Opinion
1:20-cv-03468 (JPC) (SDA)
12-06-2021
Sharkey James, Petitioner, v. William F. Keyser, Respondent.
TO THE HONORABLE JOHN P. CRONAN, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE.
INTRODUCTION
Pro se Petitioner Sharkey James (“James” or “Petitioner”), currently incarcerated in the Sullivan Correctional Facility in New York State, seeks a writ of habeas corpus under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254. (Pet., ECF No. 2; Am Pet., ECF No. 51.) On February 25, 2015, following a jury trial, a judgment was rendered in the Supreme Court of the State of New York, New York County, convicting James of one count of Robbery in the First Degree and one count of Robbery in the Second Degree. (SR 388 (Verdict Sheet).) He was sentenced, as a persistent violent felony offender, to an indeterminate term of incarceration of 22 years to life. (See Answer, ECF No. 24, ¶ 2.)
The Petition (and therefore the docket in this case) lists Petitioner's name as “Sharkey James,” but the Amended Petition and other documents in the record list his name as “Scharkey James.”
Records filed in James's state court proceedings have been compiled at ECF Nos. 24-1 through 24-4. References to pages from the state record are made using the prefix “SR” and correspond to the Bates numbering at the bottom-right corner of each page.
In his Petition, James challenged his conviction on the following grounds: (1) the trial court improperly admitted evidence of uncharged previous crimes; (2) the jury's conviction was against the weight of the evidence; (3) the trial court improperly denied his motion to suppress a show-up identification; (4) the trial court improperly denied his speedy-trial motion; (5) the trial court improperly sentenced him as a persistent violent felony offender; and (6) the trial court failed to set aside an illegal sentence. (Pet. at PDF pp. 10-28.) James also sought immediate release due to his health issues and the circumstances created by the COVID-19 pandemic. (Pet. at PDF pp. 31-34.)
On May 5, 2020, James requested that the Court hold his COVID-19-related claims in abeyance pending his exhaustion of state remedies. (Pet. 5/5/20 Ltr., ECF No. 9.) On May 27, 2020, District Judge Laura Taylor Swain, to whom this case was assigned, granted his request and suspended the deadline to answer the COVID-19-related claims pending further order of the Court. (Order, ECF No. 10.) On June 19, 2020, this case was referred to me by Judge Swain for a report and recommendation on James's habeas Petition. (See Order of Ref., ECF No. 13.) On October 5, 2020, this case was reassigned from District Judge Swain to District Judge John P. Cronan.
On November 17, 2020, James filed an application to stay his Petition to allow him time to exhaust certain unspecified claims in state court. (See Pet.'s 11/17/20 Ltr., ECF No. 30.) On December 21, 2020, I denied James's application without prejudice to him moving to amend his Petition to add additional claims. (See 12/21/20 Order, ECF No. 36, at 6-9.)
On January 5, 2021, James filed a Motion to Amend and to Stay seeking (1) to add to his Petition a claim for ineffective assistance of appellate counsel, and (2) to stay this proceeding pending a state-court decision on his petition for a writ of error coram nobis, which James filed with the New York State Appellate Division, First Judicial Department, on January 5, 2021.(1/5/21 Mot., ECF No. 38.) On July 15, 2021, James filed an affidavit reflecting that he had exhausted his state remedies regarding his proposed additional claim (James 7/12/21 Aff., ECF No. 50), thereby mooting his motion to stay. Also on July 15, 2021, James filed a proposed Amended Petition. (Am. Pet., ECF No. 51.)
On January 21, 2021, Respondent filed a response to the motion (see 1/21/21 Resp., ECF No. 40), and on February 5, 2021, James filed a reply. (2/5/21 Reply, ECF No. 44.) On March 3, 2021, James filed a letter application for the appointment of counsel to represent him in his federal habeas petition and writ of error coram nobis action in the state court. (See Pet.'s 2/28/21 Ltr., ECF No. 45.) That application was denied by me by Order dated March 18, 2021. (See 3/18/21 Order, ECF No. 46.) On March 19, 2021, I directed that James file any reply in further support of his five original non-COVID-19-related claims, as well as an update regarding the status of the state proceedings regarding his COVID-19-related claims, no later than April 19, 2021. (See 1/21/21 Order, ECF No. 47.) On April 1, 2021, James filed a responsive memorandum supplementing his motion for stay. (Pet. 4/1/21 Mem., ECF No. 48.) On April 9, 2021, James filed a status update letter, including a copy of the decision denying his COVID-19 related claims by the New York State Supreme Court, Appellate Division, Third Department, and stating that he was in the process of appealing that decision to the New York Court of Appeals. (See Pet. 4/6/21 Ltr., ECF No. 49.)
By Order, dated August 13, 2021, I granted James's motion to amend, such that the Amended Petition filed at ECF No. 51 became the operative pleading. (See 8/13/21 Order, ECF No. 54.) My August 13, 2021 Order directed that, no later than September 3, 2021, Respondent file a letter in which he either (1) supplemented and/or amended the papers he already filed in opposition to James's claims, or (2) indicated his intention to rest on those earlier papers; and that no later than thirty days after Respondent filed such letter, James file a reply, including a confirmation as to whether he still was pursuing the COVID-19-related claims that Judge Swain ordered held in abeyance in May 2020. (See id. at 2.)
The Amended Petition contains seven grounds in support of James's request for habeas relief: (1) the trial court improperly admitted evidence of uncharged previous crimes; (2) the jury's conviction was against the weight of the evidence; (3) the trial court improperly denied his motion to suppress a show-up identification; (4) the trial court improperly denied his speedy-trial motion; (5) the trial court improperly sentenced him as a persistent violent felony offender; (6) that the trial court failed to set aside an illegal sentence; and (7) that James was denied effective assistance of counsel on appeal. (See Am. Pet. at PDF pp. 4-14.)
