Opinion
22 Civ. 4302 (VB)(JCM)
02-14-2024
AKBAR McCLENNON, Petitioner, v. SUPERINTENDENT OF GREEN HAVEN CORRECTIONAL FACILITY, Respondent.
Honorable Vincent L. Briccetti, United States District Judge
REPORT AND RECOMMENDATION
JUDITH C. MCCARTHY UNITED STATES MAGISTRATE JUDGE
Petitioner Akbar McClennon (“Petitioner”), proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on May 7, 2022 (the “Petition”). (Docket No. 1). The District Attorney of Dutchess County, on behalf of the Superintendent of the Green Haven Correctional Facility (“Respondent” or the “State”), opposed the Petition on June 28, 2022. (Docket Nos. 10, 11, 12, 13, 14). Petitioner filed a reply on July 13, 2022, (Docket No. 16), as well as numerous letters, which the Court has carefully reviewed, (Docket Nos. 17, 19, 25). For the reasons set forth below, I respectfully recommend that the Petition be denied.
A pro se prisoner's papers are deemed filed at the time he or she delivers them to prison authorities for forwarding to the court clerk. See Houston v. Lack, 487 U.S. 266, 270 (1988); Walker v. Jastremski, 430 F.3d 560 (2d Cir. 2005) (analyzing the “Houston prison mailbox rule”). Petitioner signed the Petition under penalty of perjury on May 7, 2022. (Docket No. 1 at 21). While the State contends that the Petition may be untimely because “the date on which petitioner dropped his Petition in the mail at the correctional facility is not discernable,” (Docket No. 14 at 18), it is well-established that “[a]bsent evidence to the contrary, the Court assumes that [the petitioner] gave his petition to prison officials for mailing on the date he signed it.” Rhodes v. Senkowski, 82 F.Supp.2d 160, 165 (S.D.N.Y. 2000) (collecting cases). Consequently, because the Petition was signed and dated on May 7, 2022, and the State admits that he “had until May 22, 2022 to file” it, (Docket No. 14 at 18), the Petition is timely, and the Court accepts Petitioner's dates for this and all other filings discussed herein.
I. BACKGROUND
A. The Crimes, Trial and Sentence
Petitioner's conviction in this case arises from events that took place on July 11, 2017, at the Poughkeepsie Inn in Poughkeepsie, New York. (Trial Tr. at 230). How the events of that day unfolded is convoluted and involves numerous individuals-at least one of whom was both a victim and a perpetrator-but in sum and substance, Petitioner and his accomplice forcibly entered a guest's room at the Poughkeepsie Inn, robbed him of the cash and narcotics he was hiding in the room, pistol-whipped and shot him, and then fled the scene. (Id. at 421-63). The victim, Christopher Giannone-Seavers, was a drug dealer who had spent the day doing drugs with two female acquaintances, Marissa Greene and Morgan Mische. (Id. at 730-38, 1220-40). A close friend of Mr. Giannone-Seavers, Fawn Gunther, sent Ms. Green and Ms. Mische to give Mr. Giannone-Seavers a ride to the Poughkeepsie Inn. (Id.). Unbeknownst to Mr. Giannone-Seavers, Ms. Greene and Ms. Mische were working in concert with Petitioner when the crime occurred, although the degree to which they participated is disputed. (Id. at 1200-05, 1356, 141011).
The Court construes the evidence presented at trial in the light most favorable to the State. See, e.g., Murden v. Artuz, 497 F.3d 178, 184 (2d Cir. 2007).
“Trial Tr.” refers to the transcript of Petitioner's trial, held from April 9, 2018 through April 27, 2018. (Docket No. 13).
Unless otherwise noted, all page numbers refer to the numbers generated by the Court's electronic case filing system (“ECF”).
Police responded immediately after the robbery occurred. Witnesses told the police that they heard “thumping” sounds next door and then saw two Black male suspects flee to a gray Volkswagen in a nearby gas station parking lot. (Id. at 460-74). One suspect, the Petitioner, was described as wearing a red shirt and blue jeans, and the other suspect was described as wearing a black sweatshirt and carrying a duffle bag. (Id.). Upon arriving at the crime scene, the police discovered the victim sitting in the doorway of the room bleeding profusely from his head and holding his leg while groaning in pain. (Id. at 429). He explained that he had been pistol- whipped and shot in the leg. The room was unoccupied but messy and there was blood on the headboard of the bed. (Id. at 431-40). Petitioner and his male accomplice were found nearby. (Id. at 828-865). Petitioner was not wearing a shirt but he was wearing blue jeans. (Id.). He told police he was coming “from the incinerator” at a nearby apartment complex, but when police told him there was no incinerator there, he said he was coming from room “602.” (Wade Tr. at 7-8). However, he could not name the building or street on which room “602” was located. (Id.). Separately, Petitioner's male accomplice was found in the parking lot of a nearby supermarket, where police also found a black sweatshirt matching the description of one worn by one of the perpetrators. (Trial Tr. at 566-78).
“Wade Tr.” refers to the transcript of Petitioner's Wade hearing, held on January 28, 2018. (Docket No. 12-1). A Wade hearing is held “to determine before trial whether pretrial identification procedures have been so improperly suggestive as to taint an in-court identification.” Andrews v. LeClaire, 709 F.Supp.2d 269, 278 n.6 (S.D.N.Y. 2010) (citing United States v. Wade, 388 U.S. 218 (1967)).
Around the same time, police apprehended Ms. Greene and Ms. Mische near the scene of the crime. Ms. Mische was found in a dumpster wearing only undergarments. (Id. at 955-97). She told police that she was a victim of the robbery and was searching for two cell phones and a GPS device. (Id. at 993-94; Wade Tr. at 57-58). While officers placed her in the back of a squad car, Ms. Greene came running towards them. (Trial Tr. at 986). She was uncooperative and appeared to be high, but also claimed to be a victim. (Id. at 986-88, Wade Tr. at 50, 60). Shortly thereafter, police conducted a show up with Petitioner and Ms. Mische. (Wade Tr. at 28-33). Ms. Mische viewed Petitioner and identified him as one of the perpetrators who robbed and shot Mr. Giannone-Seavers. (Id. at 30-48, 52-56). Forensic examination of the crime scene also revealed: (1) clothing containing Petitioner's DNA, (Trial Tr. at 1074-76, 1702-04); (2) DNA found on Petitioner's sneaker, which partially matched the victim's DNA, (id. at 1679-91); and (3) a footprint police recovered from the room where the crime was committed that matched Petitioner's sneaker, (id. at 1516-34). In addition, the police collected a video from Petitioner's cell phone showing him wearing a red shirt on the day of the shooting-matching eyewitness accounts-and driving a gray Volkswagen that closely resembled the one witnesses saw Petitioner driving nearby the same day. (Id. at 1008-12, 1997-99). Finally, there were recordings of numerous phone calls Petitioner made while in prison awaiting trial, where he discussed the firearm used, the backpack of drugs and money stolen on July 11, 2017, and his desire to destroy evidence of the crime. (Id. at 1765-73, 2020-23).
