Opinion
17-CV-04941 (LJL)(SN)
10-06-2023
MICHAEL K. SERVICE, Petitioner, v. JOSEPH NOETH, Respondent.
TO THE HONORABLE LEWIS J. LIMAN:
REPORT AND RECOMMENDATION
SARAH NETBURN, UNITED STATES MAGISTRATE JUDGE.
Michael Service petitions for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. After a jury trial in New York Supreme Court, New York County, Petitioner was convicted of second-degree murder, first-degree assault, and two counts of second-degree criminal possession, pursuant to N.Y. Penal Law §§ 125.25[1], 120.10[1], & 265.03[1] [b], [3].
Petitioner advances eight grounds for habeas relief. He raised four claims in his initial pro se petition, alleging: (1) the trial court erred in admitting his confessions; (2) the trial court erred by failing to grant his motion to substitute counsel; (3) his trial counsel provided ineffective assistance by asserting a justification defense and not moving for a trial order of dismissal; and (4) there was insufficient evidence to support a finding of serious physical injury. ECF No. 1 (“Pet.”) at 7. In an amended petition, filed by counsel, Petitioner raised four additional claims, alleging that appellate counsel was ineffective by failing to argue on appeal that: (5) Petitioner's statements should have been suppressed as the fruit of an unlawful arrest; (6) the trial court unduly interfered with Petitioner's testimony; (7) trial counsel was ineffective for disavowing a portion of his testimony during summation; and (8) the trial court committed reversible error under People v. O'Rama. ECF No. 50, Ex. 1 at 8-9. I recommend the petition be DENIED.
BACKGROUND
I. Crime and Investigation
On August 15, 2008, Petitioner and the decedent Anthony Recio had a fistfight during an outdoor party at the Polo Grounds housing complex. While police broke up the fight, Petitioner returned to the Polo Grounds approximately two and a half hours later at 2:30 a.m. Anticipating Recio would be armed, Petitioner retrieved a gun he kept in an abandoned car. Petitioner shot Recio, who died within minutes, and Stanton McCaskill, a member of Recio's group. Immediately after the shooting, Petitioner ran into Building 4 at the Polo Grounds, where the surveillance video camera recorded him giving his gun to Carl Joseph in the elevator at 2:56 a.m. Soon after, he entered the apartment of his girlfriend, Dominque Campanioni.
Later that morning, Detectives Byron Chavers and Gerard DiMuro interviewed witnesses and reviewed surveillance videos, including the footage of Petitioner and Joseph at the Building 4 elevator. They received an anonymous tip that Petitioner was inside Campanioni's apartment. Chavers and DiMuro arrived at the apartment, found Petitioner hiding inside Campanioni pullout sofa, and arrested him. At the precinct, Petitioner made an exculpatory statement and, approximately seven hours later, confessed to shooting Recio and McCaskill.
II. Relevant Trial Court Proceedings
A. Suppression Hearing
Petitioner moved to suppress the pre-trial statements he made at the precinct to Detectives Chavers and DiMuro. During a three-day suppression hearing, Detectives Chavers, DiMuro, and Gerald Blake testified for the prosecution. No witnesses testified for the defense.
Detectives Chavers and DiMuro testified that, over the course of their interviews at the Polo Grounds, they learned that Petitioner killed Recio. McCaskill told the night watch detective that the shooter was a dark-skinned man wearing a dark hoodie; the night watch detective conveyed this information to Chavers. ECF No. 44, Ex. 14, Hearing Transcript (“Hrg. Tr.”) at 57:16-25. Chavers spoke with Recio's sister. During their conversation, someone called Recio's sister and told her that Michael Service shot her brother. Id. at 58:2-18. Using a computer search, the detectives determined Petitioner lived at the Polo Grounds. Id. at 152:21-153:2. Upon reviewing the video surveillance from Petitioner's building lobby, they found footage of Petitioner walking into the building and holding a gun within minutes of the shooting. Id. at. 24:21-25:12. Petitioner matched McCaskill's description. Id. Around 11:00 a.m., they received an anonymous tip indicating that Petitioner was inside his girlfriend's apartment. Id. at 68:3-7.
At the precinct, Chavers and DiMuro introduced themselves and explained that Petitioner was there because of a double shooting at the Polo Grounds. Chavers testified that he gave Petitioner a pre-printed form that explained his Miranda rights. Id. at 71:8-9. Chavers read the form aloud and verified that Petitioner understood he had the right to remain silent, to consult with an attorney, to have an attorney appointed free of charge, and that any statement he made could be used against him in court. Id. at 72:8-73:6. Chavers testified that he asked Petitioner if he was willing to answer the detective's questions. Petitioner agreed and signed the bottom of the Miranda form. Id.
According to the detectives, Petitioner first made an exculpatory statement, stating he was at the Polo Grounds when a fistfight broke out between two other men. Id. at 13:6-14:4. Petitioner then told detectives that he walked to the laundromat to buy a t-shirt and then went to his girlfriend's apartment to stay the night. Id. He hid the following morning because he believed Campanioni's grandmother-who did not like him- was at the door. Id. After the detectives wrote and verified the statement with Petitioner, they concluded the interview sometime between 2:00 and 3:00 p.m. Id. at 16:11-14.
The detectives testified that Petitioner remained in the interview room without handcuffs. Id. at 11:14-15. Between 9:00 and 10:00 p.m., the detectives returned to the room and held up the signed Miranda form and said, “the rules still apply, these are still in effect.” Id. at 22:4-20. Detective DiMuro testified that he showed Petitioner an image from the surveillance video. Id. at 23:21-24:3. Detective Chavers told Petitioner that it was in his best interest to tell the truth and that police had uncovered “a lot more evidence.” Id. at 25:20-23, 29:8-9. Petitioner then confessed to the shooting. Id. at 26:3-27:24.
