Opinion
20-CV-05348 (AT)(SN)
04-29-2022
KAREEM OMAR JONES, Petitioner, v. SUPERINTENDENT S. CRONIN, Respondent.
REPORT AND RECOMMENDATION
SARAH NETBURN, UNITED STATES MAGISTRATE JUDGE.
TO THE HONORABLE ANALISA TORRES:
Pro se petitioner Kareem Omar Jones seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to vacate his March 16, 2017 conviction of possession of a controlled substance in the third degree. Jones's petition should be denied.
BACKGROUND
I. Jones's Arrest and Indictment
On July 2, 2016, Jones drove into a parking lot operated by the New York City Housing Authority (“NYCHA”) to pick up his girlfriend. While on patrol, Officer Gelphin Gomez saw Jones's car turn into the lot, which NYCHA operated for residents and their invited guests. People parking in the lot were obligated to display permit stickers in their car windows, but Jones's car did not have one. Jones stopped in front of two parking spaces and his car's rear lights changed in a manner suggesting that he had shifted into park. No one got out of the car.
Officer Gomez approached the car from behind and used the patrol car loudspeaker to order Jones to lower his windows and put the car in park. Officer Gomez smelled marijuana, so he leaned over to get a better view into the car. He saw Jones sitting in the driver's seat and multiple bags of what appeared to be marijuana. Officer Gomez told Jones to get out of the car and put his hands on the trunk, and when Jones did, multiple items hit the ground, including small bags with pills and a white substance. Officer Gomez then searched Jones and the car and found money, a cellphone, a digital scale, and two used marijuana cigarettes.
On July 18, 2016, two and a half weeks after Jones's arrest, a grand jury indicted him on six counts: criminal possession of a controlled substance in the third degree, alleging, respectively, possession of heroin with the intent to sell it and possession of more than half an ounce of heroin, N.Y. Penal Law §§ 220.16(1), (12); criminally using drug paraphernalia in the second degree, N.Y. Penal Law § 220.50(3); criminal possession of a controlled substance in the seventh degree for possessing methamphetamine in the form of pills, N.Y. Penal Law § 220.03; unlawful possession of marijuana, N.Y. Penal Law § 221.05; and trespass for parking in a NYCHA lot without a permit sticker, N.Y. Penal Law § 140.05. ECF No. 15 (“R.”) at 7-10.
All citations to “T.” refer to the various state court transcripts filed at ECF No. 16.
On August 8, 2016, Jones moved pursuant to CPL § 190.50 to dismiss the indictment because he was not given an opportunity to testify before the grand jury. R. 39-42. He explained that, on the day of his arraignment, his then-attorney, Mr. Ghosh, served on the prosecution written notice of Jones's intent to testify before the grand jury. The prosecution in turn served on Mr. Ghosh a letter stating the date of the case's presentment (July 8, 2016) and noting that if Jones did not appear on that day at a certain location by 10:15 a.m., it would be construed as a withdrawal of his notice of intent to testify and the case would be presented to the grand jury without his testimony. On July 8, 2016, before 10:33 a.m., Mr. Ghosh spoke with an assistant district attorney and rejected the prosecution's pre-indictment offer but did not ask that the case be called. At 12:03 p.m. the same day, the prosecution fully presented its case to the grand jury and left a voice message on Mr. Ghosh's office telephone to inform him of that fact. The office telephone number was the only telephone Mr. Ghosh had provided. At around 12:25 p.m., when the case was called, Mr. Ghosh explained to the presiding judge that he needed to be relieved as there was a breakdown in communication with Jones. No mention was made of Jones's desire to testify before the grand jury. At 1:06 p.m., Mr. Ghosh left a voice message on another assistant district attorney's office telephone, asking her to call him. During a telephone conversation on July 11, 2016, Mr. Ghosh told her he had not realized that Jones's CPL § 180.80 release date was at 12:32 p.m. on July 8, 2016.
The court denied Jones's motion, finding that the prosecution had complied with its notice obligations under CPL §190.50, and that Jones's failure to testify before the grand jury was caused by his counsel's failure to cooperate and provide a definitive answer in a timely manner as to whether Jones would testify.