Petitioner was indicted on August 10, 2017, in the County Court of New York, Dutchess County, on charges of: (1) Robbery in the First Degree (nine counts); (2) Burglary in the First Degree (four counts); (3) Robbery in the Second Degree (seven counts); (4) Burglary in the Second Degree (one count); (5) Assault in the Second Degree (three counts); (6) Criminal Possession of a Weapon in the Second Degree (two counts); (7) Tampering with Physical Evidence (one count); and (8) Attempted Tampering with Physical Evidence (one count). (Docket No. 10-2). Prior to trial, he challenged the admissibility of the show-up identification the police conducted the night of the shooting. (Docket No. 11-1). After ordering a Wade hearing on the issue, the trial court denied the motion, holding that exigent circumstances justified “the use of show-up identification procedures” and the procedures used “were not so unduly suggestive as to lead to a substantial likelihood of misidentification.” (Docket No. 12-3 at 9). The case then proceeded to trial.
At trial, the State called numerous witnesses regarding Petitioner's involvement, but did not call Ms. Mische, the one witness that identified Petitioner as the shooter. As a result, Petitioner requested that the trial court issue a missing witness charge to the jury. (Trial Tr. at 1941-47). The trial court denied the request after the prosecution explained that they issued a subpoena for Ms. Mische and intended to have her testify, but she refused to comply, and the police could not locate her. (Id.). Petitioner also moved to dismiss the firearms-related charges against him, arguing that the State had not met its burden of proof. (Id. at 1915-21). That motion was also denied. (Id.). Ultimately, Petitioner was convicted on all counts in the indictment and sentenced to: (1) 22 years of imprisonment on counts one through nine (Robbery in the First Degree); (2) 22 years of imprisonment on counts ten through thirteen (Burglary in the First Degree); (3) 15 years of imprisonment on counts fourteen through twenty (Robbery in the Second Degree); (4) 15 years of imprisonment on count twenty-one (Burglary in the Second Degree); (5) seven years of imprisonment on counts twenty-two through twenty-four (Assault in the Second Degree); (6) 15 years of imprisonment on counts twenty-five and twenty-six (Criminal Possession of a Weapon in the Second Degree); (7) one-and-a-third to four years of imprisonment on count twenty-seven (Tampering with Physical Evidence); and (8) 1 year of imprisonment on count twenty-eight (Attempted Tampering with Physical Evidence). (Sentencing Tr. at 11-16). All terms run concurrently except for the one-and-a-third to four year term, which runs consecutively. (Id.).
“Sentencing Tr.” refers to the transcript of Petitioner's sentencing hearing, which was held on June 26, 2018. (Docket No. 13-23).
B. Direct Appeal
Petitioner filed a direct appeal through counsel on July 30, 2019, arguing that: (1) the show-up identification should have been suppressed as it was unduly suggestive and violated his due process rights, (Docket No. 13-24 at 19-28); (2) the trial court should have granted Petitioner's request for a missing witness charge, (id. at 28-31); (3) the trial court committed reversable error by not holding a Sirois hearing when the State's eyewitness refused to testify, (id. at 31-36); (4) the trial court should have granted his New York Criminal Procedure Law (“C.P.L.”) § 290.10 motion for an order dismissing the firearms charges, (id. at 36-39); (5) the verdict was against the weight of the evidence, (id. at 39-51); (6) the audio tapes introduced by the State at trial were inadmissible because the trial court did not hold a Rodriguez hearing, (id. at 51-58); and (7) his sentence was excessive, (id. at 58-64). The State filed its opposition on September 26, 2019. (Docket No. 13-25).
A “Sirois” hearing is held when the state alleges that a witness refuses to testify due to the defendant's misconduct. Holtzman v. Hellenbrand, 460 N.Y.S.2d 591, 597 (2d Dep't 1983). If the state proves defendant's misconduct by clear and convincing evidence, then the defendant is deemed to have waived objection to introduction of the missing witness's prior testimony. Id.
“[A] Rodriguez hearing is held in lieu of a Wade hearing when the prosecution alleges that, by virtue of a prior relationship between a witness and the defendant, the witness is ‘impervious to police suggestion,' and her identification is therefore untainted by an otherwise suggestive pretrial identification procedure.” Stallings v. Woods, No. 04 CV 4714 (RLM), 2006 WL 842380, at *16 n.17 (E.D.N.Y. Mar. 27, 2006) (quoting People v. Rodriguez, 583 N.Y.S.2d 814, 819 (N.Y. 1992)).
By Decision and Order, dated November 12, 2020, the Supreme Court of the State of New York, Appellate Division, Second Judicial Department (the “Second Department”), affirmed Petitioner's conviction in its entirety. People v. McClennon, 132 N.Y.S.3d 328 (2d Dep't 2020). The Second Department held that:
We agree with the County Court's determination to deny that branch of the defendant's omnibus motion, which was to suppress identification testimony. The People . . . met their burden of establishing that the showup identification procedure was not unduly suggestive. The showup was conducted in close spatial and temporal proximity to the crimes. The showup procedure was not rendered unduly suggestive because the defendant was handcuffed and in the presence of uniformed police officers and police cars at the time of the identification. As the People satisfied their burden, the burden then shifted to the defendant to prove that the procedure was unduly suggestive, and the defendant failed to satisfy this burden. The defendant's challenge to the legal sufficiency of the evidence is partially unpreserved for appellate review . . . [and] we find that [the evidence] was legally sufficient to establish the defendant's guilt of the challenged crimes beyond a reasonable doubt....We also agree with the County Court's determination to decline to give a missing witness charge.Id. at 329-30. Petitioner then sought leave to appeal the Second Department's decision to the New York Court of Appeals (“Court of Appeals”), which was summarily denied on February 26, 2021. People v. McClennon, 141 N.Y.S.3d 776 (N.Y. 2021).
C. The Petition
On May 7, 2022, Petitioner filed the instant Petition. (Docket No. 1 at 21). The State filed its opposition on June 28, 2022. (Docket Nos. 10, 11, 12, 13, 14). Petitioner filed a reply on July 13, 2022. (Docket No. 16). Construing the Petition broadly, see Williams v. Kullman, 722 F.2d 1048, 1051 (2d Cir. 1983) (holding that pleading requirements in habeas proceedings should not be “overly technical and stringent”), Petitioner argues five claims for relief, that: (1) the trial court violated his Fifth and Fourteenth Amendment right to due process by denying his pre-trial motion to suppress the show-up identification; (2) his due process rights were violated when the trial court refused to give a missing witness charge; (3) the evidence presented at trial was insufficient to support his conviction for the firearms-related offenses; (4) he was deprived of his Sixth Amendment right to confront the State's identifying witness; and (5) trial counsel was ineffective.