Petitioner was subsequently interviewed on video by Detective Chavers and two Assistant District Attorneys (“ADAs”). Id. at 76:19-77:8. Before answering questions on camera, Petitioner was again read his Miranda rights by an ADA. Id. at 77:20-23. The video confirms that Petitioner repeated the initial confession with more detail. The ADA asked Petitioner whether the detectives had previously read him his Miranda warnings. He answered affirmatively. At the conclusion of the interview, the officers arrested Petitioner.
The trial court denied Petitioner's motion to suppress his inculpatory statements, holding that the detectives had probable cause to detain him because they corroborated the information they received from their interviews and the anonymous tips. ECF No. 14, Ex. C, at 8-9. The trial court also held that Petitioner made his pre-trial statements voluntarily because the officers administered and readministered Miranda warnings. Id. Thus, the court determined Petitioner's waivers were valid. Id.
B. Petitioner's Motion to Substitute Counsel
On the eve of trial, Petitioner requested new counsel because he did not see “eye to eye” with his trial attorney, Mr. Levinson. ECF No. 44, Ex. 14, Trial Transcript (“Tr.”) at 2:22-24. Petitioner objected to Levinson's trial strategy of admitting Petitioner killed Recio and his general lack of communication with him. Id. at 4:9-11. The court denied Petitioner's motion to substitute counsel, citing his best interest and Mr. Levinson's hard work on the case. Id. at 3:2122, 9:12-13.
C. Relevant Trial Testimony
1. The Prosecution's Case
At trial, Michael Negron, Ramell Stone, and Christopher Valera-three men who were part of Recio's group-testified for the prosecution that they were at the Polo Grounds with Recio on the evening of August 14, 2008. Id. at 395:21-25, 571:18-572:1, 633:6-635:9. They knew Petitioner from the neighborhood and that he went by the nickname “Slob Bob.” Id. at 567:7-11, 632:8-10. All three testified that Recio and Petitioner began to fight after Petitioner argued with Recio about fighting with another person at the Polo Grounds. Id. at 397:11-22, 572:19-574:9, 637:10-640:11. The two men fought, and Petitioner kicked Recio in the face. Id. at 643:13-15. According to witnesses, Recio's friend, Dave Best, punched Petitioner in the face. Id. at 643:25-644:2.
Stone testified that at around 3:00 a.m. he was hanging out with McCaskill and another friend in front of Building 2 at the Polo Grounds. Id. at 400:15-20, 456:5-8, 460:7-24. Petitioner walked from his apartment building to the group and asked for Best. Id. at 400:19-20. Recio walked out of Building 2, and Petitioner called him over. Id. at 401:12-402:2. Recio refused to talk to Petitioner and walked away from him. Id. at 402:8-24. Petitioner also turned away, but then “all of a sudden” spun around, pulled a black semi-automatic gun from his waistband, and shot Recio. Id. at 402:21-403:5. Petitioner continued to fire, hitting McCaskill in the hip. Id. at 404:17-20. He fired six or seven more shots before returning to his apartment building. Id. at 415:13-15. Stone called 911 and ran to McCaskill, helping him apply pressure to his wound. Id. at 417:1-419:2. Valera ran to Recio, who was not moving or breathing. Id. at 591:10-18. Valera testified that Charles McCoy, a member of the group, was not present during the shooting. Id. at 600:3-4.
Medical examiner Jennifer Hammers testified for the prosecution that McCaskill could have died from his injuries, which included a fractured bone and a severed large intestine in two places. Id. at 324:22-325:2. McCaskill testified that he has a permanent scar and suffered from pain in his abdomen for two to three months. Id. at 225:18-226:7, 230:2-8. Hammers also testified that Recio died when the bullet entered his body through his left back, fractured one of his ribs, passed through his left lung, severed his pulmonary artery, punctured his aorta, fractured the top of his sternum, and then exited through the upper right part of his chest. Id. at 315:24316:4.
Campanioni testified that Petitioner came to her apartment at 11:00 a.m. the morning after the shooting. Id. at 693. She said he looked “nervous” and “jittery” and told her he needed to use her phone. Id. at 695:20-696:3. During one of the calls Petitioner made, he mentioned Recio and said he had “let that thing go.” Id. at 699:9-17. Campanioni interpreted that to mean that he had fired the gun. Id.
Detective DiMuro testified that he and Detective Chavers received an anonymous tip that Petitioner was inside Campanioni's apartment, where the detectives went with a backup team. Id. at 726:12-727:15. Campanioni let them in, and they found Petitioner hiding inside a pull-out sofa bed. Id. at 727:19-25. The detectives took him to the precinct. Id. at 729:5-9. They testified that they told Petitioner they were investigating a double-shooting. Petitioner waived his rights in writing before providing an exculpatory statement. Id. at 732:17-734:25. The detectives left and returned around 10:00 p.m. Id. at 510:3-10. The detectives reminded Petitioner of his Miranda rights before they began speaking. Id. at 511:15-25. Then, the detectives showed Petitioner an image of him holding a gun from the Building 4 surveillance footage. Id. at 511. Petitioner confessed to shooting Recio and McCaskill. Id. at 749:19-751:24.
2. The Defense's Case
Petitioner testified in his own defense. He testified that he told Recio to “chill out” after he saw him beating up another man. Id. at 862:20-21. Recio pushed him, and the two men started fighting. Id. at 863: 11-864:5. One of Recio's friends prevented Petitioner from kicking Recio, punching Petitioner from behind. Id. at 864:11-17. Petitioner testified that Recio's friends joined the fight and kicked him as he lay there. Id. Police broke up the fight, and Petitioner left the housing complex. Id. at 864:16-865:7.
