Opinion
21 Civ. 8541 (KMK)(PED)
02-21-2023
Jerome Mack, Petitioner, v. J. Collado, Superintendent of Shawangunk Correctional Facility, Respondent.
REPORT AND RECOMMENDATION
HONORABLE KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Jerome Mack (“Petitioner”), proceeding pro se, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his conviction and sentence from a jury trial in County Court, Orange County. [Dkt. 1.] On May 4, 2015, Petitioner was convicted of attempted murder in the second degree, along with related lesser charges, and he was sentenced to 30 years in prison. Petitioner is currently serving his sentence in Shawangunk Correctional Facility located in Ulster County, New York. The Petition comes before me pursuant to an Order of Reference entered on October 29, 2021. [Dkt. 7.] For the reasons set forth below, I respectfully recommend that Your Honor DENY the Petition.
II. BACKGROUND
The information in this section is taken from the Petition [Dkt. 1], Respondent's Answer with attached exhibits [Dkt. 21], and Petitioner's traverse [Dkt. 31.].
1. The Crime
On October 9, 2014, Devon Simmons was released from Otisville Correctional Facility. When he was released, Mr. Simmons had in his possession a temporary New York state identification card, a birth certificate, a social security card, school books, and a check in the amount of $1,254.63 from his commissary account. He was picked up from the prison by Petitioner's co-defendant, Edgar Wilson. Mr. Wilson told Mr. Simmons that family members of Mr. Simmons requested that he pick Mr. Simmons up when he was released. Mr. Simmons got into the car with Mr. Wilson. After driving for a short while, Mr. Wilson said he was lost and pulled the car over, and Mr. Simmons got out of the car, stating that he needed to relieve himself. When Mr. Simmons got out of the car, Petitioner jumped out of the vehicle's trunk. Petitioner had a gun and ultimately shot Mr. Simmons three times. Mr. Simmons fled the scene and was able to reach the Otisville train station where he received help and was ultimately transported to Westchester Medical Center for medical assistance. Later that day, Mr. Simmons was questioned by police. During his conversation with law enforcement, he identified Petitioner as the shooter and described the vehicle.
Edgar Wilson has also filed a petition for a writ of habeas corpus, which is currently sub judice in this district. See Wilson v. Warden, Sullivan Correctional Facility, 22 Civ. 701 (VB)(PED).
2. The Trial and Sentencing
Trial began withjury selection on April 15, 2015. [Dkt. 21-17 at 3.] The jury rendered a verdict on May 4, 2015, finding Petitioner guilty of attempted murder in the second degree, assault in the first degree, criminal possession of a weapon in the second degree, criminal use of a firearm in the first degree, conspiracy in the fourth degree, and criminal possession of stolen property in the fourth degree. [Dkt. 21-40 at 26-35.] On June 1, 2015, Petitioner was sentenced to twenty-five years imprisonment followed by five years post-release supervision for attempted murder in the second degree, twenty-five years imprisonment followed by five years post-release supervision for assault in the first degree, fifteen years imprisonment followed by five years postrelease supervision for criminal possession of a weapon in the second degree, five years imprisonment followed by five years post-release supervision for criminal use of a firearm, an indeterminate term of two to four years imprisonment for conspiracy in the fourth degree, and an indeterminate term of two to four years imprisonment for criminal possession of stolen property. [Dkt. 21-42 at 15-22.] Petitioner's sentences for the attempted murder, assault, criminal possession of a weapon, conspiracy, and criminal possession charges were set to run concurrently to one another. [Id. at 20-21.] However, the criminal use of a firearm charge was set to run consecutively to the other charges. [TrZ]
B. Procedural History
1. The Direct Appeal
On September 19, 2017, Petitioner, through counsel, appealed his conviction. [Dkt. 21-3 at 72.] Petitioner raised ten arguments in his appeal. Petitioner specifically argued that: (1) there was insufficient evidence to support Petitioner's conviction; (2) Petitioner preserved his right to appeal the insufficiency of the state's case; (3) Petitioner's conviction was against the weight of the evidence; (4) the verdict was repugnant; (5) trial counsel was ineffective for failing to object to the repugnant verdict; (6) the prosecution committed prosecutorial misconduct by violating the court's ruling on excited utterance; (7) the police lacked probable cause to detain and/or arrest Petitioner; (8) the prosecutor inappropriately injected his credibility into his summation; (9) Petitioner's trial counsel was ineffective for failing to seek a Rodriguez hearing; and (10) Petitioner received an excessive sentence. [Id. at 51-71.] The state submitted its opposition on March 5, 2018. [Dkt.21-4 at 56.] On May 21, 2018, the Appellate Division, Second Department granted Petitioner's request to file a pro se supplemental brief. [Id. at 60.] Petitioner filed his pro se supplemental brief through papers dated February 25, 2019. [Dkt. 21-5 at 85.] Petitioner raised six arguments in his supplemental brief. Petitioner argued that: (1) pursuant to United States V. Carpenter, the cell site location information that was obtained via a warrantless search should be suppressed; (2) Petitioner was denied his right to counsel at his arraignment; (3) the prosecutor committed misconduct by allowing a witness to bolster the victim's testimony; (4) Petitioner received ineffective assistance of counsel; (5) the trial court abused its discretion by allowing evidence of prior bad acts and prior convictions into evidence; and (6) Petitioner was denied his right to counsel when the trial court improperly denied his newly appointed counsel adequate time to prepare and denied Petitioner counsel at his arraignment. [Id. at 71-84,] With respect to Petitioner's allegation that he received ineffective assistance of counsel, he specifically argued that: (1) his counsel failed to argue that there was no probable cause to stop, detain, and arrest Petitioner; (2) his counsel failed to argue that the prosecutor committed prosecutorial misconduct when the prosecutor became an unsworn witness; (3) his counsel committed a myriad of errors when he failed to object to the numerous instances where Petitioner's due process rights were violated; (4) his counsel failed to object when the prosecutor committed misconduct by failing to correct false testimony; (5) his counsel failed to object when the prosecutor committed misconduct by misrepresenting the evidence; (6) his counsel failed to object to the insufficiency of the evidence for the criminal possession charge; and (7) his counsel failed to request a circumstantial evidence jury charge. [Id. at 24-87.] The state submitted its response to Petitioner's supplemental brief on June 6, 2019. [Dkt. 21-6 at 37.]