II. Relevant Trial Court Proceedings
A. Suppression Hearing
On February 8, 2017, Jones appeared for an evidentiary hearing regarding his motion to suppress evidence recovered at the time of his arrest, specifically the items recovered from his person and the car he was driving. Feb. 8, 2017 T. 6. Officer Gomez testified for the prosecution that, on the day he arrested Jones, he was on patrol when he saw Jones's car drive down a street at around two miles an hour, then stop in the NYCHA parking lot in front of two parking spaces. Id. at 20, 22, 25-26. The car Jones was driving did not have a permit to park in the NYCHA lot, as was required, and Officer Gomez's usual practice under the circumstances was to pull up his patrol car behind the car in question, “put [the] lights on,” and conduct a car stop. Id. at 11-14, 26, 36-37. Officer Gomez further testified that he approached Jones's car from behind and used his loudspeaker to order Jones to lower his windows and put the car into park. Id. at 27. Officer Gomez got out of his car, which was approximately five feet behind Jones's car, and smelled marijuana. Id. As he got closer to the car, the smell got stronger. Id. at 49. When Officer Gomez leaned over to get a better view into the car (without entering it), he saw Jones sitting in the driver's seat and multiple bags of what appeared to be marijuana in the driver's side door. Id. at 27-28, 43. Officer Gomez told Jones to get out of the car and put his hands on the trunk. Id. at 29, 44, 46. When Jones did, multiple items fell out of his waistband, including small bags with pills and a white substance. Id. at 29-30, 51. Officer Gomez subsequently searched Jones and the car and found money, a cellphone, a digital scale, and two used marijuana cigarettes. Id. at 3233. Jones did not present any evidence at the hearing.
The court denied Jones's motion to suppress the items recovered from his person and the car, holding that Officer Gomez was credible, and that he had an objective, credible reason to approach the car based on his observations of the lack of a valid parking permit and the way the car was parked in the lot. Id. at 67, 69-70. The court further held that, when Officer Gomez got out of his own vehicle, smelled marijuana, and observed marijuana in the car, he had at least a reasonable suspicion of a crime and was therefore entitled to require Jones to step out of the car. Id. at 70. The court concluded that the recovery of the items that fell from Jones's waistband was not the result of police conduct, and that the appearance of the fallen items gave police probable cause to arrest Jones and search both him and the car. Id. at 70-71.
B. Trial Testimony
At trial, Officer Gomez testified for the prosecution. Feb. 16, 2017 T. 3. His testimony was largely consistent with his testimony during the evidentiary hearing, except that, at trial, Officer Gomez stated that he had activated his vehicle's overhead lights when he stopped behind Jones's car, whereas at the suppression hearing he said it was his ordinary practice to use his lights in such circumstances (and did not specify whether he had turned the lights on in this instance). Id. at 17, 44. Officer Gomez also estimated the distance between his car and Jones's as two or three feet, as opposed to the five feet he estimated at the hearing. Id. at 16. Officer Gomez also said that he ordered Jones to roll his windows down but did not mention, unlike at the hearing, telling Jones to put the car in park. Id. at 17, 44.
Two expert witnesses also testified for the prosecution. One testified, in relevant part, that the heroin recovered from the ground after it fell from Jones's waistband was packaged in a manner consistent with narcotics sales. Id. at 61-67. The second testified that, based on a chemical analysis, the pills that fell from Jones's waistband were methamphetamine, and that the quantity of heroin recovered was over 15 grams, or more than half an ounce. Feb. 17, 2017 T. 81-91.
Jones's girlfriend, Jasmine Rosado, testified for the defense that the car Jones had been driving on the day of his arrest belonged to her but that she permitted him to drive it. Id. at 96. Rosado worked at the NYCHA housing complex associated with the lot where Jones had parked. Id. at 95. She did not have a resident permit but had previously parked in that lot while displaying her work identification in the window. Id. at 101. Rosado further testified that Jones was supposed to pick her up from work the day he was arrested, and that she had put the scale in the car. Id. at 96-97, 100, 108.
Jones also testified. He admitted that he had been smoking marijuana in the car before he was arrested, and that the marijuana and pills Officer Gomez belonged to him. Id. at 118-19, 128-29, 140. Jones testified that the bags of heroin were not his, had not fallen from his waistband, and were not otherwise on his person; instead, Officer Gomez had found them on the ground. Id. at 118, 127, 134.