The State did not identify or respond to Petitioner's fourth and fifth claims, as they are not clearly delineated from his other claims for relief under “Ground Four” in the Petition. (Docket No. 1 at 15-22). However, since the Court must review the Petition “with a lenient eye,” it will address those claims as if they were stated as independent grounds for relief therein. Kullman, 722 F.2d at 1050.
II. APPLICABLE LAW
“The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996” (“AEDPA”). Harrington v. Richter, 562 U.S. 86, 97 (2011). “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.” Visich v. Walsh, No. 10 Civ. 4160 (ER) (PED), 2013 WL 3388953, at *9 (S.D.N.Y. July 3, 2013). The procedural and substantive standards are summarized below.
If Petitioner does not have access to cases cited herein that are available only by electronic database, then he may request copies from Respondent's counsel. See Local Civ. R. 7.2 (“Upon request, counsel shall provide the pro se litigant with copies of such unpublished cases and other authorities as are cited in a decision of the Court and were not previously cited by any party.”).
A. Exhaustion as a Procedural Bar
A habeas petition may not be granted unless the petitioner has exhausted his claims in state court. See 28 U.S.C. § 2254(b). As the statute prescribes:
(b)(1) 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 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 State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant. ...
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.28 U.S.C. § 2254(b)-(c).
Exhaustion requires a prisoner to have “fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts.” Turner v. Artuz, 262 F.3d 118, 123 (2d Cir. 2001) (internal quotations omitted). If a petitioner “cites to specific provisions of the U.S. Constitution in his state court brief, the petitioner has fairly presented his constitutional claim to the state court.” Davis v. Strack, 270 F.3d 111, 122 (2d Cir. 2001); see also Reid v. Senkowski, 961 F.2d 374, 376 (2d Cir. 1992) (even “a minimal reference to the Fourteenth Amendment” presents a federal constitutional claim to the state courts). A petitioner may fairly present his claim even without citing to the U.S. Constitution, by, inter alia: “(a) [relying] on pertinent federal cases employing constitutional analysis, (b) [relying] on state cases employing constitutional analysis in like fact situations, (c) [asserting] . . . [a] claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) [alleging] . . . a pattern of facts that is well within the mainstream of constitutional litigation.” Daye v. Attorney Gen. of State of N.Y., 696 F.2d 186, 194 (2d Cir. 1982). Fair presentation includes petitioning for discretionary review in the state's highest appellate court. See O'Sullivan v. Boerckel, 526 U.S. 838, 839-40 (1999) (“[A] state prisoner must present his claims to a state supreme court in a petition for discretionary review in order to satisfy the exhaustion requirement”).
However, “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 quotations omitted). In such cases, although the claim is technically unexhausted, the district court may deem the claim to be exhausted but procedurally barred from habeas review. See id. at 140 (“[A] claim is procedurally defaulted for the purposes of federal habeas review where ‘the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.'”) (quoting Coleman v. Thompson, 501 U.S. 722, 735 (1991)).
Under New York law, defendants are permitted only one direct appeal. See Dasney v. People of the State of New York, No. 15-cv-5734 (RJS), 2017 WL 253488, at *5 (S.D.N.Y. Jan. 19, 2017) (citing N.Y. Ct. App. R. § 500.20); see also Roa v. Portuondo, 548 F.Supp.2d 56, 78 (S.D.N.Y. 2008) (“Any attempt to raise these claims at this stage as part of a direct appeal would be rejected because a criminal defendant is entitled to only one direct appeal and one application for leave to appeal to the Court of Appeals.”). Petitioners must raise record-based claims by direct appeal rather than by a collateral motion in state court. See, e.g., O'Kane v. Kirkpatrick, No. 09 Civ. 05167 (HB)(THK), 2011 WL 3809945, at *7 (S.D.N.Y. Feb. 15, 2011) (“[A]ll claims that are record-based must be raised in a direct appeal....It is only when a defendant's claim hinges upon facts outside the trial record, that he may collaterally attack his conviction by bringing a claim under CPL § 440.10.”), report and recommendation adopted, 2011 WL 3918158 (S.D.N.Y. Aug. 25, 2011); Lowman v. New York, No. 09-CV-0058T (MAT), 2011 WL 90996, at *9 (W.D.N.Y. Jan. 11, 2011) (“Collateral review of this claim-by way of another CPL § 440 motion-is also barred because the claim is a matter of record that could have been raised on direct appeal, but unjustifiably was not.”) (citing N.Y. C.P.L. § 440.10(2)(c)).
This rule states, in relevant part, that a letter application for leave to appeal “shall indicate . . . (2) that no application for the same relief has been addressed to a justice of the Appellate Division, as only one application is available.” N.Y. Ct. App. R. 500.20(a) (emphasis added).
C.P.L. § 440.10(2)(c) states, in relevant part, that a court must deny a § 440.10 motion to vacate judgment when “[a]lthough sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his or her unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him. . . .”
To avoid the procedural default of an unexhausted claim, a petitioner may show “cause for the default and prejudice, or that failure to consider the claim will result in miscarriage of justice, i.e., the petitioner is actually innocent.” Sweet v. Bennett, 353 F.3d 135, 141 (2d Cir. 2003).
B. Adequate and Independent State Grounds as a Procedural Bar
“It is well established that federal courts 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.'” Cone v. Bell, 556 U.S. 449, 465 (2009) (quoting Coleman, 501 U.S. at 729). This preclusion applies even if the state court alternatively rules on the merits of the federal claim, so long as there is an adequate and independent state ground that would bar the claim in state court. See, e.g., Harris v. Reed, 489 U.S. 255, 264 n.10 (1989); accord Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999).
“A state court decision will be ‘independent' when it ‘fairly appears' to rest primarily on state law.” Taylor v. Connelly, 18 F.Supp.3d 242, 253 (E.D.N.Y. 2014) (quoting Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir. 2006)). Typically, a ground is adequate “only if it is based on a rule that is ‘firmly established and regularly followed' by the state in question.” Garcia, 188 F.3d at 77 (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)); see also Cotto v. Herbert, 331 F.3d 217, 239 (2d Cir. 2003) (same). A decision that a state procedural rule is inadequate should not be made “lightly or without clear support in state law.” Garcia, 188 F.3d at 77 (internal quotations omitted). However, “there are ‘exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question.'” Cotto, 331 F.3d at 240 (quoting Lee v. Kemna, 534 U.S. 362, 376 (2002)). In determining whether a case is “exceptional” in that the state ground should be held inadequate, the Second Circuit uses the following factors as “guideposts”:
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had substantially complied with the rule given the realities of trial, and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.Id. (internal quotations omitted).
