Opinion
15 Civ. 9938 (VB) (AEK)
03-23-2021
Carlos Perez Olivo, Petitioner, v. Superintendent H. Graham, Respondent.
REPORT AND RECOMMENDATION
ANDREW E. KRAUSE, United States Magistrate Judge
TO: THE HONORABLE VINCENT L. BRICCETTI, U.S.D.J.
On February 4, 2016, the Honorable Vincent L. Briccetti referred this matter to the Honorable Lisa Margaret Smith, U.S.M.J. ECF No. 3. On October 15, 2020, this matter was reassigned to the undersigned.
Currently before the Court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by pro se Petitioner Carlos Perez Olivo (“Petitioner”), challenging his judgment of conviction for the crimes of murder in the second degree and criminal possession of a weapon in the second degree. ECF No. 1 (“Petition”) ¶ 5; ECF No. 8 (“Aff. in Opp'n”) at 1. The Petition sets forth three purported grounds for habeas relief: (1) the conviction was obtained without due process of law because the case was not proved beyond a reasonable doubt and the evidence of guilt was not legally sufficient; (2) Petitioner was deprived of a fair trial due to prosecutorial misconduct; and (3) the trial court's evidentiary rulings were erroneous and deprived Petitioner of his right to a fair trial and to present a meaningful defense. Petition ¶ 12.
For the reasons that follow, I respectfully recommend that the Petition be DENIED in its entirety.
BACKGROUND
The following is a brief summary of facts relevant to Petitioner's state court convictions. Additional facts are discussed elsewhere in this Report and Recommendation as needed for the disposition of Petitioner's claims. A detailed recitation of facts is set forth at pages 2-49 of Respondent's memorandum of law in opposition to the Petition. See ECF No. 8-1 & 8-2 (“Mem. of Law in Opp'n”). Based on the Court's own careful review of the voluminous transcripts from Petitioner's underlying criminal case, the Court finds that the Respondent's 48-page summary accurately recounts the trial testimony.
On November 18, 2006, Petitioner's wife, Peggy Perez-Olivo, was shot in the head and killed, and Petitioner was shot in the abdomen, while they were driving home to Chappaqua, New York, from a night out in New York City. Petitioner claims that after he and his wife exited the Taconic Parkway and were driving north on Route 100, their car was cut off by another car and forced to stop, at which point an unidentified man exited the other car and entered their car through the rear driver's side door. According to Petitioner, the assailant pointed a gun at him and his wife from the rear seat, and Petitioner reached back and tried to wrestle the gun from the assailant. Petitioner claims that in the course of the struggle over the gun, both he and his wife were shot. Thereafter, the assailant fled Petitioner's car, returned to the other car, and the other car drove off. Petitioner claims that his wife was asleep in the car at the time of the incident and did not wake up at all during the course of these events.
According to the prosecution, Petitioner pulled his car over along Route 100, shot and killed his wife, and then shot himself in an attempt to cover up his crime. The prosecution put forth an extensive amount of forensic evidence-including medical evidence, DNA evidence, ballistics and gunpowder pattern and residue evidence, and accident reconstruction evidence-to prove its theory of the crime and discredit Petitioner's account. The prosecution also put forth substantial evidence regarding motive, beginning with the fact that Petitioner, a one-time criminal defense lawyer, had been disbarred shortly before his wife's death, see Matter of Perez-Olivo, 33 A.D.3d 141 (1st Dep't 2006) (Petitioner was disbarred on August 3, 2006), and therefore lost his ability to earn income. In addition, Petitioner was the beneficiary of multiple life insurance policies for which his wife was the insured or which would otherwise result in payment to Petitioner upon his wife's death, most of which had either been taken out or had their coverage increased in the midst of Petitioner's disbarment proceedings. Furthermore, the prosecution offered evidence that Petitioner was not in a happy marriage and had been involved in a long-term extramarital affair with a woman named Ileana Poole.
Petitioner did not testify at trial. His defense included, among other things, testimony from his children and two of his sisters-in-law that Petitioner and his wife were happily married, and testimony from two experts regarding certain forensic evidence, which attempted to undermine the prosecution's theory that Petitioner shot his wife, shot himself, and fired other shots in an effort to cover up his crime.
II. Procedural History
In an indictment filed on December 20, 2007, Petitioner was charged with murder in the second degree, see N.Y. Penal Law § 125.25(1), criminal possession of a weapon in the second degree, see N.Y. Penal Law § 265.03(3), and criminal possession of a weapon in the fourth degree, see N.Y. Penal Law § 265.01(1). Aff. in Opp'n at 22; see Resp. Ex. 1. In advance of Petitioner's criminal trial, the prosecution filed a so-called Ventimiglia / Sandoval Request, see Resp. Ex. 3, and on September 3, 4, and 8, 2008, pre-trial hearings were held to address the Molineux and Sandoval motions set forth therein. See Hearing Transcript (“H.”) at 10-46, 5670, 105-08.
Citations to “Resp. Ex. ” refer to exhibits submitted to the Court by Respondent that comprise the state court record from Petitioner's criminal case. See ECF No. 8.
Sandoval, Molineux, and Ventimiglia each refer to the names of New York Court of Appeals cases, and discussion of “Sandoval/Molineux/Ventimiglia rulings” is “a short-hand reference to the New York procedure for determining in advance whether evidence of prior crimes is admissible for impeachment purposes in the event the defendant testifies (Sandoval), or prior crimes/uncharged criminal conduct is probative for the purpose of showing, e.g., (1) motive, (2) intent, (3) absence of mistake or accident, (4) common scheme or plan, or (5) identity, and whether that probative value outweighs the prejudicial effect (Ventimiglia/Molineux)” Brown v. Walsh, No. 9:06-cv-01130-JKS, 2009 WL 3165712, at *1 n.4 (N.D.N.Y. Sept. 28, 2009) (citing People v. Sandoval, 34 N.Y.2d 371 (1974); People v. Ventimiglia, 52 N.Y.2d 350 (1981); People v. Molineux, 168 N.Y. 264 (1901)). Molineux and Ventimiglia are often used interchangeably to describe pre-trial hearings held to determine the admissibility of prior crimes or bad acts evidence. See Liggins v. Burge, 689 F.Supp.2d 640, 644 n.2 (S.D.N.Y. 2010) (“New York v. Molineux permits a defendant's prior criminal and bad acts to be admitted as direct evidence in the prosecution's case under certain circumstances .... Hearings addressing the admission of such evidence are alternatively referred to as Ventimiglia hearings.”) (citation omitted).
The trial in Petitioner's criminal case began on September 12, 2008. Aff. in Opp'n at 23. On October 4, 2008, the jury rendered its verdict, finding Petitioner guilty of murder in the second degree and criminal possession of a weapon in the second degree. Trial Transcript (“Tr.”) at 2266. On December 2, 2008, the trial judge sentenced Petitioner to an indeterminate term of imprisonment of 25 years to life for murder in the second degree, and a concurrent determinate term of imprisonment of 15 years, followed by 5 years of post-release supervision, for criminal possession of a weapon in the second degree. Sentencing Transcript at 1, 14-15.
The charge of criminal possession of a weapon in the fourth degree was dismissed at the close of the prosecution's case. Tr. at 1691.
In December 2013, Petitioner, proceeding through counsel, directly appealed his judgment of conviction. Resp. Ex. 5 (“Appellant's Brief”). Petitioner raised three claims on direct appeal: (1) the evidence adduced at trial was legally insufficient to establish guilt beyond a reasonable doubt, and the verdict was against the weight of the evidence; (2) the trial court's evidentiary rulings were so improper as to deny Petitioner his rights to present a meaningful defense and to a fair trial; and (3) the prosecutor's summation was improper. Id. Respondent filed an opposition to Petitioner's counseled brief, Resp. Ex. 6, and Petitioner's counsel filed a reply brief, Resp. Ex. 7. Thereafter, Petitioner filed a pro se supplemental brief on direct appeal, which was served on Respondent on June 25, 2014. Resp. Ex. 8 (“Pro Se Brief'); see Aff. in Opp'n at 25. Petitioner raised three claims in his pro se supplemental brief: (1) the evidence adduced at trial was legally insufficient to establish guilt beyond a reasonable doubt, and the verdict was against the weight of the evidence; (2) the Ventimiglia and Sandoval rulings were violated by the prosecution; and (3) the prosecution engaged in prosecutorial misconduct and misled the court and the jury for the purpose and effect of preventing Petitioner from receiving a fair trial. Pro Se Brief. Respondent filed an opposition to Petitioner's pro se supplemental brief as well. Resp. Ex. 9.
Petitioner included a fourth section in his Pro Se Brief entitled “Respondent's Brief, ” which was intended to be a response to Respondent's opposition brief.
The Appellate Division, Second Department affirmed Petitioner's conviction on April 22, 2015. People v. Perez-Olivo, 127 A.D.3d 1110 (2d Dep't 2015). Petitioner's counsel filed an application for leave to appeal to the New York Court of Appeals, Resp. Ex. 11, and Petitioner filed a pro se application for leave to appeal, Resp. Ex. 12; see Aff. in Opp'n at 27. Respondent filed a letter in opposition to the application for leave to appeal. Resp. Ex. 13. The New York Court of Appeals denied leave to appeal on July 13, 2015. People v. Perez-Olivo, 25 N.Y.3d 1205 (2015); Resp. Ex. 14.
