Opinion
23-CV-1495 (AS) (RWL)
06-28-2024
ARTURO MEDINA, Petitioner, v. PHIL MELECIO, Superintendent, Respondent.
REPORT AND RECOMMENDATION TO HON. ARUN SUBRAMANIAN: PETITION FOR HABEAS CORPUS
ROBERT W. LEHRBURGER, UNITED STATES MAGISTRATE JUDGE.
Petitioner Arturo Medina (“Medina” or “Petitioner”), proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging his conviction by a jury of two counts of first-degree robbery and four counts of second-degree robbery in the Supreme Court of the State of New York, New York County. Medina argues that his petition should be granted because (1) new evidence demonstrates that he is actually innocent; (2) his trial counsel was ineffective, violating his Sixth Amendment right; (3) the state court abused its discretion by summarily denying his second CPL § 440.10 motion to vacate his conviction; (4) the trial court acted as a second prosecutor when it questioned a witness during trial; and (5) the prosecutor's summation at trial violated his right to a fair trial. For the reasons that follow, I recommend that the petition be DENIED and the petition dismissed.
BACKGROUND
A. Crimes And Arrest
On September 2, 2013, at around 10:00 p.m., Miguel Veras (“Veras”) and Carlos Ventura (“Ventura”) were operating an illegal poker parlor called “The Executive” out of a basement in a building in Manhattan (the “Building”). (Dkt. 22-3, Tr. 11, 12, 18.) Ismarlyn Almanzar worked as a floor manager for Veras and Ventura, taking care of waitressing, accounting, and exchanging transactions. (Id. at 13-14.) Veras and Ventura collected five percent of the winnings out of any game they hosted at the Building. (Id. 61.) That night Anderson “Flow” Almonte, Martin “Cito” Padilla, Mike “Tattoo”, and Luis “Wii” Rodriguez (“Rodriguez”) were in the Building for a game that Veras had scheduled. (Id. 18; Dkt. 22-4, Tr. 252-53.) Almanzar was working the floor as the manager. (Dkt. 22-3, Tr. 13.) Later in the evening, Ventura entered the Building with Medina. (Id. 19.) Ventura told Veras that he wanted to talk with Veras in his office. Medina joined Ventura and Veras for this conversation, during which time the office door was closed. (Id. 19-23.) Once inside the office, Ventura accused Veras of cheating during the poker games, using special contact lenses that allowed Veras and other players to see through the cards played at the table, and asked for his money back. (Id. 23; Dkt. 22-4, Tr. 259.) Ventura then opened the door and left the office to ask Almanzar for the cards that Veras was using to cheat. (Dkt. 22-4, Tr. 185.)
“Tr.” refers to the transcript of the trial at which Medina was convicted, which can be found at Dkt. 22, 22-1, 22-2, 22-3, 22-4, and 22-5. Page numbers listed in the citation refer to the pagination on the transcript.
During the argument, Veras's phone rang. (Dkt. 22-3, Tr. 24.) In response, Medina pulled out a gun, pointed it at Veras, and told him to hand him the phone. (Id. 24.) Almanzar came over to the office and told Medina to take it easy. (Dkt. 22-4, Tr. 187.) Medina told Almanzar to stay out of it and took Veras's phone. (Id. 188.) Ventura then began looking through the office to locate money and the marked cards used in the cheating scheme. (Dkt. 22-3, Tr. 24-25.) Specifically, Ventura was looking for a cut of the winnings that had been collected, in addition to the money collected for rent. (Dkt. 22-4, Tr. 185.) Medina held Veras at gun point while Ventura searched the office. (Dkt. 22-3, Tr. 26.) After Ventura could not find the money in the office, Ventura asked Almanzar for the money, and Medina told Almanzar to look for it. (Dkt. 22-4, Tr. 186, 189.) Veras instructed Almanzar to give Ventura and Medina the money. (Dkt. 22-3, Tr. 26-7.) In response, Almanzar went into the other room, took an envelope from her purse containing around $3,000, and handed it to Medina, who put the money in his pocket. (Dkt. 22-4, Tr. 191, 197.) Ventura then instructed Veras to empty out his pockets, producing cash, a wallet, and ChapStick. (Dkt. 22-3, Tr. 26-28.)
After Medina took the $3,000 from Almanzar, Veras and Ventura began arguing, and Medina hit Veras with the base of his gun on the left side of Veras's eyebrow, knocking Veras to the ground. (Id. 29-31.) Ventura yelled at Medina to stop, and Medina proceeded to point the gun at Veras. (Id. 31.) Medina then told Veras not to move or he would shoot him. (Id. 31.) Medina instructed Veras to sit down, and then left the office. (Id. 31.) Medina and Ventura subsequently left the Building. (Id. 32.) Almonte and Almanzar did not see Medina hit Veras, but only saw Veras bleeding from his face after Veras left the office. (Dkt. 22-4, Tr. 261.) Later that night, Veras went to the hospital with Almanzar. (Id. 194; Dkt. 22-3, Tr. 34.) After Veras left the hospital, in the early morning of September 3, 2013, he went to the police station and reported his injuries to Detective Vasquez. (Dkt. 22-3, Tr. 37-39, 129.)
On December 8, 2013, Detective Hernandez of the New York City Police Department began investigating the matter. (Id. 129-130.) On January 20, 2014, Detective Hernandez apprehended Ventura. (Id. 132-33.) Medina was arrested on July 25, 2014. (Id. 139.)
B. Trial Proceedings
1. Medina's Trial
Medina was charged with: (1) four counts of robbery in the first degree; (2) four counts of robbery in the second degree; and (3) one count of grand larceny in the third degree. (Petition (“Pet.”), Dkt. 1 at ECF 37-43.) On July 25, 2016, Medina was tried separately from Veras, before a jury, with presiding Justice Anthony Ferrara (the “Trial Judge”). Medina called only Almonte as a witness. Almonte testified that the dealer at the table, Rodriguez, had accused Veras of cheating during the game the night of September 3, 2012. (Dkt. 22-4, Tr. 258-59.) Once Rodriguez made the accusation, everyone at the table became aggressive towards Veras. (Id. 260.) Almonte testified that at one point, “everyone went at [Veras],” and that he heard a “boom” and Veras was “bleeding from somewhere in his head or eye.” (Id. 259.) According to Almonte, the fight occurred behind him, and not in the office. (Id. 264.) On cross examination, Almonte testified that he did not see who hit Veras, (id. 282), he did not see a gun (id. 296), and he believed Veras sustained his injuries because he was punched (id. 297).
After Almonte testified, the Trial Judge received written questions from the jury. (Id. 299.) Both the prosecution and defense counsel were permitted to review the questions and object. (Id.) The jury asked Almonte: “You said it was confirmed that [Veras] was cheating. How? Please Explain.” (Id. 301.) Neither party objected to this line of questioning. (Id.) The Trial Judge then stated: “There [are] three [questions]. We'll ask the three then I get to follow up based on answers give to these questions.” (Id.) After the Trial Judge asked questions about the cheating, Almonte revealed that he believed people were using contact lenses to see what the card was on the table. (Id. at 302-3.) Almonte further testified that he had the contact lenses on at one point, but that someone took them. (Id.) In response, the Trial Judge said “[o]kay. So now let's get into that. How did someone take them?” (Id. at 303.) Medina's trial counsel objected and argued “that wasn't the question.” (Id.) The Trial Judge responded “[w]ell, it's a question from the jury. How? Please explain.” (Id.) Medina's trial counsel responded “[t]hat's fine,” withdrawing his objection. (Id.) Medina's trial counsel did not make any other objections throughout the Trial Judge's line of questioning of Almonte. (Id. 303-7.)