To avoid a procedural default based on independent and adequate state grounds, a petitioner must “show ‘cause' for the default and ‘prejudice attributable thereto,' . . . or demonstrate that failure to consider the federal claim will result in a ‘fundamental miscarriage of justice.'” Harris, 489 U.S. at 262 (quoting Murray v. Carrier, 477 U.S. 478, 485, 495 (1986)).
C. AEDPA Standard of Review
When a federal court reaches the merits of a habeas petition, AEDPA prescribes a “highly deferential” standard for reviewing state court rulings. Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997); see also Fischer v. Smith, 780 F.3d 556, 561 (2d Cir. 2015). An application for a writ of habeas corpus:
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.28 U.S.C. § 2254(d)(1)-(2).
Courts have interpreted the phrase “adjudicated on the merits” in AEDPA as meaning that a state court “(1) dispose[d] of the claim on the merits, and (2) reduce[d] its disposition to judgment.” Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001) (internal quotations omitted). Courts examine the “last reasoned decision” by the state courts in determining whether a federal claim was adjudicated on the merits. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (“Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.”).
If a state court adjudicates a federal claim on the merits, the Court must apply AEDPA deference to that state court ruling. 28 U.S.C. § 2254(d)(1)-(2). In the context of AEDPA deference, the phrase “clearly established Federal law” means “the holdings, as opposed to the dicta, of [the Supreme Court of the United States'] decisions as of the time of the relevant statecourt decision.” Williams v. Taylor, 529 U.S. 362, 365 (2000). “A state court decision is contrary to such clearly established federal law if it ‘applies a rule that contradicts the governing law set forth in the Supreme Court's cases' or ‘if the state court confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from its precedent.'” Lewis v. Conn. Comm'r of Corr., 790 F.3d 109, 121 (2d Cir. 2015) (quoting Boyette v. Lefevre, 246 F.3d 76, 90 (2d Cir. 2001)). A state court decision involves an “unreasonable application” of Supreme Court precedent if: (1) “the state court identifies the correct governing legal rule from [Supreme Court] cases but unreasonably applies it to the facts of the particular state prisoner's case,” or (2) “the state court 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.” Williams, 529 U.S. at 407.
If, by contrast, a state court does not adjudicate a federal claim on the merits, “AEDPA deference is not required . . . [and] conclusions of law and mixed findings of fact and conclusions of law are reviewed de novo.” DeBerry v. Portuondo, 403 F.3d 57, 66-67 (2d Cir. 2005).
For a federal court to find a state court's application of Supreme Court precedent unreasonable, the state court's decision must have been more than “incorrect or erroneous” - it must have been “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003). In other words, “[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of [the state court's] decision.” Richter, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). However, “the trial court's decision need not teeter on ‘judicial incompetence' to warrant relief under § 2254(d).” Alvarez v. Ercole, 763 F.3d 223, 229 (2d Cir. 2014) (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)). If a state court decision does not contain reasons for the dismissal of a defendant's federal claim, the court must “consider ‘what arguments or theories . . . could have supported[] the state court's decision,' and may grant habeas only if ‘fairminded jurists could [not] disagree that those arguments or theories are inconsistent with the holding in a prior decision of' the Supreme Court.” Lynch v. Superintendent Dolce, 789 F.3d 303, 311 (2d Cir. 2015) (alterations in original) (quoting Richter, 562 U.S. at 102).
When reviewing an application for a writ of habeas corpus, “a determination of a factual issue made by a State court shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). The petitioner has the burden of rebutting the state court's factual holding by “clear and convincing evidence.” Id.; see also Chapman v. Vanzandt, No. 96 CIV. 6940 (JGK), 1997 WL 375668, at *4 (S.D.N.Y. July 8, 1997).
III. DISCUSSION
A. The Show-Up Identification
Petitioner argues that the trial court violated his right to due process of law by denying his motion to suppress evidence of the show-up identification police conducted on the night of the crime. Specifically, Petitioner argues that “the trial court relied on the exigent circumstances exception where none exist [sic],” and that the “show-up was unduly suggestive because it was essentially a one man lineup.” (Docket No. 1 at 8). In response, the State contends that “[w]hile the circumstances of the showup were arguably suggestive . . . it cannot be said that the Appellate Division's reliance on the spatial and temporal proximity of the showup to the scene of a rapidly unfolding crime was unreasonable,” and that even if it was unreasonable, the procedure used was warranted due to exigent circumstances. (Docket No. 14 at 24).
As a threshold matter, the trial court's denial of Petitioner's motion to suppress his show-up identification was reviewed on the merits by the Second Department and, thus, is entitled to AEDPA deference. The trial court held that “the use of show-up identification procedures in this case was [] justified [since] [e]xigent circumstances clearly existed on the day in question,” and the procedures used, “were not so unduly suggestive as to lead to a substantial likelihood of misidentification.” (Docket No. 12-3 at 9). In affirming the trial court's decision, the Second Department found that the show-up identification “was not unduly suggestive” and, therefore, did not reach the issue of whether exigent circumstances justified the procedures used. McClennon, 132 N.Y.S.3d at 329. Thus, the decision to deny Petitioner's motion to suppress was made on the merits. Under AEDPA, deference “stops short of imposing a complete bar on federal-court relitigation of claims already rejected in state proceedings,” but only allows a writ to be issued “where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents.” Richter, 562 U.S. at 102.
Under Supreme Court precedent, a pre-trial identification procedure is impermissibly suggestive if it raises “a very substantial likelihood of irreparable misidentification.” Neil v. Biggers, 409 U.S. 188, 197-98 (1972) (citing Simmons v. United States, 390 U.S. 377, 384 (1968)); accord Jarrett v. Headley, 802 F.2d 34, 40-41 (2d Cir. 1986). The Second Circuit has identified a two-step process to determine if a prior identification violates the Due Process Clause. Raheem v. Kelly, 257 F.3d 122, 133 (2d Cir. 2001). First, the Court must “determine whether the pretrial identification procedures unduly and unnecessarily suggested that the defendant was the perpetrator.” Id. “If the procedures were not suggestive, the identification evidence presents no due process obstacle to admissibility [and] no further inquiry by the court is required ....” Id. (internal citations omitted); see also Perry v. New Hampshire, 565 U.S. 228, 232 (2012) (“[I]f the indicia of reliability are strong enough to outweigh the corrupting effect of the police-arranged suggestive circumstances, the identification evidence ordinarily will be admitted, and the jury will ultimately determine its worth.”). However, if the Court finds that the procedures were suggestive, “it must then determine whether the identification was nonetheless independently reliable.” Raheem, 257 F.3d at 133; see also Manson v. Brathwaite, 432 U.S. 114, 114 (2001); Neil, 409 U.S. at 199.