C. Jury Deliberations and Verdict
During deliberations, the jury sent several notes expressing difficulty reaching a verdict (and other notes, not relevant here, requesting the opportunity to review certain evidence and repeat parts of the court's instructions). On February 22, 2017, shortly after beginning deliberations, the jurors asked, “What will happen if we're unable to come to a decision?” R. 75. The court consulted with counsel and instructed the jury, “[Y]ou have not been deliberating long enough to start thinking about being unable to reach a verdict, so don't worry about that at this point.” Feb. 22, 2017 T. 232-34. The next day, the jury sent a note indicating that they had reached a verdict on five of the six counts, but that they were at a “standstill” on the second count, criminal possession of a controlled substance in the third degree (relating to Jones's possession of more than half an ounce of heroin). The jurors were “divided” on that count but unanimous in their understanding that their “beliefs [were] unchangeable.” R. 73. The court again consulted with counsel and accepted the jury's partial verdict on the other five counts, convicting Jones of unlawful possession of marijuana and acquitting him of the other criminal possession counts, paraphernalia use, and trespass. R. 67; Feb. 23, 2017 T. 248-49.
The jury resumed deliberations the next day, February 24, 2017. The court instructed the jurors that their “role in this case [is] to determine a verdict on all of the counts” and that, “[w]hile the law does not and cannot reasonably require” that they agree on a verdict, “it is obviously preferable to everyone . . . that [a jury] reach a verdict . . . if possible.” Feb. 24, 2017 T. 3. The court emphasized that the jurors should not feel obliged to agree to an unjust verdict but suggested that the jury “should attempt to resolve your differences and try to reach a verdict on [the remaining] count that is in accord with your honest findings of fact.” Id. at 4. The court reminded the jurors of their oaths to keep open minds and remain objective during deliberations and reiterated that their “duty does not require that you reach a unanimous verdict on the remaining count” and “no jurors should surrender an honest opinion . . . solely because you're outvoted or for the mere purpose of reaching a verdict.” Id. at 4-6. Such a jury instruction is known as an Allen charge. See Allen v. United States, 164 U.S. 492, 501-02 (1896).
That afternoon, the jury returned another note stating that they were “evenly split” on the remaining count. R. 71. Jones's attorney requested a second Allen charge. Feb. 24, 2017 T. 16. The court expressed skepticism that the jury would return a verdict but granted the request. Id. at 17. The second Allen charge was substantially similar to the first; the court acknowledged that jury deliberations are “not an easy process” and that jurors' “discussions and arguments can be difficult, may be intense or even heated,” but that their oaths required them to make their decision not on “baseless speculations,” but on “reason, logic and commonsense.” Id. at 18-19. The court reiterated that the jurors “must not be guilty of pride and stubbornly stick to a conclusion that you no longer believe is correct,” and that no juror should consent to an unjust verdict simply because she was outvoted, or to bring deliberations to a close. Id. at 20. The court continued: “I am not suggesting that you must agree on a verdict that you do not consider to be a just verdict. I am suggesting that you should attempt to resolve differences and, therefore, try to reach a just verdict.” Id. The court also noted that, if the jury failed to agree upon a verdict, the case would have to be tried before another jury. Id. Jones did not object.
The jury subsequently convicted Jones of criminal possession of a controlled substance in the third degree. R. 68. Because he had a prior conviction for criminal possession of a weapon in the second degree, on March 16, 2017, the court sentenced Jones as a second felony drug offender with a prior violent felony conviction to six years in prison and three years of postrelease supervision, along with a $100 fine for the marijuana possession count. R. 4.
III. CPL § 440.10 Motion and Appellate Proceedings
Immediately after sentencing, Jones filed a pro se motion pursuant to § 440.10 to set aside the verdict and/or vacate the sentence. R. 90-91. He alleged, without further detail, “[i]nterest of justice, alleged fraud and perjury”; “due process of law”; “legal errors in trial”; “improper jury instructions”; “ineffective assistance of counsel”; “prosecutor's misconduct”; and “fruit of poison tree.” Additionally, he claimed he “was deprived [of] his right to [testify] before a grand jury” pursuant to CPL § “190.50 . . . as well as bail reduction,” and that his “constitutional rights ha[d] been violated in the 4th, 6th, and 14th Amendments[.]” The court denied his motion on March 20, 2017, and the Appellate Division, First Department, denied leave to appeal on November 12, 2017.