The Court sought such confirmation since the Amended Petition did not include any COVID-19-related claims.
After receiving a brief extension (see 8/31/21 Order, ECF No. 56), on September 13, 2021, Respondent filed his response to Count Seven of the Amended Petition, indicating that he would rely upon his prior submissions regarding his response to Counts One through Six. (See 9/13/21 Resp., ECF No. 57.) On or about November 2, 2021, the Court received in the mail a letter reply from James dated October 25, 2021, which was filed to the ECF docket on November 3, 2021. (See 10/25/21 Reply, ECF No. 60, at 1.) In this reply, James stated that he “no longer [was] pursuing the ‘COVID-19' related[] federal claim.” (Id. at 13 n.10.)
For the reasons set forth below, I respectfully recommend that the Amended Petition be DENIED.
BACKGROUND
I. Facts Giving Rise To James's Conviction
Shortly after midnight on October 14, 2012, Steven and Lana Obert were walking home on West 87th Street in Manhattan when James and his cousin, Jermaine James (“Jermaine”), approached and robbed them at gunpoint of their cell phones and money. (Trial Tr. at 46-51, 6571 (S. Obert); 91-99, 102 (L. Obert).) Thereafter, James and Jermaine left heading east. (Id. at 52, 74, 79 (S. Obert).) The Oberts then returned home and called 911. (Id. at 52 (S. Obert); 95 (L. Obert).)
The trial transcript is filed at ECF No. 24-6 (starting at PDF p. 10) and ECF No. 24-7 (ending at PDF p. 125).
At approximately 12:35 a.m., New York City Police Department (“NYPD”) Officer Brian Klarman and his partner, Officer Roy Kim, responded to the 911 call. (Trial Tr. at 54, 74 (S. Obert); 169-70 (Klarman).) Officer Klarman drove Mr. Obert around the neighborhood looking for the robbers, but did not find them. (Id. at 54, 74-75 (S. Obert); 170-72, 325-26 (Klarman).)
NYPD Officer Charles Cavallaro, who was patrolling the area with Sergeant Anis Nikocevic, heard a radio dispatch for the robbery. (Trial Tr. at 120-21 (Cavallaro).) Soon afterward, Officer Cavallaro spotted two men (later identified as James and Jermaine), who matched the description provided by the radio dispatcher, heading westbound on West 91st Street between Amsterdam and Columbus Avenues. (See id. at 120-24, 130, 135.) When the officers approached, Jermaine fled. (See id. at 130-33.) James, however, was arrested. (Id. at 132-34.)
Mr. Obert thereafter was brought to the scene of the arrest by Officer Klarman and Mr. Obert positively identified James as one of the robbers. (Id. at 55-56 (S. Obert).) In addition, Mr. Obert identified two of the three phones that had been recovered from James as the stolen phones. (Id. at 56.)
During a post-arrest interview at the 24th Precinct with a detective at approximately 3:00 a.m., James waived his Miranda rights and admitted that he was present at the time of the robbery. (Trial Tr. at 191-95, 315-16 (Klarman).) He then offered to obtain guns for the police, but said he wanted to speak with an Assistant District Attorney (“ADA”) or with the “Feds” about his offer. (Id. at 195, 317, 320.) The detective then ended the interview. (Id.) At around 8:00 a.m., James told another detective that he was present for the robbery, but said he had not intended to rob the Oberts. (Id. at 195-96, 315, 317-18.) Instead, James claimed that it was Jermaine who had the gun and wanted to rob the Oberts, but James admitted that he approached “the female” and asked for her cellphone and money. (Id. at 196, 205, 334.)
The following day, October 15, 2012, an ADA conducted a videotaped interview with James. (Trial Tr. at 205-06 (Klarman); People's Ex. 10.) During the interview, James stated that he and Jermaine were on the Upper West Side on the night of the Obert robbery to commit a different robbery: James had received a tip that a man would be refilling an ATM at an area deli and would be carrying $80,000 to $90,000 in cash. (People's Exhibit 10 [4:00-4:25; 7:18-7:41; 8:00-8:08; 9:53-10:00; 12:00-12:08].) He then stated that Jermaine saw the Oberts walking down the street and suggested robbing them. (Id. [4:17-4:23].) James said that he hesitated because that was not what he had come to do, but he ultimately “went along with it.” (Id. [4:25-4:33; 22:43-22:50; 23:20-23:50; 23:52-23:56].) However, he claimed that he never thought that Jermaine would pull a gun on the couple. (Id. [21:42-21:54; 24:38-24:50].) During the video interview, James offered to help the police obtain the gun that Jermaine had used in the robbery if the ADA agreed to release him and to buy multiple guns from the tipster on their behalf. (Id. [7:18-7:49; 9:55-10:08; 21:53-22:16].)
The videotaped interview was marked as People's Exhibit 10 and was provided to this Court as an MP4 file. In the citations to People's Exhibit 10 that follow, the times listed are drawn from the People's brief on direct appeal (see SR 154-58), but roughly correlate to the times reflected when viewing the MP4 file.
II. Relevant State Court Proceedings
A. Pre-Trial Motions And Suppression Hearing
1. James's Motion To Suppress Evidence
On December 14, 2012, James filed a pre-trial motion to suppress (1) physical evidence seized by the police; (2) evidence of Mr. Obert's show-up identification; and (3) evidence of statements he made to law enforcement. (SR 321-26.) James argued that (1) physical evidence recovered from him at his arrest was the result of an illegal seizure of his person; (2) the show-up identification was suggestive; and (3) the statements he made during his interviews with precinct detectives and the ADA were involuntary. (Id. 327-31.)