Here, Petitioner has failed to demonstrate that the show up used to identify him was unduly suggestive. During their investigation, the police interviewed two witnesses at the scene of the crime who described two perpetrators, one of whom was a Black man with dreadlocks, wearing jeans and a red hoodie. (Trial Tr. at 464-70, 490). This suspect was last seen traveling towards a nearby shopping plaza. (Id.). This description was broadcast over police radio and within 30 minutes an officer apprehended Petitioner near the scene of the crime. (Id. at 10071010; Wade Tr. at 6-7). He was shirtless, but otherwise matched the description given. (Id.). In addition, he told officers that he was coming from the incinerator at a nearby apartment complex, but could not elaborate when the police told him that the apartment complex did not have an incinerator. (Wade Tr. at 7-9). Suspecting that Petitioner may have been involved in the crime, the police handcuffed him and directed him to stand against the trunk of a squad car as they asked Ms. Mische whether he was one of the perpetrators. (Id. at 30-46). Ms. Mische positively identified him and Petitioner was then arrested and charged. (Id.).
Petitioner argues that this identification should have been suppressed since the handcuffs and police presence suggested his guilt. However, “[t]he fact that [a] suspect[] w[as] handcuffed, in the custody of law enforcement officers, and illuminated by flashlights” does not render a show up “unnecessarily suggestive” where they are “all necessary incidents of an on-the-scene identification immediately following” the commission of a crime. United States v. Bautista, 23 F.3d 726, 730 (2d Cir. 1994); see also Cardova v. Lavalley, 123 F.Supp.3d 387, 395 (E.D.N.Y. 2015) (“show-up procedures are not rendered unduly suggestive as a matter of law merely because a defendant is handcuffed and surrounded by police”). Moreover, the temporal and geographic proximity of the show up in this case-Petitioner was apprehended near the Poughkeepsie Inn and was presented for identification within thirty minutes of when the crime occurred-does not render it inadmissible since exigent circumstances existed at the time of the show up. See Gilford v. Racette, No. 13 Civ. 5881 (ALC)(AJP), 2015 WL 4639975, at *16 (S.D.N.Y. Aug. 5, 2015) (“numerous courts have acknowledged the utility of a showup conducted in close temporal and spatial proximity to the crime”) (collecting cases), report and recommendation adopted, 2015 WL 7430825 (S.D.N.Y. Nov. 20, 2015); see also Brisco v. Ercole, 565 F.3d 80, 88 (2d Cir. 2009) (“Exigent circumstances generally weigh in favor of concluding that a showup identification procedure was not unduly suggestive, because a showup procedure may be necessary in such circumstances to quickly confirm the identity of a suspect, or to ensure the release of an innocent suspect.”). Therefore, because the show up was not suggestive, “no further inquiry is necessary to determine whether Petitioner's identification was independently reliable.” Cardova, 123 F.Supp.3d at 396.
Nonetheless, even if the show up was suggestive, the identification of Petitioner was independently reliable. “To ascertain whether an identification has reliability independent of the unduly suggestive identification procedures, courts generally look to five established factors . . . [1] the opportunity of the witness to view the criminal at the time of the crime, [2] the witness' degree of attention, [3] the accuracy of the witness' prior description of the criminal, [4] the level of certainty demonstrated by the witness at the confrontation; and [5] the length of time between the crime and the confrontation.” Brisco, 565 F.3d at 89. Almost all of these factors weigh in favor of the State here: (1) Ms. Mische was in the room with the victim when the crime was committed, (Trial Tr. at 1221-42); (2) she viewed Petitioner in isolation and was within 25 feet of him during the show-up identification, (Wade Tr. at 45); (3) she was certain that Petitioner was the perpetrator, (Id.); and (4) the show up was held within 30 minutes of the crime, (Id. 4-7, 28-31). Therefore, the Second Department's decision to affirm the trial court's denial of Petitioner's motion to suppress his show-up identification was not contrary to, nor an unreasonable application of, Supreme Court precedent.
To the extent Petitioner is also arguing that the identifying witness at the show up-Ms. Mische-was required to testify at his Wade hearing, that claim is similarly erroneous. See Scission v. Lempke, 784 F.Supp.2d 237, 242 (W.D.N.Y. 2011) (“although the hearing court ha[s] the discretion to call [the identifying witness] to testify at the Wade hearing, it [is] not obligated as a matter of New York State law or Federal constitutional law” to do so.).
Accordingly, I conclude and respectfully recommend denying Petitioner's claim that his due process rights were violated by the State's use of an allegedly suggestive show-up identification.
B. Missing Witness Charge
Petitioner also argues that he was denied a fair trial under the Due Process Clause of the Fifth and Fourteenth Amendments “due to [the] trial court's failure to give [a] ‘missing witness' instruction-where the ‘sole identifying witness' at the show up, did not testify at the trial.” (Docket No. 1 at 9-10). He maintains that the State's decision not to call Ms. Mische as a witness entitled him to a missing witness instruction since she was the only witness that identified him as the perpetrator at the show up held on July 11, 2017, and that the trial court's failure to give such a charge constitutes reversable error. (Id.). In response, the State contends that: (1) Petitioner failed to exhaust this claim because he did not frame it in federal constitutional terms in state court; and (2) even if it was exhausted, the claim still fails since the trial court's decision was not contrary to, nor an unreasonable application of, Supreme Court precedent. (Docket No. 14 at 27-31).
First, Petitioner failed to exhaust this claim on direct review in state court. While both his Second Department appellate brief and letter motion to the Court of Appeals argue that the trial court committed reversible error by failing to issue a missing witness charge, neither present the issue in federal constitutional terms by citing to provisions of the U.S. Constitution or referring generally to federal constitutional principles. Therefore, the claim is unexhausted. See Hawkins v. Graham, No. 1:12-CV-0643 (MAT), 2014 WL 317842, at *4 (W.D.N.Y. Jan. 29, 2014) (holding that “Petitioner failed to sufficiently notify the state courts of the [] federal constitutional nature” of his missing witness charge claim by not presenting it “in federal constitutional terms to the New York State courts”) (collecting cases). Since Petitioner cannot go back to state court to raise this claim now because New York only allows defendants a single appeal from conviction, N.Y. C.P.L. § 450.10, and record-based collateral appeals are not permitted, N.Y. C.P.L. § 440.10, the claim must be deemed exhausted, and procedurally barred from further review. “When a claim is in that posture, it . . . cannot be heard on federal habeas corpus review.” Ortiz v. Bradt, No. 13 Civ. 5420 (BMC), 2013 WL 5775695, at *6 (E.D.N.Y. Oct. 25, 2013).