Although Respondent states that a copy of the Appellate Division decision was filed as Respondent's Exhibit 10, that exhibit is actually a copy of the Appellate Division's order enlarging Petitioner's time to serve and file a reply brief in support of his direct appeal. See ECF No. 8-12.
Petitioner's pro se application is undated and does not state on its face that it is addressed to the New York Court of Appeals. See Resp. Ex. 12.
Pursuant to the prison mailbox rule, see Noble v. Kelly, 246 F.3d 93, 97 (2d Cir. 2001) (habeas petition is deemed filed as of the date it was given to prison officials for mailing), Petitioner filed the instant Petition on December 15, 2015. See Petition at 8 (ECF No. 1-1 at 2) (under the statement that the Petition “was placed in the prison mailing system on . . ., ” Petitioner signed the Petition and dated it “12-15-2015”). Respondent filed opposition papers on May 30, 2016. ECF No. 8. Petitioner's reply papers were docketed on June 29, 2016. ECF No. 9.
DISCUSSION
I. Standard of Review
“Habeas review is an extraordinary remedy.” Bousley v. United States, 523 U.S. 614, 621 (1998) (citing Reed v. Farley, 512 U.S. 339, 354 (1994)). To be granted a writ of habeas corpus from a federal district court, a petitioner must fully and carefully comply with the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254. Before a federal district court may review the merits of a state criminal judgment in a habeas corpus action, the court must first determine whether the petitioner has complied with the procedural requirements set forth in 28 U.S.C. §§ 2244 and 2254. If a petitioner has met these threshold requirements, a federal district court may hear “an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court” only if the petitioner “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The court must then determine the appropriate standard of review applicable to the petitioner's claim(s) in accordance with 28 U.S.C. § 2254(d).
Generally, a state prisoner has one year from the date his or her conviction becomes final to file a habeas petition in federal court. 28 U.S.C. § 2244(d)(1). This limitations period ordinarily begins to run on “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). The limitations period is tolled while “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending ....” 28 U.S.C. § 2244(d)(2). The limitations period may also be equitably tolled if a petitioner can show that “extraordinary circumstances prevented him [or her] from filing his [or her] petition on time, ” and the petitioner “acted with reasonable diligence throughout the period he [or she] seeks to toll.” Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). There is no dispute here that the Petition was timely filed within the limitations period set forth in 28 U.S.C. § 2244(d)(1).
Under AEDPA, all state court remedies must be exhausted before a federal court may consider a state prisoner's petition for a writ of habeas corpus. 28 U.S.C. § 2254(b)(1)(A); see also Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014). In the interests of comity and expeditious federal review, “[s]tates should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights.” See Coleman v. Thompson, 501 U.S. 722, 731 (1991); see also Daye v. Attorney Gen. of the State of New York, 696 F.2d 186, 190-91 (2d Cir. 1982).
Even where a timely and exhausted habeas claim is raised, comity and federalism demand that a federal court abstain from its review when the last-reasoned state court opinion to address the claim relied upon an “adequate and independent finding of a procedural default” to deny it. Harris v. Reed, 489 U.S. 255, 262 (1989); see also Coleman, 501 U.S. at 730; Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 126 (2d Cir. 1995). A state court decision is “independent” when it “fairly appears” to rest primarily on state law. Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir. 2006) (citing Coleman, 501 U.S. at 740). A decision is “adequate” if it is “‘firmly established and regularly followed' by the state in question.” Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999) (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)).
Provided a claim meets all procedural requirements, the federal court must apply AEDPA's deferential standard of review when a state court has decided a claim on the merits. See Torres v. Berbary, 340 F.3d 63, 68 (2d Cir. 2003). Under AEDPA,
[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d).
A state court decision is “contrary to” clearly established federal law “if ‘the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.'” Torres, 340 F.3d at 68 (quoting Williams v. Taylor, 529 U.S. 362, 41213 (2000)). “[A]n ‘unreasonable application' of ‘clearly established' Supreme Court precedent occurs when a state court ‘identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.'” Id. (quoting Williams, 529 U.S. at 413). While
it is clear that the question is whether the state court's application of clearly established federal law was objectively unreasonable, the precise method for distinguishing objectively unreasonable decisions from merely erroneous ones is less clear. However, it is well-established in [the Second Circuit] that the objectively unreasonable standard of § 2254(d)(1) means that petitioner must identify some increment of incorrectness beyond error in order to obtain habeas relief.Id. at 68-69 (internal quotation marks and citations omitted).
Under the second prong of § 2254(d), the factual findings of state courts are presumed to be correct. Nelson v. Walker, 121 F.3d 828, 833 (2d Cir. 1997). The petitioner must rebut this presumption by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
II. Petitioner's Claims for Habeas Relief
A. Legal Sufficiency of the Evidence
Petitioner asserts that “the conviction was obtained without due process of law, in that the case was not proved beyond a reasonable doubt. In this circumstantial evidence case, the parts from which the controlling inferences were drawn are presumed based on conjecture, not on legally sufficient evidence.” Petition ¶ 12 (Ground One). Petitioner challenges essentially all of the evidence presented by the prosecution at trial. Both the Petition and the Pro Se Brief, which is incorporated by reference into the Petition, see Petition at 4-22, discuss at length what Petitioner considers to be deficiencies in the prosecution's evidence concerning the gun used in the murder, i.e., the means by which Petitioner's wife was killed; the prosecution's evidence regarding the manner in which the murder occurred, including the forensic evidence; and the prosecution's evidence concerning Petitioner's finances and the state of Petitioner's marriage, i.e., the motives for the murder. See Petition at 4-1 - 4-22; Pro Se Brief at 8-38; see also ECF. No. 9 (Reply Brief).
The Petition does not include the claim-previously advanced on direct appeal-that the verdict was against the weight of the evidence.
Petitioner's reply brief only addresses his claim of legal insufficiency of the evidence, and relies on the information set forth in the Petition and the Pro Se Brief regarding his second and third purported grounds for habeas relief. See Reply Brief at 12.
“The evidence is sufficient to support a conviction whenever, ‘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.'” Parker v. Matthews, 567 U.S. 37, 43 (2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original)). Juries have “broad discretion in deciding what inferences to draw from the evidence presented at trial, requiring only that jurors draw reasonable inferences from basic facts to ultimate facts, . . . and on habeas review a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court.” Santone v. Fischer, 689 F.3d 138, 148 (2d Cir. 2012) (citations, internal quotation marks, and italics omitted). Further, “a state-court decision rejecting a sufficiency challenge may not be overturned on federal habeas unless the decision was objectively unreasonable.” Matthews, 567 U.S. at 43 (internal quotation marks and citation omitted). Put differently, a habeas petitioner must overcome “this twice-deferential standard” to prevail on a sufficiency of the evidence challenge. Id.; see also Santone, 689 F.3d at148 (“When a federal habeas petition challenges the sufficiency of the evidence to support a state-court conviction, AEDPA establishes a standard that is ‘twice-deferential.'”) (quoting Matthews, 567 U.S. at 43). Here, the Appellate Division rejected Petitioner's challenge to the legal sufficiency of the evidence supporting his conviction. See Perez-Olivo, 127 A.D.3d at 1110 (“Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 N.Y.2d 620, 621 [1983]), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.”). Accordingly, the “twice deferential” standard applies to this Court's review of Petitioner's challenge to the legal sufficiency of the evidence supporting his conviction, and the Appellate Division's decision may not be overturned unless it was objectively unreasonable.
“A federal habeas court reviewing an insufficient evidence claim must look to state law to determine the elements of the crime.” Dzebolo v. Perez, No. 07 Civ. 3421 (ER) (GAY), 2012 WL 4763090, at *6 (S.D.N.Y. Jan. 12, 2012) (citing Quartararo v. Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999)), adopted by 2013 WL 81335 (S.D.N.Y. Jan. 7, 2013). Pursuant to New York Penal Law § 125.25(1), a person is guilty of murder in the second degree when, “[w]ith intent to cause the death of another person, he [or she] causes the death of such person or of a third person.” “A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his [or her] conscious objective is to cause such result or to engage in such conduct.” New York Penal Law § 15.05(1). Pursuant to New York Penal Law § 265.03(3), a person is guilty of criminal possession of a weapon in the second degree when “such person possesses any loaded firearm, ” except “if such possession takes place in such person's home or place of business.”
In accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) and Local Rule 7.2 of the Local Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York, copies of this case and other cases that are unpublished or only available by electronic database shall be simultaneously delivered to pro se Petitioner along with this Report and Recommendation.
Upon a careful review of the trial record, the undersigned concludes that it was objectively reasonable for the Appellate Division to have determined that the evidence presented at trial was legally sufficient to prove all of the elements necessary to support Petitioner's convictions. First, the evidence was sufficient for the jury to reasonably infer that the gun that Marc Gazzola had seen in Petitioner's rental house in June 2006, which belonged to Petitioner, was the same gun that had been used to kill Petitioner's wife. Among other things, Mr. Gazzola, a gun collector, had an understanding of different types of firearms, including the gun at issue in this matter, and was able to recognize distinctive markings on the gun when he was shown the weapon during his trial testimony. While the Petition offers various arguments for why Mr. Gazzola's testimony should have been disregarded, these points were raised by Petitioner's defense counsel through his cross-examination of Mr. Gazzola and as part of his closing argument. Nevertheless, the jury appears to have credited the testimony of Mr. Gazzola, and a complete review of the trial record makes clear that it was entirely reasonable for it to have done so.
