Opinion
21-CV-4792 (JPC) (JW)
01-27-2023
CHARLES LITTLE, Petitioner, v. THERESA TYNON, Superintendent, Respondent.
TO THE HONORABLE JOHN P. CRONAN, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
JENNIFER E. WILLIS UNITED STATES MAGISTRATE JUDGE
Petitioner Charles Little brings this habeas corpus proceeding in accordance with 28 U.S.C. § 2254, seeking to challenge his June 13, 2013 conviction of one count of robbery in the first degree in violation of N.Y. Penal Law § 160.15(4). On January 17, 2014, Judge Denis J. Boyle of the New York State Supreme Court of Bronx County sentenced Petitioner to 12 years of incarceration with five years of post-release supervision. Dkt. No. 13-16 at 26.
Although Petitioner was incarcerated at Washington Correctional Facility at the time he filed his Petition, he was conditionally released on April 11, 2022. See Inmate Lookup, Dep't of Corrections and Community Supervision, https://nysdoccslookup.doccs.ny.gov/. Nonetheless, the Court finds Respondent to be proper because Respondent was proper at the time the petition was filed. See Rule 2(a) of the Rules Governing Section 2254 Cases in the United States District Courts (“[T]he petitioner must name as respondent the state officer who has custody.”). See Cox v. Brandt, No. 10-CV-9175 (CM) (JLC), 2012 WL 2282508, at *7 n.7 (S.D.N.Y. June 15, 2012) (finding the respondent was proper even though petitioner was released on parole because petitioner was in respondent's custody at the time the petition was filed); Bell v. Ercole, 631 F.Supp.2d 406, 411 n.1 (S.D.N.Y. 2009) (deeming the respondent proper even though petitioner had relocated after filing because the respondent had custody of petitioner at time he filed his petition, petitioner was pro se, and the State did not challenge the court's jurisdiction). Additionally, the fact that Petitioner has been conditionally released does not moot his habeas petition, as he remains subject to “collateral consequences” from his conviction. See Spencer v. Kemna, 523 U.S. 1, 7-8 (1998) (petitioner's incarceration when he filed petition, despite subsequently being paroled, was all that “‘in custody' provision of 28 U.S.C. § 2254 requires” and collateral consequences of wrongful conviction are presumed to exist, even if “remote and unlikely to occur”) (citations omitted).
In his petition, Petitioner asserts the following claims:
1) he was denied the right to self-representation because the trial court failed to hold an inquiry on his request to proceed pro se and forced Petitioner to have counsel after he said he did not want one;
2) he was deprived the right to effective assistance of counsel due to counsel's failure to consult with or hire an eyewitness identification expert or seek to introduce expert testimony about the unreliability of eyewitness identifications;
3) he was denied a hearing on his actual innocence claim; and
4) he is actually innocent.Dkt. No. 2 at 3-8.
Respondent argues that the Appellate Division, First Department's “resolutions of Grounds One and Two were neither contrary to nor unreasonable applications of clearly established Supreme Court precedent, nor were they based on unreasonable determinations of the facts, and that Grounds Three and Four are not cognizable claims for substantive habeas relief.” Dkt. No. 13 at 9-10. For the reasons stated below, the Court recommends that the petition be denied.
BACKGROUND
The following facts are drawn from the state trial court's record of proceedings. In view of Petitioner's conviction, the Court summarizes the evidence presented at trial in the light most favorable to the verdict. See Garbutt v. Conway, 668 F.3d 79, 80 (2d Cir. 2012) (citation omitted).
I. The Robbery
On the evening of September 17, 2011, Jonathan Lopez was at Sin City, a strip club in the South Bronx, to celebrate his friend's birthday. Dkt. No. 15-7 at 500-01. Around 1:00 a.m. on September 18, 2011, after drinking alcohol, Lopez left Sin City and walked about ten minutes to his car, which was parked on an empty street. Id. at 518-20. While Lopez was sitting in the driver's seat of his unlocked car, Petitioner entered the backseat of the car and pointed a gun to the back of Lopez's head. Id. at 526-27. Petitioner threatened to kill Lopez and told Lopez to “give him everything.” Id. at 528. Petitioner took Lopez's wallet, phone, car key, items in his glove compartment, and jewelry, including a double-finger ring that caused Lopez's finger to bleed upon removal. Id. at 528-31, 536. After Petitioner left, Lopez stayed in his car until daylight because he felt safer there than outside his car in an unfamiliar area. Id. at 540-41.