The only way Petitioner can overcome this procedural default is to show: (1) cause for the default and prejudice therefrom; or (2) actual innocence such that refusal to consider the defaulted claim will result in a miscarriage of justice. Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011) (“An applicant seeking habeas relief may escape dismissal of the merits of a procedurally defaulted claim only by demonstrating cause for the default and prejudice or by showing that he is actually innocent of the crime for which he was convicted”) (internal quotations omitted); Reese v. Alexander, 37 Fed.Appx. 5, 8 (2d Cir. 2002) (same). This is an exacting standard that Petitioner cannot meet. Petitioner does not argue or show cause for failing to alert the state appellate courts to the federal constitutional nature of his claim, therefore, the Court need not analyze whether Petitioner would be prejudiced by the Court's refusal to consider it. Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 127 (2d Cir. 1995) (“Since [petitioner] has failed to show cause, there is no need to address the prejudice requirement, and federal habeas review . . . is unavailable”); Frazier v. United States, 19-CV-8738 (CS), 17-CR-364-7 (CS), 2021 WL 111638, at *3 n.6 (S.D.N.Y. Jan. 12, 2021) (“[a]s there is no showing of cause, I need not address prejudice”). Nor does he demonstrate actual innocence through the presentation of new evidence. See, e.g., Calderon v. Perez, No. 10 Civ. 2562 (GBD)(AJP), 2011 WL 293709, at *20 (S.D.N.Y. Jan. 28, 2011), report and recommendation adopted, 2011 WL 1405029 (S.D.N.Y. Apr. 5, 2011). As a result, Petitioner's claim is barred from federal habeas review.
Second, assuming, arguendo, that Petitioner exhausted this claim in state court, it would still fail since the trial court's ruling was not contrary to, nor an unreasonable application of, Supreme Court precedent. “The propriety of a state trial court's jury instruction is a matter of state law, and habeas relief is not available for errors of state law.” Vasquez v. Warden of Facility, No. 06 Civ. 4366 (RJH)(RLE), 2008 WL 6653635, at *5 (S.D.N.Y. Sept. 4, 2008) (citations and internal quotations omitted); see also Henriquez v. Lee, 18-CV-7913 (GHW)(KNF), 2019 WL 3306586, at *3 (S.D.N.Y. June 27, 2019) (“[a] missing-witness charge is not a federally protected right; rather, it creates a presumption that the missing witness's testimony would be unfavorable to the party who failed to produce the witness”), report and recommendation adopted, 2019 WL 3302609 (S.D.N.Y. July 23, 2019). Therefore, “habeas relief is only available if petitioner establishes that the failure to provide the charge rendered the trial fundamentally unfair, in violation of petitioner's due process rights.” Williams v. Moscicki, No. 10-CV-5918 (DLI)(LB), 2014 WL 1277400, at *8 (E.D.N.Y. Mar. 27, 2014) (citations and internal quotations omitted). This requires the Court to determine whether Petitioner “was erroneously deprived of a jury instruction to which he was entitled under state law[.]” Davis, 270 F.3d at 123. “Under New York law, to warrant a missing witness charge, the moving party must show that: 1) the witness is knowledgeable about a material issue in the case; 2) the witness would be expected to give noncumulative testimony favorable to the party who has not called him; and 3) the witness is in the ‘control' of, or available to, the party.” Vasquez, 2008 WL 6653635, at *5.
Here, Petitioner has failed to establish that Ms. Mische-the missing witness-was under the State's control or that her testimony would have been noncumulative. First, contrary to Petitioner's argument, the State tried to call Ms. Mische as a witness at trial. The State served Ms. Mische with a subpoena and told her “to be in court that Monday morning to testify.” (Trial Tr. at 1943-46, 2177-79). Rather than appear as directed, she defied the subpoena and stopped answering the State's calls, claiming she was “in the hospital.” (Id.). Further, when the State sent “the police looking for her” she told them that “she was refusing to testify because she had been shot at” even though there was no evidence that she had been injured or that she reported the shooting to the police. (Id. at 1944). Thus, it was reasonable for the trial court to conclude that Ms. Mische was not under the State's control at the time of trial.
Second, the State called numerous other witnesses who were present in the room when the crimes were committed, as well as the officers who found Petitioner in the immediate aftermath of the crime when the show-up identification was made. (Docket No. 14 at 31). Under these circumstances, Petitioner has not established that he was entitled to a missing witness charge under state law, or that the trial court's refusal to grant his request for such an instruction deprived him of his right to a fair trial. Moreover, since the Second Department reviewed this claim on the merits and “agree[d] with the County Court's determination to decline to give a missing witness charge,” McClennon, 132 N.Y.S.3d at 329, the decision is entitled to AEDPA deference and the trial court's factual findings “are presumed to be correct.” Rispers v. Capra, 18 Civ. 4604 (VB)(PED), 2021 WL 5360642, at *4 (S.D.N.Y. Oct. 26, 2021), report and recommendation adopted, 2021 WL 6064540 (S.D.N.Y. Dec. 21, 2021).
Accordingly, I respectfully recommend denying Petitioner's claim that the trial court violated the Due Process Clause when it denied his request for a missing witness charge.
C. Sufficiency of the Evidence
Petitioner argues that the evidence presented at trial was insufficient to sustain his conviction for the firearms-related offenses and, therefore, his N.Y. C.P.L. § 290.10 post-trial motion to dismiss should have been granted. (Docket No. 1 at 15-16). Specifically, he argues that: (i) the State failed to present forensic evidence tying him to the firearm used in the crime; (ii) the victim could not state whether Petitioner or his accomplice was the shooter; and (iii) the witnesses that identified Petitioner as one of the perpetrators lacked credibility. (Id.) (“There is ‘no' evidence that Defendant fired a gun. Only evidence to conflict this finding comes from, the people's cooperating witnesses....Defense counsel's motion pursuant to C.P.L. 290.10 should have been, by law, granted.”). The State responds that “[P]etitioner's conviction for Robbery in the First Degree as charged in count one” was not “contrary to established law or based on an unreasonable determination of the facts,” and “must be dismissed.” (Docket No. 14 at 37).
As an initial matter, the Second Department reviewed this claim on the merits and affirmed the trial court's denial of Petitioner's post-trial motion to dismiss, holding that it was “partially unpreserved for appellate review,” but that “[i]n any event” the evidence presented at trial “was legally sufficient to establish the defendant's guilt of the challenged crimes beyond a reasonable doubt.” McClennon, 132 N.Y.S.3d at 329. Therefore, since the Second Department ruled on the merits, its decision is entitled to AEDPA deference and the Court must defer to the jury's factual determinations and may not substitute its own judgment for that of the jurors. See Santone v. Fischer, 689 F.3d 138, 155 (2d Cir. 2012).
To prevail on an insufficiency of the evidence claim, Petitioner must prove that “upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Einaugler v. Sup. Ct. of N.Y., 109 F.3d 836, 839 (2d Cir. 1997) (internal quotation omitted). This requires the Court to determine, “whether, as a matter of federal law, there was sufficient evidence for a jury to find that the prosecution proved the substantive elements of the crime as defined by state law,” Id., while “viewing the evidence in the light most favorable to the prosecution,” Jackson v. Virginia, 443 U.S. 307, 319 (1979). “Under this rigorous standard, the habeas court faced with a record of historical facts that supports conflicting inferences must presume, even if it does not affirmatively appear in the record, that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” Willson v. Berbary, 421 F.Supp.2d 589, 597 (W.D.N.Y. 2006) (internal quotations omitted). Where “the state court ha[s] already rejected Petitioner's claim of insufficient evidence on the merits” the Court must apply a “doubly deferential standard of review.” Crawford v. Capra, 20 Civ. 8574 (KPF)(SDA), 2022 WL 1026689, at *6 (S.D.N.Y. Apr. 5, 2022).