Second, there was sufficient evidence from which the jury could reasonably infer that it was Petitioner who fired the fatal shot into his wife's head at extremely close range after pulling over the car along a dark stretch of Route 100, and to reasonably reject the alternative suggestion that the fatal shot occurred in the heat of a struggle between Petitioner and an unknown assailant inside Petitioner's car while Petitioner's wife remained asleep. These inferences are reasonably supported by the extensive array of forensic evidence offered by the prosecution, including expert testimony from: a forensic pathologist; a forensic scientist specializing in DNA analysis; a forensic scientist specializing in gunshot residue and pattern analysis and bullet trajectory analysis; a forensic scientist specializing in forensic crime scene reconstruction and trace analysis; a forensic scientist specializing in the fields of trace evidence, gunshot residue detection and analysis, and gunshot residue pattern analysis; another forensic scientist specializing in the fields of trace evidence and gunshot residue detection and analysis; a law enforcement witness recognized as an expert in the fields of ballistics, bullet trajectory analysis, microscopic analysis, and gunshot residue pattern analysis; and a law enforcement witness recognized as an expert in the field of ballistics. At trial, Petitioner's counsel offered testimony from expert witnesses in an effort to refute the prosecution's presentation, but it was reasonable for the jury to credit the prosecution's evidence in support of the conclusions that Petitioner shot his wife and then fired the gun again multiple times, including inflicting a superficial wound upon himself, in order to make it appear as if he and his wife had been the victims of an attack. The jury's inferences were also supported by testimony and argument that cast doubt on the credibility of Petitioner's account of the attack. It was not unreasonable for the jury to refuse to accept that Petitioner neither took any action to thwart the attacker's entry into his car nor woke his wife to forewarn her; that neither Petitioner nor the attacker ever uttered a word; and that in the heat of the physical struggle, as he allegedly climbed between the front seats to engage with the alleged assailant in the rear of the vehicle, Petitioner somehow never bumped into his wife, and his wife never moved or said a word but instead remained asleep throughout the course of these events.
Third, the evidence was sufficient for the jury to reasonably infer that Petitioner was in financial distress due to his disbarment and had recently taken out and/or increased the coverage of life insurance policies for which he would be the beneficiary upon his wife's death. It was reasonable for the jury to infer from this that Petitioner had a financial motive to kill his wife and thus had intended to kill her. Additionally, it was reasonable for the jury to conclude that the evidence of Petitioner's extramarital affair negated Petitioner's claim that he was in a happy marriage. Finally, from all of this same evidence, it was reasonable for the jury to infer that Petitioner possessed a loaded firearm on the night in question.
To the extent that Petitioner takes issue with the evidence cited by the prosecution as supporting his conviction and the inferences to be drawn from the trial evidence as a whole, compare, e.g., Mem. of Law in Opp'n at 50-55 with, e.g., Petition at 4-1 - 4-22, his contrary view of the evidence presented speaks not to its legal sufficiency but rather to the weight it should be given-an issue that is not cognizable on habeas review. See Chance v. Keyser, No. 14 Civ. 8928 (CS) (LMS), 2018 WL 1746993, at *12 (S.D.N.Y. Mar. 10, 2018) (“A federal habeas court cannot address weight of the evidence claims because a challenge to a verdict based on the weight of the evidence is different from one based on the sufficiency of the evidence. Specifically, the weight of the evidence argument is a pure state law claim whereas a legal sufficiency claim is based on federal due process principles.”) (internal quotation marks and citation omitted).
Viewing the evidence in the light most favorable to the prosecution, any rational juror could have determined that there was legally sufficient evidence that Petitioner was guilty of murder in the second degree and criminal possession of a weapon in the second degree. Matthews, 567 U.S. 43. Thus, it was objectively reasonable for the Appellate Division to reject Petitioner's challenge to the legal sufficiency of the evidence supporting his conviction, and its holding was neither contrary to, nor an unreasonable application of, clearly established federal law. Accordingly, Petitioner is not entitled to habeas relief on this ground.
B. Prosecutorial Misconduct
In the Petition, Petitioner asserts claims of prosecutorial misconduct based both on statements made by the prosecutor during summation and on the prosecution's eliciting of certain witness testimony during trial in alleged contravention of the trial judge's pre-trial rulings.
Petitioner's counseled brief on direct appeal asserted that the prosecutor's summation was improper and cited four specific alleged improprieties: (1) the prosecutor labeled Petitioner a liar when he “repeatedly told the jury that [Petitioner] had engaged in a deception and referred to [Petitioner's] account as a ‘story'”; (2) the prosecutor erroneously told the jury that when Ileana Poole returned to Georgia, Petitioner initiated contact with her, although Poole had testified that she was “not sure who called first”; (3) the prosecutor improperly cited to Petitioner's failure to cradle his wife after the shooting as demonstrating the state of their marriage, even though there was no evidence in the record to support this statement; and (4) the prosecutor “put his position and reputation behind his assertion that [Petitioner] had committed the murder, ” providing his opinion rather than arguing the evidence. See Appellant's Brief at 96-97. Petitioner's Pro Se Brief expounded upon this claim of prosecutorial misconduct, citing other purported improprieties with the summation, including arguing how certain statements made during summation supposedly misstated the trial testimony. See Pro Se Brief at 40-55.
In rejecting these arguments on direct appeal, the Appellate Division stated that “[c]ontrary to the defendant's contention, the prosecutor's summation did not deprive the defendant of a fair trial.” Perez-Olivo, 127 A.D.3d at 1111.
In the Petition, Petitioner claims that he was deprived of his right to a fair trial by prosecutorial misconduct consisting of “repeated reference to matters not in evidence, speculation, unfair statements, misleading statements and vouching for the truthfulness of [the prosecutor's] witnesses with the purpose of prejudicing Petitioner.” Petition at 5-1. More specifically, Petitioner contends that the prosecution “vouche[d] for the truthfulness of its expert witnesses by saying they spoke with authority of their offices . . . but the defense experts did not, ” id.; called Petitioner a “Hit Man” who took a “Kill Shot” and an “Ambush Shot, ” id.; said that Petitioner had an affair with “a woman 23 years his [j]unior, barely older th[a]n . . . his oldest son, ” id.; referred to Petitioner's statements and actions as “a pattern of deception” and “stories, ” while referring to the prosecution's witnesses as credible and having no motive to fabricate their testimony, id.; referred to certain portions of Petitioner's insurance deposition but omitted parts of the deposition that Petitioner contends were beneficial to him, including his claim that he had income from a business venture in Venezuela, id. at 5-1 - 5-2; and stated that Petitioner did not see his wife in the hospital, which was contrary to the testimony of Petitioner's daughter that Petitioner was “crying hysterically, calling [the victim's] name over and over again, ” id. at 5-2. Petitioner also incorporates by reference the lengthy discussion of this claim in his Pro Se Brief, which is attached to the Petition. See Petition at 5-5 (“These are but a brief discussion of some of the numerous instances a [sic] prosecutorial misconduct described in detail in Petitioner's Supplemental Brief.”).
Other than the claim that the prosecutor allegedly improperly stated that Petitioner had engaged in deception and told stories, the Petition makes no mention of, and thus does not raise, the other elements of the prosecutorial misconduct claim raised by Petitioner's counsel on direct appeal. Specifically, the Petition does not assert anything regarding the prosecutor's allegedly erroneous statement regarding Petitioner's initiation of contact with Ileana Poole when she returned to Georgia; the prosecutor's allegedly improper discussion of Petitioner's failure to cradle his wife after the shooting; and the prosecutor allegedly “put[ting] his position and reputation behind his assertion that [Petitioner] had committed the murder.” Appellant's Brief at 96-97. These arguments were not included in the Pro Se Brief which was incorporated by reference in the Petition, and thus have not been presented to this Court as part of the Petition. The Court therefore deems these specific points abandoned for purposes of federal habeas review. See Clark v. Capra, 14 Civ. 2507 (VB) (LMS), 2017 WL 4685298, at *11 n.7 (S.D.N.Y. June 22, 2017) (when the petitioner, in his habeas petition, did not renew aspects of the ineffective assistance of counsel claim raised in his § 440.10 motion, the court “deem[ed] them abandoned for purposes of habeas review”), adopted by 2017 WL 4685104 (S.D.N.Y. Oct. 17, 2017).
When a court is faced with a habeas claim of prosecutorial misconduct based on statements made during summation, “the relevant question . . . is ‘whether the prosecutors' comments so infected the trial with unfairness as to make the resulting conviction a denial of due process.'” Jackson, 763 F.3d at 144 (quoting Darden v. Wainwright, 477 U.S. 168, 180 (1986) (citation omitted)). “The habeas court must consider the record as a whole when making this determination, because even a prosecutor's inappropriate or erroneous comments or conduct may not be sufficient to undermine the fairness of the proceedings when viewed in context.” Id. at 146. “Inappropriate prosecutorial comments, standing alone, would not justify a reviewing court to reverse a criminal conviction obtained in an otherwise fair proceeding.” U.S. v. Young, 470 U.S. 1, 11 (1985). Rather, “the remarks must be examined within the context of the trial to determine whether the prosecutor's behavior amounted to prejudicial error. In other words, the Court must consider the probable effect the prosecutor's response would have on the jury's ability to judge the evidence fairly. In this context, defense counsel's conduct, as well as the nature of the prosecutor's response, is relevant.” Id. at 12. “Thus the import of the evaluation has been that if the prosecutor's remarks were ‘invited,' and did no more than respond substantially in order to ‘right the scale,' such comments would not warrant reversing a conviction.” Id. at 12-13. “When reviewing such [prosecutorial misconduct] claims under the ‘unreasonable application prong' of § 2254(d)(1), the habeas court must keep in mind that this standard is a ‘very general one' that affords courts ‘leeway in reaching outcomes in case-by-case determinations.'” Jackson, 763 F.3d at 146 (quoting Matthews, 567 U.S. at 48 (quotation marks and ellipses omitted)).