A hearing was conducted before Justice Maxwell Wiley on December 13 and 16, 2013. (12/13 Hearing Tr., ECF No. 24-5.) At the hearing, Sergeant Nikocevic and Officer Klarman testified and were cross-examined. (See id.) On January 8, 2014, Justice Wiley denied James's motion to suppress evidence in its entirety. (SR 310-15.) In his decision, Judge Wiley found that (1) there was probable cause for James's arrest and that the seizure of property was incident to that arrest; (2) the identification procedure was proper and was conducted in an unobstructed, well-lit area; and (3) James's statements were voluntary. (See id.)
The transcript of the December 2013 hearing before Justice Wiley is filed at ECF No. 24-5 at PDF pages 2 through 113.
2. James's Speedy-Trial Motion
On October 8, 2014, James filed a motion to dismiss the indictment pursuant to the provisions of New York Criminal Practice Law (“CPL”) §§ 30.30 (1) (a) and 210.20 (1) (g), claiming that the People violated his right to a speedy trial, as more than six months of includable time had passed since the commencement of the criminal action against him on October 16, 2012. (See SR 346.) The People disputed this claim, arguing that they were responsible for only 44 days of includable time. (Id. 347.) In a Decision dated December 12, 2014, Justice Ronald Zweibel found that no more than 79 days of includable time had passed and denied James's motion. (Id. 355.)
Pursuant to CPL § 30.30, the People must be ready for trial within six months of the commencement of the criminal action charging the defendant with a felony offense, with certain exclusions. See CPL § 30.30.
3. February 3, 2015 Hearing
During a hearing on February 3, 2015 that immediately preceded jury selection, Justice Zweibel stated that he would permit the jury to hear about James's 2003 conviction for possession of a firearm and the last two felonies that he was convicted of in 1988 and 1990, without going into the nature of the charges or underlying facts. (2/3/15 Hearing Tr., ECF No. 245, at PDF pp. 142-44.) James's counsel challenged the admissibility of certain portions of the video interview that the ADA had conducted of James. (Id. at PDF pp. 145-49.) James's counsel argued that, because James's criminal intent-i.e., to rob people for their money-was clear, the statements that he and his cousin were at the scene to commit another crime, and that he would like to work with the District Attorney's office and the Police Department to get additional guns for them, should not be admitted. (Id. at PDF pp. 146-51.)
Justice Zweibel ruled that he would admit James's statements that (1) James and his cousin had the gun for the purpose of committing one robbery, which fell through, so they decided to commit another robbery, and (2) James gave his cousin the gun for the purpose of committing that second robbery. (2/3/15 Hearing Tr. at PDF pp. 154-59.) However, Justice Zweibel found that James's statements that he could obtain guns from other sources and that he was willing to be an informant or a cooperator would not be admitted unless he challenged the voluntariness of his admitted statements. (Id. at PDF pp. 163-64.)
Justice Zweibel then proceeded with jury selection. (2/3/15 Hearing Tr. at PDF p. 167.) However, the next day, before jury selection continued, Justice Zweibel revisited the issue and James's statements and ruled that all of James's statements concerning his offer to obtain additional guns would be admitted into evidence, because the jury would receive a charge with regard to voluntariness, and these statements would be relevant to the jury's consideration of why James might have voluntarily admitted to having a gun and to giving it to his cousin for purposes of committing a robbery-i.e., because he wanted something from the police in return. (Id. at PDF pp. 222-23.)
B. Trial
Commencing on February 9, 2015, James was tried by jury before Justice Zweibel. (See Trial Tr. at 1.) A summary of the trial testimony is set forth in Background Section I, supra. The defense presented no evidence at trial. (See id. at 380.) On February 25, 2015, the jury returned a verdict and found James guilty of First- and Second-Degree Robbery for the robbery of Lana Obert, and not guilty of the robbery counts relating to Steven Obert. (Id. at 478-80; SR 388.)
C. Sentencing
On April 17, 2015, the People filed a Persistent Violent Felony Offender Statement, pursuant to Penal Law § 70.08 and CPL § 400.16, to have James sentenced as a persistent violent felony offender, alleging that he had two or more prior violent felony convictions. (SR 289-92.) This Statement was predicated upon James's May 31, 1988 conviction for Robbery in the Second Degree in New York Supreme Court, Kings County, and his August 1, 1990 conviction for Robbery in the First Degree in New York Supreme Court, New York County. (See id.)
On August 28, 2015, a hearing was held before Judge Richard Carruthers on James's challenge to his persistent felony offender status. (8/28/15 Hearing Tr., ECF No. 24-7.) At the hearing, the People entered certificates of the two predicate convictions. (Id. at 4-5.) In addition, Alex Rodriguez of the New York State Department of Corrections and Luis Rodriguez of the Federal Bureau of Prisons testified at the hearing. (See id. at 8-29.) After the hearing, Justice Carruthers found that the People had satisfied their burden of establishing that the sentences on James's two prior violent felony convictions were imposed within the statutory ten-year period and time properly was tolled when James was incarcerated. (See id. at 33-34.)
A Persistent Violent Felony Offender is a person who stands convicted of a violent felony offense after having previously been subjected to two or more predicate violent felony convictions. See Penal Law § 70.08(1)(a). The sentence upon the predicate violent felony convictions “must have been imposed not more than ten years before commission of the felony of which the defendant presently stands convicted.” Penal Law § 70.04(1)(b)(iv) . However, “[i]n calculating the ten year period . . ., any period of time during which the person was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony shall be excluded and such ten year period shall be extended by a period or periods equal to the time served under such incarceration.” Penal Law § 70.04(1)(b)(v).
The August 28, 2015 hearing transcript is contained at PDF pages 126 through 159 of ECF No. 24-7.
Petitioner was incarcerated from January 14, 2003 to December 15, 2009 in the federal penal system since he had been convicted of possession of a firearm in violation of 18 U.S.C. § 922(g)(1). (See SR 29.)