On his way back to the Polo Grounds, Petitioner encountered a friend, Tanya, who said, “they went to get guns for you” Id. at 966:2-5. He decided to arm himself with a gun he kept in an abandoned car. Id. at 866:19-24. Petitioner encountered Recio and his friend while waiting for an elevator to his mother's apartment in Building 3 at the Polo Grounds. Id. They threatened to “fuck [Petitioner] up” once the police left the housing complex. Id. at 867:11. Petitioner's mother was not at her apartment, so he walked to his own apartment, passing Recio's group because it was the more direct route. Id. at 868:1-869:24. The group ran toward him and surrounded him. Id. at 870:21-871:3. Charles McCoy, a member of the group who stood behind Recio, pulled out a gun and pointed it at Petitioner. Id. Fearing for his life, Petitioner pulled out his gun and aimed it at McCoy, firing two shots. Id. at 872:2-10. He testified that he did not intend to hurt or kill Recio or McCaskill. Id. at 873:3-12. After firing, he turned and ran. Id.
Petitioner testified that he gave the gun to Carl Joseph inside the lobby of Building 4 and made his way to Campanioni's apartment. Id. at 873:24-874:1, 891:18-24. Campanioni's grandmother called the apartment and Campanioni told Petitioner to hide since she did not approve of him. Id. at 875:4-9. Immediately after, the police arrived and arrested Petitioner. Id.
Petitioner testified that the police did not initially read him his Miranda rights and refused to tell him why he had been arrested. Id. at 875:13-876:7. After he made his first statement, Petitioner testified that the detectives returned to the interview room and threatened to bring charges against Campanioni if he did not confess. Id. at 880:16-881:6. With this threat in mind, Petitioner confessed to shooting Recio and McCaskill. Id.
D. Jury Deliberations and Verdict
During its deliberations, the jury sent the trial court eight notes. The notes requested exhibits, readbacks, clarification between charges, and cancelled readbacks. Id. at 1196:101206:12. After two days of deliberations, the jury found Petitioner guilty of second-degree murder, first-degree assault, and two weapon possession charges. Id. at 1211:17-1212:17.
III. Post-Conviction Procedural History
A. Direct Appeal
Petitioner appealed to the Appellate Division, First Department, on five grounds: (1) the trial court's improper admission of his pre-trial confessions; (2) the trial court's failure to grant his motion to substitute counsel; (3) trial counsel's failure to move for a trial order of dismissal on the assault count and for asserting a justification defense; (4) the legal sufficiency of the evidence supporting his assault conviction; and (5) that Petitioner's sentences for murder and weapon possession were imposed unlawfully to run consecutive to one another.
The Appellate Division affirmed Petitioner's conviction. It held that the trial court properly admitted Petitioner's pre-trial confessions made after a detective referenced his prior Miranda warnings because “there was no reason to believe that [Petitioner] had forgotten or no longer understood his constitutional rights” seven hours after he received Miranda warnings before his initial statement. People v. Service, 126 A.D.3d 638, 638 (1st Dep't 2015). The court found that Petitioner's sentence on the murder conviction should run concurrently with the sentence on the weapon possession conviction, yet found his claim regarding the legality of other consecutive sentences to be without merit. Id. at 639. Finally, the court “considered and rejected” the rest of Petitioner's pro se claims. Id.
Petitioner sought leave from the New York State Court of Appeals, raising the same claims raised at the Appellate Division. ECF No. 15 at 26. The Court of Appeals denied Petitioner's application for leave on April 5, 2016. People v. Service, 27 N.Y.3d 1006 (2016).
B. The § 2254 Petitions and Writs of Error Coram Nobis
On or about June 24, 2017, Petitioner filed his initial federal habeas petition, asserting the suppression, substitution of counsel, legal sufficiency, and ineffective assistance of counsel claims he raised before the Appellate Division. Pet. at 7. Respondent filed an opposition and Petitioner declined to file a reply, instead seeking a stay to file a writ of error coram nobis in the Appellate Division. ECF No. 20. The Court granted the stay on February 5, 2018. ECF No. 21.
Petitioner filed a writ of error coram nobis, alleging that his appellate attorney failed to provide effective representation. ECF No. 51, Ex. K. He alleged that appellate counsel failed to argue that the trial court had made an insufficient inquiry into Petitioner's request for substitution of counsel. Id. The Appellate Division summarily denied the writ. ECF No. 51, Ex. M. The Court of Appeals denied leave to amend. ECF No. 50, Ex. P.
Subsequently, this Court ordered Petitioner to file reply papers to his original habeas petition in which he could move to amend his habeas petition to include his newly exhausted claims. ECF No. 35. At this time, represented by counsel, Petitioner moved for a second stay to file another writ of error coram nobis, which the Court granted. ECF No. 47. In his second coram nobis petition, Petitioner alleged that appellate counsel was ineffective for failing to argue that: (1) Petitioner's pre-trial statements should have been suppressed as the fruit of an unlawful arrest; (2) the trial court unduly interfered with Petitioner's testimony; (3) his trial attorney was ineffective for disavowing parts of Petitioner's testimony; and (4) the trial court committed reversible error under People v. O'Rama. ECF No. 51, Ex. Q. The Appellate Division denied the petition and the Court of Appeals denied leave to appeal. ECF No. 51, Ex. T. On July 19, 2022, Petitioner filed an amended habeas petition, which includes the claims in his second writ of error coram nobis as well as the claims from his original petition. ECF No. 50.
DISCUSSION
I. Legal Standards
A. Pro Se Filings
Courts liberally construe pleadings prepared by pro se litigants and hold them “to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). It is appropriate to interpret pro se submissions to raise the strongest arguments that they suggest. Gomez v. Brown, 655 F.Supp.2d 332, 342 (S.D.N.Y. 2009) (explaining that because of the right of self-representation, the court is obligated to make reasonable allowances to protect pro se litigants from “inadvertent forfeiture of important rights because of their lack of legal training” (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983))). Petitioner is currently represented by counsel, who prepared his amended petition and adopted Petitioner's original habeas petition. Accordingly, when reviewing the claims brought in Petitioner's pro se petition, the Court will interpret those submissions to raise the strongest arguments they suggest.