Here, the State presented sufficient evidence to sustain Petitioner's firearms-related convictions. To be convicted of Robbery in the First Degree in New York, the State must prove that Petitioner “forcibly [stole] property” while “armed with a deadly weapon.” N.Y. Penal Law § 160.15. Proving Burglary in the First Degree requires the State to prove that Petitioner “knowingly enter[ed] or remain[ed] unlawfully in a dwelling with intent to commit a crime therein,” and was “armed with explosives or a deadly weapon” during the commission of the crime. Id. at § 140.30. To be convicted of Robbery in the Second Degree, the State must prove that Petitioner “forcibly [stole] property” and “display[ed] what appear[ed] to be a” firearm. Id. at § 160.10. Similarly, to be convicted of Burglary in the Second Degree, the State must prove that Petitioner “knowingly enter[ed] or remain[ed] unlawfully in a building with intent to commit a crime therein” and “display[ed] what appear[ed] to be a” firearm. Id. at § 140.25. Assault in the Second Degree requires the State to prove that Petitioner intended to “cause physical injury to another person . . . by means of a deadly weapon.” Id. at § 120.05. Finally, Criminal Possession of a Weapon in the Second Degree requires the State to prove that “with intent to use the [firearm] unlawfully against another, such person . . . possesses a loaded firearm.” Id. at 265.03.
The State presented substantial evidence that Petitioner was guilty of the firearms-related offenses under these statutes, including: (1) testimony from two eyewitnesses that Petitioner was one of the perpetrators and was carrying a gun, (Trial Tr. at 1234-36, 1566-67); (2) testimony from another eyewitness that he heard Petitioner threaten to shoot Mr. Giannone-Seavers, (Id. at 1569-70); (3) testimony from Mr. Giannone-Seavers that one of the perpetrators pistol-whipped and shot him, (Id. at 674-75, 781-86,1571); (4) DNA found on Petitioner's sneaker partially matched the victim's DNA, (Id. at 1679-91); (5) a footprint police recovered from the room where the crime was committed matched Petitioner's sneaker, (Id. at 1516-34); and (6) recordings of phone calls Petitioner made in prison where he states, “[t]hey said they got the firearm, but I don't think they did,” (Id. at 2020). Considered together, this evidence is sufficient to support Petitioner's conviction for the firearms-related offenses.
Petitioner's arguments to the contrary do not change this conclusion. First, the State was not required to present forensic evidence to establish guilt. Rather, New York permits the prosecution to satisfy its burden solely through the use of circumstantial evidence. See, e.g., People v. Reed, 983 N.Y.S.2d 752, 755 (N.Y. 2014) (affirming that a conviction may be based entirely on circumstantial evidence as long as the jury “exclude[d] to a moral certainty every other reasonable hypothesis”). Where “a jury could rationally have excluded innocent explanations of the evidence offered by the defendant and found each element of the crime proved beyond a reasonable doubt,” the court must uphold the conviction since it is not an appellate court's job “to determine whether it would have reached the same conclusion as the jury with respect to a proposed innocent explanation of the [circumstantial] evidence.” Id. Second, while the victim could not state with certainty whether it was Petitioner or his accomplice that shot him, the State presented testimony from another eyewitness that Petitioner threatened to shoot the victim, (Trial Tr. 1569-70), and testimony from the victim that he was, in fact, shot. (Id. at 788). Thus, it was reasonable for the jury to conclude that Petitioner was one of the perpetrators and was carrying a firearm during the commission of the crime. See, e.g., Crawford, 2022 WL 1026689, at *11-14.
Finally, Petitioner's argument that the State “[k]nowingly us[ed] prejudiced testimony” to establish his guilt at trial, (Docket No. 1 at 18), is not a proper basis for the Court to disturb the jury's verdict. “The role of this Court is clear: [f]ederal habeas courts are not free to reassess the facts specific [to] credibility judgments by juries or to weigh conflicting testimony. On collateral review, this Court must presume that the jury resolved any questions of credibility in favor of the prosecution.” Vera v. Hanslmaier, 928 F.Supp. 278, 284 (S.D.N.Y. 1996) (cleaned up); see also Pitter v. Fischer, 234 F.Supp.2d 342, 351 (S.D.N.Y. 2002) (“[t]he jury in this case evidently found the testimony of the prosecution witnesses credible, and this Court cannot disturb that opinion”).
Accordingly, I conclude and respectfully recommend denying Petitioner's sufficiency of the evidence claim.
D. Sixth Amendment Confrontation Clause Claim
Within his sufficiency of the evidence claim, Petitioner argues that the trial court also violated the Confrontation Clause of the Sixth Amendment by depriving him “of the opportunity to confront the people's identifying witness.” (Docket No. 1 at 16) (stating that “his right to cross-examine or impeach were curtailed.”) The State did not respond to this claim, nor did Petitioner raise it during trial or in his Second Department appellate brief. Since Petitioner cannot return to state court to raise it now, the claim must be deemed exhausted and procedurally barred from habeas review. See Reyes, 118 F.3d at 140 (“[A] claim is procedurally defaulted for the purposes of federal habeas review where ‘the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.'”) (quoting Coleman, 501 U.S. at 735).
The only way Petitioner can overcome this procedural bar is to show: (1) cause for the default and prejudice therefrom; or (2) actual innocence such that refusal to consider the defaulted claim will result in a miscarriage of justice. Carvajal, 633 F.3d at 104. He has not done either here as: (i) he does not explain why he failed to raise this claim previously in state court; and (ii) the State presented overwhelming evidence of Petitioner's guilt, independent of Ms. Mische's prior identification. See supra Section III.C. Therefore, the procedural bar applies. Gomez v. Brown, 655 F.Supp.2d 332, 345 (S.D.N.Y. 2009) (holding that the miscarriage of justice exception does not apply where “the record contains overwhelming evidence of Petitioner's participation” in the crimes charged).
However, even if Petitioner had exhausted his Confrontation Clause claim in state court, it would still be denied as substantively meritless. “The Sixth Amendment to the United States Constitution guarantees a criminal defendant ‘the right . . . to be confronted with the witnesses against him.'” DeJesus v. Perez, 813 Fed.Appx. 631, 633 (2d Cir. 2020) (quoting U.S. CONST. amend. VI). “The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross examination.” Davis v. Alaska, 415 U.S. 308, 316-17 (1974) (quoting 5 J. Wigmore, Evidence § 1395 (3d ed. 1940) (emphasis in original)). However, “trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).