On September 1, 2015, James was sentenced by Justice Zweibel as a mandatory persistent violent felony offender. (Sentencing Tr., ECF No. 24-7, at 27-28.) For the First-Degree Robbery conviction, James received 22 years to life, and for the Second-Degree Robbery conviction, James received 16 years to life, with the sentences to run concurrently. (Id. at 28.)
The Sentencing Transcript is contained at PDF pages 160 through 188 of ECF No. 24-7.
D. James's 2016 CPL § 440.20 Motion
On February 16, 2016, James filed a motion to set aside his sentence, pursuant to CPL § 440.20 in New York County Supreme Court on the ground that the court improperly sentenced him as a persistent violent felony offender under Penal Law § 70.08. (SR 1-8.) James argued that the time that he was incarcerated for his federal offense should not count towards establishing his predicate felony status because his federal crime was not a felony in New York. (See id. 4-5.)
In a decision dated November 6, 2016, Justice Zweibel denied James's motion in its entirety. (SR 25-31.) The judge found that it did not matter whether James's federal offense was a felony in New York because the People did not rely on the federal offense as one of the prior felonies making James a persistent felony offender. (Id. 30-31.) Rather, the judge found that the People relied on two State convictions with respect to James's predicate status, and the relevant ten-year period was properly tolled for purposes of determining whether James was a persistent felony offender. (See id.)
On November 22, 2016, James filed an application for leave to appeal the denial of his CPL § 440.20 Motion. (SR 32-42.) On January 12, 2017, Justice David Friedman granted James's application for leave to appeal, which was consolidated with his direct appeal (SR 285), which appeal is discussed below.
E. Direct Appeal
On June 26, 2018, James, through assigned counsel from the Office of the Appellate Defender, filed his brief in support of his direct appeal to the Supreme Court of the State of New York, Appellate Division, First Department. (SR 43-128.) James raised the following five grounds on appeal: (1) the trial court improperly admitted evidence of uncharged previous crimes; (2) the jury's conviction was against the weight of the evidence; (3) the trial court improperly denied his motion to suppress a show-up identification; (4) the trial court improperly denied his speedy trial motion; and (5) the trial court improperly sentenced him as a persistent violent felony offender. (Id.)
On March 12, 2019, the Appellate Division unanimously affirmed James's conviction. People v. James, 170 A.D.3d 477 (1st Dep't 2019). With respect to the first ground for appeal (i.e., uncharged previous crimes), the Appellate Division held:
The court providently exercised its discretion in admitting portions of [James's] statements that concerned uncharged crimes. We concur that the probative value of this evidence outweighed any prejudicial impact. In his statements, [James] admitted that he and his cousin had planned, but were unable to commit, another robbery immediately before the charged robbery, and that they committed the charged robbery as a substitute for the planned robbery. These statements were probative on the issue of [James's] intent to act in concert with his cousin, particularly where [James] asserted that he did not share his cousin's intent to commit a gunpoint robbery. In addition, [James's] offer to help the police buy firearms in exchange for favorable treatment was probative to show the voluntariness of [James's] statement, an issue that [James] did not concede. [James] did not preserve his claim that limiting instructions were required, and we decline to review it in the interest of justice.Id. at 478 (citations omitted).
With respect to the second ground for appeal (i.e., weight of the evidence), the Appellate Division held:
The evidence, including [James's] own admissions, overwhelmingly established that [James] and Jermaine were working as a team in robbing both husband and wife, and had a “community of purpose.” That the jury acquitted [James] of robbing the husband does not warrant a different conclusion. Although in performing a weight of the evidence review, we may consider an alleged factual inconsistency in a verdict, we nevertheless find it “imprudent to speculate concerning the factual determinations that underlay the verdict.”Id. at 477-78 (citations omitted).
With respect to the third ground for appeal (i.e., suppression of the show-up identification), the Appellate Division held:
The court properly denied [James's] motion to suppress a showup identification. Initially, we note that identity was never an issue at trial, because defense counsel conceded that [James] was present, arguing instead that [James] did not act in concert with his cousin. In any event, the showup was sufficiently prompt, and the allegedly suggestive overall effect of the circumstances cited by [James] was not significantly greater than what is inherent in a showup itself.Id. at 478 (citations omitted).
With respect to the fourth ground for appeal (i.e., speedy trial), the Appellate Division held:
The court properly denied [James's] speedy trial motion. In order for [James] to prevail on this claim, both of the two periods of delay at issue would have to be includable. We find that the court correctly excluded each period. The 62-day period of delay during which the victims, who were living in Virginia, were caring for their newborn infant, was correctly excluded as “occasioned by exceptional circumstances[.]” The record sufficiently establishes that it would have been unreasonably burdensome for the victims to come to New York to testify during that period. The court also correctly excluded the 96-day period during which the People's motion for consolidation of [James's] indictment with that of his codefendant cousin was pending[.] Although the People ultimately withdrew the motion because their efforts to resolve an issue under Bruton v. United States, 391 U.S. 123 (1968) proved unsuccessful, there is nothing to suggest that the motion was not made in good faith or that it was frivolous.Id. at 478-79 (citations omitted).
With respect to the fifth ground for appeal (i.e., persistent violent felony offender), the Appellate Division held:
The court properly adjudicated [James] a persistent violent felony offender. The court correctly excluded the period during which [James] was incarcerated in federal prison in calculating whether 10 years had elapsed since his two prior violent convictions. In calculating the 10-year period, any period of time during
which [James] was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony was properly excluded.Id. at 479 (citations omitted).
In April 2019, James filed a counseled leave application with the Court of Appeals of the State of New York, asking the court to review the issues raised in his Appellate Division brief. (SR 268-69.) On June 14, 2019, Chief Judge Janet DiFiore of the New York Court of Appeals denied James's application for leave to appeal. (SR 283.)