Neither Ventura nor the other poker-game participants testified at Medina's trial. The jury rendered its verdict on August 1, 2016. The jury found Medina guilty of two counts of first-degree robbery and four counts of second-degree robbery, but acquitted Medina of two counts of first-degree robbery while displaying a firearm and third-degree larceny. (Dkt. 22-5, Tr. 461-64.) On November 18, 2016, Medina received a sentence of two concurrent ten-year prison terms and five years of post-release supervision. (Id. at ECF 157-65.)
2. Ventura's Trial
On January 18, 2017, Ventura proceeded to a jury trial (the “Ventura Trial”), where he presented Almonte and Padilla as defense witnesses. Ventura also testified in his own defense. At the conclusion of trial, Ventura was acquitted of all the robbery counts, but convicted of fourth-degree grand larceny and sentenced to a conditional discharge. (SR. 86.)
“SR,” short for Supplemental Record, appears at Dkt. 23.
C. Medina's First CPL § 440.10 Post Trial Conviction Motion
Pursuant to New York Criminal Procedure Law (“CPL”) § 440, Medina filed a motion to vacate the trial court's judgment on February 26, 2018, based on a freestanding claim of actual innocence, newly discovered evidence in the form of three affidavits, and ineffective assistance of counsel (“First Motion to Vacate”). (SR. 1-30.) The three affidavits came from Almonte (“Almonte Aff.”), Ventura (“Venture Aff.”), and Padilla (“Padilla Aff.”). (SR. 5.)
In his First Motion to Vacate, Medina argued ineffective assistance of counsel on the grounds that counsel failed to (1) call Padilla to testify that Medina did not rob any one or possess a weapon on September 2, 2013; and (2) object when the Court “cross examined” Medina's witness and attacked the witness's credibility. (SR. 1-2.)
The Almonte Affidavit appears at SR. 583-84; the Ventura Affidavit appears at SR. 458-60; and the Padilla Affidavit appears at SR. 523-24.
Almonte states in his affidavit that he “did not see what happened,” but that there was a physical altercation “behind him,” after which Veras was bleeding from his face. (Almonte Aff. ¶ 10.) Almonte further states he “never saw [Medina] with a gun and never saw [Medina] take money from anyone.” (Almonte Aff. ¶ 11.) Ventura, in his affidavit, states that “[Medina] hit [Veras] in the office,” that at “no time did [Medina] have a gun,” and that “[Medina] did not take money from anyone that night.” (Ventura Aff. ¶¶ 10, 18-19.) Padilla states that “[Medina] punched Miguel in the face with his fist” during the argument about the cheating, and that “he never saw [Medina] with a gun and never saw [Medina] take money from anyone.” (Padilla Aff. ¶ 9-10.)
Ventura states that he did not come forward previously “because he was charged with the same crimes as [Medina].” (Ventura Aff. ¶ 21.)
On September 21, 2018, the Trial Judge denied Medina's First Motion to Vacate on all grounds. (SR. 55-60.) Regarding actual innocence, the Trial Judge noted that the “version of events, denying that any theft occurred or that a gun was used ... was ... already placed before [Medina's] jury, which rejected it.” (Id. 55.) Thus, the Trial Judge held that “considered alone or together, [the new] affidavits do not provide clear and convincing evidence that [Medina] is innocent.” (Id. 56.) The Trial Judge also found that none of the purportedly new evidence “ha[d] been discovered since the trial or could not have been discovered before the trial by the exercise of due diligence.” (Id. 57.) Finally, concerning the claim of ineffective assistance of counsel, the Trial Judge noted that “[Medina failed to establish the absence of strategic or other legitimate explanation for counsel's decision not to call Padilla as a witness.” (Id. 59.)
On November 30, 2018, the Appellate Division, First Department found “there is no question of law or fact presented which ought to be reviewed” and denied leave to appeal. (Id. 765.)
D. Medina's Second CPL § 440.10 Post Trial Conviction Motion
Medina submitted a second motion to vacate on November 12, 2019, based on a freestanding claim of actual innocence, newly discovered evidence in the form of four affidavits, and ineffective assistance of counsel (“Second Motion to Vacate”). (SR. 766-1446.) The affidavits submitted by Medina included the same affidavits from Almonte and Padilla; an updated affidavit from Ventura (“Updated Ventura Aff.”), and a new affidavit from Rodriguez (“Rodriguez Aff.”). In his updated affidavit, Ventura states that, in his first affidavit, “he misstated that he was acquitted of all charges” because he “was under the impression that [he] was not convicted of a crime because [he] didn't have to serve jailtime.” (Ventura Updated Aff. ¶ 3.) For his part, Rodriguez states that he was at the Executive on September 2, 2013, and that “Medina punched Veras in the face” but “[Medina] never took any money or property from anyone at the game, including [Veras] and [Alamazar].” (Rodriguez Aff. ¶¶ 12-13.)
In his Second Motion to Vacate, Medina argued ineffective assistance of counsel on the grounds that counsel failed to (1) call Martin Padilla to testify that Medina did not rob anyone or possess a weapon on September 2, 2013; (2) investigate Almonte's factual testimony; and (3) call Luis Rodriguez as a witness. (SR. 766-67.)
Ventura's Updated Affidavit appears at SR. 1172-74; Rodriguez's Affidavit appears at SR. 1169-70; Padilla and Ventura's unchanged affidavits appear at SR. 1237-38 and 1296-97.
The Trial Judge summarily denied Medina's Second Motion To Vacate, citing to CPL § 440.10(3)(b). (Id. 1449.) The Trial Judge also advised that “[the trial court] will not entertain any further motions on [Medina's] previously raised post-judgment claims, all of which have been raised, heard, and determined in their entirety.” (Id.) On May 19, 2020, the Appellate Division, First Department found “that in the proceedings herein questions of law or fact are involved which ought to be reviewed by the Appellate Division,” and granted leave to appeal, allowing Medina to consolidate his direct appeal with appeal of both motions to vacate. (Id. 2150.)
E. Direct Appeal
On direct appeal, Medina raised six grounds to reverse his conviction or order a new trial: (1) the trial court abused its discretion when it sua sponte denied Medina's Second Motion to Vacate without an evidentiary hearing; (2) actual innocence; (3) newly discovered evidence; (4) ineffective assistance of counsel when counsel failed to (i) properly investigate potential testimony from Padilla; (ii) call Padilla to corroborate an impeached witness's credibility; and (iii) investigate and call Rodriguez as a witness; (5) the trial court acted as a second prosecutor when it questioned Medina's witness; and (6) the prosecutor committed misconduct when she vouched for the credibility of a witness and misrepresented evidence. (SR. 2234-300.)
The Appellate Division unanimously affirmed the trial court, rejecting each ground. People v. Medina, 198 A.D.3d 442 (1st Dep't 2021). First, the Appellate Division determined that the trial court properly exercised its discretion in summarily denying Medina's Second Motion to Vacate because “[the motion] raised grounds that [Medina] either had raised, or was in an adequate position to have raised, in his prior such motion.” Id. at 442-43. Second, the Appellate Division noted that while [Medina] “describe[d] his claims in constitutional terms, they [were] nevertheless procedurally defective as noted, and are unreviewable.” Id. at 443. Third, the Appellate Division held that the prosecutor's summation was “properly responsive to the defense summation, which extensively attacked those witnesses' credibility.” Id. Finally, the Appellate Division found the remaining claims concerning the prosecutor's closing statement and the court's questioning of the witnesses as “unpreserved” and declined to review those claims in the interest of justice. Id.
Medina applied for leave to appeal to the New Yor Court of Appeals, which was denied on December 31, 2021. People v. Medina, 37 N.Y.3d 1147 (2021).