Overall, the challenged statements of the prosecutor here were either fair responses to defense counsel's summation, acceptable forms of vigorous advocacy, fair comments on the evidence, or reasonable inferences from the evidence. The prosecutor's statements that Petitioner had engaged in “deception” and that Petitioner's account of events was a “story, ” e.g., Tr. at 2131, 2134, 2135, were directly and appropriately responsive to the defense summation, in which counsel described the prosecution's theory of the case as “pure fiction” and a “fairy tale.” Tr. at 2055. Petitioner also took issue with the fact that the prosecutor referred to his statements and acts “as a pattern of deception, ” Pro Se Brief at 45, while at the same time suggesting during summation that Marc and Gian Franco Gazzola had to no reason to lie, Tr. at 2136 (“What, if any, motive did they have to fabricate that testimony?”). But these remarks are not akin to vouching for a witness's credibility, and therefore do not constitute prosecutorial misconduct. See Davis v. Poole, 767 F.Supp.2d 409, 421 (W.D.N.Y. 2011) (“Under New York law, a comment that a witness has no motive to lie does not constitute vouching for the witness's credibility....Thus, any objection likely would have been overruled. Moreover, the argument does not constitute reversible misconduct.”) (internal quotation marks and citations omitted).
The prosecutor's references to Petitioner as a “hit man” who took an “executioner shot, ” an “ambush shot, ” Tr. at 2133, were no more than dramatic or evocative words that do not rise to the level of prejudicial misconduct. “The Second Circuit has long held that ‘[a] prosecutor is not precluded from vigorous advocacy, or the use of colorful adjectives, in summation.'” Portes v. Capra, 420 F.Supp.3d 49, 58 (E.D.N.Y. 2018) (quoting U.S. v. Rivera, 971 F.2d 876, 884 (2d Cir. 1992) (holding that prosecution's characterization of defense theory of self-defense as “absurd” did not rise to level of prosecutorial misconduct and noting that the Second Circuit has found that a prosecutor's use of words and phrases such as “fairy tale, ” “ridiculous, ” “red herring, ” “hog wash, ” and “smoke screen” “do not rise to the requisite level of severity that warrants reversal”). The prosecutor's comment that Petitioner had an affair with a woman not much older than one of his sons, Tr. at 2153, was simply a fair comment on the evidence, as was the statement regarding the absence of any evidence that Petitioner saw his wife in the hospital, Tr. at 2201 (“Did you ever hear that Mr. Perez-Olivo was inside Peggy's room?”). Such statements do not constitute misconduct. See, e.g., Espada v. Lee, No. 13 Civ. 8408 (LGS) (SN), 2016 WL 6811628, at *8 (S.D.N.Y. Jan. 12, 2016) (“[T]he prosecution is permitted to make fair comment on the evidence at trial.”) (internal quotation marks and citation omitted), adopted by 2016 WL 6810858 (S.D.N.Y. Nov. 16, 2016).
Certain of the challenged statements were made during the prosecution's opening statement as well, e.g., the references to the victim's death as an “execution” and to Petitioner as a “hit man” and as “disarmingly charming, ” and a mention of Petitioner speaking about the murder weapon “in his bravado, charming way.” Pro Se Brief at 41, 42; see Tr. at 25, 26, 29, 45. These portions of the opening statement also are not a basis for habeas relief. See Jackson, 763 F.3d at 149 (nothing improper about remark in opening statement that was borne out by the evidence; in addition, “prosecutor's characterization of [defendant] in her opening statement as ‘twisted' and ‘sadistic'” did not warrant habeas relief.).
With respect to Petitioner's claim in both the Petition and his Pro Se Brief that the prosecution vouched for the truthfulness of its expert witnesses “by saying they spoke with authority of their offices, either County Police, County Medical Examiner's Office, Westchester County laboratory[, while] [t]he defense experts did not, ” Pro Se Brief at 44, Petitioner mischaracterizes the record. What the prosecutor said in summation was that the defense experts “are not speaking with the power of their offices. The [prosecution's] experts are speaking as laboratory employees. You have to consider that when you evaluate the credibility.” Tr. At 2179. This statement does not amount to improper vouching by the prosecutor for the truthfulness of the prosecution witnesses; rather, the prosecutor made an appropriate argument about the relative credibility of the prosecution's experts and the defense's experts, and “there is nothing improper in arguing the credibility of witnesses, which is all that the record reflects.” Rohit v. Conway, No. 03-CV-01817 (SLT) (VVP), 2007 WL 1540268, at *10 (E.D.N.Y. May 24, 2007). Moreover, this portion of the prosecutor's summation was a fair response to defense counsel's overarching argument during summation that the prosecution had “done everything in their power to manufacture the forensic evidence to support their fairy tale ....” Tr. at 2092. Among other things, defense counsel argued that that one of the prosecution's experts would not “participate in the fairy tale, ” Tr. at 2093, that another prosecution expert “was willing to participate in the fairy tale, but she couldn't come through, ” Tr. at 2093-94, and that the testimony of a third prosecution expert was “another example of the biased and manufactured interpretation of forensic evidence, ” Tr. at 2101. The prosecutor's argument about the credibility of the experts was plainly appropriate in response to this line of attack from defense counsel.
Additionally, many of Petitioner's complaints, particularly in his Pro Se Brief, concern the prosecutor's choices regarding what evidence to cite during his summation. For example, Petitioner claims that the prosecutor ignored parts of Petitioner's insurance deposition concerning his finances, in particular leaving out that he had money outside of the United States. Pro Se Brief at 45-47; see also Petition at 5-1 - 5-2. Petitioner also claims that the prosecutor was misleading in his characterization of the forensic expert testimony, particularly with respect to where the gun was placed in relation to the victim's head. Pro Se Brief at 51-52. While the prosecutor made choices about which evidence to highlight for the jury in his summation, none of the statements in the summation mischaracterized the evidence. Moreover, Petitioner's defense counsel was free to make use of evidence that was arguably more helpful to Petitioner as part of his own summation, and in fact he did so.
Petitioner also claims that the prosecutor invited speculation by the jury by questioning the defense's account of what happened, e.g., questioning the lack of skid marks on the road, as well as Petitioner's failure to back up, lock the doors, or tell his wife what was happening; questioning the unidentified assailant's decision to enter the backseat of Petitioner's vehicle, failure to fire into the car window, or open the car door and shoot Petitioner; and questioning of how the gunshots were fired, Pro Se Brief at 42-43. But with these statements, the prosecutor was not acting inappropriately-rather, he was drawing upon the proffered evidence to argue that the jury should credit the prosecution's theory of the case and reject the defense theory. “[I]t is well-settled that a prosecutor may ask a jury to draw ‘reasonable inferences' from the evidence presented.” Dzebolo, 2012 WL 4763090, at *7; see also Portes, 420 F.Supp.3d at 57 (“A prosecutor's statements during summations that are ‘permissible inferences from the evidence at trial' do not constitute prosecutorial misconduct.”) (citing Rivera, 971 F.2d at 884).
Finally, the trial judge instructed the jury that the summation was not evidence and that it was their recollection of the evidence that was controlling:
Please understand that what lawyers say in summation is not evidence; rather, they're making arguments based on their memory of the evidence. However, it is not their memory of the evidence that controls. It's yours, and if you have any questions concerning what the testimony was or any exhibit, I'll explain to you in my final instructions how you go about getting a readback of testimony or how you can see the exhibit.
...
Remember nothing that Counsel may say in their summations is evidence in this case. You have heard the evidence and you and you alone are the sole and exclusive judges of the facts.Tr. at 2052-54. “Therefore, the trial court took cautionary steps to limit any potential prejudice to petitioner regarding statements made by the prosecutor in summation, and the jury is ‘presumed to follow their instructions.'” Delancey v. Lee, No. 15 Civ. 891 (RRM) (CLP), 2019 WL 9051134, at * 24 (E.D.N.Y. Nov. 4, 2019) (quoting Richardson v. Marsh, 481 U.S. 200, 211 (1987)), adopted by 2020 WL 3084285 (E.D.N.Y. June 10, 2020).
The trial judge reiterated this instruction later in her jury charge:
Members of the jury, in reaching your verdict, you must consider only the evidence in this case, the sworn testimony you heard from the witness stand and exhibits that were placed into evidence. Anything that Counsel for the People or for the defendant may have said in their opening statements, their summations, or in making objections is not evidence and must not be considered by you as such.Tr. at 2247.