F. James's 2019 CPL § 440.20 Motion
On May 7, 2019, James filed another motion to set aside his sentence, pursuant to CPL § 440.20(1), on the ground that he was improperly adjudicated and sentenced as a mandatory persistent violent felony offender. (SR 470-71.) In this motion, James argued that his 1988 robbery conviction, which was relied upon as a predicate felony, was unconstitutionally obtained and should not have been used to enhance James's sentence. (Id. 478-79.)
On September 18, 2019, Justice Robert Stolz entered a decision rejecting James's argument and denying James's 2019 CPL § 440.20 Motion. (SR 515-21.) On December 7, 2019, James filed an application for leave to appeal denial of his 2019 CPL § 440.20 motion. (SR 52231.) On February 20, 2020, Justice Barbara Kapnick of the First Department denied such leave. (Id. 535.)
LEGAL STANDARDS
I. AEDPA Generally
Under 28 U.S.C. § 2254(a), as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a person in custody pursuant to a state court judgment only may prevail on an application for a writ of habeas corpus on the ground that his or her custody violates “the constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The petitioner must show that the state court decision, having been adjudicated on the merits, is either “contrary to, or involved an unreasonable application of, clearly established Federal law” or is “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). For the purposes of federal habeas review, “clearly established law” is defined as “the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000).
A state court decision is “contrary to,” or an “unreasonable application of,” clearly established law if it: (1) is contrary to Supreme Court precedent on a question of law; (2) arrives at a conclusion different than that reached by the Supreme Court on “materially indistinguishable” facts; or (3) identifies the correct governing legal rule but unreasonably applies it to the facts of the petitioner's case. Id. at 412-13. The state court decision must be “more than incorrect or erroneous;” it must be “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003). The AEDPA “dictates a highly deferential standard for evaluating state-court rulings” and “demands that state-court decisions be given the benefit of the doubt.” Bell v. Cone, 543 U.S. 447, 455 (2005) (internal quotation marks and citations omitted).
II. Adequate And Independent State Law Grounds
Under the Adequate and Independent State Law Grounds doctrine, “the Supreme Court will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Davis v. Racette, 99 F.Supp.3d 379, 387 n.3 (E.D.N.Y. Apr. 21, 2015) (internal quotation marks omitted) (citing Coleman v. Thompson, 501 U.S. 722, 729 (1991)). “In the context of federal habeas review, if a state prisoner's federal challenge was not addressed in state court because the prisoner failed to meet a state procedural requirement, federal habeas review is barred.” Id. (citing Coleman, 501 U.S. at 730). “A procedural rule is considered adequate if it is firmly established and regularly followed by the state in question.” Davis v. Walsh, No. 08-CV-04659, 2015 WL 1809048, at *9 (E.D.N.Y. Apr. 21, 2015) (internal quotation marks and citation omitted). “To be independent, the state court must actually have relied on the procedural bar as an independent basis for its disposition of the case[.]” Id. (internal quotation marks and citations omitted).
“A habeas petitioner may bypass the independent and adequate state ground bar by demonstrating a constitutional violation that resulted in a fundamental miscarriage of justice, i.e., that he is actually innocent of the crime for which he has been convicted.” Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002); see also Coleman, 501 U.S. at 750 (merits of procedurally defaulted claim may not be reviewed by federal court “unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claim[] will result in a fundamental miscarriage of justice.”).
III. Ineffective Assistance Of Counsel
“To prevail on a claim of ineffective assistance of counsel, a petitioner must show (1) that his counsel's representation ‘fell below an objective standard of reasonableness,' and (2) that he suffered prejudice[.]” Momplaisir v. Capra, 718 Fed.Appx. 91, 92 (2d Cir. 2018) (summary order) (citing Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)). Under the first Strickland prong, there is a “strong presumption” that a lawyer's conduct “falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. Thus, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” Id. at 689; see also Silva v. Keyser, 271 F.Supp.3d 527, 546 (S.D.N.Y. 2017) (“a defendant has the burden of proving ‘that counsel's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy.'”) (quoting Kimmelman v. Morrison, 477 U.S. 365, 381 (1985) (citing Strickland, 466 U.S. at 688-89)). “In considering whether counsel ‘failed to exercise the skills and diligence that a reasonably competent attorney would provide under similar circumstances,' Boria v. Keane, 99 F.3d 492, 496 (2d Cir. 1996) (emphasis omitted), the Court looks to the totality of the record and must make ‘every effort . . . to eliminate the distorting effects of hindsight.'” Guerrero v. United States, No. 07-CR-00248 (GHW), 2017 WL 1435743, at *6 (S.D.N.Y. Apr. 20, 2017) (quoting Strickland, 466 U.S. at 688-89).
Under the second Strickland prong, the petitioner must demonstrate that the ineffective assistance prejudiced the defense, which means showing “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 a probability sufficient to undermine confidence in the outcome.” Id.
“A claim for ineffective assistance of appellate counsel is evaluated upon the same standard as is a claim of ineffective assistance of trial counsel.” Garfield v. Poole, 421 F.Supp.2d 608, 613 (W.D.N.Y. 2006) (citing Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994)). “A petitioner alleging ineffective assistance of appellate counsel must prove both that appellate counsel was objectively unreasonable in failing to raise a particular issue on appeal, and that absent counsel's deficient performance, there was a reasonable probability that defendant's appeal would have been successful.” Id. at 613-14 (citing cases).
DISCUSSION
I. Petitioner's Claim Regarding Admission Of Uncharged Crimes (Ground One) Should Be Denied
Petitioner asserts that the trial court erred by admitting videotaped statements he made to the ADA in which Petitioner (a) described plans to rob someone else before he and his cousin robbed the Oberts, and (b) offered to buys guns for the police in exchange for leniency. (See Pet. at PDF pp. 10-14; see also Am. Pet. at PDF p. 4.) Petitioner argues that the admission of these statements violates the prohibition articulated by the New York Court of Appeals in People v. Molineux, 168 N.Y. 264 (1901), that the prosecution cannot prove against a defendant any crime not alleged in the indictment either as a foundation for a separate punishment or as aiding the proofs that he is guilty of the crime charged. (See Pet. at PDF pp. 11-13.) The Appellate Division held that the trial court “providently exercised its discretion in admitting portions of [Petitioner's] statements that concerned uncharged crimes.” People v. James, 170 A.D.3d 477, 478 (1st Dep't 2019).
