Opinion
9:21-CV-519 (TJM/DJS)
06-10-2024
JAMES PARTRIDGE, Petitioner, v. ERIC BELL, Respondent.
JAMES PARTRIDGE, Petitioner, Pro se 16-B-3096, Elmira Correctional Facility HON. LETITIA JAMES, Attorney General for the State of New York Attorney for Respondent. PRISCILLA I. STEWARD, ESQ., Assistant Attorney General.
APPEARANCES:
JAMES PARTRIDGE, Petitioner, Pro se 16-B-3096, Elmira Correctional Facility
HON. LETITIA JAMES, Attorney General for the State of New York Attorney for Respondent.
OF COUNSEL:
PRISCILLA I. STEWARD, ESQ., Assistant Attorney General.
REPORT-RECOMMENDATION AND ORDER
This matter was referred to the undersigned for a report-recommendation pursuant to 28 U.S.C. § 636(b) and N.D.N.Y.L.R. 72.3(c).
DANIEL J. STEWART, United States Magistrate Judge.
Following a jury trial, Pro se Petitioner James Partridge was convicted of predatory sexual assault against a child, course of sexual conduct against a child in the first degree, and endangering the welfare of a child. Dkt. No. 18-1, State Court Record (“SR.”)at p. 8.For the reasons below, this Court recommends that the Petition be denied.
Citations to the state court record are to the page numbers provided by Respondent.
Citations to Respondent's Memorandum of Law are to the page numbers assigned by the Court's CM/ECF system.
I. BACKGROUND
In 2001, Petitioner began sexually assaulting his then seven-year-old niece - abuse that continued for over a decade. SR. at pp. 62-63; Resp. Mem. at p. 4. As a result, Petitioner was named in a three-count indictment charging him with predatory sexual assault against a child, course of sexual conduct against a child in the first degree, and endangering the welfare of a child. SR. at p. 15. At his jury trial, Petitioner was found guilty and sentenced to a term of imprisonment of fifty years to life. SR. at p. 10. Petitioner then appealed to the New York Appellate Division, Fourth Department. People v. Partridge, 173 A.D.3d 1769 (4th Dep't 2019). The Fourth Department dismissed Count 1 of the indictment, predatory sexual assault against a child, and affirmed the judgment as modified. Id. The New York Court of Appeals later denied leave to appeal. People v. Partridge, 34 N.Y.3d 935 (2019). The following year, Petitioner filed a coram nobis motion in the Fourth Department arguing that his appellate counsel was ineffective. SR. at pp. 305-329. That motion was denied by the Fourth Department and leave to appeal was denied by the New York Court of Appeals. SR. at pp. 7-8.
II. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Petitioner bears the burden of proving 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); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997). A federal court may not grant habeas relief to a state prisoner on a claim unless the state court adjudicated the merits of the claim and such adjudication either:
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); see also Hawkins v. Costello, 460 F.3d 238, 242 (2d Cir. 2006).
The standard of review under § 2254(d) is “highly deferential” and “demands that state-court decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 773 (2010). Accordingly, “a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).
The phrase “clearly established Federal law” refers to “the holdings, as opposed to the dicta, of th[e] Court's decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000). A state court decision is “contrary to” established Supreme Court precedent “if the state court arrives at a conclusion opposite to that reached by th[e] Court on a question of law or if the state court decides a case differently than th[e] Court has on a set of materially indistinguishable facts.” Id. at 413. A state court decision is an “unreasonable application” of established Supreme Court precedent “if the state court identifies the correct governing legal principle from th[e] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id.
III. DISCUSSION
Petitioner asserts the following grounds for relief: (1) Petitioner's predatory sexual assault against a child conviction must be dismissed because it was not supported by sufficient evidence, was against the weight of the evidence, and proof varied from the indictment and (2) ineffective assistance of both trial and appellate counsel. Pet. at pp. 7-13. Respondent seeks dismissal of the Petition on the merits. See generally Resp. Mem. As detailed below, the Court recommends that the Petition be dismissed.
