Opinion
20 Civ. 8445 (KMK)(PED)
02-14-2023
Timothy Ramirez, Petitioner, v. Superintendent of Five Points Correctional Facility, Respondent.[1]
TO THE HONORABLE KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
PAUL E. DAVISON, U.S.M.J.
I. INTRODUCTION
Timothy Ramirez (“Petitioner”) proceeding pro se, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his conviction and sentence in Supreme Court for the State of New York in the County of Dutchess. [Dkt. 2.] On August 12, 2013, Petitioner was found guilty by jury verdict of conspiracy in the second degree, two counts of attempted murder in the second degree, one count of assault in the first degree, and one count of attempted assault in the first degree. He received sentences amounting in the aggregate to 58 1A to 75 years imprisonment. Petitioner is currently serving his sentence at the Five Points Correctional Facility in Seneca County, New York. The Petition comes before me pursuant to an Order of Reference entered on October 26, 2020. [Dkt. 7.] For the reasons set forth below, I respectfully recommend that Your Honor DENY the Petition.
II. BACKGROUND
The information in this section is taken from the Petition [Dkt. 2], Respondent's Answer and associated exhibits [Dkts. 8, 9], and Petitioner's traverse [Dkt. 14].
1. The Crime
Between March 4, 2012 and March 6. 2012, Petitioner and six other members of the Almighty Latin King and Queen Nation (“Latin Kings”) conspired to kill Ruben Rivera and Kym Perez-Colon. Mr. Rivera had violated the “laws” of the Latin Kings by taking money from the gang for unauthorized purposes. Petitioner, a leader of the gang, issued a “direct order”, instructing four other Latin Kings to kill Mr. Rivera and Ms. Perez-Colon.
On March 6, 2012, the four gang member-accomplices went to the apartment where Mr. Rivera and Ms. Perez-Colon lived and knocked on the door. Ms. Perez-Colon answered the door, whereupon one member of the hit team shot Ms. Perez-Colon in the chest and then shot Mr. Rivera in the face. Another Latin King stabbed Mr. Rivera with a knife. The conspirators then fled.
The shooter was Justin Alfonso. Your Honor recently denied relief to Mr. Alfonso in a separate habeas action arising out of the same joint trial. Alfonso v. LaManna, 18 Civ. 4607 (KMK)(PED).
2. The Trial
a. Testimony
Trial began on April 22, 2013 and continued until June 1, 2013. The prosecution presented twenty witnesses, including the two victims, Mr. Rivera and Ms. Perez-Colon. Three of Petitioner's original co-defendants testified for the prosecution as cooperating witnesses, Testimony established that Petitioner was the “first crown” of the group, and that he would make the final decision on any terminate on site (“TOS”) order. [Dkt. 9-14 at 133.] Testimony also established that on March 4, 2013, Petitioner instructed his co-conspirators to carry out a TOS on Mr. Rivera and Ms. Perez-Colon within 48 hours. [Dkt. 9-18 at 150-51; Dkt. 9-25 at 202.] There was also evidence that after Mr. Rivera and Ms. Perez-Colon were shot, one of the accomplices called Petitioner to inform him that the TOS had been completed. [Dkt. 9-20 at 166.] The evidence showed that Petitioner fled to to Texas shortly thereafter. [Dkt. 9-27 at 190.]
b. Plea Negotiations
Prior to the testimony of the first lay witness, the prosecution offered Petitioner a reduced sentence in exchange for Petitioner's cooperation and his plea of guilty to the charges on the indictment. [Dkt. 9-9 at 49-50.] The prosecution offered Petitioner a an 11 ‘A year sentence. [Id. at 50.] Petitioner rejected the offer. [Id. at 52,]
c. Jury Sequestration
By May 23, 2013, the prosecution completed its case and the defense rested. [Dkt. 9-28 at 185.] At the end of the trial day, the court informed the jury of the upcoming schedule and warned that the jury may have to be sequestered for the remainder of trial. [Id. at 197-200.] The court dismissed the jury and held the charge conference with the defense attorneys. [Id. at 210.]