When Lopez spoke to the police after the incident, Lopez stated that he was approached while he was getting into his car. Dkt. No. 15-8 at 675.
II. Post-Robbery
In the morning on September 18, 2011, Lopez woke up in his car and discovered two cards in the backseat, including a benefit card with Petitioner's photo. Id. at 543. Around 10:00 a.m., Lopez went to a nearby police station, reported the robbery, and gave Petitioner's cards to Officer Russo. Id. at 542, 547-48, Dkt. No. 15-8 at 688. Lopez reported that the person who robbed him was the Black male in the benefit card (Dkt. No. 15-7 at 591) and was taller than him. Dkt. No. 15-9 at 740. Lopez is five feet four inches tall (Id. at 739) and Petitioner is five feet six inches tall. Dkt. No. 15-11 at 944.
After putting up wanted posters, Officer Russo was alerted on January 3, 2012 that another precinct had arrested Petitioner. Dkt. Nos. 15-9 at 701; 15-10 at 784. That same day, Officer Russo transferred Petitioner to the 40th Precinct and placed him, along with five other men, in a lineup. Dkt. No 15-9 at 702, 714. All the men were seated to avoid height differences. Id. at 716, 719. They all wore a black wool hat and a black plastic bag up to their chin “so [that] they all look the same.” Id. at 719. Lopez identified Petitioner in the lineup as the person who robbed him. Dkt. No. 15-7 at 551.
III. State Court Procedural History
a. Pre-Trial Proceeding
Petitioner was arraigned on January 4, 2012. Dkt. No. 15-19 at 205. Before a grand jury, Petitioner testified that during the evening of September 17, 2011 and early morning of September 18, 2011, he was not at Sin City. Rather, he was in an apartment with his girlfriend, Crystal Sanchez, and others watching a boxing match. Dkt. No. 15-18 at 106, 109. Around 3:00 a.m., Petitioner and Sanchez had an argument about him wanting to leave to go to a club, but he ended up staying with Sanchez. Id. at 107. Petitioner stated he did not realize his benefit card was missing until October 2011. Id. at 118. The government introduced Petitioner's post-arrest statement made to Police Officer Anthony Russo. Officer Russo testified that after he was arrested, Petitioner stated he was at Sin City around the time of the robbery. Id. at 133. Petitioner said he was showing off his money to a woman in line. Id. at 134. Officer Russo testified that he showed Petitioner his benefit card, without mentioning a car, and Petitioner responded that “he might have lost it, but he didn't leave it inside of anybody's car.” Id. On January 10, 2012, the grand jury indicted Petitioner. Dkt. No. 15-17 at 42.
On July 11, 2012, Bronx County Supreme Court Judge Best denied Petitioner's motion to dismiss his indictment and his request for the grand jury minutes (Dkt. No. 15-18 at 130-39), finding the grand jury evidence to be “straightforward” and “thorough” and “plainly established reasonable cause to believe that” Petitioner robbed Lopez. Id. at 137. On October 5, 2012, Judge Best relieved Petitioner's counsel, Robert Gardner, from representing Petitioner. Dkt. No. 13-13 at 4. Petitioner requested to represent himself. Id. at 5. Judge Best responded that the inquiry as to whether Petitioner could represent himself was “a long one” and would have to be resolved another day. Id. at 7-8. On October 17, 2012, Petitioner appeared in court with Cesar Gonzalez, his new and fourth appointed counsel. Dkt. No. 13-15 at 1. Judge Boyle did not address whether Petitioner could represent himself but found that Petitioner would be best served “by making every effort to communicate” with Gonzalez. Id. at 6.
On November 20, 2012, Judge Boyle relieved Gonzalez as Petitioner's counsel, advised Petitioner to speak with new counsel before deciding to waive his right to one, and stated that he would address Petitioner's request to represent himself at a later time. Dkt. No. 13-16 at 7-8. On November 27, 2012, Maria Tobia appeared as Petitioner's assigned counsel, but Petitioner stated that he wanted to represent himself. Dkt. No. 13-17 at 4. Judge Boyle stated that “the right to represent yourself” is not “unqualified,” advised Petitioner to talk to Tobia, and stated that he could discuss an application to represent himself at a later time. Id. at 6. On December 12, 2012, Tobia appeared as Petitioner's counsel. Petitioner did not raise his request to represent himself again. Dkt. No. 13-18. On January 11, 2013, Tobia appeared as Petitioner's counsel and stated she was doing so “with [Petitioner's] consent.” Dkt. No. 13-19 at 3. Petitioner did not raise his request to represent himself. Judge Boyle held that Petitioner's rights were not violated under C.P.L. § 180.80 and there was no ineffective assistance of counsel. Id.