A. Conviction for Predatory Sexual Assault Against a Child
Petitioner's claims surrounding this conviction are moot. Federal courts have jurisdiction over claims only where there is a “case-or-controversy” to resolve. See, e.g., United States v. Mercurris, 192 F.3d 290, 293 (2d Cir. 1999). “In order to satisfy the case-or-controversy requirement, a party must, at all stages of the litigation, have an actual injury which is likely to be redressed by a favorable judicial decision.” Robinson v. New York, 550 Fed.Appx. 63, 64 (2d Cir. 2014) (internal quotation marks omitted); see also Powell v. McCormack, 395 U.S. 486, 496 (1969) (“[A] case is moot when the issues presented no longer ‘live' or the parties lack a legally cognizable interest in the outcome.”). No actual injury exists where the count of the indictment at issue has already been dismissed. See Moloi v. Riley, 762 F.Supp. 36, 39 (E.D.N.Y. 1991) (“The Appellate Division-by reversing the conviction for reckless endangerment in the first degree, vacating the sentence imposed thereon, and dismissing that count of the indictment-granted the Petitioner the relief here sought[.] Therefore Petitioner's argument is moot.”); Cumbo v. Eyman, 409 F.2d 400, 400 (9th Cir. 1969) (habeas petition mooted by state court's reversal of conviction).
Here, Petitioner asserts several arguments regarding why his conviction for predatory sexual assault against a child should be dismissed. His claims are moot because the Fourth Department already reversed the conviction and dismissed this count from the indictment. People v. Partridge, 173 A.D.3d at 1769 (“It is hereby ordered that the judgment so appealed from is unanimously modified on the law by reversing that part convicting defendant of predatory sexual assault against a child and dismissing count one of the indictment and as modified the judgment is affirmed.”). In arriving at its decision to reverse Petitioner's conviction, the Fourth Department emphasized that “no rational person could conclude that the trial evidence was legally sufficient to establish that defendant committed predatory sexual assault against a child during the [relevant] time frame.” Id. at 1771. Because Petitioner's alleged injury has already been redressed, his claims are moot and present no basis for habeas relief.
B. Ineffective Assistance of Counsel
1. Trial Counsel
To establish ineffective assistance of counsel, Petitioner must show that counsel's (1) objectively deficient performance (2) prejudiced Petitioner in that there is a reasonable probability that the case outcome would have been different but for counsel's deficient performance. Premo v. Moore, 562 U.S. 115, 121 (2011); Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). “A court considering a claim of ineffective assistance must apply a ‘strong presumption' that counsel's representation was within the ‘wide range' of reasonable professional assistance.” Harrington v. Richter, 562 U.S. at 104 (quoting Strickland v. Washington, 466 U.S. at 689). Thus, someone challenging a conviction must show “that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed . . . by the Sixth Amendment.” Strickland v. Washington, 466 U.S. at 687; see also Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (noting that the Sixth Amendment does not guarantee “perfect advocacy judged with the benefit of hindsight”).
Petitioner asserts the following grounds for his ineffective assistance of trial counsel claim: (1) failure to establish that Petitioner's confession was obtained by deceptive tactics; (2) failure to object to certain questions; (3) failure to seek redaction of Petitioner's videotaped confession; (4) misstatement of the burden of proof during voir dire; and (5) failure to seek dismissal of the predatory sexual assault count. Pet. at pp. 7-8. Petitioner also asserts claims based on matters outside of the record. For instance, he maintains that his trial attorney failed to read a police report, and listen carefully to video evidence, failed to send relevant evidence to an expert, and failed to use that evidence to establish during questioning that law enforcement acted inappropriately. Pet. at p. 7. As stated by the Fourth Department, “[t]o the extent that [Petitioner's] contention that he received ineffective assistance of counsel is based on matters outside the record, his contention must be raised via a motion pursuant to CPL article 440.” People v. Partridge, 173 A.D.3d at 1771. No such motion has been filed. Accordingly, Petitioner's ineffective assistance claim has not been properly exhausted. Failure to raise all claims in state court before petitioning a federal habeas court bars review. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 633 (2d Cir. 2001). Thus, the Court will only examine the following claims on the merits.