Jones appealed to the Appellate Division, First Department, on four bases: (i) he was denied the right to testify at the grand jury due to the actions of the court, the prosecution, and his defense counsel; (ii) the verdict was against the weight of the evidence; (iii) the police officer who engaged in the investigative inquiry that led to Jones's arrest lacked a founded suspicion that criminality was afoot, and in the alternative, his counsel was ineffective for failing to reopen the suppression hearing given the officer's contradictory trial testimony; and (iv) the court's second Allen charge impermissibly overstressed the jurors' responsibility to reach a verdict. R. 109-72. The Appellate Division affirmed the judgment as to Jones's conviction for third-degree criminal possession of a controlled substance on November 12, 2019. R. 272-75; People v. Jones, 177 A.D.3d 444 (1st Dep't 2019). The Appellate Division found that Jones was provided a reasonable opportunity to testify before the grand jury, and that his claims of ineffective assistance of counsel related to the issue were not apparent on the record. There was “no basis” for disturbing the jury's credibility determinations and the Appellate Division held that the verdict was not against the weight of the evidence. The Appellate Division further held that Officer Gomez's actions were reasonable, and that Jones's counsel was not ineffective in failing to re-open the suppression hearing. 177 A.D.3d at 444-45. Finally, the Appellate Division concluded that Jones had not preserved his challenge to the court's Allen charge, and, in the alternative, the charge was not coercive. The Appellate Division vacated Jones's conviction for unlawful possession of marijuana under the newly enacted N.Y. CPL § 160.50(5).
Jones sought leave to appeal to the New York Court of Appeals on all “issues raised in the Appellate Division brief.” ECF No. 1 at 123. He focused his application on two grounds: (1) the Appellate Division's ruling that the police officer's actions were reasonable; and (2) its ruling that counsel was not ineffective during the grand jury stage of the proceedings. His application was denied on March 30, 2020. R. 276.
Jones's leave application was not included in the state court records but was included by Jones as an exhibit to his petition. See ECF No. 1 at 122-24.
IV. Jones's Federal Habeas Petition
On July 9, 2020, Jones filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Construing Jones's petition liberally, he argues four grounds for relief (the same grounds raised before the Appellate Division): (i) he was denied the right to testify at the grand jury as a result of the actions of the court, the prosecution, and defense counsel; (ii) the verdict was against the weight of the evidence; (iii) the police officer who engaged in the investigative inquiry that led to Jones's arrest lacked a founded suspicion that criminality was afoot, and in the alternative, his counsel was ineffective for failing to re-open the suppression hearing given the officer's contradictory trial testimony; and (iv) the court's second Allen charge impermissibly overstressed the jurors' responsibility to reach a verdict.
According to the New York State Department of Corrections and Community Supervision's website, Jones was released from the Wyoming Correctional Facility on March 31, 2022. However, because his conviction included a term of post-release supervision, his habeas petition has not been mooted by his release. See United States v. Wiltshire, 772 F.3d 976, 979 (2d Cir. 2014) (holding same); Levine v. Apker, 455 F.3d 71, 77 (2d Cir. 2006) (“[U]nder 28 U.S.C. § 2243, this court may provide habeas relief ‘as law and justice require,' which could include a reduction in the petitioner's term of supervised release.”).
DISCUSSION
I. Legal Standards
A. Pro Se Filings
Courts liberally construe pleadings prepared by pro se litigants and hold them “to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). It is appropriate to interpret pro se submissions to raise the strongest arguments that they suggest. Gomez v. Brown, 655 F.Supp.2d 332, 342 (S.D.N.Y. 2009) (explaining that because of the right of self-representation, the court is obligated to make reasonable allowances to protect pro se litigants from “inadvertent forfeiture of important rights because of their lack of legal training” (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983))).
B. Habeas Standard of Review
A state prisoner seeking habeas relief under Section 2254 must show by a preponderance of the evidence that he is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); see Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997). Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the standard of review of a federal habeas corpus petition “depends upon whether the petitioner's claims have previously been ‘adjudicated on the merits' by a state court.” Spears v. Greiner, 459 F.3d 200, 203 (2d Cir. 2006); see 28 U.S.C. § 2254(d). An “adjudication on the merits” is one that “(1) disposes of the claim ‘on the merits', and (2) reduces its disposition to judgment.” Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001); accord Bell v. Miller, 500 F.3d 149, 155 (2d Cir. 2007).
Where a claim has been “adjudicated on the merits” in state court, under the AEDPA standard, a federal court on habeas review must determine whether the state court's determination was (1) “contrary to, or involved an unreasonable application of, clearly established Federal Law, as determined by the Supreme Court of the United States,” or (2) “was based on an unreasonable determination of the facts.” 28 U.S.C. §§ 2254(d)(1)-(2); see Johnson v. Williams, 568 U.S. 289, 292 (2013); Spears, 459 F.3d at 203.