By decision dated May 27, 2020, the Appellate Division affirmed the judgment against Petitioner. See People v. Mack, 122 N.Y.S.3d 547 (App. Div. 2020). The Appellate Division found that Petitioner's arguments concerning the legal sufficiency of the evidence and the improper remarks by the prosecution were unpreserved for appellate review. Id. at 548. The Appellate Division similarly held that Petitioner's contention that the verdict was repugnant was also unpreserved for appellate review. Id. The Appellate Division also determined that the County Court “providently exercised its discretion in admitted evidence of [Petitioner's] uncharged criminal behavior.” Id. The Appellate Division further found that Petitioner's argument that the prosecutor made improper remarks during summation was also unpreserved for appellate review. Id. at 549. The Appellate Division next determined that contrary to Petitioner's arguments in his main brief and pro se supplemental brief, “he was not deprived of effective assistance of counsel.” Id. Finally, the Appellate Division held that Petitioner's “remaining contentions, raised in his pro se supplemental brief, are without merit.” Id.
On June 18, 2020, Petitioner's appellate counsel submitted a letter requesting leave to appeal the Appellate Division's decision to the Court of Appeals. [Dkt. 21-6 at 43-46.] Petitioner's appellate counsel specifically requested review of the arguments that the evidence was insufficient, Petitioner's uncharged criminal behavior should have been suppressed, the verdict was repugnant, and Petitioner's counsel was ineffective for failing to object to the repugnant verdict. [Id] On June 29, 2020, a second attorney also submitted a letter requesting leave to appeal the Appellate Division's decision. [Id. at 47.] That letter specifically argued that the Appellate Division erred by (1) finding that it was permissible to conduct a warrantless search of Petitioner's cell phone location; (2) finding that trial counsel was effective in spite of trial counsel's failure to request a Rodriguez hearing; and (3) finding that there was probable cause to arrest Petitioner. [Id. at 47-54.] Later, through papers dated June 23, 2020, Petitioner submitted an affidavit in support of his leave application. [Id. at 68.] Petitioner's affidavit specifically raised three points from his supplemental pro se brief. Petitioner argued that: (1) the cell site location information should have been suppressed; (2) there was no probable cause to stop, detain, and arrest Petitioner; and (3) the prosecutor failed to engage in the proper process regarding the victim's confirmatory identification of Petitioner. [Id. at 62-67.] The state submitted its opposition on July 29, 2020 and an affirmation in opposition on August 10, 2020. [Dkt. 21-6 at 51, 72.] On September 18, 2020, the Court of Appeals summarily denied Petitioner's request for leave to appeal. People v. Mack, 155 N.E.3d 798 (Table) (N.Y. 2020).
2. The Instant Petition
Petitioner signed the instant Petition and delivered it to prison officials for mailing on September 15, 2021. [Dkt. 1 at 46.] The Respondent filed a response in opposition to the Petition on April 26, 2022. [Dkt. 21.] On October 20, 2022, Petitioner filed a traverse in reply to Respondent's answer. [Dkt. 31.]
III. APPLICABLE LAW
“Habeas review is an extraordinary remedy.” Bousley v. United States, 523 U.S. 614, 621 (1998) (citing Reed v. Farley, 512 U.S. 339, 354 (1994)). Before a federal district court may review the merits of a state criminal judgment in a habeas corpus action, the court must first determine whether the petitioner has complied with the procedural requirements set forth in 28 U.S.C. §§ 2244 and 2254. If there has been procedural compliance with these statutes, the court must then determine the appropriate standard of review applicable to the petitioner's claim(s) in accordance with § 2254 (d). The procedural and substantive standards applicable to habeas review, which were substantially modified by the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), are summarized below.