In his Pro Se Brief Petitioner also challenges the trial judge's denial of the defense's objections to certain statements made by the prosecution in summation as well as the trial judge's denial of the defense's motion for a mistrial based on the prosecution's summation. Pro Se Brief at 54-55. For all of the reasons set forth above, however, the prosecutor's statements during summation were neither objectionable nor did they “so infect[] the trial with unfairness as to make the resulting conviction a denial of due process.” Jackson, 763 F.3d at 144 (internal quotation marks and citation omitted). Consequently, the trial judge's overruling of defense counsel's objections and denial of his motion for a mistrial were neither contrary to, nor an unreasonable application of, clearly established federal law.
Nor is Petitioner entitled to habeas relief on any claim he might be making based on the denial of the motion for a mistrial. “There is a similarly high bar to relief when a habeas petitioner is challenging the denial of a motion for mistrial. On habeas review, the petitioner must show that the denial of a motion for a mistrial deprived him [or her] of a fundamentally fair trial.” Rembert v. Annucci, No. 16 Civ. 7490 (CS) (PED), 2020 WL 7043616, at *16 (S.D.N.Y. Dec. 1, 2020) (internal quotation marks and citation omitted). Petitioner does not make such a showing here.
Aside from asserted misconduct based on the prosecutor's statements in summation, Petitioner also claims that the prosecutor “violated the Sandoval/Ventimiglia ruling when on direct he elicited underlying facts about a complaint against Petitioner that was dismissed by the ethics committee ....” Petition at 5-2 - 5-3. In support of this argument, Petitioner cites the testimony of Lieutenant Marc Simmons, one of the police officers involved in the investigation of the murder. At trial, Lieutenant Simmons testified regarding statements made by Petitioner about an ethics complaint lodged against Petitioner by Richard Carbone, an attorney who alleged that Petitioner had made sexual advances toward him. Tr. at 607-08, 751-52. Lieutenant Simmons also testified that Petitioner told him the Carbone complaint never went anywhere. Id. In his Pro Se Brief, Petitioner also argued that the prosecution improperly questioned Lieutenant Simmons about whether Petitioner mentioned “anything else outside the marriage” aside from Ileana Poole to which Lieutenant Simmons responded that Petitioner “said there had been a number of what he described as like small affairs and sometimes involving escorts [Tr. at 604].” See Pro Se Brief at 38-39. In addition, Petitioner claims that the prosecution violated the Ventimiglia and Sandoval rulings by questioning Lieutenant Simmons about what Petitioner said about his disbarment; but again, the testimony from Lieutenant Simmons recounted statements that Petitioner made to police during the course of investigation, including that Petitioner said “he was disbarred but shouldn't have been disbarred for the things that were brought against him in the disbarment proceedings, but that he had done plenty of things that would have lead [sic] to the disbarment, but those weren't the things he was disbarred on [Tr. at 605].” Id.
The substance of the trial court's Sandoval/V entimiglia rulings is discussed in greater detail in Section C.1, infra.
Even assuming arguendo that Petitioner fully exhausted on direct appeal all of his claims from his Pro Se Brief regarding the prosecution's alleged violations of the trial judge's Sandoval/Ventimiglia rulings, as set forth below, the arguments were not properly preserved at the time of trial. Therefore, they are procedurally barred here, just as they were on direct appeal.
None of the testimony by Lieutenant Simmons violated the trial judge's Ventimiglia and Sandoval rulings; rather, the testimony addressed statements that Petitioner had made during the investigation, the admissibility of which was never challenged either prior to or during trial.Petitioner's first attempt to contest the admissibility of his statements to the police was in his reply brief on direct appeal, Resp. Ex. 7, and the Appellate Division rejected this argument as unpreserved and procedurally barred. See Perez-Olivo, 127 A.D.3d at 1111 (“The defendant's contention that his statements to the police should have been suppressed is improperly raised for the first time in defense counsel's reply brief. In any event, the defendant never moved to suppress the statements or objected to their admission at trial and, thus, this contention is also unpreserved for appellate review.”) (citations omitted). Accordingly, Petitioner cannot base any claim for habeas relief on the improper admission in evidence of his statements to Lieutenant Simmons, as such claim is procedurally defaulted. See Read v. Superintendent Mr. Thompson, No. 13 Civ. 6962 (KMK) (PED), 2016 WL 165716, at *10 (S.D.N.Y. Jan. 13, 2016) (“The Second Circuit had determined that New York's preservation rule is an independent and adequate state procedural ground ordinarily barring habeas review.”) (internal quotation marks, brackets, and citation omitted); see also Downs v. Lape, 657 F.3d 97, 104 (2d Cir. 2011) (“[T]he Second Circuit ha[s] held repeatedly that the contemporaneous objection rule is a firmly established and regularly followed New York procedural rule.”). Moreover, Petitioner cannot overcome the procedural default because he has not shown cause for the procedural default and prejudice arising therefrom, nor has he shown that a fundamental miscarriage of justice will occur if the Court fails to consider such a claim. See Coleman, 501 U.S. at 750.
As noted above, see footnote 4, supra, Molineux and Ventimiglia are used interchangeably to describe pre-trial rulings regarding the admissibility of prior crimes/bad acts evidence. Thus, although the prosecution's pre-trial motion was titled “Ventimiglia / Sandoval Request, ” Resp. Ex. 3, the motion itself referred to Molineux, and the prosecution, defense counsel, and trial judge all referred to Molineux during the pre-trial hearing. See, e.g., H. at 14, 18, 30.
The complaint made by Mr. Carbone was not a part of Petitioner's disbarment proceedings at all, and thus was not considered by the trial court as part of its Ventimiglia ruling. See Resp. Ex. 3 (Ventimiglia/Sandoval Request).
Finally, Petitioner includes other allegations concerning prosecutorial misconduct in the Petition that were never properly raised on direct appeal, e.g., that the prosecutor in summation misstated Petitioner's financial situation since he knew that “from the beginning of the investigation Petitioner told the police he had money outside the country (Montreal), ” Petition at 5-2; that during the trial the prosecution improperly dealt with the evidence concerning the murder weapon, Petition at 5-3 - 5-4; and that the prosecution took contrary positions regarding Petitioner's financial situation between the bail hearing and the trial, Petition at 5-4 - 5-5. As Respondent notes, “[t]hat such matters may have been mentioned elsewhere in the Appellant's Brief or petitioner's [Pro Se] Brief did not fairly present those claims as considerations in regard to the asserted prosecutorial misconduct.” Mem. of Law in Opp'n at 61 n.68 (emphasis added). Evidence that Petitioner had money from business dealings in Canada and Venezuela is cited in the section of his counseled brief on direct appeal that challenges the legal sufficiency of the evidence, see Resp. Ex. 5 (Appellant's Brief) at 78, as well as the section that challenges the trial court's evidentiary rulings, see id. at 88. Similarly, Petitioner points to the evidence concerning his finances, and the contrary positions regarding his finances taken by the prosecution at trial and during the bail hearing, in the section of his Pro Se Brief challenging the legal sufficiency of the evidence, see Pro Se Brief at 35. Because no claims of prosecutorial misconduct based on these allegations were ever raised on direct appeal, any habeas claims of prosecutorial misconduct based on these allegations are have not been exhausted.
At this stage, however, Petitioner can no longer exhaust these claims in the state courts. Petitioner has completed his direct appeal of his criminal convictions, and the facts giving rise to these potential claims were available on the face of the trial record, which means that Petitioner could not raise these issues for the first time in state court were he to attempt to pursue a motion to vacate his judgment of conviction. See N.Y. Crim. Proc. Law § 440.10(2)(c) (“the court must deny a motion to vacate a judgment when: . . . [a]lthough sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure . . . to raise such ground or issue upon an appeal actually perfected by him.”). Accordingly, this Court deems these arguments to be exhausted but procedurally defaulted, and thus not a proper basis for habeas relief. See Jackson, 763 F.3d at 143-44. Petitioner cannot overcome the procedural default because he has not shown cause for the procedural default and prejudice arising therefrom, nor has he shown that a fundamental miscarriage of justice will occur if the Court fails to consider such a claim. See Coleman, 501 U.S. at 750; see also DiSimone v. Phillips, 461 F.3d 181, 19091 (2d Cir. 2006) (“‘Where a [petitioner] has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the [petitioner] can first demonstrate either cause and actual prejudice, or that he [or she] is actually innocent.'”) (quoting Bousley, 523 U.S. at 622) (internal quotation marks omitted).
For all of these reasons, Petitioner is not entitled to habeas relief based on any of the claims of prosecutorial misconduct that are asserted as part of the second purported ground of the Petition.
C. Erroneous Evidentiary Rulings
Petitioner's final purported ground for habeas relief is his contention that the trial court's evidentiary rulings were erroneous and deprived him of his right to a fair trial and to present a meaningful defense.
On direct appeal, Petitioner challenged the trial court's rulings under Sandoval and Molineux. He argued that that the trial court erred in allowing for cross-examination about Petitioner's disbarment determination and in allowing the prosecution to introduce evidence in its case in chief regarding Petitioner's affair with Ileana Poole. In addition, Petitioner asserted that the prosecution should not have been permitted to elicit testimony regarding the fact of Petitioner's disbarment, life insurance covering Mrs. Perez-Olivo, the expiration of a life insurance policy covering Petitioner, and the balances in Petitioner's bank accounts. Appellant's Brief at 82-89. Petitioner also challenged other evidentiary rulings, asserting that the trial court improperly precluded Petitioner from (1) introducing evidence at trial regarding an allegedly similar road stop incident on the same stretch of road approximately one year earlier; (2) having Petitioner's son Merced testify as to why he appeared at trial for his father; and (3) introducing photographs of Petitioner and his wife at their son Carlitos's wedding rehearsal party. Id. at 8994.