F. The Instant Petition
On February 17, 2023, Medina filed his Petition for a writ of habeas corpus, arguing that relief is warranted because (1) he is actually innocent; (2) of newly discovered evidence; (3) his trial counsel was ineffective; (4) the state court abused its discretion by summarily denying his second motion to vacate the conviction; (5) the trial court acted as a second prosecutor when it questioned a witness during trial; and (6) the prosecutor's summation violated his right to a fair trial. (Pet. at ECF 5-13.) The Government answered the Petition, in opposition, on June 7, 2023. (Dkt. 20.) Medina filed a reply on September 20, 2023, upon which briefing was complete. (Dkt. 27.) The case has been referred to me for report and recommendation. (Dkt. 6.)
STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) limits a federal court's ability to provide habeas corpus relief. 28 U.S.C. § 2254(a). Under AEDPA, a state prisoner's application for a writ of habeas corpus shall not be granted unless the state court's decision:
(1) 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) 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). In making that determination, a federal court must afford deference to the state court:
Deciding whether a state court's decision ‘involved' an unreasonable application of federal law or ‘was based on' an unreasonable determination of fact requires the federal habeas court to ‘train its attention on the particular reasons -
both legal and factual - why state courts rejected a state prisoner's federal claims' ... and to give appropriate deference to that decision.Wilson v. Sellers, 584 U.S. 122, 125 (2018) (internal citations omitted) (quoting Hittson v. Chatman, 576 U.S. 1028, 1028 (2015) (Ginsburg, J., concurring in denial of certiorari)).
A state court decision is “contrary to” clearly established precedent when the state court applies a rule that is “diametrically different, opposite in character, or mutually opposed” to the governing law set forth in Supreme Court cases. Williams v. Taylor, 529 U.S. 362, 405 (2000) (internal quotations marks omitted) (quoting Contrary, Webster's Third New International Dictionary (1976)). Alternatively, a “court may grant relief under the ‘unreasonable application' clause if the state court correctly identifies the governing legal principle . but unreasonably applies it to the facts of the particular case.” Bell v. Cone, 535 U.S. 685, 694 (2002) (citing Williams, 529 U.S. at 407-08). This inquiry focuses not on whether the state court's application of clearly established federal law was merely incorrect or erroneous but on whether it was objectively unreasonable. Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 409-10). “Under § 2254(d), a habeas court must determine what arguments or theories supported, or . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Harrington v. Richter, 562 U.S. 86, 102 (2011).
AEDPA forecloses “‘using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.'” Parker v. Matthews, 567 U.S. 37, 38 (2012) (per curiam) (quoting Renico v. Lett, 559 U.S. 766, 779 (2010)). Accordingly, “[a] state court's findings are not unreasonable under § 2254(d)(2) simply because a federal habeas court reviewing the claim in the first instance would have reached a different conclusion.” Pine v. Superintendent, Green Haven Correctional Facility, 103 F.Supp.3d 263, 275 (N.D.N.Y. 2015) (citing Wood v. Allen, 558 U.S. 290, 301 (2010)). “The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable - a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007).
Even if a trial court error meets the standards required by AEDPA, habeas relief is not warranted unless the violation “‘had substantial and injurious effect or influence in determining the jury's verdict.'” Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)); see also Fry v. Pliler, 551 U.S. 112, 121 (2007) (confirming continued applicability of Brecht under AEDPA); Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994) (“Habeas relief is not appropriate when there is merely a ‘reasonable possibility' that trial error contributed to the verdict.”) (quoting Brecht, 507 U.S. at 637)); Butler v. Graham, No. 07-CV-6586, 2008 WL 2388740, *6 (S.D.N.Y. June 12, 2008) (recognizing and applying the “substantial and injurious effect” standard and citing Brecht and Fry).
The petitioner “bears the burden of proving by a preponderance of the evidence that his constitutional rights have been violated.” Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997). The petitioner also bears “the burden of rebutting the presumption of correctness” of state court fact determinations “by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
DISCUSSION
I. Medina's Actual Innocence Claim
Medina argues that he is actually innocent based on newly discovered evidence. (Pet. at ECF 19, 31.) There are two kinds of “actual innocence” claims. One is a gateway claim. A gateway claim of innocence is one which permits the petitioner to assert a claim of actual innocence even if he would be procedurally barred from doing so. See Jimenez v. Stanford, 96 F.4th 164, 184 (2d Cir. 2024). “To reach the merits of [a gateway claim], a habeas petitioner must make a ‘sufficiently credible and compelling' claim of innocence.” Id. (citing Hyman v. Brown, 927 F.3d 639, 665 (2d Cir. 2019)). In contrast, a freestanding claim of innocence “assert[s] in simplest possible terms, that [the petitioner] did not do what he was convicted of doing.” Benjamin E. Rosenberg, Actual Innocence in New York: The Curious Case of People v. Hamilton, 83 Fordham L. Rev. Res Gestae 1, 3 (2014); see also Jimenez, 96 F.4th at 183 (a claim of freestanding innocence grants a petitioner a “freestanding right to habeas corpus relief based on a claim of wrongful conviction after a fair trial free of error”). Here, both claims fail on the merits.
A. No Credible And Compelling New Evidence
Medina cannot meet the demanding requirements to proceed with a gateway actual innocence claim. For a gateway claim to be reviewed the petitioner must first make a “sufficiently credible and compelling” claim of innocence. See Hyman, 927 F.3d at 657; see also Rivas v. Fischer, 687 F.3d 514, 541 (2d Cir. 2012). For a claim to be credible, “it must be supported by ‘new reliable evidence ... that was not presented at trial.'” Id. The claim is compelling if the petitioner demonstrates that “more likely than not, in light of the new evidence, no reasonable juror would find him guilty beyond a reasonable doubt.” Id. (quoting House v. Bell, 547 U.S. 518, 538 (2006)). Second, if after reviewing all the evidence, the petitioner's evidence is so compelling that the court “cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error,” the court may adjudicate the merits of an otherwise procedurally barred claim. Schlup v. Delo, 513 U.S. 298, 316 (1995).
Medina asserts that he is actually innocent based on the newly discovered evidence he presented to the trial court in his First and Second Motion to Vacate. (Pet. at ECF 31.) To start, Medina argues he is innocent because Ventura, who was accused of committing the same crimes as Medina, was acquitted of all charges but for grand larceny in the fourth degree. (Pet. at ECF 19.) But Ventura's acquittal is irrelevant. Ventura's jury found Ventura guilty of grand larceny, not robbery in the first or second degree, the charges on which Medina was found guilty. At Ventura's trial, Veras and Almanzar each testified that Medina, not Ventura, held the gun during the robbery. (SR. 1044, 1123.) The evidence thus underscored Medina's more significant involvement, while permitting the jury to acquit Ventura of the second-degree robbery charges on which Medina was found guilty.
Medina further argues he is innocent based on the affidavit testimony of Almonte, Ventura, Padilla, and Rodriguez about the altercation between Medina and Veras. (Pet. at ECF 19.) Medina's argument is flawed in three respects. First, Almonte's affidavit cannot be considered “new evidence” because he testified to the same facts at trial that were in his affidavit. (Compare Almonte Aff. ¶ 10-11 with Dkt. 22-4, Tr. 258-59, 264, 296-97.) Second, the other three affidavits fail to meet the exacting credible-and-compelling standard because they too do not offer any new reliable evidence. Each of the three affidavits presents a different version of the relevant events. For example, Ventura states Medina punched Veras in the face inside the office. (Ventura Aff. ¶ 9,10.) In contrast, Rodriguez states that Medina punched Veras outside the office. (Rodriguez Aff. ¶ 11-12). Padilla, on the other hand, does not disclose where the fight occurred, but only that Medina punched Veras in the face with his fist. (Padilla Aff. ¶ 9.) These inconsistent accounts speak volumes to the insufficient credibility of the new evidence presented by Medina. Moreover, the jury heard the same competing accounts at trial. The jury heard from Veras that Medina hit Veras in the head with a gun inside the office, in contrast to Almonte's account, which stated that the fight occurred behind where he was sitting at the poker table, and that Veras was punched in the face with a fist, not a gun. (Dkt. 22-3, Tr. 29-31; Dkt. 22-4, Tr. 259-61.) After hearing those two versions of events, the jury concluded that Medina was guilty. In short, the affidavits offered by Medina are not new evidence and neither credible nor compelling. Certainly, the Court cannot conclude a reasonable juror would not find Medina guilty beyond a reasonable doubt based on the totality of evidence, including the purportedly “new” affidavit evidence. Nor can the Court conclude the new evidence is so compelling that the Court does not have confidence in the outcome of the trial.