Although Petitioner also argues that the trial court's admission of his statements violated “the standards found in the Sandoval Rule” (see Pet. at PDF p. 11), the admission of the statements does not raise a Sandoval claim. Such a claim relates to a trial court's ruling regarding what prior convictions the prosecutor may cross-examine a defendant about should he testify, but here Petitioner never testified. See Lopez v. Unger, No. 07-CV-04145 (JS), 2010 WL 3937190, at *4 (E.D.N.Y. Sept. 30, 2010) (“A Sandoval claim is only reviewable in a habeas corpus proceeding when the petitioner testifies at trial and is cross-examined about his prior bad acts or convictions.”).
“A trial court's decision to admit evidence of uncharged crimes pursuant to Molineux ‘constitutes an evidentiary ruling based on state law' and is therefore generally not subject to habeas review.” Cox v. Bradt, No. 10-CV-09175 (CM) (JLC), 2012 WL 2282508, at *14 (S.D.N.Y. June 15, 2012). Nonetheless, “habeas relief may be warranted based on a state court's evidentiary ruling in the rare case where a petitioner can demonstrate that an erroneous evidentiary ruling resulted in a violation of a fundamental constitutional right, like the right to a fair trial or due process.” Id .
“Whether a Molineux ruling can ever violate due process has been explicitly left undecided by the Supreme Court.” Gonzalez v. Martuscello, No. 10-CV-06025 (MAT), 2011 WL 2600657, at *5 (W.D.N.Y. June 29, 2011) (citing Estelle v. McGuire, 502 U.S. 62, 75 n.5 (1991) (“[W]e express no opinion on whether a state law would violate the Due Process Clause if it permitted the use of ‘prior crimes' evidence to show propensity to commit a charged crime.”)).
A petitioner “bears a heavy burden in challenging a state court's evidentiary ruling.” Bonet v. McGinnis, No. 98-CV-06529 (HB), 2001 WL 849454, at *3 (S.D.N.Y. July 27, 2001). “To succeed on this claim, petitioner must demonstrate that the court admitted the evidence in error and that the evidence, 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.” Id. The Court thus first considers whether the admission of evidence was error under state law, and then considers the materiality of the evidence.
Regarding the admission of evidence, in Molineux, the New York Court of Appeals set forth five bases under which evidence of uncharged crimes may be relevant: (1) intent, (2) motive, (3) knowledge, (4) common scheme or plan or (5) identity. Molineux, 168 N.Y. at 294313. However, this list is “merely illustrative and not exhaustive.” People v. Dorm, 12 N.Y.3d 16, 19 (2009) (citation omitted). The admission of evidence of uncharged crimes is a “case-specific, discretionary exercise [that] remains within the sound province of the trial court, which is in the best position to evaluate the evidence.” People v. Morris, 21 N.Y.3d 588, 597 (2013) (internal citations omitted). “Thus, the trial court's decision to admit the evidence may not be disturbed simply because a contrary determination could have been made or would have been reasonable. Rather, it must constitute an abuse of discretion as a matter of law.” Id.
In the present case, the trial court did not abuse its discretion. As the Appellate Division held, Petitioner's admissions “that he and his cousin had planned, but were unable to commit, another robbery immediately before the charged robbery, and that they committed the charged robbery as a substitute for the planned robbery . . . were probative on the issue of [Petitioner's] intent to act in concert with his cousin, particularly where defendant asserted that he did not share his cousin's intent to commit a gunpoint robbery.” James, 170 A.D.3d at 478. Intent is one of the bases recognized in Molineux under which evidence of uncharged crimes may be relevant. Accordingly, Petitioner has not demonstrated that the evidence was admitted in error.
In any event, the evidence admitted - i.e., Petitioner's videotaped statements about the earlier planned robbery - was not sufficiently material to provide the basis for conviction or to remove a reasonable doubt. For example, Petitioner admitted in his other statements to the police that he had participated in the robbery and the stolen cell phones were found in his possession. Given the strength of the other evidence in the record, Petitioner simply cannot show that his statement regarding the aborted planned robbery was sufficiently material. See Cruz v. Griffin, No. 16-CV-08998 (CS) (JCM), 2019 WL 6220806, at *17 (S.D.N.Y. Oct. 24, 2019) (“For the erroneous admission of other unfairly prejudicial evidence to amount to a denial of due process, the item must have been ‘sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it.'” (citing Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998), abrogated on other grounds by 565 U.S. 228 (2012)), report and recommendation adopted, 2019 WL 6211262 (S.D.N.Y. Nov. 20, 2019).
Petitioner's claim that the trial court sua sponte should have given the jury limiting instructions regarding the uncharged crimes (see Am. Pet. at 4) was not preserved at trial for appellate review. Under New York law, “[a] party must make a specific protest at the time of a claimed error to preserve an issue for appellate review.” Harris v. Woods, No. 05-CV-05582 (PAC) (AJP), 2006 WL 1140888, at *35 (S.D.N.Y. May 1, 2006), report and recommendation adopted, 2006 WL 1975990 (S.D.N.Y. July 10, 2006) (citing People v. Hardy, 4 N.Y.3d 192, 197 n.3 (2005)). The Appellate Division declined to review Petitioner's “claim that limiting instructions were required” because he failed to preserve it. See James, 170 A.D.3d at 478. This adequate and independent state law ground cannot be challenged on habeas review. Moreover, Petitioner fails to show a fundamental miscarriage of justice, i.e., that he is actually innocent of the crime for which he has been convicted, Dunham, 313 F.3d at 730, given the overwhelming evidence of his guilt.