A. Exhaustion Requirement
A federal court may not grant habeas relief unless the petitioner has first exhausted his claims in state court. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); see 28 U.S.C. § 2254(b)(1) (“[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that - (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant”); id. § 2254(c) (the petitioner “shall not be deemed to have exhausted the remedies available in the courts of the State ... if he has the right under the law of the State to raise, by any available procedure, the question presented”). The exhaustion requirement promotes interests in comity and federalism by demanding that state courts have the first opportunity to decide a petitioner's claims. Rose v. Lundy, 455 U.S. 509, 518-19 (1982).
To exhaust a federal claim, the petitioner must have “fairly present[ed] his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim,” and thus “giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights. Baldwin V. Reese, 541 U.S. 27, 29 (2004) (internal quotation marks and citations omitted). “Because non- constitutional claims are not cognizable in federal habeas corpus proceedings, a habeas petition must put state courts on notice that they are to decide federal constitutional claims.” Petrucelli v. Coombe, 735 F.2d 684, 687 (2d Cir. 1984) (citing Smith v. Phillips, 455 U.S. 209, 221 (1982)). Such notice requires that the petitioner “apprise the highest state court of both the factual and legal premises of the federal claims ultimately asserted in the habeas petition.” Galdamez v. Keane, 394 F.3d 68, 73 (2d Cir. 2005) (internal citation omitted). A claim may be “fairly presented” to the state courts therefore, even if the petitioner has not cited “chapter and verse of the Constitution,” in one of several ways:
(a) [R]eliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.Daye v. Att'y Gen. of N.Y., 696 F.2d 186, 194 (2d Cir. 1982). A habeas petitioner who fails to meet a state's requirements to exhaust a claim will be barred from asserting that claim in federal court. Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
However, “[f]or exhaustion purposes, a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred.” Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (internal quotation omitted). “In such a case, a petitioner no longer has ‘remedies available in the courts of the State' within the meaning of 28 U.S.C. § 2254(b).” Grey v. Hoke, 933 F.2d 117,120 (2d Cir. 1991). Such a procedurally barred claim may be deemed exhausted by a federal habeas court. See, e.g, Reyes, 118 F.3d at 139. However, absent a showing of either “cause for the procedural default and prejudice attributable thereto,” Harris v. Reed, 489 U.S. 255, 262 (1989), or “actual innocence,” Schlup v. Delo, 513 U.S. 298 (1995), the petitioner's claim will remain unreviewable by a federal court.
Finally, notwithstanding the procedure described above, a federal court may yet exercise its discretion to review and deny a mixed petition containing both exhausted and unexhausted claims, if those unexhausted claims are “plainly meritless.” Rhines v. Weber, 544 U.S. 269, 277 (2005); see 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”); Padilla v. Keane, 331 F.Supp.2d 209, 216 (S.D.N.Y. 2004) (interests in judicial economy warrant the dismissal of meritless, unexhausted claims).
B. Procedural Default
Even where an exhausted and timely habeas claim is raised, comity and federalism demand that a federal court abstain from its review when the last-reasoned state court opinion to address the claim relied upon “an adequate and independent finding of a procedural default” to deny it. Plarris, 489 U.S. at 262; see also Coleman v. Thompson, 501 U.S. 722, 730 (1991); Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); Levine v. Comm 'r of Corr. Servs., 44 F.3d 121, 126 (2d Cir. 1995). A state court decision will be “independent” when it ‘“fairly appears” to rest primarily on state law. Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir. 2006) (citing Coleman, 501 U.S. at 740). A decision will be “adequate” if it is ‘“firmly established and regularly followed' by the state in question.” Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999) (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)).
The Supreme Court has held that a federal court may review a claim that is procedurally barred if the petitioner can show a “miscarriage of justice,” which occurs where a petitioner is “actually innocent of the crime for which he has been convicted.” Cotto v. Herbert, 331 F.3d 217, 239 n.lO (2d Cir. 2002); see Coleman, 501 U.S. at 729.
C. AEDPA Standard of Review
Before a federal court can determine whether a petitioner is entitled to federal habeas relief, the court must determine the proper standard of review under AEDPA for each of the petitioner's claims. 28 U.S.C. § 2254(d)(1)-(2). This statute “modifie[d] the role of federal habeas corpus courts in reviewing petitions filed by state prisoners,” and imposed a more exacting standard of review. Williams v. Taylor, 529 U.S. 362, 402 (2000). For petitions filed after AEDPA became effective, federal courts must apply the following standard to cases in which the state court adjudicated on the merits of the claim:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.§ 2254(d)(1)-(2). The deferential AEDPA standard of review will be triggered when the state court has both adjudicated the federal claim “on the merits,” and reduced its disposition to judgment. Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001).
Under the first prong, a state court decision is contrary to federal law only if it “arrives at a conclusion opposite to that reached by the [the Supreme Court] on a question of law of if [it] decides a case differently than [the Supreme Court] on a set of materially indistinguishable facts.” Williams, 529 U.S. at 413. A decision involves an “unreasonable application” of Supreme Court precedent if the state court “identifies the correct governing legal rule from the Supreme Court cases but unreasonably applies it to the facts of the particular state prisoner's case,” or if it “either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Id. at 407.