Trial reconvened on May 28, 2013. [Dkt. 9-29 at 1.] After the defendants delivered their summations, the court dismissed the jury and the defendants and conducted proceedings with only counsel present. [Id. at 104.] The court informed counsel that the jury would be sequestered. [Id. at 105.] Petitioner's counsel, David Segal, asked whether defense counsel was required to be present when the court instructed the jury about sequestration. [Id. at 108.] The court informed defense counsel that they would be called back in if there were any problems. [Id. at 109.] All counsel then left and the court brought the jury back and advised them that they would be sequestered in a particular hotel for their deliberations. [Id. at 110.] The court further informed them that they would need to bring personal items the next day and they would take a bus from the courthouse to the hotel after they finished for the day. [Id. at 111.] The court also reviewed the next day's scheduled and inquired whether any of the jurors had dietary restrictions. [Id. at 112-13.] The court answered the jurors' questions before releasing them for the evening. [Id. at 114-20.]
d. Summations
The following day, May 29, 2013, the prosecutor delivered his summation. [Dkt. 9-30 at 1-111.] At the end of the prosecution's summation, all of the defendants moved for a mistrial on the grounds that the prosecutor used words meant to “inflame” the jury in his summation. [Id. at 117-19.] The trial court denied defendants' motion and held that the prosecutor had the right to make fair comment on the evidence and that the defendants were not prejudiced by the summation. [Id. at 119-20.]
e. Verdict and Sentencing
After summations, the court instructed the jury on the crimes each defendant allegedly committed. The jury deliberated for approximately two days before returning their verdict. The jury found Petitioner guilty of one count of conspiracy in the second degree, two counts of attempted murder in the second degree, one count of assault in the first degree, and one count of attempted assault in the first degree. [Dkt. 9-31 at 108-09.]
Petitioner was sentenced on August 12, 2013. [Dkt. 18-1 at 1.] For the conspiracy count, Petitioner was sentenced to an indeterminate term of eight and one-third to 25 years in prison. [Id. at 14.] For each attempted murder count, Petitioner was sentenced to a determinate term of 25 years to be followed by five years post-release supervision. [Id at 15.] The court imposed these sentences to ran consecutively. [Id. at 15-16.] For the assault count, Petitioner was sentenced to a determinate term of 15 years to be followed by five years post-release supervision, and for the attempted assault count, Petitioner was sentenced to a determinate term of 10 years to be followed by five years post-release supervision. [Id. at 15] Petitioner's sentences for the assault and the attempted assault were to run concurrently with the sentences for the other counts. [Id. at 16.]
B. Procedural History
1. Petitioner's Direct Appeal
On July 5, 2016, Petitioner, through counsel, appealed his conviction. [Dkt. 8-19 at 69.] Petitioner raised six grounds for appeal. Specifically, Petitioner argued that: (1) the county court issued the sequestration instractions to the jury in the absence of Petitioner and his counsel; (2) the county court allowed juror note-taking but then failed to instruct the juiy on the use of notes; (3) the county court improperly denied Petitioner's request to charge the jury on the lesser included offense of conspiracy in the fourth degree; (4) the state introduced evidence of other crimes; (5) the county court improvidently denied defense counsel's motion for a mistrial based on improper prosecutorial summation argument; and (6) the county court improperly imposed the maximum sentence. [Id. at 17-69.] The state submitted its opposition on October 5, 2017. [Dkt. 8-20 at 67.]