B. Habeas Standard of Review
A state prisoner seeking habeas relief under Section 2254 must show by a preponderance of the evidence that he is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); see Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997). Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the standard of review of a federal habeas corpus petition “depends upon whether the Petitioner's claims have previously been ‘adjudicated on the merits' by a state court.” Spears v. Greiner, 459 F.3d 200, 203 (2d Cir. 2006); see 28 U.S.C. § 2254(d). An “adjudication on the merits” is one that “(1) disposes of the claim ‘on the merits,' and (2) reduces its disposition to judgment.” Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001); accord Bell v. Miller, 500 F.3d 149, 155 (2d Cir. 2007).
Before determining whether the state court's adjudication was on the merits, I first consider whether the Petitioner has cleared all necessary procedural hurdles. As relevant here, Petitioner's habeas claims must be timely and exhausted before bringing them in federal court. The claims must also not be procedurally barred.
II. Timeliness
The Antiterrorism and Effective Death Penalty Act (the “AEDPA”) imposes a one-year period of limitation on an application for a writ of habeas corpus. 28 U.S.C. § 2244(d)(1). Generally, a petitioner must file a petition within one year of the date on which the judgment becomes final. Id. at (A). A petitioner's judgment becomes final 90 days from the date the New York State Court of Appeals issues its final judgment-i.e., after the “period to petition for a writ of certiorari to the United States Supreme Court.” Pratt v. Greiner, 306 F.3d 1190, 1195 n.1 (2d Cir. 2002). Amendments made after the statute of limitations has run must “relate back” to the original pleadings. Ozsusamlar v. United States, No. 02-cr-763 (KMW), 2013 WL 4623648, at *3 (S.D.N.Y. Aug. 29, 2013) (citing Fed.R.Civ.P. 15(c)(1)(B)).
Petitioner's limitations period began to run 90 days after the Court of Appeals denied his application for leave on April 5, 2016. This means the limitation period began on July 4, 2016, and ended on July 4, 2017. Petitioner's initial petition, filed on June 24, 2017, alleged that: (1) the trial court improperly admitted his pre-trial confessions; (2) the trial court erred in denying his motion to substitute counsel; (3) trial counsel was inadequate for failing to move for a trial order of dismissal on the assault count and for asserting a justification defense; and (4) there was insufficient evidence to support a finding of serious physical injury. In his amended petition, filed on July 19, 2022, Petitioner alleged that appellate counsel provided ineffective assistance because he failed to argue that: (5) Petitioner's statements should have been suppressed as the fruit of an unlawful arrest; (6) the trial court unduly interfered with Petitioner's testimony; (7) his trial attorney was ineffective for disavowing parts of his testimony; and (8) the trial court committed reversible error under People v. O'Rama.
Petitioner's amended petition was filed five years after the one-year statute of limitations had run on July 4, 2017. 28 U.S.C. § 2244(d)(1). Thus, Petitioner's claims are timely only “if they have a clear connection to the legal claims in the original petition” or if Petitioner can demonstrate that “extraordinary circumstances warrant equitable tolling.” Gibson v. Artus, 407 Fed.Appx. 517, 519 (2d Cir. 2010). “An amendment to a pleading has a clear connection to the original pleading when ‘the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out . . . in the original pleading.'” Gibson, 407 Fed.Appx. 517 at 519 (citing Fed.R.Civ.P. 15(c)(1)(B)). For a claim in an original and amended petition to arise out of the same conduct, transaction, or occurrence, it is not enough for the claim to arise out of the same “trial, conviction, or sentence.” Mayle v. Felix, 545 U.S. 644, 664 (2005). Instead, the claims in the two petitions must “be tied to a common core of operative facts.” Id. A new claim will not relate back “when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth.” Id. at 650. This standard is “more demanding” than just fair notice. Id. at 655.
“The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2). Because Petitioner did not file his first writ of error coram nobis before July 4, 2017, he is entitled to no statutory tolling.
Petitioner's new claim that appellate counsel was ineffective by not arguing that his confession was the fruit of an unlawful arrest is arguably tied to a common core of facts presented in the original petition. In his amended petition, Petitioner alleges his appellate counsel failed to argue that officers lacked probable cause to arrest Petitioner and thus, ineffectively challenged the court's denial of his motion to suppress. This argument was captured by Petitioner's initial petition, which argued, without citing the Fourth or Fifth Amendment, that the trial court erred in denying his motion to suppress. “Although [this] argument[] presented in the [a]mended [p]etition [is] not identical to those presented in the original [p]etition, the Court finds that they share a common core of operative facts”: the admission of Petitioner's pre-trial statements. Nedd v. Bradt, No. 13-cv-5569 (CLP), 2019 WL 2124889, at *10 (E.D.N.Y. May 15, 2019).
By contrast, the claims related to the judge's questioning of Petitioner during his testimony and her the handling of jury notes are entirely unrelated to the facts presented in the original petition. And, while Petitioner did raise an ineffective assistance of trial counsel argument, the focus of that claim was not on counsel's summation. Accordingly, these amended claims are time-barred unless subject to tolling.
A court may equitably toll the statute of limitations if “extraordinary circumstances prevented” a petitioner from raising claims in a timely fashion, and he “acted with reasonable diligence throughout the period he seeks to toll.” Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000); see Holland v. Florida, 560 U.S. 631, 649 (2010). Alternatively, a demonstration of actual innocence can act as a gateway for time-barred claims. See McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). Petitioner does not argue that any basis for equitable tolling exists, and the Court finds none.