Under the second prong of AEDPA, the factual findings of state courts are presumed to be correct. 28 U.S.C. § 2254(e)(1); see Nelson v. Walker, 121 F.3d 828, 833 (2d Cir. 1997). The petitioner must rebut this presumption by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
IV. ANALYSIS
Petitioner raises six grounds in his Petition. First, he argues that his guilt was not proven beyond a reasonable doubt. Next he argues that pursuant to the Supreme Court s holding in United States v. Carpenter, the cell site location information was obtained via an impermissible warrantless search. Petitioner further argues that he was denied his right to counsel because he did not have counsel during his arraignment. Petitioner also argues that he received ineffective assistance of counsel. Petitioner next argues that the trial court abused its discretion by allowing prior bad acts and prior convictions into evidence. Finally, Petitioner argues that the trial court impermissibly denied his newly appointed counsel an appropriate amount of time to prepare a defense.
A. Ground 1 Is Procedurally Barred
Petitioner first argues that the evidence presented at trial was insufficient to prove his guilt beyond a reasonable doubt. This ground was properly exhausted by Petitioner as his appellate counsel raised it in his main brief when he appealed his conviction to the Appellate Division and his appellate counsel also raised it in Petitioner's leave application to the Court of Appeals. In addressing this claim, the Appellate Division determined that Petitioner's “contention that the evidence was legally insufficient to support his convictions is unpreserved for appellate review.” Mack, 122 N.Y.S.3d at 548.
In general, a federal court “will not review questions of federal law presented in a habeas petition when the state court's decision rests upon a state-law ground that is independent of the federal question and adequate to support the judgment.” Downs v. Lape, 657 F.3d 97, 101 (2d Cir. 2011) (quoting Cone v. Bell, 556 U.S. 449, 465 (2009)). Although the record is silent as to the precise grounds that the Appellate Division relied upon to find this claim unpreserved, nonetheless “courts faced with similar ambiguous rulings have determined that the Appellate Division likely relied upon New York's contemporaneous objection rale.” Steinhilber v. Kirkpatrick, 2020 WL 9074808, at *33 (S.D.N.Y. Aug. 21, 2020) (internal quotation marks omitted) (collecting cases), report and recommendation adopted 2021 WL 1254554 (S.D.N.Y. Apr. 5, 2021). “Moreover, in finding this ground unpreserved, the Appellate Division cited to People v. Hawkins, 11 N.Y.3d 484, 492 (2008), where the Court of Appeals emphasized that ‘a defendant must move for a trial order of dismissal, and the argument must be “specifically directed” at the error being urged' to preserve a challenge to the legal sufficiency of a conviction, as well as to N.Y. Crim. Pro. L. § 470.05(2), which broadly codifies such a requirement.” Id. (footnote omitted). Petitioner could still prevail if he were able to demonstrate that the state rule on which the Appellate Division relied was not “firmly established and regularly followed.” See Cotto, 331 F.3d at 239-41. However, the Second Circuit has consistently held that the New York's contemporaneous objection rule is firmly established and regularly followed. See Downs, 657 F.3d at 104; Garcia, 188 F.3d at 78-79. Accordingly, this Court is procedurally barred from reviewing the claim.
Copies of unreported cases cited herein will be mailed to Petitioner as %, pro se litigant. See Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
After finding Petitioner's argument unpreserved, the Appellate Division went on to deny Petitioner's claim on the merits. Nonetheless, because the Appellate Division primarily relies on this state procedural law to deny Petitioner's claim, that constitutes an independent and adequate ground for its decision. See Fama v. Comm 'r Corr. Servs., 235 F.3d 804, 810 n.4 (2d Cir. 2000) (noting that “where a state court says that a claim is ‘not preserved for appellate review' and then ruled ‘in any event' on the merits, such a claim is not preserved.”).
Petitioner could overcome this procedural bar if he could show a “miscarriage of justice, and demonstrate that he is “actually innocent of the crime for which he has been convicted. Cotto, 331 F.3d at 239 n.10. Petitioner, however, fails to allege or plead actual innocence. I therefore conclude, and I respectfully recommend Your Honor conclude, that Petitioner's first ground is procedurally barred from this Court's review.