A state court decision is “contrary to [the Supreme Court's] clearly established precedents if it applies a rule that contradicts the governing law set forth in” Supreme Court precedent, “or if it confronts a set of facts that is materially indistinguishable from a decision of [the] Court but reaches a different result.” Brown v. Payton, 544 U.S. 133, 141 (2005) (first citing Williams v. Taylor, 529 U.S. 362, 405 (2000); and then citing Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam)). A state court decision constitutes an “unreasonable application” of the Supreme Court's precedent if “the state court applies [that Supreme Court] precedent[] to the facts in an objectively unreasonable manner.” Id. (first citing Williams, 529 U.S. at 405; and then citing Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam)). Thus, in construing and applying federal law, even erroneous state court decisions that are deemed reasonable will survive habeas review. Williams, 529 U.S. at 409-13. For federal habeas review, factual determinations made by a state court are presumed correct, and a petitioner bears the burden of rebutting this presumption “by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
In order to reach this analysis, the petitioner's claims must also be cognizable on federal habeas review and cannot be procedurally barred.
II. Right to Testify Before the Grand Jury
“In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991). A defendant's right to testify before a grand jury is a state statutory right, not a constitutional right, and there is no federal right to grand jury proceedings in state prosecutions. See N.Y. CPL § 190.50(5); Davis v. Mantello, 42 Fed.Appx. 488, 491 n.1 (2d Cir. 2002); Branzburg v. Hayes, 408 U.S. 665, 688 n.25 (1972). “Claims of deficiencies in state grand jury proceedings are not cognizable in a habeas corpus proceeding in federal court.” Davis, 42 Fed.Appx. at 490.
Moreover, any error in the grand jury proceeding was rendered “harmless” by the petit jury's subsequent guilty verdict. Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989) (“If federal grand jury rights are not cognizable on direct appeal where rendered harmless by a petit jury, similar claims concerning a state grand jury proceeding are a fortiori foreclosed in a collateral attack brought in a federal court.”); see United States v. Mechanik, 475 U.S. 66, 73 (1986) (petit jury verdict made harmless “any conceivable error in the charging decision that might have flowed from” a violation of the Federal Rules of Criminal Procedure).
To the extent that Jones asserts an ineffective assistance of counsel claim in connection with the grand jury proceedings, he would need to show (1) that counsel's assistance fell below an objective standard of reasonableness and (2) that, but for counsel's deficient conduct, there is a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Counsel is “strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690. Habeas review of ineffective assistance claims is “doubly deferential” “to afford both the state court and the defense attorney the benefit of the doubt.” Woods v. Donald, 575 U.S. 312, 316 (2015) (cleaned up). As discussed above, the “conviction at trial cured any deficiency in the grand jury proceedings,” and Jones cannot show that his then-attorney's actions “prejudiced the outcome of his trial under Strickland's second prong.” Monroe v. Smith, No. 16-cv-2074 (AJN)(JCF), 2017 WL 933109, at *7 (S.D.N.Y. Mar. 8, 2017), adopted by 2017 WL 1740427 (S.D.N.Y. May 3, 2017); see Webb v. LaClair, No. 10-cv-7603 (PGG)(HBP), 2014 WL 4953559, at *7 (S.D.N.Y. Sept. 30, 2014) (finding same). Jones's grand jury claim is therefore not cognizable on federal habeas review and without merit.
III. Weight of the Evidence
Jones's renewed claim that the verdict was against the weight of the evidence is, like his grand jury claim, based in state law, and is not cognizable on federal habeas review. Douglas v. Portuondo, 232 F.Supp.2d 106, 116 (S.D.N.Y. 2002) (quoting Garbez v. Greiner, No. 01-cv-9865 (LAK)(GWG), 2002 WL 1760960, at *8 (S.D.N.Y. July 30, 2002)).
In his petition, Jones also claims for the first time that the evidence was legally insufficient to sustain the verdict. ECF No. 1 at 14. Legal sufficiency claims are cognizable on federal habeas review, see Douglas, 232 F.Supp.2d at 113-14, but must-like all other claims- be exhausted for the court to review them, 28 U.S.C. § 2254(b)(1)(A). See also O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (to exhaust a claim a petitioner must “invoke[] one complete round of the State's established appellate review process” before bringing the same claim in federal court). A claim is deemed exhausted if the petitioner: (i) “fairly presented” to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts; and (ii) presented his claim to the highest state court that could hear it. Baldwin v. Reese, 541 U.S. 27, 29 (2004); O'Sullivan, 526 U.S. at 844-48.