Here, the State subpoenaed Ms. Mische-the only witness that identified Petitioner as a perpetrator during the show up-to testify at trial, but she refused to do so. (Trial Tr. at 1943-46, 2177-79). Petitioner claims that the State's failure to present her violated his right to confront witnesses against him. There are two problems with this argument: (1) Ms. Mische told the State that she was refusing to testify because she had been targeted due to her involvement in the case, (Trial Tr. at 1944); and (2) the State did not introduce her prior testimony identifying Petitioner at trial, so there was no testimonial statement used against Petitioner. Where “‘a witness' silence is procured by the defendant himself, whether by chicanery . . . by threats . . . or by actual violence or murder . . . the defendant cannot then assert his confrontation clause rights in order to prevent'” the witness' prior testimony from being introduced against him. Oge v. Greiner, Nos. 02-CV-1199, 03-MISC- 0066 (JBW), 2003 WL 22964389, at *4 (E.D.N.Y. Sept. 17, 2003) (quoting United States v. Mastrangelo, 693 F.2d 269, 272-73 (2d Cir. 1982)). Similarly, where a witness' “statements were not introduced into evidence . . . [t]here is consequently no Confrontation Clause problem.” Dickerson v. Conway, No. 08 Civ. 8024 (PAE)(FM), 2013 WL 541508, at *24 (S.D.N.Y. Feb. 14, 2013), report and recommendation adopted, 2013 WL 3199094 (S.D.N.Y. June 25, 2013).
Accordingly, I conclude and respectfully recommend denying Petitioner's Sixth Amendment Confrontation Clause claim.
E. Ineffective Assistance of Counsel
Petitioner's final argument, which was also within his sufficiency of the evidence claim, is “that defense attorney representation and/or performance would constitute ineffective assistance because counsel failed to disclose the people's witnesses' culpability as making the case for the prosecution.” (Docket No. 1 at 17). The State did not respond to this claim, nor did Petitioner raise it at trial or in his direct appeal. Therefore, while technically unexhausted, the Court must deem it exhausted and procedurally barred from review since Petitioner cannot return to state court to raise it now. See supra Section III.D.
However, assuming, arguendo, that Petitioner had exhausted the claim previously, it should still be denied. “Ineffective assistance claims are evaluated under the framework provided in Strickland v. Washington, 466 U.S. 668 (1984).” Reynart v. Griffin, 11-CV-0748 (PKC), 2017 WL 6626247, at *9 (E.D.N.Y. Oct. 9, 2017). There are two elements of an ineffective assistance of counsel claim under Strickland. First, a successful ineffective assistance claim requires a showing that “counsel's representation fell below an objective standard of reasonableness,” and second, it requires that “there [be] a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” See Strickland, 466 U.S. at 687-96. With respect to the first element, a petitioner must show that “counsel's performance was deficient,” considering “the reasonableness of counsel's actions under all circumstances, [and] keeping in mind that a ‘fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight.'” Swanton v. Graham, No. 07-CV-4113 (JFB), 2009 WL 1406969, at *10 (E.D.N.Y. May 19, 2009) (quoting Greiner v. Wells, 417 F.3d 305, 319 (2d Cir. 2005)). In evaluating the first prong, the Court must “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” See Strickland, 466 U.S. at 689.
The second element “focuses on prejudice to the defendant.” Swanton, 2009 WL 1406969, at *10. Strickland's “reasonable probability” standard for this element entails errors serious enough to “undermine confidence in the outcome.” 466 U.S. at 694. Since “there are countless ways to provide effective assistance in any given case and . . . even the best criminal defense attorneys would not defend a particular client in the same way[,] . . . reasonable, but unsuccessful strategic choices cannot provide the basis for ineffective assistance of counsel.” Speringo v. McLaughlin, 202 F.Supp.2d 178, 190-91 (S.D.N.Y. 2002). “A court need not decide both prongs of the Strickland test for ineffective assistance of counsel if a party has made an insufficient showing on one.” McCollough v. Bennett, No. 02-cv-5230, 2010 WL 114253, at *8 (E.D.N.Y. Jan. 12, 2010).
While it is not clear what Petitioner is referring to when he claims that defense counsel's representation was ineffective for failing to “disclose the people's witnesses' culpability as making the case for the prosecution,” (Docket No. 1 at 17), it appears to be a reference to the testimony of two witnesses who entered into cooperation agreements with the State before trial-Ms. Greene and Ms. Gunther. However, defense counsel extensively cross-examined both witnesses at trial about their cooperation, thus, defense counsel's representation was not objectively unreasonable. See, e.g., Rosario-Dominguez v. United States, 353 F.Supp.2d 500, 515 (S.D.N.Y. 2005) (“The Second Circuit has repeatedly held that decisions whether to engage in cross-examination, and if so what extent and in what manner, are strategic in nature.”) (citations and internal quotations omitted) (cleaned up) (collecting cases).
Furthermore, even if Petitioner could show that defense counsel was ineffective, he has failed to show that he was prejudiced as a result. It is well-established that “[t]he prejudice inquiry is [] ineluctably tied to the strength of the prosecution's evidence.” Garner v. Lee, 908 F.3d 845, 862 (2d Cir. 2018). “Even serious errors by counsel do not warrant granting habeas relief where the conviction is supported by overwhelming evidence of guilt.” Lindstadt v. Keane, 239 F.3d 191, 204 (2d Cir. 2001). As discussed, the State presented substantial evidence of Petitioner's guilt, including: (1) video from Petitioner's cell phone, which was recovered near the crime scene, showing that he was wearing clothing that matched descriptions given by eyewitnesses in the immediate aftermath of the crime, (Trial Tr. at 1008-12, 1454-65); (2) DNA found on Petitioner's sneaker, which partially matched the victim's DNA, (Id. at 1679-91); (3) a footprint recovered from the crime scene, which matched Petitioner's sneaker, (Id. at 1516-34); and (4) recordings of phone calls Petitioner made in prison where he referred to tampering with evidence recovered during the police's investigation, (Id. at 1765-73, 2020-23).
Accordingly, I respectfully recommend denying Petitioner's ineffective assistance of counsel claim.
IV. CONCLUSION
For the foregoing reasons, I conclude and respectfully recommend that the Petition be denied. Further, 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, I recommend that no certificate of appealability be issued. See 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
The Clerk of Court is requested to mail a copy of this Report and Recommendation to the pro se Petitioner.
V. NOTICE
Pursuant to 28 U.S.C. § 636(b)(1)(C) 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 the receipt 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 seventeen (17) days from receipt of the same to file and serve written objections. See Fed.R.Civ.P. 6(d). Objections and responses to objections, if any, shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Vincent L. Briccetti at the United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Requests for extensions of time to file objections must be made to the Honorable Vincent L. Briccetti and not to the undersigned. Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be rendered. See 28 U.S.C. § 636(b)(1); Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008).