybody even knew what they were doing. And he told you when he was doing it nobody knew what they were doing. So this retired pediatrician who spent half his time testifying for defense attorneys and half his time reviewing disability claims for parents who claim that, he's like a disability examiner for New York State for parents who claim that their children are disabled, told you that he doesn't feel that a child wouldn't have any type of scarring. What this doctor feels is irrelevant.[Dkt. 21-15 at 37-38.] Petitioner specifically challenges the prosecutor's implication that the expert was biased because he was paid by the defense, and the prosecutor's characterization of the expert as lacking expertise because his experience in the field was dated. [See Dkt. 21-15 at 37-38.]
As noted above, statements are permissible where they are a fair comment on the evidence at trial. See Ogletree, 559 F.Supp.2d at 260. Here, the prosecutor's statements concerning Petitioner's expert constitute a fair comment on the evidence. Indeed, Dr. Fay testified that he was paid an hourly fee for his work and testimony [Dkt. 21-13 at 20], he was retired [Dkt. 21-12 at 43], he made a career choice to spend more time with his children [Dkt. 21-13 at 2-3, 21], fifty percent of his practice was as a disability review physician [Id. at 21], he was a school doctor and conducted school physical examinations [id.], and he never performed a colposcopic exam even though the exam had been around for roughly twenty years [Dkt. 21-14 at 15]. Thus, the prosecutor's statements regarding Petitioner's expert were permissible as they constituted fair comment on the evidence. Further, contrary to Petitioner's argument that the prosecution's statements went “unchecked” by the trial court, the trial court indeed instructed the jury that the arguments that each attorney made in their summation did not constitute evidence. [Dkt. 21-15 at 24.]
Accordingly, the Appellate Division's conclusion that “the challenged remarks were responsive to arguments raised by the defendant's counsel during summation or constituted fair comment on the evidence” was neither contrary to Supreme Court law, nor an unreasonable interpretation of the facts. Thus, I conclude, and I respectfully recommend Your Honor conclude that Petitioner's argument is without merit and his due process rights were not violated by statements made by the prosecutor in her opening argument and her summation.
V. CONCLUSION
For the reasons set forth above, I respectfully recommend that Your Honor DENY the Petition for a Writ of Habeas Corpus. I recommend that no certificate of appealability be issued 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. See 28 U.S.C. 2253 (c); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, 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 service 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 an additional three (3) days, or a total of seventeen (17) days, from service of this Report and Recommendation to serve and file written objections. See also Fed.R.Civ.P. 6 (d). Such objections, if any, along with any responses to the objections, shall be filed with the Clerk of the Court with extra copies delivered to the chambers of the Honorable Cathy Seibel, at the Honorable Charles L. Brieant Jr. Federal Building and United States Courthouse, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Failure to file timely objections to this Report and Recommendation will preclude later-appellate review of any order of judgment that will be entered. See Caidor v. Onondaga County, 517 F.3d 601, 604 (2d Cir. 2008). Requests for extensions of time to file objections must be made to Judge Seibel.