B. Ground 2 Is Without Merit
In his second ground, Petitioner argues that the warrantless search of his cell phone location information was in violation of his right to fair trial based on the Supreme Court s holding in United States v. Carpenter, 585 U.S. __, 138 S.Ct. 2206 (2018). In United States v. Carpenter, the Supreme Court held that a search warrant was required in order for law enforcement to obtain cell location information from a third party. 138 S.Ct. at 2206. This decision ran counter to decades-old precedent, recognized in this Circuit and elsewhere, that said ‘individuals lack any protected Fourth Amendment interests in records that are possessed, owned, and controlled only by a third party.'” Siri-Reynoso v. United States, 2023 WL 22626, at *9 (S.D.N.Y. Jan. 3, 2023) (quoting Carpenter, 138 S.Ct. at 2226-27 (Kennedy, J., dissenting)). Previously, in order to obtain cell location information from a third party, law enforcement would obtain a court order after showing that there were reasonable grounds to believe that the information was “relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d). “Although Carpenter changed the law in this area, it did not mandate-nor has it resulted in-the retroactive exclusion of evidence or reversals of convictions based on the Government's prior reliance on § 2703(d).” Siri-Reynoso, 2023 WL 22626, at *9. This is because courts have consistently held that the good-faith exception to the exclusionary rule applies in this context.” Id. The good-faith exception provides that “when the Government ‘act[s] with an objectively reasonable good-faith belief that their conduct is lawful,' the exclusionary rule does not apply.” United States v. Zodhiates, 901 F.3d 137, 143 (2d Cir. 2018) (quoting Davis v. United States, 564 U.S. 229, 238 (2011)). “This exception covers searches conducted in objectively reasonable reliance on appellate precedent existing at the time of the search.” Id. “Indeed, courts in this Circuit and elsewhere have uniformly held that the good-faith exception applies to the pre-Carpenter collection of historical cell-site location data pursuant to a § 2703(d) court order[.]” Siri-Reynoso, 2023 WL 22626, at *9 (collecting cases).
Here, the trial court issued an order pursuant to § 2703 on January 9, 2015, and instructed Sprint to turn over cell site information to the District Attorneys Office. [Dkt. 21-2 at 38.] Because Carpenter had not yet been decided, the state's actions in obtaining this court order falls within the good-faith exception, as the court order was issued in “objectively reasonable reliance on appellate precedent[.]” Zodhiates, 901 F.3d at 143; see Siri-Reynoso, 2023 WL 22626, at *9.
Petitioner further argues that because his direct appeal was pending at the time that Carpenter was decided, Carpenter's holding should apply to his case. However, even in the instance where a defendant's appeal is pending before the courts, Carpenter does not apply in light of the good faith exception. See Zodhiates, 901 F.3d at 143 (good faith exception applied where Carpenter decided during pendency of defendant's appeal). I therefore respectfully recommend that Your Honor conclude that the trial court's order falls within the good faith exception and Petitioner's second ground is accordingly without merit.
C. Grounds 3 and 6 Are Deemed Exhausted but Procedurally Barred
For his third ground, Petitioner argues that he did not have counsel for his arraignment in violation of his Sixth Amendment right and for his sixth ground, Petitioner contends that the trial court impermissibly denied his newly appointed counsel adequate time to prepare for trial. Petitioner raised the arguments asserted in grounds 3 and 6 in his direct appeal, but failed to include them in a leave application to the New York Court of Appeals. As noted above, a petitioner must exhaust a claim in state court before presenting it in federal court for habeas review. See 28 U.S.C. § 2254(b)(1). “The exhaustion requirement imposed by 28 U.S.C. § 2254(b)(1) means generally that before seeking a writ of habeas corpus in federal court, a state prisoner must first have presented his claim to the highest court of the state.” Morgan v. Bennett, 204 F.3d 360, 369 (2d Cir. 2000). In New York, that means raising an issue in a leave application to the New York Court of Appeals. See id.
Petitioner's ground 3 and 6 arguments were not raised in any of the three leave applications filed in Petitioner's case. The application submitted by Petitioner's court-appointed appellate counsel specifically requested review of Petitioner's arguments that the evidence was legally insufficient, that the county court impermissibly admitted evidence of Petitioner's uncharged criminal behavior, that the verdict was repugnant, and that counsel was ineffective for failing to object to the repugnant verdict. [Dkt. 21-6 at 43-46.] That leave application also included a copy of Petitioner's counseled Appellate Division brief, but did not request further review of unenumerated claims. The leave application submitted by a second, retained attorney requested review of the claims that the state obtained Petitioner's cell site location information in violation of Petitioner's Fourth Amendment rights, that Petitioner received ineffective assistance of counsel for counsel's failure to request a Rodriguez hearing, and that there was no probable cause to arrest Petitioner. [Dkt. 21-6 at 47-54.] Retained counsel s leave application also “request[ed] that [the] Court examine all issues raised in Appellant's pro se supplemental brief, and any other issues it sees fit.” [Dkt. 21-6 at 54.] Finally, Petitioner himself submitted a pro se leave application, wherein he requested review of his claims that the cell site location information was obtained in violation of Carpenter, that there was no probable cause to arrest him, and that he should have received a Wade/Rodriguez hearing relating to the identification procedure used by the police. [Dirt. 21 -6 at 62-67.] In the pro se leave application, Petitioner “askfed] [the] Court to give particular attention” to the points he enumerated, but also “ask[ed] [the] Court to take great consideration of all the points raised in appellant s supplemental brief[.]” [Dkt. 21-6 at 62.]
The law is clear that a leave application which argues specified points but then makes “passing reference to other possible claims to be found in the attached briefs does not fairly apprise the state Court of Appeals of the unspecified claims. Jordan v. Lefevre, 206 F.3d 196, 198 (2d Cir. 2000) Accordingly, the arguments raised by Petitioner in his third and sixth grounds are unexhausted.