a. Trial
Trial began on May 30, 2013. Dkt. No. 15-6 at 448. Officer Russo reiterated his grand jury testimony. Dkt. No. 15-9 at 710-11. Lopez testified that he identified Petitioner in the lineup as the man who robbed him. Dkt. No. 15-7 at 553. Petitioner testified that on the night of the robbery, he was not at Sin City but rather with his girlfriend, Sanchez, at her house. Dkt. No. 15-12 at 972-75. Petitioner noted that he first learned that his cards were connected to the robbery when he was arrested and he last used one of the cards was on September 8, 2011. Dkt. No. 15-11 at 906-07. Petitioner further testified that his former friend, Tristan McCall, took his cards as collateral for money Petitioner owed him. Id. at 908. Additionally, Petitioner acknowledged that he did not mention McCall before the grand jury because he wanted to protect McCall and that he had instead told the grand jury under oath that the cards had been missing. Id. at 912-28; Dkt. No. 15-12 at 1001, 1004.
On June 13, 2013, the jury found Petitioner guilty of first-degree robbery. Dkt. Nos. 15-16 at 1349. On June 25, 2013, Judge Boyle conducted a Huntley/Wade/Dunaway proceeding and denied Petitioner's motion to suppress identification testimony and evidence of his statement to Officer Russo. Dkt. No. 1518 at 152. On January 7, 2014, Judge Boyle denied Petitioner's motion to vacate his verdict under C.P.L. § 330.30(1) despite Petitioner's argument that the government suppressed video footage of the scene of the robbery and failed to preserve his wanted posters. Id. at 183-85. Judge Boyle held that neither the videotape nor the wanted posters were exculpatory evidence and the government never had the video. Id. at 184-85. On January 17, 2014, Judge Boyle sentenced Petitioner to 12 years in prison and five years post-release supervision. Dkt. No. 15-16 at 26.
b. Post-Judgment Proceedings
On September 3, 2015, Judge Boyle denied Petitioner's C.P.L. § 440.10(h) motion to vacate his judgment based on ineffective assistance of counsel. Dkt. No. 15-19 at 204-13. On June 27, 2016, Petitioner, represented by Matthew A. Wasserman filed an appeal in the Appellate Division, First Department, arguing that (1) Petitioner's “constitutional right to represent himself was violated by the trial court's failure to resolve his repeated requests to represent himself” (Dkt. No. 13-1 at 19); (2) Petitioner “was deprived of his right to a fair trial by the prosecution's improper summation, including unsupported speculation about [Petitioner's] ‘opportunity' to commit this crime, personal denigration of defense witnesses, and distortion of the evidence” (Id. at 27); (3) Petitioner's “conviction was against the weight of the evidence because the testimony of a single inebriated stranger of a different race, unsupported by any forensic evidence, was insufficient to identify him” (Id. at 36); and (4) Petitioner's “sentence is excessive.” Id. at 46.
On June 13, 2017, the Appellate Division, First Department affirmed the judgment of conviction. People v. Little, 151 A.D.3d 531 (1st Dep't 2017). “Petitioner's requests for self-representation were not unequivocal as they were ‘made in the context of a claim of dissatisfaction with counsel.'” Id. at 531. The Court responded to Petitioner's multiple requests to represent himself by stating that his requests would be reviewed at a later date, and Petitioner eventually “abandoned his request to appear pro se.” Id. at 531-32. On September 8, 2017, the New York Court of Appeals denied Petitioner leave to appeal. People v. Little, 30 N.Y.3d 951 (2017).
On November 13, 2018, Petitioner filed a motion to vacate his conviction pursuant to C.P.L. § 440.10 in Bronx County Supreme Court. Petitioner argued he was denied effective counsel because his trial counsel failed to consult an eyewitness identification expert (Dkt. No. 13-5 at 7) and the Court should order a hearing to assess Petitioner's actual innocence claim. Id. at 26. On June 6, 2019, Judge Boyle denied Petitioner's motion, holding, among other things, that “trial counsel cogently put in issue other factors in the record bearing on the jury's evaluation of the accuracy of [Lopez's] identification of [Petitioner].” Dkt. No. 13-8 at 5. In addition, Petitioner's motion based on the claim that he is actually innocent was based on hearsay and did “not directly serve to exculpate” Petitioner such that relief or a hearing was warranted. Id. at 14-15.