In New York, a “defendant must first appeal . . . to the Appellate Division, and then must seek further review . . . by applying to the Court of Appeals for a certificate granting leave to appeal.” Galdamez v. Keane, 394 F.3d 68, 74 (2d Cir. 2005). “New York procedural rules bar its state courts from hearing either claims that could have been raised on direct appeal but were not, or claims that were initially raised on appeal but were not presented to the Court of Appeals.” Sparks v. Burge, No. 06-cv-6965 (KMK)(PED), 2012 WL 4479250, at *4 (S.D.N.Y. Sept. 28, 2012). For claims involving matters not reflected in or fully explained by the record, a petitioner must assert the claim in a N.Y. CPL § 440.10 motion. If that motion is denied, he must then seek leave to appeal to the Appellate Division in order to exhaust his state court remedies. See N.Y. CPL § 450.90; Cosey v. Lilley, 460 F.Supp.3d 346, 370 (S.D.N.Y. 2020) (noting that, if Appellate Division denies leave to appeal the denial of a § 440.10 motion, no further appellate review under state law is available); accord Klein v. Harris, 667 F.2d 274, 284 (2d Cir. 1981).
Jones did not raise a legal sufficiency claim on direct appeal or in his § 440.10 motion. See R. 159-63, 259-70. He therefore has no remaining state-court avenues for relief, and the claim is deemed exhausted but procedurally defaulted. See Sweet v. Bennett, 353 F.3d 135, 14041 (2d Cir. 2003).
Jones may avoid procedural default by “show[ing] ‘cause' for the default and ‘prejudice attributable thereto,' or demonstrat[ing] that failure to consider the federal claim will result in a ‘fundamental miscarriage of justice,'” Harris v. Reed, 489 U.S. 255, 262 (1989) (citations omitted), which requires demonstration of “actual innocence,” Calderon v. Thompson, 523 U.S. 538, 559 (1998); accord Dretke v. Haley, 541 U.S. 386, 388 (2004) (citation omitted); Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002). Jones has neither demonstrated good cause to excuse his failure to preserve his legal sufficiency claim nor presented “new,” “credible,” and “compelling” evidence of his innocence. Hyman v. Brown, 927 F.3d 639, 656-57 (2d Cir. 2019). He points to the fact that the jury acquitted him on other counts, but that does not change the fact that the jury credited Officer Gomez's testimony and unanimously found Jones guilty of criminal possession of more than half an ounce of heroin. Jones cannot demonstrate actual innocence by re-litigating the credibility of the evidence that was presented at trial.
Even if the Court were to consider the merits of Jones's legal sufficiency claim, he would be entitled to relief only if “upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 324 (1979). Jones's challenge to the credibility of the witnesses against him is not enough. “The jury chose to believe the witnesses' testimony,” and the Court “will defer to the jury's assessment of credibility.” United States v. Vasquez, 267 F.3d 79, 91 (2d Cir. 2001).
Accordingly, Jones's weight of the evidence claim is not cognizable on federal habeas review. Any legal sufficiency claim is procedurally barred and, alternatively, fails on the merits.
IV. Fourth Amendment Claim
Jones brings two claims related to the stop that led to his arrest: (1) the police officer who engaged in the investigative inquiry that led to Jones's arrest lacked a founded suspicion that criminality was afoot (and therefore the evidence resulting from the inquiry should have been suppressed), and (2) in the alternative, that his counsel was ineffective for failing to re-open the suppression hearing given the officer's contradictory trial testimony.
A. Evidence Resulting from Jones's Arrest
Federal courts are generally barred from reviewing claims based on the exclusionary rule under the Stone doctrine. In Stone v. Powell, a case brought pursuant to 28 U.S.C. § 2254, the Supreme Court recognized that “[t]he primary justification for the exclusionary rule . . . is the deterrence of police conduct that violates Fourth Amendment rights.” 428 U.S. 465, 486 (1976). Therefore, enforcing the rule at trial and upon direct appeal serves to “discourage law enforcement officials from violating the Fourth Amendment by removing the incentive to disregard it.” Id. at 492-93. But, the Court reasoned, “the additional contribution, if any, of the consideration of search-and-seizure claims of state prisoners on collateral review is small in relation to the costs.” Id. at 493.
Accordingly, the Supreme Court concluded that “the overall educative effect of the exclusionary rule” would not “be appreciably diminished if search-and-seizure claims could not be raised in federal habeas corpus review of state convictions.” Id. at 493. As such, it held that Fourth Amendment exclusionary rule claims are not cognizable in habeas proceedings where the state courts had “provided an opportunity for full and fair litigation” of the claim. Id. at 482.