Petitioner has no further recourse in state court. Under New York law, Petitioner cannot again seek leave to appeal those claims in the Court of Appeals because he has already made the one request for leave to appeal to which he is entitled. See N.Y. Ct. R. § 500.20(a)(2). Petitioner is also precluded from raising the claim in a collateral proceeding because these claims were previously presented to the Appellate Division, but then abandoned before the Court of Appeals. See N.Y. Crim. Proc. Law § 440.10(2)(a). Accordingly, Petitioner's arguments are unexhausted, but deemed exhausted because he “no longer has remedies available in the courts of the State” for these claims. Grey, 933 F.2d at 120. Petitioner may overcome this procedural bar if he can show actual innocence or cause for the procedural default and resulting prejudice. See Schlup, 513 U.S. at 315; Harris, 489 U.S. at 262. However, Petitioner makes no such showing here. Accordingly, I conclude, and I respectfully recommend Your Honor conclude, that this Court cannot review the procedurally barred claims Petitioner asserts in his third and sixth grounds.
D. Ground 4 Is Partially Deemed Exhausted and Procedurally Barred and Partially Without Merit
1. Ground 4 Is Partially Deemed Exhaust and Procedurally Barred
For his fourth ground, Petitioner argues that he received ineffective assistance of trial counsel. Petitioner identifies approximately eleven purported failures by his trial counsel. (1) counsel failed to argue that Officer Nemeth lacked personal knowledge of the crime and that the fellow-officer rule did not apply; (2) counsel failed to argue that Officer Nemeth lacked probable cause to stop Petitioner's vehicle; (3) counsel should have suppressed Mr. Simmons' s identification of Petitioner and argued that the state failed in its obligation to put the defense on notice that they intended to offer testimony regarding an observation of Petitioner; (4) counsel should have requested a hearing to confirm that the identification of Petitioner was confirmatory; (5) counsel failed to object to perjurious testimony from Kallenberg; (6) counsel failed to object to recalling Chorzempa to testify to the victim's confirmatory identification of Petitioner; (7) counsel failed to object to the prosecutor's false statements; (8) counsel failed to object to the prosecutor being an unsworn witness; (9) counsel failed to request a circumstantial evidence charge; (10) counsel failed to object to the sufficiency of the evidence with respect to the charge for criminal possession of stolen property and to object to the read back of that charge, and (11) counsel failed to object to the prosecutor's false statement that Petitioner had been indicted before his felony hearing. As was the case with Petitioner's third and sixth grounds, these contentions are for the most part unexhausted, but deemed exhausted and procedurally barred.
In his three leave applications to the Court of Appeals, Petitioner did not raise all of the arguments for his ineffective assistance of counsel claims that he now asserts for habeas review. In sum and as further discussed supra, Petitioner's three leave applications raised the following arguments: (1) the evidence was legally insufficient; (2) the county court impermissibly admitted evidence of Petitioner's uncharged criminal behavior; (3) the verdict was repugnant and counsel was ineffective for failing to argue that the verdict was repugnant; (4) Petitioner's cell site location information was obtained in violation of Petitioner's Fourth Amendment right and the Supreme Court's holding in Carpenter, (5) Petitioner should have received a Wade/Rodriguez hearing in order to establish the identification procedure used by law enforcement; (6) Petitioner received ineffective assistance of counsel for counsel's failure to request & Rodriguez hearing, and (7) there was no probable cause to arrest Petitioner. [Dkt. 21-6 at 43-46, 47-54, 62-67.] Petitioner's argument that his counsel was ineffective for failing to request a hearing regarding Mr. Simmons's confirmatory identification of him is the only argument that Petitioner raised in a leave application and also now asserts for habeas review. [Compare Dkt. 21-6 at 47-54 with Dkt. 1 at 18-35.] Otherwise, Petitioner did not raise the remainder of his ineffective assistance of counsel arguments in his leave applications to the Court of Appeals. Accordingly, we must “assume that the Court of Appeals would construe [Petitioner's] leave application as abandoning claims that [he] had pressed to the Appellate Division below where those claims [are] not presented to the New York high court for review.” Smith v. Duncan, 411 F.3d 340, 345 (2d Cir. 2005) (internal quotation marks omitted). Thus, with the exception of the argument that Petitioner received ineffective assistance of counsel because his counsel failed to request a Rodriguez hearing, Petitioner's ineffective assistance of counsel arguments are unexhausted.
Petitioner also has no recourse in state court for these unexhausted claims. Petitioner cannot again seek leave to appeal these arguments in the Court of Appeals because he has already made the one request for leave to appeal to which he is entitled. See N.Y. Ct. R. § 500.20(a)(2). He is further precluded from raising the claim in a collateral proceeding because these claims were previously presented to the Appellate Division, but then abandoned before the Court of Appeals. See N.Y. Crim. Proc. Law § 440.10(2)(a). Petitioner's arguments are therefore unexhausted, but deemed exhausted because he “no longer has remedies available in the courts of the State” for these claims. Grey, 933 F.2d at 120. Petitioner may overcome this procedural bar if he can show actual innocence or cause for the procedural default and resulting prejudice, but Petitioner raises no such arguments here. See Schlup, 513 U.S. at 315; Harris, 489 U.S. at 262. Accordingly, I respectfully recommend Your Honor conclude that this Court cannot review Petitioner's ineffective assistance of counsel arguments, with the exception of Petitioner s argument that his counsel was ineffective because his counsel failed to request a Rodriguez hearing.