By decision dated January 10, 2018, the Appellate Division, Second Department affirmed the judgment against Petitioner. See People v. Ramirez, 69 N.Y.S.3d 76 (App. Div. 2018). The Appellate Division found that the sequestration information that the county court provided to the jury was “purely ministerial and wholly unrelated to the substantive legal and factual issues of the trial” and thus “bore no substantial relationship to the defendant's opportunity to defend against the charges, and it did not violate his right to be present[.]” Id. at 78. The Appellate Division held that Petitioner's arguments that the county court failed to issue instructions to the jury concerning note-taking and that the county court erred in admitting evidence of a prior uncharged crime were unpreserved. Id. The Appellate Division further held that Petitioner's claim that the prosecution made improper comments during his summation was unpreserved, and “[i]n any event, the challenged remarks were either within the broad bounds of permissible rhetorical comment, fair comment on the evidence and the reasonable inferences to be drawn therefrom, or otherwise did not deprive the defendant of a fair trial.” Id. (internal citations omitted). The Appellate Division also found that “the sentence imposed by the County Court did not improperly penalize him for exercising his right to a jury.” Id. at 79.
On January 20, 2018, Petitioner, through counsel, requested leave to appeal the Appellate Division's decision to the Court of Appeals. [Dkt. 8-22 at 1.] The state submitted its opposition on March 5, 2018. [Dkt. 8-23 at 1.] On April 2, 2018, the Court of Appeals summarily denied Petitioner's request for leave to appeal. People v. Ramirez, 102 N.E.3d 1067 (Table) (N.Y. 2018).
2. Petitioner's CPL § 440.10 Motion
By application dated October 18, 2016, Petitioner submitted a Freedom of Information Law request to the Assistant District Attorney for Dutchess County for the full contents of his file. [Dkt. 8-25 at 44.] Petitioner later received these documents. On November 28, 2018, Petitioner filed a motion to vacate the judgment pursuant to CPL § 440.10. [Id. at 1.] Petitioner raised three arguments in his CPL § 440.10 motion. First, Petitioner argued that the trial prosecutor impermissibly withheld BradylGiglio evidence. [Dkt. 8-25 at 7-21.] Second, Petitioner argued that he was actually innocent of the crimes for which he was convicted. [Id. at 22-27.] Finally, Petitioner argued that the evidence did not support the verdict. [Id. at 28-29.] The state submitted its opposition on August 30, 2019. [Dkt.8-27 at 2.] Petitioner submitted a reply through papers dated September 10, 2019. [Dkt. 8-28 at 16.]
On December 3, 2019, the County Court for the County of Dutchess denied Petitioner's CPL § 440.10 motion. [Dkt. 8-29 at 6.] The County Court found that the prosecution had “provided voluminous discovery material prior to the commencement of trial and continued to do so during the course of the proceedings.” [Id. at 4.] The County Court further found that given the Appellate Division's finding that there was overwhelming evidence of Petitioner's guilt, any newly discovered evidence would not have changed the outcome of trial. [Id. at 4-5.] For similar reasons, the County Court found Petitioner's argument that he was actually innocent to be without merit and that Petitioner failed to show by clear and convincing evidence that he was actually innocent. [AZ at 5-6.] Finally, the County Court held Petitioner's claim that the verdict is against the weight of the evidence was without merit based on the Appellate Division's determination that there was overwhelming evidence of Petitioner's guilt. [Id. at 6.]
Petitioner requested leave to appeal the County Court's decision to the Appellate Division, but on May 18, 2020, the Appellate Division summarily denied Petitioner's request. People v. Ramirez, 2020 WL 2517504 (N.Y.App.Div. May 18, 2020).
3. The Instant Petition
Petitioner executed the instant Petition and delivered it to prison officials for mailing on October 7, 2020. [Dkt. 2 at 15.] The Petition was received by the Clerk's Office and filed on October 8, 2020. The Respondent filed a response in opposition to the Petition on December 14, 2020. [Dkt. 9.] On February 2, 2021, Petitioner filed a traverse in reply to Respondent's answer. [Dkt. 14.]
III. APPLICABLE LAW
“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)). 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 there has been procedural compliance with these statutes, the court must then determine the appropriate standard of review applicable to the petitioner's claim(s) in accordance with § 2254 (d). The procedural and substantive standards applicable to habeas review, which were substantially modified by the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), are summarized below.