Generally, a petitioner will have been denied a full and fair opportunity to litigate his Fourth Amendment claims only “(a) if the state has provided no corrective procedures at all to redress the alleged fourth amendment violations; or (b) if the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process.” Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992). All Fourth Amendment claims that were fully and fairly litigated, including illegal stops, arrests, searches, or seizures, are barred from habeas review. Additionally, review is barred regardless of the type of evidence the petitioner sought to suppress. See Cardwell v. Taylor, 461 U.S. 571, 572-73 (1983) (per curiam).
The New York courts provided Jones with the appropriate corrective procedures to address his alleged Fourth Amendment violation. First, he was afforded a pre-trial suppression hearing and challenged the denial of his suppression motion on direct appeal. These are the exact corrective procedures embodied in CPL § 710 that “federal courts have approved . . . for litigating Fourth Amendment claims.” Capellan, 975 F.2d at 70 n.1 (citations omitted).
Accordingly, Jones's claim is cognizable only if he can show that there was an unconscionable breakdown in those corrective procedures. To do so, he must show that the state's corrective process was rendered “meaningless because the totality of state procedures allegedly did not provide rational conditions for inquiry into federal law questions.” Capellan, 975 F.2d at 70 (cleaned up).
Jones fails to show that there was an “unconscionable breakdown” in New York's corrective processes. At most, his petition raises disagreements with the state courts' conclusions. Such disagreements, however, do not rise to the level of an unconscionable breakdown in the corrective process. Instead, an “unconscionable breakdown in the state's process must be one that calls into serious question whether a conviction it obtained pursuant to those fundamental notions of due process that are at the heart of a civilized society.” Cappiello v. Hoke, 698 F.Supp. 1042, 1050 (E.D.N.Y. 1988), aff'd, 852 F.2d 59 (2d Cir. 1988).
The record shows that Jones sought and was granted a hearing on his suppression motion, where he cross-examined witnesses and argued in favor of his motion. Following the hearing, the court issued factual findings and legal conclusions, finding that the motion was without merit. Jones raised the same claim on direct appeal, which the Appellate Division considered and rejected in a reasoned opinion. Thereafter, the Court of Appeals denied leave to appeal. All of this is evidence that the corrective procedures afforded to Jones were not hampered by an unconscionable breakdown.
Accordingly, because Jones availed himself of New York's corrective processes for addressing his Fourth Amendment claim, and because he has failed to demonstrate or even allege an unconscionable breakdown in those processes, the Court finds that he was afforded a full and fair opportunity to litigate his Fourth Amendment claim. As such, the Court is precluded from reviewing this claim under Stone.
B. Reopening the Suppression Hearing
Jones renews his claim from direct appeal that his attorney was ineffective for failing to move to reopen the suppression hearing based on Officer Gomez's inconsistent hearing and trial testimony. The Appellate Division rejected this claim. People v. Jones, 177 A.D.3d at 445.
While “§ 2254(d) stops short of imposing a complete bar on federal-court relitigation of claims already rejected in state proceedings,” habeas corpus is “a “‘guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction.” Harrington v. Richter, 562 U.S. 86, 103 (2011) (citation omitted). Jones must therefore show “that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. This standard is even more deferential for ineffective assistance of counsel claims.
Jones has failed to demonstrate either (1) that counsel's failure to move to reopen the suppression hearing fell below an objective standard of reasonableness, or (2) that, but for counsel's conduct, there is a reasonable probability that the result of the proceeding would have been different. See Strickland, 466 U.S. at 688, 694. On appeal, he claimed that counsel was unreasonable for failing to reopen the hearing based on four discrepancies between Officer Gomez's hearing and trial testimony. The Appellate Division ruled that Officer Gomez's actions were “reasonable safety measures” consistent with an “information request,” police conduct which does not constitute a seizure under Fourth Amendment law and does not violate the New York Constitution when justified by an objective credible basis. See People v. Hollman, 79 N.Y.2d 181, 185, 191 (1992); People v. Crawford, 262 A.D.2d 330, 330 (2d Dep't 1999); cf. Terry v. Ohio, 392 U.S. 1, 22-23 (1968). Jones could not have won a renewed suppression motion under either the Fourth Amendment or New York Constitution, and counsel's failure to make such a motion was reasonable.
Nor has he shown that the Appellate Division acted unreasonably in determining that he would not have been entitled to re-open the suppression hearing. Jones has offered no additional pertinent facts that could not have been discovered earlier with due diligence. See N.Y. CPL § 710.40(4). The jury and trial court found Officer Gomez credible, and the Court is bound by their determinations. See Cotto v. Fischer, No. 09-cv-9813 (SAS)(MHD), 2012 WL 5500575, at *25 (S.D.N.Y. Aug. 23, 2012), adopted sub nom. Cotto v. Fisher, 2012 WL 5499890 (S.D.N.Y. Nov. 12, 2012) (“A jury is entitled to credit the prosecution's witnesses despite any inconsistencies, and it is not the role of the habeas court to question a jury's credibility finding.”).