Medina also argues that he is innocent because Almanzar “recanted” her testimony that Medina held a gun during the altercation prior to the trial. (Pet. at ECF 19.) Medina's characterization is incorrect; Almanzar did not recant. Before the grand jury, Alamnzar testified that she saw Medina holding a gun. In a subsequent interview with the prosecutor, Almanzar stated that Medina had an object in his hand but was not sure what it was. (Dkt. 22, Tr. 4-6.) But half-an-hour later, during the same interview, Almanzar indicated that she did in fact see that the object was a gun and had not been truthful earlier in the interview because she did not want to testify. (Id.)
Moreover, the evidence is neither new nor compelling. The claim is not new because Almanzar was examined and cross-examined at trial on this very issue. (Dkt. 22-4, Tr. 199-200; 202-10.) The evidence is not compelling because Medina cannot demonstrate that in light of this evidence “no reasonable juror would find him guilty beyond a reasonable doubt.” Hyman, 927 F.3d at 657. The opposite is true - after hearing the same evidence presented during trial, the jury nonetheless determined Medina had used a dangerous instrument during the robbery.
Accordingly, Medina's gateway claim of actual innocence based on newly discovered evidence fails and should be denied.
B. Freestanding Innocent Claim Not Reviewable
Whether habeas relief can be granted to a petitioner based on a freestanding claim of actual innocence is an open question of federal law. See McQuiggin v. Perkins, 569 U.S. 383, 392 (2013) (“[The Supreme Court] [has] not resolved whether a prisoner may be entitled to habeas relief based on a freestanding claim of actual innocence”) (citing Herrera v. Collins, 506 U.S. 390, 404-5 (1993). Neither the Supreme Court, the Second Circuit, nor any other circuit has “recognized the existence of such a right or granted habeas relief based on such a claim.” Jimenez, 96 F.4th at 183; see also Michael L. Zuckerman, When A Prison Sentence Becomes Unconstitutional, 111 GEO. L.J. 281, 312-13 (2022) (explaining that “it is still doctrinally uncertain whether the Federal Due Process Clause would prohibit the execution of a factually innocent person”). To the extent a freestanding innocence claim even is cognizable, “the threshold showing for such an assumed right would necessarily be extraordinarily high” and would need to be “truly persuasive.” Herrera, 506 U.S. at 417. This Circuit has held that “the degree of proof required to make out a freestanding claim of innocence (assuming that such a claim is cognizable on habeas corpus even in a noncapital case) exceeds the proof required to establish gateway innocence.” Jimenez, 96 F.4th at 188. Accordingly, for the same reasons Medina cannot establish the demanding requirements of a gateway claim, the evidence Medina has presented is not sufficient to satisfy the heavier burden of proving a freestanding innocence claim. Medina's freestanding innocence claim should also be denied.
II. Medina's Ineffective Assistance Of Counsel Claims
Medina argues that his Sixth Amendment right to effective assistance of counsel was violated when his counsel failed to (1) call to the stand Padilla who was willing to testify; (2) properly “vet” Almonte's “position” as a witness; and (3) investigate and locate Rodriguez, who was at the center of the dispute. (Pet. at ECF 30.) A defendant seeking to establish an ineffective assistance of counsel claim must demonstrate that (1) the counsel's performance fell below “an objective standard of reasonableness,” and (2) the defendant suffered prejudice, in the sense that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694 (1984); see also Brown v. United States, 167 F.3d 109, 109-10 (2d Cir. 1999). “Reasonable probability” means that the errors were of a magnitude such that they “‘undermine[ ] confidence in the outcome.'” Pavel v. Hollins, 261 F.3d 210, 216 (2d Cir. 2001) (quoting Strickland, 466 U.S. at 694). Medina cannot establish either prong.
A. Not Calling Padilla
Medina's trial counsel's failure to call Padilla as a witness does not constitute ineffective assistance of counsel. Generally, the “decision whether to call any witnesses on behalf of the defendant, and if so which witnesses to call, is a tactical decision of the sort engaged in by defense attorneys in almost every trial.” United States v. Smith, 198 F.3d 377, 386 (2d Cir. 1999) (quoting United States v. Eisen, 974 F.2d 246, 265 (2d Cir. 1992)); see also United States v. Nolan, 956 F.3d 71, 82 (2d Cir. 2020) (Strickland “does not require defense counsel to call any particular witness”); United States v. Best, 219 F.3d 192, 201 (2d Cir. 2000) (“Nor do we see anything unreasonable in counsel's decision not to call the potential witnesses.”); United States v. Schmidt, 105 F.3d 82, 90 (2d Cir. 1997) (counsel's decision as to “whether to call specific witnesses - even ones that might offer exculpatory evidence - is ordinarily not viewed as a lapse in professional representation”). Reviewing courts must “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound legal strategy.'” United States v. Gaskin, 364 F.3d 438, 468 (2d Cir. 2004) (quoting Strickland, 466 U.S. at 689)); see also Henry v. Poole, 409 F.3d 48, 63 (2d Cir. 2005) (there is a “strong presumption” of reasonable representation).
Medina's claim does not rebut this strong presumption. First, Medina's trial counsel's decision not to call Padilla to stand was not an unreasonable trial tactic. At the Ventura Trial, Padilla provided testimony that, if elicited at Medina's trial, would have been inconsistent with the evidence from Almonte regarding the altercation between Almonte and Veras. (Compare SR. 1310-11 (Padilla testifying at Ventura's trial that the fight occurred inside the office) with Dkt. 22-4, Tr. 264 (Almonte testifying that Medina was standing “behind” him at the poker table when a fight broke out).) Such contradictory evidence, which could have undermined the credibility of Medina's defense, would well warrant a tactical decision not to call Padilla; it also undermines Medina's assertion that Padilla “would have corroborated” Almonte's testimony. (Pet. Reply at ECF 12.) As a result, Medina has not demonstrated that but for his trial counsel's conduct, the result of the trial would have been different. Thus, Medina's claim for ineffective assistance of counsel on account of his trial counsel not calling Padilla to the stand should be denied.
“Pet. Reply” refers to Petitioner's Traverse filed Sept. 20, 2023 at Dkt. 27.
B. Vetting Almonte
Medina argues trial counsel was ineffective in vetting Almonte as a witness because he only met with Almonte for half an hour before trial. (Pet. at ECF 30.) Medina's claim is meritless. Generally, counsel is “not required to spend any specific number of hours preparing for trial, whether those preparations relate to investigation, witness interviews or other preparatory matters.” Williams v. Washington, 59 F.3d 673, 680 (2d. Cir. 1995) (citations omitted). Counsel does, however, have a “duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691. Medina does not explain how trial counsel's preparation of Almonte prior to trial was unreasonable or even harmful to Medina's case. In any event, nothing in the record indicates that trial counsel did not devote sufficient time in preparing Almonte or that any additional or other preparation would have affected the jury's verdict. To the contrary, the record shows that Almonte presented an alternative set of facts to the jury, where (1) fighting broke out among the players after Rodriquez had accused Veras of cheating during the poker games, and (2) the fight occurred behind the poker table rather than in the office. (Dkt. 22-4, Tr. 25859.) In other words, Medina incurred no prejudice because the jury was presented with the same version of events Medina now claims is new evidence that demonstrates his innocence. Medina's claim relating to trial counsel's vetting of Almonte should be denied.