In any event, these claims would be subject to dismissal on the merits as entirely speculative. This type of conclusory claim cannot serve as a basis for an ineffectiveness argument. “It is well-settled in this Circuit that vague and conclusory allegations that are unsupported by specific factual averments are insufficient to state a viable claim foi habeas relief.” Gross v. Graham, 2016 WL 11621787, at *7 (N.D.N.Y. Aug. 26, 2016). Petitioner's conclusory allegations regarding the alleged lack of preparation are insufficient. Russell v. Rock, 2008 WL 5333327, at *3 (E.D.N.Y. Dec. 19, 2008).
a. Failure to Object
Petitioner maintains that trial counsel “made no objection to the prosecutor's cross-examination of [Petitioner] using questions that mischaracterized the evidence, and did not rehabilitate the defendant on re-direct examination” and “failed to object to the prosecutor's elicitation of a lengthy sequence of wholly inappropriate testimony until well after it occurred.” Pet. at p. 8. First, a review of the trial transcript reveals that trial counsel made several sustained objections, including to testimony about the recorded phone calls. Tr. at pp. 402-405. “[B]ald assertions fail to overcome the presumption that counsel['s] . . . decision was the product of sound trial strategy.” U.S. v. Montilla, 85 Fed.Appx. 227, 230 (2d Cir. 2003). Petitioner's allegations, without more, are insufficient to overcome this presumption because the Petition does not specifically allege what prejudice he has suffered as a result of the alleged conduct. See generally Pet. “An important part of trial strategy is deciding when objections are likely to be productive and when they are not.” Glover v. Kirk, 2020 WL 10316986, at *5 (E.D.N.Y. Apr. 20, 2020). Accordingly, trial counsel's decision not to object to certain questioning is considered trial strategy falling within the wide range of reasonable professional assistance. See, e.g., Hernandez v. Artus, 2020 WL 2769404, at *13 (E.D.N.Y. May 28, 2020) (reasonable strategic decisions are not grounds for asserting ineffective assistance of counsel).
b. Failure to Seek Redaction of Petitioner's Videotaped Confession
The same can be said for trial counsel's alleged failure to seek redaction of the video capturing Petitioner's confession. Trial counsel explicitly informed the Court that the entire video should be played for the jury because it contained “statements made by [Petitioner] which would be helpful to his defense” and any contrary statements were “not harmful in light of what [trial counsel] want[ed] to use the video for.” Tr. at pp. 419-420. Counsel clearly considered the matter and made a strategic decision not to seek redaction. Because strategic choices “are virtually unchallengeable,” Strickland v. Washington, 466 U.S. at 690 and Petitioner has not proved resulting prejudice the Court concludes that habeas relief is not warranted on this ground.
c. Misstatement of Burden of Proof
Petitioner also asserts that his trial counsel “misrepresented the burden of proof during voir dire” because she asked potential jurors if they were “open to the possibility” that Petitioner was innocent. Pet. at p.8; Tr. at pp. 173-174. As discussed, “it is difficult to establish ineffective assistance when counsel's overall performance indicates active and capable advocacy.” U.S. v. Hild, 644 F.Supp.3d 7, 46 (S.D.N.Y. 2022). For instance, courts have found that errors that do not expressly “shift th[e] burden [of proof] to the defendant” do not render counsel ineffective. See Smith v. Ercole, 2010 WL 6595338, at *26 (N.D.N.Y. June 16, 2010). Moreover, where the record as a whole demonstrates that the jury was properly instructed regarding the burden of proof, trial counsel cannot be deemed ineffective. Id.