1. Sandoval and Molineux Rulings
During the portion of the pre-trial hearing regarding the Molineux motion, the trial court ruled that the fact of Petitioner's disbarment could be offered in evidence during the prosecution's case in chief, but evidence concerning the reasons underlying the disbarment could not be introduced. H. at 30. The trial court also ruled that evidence of five life insurance policies for which Petitioner's wife was the insured and of the lapse of a policy for which Petitioner himself was the insured could be offered as part of the prosecution's case in chief. H. at 30-31. Finally, the trial court ruled that evidence of Petitioner's relationship with Ileana Poole could be offered in the prosecution's case in chief, but only through Ms. Poole's testimony and Petitioner's statements to police about the relationship. H. at 33-40.
It is unclear which five life insurance policies the trial judge and prosecution were referring to during the pre-trial hearing. At trial, evidence was presented as to four life insurance policies where Petitioner's wife was the insured and Petitioner was the beneficiary, Tr. at 92123, 952-53, 960-63, 1396-99, as well as a death benefit payable to Petitioner resulting from his wife's membership in the New York State Teachers' Retirement System, Tr. at 908-13. There also was evidence presented regarding one life insurance policy where Petitioner was the insured and his wife was the beneficiary, but because Petitioner elected family coverage, Petitioner would receive 50 percent of the policy coverage if his wife predeceased him. Tr. at 923-25, 94042. Evidence was also presented as to another life insurance policy, where Petitioner was the insured and his wife was the beneficiary, that had lapsed before his wife's death due to nonpayment of the premium. Tr. at 970-71. The prosecution did note both in its Ventimiglia/ Sandoval Request and during the pre-trial hearing that there were two life insurance policies with Petitioner as the insured and his wife as the primary beneficiary, and that one of them had lapsed for non-payment. See Resp. Ex. 3; H. at 11-14.
With respect to the Sandoval motion, the trial court ruled that “the acts underlying the disbarment may be considered by the jury on the issue of credibility in the event the defendant takes the witness stand.” H. at 105. More specifically, the trial court allowed for inquiry into four of the sustained disciplinary charges. H. at 107.
In its decision on direct appeal, the Appellate Division held that
Contrary to the defendant's contention, the County Court providently exercised its discretion in rendering its Sandoval ruling (see People v Sandoval, 34 N.Y.2d 371 [1974]). Contrary to the defendant's further contention, the County Court properly admitted evidence of the state of the defendant's financial affairs, including the fact of his recent disbarment, and of the various life insurance policies held by the defendant and his wife, as the evidence was relevant to the defendant's motive ....Perez-Olivo, 127 A.D.3d at 1111.
a. Sandoval
“Courts in this Circuit apply ‘a bright-line rule barring habeas relief for allegedly erroneous Sandoval rulings in instances where a defendant elects not to testify.'” Gousse v. Superintendent, Wende Corr. Facility, No. 19 Civ. 1607 (JS), 2020 WL 4369643, at *21 (E.D.N.Y. July 29, 2020) (quoting Melendez v. LaValley, 942 F.Supp.2d 419, 424 (S.D.N.Y. 2013) (ellipsis, brackets, and citation omitted)). “Additionally, it is well-settled that a petitioner's failure to testify at trial is fatal to any claims of constitutional deprivation arising out of a Sandoval-type ruling, because absent such testimony, a court has no adequate non-speculative basis upon which to assess the merits of that claim.” Sorrentino v. LaValley, No. 12 Civ. 7668 (VSB) (DF), 2016 WL 3460418, at *4 (S.D.N.Y. June 21, 2016) (internal quotation marks, brackets, and citations omitted). Accordingly, as Petitioner did not testify at trial, his challenge to the trial court's Sandoval ruling does not provide a basis for habeas relief.
As noted above, see footnote 4, supra, Molineux and Ventimiglia are used interchangeably to describe pre-trial rulings regarding the admissibility of prior crimes/bad acts evidence. Because the Appellate Division cited Molineux in its decision on Petitioner's direct appeal, Perez-Olivo, 127 A.D.3d at 1111, the Court refers to Molineux here.
“As a general matter, the admissibility of evidence in state court is wholly a matter of state law and is therefore not subject to habeas relief, barring a showing that Petitioner's due process rights were denied such that he [or she] was deprived [of] a fundamentally fair trial.” Gousse, 2020 WL 4369643, at *20 (citing Estelle v. McGuire, 502 U.S. 62, 75 (1991)). “A habeas claim asserting a right to relief on Molineux grounds must rise to the level of constitutional violation because Molineux is a state law issue.” Id. (internal quotation marks, alterations, and citation omitted). “The first step in this analysis is to determine whether the state court decision violated a state evidentiary rule, because the proper application of a presumptively constitutional state evidentiary rule would not be unconstitutional.” Id. (internal quotation marks and citation omitted). “The second step in the analysis requires the court to determine whether the state evidentiary error violated an identifiable constitutional right.” Delancey, 2019 WL 9051134, at *17. “This is a heavy burden, for generally, rulings by state trial courts on evidentiary issues, even if erroneous, do not rise to the level of a constitutional violation.” Id. (internal quotation marks and citation omitted). “An erroneous state evidentiary ruling that is asserted to be a constitutional violation will then warrant habeas relief only where petitioner can show that the error deprived [him or her] of a fundamentally fair trial.” Id. (internal quotation marks and citation omitted).
As set forth above, the Appellate Division upheld the trial court's decision to admit evidence regarding the fact of Petitioner's disbarment and the various life insurance policies held by Petitioner and his wife. Although the Appellate Division did not expressly mention the trial court's decision to admit evidence regarding Petitioner's affair with Ileana Poole, it did say at the conclusion of its opinion that “[t]he defendant's remaining contentions, including those raised in his pro se supplemental brief, are without merit.” Perez-Olivo, 127 A.D.3d at 1111. Accordingly, under AEDPA, the Court must determine whether this decision was contrary to, or an unreasonable application of, clearly established federal law.
New York law provides that “[e]vidence of a defendant's prior bad acts may be admissible when it is relevant to a material issue in the case other than defendant's criminal propensity.” People v. Dorm, 12 N.Y.3d 16, 19 (2009). “Under People v Molineux (168 NY 264 [1901]), the [prosecution] may use such evidence to prove motive, intent, lack of mistake or accident, identity, or common scheme or plan.” Id. (citation omitted). “However, this list is merely illustrative and not exhaustive.” Id. (internal quotation marks and citation omitted). For example, evidence of prior bad acts may also be admitted to “provide[] necessary background information on the nature of [a] relationship and place[] the charged conduct in context.” Id.; see also People v. Morris, 21 N.Y.3d 588, 594 (2013) (“[W]e have held that evidence of prior, uncharged crimes may also be relevant to complete the narrative of the events charged in the indictment . . ., and to provide necessary background information.”) (citations omitted). “Where there is a proper nonpropensity purpose, the decision whether to admit evidence of defendant's prior bad acts rests upon the trial court's discretionary balancing of probative value and unfair prejudice.” Dorm, 12 N.Y.3d at 19. “Thus, the trial court's decision to admit the evidence may not be disturbed simply because a contrary determination could have been made or would have been reasonable. Rather, it must constitute an abuse of discretion as a matter of law.” Morris, 21 N.Y.3d at 597.
In this case, the trial court did not abuse its discretion in its balancing of the probative value of the evidence of prior bad acts against any possible prejudice to Petitioner. The trial judge ruled that evidence that Petitioner was disbarred, “without the reasons underlying it, ” H. at 30, could be presented as part of the prosecution's case in chief, finding that it was relevant to the issue of motive because it explained a reason for Petitioner's loss of income. Moreover, although not prior bad acts evidence under Molineux, the trial judge ruled that the prosecution would be permitted to present evidence regarding various life insurance policies because this evidence, combined with the evidence of disbarment, was relevant to motive as well. H. at 30.The trial judge also allowed the prosecution to introduce evidence of Petitioner's extramarital relationship with Ileana Poole, finding it relevant to the nature of Petitioner's marriage and Petitioner's claims of a happy relationship. H. at 31-41. The admission of this evidence did not violate a New York state evidentiary rule, and because the state court decision was not erroneous under state law, Petitioner cannot establish that the admission of this evidence violated his constitutional rights. See Gousse, 2020 WL 4369643, at *20 (“[T]he proper application of a presumptively constitutional state evidentiary rule would not be unconstitutional.”) (internal quotation marks and citation omitted).
The trial judge subsequently ruled during trial that evidence of Petitioner's bank account balances was admissible, finding that it was not prior bad acts evidence under Molineux but rather that it went “solely to the issue of motive and intent here.” Tr. at 1187-90.
Furthermore, the trial judge gave limiting instructions to the jury as to how this evidence was to be considered, both after Ms. Poole's testimony, Tr. at 407-09, and in the final jury charge, Tr. at 2227-28. Any potential prejudice from this evidence was mitigated by these limiting instructions. See United States v. Snype, 441 F.3d 119, 129 (2d Cir. 2006) (“As the Supreme Court has frequently observed, the law recognizes a strong presumption that juries follow limiting instructions.”).