Medina separately takes issue with trial counsel's questioning of Almonte, presumably because the jury posed questions to the Trial Judge after questioning by the attorney had concluded. (Pet. at ECF 30.) Medina, however, does not explain how trial counsel's questioning prejudiced the outcome of the trial or fell below the objective standard of reasonableness required by Strickland. Generally, “[w]hen counsel focuses on some issues to the exclusion of others, there is a strong presumption that he did so for tactical reasons rather than through sheer neglect.” Yarborough v. Gentry, 540 U.S. 1, 8 (2003). Thus, this claim too lacks merit.
C. Omitting Rodriguez
Medina claims that his trial counsel was ineffective because he “fail[ed] to investigate[] and locate” Rodriguez. (Pet. at ECF 30.) Respondent argues that Medina's claim concerning Rodriguez is barred on adequate and independent state law grounds because the Appellate Division held that the claim was properly denied based on Medina's failure to assert it in his First Motion to Vacate. (Resp. Br. at 46; see also Medina, 198 A.D.3d at 442 (citing to CPL § 440.10(3)(B), (C).) The Court first discusses the Respondent's argument that Medina's claim is barred, and then explains why Medina's claim fails on the merits.
“Resp. Br.” refers to Memorandum Of Law In Opposition To Petition For A Writ Of Habeas Corpus filed June 7, 2023 at Dkt. 21.
1. Procedural Bar
Medina raised the Rodriguez claim for the first time in his Second Motion to Vacate. (SR. 771.) The Trial Judge summarily denied the Second Motion to Vacate on procedural grounds, holding that Medina “move[d] to vacate the judgment on the same grounds.” (Id. 1449.) The Appellate Division affirmed the trial court's ruling, finding that the court “providently exercised its discretion in summarily denying [Medina's] [Second Motion to Vacate] because it raised grounds that defendant either had raised, or was in a position to have raised, in his prior such motion.” Medina, 198 A.D.3d at 442 (citing to CPL 440.10(B), (C)). Respondent argues that this sequence of events procedurally bars Medina's claim for ineffective counsel based on not having spoken to Rodriguez. Respondent is correct.
“[A] procedural default occurs if the state court's rejection of a federal claim rests on a state law ground - such as the operation of a state procedural rule,” so long as application of the state rule is both “independent” and “adequate.” Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014); Coleman v. Thompson, 501 U.S. 722, 729 (1991). A procedural default bars consideration of a federal claim on habeas review when the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar. Harris v. Reed, 489 U.S. 255, 263 (1989). A decision is independent when it is not “interwoven with federal law” but instead “fairly appear[s] to rest primarily on state procedural law.” Jimenez v. Walker, 458 F.3d 130, 137 (2d Cir. 2006). A decision is adequate when the state procedural rule it relies upon is “‘firmly established and regularly followed.'” Walker v. Martin, 562 U.S. 307, 316 (2011) (quoting Beard v. Kindler, 588 U.S. 53, 60-61 (2009)).
On habeas review, federal courts “defer[] to findings of procedural default [by state appellate courts] as long as they are supported by a ‘fair or substantial basis' in state law.” Garcia v. Lewis, 188 F.3d 71, 78 (2d Cir. 1999) (quoting Arce v. Smith, 889 F.2d 1271, 1273 (2d Cir.1989).) “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.” Lee v. Kemna, 534 U.S. 362, 376 (2002). “[T]he question is whether application of the procedural rule is firmly established and regularly followed in the specific circumstances presented in the case, an inquiry that includes an evaluation of the asserted state interest in applying the procedural rule in such circumstances.” Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (internal quotation marks and citation omitted). “The Second Circuit has set forth the following ‘guideposts' for making this determination: (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.” Hoyt v. Lewin, 444 F.Supp.2d 258, 269 (S.D.N.Y. 2006) (citing Cotto, 331 F.3d at 217).
Here, the Court finds that the Appellate Division, relying on CPL § 440.10(3)(B) and (C), did not err in holding the trial court providently exercised its discretion in summarily denying Medina's Second Motion to Vacate. The application of CPL § 440.10(3)(B) and (C) is firmly established and regularly followed. See Jiang v. Larkin, No. 12-CV-3869, 2016 WL 1718260, at *23 (S.D.N.Y. Apr. 28, 2016) (“a state court's relianc[e] [on CPL § 440.10(B)(3)] also may result in a procedural bar to habeas review”); Murden v. Artuz, 497 F.3d 178, 192 (2d Cir. 2007) (“New York state courts regularly apply subsection (3)(C) [of CPL § 440.10] to deny claims that could have been but were not raised on previous motions to vacate”). A trial court may use CPL § 440.10(3)(B) to deny a motion to vacate where “the ground or issue raised upon the motion was previously determined on the merits upon a prior motion or proceeding in a court of this state.” CPL § 440.10(3)(B); but see Anderson v. Miller, No. 19-CV-1123, 2022 WL 4465294, at *6 (N.D.N.Y. Sept. 26, 2022) (finding state court's reliance on CPL 440.10(3)(B) was “misplaced” because state court “did not consider or decide any issues related to ineffective assistance of counsel” in the motion to vacate). Similarly, CPL § 440.10(3)(C) applies to situations where “[u]pon a previous motion made pursuant to this section, the defendant was in a position adequately to raise the ground or issue underlying the present motion but did not do so.” CPL § 440.10(3)(C).
Medina raised a claim for ineffective assistance of counsel in his First Motion to Vacate. At that time - i.e., as of filing the First Motion to Vacate, Medina was aware that Rodriguez had been involved in the events at issue and would have known whether his trial counsel did or did not investigate Rodriquez. Indeed, Medina has not asserted that he was not aware that his attorney had not done so. Yet he failed to raise the issue in his First Motion to Vacate. Accordingly, because the trial court disposed of the ineffective counsel issue on the merits and because Medina could have raised the issue specifically concerning Rodriguez in his First Motion to Vacate, CPL § 440.10(3)(B) and (C) were the proper grounds to summarily deny the Second Motion to Vacate. Medina's ineffective assistance of counsel claim as it pertains to Rodriguez is thus procedurally barred.
2. Failure On The Merits
Even if Medina's ineffective assistance of counsel claim relating to Rodriguez were not procedurally barred, it still fails on the merits as it satisfies neither requirement of Strickland. The claim does not surpass the “heavy measure of deference to counsel's judgements” under Strickland, 466 U.S. at 691. While Strickland does impose on counsel the duty to investigate, the investigation need only be reasonable under professional norms. See Wiggins v. Smith, 539 U.S. 510, 522 (2003) (“Strickland does not require counsel to investigate every conceivable line of mitigating evidence”). Medina has offered no facts to indicate that counsel's not having tracked down Rodriguez was anything other than a tactical decision.
And, even if counsel simply overlooked or did not invest the effort to locate Rodriguez, Medina has not faced any prejudice because he has not demonstrated that but for the absence of Rodriguez's testimony the result of the proceeding would have been different. As discussed above, the Rodriguez Affidavit only provides cumulative evidence to what was presented during the trial through the testimony of Almonte. Moreover, Rodriguez's testimony would have had little to no value to Medina. Although Rodriguez attests that “[Medina] never had a gun that night,” Rodriguez also testified that he was not inside the office when Medina, Veras and Ventura were discussing the cheating scheme. (Rodriguez Aff. ¶¶ 10, 14.) Thus, unlike Veras and Almanzar, Rodriguez would not have percipient knowledge of what happened in the office when Medina used a gun to strike Veras. Medina's claim of ineffective assistance of counsel regarding Rodriguez is meritless and should be dismissed.
III. Denial Of Second Motion To Vacate Without A Hearing
Medina argues that the trial court violated his due process rights when it exercised its discretion to summarily deny Medina's Second Motion to Vacate without ordering a hearing. (Pet. at ECF 32.) That claim, however, is not subject to federal habeas review.