Accordingly, Petitioner's ineffective assistance of appellate counsel claim related to his pre-trial statements should be reviewed on the merits while the remaining three claims in the amended petition should be denied as time-barred.
III. Exhaustion
Before a federal court may review a petition for a writ of habeas corpus, a petitioner must exhaust all state-provided remedies. 28 U.S.C. § 2254(b)(1)(A). See also O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (to exhaust a claim, a petitioner must “invoke [ ] one complete round of the State's established appellate review process” before bringing the same claim in federal court). A claim is deemed exhausted if the petitioner: (1) fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts; and (2) presented his claim to the highest state court that could hear his claim. Baldwin v. Reese, 541 U.S. 27, 29; O'Sullivan, 526 U.S. at 844-48.
It is undisputed that the five remaining habeas claims are exhausted. Petitioner fairly presented his arguments in constitutional terms to the Appellate Division and the New York Court of Appeals in his briefs. See ECF No. 14, Ex. 1 at 19 & Ex. 2 at 42, 52, & 57.
IV. Procedural Default
Even if it is exhausted, “[a] federal habeas court will not review a claim rejected by a state court if the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Beard v. Kindler, 558 U.S. 53, 55 (2009) (internal citation and quotations marks omitted). A defendant whose claim is rejected on appeal in a state court for failure to comply with a state procedural rule may be precluded from raising that claim in a federal habeas corpus petition. Coleman v. Thompson, 501 U.S. 722, 72930 (1991). “[I]n order for federal habeas review to be procedurally barred, a state court must actually have relied on a procedural bar as an independent basis for its disposition of the case, and the state court's reliance on state law must be unambiguous and clear from the face of the opinion.” Galarza v. Keane, 252 F.3d 630, 637 (2d Cir. 2001) (Sotomayor, J.). See also Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000). Courts in this circuit “apply a presumption against finding a state procedural bar and ‘ask not what we think the state court actually might have intended but whether the state court plainly stated its intention.'” Galarza, 252 F.3d at 637 (quoting Jones v. Stinson, 229 F.3d 112, 118 (2d Cir. 2000)). See also DeBerry v. Portuondo, 403 F.3d 57, 64 (2d Cir. 2005); Cox v. Miller, 296 F.3d 89, 100 (2d Cir. 2002) (federal habeas review is available unless there is a “clear[ ] and express[ ] state[ment] that . . . [the court's] rejection of [the petitioner's] federal claims rested on a state-law procedural bar . . . [and][a]bsent a ‘plain statement,' we presume that it did not”). The state procedural rule cannot be “interwoven with” federal law, Coleman, 501 U.S. at 733, and must be “firmly established and regularly followed by the state . . . . ” Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999).
On direct appeal, Petitioner raised a legal sufficiency claim, but also alleged that his trial counsel was ineffective for failing to move for a trial order of dismissal on the assault count. In doing so, Petitioner conceded that he failed to preserve his legal sufficiency claim. To raise a legal sufficiency claim on direct appeal, a party must preserve the claim of error “at the time of such ruling . . . or at any subsequent time when the [trial] court had an opportunity of effectively changing the same.” N.Y. CPL § 470.05(2). Yet, when the Appellate Division considered and rejected Petitioner's legal sufficiency claim on the merits, it did not rely on Petitioner's procedural default as a ground to deny this claim. Service, 126 A.D.3d at 638, 639. Thus, the Court finds no procedural bar to consideration of Petitioner's legal sufficiency claim.
V. Merits
Where a claim has been “adjudicated on the merits” in state court, a federal court on habeas review must determine whether the state court's determination was (1) “contrary to, or involved an unreasonable application of, clearly established Federal Law, as determined by the Supreme Court of the United States,” or (2) “was based on an unreasonable determination of the facts.” 28 U.S.C. §§ 2254(d)(1)-(2); see Johnson v. Williams, 568 U.S. 289, 292 (2013); Spears, 459 F.3d at 203.
A state court decision is “contrary to [the Supreme Court's] clearly established precedents if it applies a rule that contradicts the governing law set forth in” Supreme Court precedent, “or if it confronts a set of facts that is materially indistinguishable from a decision of [the] Court but reaches a different result.” Brown v. Payton, 544 U.S. 133, 141 (2005) (first citing Williams v. Taylor, 529 U.S. 362, 405 (2000); and then citing Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam)). A state court decision constitutes an “unreasonable application” of the Supreme Court's precedent if “the state court applies [that Supreme Court] precedents to the facts in an objectively unreasonable manner.” Id. (first citing Williams, 529 U.S. at 405; and then citing Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam)). Thus, in construing and applying federal law, even erroneous state court decisions that are deemed reasonable will survive habeas review. See Williams, 529 U.S. at 409-13. For federal habeas review, factual determinations made by a state court are presumed correct, and a petitioner bears the burden of rebutting this presumption “by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
The Appellate Division addressed Petitioner's original claims on the merits, see Service, 126 A.D.3d at 638, 639. Petitioner's amended ineffective assistance claim related to his arrest was summarily denied. ECF No. 51, Ex. T. Accordingly, AEDPA's standard of review applies. Zarvela v. Artuz, 364 F.3d 415, 417 (2d Cir. 2004). For Petitioner to receive habeas relief, the Appellate Division's determination must have either been contrary to (or involved an unreasonable application of) clearly established federal law or have been based on an unreasonable determination of the facts.