A. Exhaustion Requirement
A federal court may not grant habeas relief unless the petitioner has first exhausted his claims in state court. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); see 28 U.S.C. § 2254(b)(1) (“[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 unless it appears that - (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant”); id. § 2254(c) (the petitioner “shall not be deemed to have exhausted the remedies available in the courts of the State ... if he has the right under the law of the State to raise, by any available procedure, the question presented”). The exhaustion requirement promotes interests in comity and federalism by demanding that state courts have the first opportunity to decide a petitioner's claims. Rose v. Lundy, 455 U.S. 509, 518-19 (1982).
To exhaust a federal claim, the petitioner must have “fairly present[ed] his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim,” and thus “giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Baldwin V. Reese, 541 U.S. 27, 29 (2004) (internal quotation marks and citations omitted). “Because nonconstitutional claims are not cognizable in federal habeas corpus proceedings, a habeas petition must put state courts on notice that they are to decide federal constitutional claims.” Petrucelli v. Coombe, 735 F.2d 684, 687 (2d Cir. 1984) (citing Smith v. Phillips, 455 U.S. 209, 221 (1982)). Such notice requires that the petitioner “apprise the highest state court of both the factual and legal premises of the federal claims ultimately asserted in the habeas petition.” Galdamez v. Keane, 394 F.3d 68, 73 (2d Cir. 2005) (internal citation omitted). A claim may be “fairly presented” to the state courts therefore, even if the petitioner has not cited “chapter and verse of the Constitution,” in one of several ways:
(a) [R]eliance on pertinent federal cases employing constitutional analysis, (b)
reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.Daye v. Att'y Gen. of N. Y, 696 F.2d 186, 194 (2d Cir. 1982). A habeas petitioner who fails to meet a state's requirements to exhaust a claim will be barred from asserting that claim in federal court. Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
However, “[f]or exhaustion purposes, a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred.” Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (internal quotation omitted). “In such a case, a petitioner no longer has ‘remedies available in the courts of the State' within the meaning of 28 U.S.C. § 2254(b).” Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991). Such a procedurally barred claim may be deemed exhausted by a federal habeas court. See, e.g., Reyes, 118 F.3d at 13 9. However, absent a showing of either “cause for the procedural default and prejudice attributable thereto,” Harris v. Reed, 489 U.S. 255, 262 (1989), or “actual innocence,” Schlup v. Delo, 513 U.S. 298 (1995), the petitioner's claim will remain unreviewable by a federal court.
Finally, notwithstanding the procedure described above, a federal court may yet exercise its discretion to review and deny a mixed petition containing both exhausted and unexhausted claims, if those unexhausted claims are “plainly meritless.” Rhines v. Weber, 544 U.S. 269, 277 (2005); see 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”); Padilla v. Keane, 331 F.Supp.2d 209, 216 (S.D.N.Y. 2004) (interests in judicial economy warrant the dismissal of meritless, unexhausted claims).
B. Procedural Default
Even where an exhausted and timely 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, 489 U.S. at 262; see also Coleman v. Thompson, 501 U.S. 722, 730 (1991); 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 will be “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 will be “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)).
The Supreme Court has held that a federal court may review a claim that is procedurally barred if the petitioner can show a “miscarriage of justice,” which occurs where a petitioner is “actually innocent of the crime for which he has been convicted.” Cotto v. Herbert, 331 F.3d 217, 239 n.lO (2d Cir. 2002); see Coleman, 501 U.S. at 729.
C. AEDPA Standard of Review
Before a federal court can determine whether a petitioner is entitled to federal habeas relief, the court must determine the proper standard of review under AEDPA for each of the petitioner's claims. 28 U.S.C. § 2254(d)(1)-(2). This statute “modifie[d] the role of federal habeas corpus courts in reviewing petitions filed by state prisoners,” and imposed a more exacting standard of review. Williams v. Taylor, 529 U.S. 362, 402 (2000). For petitions filed after AEDPA became effective, federal courts must apply the following standard to cases in which the state court adjudicated on the merits of the claim:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted 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.§ 2254(d)(1)-(2). The deferential AEDPA standard of review will be triggered when the state court has both adjudicated the federal claim “on the merits,” and reduced its disposition to judgment. Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001).