Medina also argues that the trial court abused its discretion when it “made a credibility determination and denied the [First Motion to Vacate]” by not treating the evidence Medina presented as “newly discovered evidence.” (Pet. at ECF 32.) On direct appeal, the Appellate Division held that any claim arguing that the First Motion to Vacate should have been granted is “not cognizable on this appeal.” Medina, 198 A.D.3d 442 (citing People v. Wilkov, 77 A.D.3d 512, 911 N.Y.S.2d 1 (2010) (holding “Defendant's CPL 440.10 motion to vacate judgment is not before this Court because leave to appeal was denied”)). As such, this claim is procedurally barred.
Courts repeatedly have held that federal habeas relief is not available to redress claims that relate solely to alleged procedural errors, including specifically denying CPL 440.10 motions without a hearing, in state post-conviction proceedings. See. e.g., Guzman v. Couture, No. 99-CV-11316, 2003 WL 165746, at *13 (S.D.N.Y. Jan. 22, 2003) (denying habeas claim as not cognizable for federal review where petitioner asserted “failure to hold a hearing on his CPL §§ 440.10 and 330.30 newly discovered evidence motions violated due process”); Jones v. Duncan, 162 F.Supp.2d 204, 219 (S.D.N.Y. 2001) (Petitioner's “assertion that the failure to hold a hearing on his CPL §§ 440.10 and 330.30 newly discovered evidence motions violated due process is not cognizable on federal habeas review”); Diaz v. Greiner, 110 F.Supp.2d 225, 236 (S.D.N.Y. 2000) (“Petitioner's unsupported assertion that the trial court denied his (third) CPL § 440.10 motion without a hearing violated due process is not cognizable on federal habeas review”); see generally Fields v. Lee, No. 12-CV-4878, 2016 WL 889788, at *21 (S.D.N.Y. Jan. 28, 2016), R. & R. adopted, 2016 WL 879319 (S.D.N.Y. Mar. 7, 2016) (“Claims relating to alleged errors in a state's post-conviction procedures are not cognizable on federal habeas review”); Franza v. Stinson, 58 F.Supp.2d 124, 152 (S.D.N.Y. 1999) (Petitioner's “vague assertion that the trial court's denial of his CPL § 440.10 motion violated due process and equal protection is not cognizable on federal habeas review”).
Medina's reliance on Massaro v. United States, 538 U.S. 500 (2003), is misplaced. In Massaro, the Supreme Court held that no procedural bar exists to an ineffective assistance of counsel claim brought under 28 U.S.C. § 2255 regardless of whether the petitioner could have raised the claim on direct appeal. Id. Section 2255 governs post-conviction proceedings to federal criminal judgments. Unlike Medina's claim under 28 U.S.C. § 2254, Section 2255 claims do not implicate standards requiring deference to state law. See Sweet v. Bennett, 353 F.3d 135, 140 (2d Cir. 2003) (“Section 2254, unlike § 2255, contains an exhaustion rule, 28 U.S.C. § 2254(b)(1)(A), as well as a rule requiring deference to state courts, 28 U.S.C. § 2254(d), underscoring the necessity that defendants raise their claims in state courts first. Massaro does not address the concerns of comity and federalism, essential to § 2254 and the independent and adequate state ground doctrine”); Taylor v. Poole, No. 07-CV- 6318, 2009 WL 2634724, at *18 (S.D.N.Y. Aug. 27, 2009), R. & R. adopted, 2011 WL 3809887 (S.D.N.Y. Aug. 26, 2011) (“the Second Circuit has made clear that Massaro did not affect a state's power to require that ineffective assistance claims be brought on direct appeal”).
Medina's grievance - that the trial court failed to schedule a hearing to vacate Medina's conviction after the Government did not respond to Medina's Second Motion to Vacate as required under CPL 440.30(a-c) - falls squarely within this precedent. (Pet. Reply at ECF 20.) His claim thus is not cognizable on federal habeas review and should be denied.
IV. Judicial Misconduct Claim
Medina argues the Trial Judge violated his constitutional right to a fair trial by asking Almonte follow-up questions, effectively acting as a second prosecutor. (Pet. at ECF 33.) Respondent argues that Medina's claim is not exhausted, and in the alternative is defaulted or meritless. The Court finds that Medina's claim was exhausted but is procedurally barred.
A. Exhaustion
Respondent argues Medina has not procedurally exhausted his claim because Medina did not alert the Appellate Division of the federal nature of his judicial misconduct claim. (Resp. Br. at 32.) The Court disagrees.
A petitioner is required to exhaust all of his available state court remedies before a federal court can consider his habeas application. 28 U.S.C. § 2254(b)(1)(A); Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011). The exhaustion requirement involves two related questions. Galdamez v. Keane, 394 F.3d 68, 73 (2d Cir. 2005). “First, a federal court must examine whether applicable state court remedies remain available to the petitioner.” Id. A petitioner need not have invoked every possible avenue of state court review, but instead must “give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.” Id. (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). A “complete round” of direct appeal requires presenting a petitioner's federal claim to the highest court of the state, which in this case is the New York Court of Appeals. See id. at 74. To exhaust a claim raised before the state trial court in a collateral post-conviction motion, as in a motion made pursuant to CPL § 440.10 and § 220.60, a petitioner must seek leave to appeal the denial of the motion. See Klein v, Harris, 667 F.2d 274, 282-83 (2d Cir. 1981); Ramos v. Walker, 88 F.Supp.2d 233, 235 (S.D.N.Y. 2000).
“Second, and often of central concern in habeas proceedings,” a petitioner must have “fairly presented his . . . claims to the state courts, such that the state court had a fair opportunity to act.” Galdamez, 394 F.3d at 73 (internal citations omitted) (quoting O'Sullivan, 526 U.S. at 848). Substantively, the petitioner must have apprised the state courts of “both the factual and the legal premises of the claim [the petitioner] asserts in federal court.” Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997) (quoting Daye v. Attorney General of New York, 696 F.2d 186, 191 (2d Cir. 1982) (en banc)). Although the petitioner need not “cite chapter and verse of the Constitution in order to satisfy this requirement, he must tender his claim in terms that are likely to alert the state courts to the claim's federal nature.” Jackson, 763 F.3d at 133 (internal quotation marks omitted) (quoting Carvajal, 633 F.3d at 104). A petitioner may meet this requirement by alleging a pattern of facts that is well within the mainstream of constitutional litigation. Strogov v. Attorney General of New York, 191 F.3d 188, 191 (2d Cir. 1999) (quoting Daye, 696 F.2d at 194). Where a petitioner alleges a denial of his right to fair trial, such a claim is sufficient to alert the state that a due process claim is being asserted. See Daye, 696 F.2d at 196-97. This is because “[u]nder the Due Process Clause there is a well developed right ... to a trial before an unbiased judge. The fundamental nature of this right is demonstrated by the fact that not even the appearance of bias is tolerated.” Id. “This principle is reflected in a long line of cases, involving a variety of circumstances bespeaking the real or apparent bias of the trial judge.” Id.
Here, Medina sufficiently demonstrated the federal nature of his claim to the Appellate Division. On appeal, Medina argued that the Trial Judge “violated [his] right to a fair trial” when it questioned his witness, violating “[Medina's] right to due process and having an impartial judge.” (SR. 2297.) Like the petitioner in Daye, Medina squarely addressed that he believed he had been deprived of a fair trial before an impartial judge, affording the state an opportunity to recognize the constitutional implications of his claim. See, e.g., 696 F.2d at 197 (“[T]he courts were alerted to [petitioner's] complaint that he had been deprived of a trial before an unbiased judge and unprejudiced jury” when petitioner alleged on appeal that the “court assumed the role of prosecutor,” “set impartiality aside,” and “assumed an obviously hostile and prosecutorial stance towards [petitioner]”). While it is true that Medina only cited to state law in his appeal, his federal claim is not precluded. Alleging a claim of denial of fair trial due to judicial bias is enough to alert state courts of the implication of due process rights. Id. (“If judicial bias, or the appearance of it, existed, due process was denied. We do not believe it reasonable to assume that state judges presented with a claim of manifested judicial bias would fail to recognize the implication of due process rights simply because half a century of due process cases dealt with the mere risk of bias or with actual bias manifested in other ways”). Medina has thus exhausted his judicial misconduct claim. As discussed next, however, his claim is procedurally defaulted and should be barred from review.