A. Trial Court's Admission of Petitioner's Confessions
Without providing a rationale, Petitioner alleged in his initial pro se petition that “the trial court improperly admitted [his pre-trial] confessions.” ECF No. 1 at 6. On direct appeal, Petitioner's appellate counsel argued that his confessions should have been suppressed because detectives failed to re-administer Miranda warnings following an eight-to-nine-hour gap in his interrogation. ECF No. 14, Ex. 1 at 59. In his amended petition, Petitioner alleges that appellate counsel was ineffective for failing to argue that his statements should have been suppressed because the detectives lacked probable cause to arrest Petitioner. ECF No. 50 at 46.
To the extent Petitioner argues that the Court of Appeals erred because his pre-trial confessions were the result of an unlawful arrest, federal courts are generally barred from reviewing claims based on the exclusionary rule. In Stone v. Powell, a case brought pursuant to 28 U.S.C. § 2254, the Supreme Court recognized that “[t]he primary justification for the exclusionary rule . . . is the deterrence of police conduct that violates Fourth Amendment rights.” 428 U.S. 465, 486 (1976). Therefore, enforcing the rule at trial and upon direct appeal serves to “discourage law enforcement officials from violating the Fourth Amendment by removing the incentive to disregard it.” Id. at 492-93. But, the Court reasoned, “the additional contribution, if any, of the consideration of search-and-seizure claims of state prisoners on collateral review is small in relation to the costs.” Id. at 493.
Accordingly, the Supreme Court concluded that “the overall educative effect of the exclusionary rule” would not “be appreciably diminished if search-and-seizure claims could not be raised in federal habeas corpus review of state convictions.” Id. at 493. As such, it held that Fourth Amendment exclusionary rule claims are not cognizable in habeas proceedings where the state courts had “provided an opportunity for full and fair litigation” of the claim. Id. at 482.
Generally, a petitioner will have been denied a full and fair opportunity to litigate his Fourth Amendment claims only “(a) if the state has provided no corrective procedures at all to redress the alleged Fourth Amendment violations; or (b) if the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process.” Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992). Additionally, review is barred regardless of the type of evidence the petitioner sought to suppress. See Cardwell v. Taylor, 461 U.S. 571, 572-73 (1983) (per curiam).
The New York courts provided Petitioner with the appropriate corrective procedures to address his alleged Fourth Amendment violation. First, he was afforded a pre-trial suppression hearing and challenged the denial of his suppression motion on direct appeal. These are the exact corrective procedures embodied in N.Y. CPL § 710 that “federal courts have approved . . . for litigating Fourth Amendment claims.” Capellan, 975 F.2d at 70 n.1 (citations omitted).
Accordingly, Petitioner's claim is cognizable only if he can show that there was an unconscionable breakdown in those corrective procedures. To do so, he must show that the state's corrective process was rendered “meaningless because the totality of state procedures allegedly did not provide rational conditions for inquiry into federal law questions.” Capellan, 975 F.2d at 70 (cleaned up).
Petitioner fails to show that there was an “unconscionable breakdown” in New York's corrective processes. At most, his petition raises disagreements with the state courts' conclusions. Such disagreements, however, are insufficient. Instead, an “unconscionable breakdown in the state's process must be one that calls into serious question whether a conviction it obtained pursuant to those fundamental notions of due process that are at the heart of a civilized society.” Cappiello v. Hoke, 698 F.Supp. 1042, 1050 (E.D.N.Y. 1988), affd, 852 F.2d 59 (2d Cir. 1988).
Accordingly, because Petitioner availed himself of New York's corrective processes for addressing his Fourth Amendment claim, and because he has failed to demonstrate or even allege an unconscionable breakdown in those processes, the Court finds that he was afforded a full and fair opportunity to litigate his Fourth Amendment claim. As such, the Court is precluded from reviewing any Fourth Amendment claim under Stone.
To the extent Petitioner argues that the Court of Appeals erred because his pre-trial statements were made involuntarily, the Court may review his claim. The restrictions Stone imposed on federal courts reviewing habeas petitions “do[ ] not extend to a state prisoner's claim that his conviction rests on statements obtained in violation of the safeguards mandated by Miranda v. Arizona.” Winthrow v. Williams, 507 U.S. 680, 683 (1993). Under AEDPA, federal courts are generally required to “give a presumption of correctness to a written factual determination made by a state court of competent jurisdiction.” 28 U.S.C. § 2254(d). In the Miranda context, the presumption of correctness that AEDPA mandates federal courts give to state court decisions includes “subsidiary factual questions” like “the length and circumstances of the interrogation, the defendant's prior experience with the legal process, and familiarity with Miranda warnings.” Miller v. Fenton, 474 U.S. 104, 112-117 (1985). Yet, when it comes to the voluntariness of a confession, federal courts are “not bound by” a state court's finding and are required to “make an independent evaluation of the record.” Id. at 110.
During the suppression hearing, two detectives gave corroborating testimony that they read Petitioner a Miranda warning and that he acknowledged his rights by signing a waiver. Both detectives denied making threats to Petitioner to persuade him to confess. Both detectives acknowledged that when they interrogated Petitioner for a second time nearly eight hours later, they pointed to Petitioner's signed waiver and stated that “the rules still apply.” Petitioner then confessed to shooting Recio. At the hearing, this testimony was subject to cross-examination by Petitioner's counsel. Based on this evidence, the trial court ruled that Petitioner made these statements voluntarily. In his direct appeal, Petitioner argued that the detectives failed to explain or clarify that Petitioner's Miranda rights-and not his waiver-were still in effect when they pointed to the signed Miranda form and told him that the rules still applied. ECF No. 14, Ex. 1 at 31. The Appellate Division affirmed Petitioner's judgment.