On March 2, 2021, the Appellate Division, First Department denied Petitioner's appeal, finding that counsel provided effective assistance and Petitioner's “guilt was established by compelling circumstantial evidence that was separate from the victim's identification testimony.” People v. Little, 192 A.D.3d 408, 408 (1st Dep't 2021). In addition, the Court “providently exercised its discretion in declining to hold a hearing on the branch of [Petitioner's] motion that sought to vacate his conviction based on actual innocence” because the motion was based on hearsay evidence that lacked exculpatory value. Id. at 409. On May 10, 2021, the New York Court of Appeals denied Petitioner's leave to appeal. People v. Little, 37 N.Y.3d 958 (2021).
LEGAL STANDARDS
I. Exhaustion and Procedural Default
Prior to seeking federal habeas review, a petitioner in state custody must exhaust all remedies available in state court. 28 U.S.C. § 2254(b)(1); see also Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014). This means that a petitioner “must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see also Jackson, 763 F.3d at 133 (explaining that exhaustion requires a petitioner to present the “essential factual and legal premises of his federal constitutional claim to the highest state court capable of reviewing it”) (internal citation omitted).
In New York, a petitioner invokes “one complete round” of review by appealing an issue to the Appellate Division and then seeking leave to appeal to the New York Court of Appeals. Galdamez v. Keane, 394 F.3d 68, 74 (2d Cir. 2005). If a habeas petition presents unexhausted claims, the federal court must determine whether the petitioner would be able to return to state court to exhaust those claims. Jackson, 763 F.3d at 133. An unexhausted claim for which the petitioner cannot obtain further review in state court is procedurally defaulted and must be dismissed. Id. (“[I]f the state prisoner fails to exhaust his state remedies in a manner in which, were he to return to the state courts with his unexhausted claim, those courts would find the claim barred by the application of a state procedural rule, we must deem the claim procedurally defaulted.”) (internal citation and quotation marks omitted).
II. Standard for Habeas Review
A habeas corpus petition is not a vehicle to relitigate every issue previously determined in state court. Herrera v. Collins, 506 U.S. 390, 401 (1993). Instead, a state prisoner seeking habeas relief under § 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). “[T]he petitioner bears the burden of proving by a preponderance of the evidence that his rights have been violated.” Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997).
A federal court may grant a writ of habeas corpus to a state prisoner where the state court's adjudication of the petitioner's federal claim on the merits:
1. resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
2. resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d).
A decision is “contrary to” clearly established federal law, as determined by the Supreme Court, “if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law” or “if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [the Supreme Court's].” Williams v. Taylor, 529 U.S. 362, 404-05 (2000). “[C]learly established federal law” “refers to the holdings, as opposed to the dicta, of [the Supreme Court's] decisions.” Id. at 412.
A decision is an unreasonable application of clearly established federal law if a “state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. at 413; accord Cullen v. Pinholster, 563 U.S. 170, 188 (2011) (holding that the unreasonable application prong of § 2254(d)(1) can be satisfied “only by showing that ‘there was no reasonable basis' for the [state court's] decision”); Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (defining “unreasonable application” to require more than clear error). Moreover, a “federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant statecourt decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams, 529 U.S. at 411; accord Lockyer, 538 U.S. at 75.
The standard for relief under the Antiterrorism and Effective Death Penalty Act (“AEDPA”) “is difficult to meet, because the purpose of AEDPA is to ensure that federal habeas relief functions as a guard against extreme malfunctions in the state criminal justice systems, and not as a means of error correction.” Greene v. Fisher, 565 U.S. 34, 38 (2011) (internal quotation marks omitted); accord Metrish v. Lancaster, 569 U.S. 351, 357-58 (2013); see Burt v. Titlow, 571 U.S. 12, 19 (2013) (“AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court”).
“As a condition for obtaining habeas corpus from a federal court, a state prisoner must 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.” Harrington v. Richter, 562 U.S. 86, 103. “[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the prisoner's claim on the merits.” Greene, 565 U.S. at 38 (citing Cullen, 563 U.S. at 181).