In sum, I recommend that Petitioner's claim regarding the admission of uncharged crimes be denied.
II. Petitioner's Claim Regarding The Weight Of The Evidence (Ground Two) Should Be Denied
Petitioner asserts that the jury verdict is against the weight of the evidence. (See Am. Pet. at PDF p. 6.) However, “Petitioner's claim that his conviction was against the weight of the evidence is not a basis for habeas relief.” Garrett v. Perlman, 438 F.Supp.2d 467, 470 (S.D.N.Y. 2006). “Unlike a sufficiency of the evidence claim, which is based upon federal due process principles, a weight of the evidence claim is ‘an error of state law, for which habeas review is not available.'” Id. (citing Douglas v. Portuondo, 232 F.Supp.2d 106, 116 (S.D.N.Y. 2002). Accordingly, I recommend that this claim be denied.
III. Petitioner's Claim Regarding The Showup Identification (Ground Three) Should Be Denied
Petitioner asserts that the showup identification by Mr. Obert was unnecessarily suggestive, and that testimony about it and Mr. Obert's in-court identification therefore should have been suppressed. (See Pet. at PDF pp. 18-21; see also Am. Pet. at PDF pp. 7-8.) The Appellate Division held that “the showup was sufficiently prompt, and the allegedly suggestive overall effect of the circumstances cited by [Petitioner] was not significantly greater than what is inherent in a showup itself.” James, 170 A.D.3d at 478. The Appellate Division's decision did not contradict or unreasonably apply clearly established federal law. See 28 U.S.C. § 2254(d).
Evaluating a pretrial identification procedure requires a two-step analysis. See United States v. Wong, 40 F.3d 1347, 1359 (2d Cir. 1994). Under the first prong, a court must determine whether the identification process was impermissibly suggestive. Id. The second prong requires the court to determine if the identification process was impermissibly suggestive, whether it was so suggestive as to raise a very substantial likelihood of irreparable misidentification. Id.
“If pretrial procedures have been unduly suggestive, a court may nonetheless admit in-court identification testimony if the court determines it to be independently reliable.” Wong, 40 F.3d at 1359. “The court looks generally to the factors set out in Biggers in determining whether an identification is reliable including: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of witness' prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; (5) and the length of time between the crime and the confrontation. Robinson v. Morton, No. 18-CV-03214 (KAM), 2021 WL 3111800, at *6 (E.D.N.Y. July 22, 2021) (citing Neil v. Biggers, 409 U.S. 188, 199 (1972)).
“Showup procedures are not rendered unduly suggestive as a matter of law merely because a defendant is handcuffed and surrounded by police.” See Robinson, 2021 WL 3111800, at *6 (citing United States v. Bautista, 23 F.3d 726, 730 (2d Cir. 1994)). The Second Circuit has held “that identification evidence from showups held in close temporal and geographic proximity to the crime scene may be admitted” and are not unduly suggestive. See Brisco v. Ercole, 565 F.3d 80, 89 (2d Cir. 2009).
In the present case, the Appellate Division's holding was consistent with federal law. Mr. Obert identified the Petitioner soon after the robbery and in close proximity to where the robbery occurred. Thus, it cannot be said that the identification procedure was unduly suggestive.
In any event, any error regarding the admission of testimony about Mr. Obert's showup identification was harmless error because, as the Appellate Division noted, Petitioner's defense was not misidentification, but rather that he had not acted in concert with his cousin. See James, 170 A.D.3d at 478 (“identity was never an issue at trial, because defense counsel conceded that [Petitioner] was present, arguing instead that [Petitioner] did not act in concert with his cousin”). Petitioner does not dispute that he was present during the robbery. Thus, I recommend that Petitioner's claim regarding the showup identification be denied.
IV. Petitioner's Claim Regarding Speedy Trial (Ground Four) Should Be Denied
Petitioner claims that the trial court improperly denied his state-law speedy-trial motion. (See Am. Pet. at PDF p. 9.) Under § 30.30 of the New York Criminal Procedure Law, an indictment is to be dismissed if, after six months of the commencement of the criminal action (with certain time being excluded), the prosecution was not ready for trial. See N.Y. Crim. Proc. Law § 30.30. However, “[t]his provision is purely a creature of New York state statute and does not protect a federal constitutional right.” See Parrish v. Lee, No. 10-CV-08708 (KMK), 2015 WL 7302762, at *11 (S.D.N.Y. Nov. 18, 2015) (citations omitted). “Therefore, a § 30.30 claim is not cognizable in a federal habeas case.” Id. Thus, I recommend that this claim be denied.
V. Petitioner's Claims Regarding His Sentence (Grounds Five And Six) Should Be Denied
Petitioner claims, on various grounds, that the trial court should not have sentenced him as a persistent violent felony offender. (See Am. Pet. at PDF pp. 11, 13.) These claims are not cognizable. “Whether a New York court erred in applying a New York recidivist sentencing enhancement statute is a question of New York State law, not a question of fact” and, thus, it is “not cognizable on federal habeas review.” Saracina v. Artus, 452 Fed.Appx. 44, 46 (2d Cir. 2011). See also Scott v. Graham, No. 16-CV-02372 (KPF) (JLC), 2018 WL 5257613, at *24 (S.D.N.Y. Oct. 22, 2018) (“Sentencing claims are not reviewable by a federal habeas court if they are merely state law claims.” (citing Saracina)). Thus, I recommend that Petitioner's claims regarding his sentence be denied.
The Petition asserts that: (1) the trial court erred in excluding the time Petitioner spent in a federal prison from the calculation of whether he committed the present offense within 10 years of the two predicate offenses (see Pet. at PDF pp. 25-28); (2) the trial court denied him the right to challenge his 1988 conviction as a predicate offense (id. at 29-30); and (3) his 1988 conviction was unconstitutional, and could not be used as a predicate offense, because he had not been informed during his plea colloquy in 1988 that his conviction could subject him to enhanced penalties for future convictions. (See id. at 29-30).