2. The Exhausted Argument of Ground 4 Is Meritless
Petitioner's exhausted ineffective assistance argument is meritless. Petitioner claims that he received ineffective assistance of counsel because his counsel failed to request a hearing regarding Mr. Simmons's confirmatory identification of Petitionei.
In order for Petitioner to prevail on an ineffective assistance of counsel claim, Petitioner must show: (1) his counsel's performance “fell below an objective standard of reasonableness, and (2) that there is a “reasonable probability” that, but for counsel s error, the result of the proceeding would have been different.” Strickland, 466 U.S. at 688, 691, 694. In considering whether counsel's performance was deficient under Strickland's first prong, decisions by trial counsel that “fall squarely within the ambit of trial strategy, ... if reasonably made,” cannot give rise to a claim of ineffectiveness. United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987). Strickland's second prong focuses on prejudice to the petitioner. A habeas petitioner must demonstrate “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. “To establish a Strickland claim, the likelihood of a different result in the absence of the alleged deficiencies in representation must be substantial, not just conceivable.” Waiters v. Lee, 857 F.3d 466, 469 (2d Cir. 2017) (internal quotation marks omitted). A habeas petitioner must establish both prongs of Strickland. See Greiner, 417 F.3d at 319. Thus, “there is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697. ‘ 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). AEDPA review is also “‘doubly deferential' in order to afford ‘both the state court and the defense attorney the benefit of the doubt.'” Woods v. Donald, 575 U.S. 312, 316-17 (2015) (quoting Burt v. Titlow, 571 U.S. 12,15 (2013)) (internal quotations omitted). Petitioner fails to meet this high standard.
Here, Petitioner critiques his trial counsel for not requesting a hearing as to the relationship between Petitioner and the victim in order to determine whether Mr. Simmons's identification of Petitioner was confirmatory. Such a hearing is called a Rodriguez hearing. See People v. Rodriguez, 79 N.Y.2d 445, 450 (1992). “A Rodriguez hearing is held to determine whether the identification of a defendant is confirmatory in nature, that is, whether the witness had sufficient familiarity with the defendant to eliminate the issue of police suggestiveness in the identification process. If the court determines that the identification was not confirmatory, then a Wade hearing must be held.” Steinhilber, 2020 WL 907808, at *26 (internal quotation marks omitted). “As recognized under New York state law, a Rodriguez hearing may be held in lieu of a full Wade hearing if the prosecution claims the witness had sufficient familiarity with the defendant that there is little or no risk that police suggestion could lead to misidentification.” Id. (internal quotation marks omitted).
The record here demonstrates that Mr. Simmons and the Petitioner have a long, sordid history with one another. Mr. Simmons testified that he and the Petitioner “grew up in the same neighborhood” (Dkt. 21-33 at 4), and that in April 1999 he had a dispute with Petitioner because Petitioner believed that Mr. Simmons was selling drugs in his area (id. at 6). Mr. Simmons further testified that on May 12, 1999, he encountered Petitioner and Tonin Mayfield together and shot and killed Mr. Mayfield, believing that he was acting in self-defense. [Id. at 8.] Mr. Simmons served a sentence of 18 years in prison for killing Mr. Mayfield. [Id. at 8-9.] However, May 12, 1999 was not the last time that Mr. Simmons saw Petitioner, prior to being shot by him in 2014. Indeed, in 2006, Mr. Simmons was at Attica Correctional Facility and learned that Petitioner was also at that prison. [Dkt. 21-34 at 2.] Upon learning that Petitioner was in the same prison, Mr. Simmons requested to be transferred out of the prison based on his relationship with Petitioner. [Id. at 3, 7-8.] Despite Mr. Simmons's request, Mr. Simmons and Petitioner eventually encountered one another, which resulted in a fight on July 12, 2006. [Id. at 1.] Accordingly, because the record establishes that Petitioner and Mr. Simmons had substantial interaction with one another, Mr. Simmons's later identification of Petitioner was merely confirmatory, and no further hearing could have altered that conclusion.” Steinhilber, 2020 WL 9074808, at *27. Petitioner's counsel therefore did not act unreasonably for failing to request a Rodriguez hearing, and Petitioner fails to meet the first prong of Strickland. Further, given that no hearing would have altered the conclusion that Mr. Simmons's identification of Petitioner was confirmatory, Petitioner fails to satisfy Strickland's, second standard. “In short, because it is unlikely that a Rodriguez hearing would have demonstrated that [Mr. Simmons's identification of Petitioner was] not confirmatory, it is axiomatic that trial counsel could not be deemed ineffective by not requesting such a hearing.” Id. I, accordingly, recommend that Your Honor conclude that Petitioner's argument that he received ineffective assistance of counsel because his trial counsel failed to request a Rodriguez hearing is without merit.