ANALYSIS
I. Petitioner Exhausted Three of His Claims in State Court Through a Complete Round of the Appellate Review Process
Petitioner exhausted his first three claims in state court. On June 13, 2017, the Appellate Division, First Department held that Petitioner's right to represent himself was not violated. Little, 151 A.D.3d at 531. The New York Court of Appeals denied him leave to appeal this decision on September 8, 2017. Little, 30 N.Y.3d 951. On June 6, 2019, the Bronx County Supreme Court denied Petitioner's C.P.L. § 440.10 motion to vacate his conviction. Dkt. No. 13-8. The Appellate Division, First Department affirmed on March 2, 2021, finding that Petitioner received effective assistance of counsel; Petitioner's “guilt was established by compelling circumstantial evidence that was separate from the victim's identification testimony,” and the Court “providently exercised its discretion in declining to hold a hearing on the branch of [Petitioner's] motion that sought to vacate his conviction based on actual innocence” because the motion was based on hearsay evidence that lacked exculpatory value. Little, 192 A.D.3d 408, 408-09. The New York Court of Appeals then denied Petitioner leave to appeal on May 10, 2021. Little, 37 N.Y.3d 958. Petitioner did not exhaust his fourth claim that he is actually innocent because he never raised it prior to this petition.
II. Petitioner Was Not Denied the Right to Self Representation
A criminal defendant is entitled to proceed pro se if he ‘knowingly, voluntarily, and unequivocally' waives his right to appointed counsel.” Wilson v. Walker, 204 F.3d 33, 37 (2d Cir. 2000) (citing Johnstone v. Kelly, 808 F.2d 214, 216 (2d Cir. 1986); Faretta v. California, 422 U.S. 806, 835-36 (1975) (holding that defendant was denied the right to represent himself when he was forced to have assigned counsel given that the record showed that defendant was “literate, competent, and understanding, and that he was voluntarily exercising his informed free will” when he declared he wanted to represent himself). A defendant does not have the right to self-representation until such right is asserted “clearly and unequivocally.” Williams v. Bartlett, 44 F.3d 95, 100 (2d Cir. 1994). Even if a defendant asserts the right to represent himself, “waiver may be found if it reasonably appears to the court that defendant has abandoned his initial request to represent himself.” Wilson, 204 F.3d at 37 (holding that defendant's failure to reassert his desire to proceed pro se constituted a waiver given his two subsequent changes in counsel and that “the question of self-representation was left open for possible further discussion”).
Here, Petitioner asserted his right to represent himself multiple times. The Court told Petitioner that his requests to do so would be discussed at a later time. However, Petitioner did not object when Tobia appeared as counsel and claimed she did so with Petitioner's consent, and Petitioner never raised the issue of selfrepresentation again until he appealed his conviction. Therefore, the Court finds that the First Department's decision that Petitioner was not denied the right to selfrepresentation was not unreasonable because Petitioner abandoned his request to represent himself.
III. Petitioner's Counsel's Failure to Use an Eyewitness Identification Expert Was Not a Denial of Effective Counsel
To prevail on an ineffective assistance of counsel claim, Petitioner must demonstrate that his counsel's performance “fell below an objective standard of reasonableness,” and there is a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). There is a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689. Therefore, Petitioner “must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.'” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). “The Strickland standard is rigorous, and the great majority of habeas petitions that allege constitutionally ineffective counsel founder on that standard.” Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001).
The Court agrees with the First Department that Tobia's conduct did not fall below an objective standard of reasonableness. There was no reasonable probability that, but-for counsel's failure to introduce expert information, the result of the proceeding would be different. Central to Petitioner's case were his inconsistent statements. Petitioner asserted, for the first time, at trial that McCall had taken his cards. Dkt. No. 15-11 at 908. In addition, Petitioner told the jury that he was not near Sin City the night of the robbery. However, per Officer Russo's written postarrest statement, Petitioner had said he was. Dkt. Nos. 15-9 at 710-11, 15-12 at 972-75.
Moreover, Petitioner's trial counsel asserted other factors to counter the accuracy of Lopez's identification of Petitioner, including the lighting conditions in Lopez's car, Lopez's emotional state and alleged intoxication, and the robbery's brief duration. Dkt. No. 13-14 at 1182-1228. Therefore, the Court finds that Judge Boyle's decision finding no ineffective assistance of counsel was not unreasonable in light of the evidence presented. See Harrington v. Richter, 562 U.S. 86, 106 (2011) (denying ineffective counsel claim because there are “countless ways to provide effective assistance in any given case” and it is rare that counsel “will be limited to any one technique or approach.”) (internal citation and quotation omitted).