VI. Petitioner's Claim Regarding Ineffective Assistance of Appellate Counsel (Ground Seven) Should Be Denied
Petitioner claims that his appellate counsel was ineffective for failing to present two arguments on direct appeal: (1) that Petitioner was denied his Sixth Amendment right to a speedy trial, and (2) that the sentencing court erred in adjudicating Petitioner a persistent violent felon by relying on a 1988 conviction that Petitioner alleges was obtained in violation of his constitutional rights. (Am. Pet. at 14-16.) On neither count, however, is Petitioner able to demonstrate that his counsel's representation “fell below an objective standard of reasonableness” or that he suffered prejudice. Strickland, 466 U.S. at 688, 694.
A. Speedy Trial
Petitioner has not made a showing sufficient to overcome the presumption that, under the circumstances, his appellate counsel's decision not to advance a Sixth Amendment speedy-trial argument “might be considered sound trial strategy.” Strickland, 466 U.S. at 689. While Petitioner's brief makes clear that Petitioner would have preferred that his counsel advance such an argument, he makes no showing that such an argument has merit. In fact, it does not.
The constitutional right to a speedy trial involves a case-specific balancing of factors: “[1] [l]ength of delay, [2] the reason for the delay, [3] the defendant's assertion of his right, and [4] prejudice to the defendant.” Barker v. Wingo, 407 U.S. 514, 530 (1972). Here, the delay at issue totaled 28 months, but the Supreme Court has found delays of twice that much permissible. See, e.g., Id. at 516-18, 536 (denying Sixth Amendment violation despite delay of more than five years). Moreover, here, as meticulously documented by the State Court (see SR 346-55), the reason for a substantial amount of the delay was defendant or defendant's own counsel, and such delay cannot be held against Respondent. See, e.g., Vermont v. Brillon, 556 U.S. 81 (2009) (delays caused by failure of several assigned counsel to move defendant's case forward were not attributable to the State for speedy trial purposes). Finally, while Petitioner may have asserted his right to trial, he does not demonstrate any prejudice he suffered as a result of delay. Accordingly, the Court concludes that the four Barker factors balance decisively in Respondent's favor, that Petitioner's Sixth Amendment speedy trial argument is meritless, and that Petitioner's counsel should not be deemed ineffective for declining to advance it.
B. Unconstitutional Conviction
Similarly meritless is Petitioner's argument that his appellate counsel was ineffective for failing to raise the argument that the sentencing court erred in adjudicating him a persistent violent felon by relying on a 1988 conviction purportedly obtained in violation of his constitutional rights. Petitioner argues that that 1988 conviction is constitutionally infirm because the 1988 court improperly delegated to a “non-judicial officer”-i.e., a court clerk-the task of informing Petitioner of the consequences a guilty plea would entail. (Pet. Reply, at 6-8; see SR 495-98 (excerpt from transcript of May 31, 1988 hearing).) This “failure to retain control of the plea process,” Petitioner contends, constituted a “dereliction of the Court's constitutional responsibility” to perform the “core judicial function” of “impos[ing] a sentence, including its terms and conditions.” (Pet. Reply, at 7.)
Petitioner appears no longer to be arguing, as he did in support of his 2019 CPL § 440.20 Motion, that his 1988 conviction was constitutionally infirm because he was not made aware, prior to pleading guilty, that doing so might subject him to sentence enhancements for any future conviction. (Compare SR. 47879 (making this argument) with Am. Pet. at 14-15 (omitting it); see also 9/13/21 Resp. at 5 (nevertheless rebutting it).) To the extent this argument is not abandoned, it is meritless: Supreme Court precedent requires only that a defendant be made aware of a plea's “direct consequences” for the plea to be voluntary, Brady v. United States, 397 U.S. 742, 755 (1970), and the Court is unaware of any precedent establishing that a possible future sentence enhancement qualifies as a direct consequence. See, e.g., United States v. Salerno, 66 F.3d 544, 550-51 (2d Cir. 1995) (deeming the possibility of receiving an enhanced sentence for a later offense a collateral consequence of a guilty plea; ruling accordingly that “the defendant need not be told of this possible consequence in his original plea colloquy”).
While creative, this argument fails. As stated by the Fourth Circuit in a case cited by Petitioner himself, “[g]enerally, ‘courts may use nonjudicial officers . . . to support judicial functions, as long as a judicial officer retains and exercises ultimate responsibility.'” United States v. Comer, 5 F.4th 535, 547 (4th Cir. 2021) (quoting United States v. Miller, 77 F.3d 71, 77 (4th Cir. 1996)). This is precisely what occurred here. The court did not delegate any judicial discretion to the nonjudicial clerk simply by having him or her recite the relevant language. To the contrary, immediately before instructing the clerk of court to “[p]lease arraign the defendants,” the court stated on the record that “[t]he Court finds the defendants understand the plea and is satisfied that each [defendant] knows what proof there was in this case had the case gone to trial.” (SR 496 (emphasis added).)
Because both his proposed Sixth Amendment speedy trial argument and his unconstitutional conviction argument are meritless, Petitioner cannot show that his counsel's failure to raise them entailed that his counsel's representation “fell below an objective standard of reasonableness,” or led to his suffering prejudice. Strickland, 466 U.S. at 688, 694. Accordingly, I recommend that Petitioner's seventh claim be denied.
CONCLUSION
For the reasons set forth above, I respectfully recommend that James's Petition for a Writ of Habeas Corpus be DENIED in its entirety. The Clerk of the Court is respectfully requested to mail this Report and Recommendation to Pro se Plaintiff at the address indicated on the docket.
SO ORDERED.
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NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Cronan.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).