B. Procedural Bar
Respondent argues that Medina's claim is procedurally barred because: (1) Medina no longer has a state forum in which to assert this claim; and (2) Medina failed to preserve the claim for appeal. The Court agrees based on Respondent's second rationale.
In the state proceedings, Medina raised on direct appeal the same claim of judicial misconduct he now raises in his habeas petition. The Appellate Division held, however, that Medina failed to preserve the claim by failing to object at trial. As the court explained, Medina's “remaining challenges ... to the court's questioning of a witness in response to a juror's question, are unpreserved and we decline to review them in the interest of justice.” Medina, 198 A.D.3d at 442. The First Department's decision unambiguously rested on state procedural grounds. See Morris v. Sears, No. 06-CV-476, 2007 WL 1875665, at *10 (S.D.N.Y. June 29, 2007) (state court's reliance on state procedural bar was not ambiguous where the First Department held claim was “unpreserved”).
The First Department's determination was well-founded. Under New York law, to preserve an issue for appellate review, a party must object at the time of a claimed error. NY CPL § 470.05; Morris v. Sears, No. 06-CV-2476, 2007 WL 1875665, at *12 (S.D.N.Y. June 29, 2007). The rule applies with particular force to objections to a trial judge's questioning. See Martinez v. Greiner, No. 01-CV-2911, 2003 WL 1936191 at *3 (S.D.N.Y. April 22, 2003) (observing that “although defense counsel objected three times to questioning by the Trial Judge, the record indicates that the objections were directed to specific questions rather than to the Judge's general course of action or participation as a whole” and “[b]y failing to call the Judge's attention to his allegedly prejudicial conduct, defendant did not offer him an opportunity to alter or correct it”); People v. Charleston, 56 N.Y.2d 886, 887 (1982) (explaining that “‘a court is entitled to question witnesses to clarify testimony and to facilitate the progress of the trial” and that “after it becomes ‘clear that the Judge intends to exceed his permissible role and assume the advocate's function' ... it is incumbent upon defense counsel at least to attempt to register some protest to that conduct to preserve the matter for appellate review”) (quoting People v. Yut Wai Tom, 53 N.Y.2d 44, 55, 439 N.Y.S.2d 896, 902 (1981)). Medina did not do so. During the Trial Judge's questioning of Almonte, Medina's trial counsel made only one objection to the line of questioning at issue, which he subsequently withdrew. (See Dkt. 22-4, Tr. 303 (“THE COURT: [o]kay. So now let's get into that. How did someone take them. MR. GROSSHTERN: Objection. That wasn't the question. THE COURT: Well, it's a question from the jury. How? Please explain. MR. GROSSHTERN: That's fine”).)
Courts routinely find that failure to object at trial when required by New York's contemporaneous objection rule is an adequate and independent state ground precluding habeas review. See, e.g., Wainwright v. Sykes, 433 U.S. 72, 86, 90 (1977) (contemporaneous objection rule is an adequate and independent state ground); Murray, 477 U.S. at 485-92, 497 (same); Franco v. Walsh, 73 Fed.Appx. 517, 518 (2d Cir.2003) (finding petitioner's claim of an erroneous jury charge procedurally defaulted because “[n]o contemporaneous objection to the charge was lodged, and the Appellate Division found that the issue was therefore unpreserved”); Fauntleroy v. Artuz, No. 00-CV-2209, 2003 WL 22670906 at *5 (E.D.N.Y. Oct. 31, 2003) (finding claim procedurally barred because the Appellate Division's conclusion that petitioner's claim was unpreserved for appellate review rested on an adequate and independent state procedural ground). Medina's claim concerning the Trial Judge's questioning of Almonte is procedurally barred.
For the Court to review the otherwise procedurally barred judicial interference claim on the merits, Medina would have to show in his habeas petition “cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. Cause for a procedural default ordinarily turns on whether the petitioner can show that “some objective factor external to the defense impeded [petitioner's] efforts to comply with the State's procedural rule.” Murray, 477 U.S. at 488; accord Coleman, 501 U.S. at 753. Medina, however, does not allege any such cause or any factor which may have prevented his attorney from objecting.
Medina similarly fails to show how failure to review the judicial interference claim on the merits would rise to a fundamental miscarriage of justice, or that the Trial Judge's conduct led to his conviction. Medina argues that the Trial Judge “allowed the jury to pursue the line of reasoning offered by the people, Petitioner's case became tainted, and Petitioner was unable to receive a fair trial.” (Pet. at ECF 33.) But a review of the record shows the questions from the Trial Judge clarified the jurors' confusion regarding the cheating scheme. (Dkt. 22-4, Tr. 301-7.) Medina's claim is barred from habeas review.
Even if the claim was not barred from review, Medina's judicial interference claim is meritless because it “is perfectly appropriate for the court to ask questions in order to clarify ambiguities in the testimony.” Abdul-Khaliq v. Smith, No. 09-CV-2516, 2010 WL 5830488, at *14 (S.D.N.Y. Dec. 11, 2010), R. & R. adopted, 2011 WL 672449 (S.D.N.Y. Feb. 24, 2011); see also United States v. Messina, 131 F.3d 36, 39-40 (2d Cir.1997); United States v. Manko, 979 F.2d 900, 905 (2d Cir.1992); United States v. 141st Street Corp., by Hersh, 911 F.2d 870, 881 (2d Cir.1990); United States v. Gurary, 860 F.2d 521, 527 (2d Cir.1988).
V. Prosecutorial Misconduct
Medina argues the prosecutor violated his right to due process during summation by (1) mischaracterizing evidence, (2) misstating evidence, (3) acting as an unsworn witness, and (4) vouching for the credibility of a witnesses. (Pet. at ECF 35.) Medina's first three claims are procedurally barred from the Court's consideration, and Medina's credibility claim fails on the merits.
A. Procedural Bar
Respondent argues that all of Medina's prosecutorial misconduct claims, except for Medina's credibility claim, are procedurally barred on adequate and independent state law grounds because the Appellate Division rejected those arguments as unpreserved. (See Resp. Br. at 37.) The Court agrees.
On direct appeal, Medina raised the same four claims of prosecutorial misconduct that he now alleges in his Petition. When addressing all the claims but for the credibility claim, the Appellate Division held that “[Medina's] remaining challenges to the People's summation ... are unpreserved and we decline to review them in the interest of justice.” Medina, 198 A.D.3d at 442. A review of the record shows that Medina's trial counsel did not object to any of these specific issues during the prosecutor's summation. As a result, Medina has not preserved these claims for appellate review under New York's contemporaneous objection rule. See, e.g., Wainwright, 433 U.S. at 90 (contemporaneous objection rule is an adequate and independent state ground). The first three prosecutorial misconduct claims procedurally barred.
Medina has not established that this Court should review the otherwise procedurally barred claims on the merits because Medina has not shown “cause” for the violation or demonstrated that “failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. First, Medina does not explain the cause for his attorney's lack of objection, and the Court discerns none from the record. Second, Medina's evidence claims are conclusory. Medina does not articulate what evidence was misstated or improperly introduced on summation leaving the Court without the ability to review the impact these statements may have had on Medina's verdict. In his Petition, Medina only addresses that the prosecutor “violated the unsworn witness rule, when the prosecutor act[ed] as [a] medical expert and exaggerated what cause[d] the injuries of Miguel [Veras].” (Pet. at ECF 35.) But failure to review Medina's claim on these grounds would not amount to a miscarriage of justice.