Under the first prong, a state court decision is contrary to federal law only if it “arrives at a conclusion opposite to that reached by the [the Supreme Court] on a question of law or if [it] decides a case differently than [the Supreme Court] on a set of materially indistinguishable facts.” Williams, 529 U.S. at 413. A decision involves an “unreasonable application” of Supreme Court precedent if the state court “identifies the correct governing legal rule from the Supreme Court cases but unreasonably applies it to the facts of the particular state prisoner's case,” or if it “either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Id. at 407.
Under the second prong of AEDPA, the factual findings of state courts are presumed to be correct. 28 U.S.C. § 2254(e)(1); see Nelson v. Walker, 121 F.3d 828, 833 (2d Cir. 1997). The petitioner must rebut this presumption by “clear and convincing evidence.” § 2254(e)(1).
IV. ANALYSIS
Petitioner raises four grounds for habeas relief in his timely filed Petition. Petitioner first argues that his right to be present at all material stages of trial was violated when the trial court gave sequestration instructions to the juiy. [Dkt. 2-1 at 29-34.] Petitioner next argues that the prosecution impermissibly withheld BradylGiglio material and that he is actually innocent. [Id. at 35-47.] Petitioner further argues that the trial court improperly penalized him at sentencing for exercising his right to a jury trial. [Id. at 47-51.] Finally, Petitioner argues that the prosecutor's comments during summation deprived him of a fair trial. [Id. at 52-58.]
A. Petitioner's Right to Be Present Was Not Violated
Petitioner first argues that his Sixth Amendment right to be present was violated when the trial judge instructed the jury regarding sequestering, outside of the presence of Petitioner, Petitioner's counsel, and counsel for the prosecution. Petitioner properly exhausted this argument by raising it in his appeal to the Appellate Division and in his leave application to the Court of Appeals. The Appellate Division was not persuaded by Petitioner's argument and determined that because “the challenged discussion bore no substantial relationship to the [Petitioner's] opportunity to defend against the charges,” the discussion did not violate his right to be present. Ramirez, 69 N.Y.S.3d at 78.
“The Due Process Clause and the Confrontation Clause of the Sixth Amendment, as applied to the States via the Fourteenth Amendment, both guarantee to a criminal defendant.. . the ‘right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings.'” Tennessee v. Lane, 541 U.S. 509, 523 (2004) (quoting Faretta v. California, 422 U.S. 806, 819 n.15 (1975)). The Supreme Court has “recognized that this right is protected by the Due Process Clause in some situations where the defendant is not actually confronting witnesses or evidence against him.” United States v. Gagnon, 470 U.S. 522, 526 (1985). Nonetheless, “the right to be present is not absolute: it is triggered only when the defendant's ‘presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.'” Cohen v. Senkowski, 290 F.3d 485, 489 (2d Cir. 2002) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06 (1934)). Accordingly, a criminal defendant need not be present “when presence would be useless, or the benefit but a shadow[.]” Kentucky v. Stincer, 482 U.S. 730, 745 (1987). When a court is determining whether a defendant's right to be present was violated, the court must consider “whether, in light of the record as a whole ... the defendant's presence at the proceeding in question would have contributed to his opportunity to defend himself against the charges.” Contreras v. Artus, 778 F.3d 97, 113 (2d Cir. 2015) (citations omitted). If there is a violation, the Second Circuit has distinguished between “structural errors”, which are subject to automatic reversal, and “trial errors”, which are subject to the harmless error review. Yarborough v. Keane, 101 F.3d 894, 896-97 (2d Cir. 1996).