Here, the jury was consistently reminded that Petitioner was presumed innocent, and the prosecution bore the burden of proof. For instance, the court emphasized:
[T]he defendant is presumed innocent. The presumption of innocence remains with the defendant unless and until you conclude in your deliberations at the end of the case that the People have proven the defendant guilty of all the elements of a charged crime . . . . Because the defendant is presumed innocent, the People have the burden of proving the defendant guilty of all of the elements of a charged crime beyond a reasonable doubt. The defendant is not required to prove that he is not guilty. . . . The burden of proof of guilt beyond a reasonable doubt remains on the People throughout the trial and never shifts to the defendant.Tr. at p. 20. Likewise, during her opening statement the prosecutor reminded the jury: “it is my responsibility as a representative of the People of the State of New York to prove [criminal] acts beyond a reasonable doubt. It is a burden I welcome. And a burden I take full responsibility for. I will not shift it.” Tr. at pp. 226-227. And surely, Petitioner's trial counsel reminded the jury: “You have to keep in mind again the presumption of innocence . . . . [Petitioner] is presumed innocent until you have heard all the evidence with an open and fair mind . . . [and] decide whether or not the prosecution has overcome that presumption of innocence.” Tr. at p. 231. In its final charge, the court charged the jury: “Throughout these proceedings the defendant is presumed to be innocent. As a result, you must find the defendant not guilty unless on the evidence presented at this trial you conclude that the People have proven the defendant guilty beyond a reasonable doubt.” Tr. at pp. 702-703.
On this record, it is clear to the Court that the correct burden of proof was properly emphasized throughout Petitioner's trial. Thus, Petitioner's ineffective assistance claim fails on this ground.
d. Failure to Seek Dismissal of the Predatory Sexual Assault Count
Petitioner also takes issue with the fact that “[t]rial counsel . . . prepared a defense for Count 1 even though it charged the Petitioner with violating a statute before it was enacted.” Pet. at p. 8. This claim is meritless. The record clearly establishes that trial counsel moved for dismissal of the predatory sexual assault count both at the close of the People's case and after evidence had closed. Tr. at pp. 504, 620-621. Trial counsel's requests were denied. Had she gone forward without preparing a defense, the Court “is confident [Petitioner] would have challenged that decision as yet another ground for ineffective assistance.” Bright v. United States, 2018 WL 5847103, at *4 (S.D.N.Y. Nov. 8, 2018). Petitioner has also failed to show any prejudice resulting from his trial counsel being adequately prepared. As such, Petitioner's claim presents no basis for habeas relief.
2. Appellate Counsel
The Strickland standard, stated above, applies to evaluating claims of ineffective assistance of appellate counsel. Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). Accordingly, to succeed on an ineffective assistance of appellate counsel claim, Petitioner must show that appellate counsel “omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker” and that “there was a ‘reasonable probability' that [his] claim would have been successful before the [state's highest court].” Clark v. Stinson, 214 F.3d 315, 322 (2d Cir. 2000); Mayo v. Henderson, 13 F.3d at 534 (internal quotation marks omitted).
Here, Petitioner argues that appellate counsel was ineffective for failing to raise Petitioner's ineffective assistance of trial counsel claim in a CPL § 440.10 motion (postconviction motion to vacate judgment). Pet. at pp. 9-13. Petitioner presents no basis for relief. The AEDPA statute itself provides that “the ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief.” 28 U.S.C. § 2254(i) (emphasis added). Likewise, it is well settled that there is no constitutional right to an attorney in state post-conviction proceedings. See, e.g., Coleman v. Thompson, 501 U.S. 722, 752 (1991). “Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings.” Id.; see also Wainwright v. Torna, 455 U.S. 586 (1982) (where there is no constitutional right to counsel there can be no deprivation of effective assistance). Thus, Petitioner's claim does not warrant habeas relief.
In conclusion, the Fourth Department's finding that Petitioner “received meaningful representation” was accurate. People v. Partridge, 173 A.D.3d at 1772.
IV. CONCLUSION
For the reasons stated herein, it is hereby
RECOMMENDED, that the Petition be DENIED and DISMISSED; and it is further
RECOMMENDED, that no Certificate of Appealability be issued because Petitioner has failed to make “a substantial showing of the denial of a constitutional right” as required by 28 U.S.C. § 2253(c)(2);and it is
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); see also Richardson v. Greene, 497 F.3d 212, 217 (2d Cir. 2007) (holding that, if the court denies a habeas petition on procedural grounds, “the certificate of appealability must show that jurists of reason would find debatable two issues: (1) that the district court was correct in its procedural ruling, and (2) that the applicant has established a valid constitutional violation”).
ORDERED, that the Clerk of the Court serve a copy of this ReportRecommendation and Order upon the parties to this action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such obligations shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15, 16 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); FED. R. CIV. P 72 & 6(a).