Jones's ineffective assistance of counsel claim is therefore meritless.
V. The Court's Second Allen Charge
The Appellate Division rejected Jones's claim that the trial court's second Allen charge was coercive as unpreserved and, alternatively, without merit. 177 A.D.3d at 445.
“A federal habeas court will not review a claim rejected by a state court ‘if the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment.'” Walker v. Martin, 562 U.S. 307, 315 (2011) (quoting Beard v. Kindler, 558 U.S. 53, 55 (2009)) (alteration in Kindler). The state-law ground may be substantive or procedural. Id.; accord Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir. 2006). “Even where the state court has ruled on the merits of a federal claim ‘in the alternative,' federal habeas review is foreclosed where the state court has also expressly relied on the petitioner's procedural default.” Murden v. Artuz, 497 F.3d 178, 191 (2d Cir. 2007) (quoting Green v. Travis, 414 F.3d 288, 294 (2d Cir. 2005)).
“To bar federal habeas review, however, the state court's decision must rest not only on an independent procedural bar under state law, but also on one that is ‘adequate to support the judgment.'” Id. (quoting Jimenez, 458 F.3d at 138). A state procedural bar is “adequate” if it “is firmly established and regularly followed by the state in question” in the “specific circumstances presented in a case.” Monroe v. Kuhlman, 433 F.3d 236, 241 (2d Cir. 2006) (citation omitted); see Kindler, 558 U.S., at 60-61 (holding same); Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (citation omitted) (listing guideposts for determining adequacy of procedural rule).
The Appellate Division rejected Jones's Allen charge claim as unpreserved under N.Y. CPL § 470.05(2), New York's contemporaneous objection rule. The Court of Appeals has “held repeatedly that the contemporaneous objection rule is a firmly established and regularly followed New York procedural rule.” Downs v. Lape, 657 F.3d 97, 104 (2d Cir. 2011). The claim is therefore procedurally barred.
As discussed previously with regards to his weight of the evidence claim, Jones could overcome this procedural bar by showing cause for the default and attributable prejudice, or by showing that failure to consider the federal claim will result in a fundamental miscarriage of justice, which requires demonstration of actual innocence. But Jones has neither demonstrated good cause to excuse his failure to preserve his Allen charge claim nor presented new, credible, and compelling evidence of his innocence. I therefore recommend the Court find that Jones's Allen charge claim is procedurally barred because the Appellate Division's decision rested on the adequate and independent state ground of preservation.
However, even if the Court could reach the merits of his claims, he cannot establish that federal habeas relief is warranted. Courts consider whether a particular supplemental instruction made to a jury was coercive in the instruction's “context and under all the circumstances of [the] case.” Jenkins v. United States, 380 U.S. 445, 446 (1965). Here, the Appellate Division reasonably declined to find that the trial court's second Allen charge was coercive. Setting aside the fact that Jones's counsel requested the second charge, the court did not emphasize that the minority of jurors should reconsider their views, instead urging each juror to “listen to and consider the views of your fellow jurors” and to “be willing to change your preliminary decision if persuaded you are not correct or adhere to it if persuaded you are correct.” Feb. 24, 2017 T. 18; see Lowenfield v. Phelps, 484 U.S. 231, 237-38 (1988) (rationale for permitting Allen charge applies with “even greater force” where the charge does not speak specifically to minority jurors). The court also emphasized that the jury's duty was to “try to reach a just verdict,” not to “agree on a verdict that you do not consider to be a just verdict.” Feb. 24, 2017 T. 20. The jury then continued deliberating for approximately four more hours in total before reaching a verdict. Cf. Lowenfield, 484 U.S. at 240 (“We are mindful that the jury returned with its verdict soon after receiving the supplemental instruction, and that this suggests the possibility of coercion.”). Given the circumstances of the case and the charge itself, Jones fails to show that the Appellate Division's determination that the second Allen charge was either contrary to (or involved an unreasonable application of) clearly established federal law or was based on an unreasonable determination of the facts.
CONCLUSION
I recommend denying Jones's petition as to all four of his claims. His claims are not cognizable, procedurally defaulted, and without merit.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from the 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. 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 shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Analisa Torres at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. 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 Woods. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. 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).