The “totality of the circumstances” test governs whether a confession is voluntary. Arizona v. Fulminante, 499 U.S. 279, 285 (1991). A valid Miranda warning and waiver is generally enough to demonstrate that statements were made voluntarily. See Missouri v. Seibert, 542 U.S. 600, 608 (2004) (“maintaining that a statement is involuntary even though given after warnings and voluntary waiver of rights requires unusual stamina, and litigation over voluntariness tends to end with the finding of a valid waiver”). Before his first interrogation, detectives administered Miranda warnings to Petitioner, and he waived his rights orally and by signing a form. This waiver and warning remained valid through Petitioner's second interrogation because Miranda warnings “need be administered only after the person is taken into custody or his freedom has otherwise been significantly restrained.” Oregon v. Elstad, 470 U.S. 298, 309 (1985) (quotations omitted). After police administer Miranda warnings during an initial interrogation, no additional warnings are necessary during a subsequent interrogation of the same subject “unless the circumstances changed so seriously that [the suspect's] answers no longer were voluntary, or unless [the suspect] no longer was making a ‘knowing and intelligent relinquishment or abandonment' of [their] rights.” Wyrick v. Fields, 459 U.S. 42, 47 (1982). Such circumstances do not exist here. See U.S. ex rel. Mahler v. Perez, No. 06-cv-5109 (ARR), 2007 WL 1825403, at *8 (E.D.N.Y. June 21, 2007) (“[I]t was not erroneous for the Brooklyn detectives to rely on [a state investigator's Miranda] warnings, ask Petitioner if she understood them, and then question her without a fresh warning”). During the first and second interrogations, Petitioner remained in the same room, was questioned about the same subject matter, and was reminded that both his waiver and warnings still applied.
Under both the Fourth and Fifth Amendments, Petitioner's claim that the trial court erred in admitting his pre-trial confessions is meritless. Accordingly, the state court did not unreasonably apply clearly established federal law when determining that the admissions were properly admitted. Thus, the Court recommends that Petitioner's petition on this ground be denied.
Even if the confession given to the detectives was erroneously admitted, Petitioner later confessed on video after new Miranda warnings were issued. Thus, any error is harmless. Fry v. Pliler, 551 U.S. 112, 121 (2007).
B. Legal Sufficiency
Petitioner argues that the trial evidence was insufficient to support a finding of serious physical injury beyond a reasonable doubt. From this language, the Court identifies two claims: the sufficiency of the evidence and weight of the evidence. Because Petitioner's claim that the verdict was against the weight of the evidence is based in state law, it is not cognizable on federal habeas review. Douglas v. Portuondo, 232 F.Supp.2d 106, 116 (S.D.N.Y. 2002) (gathering cases).
Petitioner's legal sufficiency claim, however, is cognizable on federal habeas review. See Douglas, 232 F.Supp.2d at 113-14. In reviewing a habeas challenge to the evidentiary sufficiency of a state criminal conviction, the Court must consider “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). A “conviction may be based upon circumstantial evidence and inferences based upon the evidence.” United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993). The Court must draw “all permissible inferences” in the prosecution's favor. Dixon v. Miller, 293 F.3d 74, 81 (2d Cir. 2002). And the state court's determinations regarding witness credibility are presumed to be correct. Shabazz v. Artuz, 336 F.3d 154, 161 (2003). In short, a petitioner “bears a very heavy burden in convincing a federal habeas court to grant a petition on the grounds of insufficient evidence.” Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir. 2002) (internal quotations and citation omitted).
To determine what the prosecution was required to prove at trial, the Court “must look to state law to determine the elements of the crime.” Quartararo v. Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999). Under New York law, a person commits first degree assault when, “[w]ith intent to cause serious physical injury to another person, he causes injury to such person or to a third person by means of a deadly weapon or a dangerous instrument.” N.Y. Penal Law § 120.10. A serious physical injury is an “injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.” N.Y. Penal Law § 10.00.
The evidence at trial was sufficient to show that Petitioner severely injured McCaskill. A medical examiner testified that McCaskill could have died from his gun shot injuries, which included a severed large intestine in two places. McCaskill testified that he had a permanent scar from his gunshot wound and suffered pain for two to three months after his emergency surgery. In light of McCaskill's substantial risk of death, “any rational trier of fact could have found the essential elements of the [first degree assault] beyond a reasonable doubt.” Jackson, 443 U.S. at 319. Thus, Petitioner's legal sufficiency claim should be denied as meritless.
C. Ineffective Assistance of Counsel
Petitioner renews his claim from direct appeal that his trial attorney was ineffective for asserting a justification defense and for failing to move for an order of dismissal on the assault count. He also asserts that his appellate counsel was ineffective for failing to argue that his pretrial statements should have been suppressed.
To establish a claim of ineffective assistance of counsel, a petitioner must show that counsel's assistance fell below an objective standard of reasonableness and that, but for counsel's deficient conduct, there is a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694 (1984). Counsel is “strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690. Habeas review of ineffective assistance claims is “doubly deferential” “to afford both the state court and the defense attorney the benefit of the doubt.” Woods v. Donald, 575 U.S. 312, 316-17 (2015) (cleaned up). The decision not to pursue a defense does not constitute deficient performance where “the lawyer has a reasonable justification for the decision,” Greiner v. Wells, 417 F.3d 305, 319 (2d Cir. 2005) (citation omitted), and “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable,” Strickland, 466 U.S. at 690. “Although [this framework] was formulated in the context of evaluating a claim of ineffective assistance of trial counsel, the same test is used with respect to appellate counsel.” Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994).
The state court summarily denied Petitioner's ineffective assistance of counsel claims. “Where a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief.” Harrington v. Richter, 562 U.S. 86, 98 (2011).