Even if this Court had concluded that the trial judge's decision was erroneous, “erroneous evidentiary rulings do not automatically rise to the level of constitutional error. Rather, the writ would issue only where petitioner can show that the error deprived him [or her] of a fundamentally fair trial.” Perez v. Phillips, 210 Fed.Appx. 55, 57 (2d Cir. 2006) (internal quotation marks, alterations, and citations omitted) (emphasis in original). Here, Petitioner has not shown that the admission of this evidence of prior bad acts deprived him of his right to a fundamentally fair trial or “violate[d] fundamental conceptions of justice.” Vega v. Walsh, 669 F.3d 123, 126 (2d Cir. 2012) (internal quotation marks and citation omitted) (holding that admission of evidence of petitioner's uncharged crimes and tattoo did not warrant habeas relief).
As to whether the admission of prior bad acts evidence violates the federal constitution, one district court noted that many federal courts “have rejected habeas claims based on the argument that introduction of evidence of uncharged crimes violated a defendant's due process rights, because no federal constitutional violation had been established.” Delancey, 2019 WL 9051134, at *19 (collecting cases).
Because the trial court's Molineux rulings were not erroneous under state law, and, even if they were erroneous, did not deprive Petitioner of a fundamentally fair trial, they cannot provide a basis for habeas relief. Accordingly, the Appellate Division's decision upholding these rulings was neither contrary to, nor an unreasonable application of, clearly established federal law.
2. Preclusion of Evidence in Petitioner's Defense
As noted above, on direct appeal, Petitioner argued that the trial court improperly precluded Petitioner from introducing evidence at trial of an allegedly similar road stop incident on the same stretch of road approximately year earlier; having Petitioner's son Merced testify as to why he appeared at trial for his father; and introducing photographs of Petitioner and his wife at their son Carlitos's wedding rehearsal party. Appellant's Brief at 89-94. The Petition expressly mentions two of these three evidentiary rulings, but does not specifically reference the trial court's ruling concerning Merced's testimony. But the Petition does assert that “[b]ased on these and other errors fully discussed in the briefs, Petitioner was not allowed to present a meaningful defense, due process was violated and Petitioner did not receive a fair trial.” Petition at 6-5 (emphasis added). Thus, the Court deems the Petition to include all three claims of erroneous evidentiary rulings that were raised on Petitioner's direct appeal.
In addition, he Petition states that Petitioner was “precluded from asking questions of witnesses about what they observed the marital relationship to be, on the grounds it was character witness testimony, ” Petition at 6-4, which appears to be a reference to the ruling concerning Merced's testimony. See Appellant's Brief at 94 (“The court precluded defense counsel from having Merced testify as to why he appeared at trial for his father on the grounds that such . . . testimony constituted character evidence [sic] also unduly tied Perez-Olivo's hands.”).
The Appellate Division decided these claims by holding that “[t]he defendant's remaining contentions, including those raised in his pro se supplemental brief, are without merit.” Perez-Olivo, 127 A.D.3d at 1111.
Because of the summary nature of the Appellate Division's ruling, in conducting its AEDPA review, the Court “look[s] through the state appellate courts' unexplained decisions to the last related state-court decision that does provide a relevant rationale, and determine[s] whether that rationale was contrary to, or represented an unreasonable application of, clearly established federal law.” Scrimo v. Lee, 935 F.3d 103, 111 (2d Cir. 2019) (internal quotation marks, brackets, emphasis, and citation omitted). Here, the Court “therefore consider[s] the rulings and explanations of the trial judge.” Id. at 111-12.
“[T]he Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense . . . .'” Nevada v. Jackson, 569 U.S. 505, 509 (2013) (internal citations omitted). “Few rights are more fundamental than that of an accused to present witnesses in his [or her] own defense.” Taylor v. Illinois, 484 U.S. 400, 407 (1988). Nevertheless, “state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials.” Nevada, 569 U.S. at 509 (internal quotation marks and citations omitted). The Supreme Court has “rarely . . . held that the right to present a complete defense was violated by the exclusion of defense evidence under a state rule of evidence.” Id. “A defendant's right to present relevant evidence is not, however, unlimited; rather it is subject to ‘reasonable restrictions.'” Wade v. Mantello, 333 F.3d 51, 58 (2d Cir. 2003) (quoting United States v. Scheffer, 523 U.S. 303, 308 (1998)). “Central among these restrictions are state and federal rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence. The power of courts to exclude evidence through the evidentiary rules that serve the interests of fairness and reliability is well-settled.” Id. (internal quotation marks and citations omitted). Thus, “[t]he right to present a defense . . . does not give criminal defendants carte blanche to circumvent the rules of evidence.” United States v. Almonte, 956 F.2d 27, 30 (2d Cir. 1992). “Restrictions on a defendant's presentation of evidence are constitutional if they serve ‘legitimate interests in the criminal trial process,' and are not ‘arbitrary or disproportionate to the purposes they are designed to serve.'” Id. (quoting Rock v. Arkansas, 483 U.S. 44, 55-56 (1987)). Furthermore, the Supreme Court is “‘traditional[ly] reluctan[t] to impose constitutional constraints'” on “‘ordinary evidentiary rulings by state trial courts' concerning the admissibility of evidence[.]” Wade, 333 F.3d at 60 (quoting Crane v. Kentucky, 476 U.S. 683, 689 (1986)). “In any given criminal case the trial judge is called upon to make dozens, sometimes hundreds, of decisions concerning the admissibility of evidence....[T]he Constitution leaves to the judges who must make these decisions ‘wide latitude' to exclude evidence that is ‘repetitive . . ., only marginally relevant' or poses an undue risk of ‘harassment, prejudice, [or] confusion of the issues.'” Id. (quoting Crane, 476 U.S. at 689) (internal quotation marks omitted).
In determining whether the exclusion of evidence violated a defendant's right to present a defense, a district court must first consider the propriety of the state trial court's evidentiary ruling. Id. at 59. If the state trial court's ruling was not proper, then the district court must determine “whether the omitted evidence evaluated in the context of the entire record creates a reasonable doubt that did not otherwise exist.” Id. at 59 (internal quotation marks, brackets, and citation omitted).
With respect to the allegedly similar road stop incident, Petitioner sought to introduce the testimony of a Mr. Tuciello (whose first name does not appear to be included in the trial transcript) about a traffic incident that took place more than one year prior to the murder on the same stretch of Route 100 on the same night of the week at the same time. On that occasion, a dark-colored car aggressively followed Mr. Tuciello's car, causing Mr. Tuciello to speed up to 100 miles an hour, until the cars reached a populated area, at which point the other car turned off onto Route 133. Tr. at 1694-99. The trial court found that this testimony was inadmissible, as defense counsel had failed to establish a link between the prior incident and the alleged events involving Petitioner and his wife. Tr. at 1699-1701. Unlike the incident described by Mr. Tuciello, Petitioner did not state that he was followed, but rather that he was suddenly cut off and forced to stop by another vehicle; and whereas the second car in Mr. Tuciello's account drove off without any further in-person interaction, Petitioner claimed that one of the occupants of the second car entered Petitioner's vehicle with a gun and, in the course of the struggle that followed, shot both Petitioner and his wife. See, e.g., Tr. at 328-38, 416-22, 1357-1369.
The trial judge's ruling was a proper exercise of her discretion. Under New York law, “[a] court may, in its discretion, exclude relevant evidence if its probative value is outweighed by the prospect of trial delay, undue prejudice to the opposing party, confusing the issues or misleading the jury, ” and “[e]vidence of merely slight, remote or conjectural significance will ordinarily be insufficiently probative to outweigh these countervailing risks.” People v. Primo, 96 N.Y.2d 351, 355 (2001) (internal quotation marks and citations omitted). “While evidence tending to show that another party might have committed the crime would be admissible, before such testimony can be received there must be such proof of connection with it, such a train of facts or circumstances as tend clearly to point out someone besides the prisoner as the guilty party.” People v. Schulz, 4 N.Y.3d 521, 529 (2005) (internal quotation marks and citation omitted). “Remote acts, disconnected and outside of the crime itself, cannot be separately proved to show that someone other than the defendant committed the crime.” Id. (internal quotation marks and citation omitted). Here, the trial judge's decision to preclude the at best tangentially related testimony of Mr. Tuciello on the ground that it was remote and disconnected from the crime itself was an appropriate exercise of the trial court's discretion under New York law, and did not violate any New York evidentiary rules. This ruling also was constitutional, as it served a legitimate state interest in an efficient criminal trial process and was not arbitrary or disproportionate.
Furthermore, even if the trial judge's decision were erroneous, Petitioner cannot establish that the exclusion of this evidence resulted in the deprivation of a federal right. In the context of the entire record in this case, given the strength of the circumstantial evidence against Petitioner, see Section II.A, supra, it is highly implausible that evidence of a prior instance of road rage along the same stretch of road over one year earlier would have led the jury to draw any other inferences with respect to what happened in Petitioner's case. Mr. Tuciello's testimony would not have created a reasonable doubt that did not otherwise exist. Therefore, this evidentiary ruling was neither contrary to, nor an unreasonable application of, clearly established federal law.