E. Ground 5 Is Deemed Exhausted and Procedurally Barred
For his fifth ground, Petitioner argues that the trial court abused its discretion by allowing evidence of prior bad acts and prior convictions into evidence. As was the case with Petitioner s claims in grounds 3, 4, and 6, this claim is unexhausted. Although Petitioner argued this ground in both his pro se supplemental brief to the Appellate Division, and one of his leave applications to the New York Court of Appeals, he failed to sufficiently alert these state courts to the constitutional nature of the claim.
It is well-settled that a petitioner may have fairly present a federal constitutional claim to state courts “without citing ‘book and verse on the federal constitution.”' See Daye, 696 F.2d at 192 (quoting Picard v. Connor, 404 U.S. 270, 278 (1971)). As noted above, there are numerous ways in which “a state defendant may fairly present to the state courts the constitutional nature of his claim.” Id. at 194; see supra Part III.A. Despite the various ways that Petitioner could have alerted the state courts to his constitutional claim, he failed to do so here.
In his pro se supplemental brief, Petitioner argued that the trial court abused its discretion by allowing evidence of Petitioner's prior bad acts, specifically Petitioner's drug dealing history, into evidence. [Dkt. 21-5 at 73-74.] In the section of his pro se brief addressing this argument, Petitioner did not cite to the Constitution or any federal cases, and he failed to articulate how the trial court's alleged error implicated a specific constitutional right. See Daye, 696 F.2d at 194. Instead, Petitioner relies solely on state cases that do not employ constitutional analyses. See id., see also Dkt. 21-5 at 70-75. The leave application that presented this argument to the Court of Appeals was similarly devoid of any indication that Petitioner sought to advance a federal claim. [See Diet. 21-6 at 45.] “Absent an indication that [Petitioner] raised a federal constitutional question regarding the admissibility of the uncharged crimes evidence at trial or during the appellate process, the Court concludes that he failed to exhaust his available state court remedies.” DeLeon v. Duncan, 2001 WL 1029400, at *8 (S.D.N.Y. Sept. 5, 2001).
Petitioner's supplemental brief cited eleven state cases that all address the issue of admitting evidence of uncharged crimes and offenses. See People v. Vargas, 666NK2d.1357 (N Y 1996)People v. Lngram, 522 N.E.2d 439 (N.Y. 1988); People v. Alvino, 519 N.E.2d 808 (N.Y. 1987); People v. Ventimiglia, 420 N.E.2d 350 (N.Y. 1981); People v. McKinney, 247 N.E.2d 244 (N.Y. 1969); People v. Molineux, 61 N.E. 264 (N.Y. 1901); People v. Wright, 994 N.Y.S.2d 396 (App. Div. 2014); People v. Meseck, 860 N.Y.S.2d 263 (App. Div. 2008); People v. Carson, 771 N.Y.S.2d 775 (App. Div. 2004); People v. Milot, 759 N.Y.S.2d 248 (App. Div. 2003); People v. Sparer, 740 N.Y.S.2d 246 (App. Div. 2002).
Given that Petitioner failed to alert the state courts to the constitutional nature of this claim, this claim is unexhausted. Further, because this claim is record-based, and Petitioner already presented its factual premises on direct appeal, he cannot raise this argument again in state court. see N.Y. Crim. Proc. Law § 440.10(2)(c). Therefore, Petitioner's argument that the trial court abused its discretion by allowing his prior bad acts into evidence is deemed exhausted. See Grey, 933 F.2d at 120. Petitioner could overcome this procedural bar if he could show actual innocence or cause for the procedural default and resulting prejudice, but Petitioner fails to make any such showing here. See Schlup, 513 U.S. at 315; Harris, 489 U.S. at 262. Accordingly, I respectfully recommend Your Honor conclude that the Court cannot grant habeas relief on these grounds
V. CONCLUSION
For the reasons set forth above, I respectfully recommend that Your Honor DENY the Petition for a Writ of Habeas Corpus. I recommend that no certificate of appealability be issued because reasonable jurists would not find it debatable that Petitioner has failed to demonstrate by a substantial showing that he was denied a constitutional right. See 28 U.S.C. 2253 (c); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, and Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts, the parties shall have fourteen (14) days from service of this Report and Recommendation to serve and file written objections. If copies of this Report and Recommendation are served upon the parties by mail, the parties shall have an additional three (3) days, or a total of seventeen (17) days, from service of this Report and Recommendation to serve and file written objections. See also Fed.R.Civ.P. 6 (d). Such objections, if any, along with any responses to the objections, shall be filed with the Clerk of the Court with extra copies delivered to the chambers of the Honorable Kenneth M. Karas, at the Honorable Charles L. Brieant Jr. Federal Building and United States Courthouse, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered. See Caidor v. Onondaga County, 517 F.3d 601, 604 (2d Cir. 2008). Requests for extensions of time to file objections must be made to Judge Karas. A copy of this Report and Recommendation has been mailed to:
Jerome Mack DIN# 15A2518 Shawangunk Correctional Facility P.O. Box 700 Wallkill, NY 12589