Trial counsel was not ineffective for asserting a justification defense. The record suggests that trial counsel presented a justification defense that hinged on Petitioner's testimony that McCoy, a member of Recio's group, aimed a gun at him. Tr. at 1020:12-1022:10. Only then, did Petitioner allege he accidentally shot Recio as part of an effort to ward off threats from others in the group. After hearing Petitioner's testimony, the trial court stated, that there was “no other supporting evidence” that McCoy pointed a gun at Petitioner. Id. at 1020:24. Even so, Petitioner's counsel was justified in choosing to present a defense that was consistent with his client's testimony and explained how Petitioner could shoot two people, as he confessed at the precinct, without committing a crime. Though trial counsel's strategy ultimately failed, it was still reasonable, and Petitioner's claim should be denied as being without merit. See United States v. DiTommaso, 817 F.2d 201, 215 (2d Cir. 1987).
Trial counsel was also not ineffective for failing to move for an order of dismissal on Petitioner's assault count. As discussed, the evidence supporting the assault count was such that any trier of fact could have found the elements of this crime beyond a reasonable doubt. Competent counsel may choose to forgo filing meritless motions. Thus, the state court's decision finding that trial counsel provided effective assistance of counsel was clearly reasonable. Accordingly, Petitioner's claim is without merit.
Lastly, appellate counsel was not ineffective for failing to argue that his pre-trial statements should have been suppressed. As established, the trial court did not err in admitting these statements. Petitioner's claim fails because appellate counsel was reasonable in not raising an argument that lacked merit and was weaker than others presented to the state court. See Aparicio v. Artuz, 269 F.3d 78, 99 (2d Cir. 2001) (“The failure to include a meritless argument does not fall outside the wide range of professionally competent assistance to which Petitioner was entitled”) (quotations omitted); Mayo, 13 F.3d at 533 (2d Cir. 1994) (citing Fagan v. Washington, 942 F.2d 1155, 1157 (7th Cir.1991) (“His lawyer failed to raise either claim, instead raising weaker claims .... No tactical reason-no reason other than oversight or incompetence-has been or can be assigned for the lawyer's failure to raise the only substantial claims that [defendant] had.”)). Thus, this claim should also be denied as being without merit.
D. Trial Court's Failure to Grant his Motion to Substitute Counsel
Finally, Petitioner claims the trial court erred when it denied his motion to substitute counsel on the eve of trial. “[W]hile the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.” Wheat v. United States, 486 U.S. 153, 159 (1988). Thus, a defendant's right to counsel of his choice is not absolute. United States v. Brumer, 528 F.3d 157, 160 (2d Cir. 2008) (per curiam) (quoting United States v. Paone, 782 F.2d 386, 392 (2d Cir. 1986)). Generally, indigent defendants lack veto over who is appointed to defend them, Caplin & Drysdale v. United States, 491 U.S. 617, 624 (1989), and a court is not constitutionally required to appoint new counsel during trial absent good cause, United States v. Calabro, 467 F.2d 973, 986 (2d Cir. 1972). Good cause can include “a conflict of interest, a complete breakdown in communication or an irreconcilable conflict which leads to an apparently unjust verdict.” Felder v. Goord, 564 F.Supp.2d 201, 220 (S.D.N.Y. 2008). A Sixth Amendment violation can occur “if a court refuses to inquire into a seemingly substantial complaint about counsel when he has no reason to suspect the bona fides of the defendant, or if on discovering justifiable dissatisfaction a court refuses to replace the attorney.” Calabro, 467 F.2d at 986.
The trial court's denial of Petitioner's motion was not an unreasonable application of federal law. Petitioner sought new counsel because he did not “see eye to eye” with his lawyer, appeared to disagree with his strategy to admit that he killed Recio, and expressed disappointment that his lawyer had only met with him twice while detained at Rikers Island. Tr. at 2:22-9:8. These common complaints do not give rise to a conflict of interest. Nelson v. Brown, No. 07-cv-3568 (JSR)(HBP), 2009 WL 6340020, at *13 (July 1, 2009), report and recommendation adopted, 2010 WL 1459187 (S.D.N.Y. Apr. 12, 2010) (citing United States v. Moree, 220 F.3d 65, 71 (2d Cir. 2000)). Moreover, “[t]actical decisions such as trial strategies. . . are left to the discretion of appointed counsel.” Soltero v. Kuhlman, No. 99-cv-10765 (GEL), 2000 WL 1781657, at *4 (S.D.N.Y. Dec. 4, 2000). Given Petitioner's pre-trial confession and the numerous eyewitnesses set to testify that Petitioner shot Recio, counsel's strategy of admitting Petitioner killed Recio was reasonable and did not diminish his overall representation.
While Petitioner's complaint indicated a breakdown in trust, he failed “to afford the court with legitimate reasons for the lack of confidence.” McKee v. Harris, 649 F.2d 927, 932 (2d Cir. 1981). To this end, the government acknowledged defense counsel's zealous representation and, as part of its decision to deny Petitioner's motion, the trial court acknowledged counsel's hard work. Id. at 3:21-22. Absent a seemingly substantial complaint, the trial court had no obligation to inquire further into the reasons for Petitioner's dissatisfaction. McKee, 649 F.2d at 933. “This is particularly so on the eve of trial.” Soltero, 2000 WL 1781657, at *4. In light of clearly established federal law, the trial court's denial of Petitioner's motion to substitute counsel was reasonable and habeas relief is not warranted.
For similar reasons, to the extent the Court were to consider the merits of Petitioner's time-barred claim that appellate counsel was ineffective by not challenging the substitution denial, the Court should find that counsel's strategy not to pursue a meritless appellate issue was reasonable.
CONCLUSION
I recommend that the petition for a writ of habeas corpus be DENIED. Because the petition makes no substantial showing of a denial of a constitutional right, a certificate of appealability should not issue. See 28 U.S.C. § 2253. I further recommend that the Court certify, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this order would not be taken in good faith and therefore in forma pauperis status should be denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from the service of this Report and Recommendation to file written objections under 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). These objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Lewis J. Liman at the United States Courthouse, 500 Pearl, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636 (b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Liman. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed. R. Civl. P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).