IV. Petitioner's Non-Exculpatory Evidence Does Not Warrant a Hearing Regarding His Innocence
“Were [the Court] to recognize a stand-alone actual innocence claim, a hearing would be warranted only where the proffered evidence, accepted as true, raised serious doubt about [Petitioner's] guilt.” People v. Jimenez, 142 A.D.3d 149, 158 (1st Dep't 2016). The Appellate Division, First Department's decision denying Petitioner a motion for an innocence hearing was not unreasonable. Petitioner's motion “was not supported by ‘sworn allegations substantiating or tending to substantiate all the facts.'” Little, 192 A.D.3d at 409. Petitioner argued that Ann Walker, an elderly woman who lived in Petitioner's building, allegedly overheard McCall discussing the robbery. Id. The Court correctly concluded that this evidence was based on hearsay and lacked exculpatory value. Id. Petitioner's claim that Sanchez spoke to McCall who said he was at Sin City at the time of the robbery and that it was hard to take off Lopez's ring (Dkt. No. 2 at 8) is also hearsay and is not supported by a sworn affidavit. This evidence is insufficient to “show[] . . . possible merit to warrant a fuller exploration by the court” (Jimenez, 142 A.D.3d at 156 (citing People v. Hamilton, 115 A.D.3d 12, 27 (2d Dep't 2014))) in a hearing.
V. Petitioner's Freestanding Actual Innocence Claim Does Not Warrant Relief
The Supreme Court has never recognized a freestanding claim of actual innocence. As the Supreme Court has explained, “federal habeas cases have treated claims of ‘actual innocence,' not as an independent constitutional claim, but as a basis upon which a habeas petitioner may have an independent constitutional claim considered on the merits, even though his habeas petition would otherwise be regarded as successive or abusive.” Herrera v. Collins, 506 U.S. 390, 416-17, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). Habeas has historically provided no avenue to relitigate the merits of a jury's verdict once a defendant has received a fair trial. Id. at 400-01, 113 S.Ct. 853. And AEDPAs text arguably precludes such a claim in the absence of some other legal or constitutional violation. See 28 U.S.C. § 2254(a) (allowing federal habeas relief for a state prisoner “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States”).Jimenez v. Stanford, 560 F.Supp.3d 761, 768 (S.D.N.Y. 2021). Assuming, arguendo, that a freestanding claim of actual innocence exists, it:
[R]equires a much stronger showing than that needed to pass through the actual-innocence gateway to escape procedural default. House, 547 U.S. at 555, 126 S.Ct. 2064; see, e.g., Schlup v. Delo, 513 U.S. 298, 314, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); Herrera, 506 U.S. at 404, 113 S.Ct. 853. The gateway question of actual innocence “requires a holistic judgment about all the evidence and its likely effect on reasonable jurors applying the reasonable-doubt standard.” House, 547 U.S. at 539, 126 S.Ct. 2064 (cleaned up). The analysis for a freestanding innocence claim is different. “Once a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears.” Herrera, 506 U.S. at 399, 113 S.Ct. 853. Thus, even new evidence that “cast[s] considerable doubt” on a defendant's guilt, such that no reasonable juror could find the defendant guilty beyond a reasonable doubt, is not enough. House, 547 U.S. at 554-55, 126 S.Ct. 2064. An extraordinary affirmative showing of innocence would be required. Herrera, 506 U.S. at 417, 113 S.Ct. 853.Jimenez, 560 F.Supp.3d at 769.
As discussed above, Petitioner's guilt was based on “compelling circumstantial evidence.” Little, 192 A.D.3d at 408. Without any information from the police and upon merely being shown his benefit card, Petitioner told police that he had not left them in the back seat of a car. Petitioner also admitted that he lied to the grand jury about his cards being “missing,” and per Officer Russo's testimony, Petitioner stated he was at Sin City around the time of the robbery. Id. at 408-09. Accordingly, and given that Petitioner's new evidence is merely hearsay and not exculpatory, the Court concludes that Petitioner has failed to meet the “extraordinary affirmative showing of innocence” that would be required to successfully assert a freestanding actual innocence claim.
CONCLUSION
For the foregoing reasons, I recommend that Petitioner's habeas petition should be denied. Furthermore, because Petitioner has not made a substantial showing of the denial of a constitutional right, as required by 28 U.S.C. § 2253(c)(2), a certificate of appealability should not be issued.
OBJECTIONS
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days (including weekends and holidays) from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6 (allowing three (3) additional days for service by mail). A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be filed with the Clerk of Court, Pro Se Intake Unit, United States Courthouse, 500 Pearl Street, Room 200, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Cronan.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).