With respect to the testimony of Petitioner's son Merced, defense counsel asked Merced if he was there to testify to support his father, and Merced responded, “Yes.” Tr. at 1764. The prosecution objected, and the trial judge sustained the objection and struck the testimony. Id. At the sidebar discussion that ensued, defense counsel stated, “[t]hese are witnesses that are here on their own volition. I'm not putting them here. They're here because they want to be. They should be able to tell the jury that they love their father, they don't believe he did it.” Id. The trial judge responded, “and that's called a character witness . . . and you're also going into the observations of the marriage, which you've been allowed to go into, and you're permitted to do that, but you have violated the rules by continuing to get out these claims of statements that have no bearing unless you're looking at a character witness.” Id. at 1764-65. The colloquy continued as follows:
[DEFENSE COUNSEL]: I didn't ask him one thing about whether he was violent, whether he treated her badly.
THE COURT: No, you don't have to ask negative traits. But you're trying to get out he's a loving father, a wonderful husband and a family man. That's what you're trying to get out. You have to do it differently.
[DEFENSE COUNSEL]: I am putting on a witness to refute their claim that it was an unhappy marriage. That's why I'm bringing on witnesses. It goes directly to -
THE COURT: Well, you've done that. You've done that.
[DEFENSE COUNSEL]: So I can't ask this witness why he's here today or if he came on his own volition?
THE COURT: That's right, you can't.Id. at 1765-66. This ruling was likewise a proper exercise of the trial court's discretion.
As previously stated, “[a] defendant's right to present relevant evidence is not . . . unlimited; rather it is subject to reasonable restrictions.” Wade, 333 F.3d at 58 (internal quotation marks and citation omitted). “The power of courts to exclude evidence through the application of evidentiary rules that serve the interests of fairness and reliability is well-settled.” Id. (citation omitted). And judges have “wide latitude to exclude evidence that is repetitive, only marginally relevant or poses an undue risk of harassment, prejudice, or confusion of the issues.” Id. at 60 (internal quotation marks, alterations, and citation omitted); see People v. Scarola, 71 N.Y.2d 769, 777 (1988) (“Even where technically relevant evidence is admissible, it may still be excluded by the trial court in the exercise of its discretion if its probative value is substantially outweighed by the danger that it will unfairly prejudice the other side or mislead the jury.”) (citations omitted). Here, the trial judge acted within her discretion in barring this line of questioning as improperly seeking to elicit character evidence. Defense counsel was still able to address the issue of whether Petitioner was in a happy marriage through other testimony from Merced, as well as testimony from Petitioner's other two children and two of his wife's sisters. The trial judge's decision was not erroneous under New York law, and did not violate any New York evidentiary rules. This evidentiary ruling “cannot, therefore, constitute error of a constitutional magnitude.” O'Brien v. Costello, No. 11 CV 956 (Sr), 2012 WL 7005826, at *8 (W.D.N.Y. July 12, 2012) (denying habeas relief on claim that petitioner was denied right to fair trial by trial court's determination to exclude character evidence), adopted by 2013 WL 435525 (W.D.N.Y. Feb. 4, 2013). Moreover, the decision to preclude this testimony was constitutional, as it served a legitimate state interest in the criminal trial process and was not arbitrary or disproportionate. Almonte, 956 F.2d at 30. Furthermore, even if the trial judge's decision were erroneous, it would not have risen to the level of a constitutional violation as this testimony would not have created a reasonable doubt that did not otherwise exist. Wade, 333 F.3d at 5859. Therefore, the preclusion of this testimony was neither contrary to, nor an unreasonable application of, clearly established federal law.
During the direct examination of Petitioner's daughter, defense counsel sought to admit into evidence photographs of Petitioner and his wife at their son Carlitos's wedding rehearsal party. In response to the prosecution's relevance objection, defense counsel responded, “[t]he relevance is half of [the prosecution's] case is trying to disprove that my client had a happy marriage. These are recent photographs of the engagement party of the wedding in 2006. This is how she remembers her parents.” Tr. at 1727. The prosecution noted that the daughter's “belief as to the marriage . . . is already out there.” Id. Indeed, the daughter had testified about her views of her parents' relationship. Tr. at 1704-06, 1710-18. The trial court sustained the prosecution's objection and ruled that the photographs were “totally irrelevant, ” telling defense counsel that “[i]t's very obvious what you're doing to this lovable, beautiful witness to play on the sympathy of this jury.” Tr. at 1727-28. Once again, this was a proper exercise of the trial court's discretion under New York law, and did not violate any New York evidentiary rules. Under New York law, photographs of a victim taken while he or she was alive may “arouse the jury's emotions” and “should not be admitted unless relevant to a material fact to be proved at trial.” People v. Stevens, 76 N.Y.2d 833, 835 (1990). Moreover, the decision to preclude this evidence on the ground that it was irrelevant was constitutional, as it served a legitimate state interest in the criminal trial process and was not arbitrary or disproportionate. Almonte, 956 F.2d at 30. Further, even if the trial judge's decision were erroneous, it would not have risen to the level of a constitutional violation as these photographs would not have created a reasonable doubt that did not otherwise exist. Wade, 333 F.3d at 58-59. Therefore, the exclusion of this evidence by the trial judge was neither contrary to nor an unreasonable application of clearly established federal law.
3. Additional Evidentiary Errors Raised in the Petition
Additional evidentiary issues were raised in the Petition that were not raised on direct appeal in either Petitioner's counseled brief or his Pro Se Brief. See Mem. of Law in Opp'n at 72 n.72. Most of these are further challenges to the trial court's Molineux and Sandoval rulings, e.g., that Ms. Poole did not have testify as to her relationship with Petitioner because the admission of Petitioner's statements to the police about the affair was sufficient, see Petition at 6-7; that there is no record of the trial court weighing the probative value against the prejudicial effect of the evidence of the affair or of Petitioner's disbarment, see Petition at 6-8-6-10; and that the trial court made no findings about the effect that allowing inquiry into some of the underlying charges related to Petitioner's disbarment had on his decision not to testify, see Petition at 6-12. Setting aside the question of whether these claims are dismissible as procedurally defaulted, the claims fail for the same reasons as Petitioner's previously raised, and properly exhausted, habeas claims challenging the trial court's Sandoval and Molineux rulings, see Section C.1, supra. With respect to the trial court's Sandoval ruling, “[b]ecause Petitioner elected not to testify, habeas relief cannot lie, regardless of the fact that the trial court's Sandoval ruling may have motivated his decision.” Rutledge v. Lempke, No. 1:10-CV-0664 (MAT), 2015 WL 1003901, at *6 (W.D.N.Y. Mar. 5, 2015) (internal quotation marks, brackets, and citation omitted). With respect to the Molineux rulings, Petitioner has not shown that the trial court's decisions violated any New York evidentiary rules, and therefore they do not violate federal constitutional law.
Petitioner also asserts for the first time in the Petition that he was precluded from eliciting testimony about providing the police with files of former clients who may have wanted to harm Petitioner, specifically the file of Veli Lagiq, a former member of the Serbian Army who allegedly had stolen and was using Petitioner's social security and bank account numbers, see Petition at 6-4, and that a defense witness, Robert Buckley, was barred from testifying as to why he wrote a letter to a life insurance company claiming that Petitioner was a victim, see Petition at 6-5. No claim was ever raised on direct appeal, in either Petitioner's counseled brief or his Pro Se Brief, regarding the preclusion of testimony about Mr. Lagiq. And although Petitioner cited Mr. Buckley's testimony in his Pro Se Brief, it was in the context of his claim of prosecutorial misconduct, and made no mention of the trial judge's evidentiary ruling. See Pro Se Brief at 50. Thus, neither of these claims was exhausted in the state courts. Because these claims are based on facts that appear in the record, and they were not raised on direct appeal, Petitioner would be barred from raising these claims in state court on a motion to vacate the judgment. See N.Y. Crim. Proc. Law § 440.10(2)(c). Accordingly, these additional claims may be deemed exhausted but procedurally defaulted, and cannot be a proper basis for habeas relief. See Jackson, 763 F.3d at 143-44. Moreover, Petitioner cannot overcome the procedural default because he has neither shown cause for the procedural default and prejudice arising therefrom, nor that a fundamental miscarriage of justice will occur if the Court fails to consider such claims. See Coleman, 501 U.S. at 750; see also DiSimone, 461 F.3d at 190-91.
CONCLUSION
For the foregoing reasons, I respectfully recommend that the Petition be DENIED in its entirety. As the Petition presents no questions of substance for appellate review, I respectfully recommend that a certificate of probable cause should not issue. See Rodriguez v. Scully, 905 F.2d 24 (2d Cir. 1990) (per curiam); Alexander v. Harris, 595 F.2d 87, 90-91 (2d Cir. 1979). I further respectfully recommend that the Court should certify pursuant to 28 U.S.C. § 1915(a) that an appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962).
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report and Recommendation to file written objections. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made by mail). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any responses to such objections, shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Vincent L. Briccetti, United District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the Honorable Andrew E. Krause at the same address.
Any request for an extension of time for filing objections or responses to objections must be directed to Judge Briccetti, and not to the undersigned.
Failure to file timely objections to this Report and Recommendation will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Campbell, 782 F.3d 93, 102 (2d Cir. 2015).
A copy of this Report and Recommendation has been mailed to Petitioner by Chambers.