On summation, the prosecutor asked the jury to “use their common sense” when assessing the medical report showing Vera's injuries. The prosecutor continued to say: “Take a look at page 11 of the medical records, it says problem one, he had a laceration repair of a two-inch laceration. Two inches. You don't get that from a punch. If you hit your head against a wall, even if you have a laceration wouldn't you expect to see swelling or bruising around it? That didn't happen in this case.” (Dkt. 22-5, Tr. 367.) Those statements on summation do not amount to the prejudice required to permit review of a procedurally barred claim. See, e.g., Dunn v. Sears, 561 F.Supp.2d 444, 455 (S.D.N.Y. 2008) (viewing prosecutor's comments as not inappropriate because “they were invited by [defense's] summation and the [p]rosecutor was making a fair argument of the evidence”); Sanabria v. Martuscello, No. 15-CV-1705, 2019 WL 2528376, at *9 (S.D.N.Y. Feb. 8, 2019), R. & R. adopted, 2019 WL 1450747 (S.D.N.Y. Apr. 2, 2019) (prosecutor's summation was not improper where prosecutor made remarks constituting “reasonable inference drawn from the evidence elicited at trial”); see also United States v. Edwards, 342 F.3d 168, 181 (2d Cir. 2003) (“The government has broad latitude in the inferences it may reasonably suggest to the jury during summation”) (internal citation omitted).
Thus, Medina's first three judicial misconduct claims are procedurally barred from habeas review and should be denied.
Even if Medina's claims that the prosecutor mischaracterized and misstated evidence and acted as an unsworn witness were not procedurally barred, they nonetheless fail on the merits. Any comments made by the prosecutor were permissible because they constituted a “‘fair comment on the evidence' at trial and reasonable inference therefrom, or a ‘fair response to remarks made by the defense counsel during summation.'” Roman v. Filion, 04-CV-8022, 2005 WL 1383167, at *18 (S.D.N.Y. June 10, 2005) (collecting cases). Even if there was misconduct, the judge instructed the jury that the “the jury's recollection of the evidence is what governs, not what the advocates say during summation. They can comment on what they believe the evidence showed. Folks, it is for you to determine based on your recollection what the evidence was.” (Dkt. 22-5, Tr: 361); see Osorio v. Conway, 496 F.Supp.2d 285, 302 (S.D.N.Y. 2007) (“trial court mitigated any prejudice by instructing the jury that “what the lawyers say is not evidence” and that the jury could “disregard [either lawyer's analysis of the facts or the inferences or conclusions] that it finds are illogical or not warranted by the evidence”); McEachin v. Ross, 951 F.Supp. 478, 482 (S.D.N.Y. 1997) (trial court mitigated “any adverse impact the prosecutor's comments may have had” when “the trial court instructed the jury that the summations were not evidence and that the jury was the sole judge of the facts”).
B. Meritless Vouching Claim
Medina argues his right to due process was violated because the prosecutor vouched for the credibility of witnesses during summation. (Pet. at ECF 35.)
Although the Petition does not specify which witness the prosecutor allegedly vouched for, it is clear from Medina's direct appeal that the credibility issue concerned the Government's two witnesses - Veras and Almanzar. (See SR. 2293 (“In the case at bar, the prosecutor vouched for the truth of the People's two witnesses ...”).)
Respondent argues that Medina has not shown how the prosecutor's comments during summation had a substantial and injurious effect or influence in determining the jury's verdict. (Resp. Br. at 41-42.) Respondent is correct.
When addressing Medina's credibility claim, the Appellate Division held that “[t]he prosecutor's summation comments arguing that the People's witnesses told the truth about various matters were properly responsive to the defense summation, which extensively attacked those witnesses' credibility.” Medina, 198 A.D.3d at 442. Improper remarks during summation “must be examined within the context of the trial to determine whether the prosecutor's behavior amounted to prejudicial error.” United States v. Young, 470 U.S. 1, 12, (1985); see United States v. Nersesian, 824 F.2d 1294, 1327 (2d Cir.). “Whether a prosecutor's improper statement during summation results in a denial of due process depends upon whether the improper statement causes substantial prejudice to the defendant.” Nersesian, 824 F.2d at 1327 . It is “rare” that improper comments in a prosecutor's summation are so prejudicial that a new trial is required. Floyd v. Meachum, 907 F.2d 347, 348 (2d Cir.1990). Relevant factors include “the severity of the misconduct, the measures adopted to cure the misconduct, and the certainty of conviction absent the misconduct.” See United States v. Spinelli, 551 F.3d 159, 170 (2d Cir.2008).
The prosecution is permitted to vigorously argue for the jury to find its witnesses credible as long as the prosecution does not link its own credibility to that of the witness, see United States v. Rivera, 971 F.2d 876, 884 (2d Cir.1992), or imply the existence of extraneous proof supporting the witness's credibility, see United States v. Bagaric, 706 F.2d 42, 61 (2d Cir.1983). “[T]he government is allowed to respond to an argument that impugns its integrity or the integrity of its case, and when the defense counsel have attacked the prosecutor's credibility or the credibility of the government [witnesses], the prosecutor is entitled to reply with rebutting language suitable to the occasion.” United States v. Carr, 424 F.3d 213, 227 (2d Cir.2005); see also United States v. Rivera, 22 F.3d 430, 438 (2d Cir. 1994) (“[W]e must evaluate the challenged remarks in the context of the trial as a whole, for the government is allowed to respond to argument that impugns its integrity or the integrity of its case”).
Here, the prosecutor did not link her credibility to that of the witnesses, nor did she imply that she had evidence the jury did not receive. On summation, when discussing the credibility of Veras, the prosecutor stated that Veras “by all accounts [ ] told you the truth.” (Dkt. 22-5, Tr. 363.) The prosecutor appropriately responded to the defendants' contentions concerning the credibility of the prosecution's witnesses. (See e.g., id. at 345 (stating that prosecution's framing of the poker game “[s]ounded sweet and innocent because Mr. Veras, even though he is a criminal running an illegal operation, they wanted to sanitize him to make him look more, more pure so he is more credible”).) When discussing the demeanor of the witnesses, the prosecutor stated that “Mr. Almonte [] stood on that stand smirking ...he was trying to prove how smart he was, he was gonna outsmart the prosecutor. [Veras] wasn't smirking, [] Almanzar wasn't smirking. You have to look at the demeanor of all of the witnesses that took the stand. That is the evidence in this case ..” (Dkt. 22-5, Tr. 380-81.) But discussing the demeanor of witnesses during examination in summation is not improper. See Rivera, 971 F.2d 876 at 885 (“A prosecutor is free to comment upon the evidence, including demeanor”) (internal citation omitted). In short, there was no misconduct to begin with.
As the Appellate Division reasonably concluded, the prosecutor's arguments did not constitute improper vouching for the prosecutor's witnesses.
Medina's remaining prosecutorial misconduct claim should be dismissed in its entirety.
CONCLUSION
For the reasons stated above, I recommend that Medina's petition for habeas corpus be DENIED and the case dismissed. To the extent not discussed herein, the Court has considered all of Medina's arguments and determined them to be without merit.
PROCEDURES FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Any party shall have fourteen (14) days to file a written response to the other party's objections. Any such objections and responses shall be filed with the Clerk of the Court, with courtesy copies delivered to the Chambers of the Honorable Arun Subramanian, United States Courthouse, 500 Pearl Street, New York, New York 10007, and to the Chambers of the undersigned, at United States Courthouse, 500 Pearl Street, New York, New York 10007. Any request for an extension of time for filing objections must be addressed to Judge Subramanian. Failure to file timely objections will result in a waiver of the right to object and will preclude appellate review.
Copies transmitted this date to all counsel of record. The Clerk's Office is directed to mail a copy of this report and recommendation to Petitioner and note service on the docket.