Here, Petitioner argues that he-as well as his counsel-were inappropriately excluded from hearing the trial court's instructions to the jury concerning sequestering. On May 28, 2013, after the trial court had dismissed the jury and the defendants, the trial court informed counsel that the jury would be sequestered:
SEGAL: 1 understand that, so they would - but what I am saying is right now you're going to tell them they are going to be sequestered. Assuming that some of them have problems, shouldn't we be here and then you can tell to go once you decide where you're going to put them and all of that?
COURT: My understanding is they pretty well know what's going on ... Initially there was some problem last week with one of the
jurors who [sic] my husband is going to be away, apparently that's been resolved. My impression is there's not an issue. If there is, if you guys just want to wait downstairs or something, that's fine, I understand what you're saying, but I don't think there's going to be a problem. It's more a question of how we are able to accommodate, do the transportation, do everything we need to do. This isn't the first trial we've ever sequestered and it's not going to be the last. You cannot be sequestered, Mr. Patterson, I'm sorry.
PATTERSON: That's good. Thank you.
COURT: If you guys can just - if I could ask you to leave because obviously I'm going to bring them in now and tell them, you know, and -
PETITO: We are not coming back?
COURT: Well, I don't think so unless there's a problem.
(Whereupon, counsel exited the courtroom.)[Dkt. 9-29 at 108-09.] The trial court then brought the jury in and informed them where they would be sequestered for their deliberations. [Id. at 110.] The trial court then informed them about the logistics of their sequestration, including the location of the hotel, how they would get there, and that they would need to bring personal items the next day. [Id. at 111 -20.]
Petitioner has failed to demonstrate that his ability to defend himself was at all compromised when the trial court informed the jury that it would be sequestered. When viewing the record as a whole, Petitioner's presence during this discussion could not have contributed to his defense, because these proceedings involved conveying primarily logistical information to the jury regarding how they would be sequestered. Accordingly, any benefit that may have been conferred with Petitioner's presence during the sequestration instructions would have been “but a shadow[.]” Stincer, 482 U.S. at 745.
Further, even if this court were to conclude that a violation took place, the violation would not be a structural error because it did not “so fundamentally undermine the fairness or the validity of the trial that [it requires] voiding its results regardless of the identifiable prejudice.” Yarborough, 101 F.3d at 897. Instead, it would be a trial error and subject to the harmless erroranalysis. See id. at 896. Here, because Petitioner's absence from the court's discussion with the jury had no bearing on the jury finding Petitioner guilty, any error that may have occurred here was indeed harmless. See id. at 899 (finding harmless error where the alleged error did not have a “substantial and injurious effect or influence in determining the jury's verdict.”)
Therefore, the Appellate Division's finding that “the challenged discussion bore no substantial relationship to the [Petitioner's] opportunity to defend against the charges,” was neither contrary to Supreme Court law, nor an unreasonable interpretation of the facts. Ramirez, 69 N.Y.S.3d at 78. Accordingly, I conclude, and I respectfully recommend Your Honor conclude, that habeas relief is not warranted on this ground.
B. Petitioner Was Not Deprived of BradylGiglio Evidence And Petitioner's Claim of Actual Innocence Is Not Cognizable In Habeas
Petitioner raises two arguments in his second ground. First, Petitioner argues that he was denied his BradylGiglio rights because the prosecution failed to disclose that one of the witnesses was paid in exchange for her testimony. [Dkt. 2-1 at 35-43.] Petitioner's second argument is that he's actually innocent of the charges. [Dkt. 2-1 at 43-47.]
1. Petitioner Was Not Deprived of BradylGiglio Evidence
Petitioner's first argument is that he was denied his BradylGiglio rights because the prosecution failed to disclose that one of the witnesses was paid in exchange for her testimony. More specifically, Petitioner claims that based on his FOIL request, he determined that payments totaling $2,200.00 were made to Kymberly Perez-Colon, one of the victims of the shooting and a witness for the prosecution, and that these payments were not disclosed to his counsel. Petitioner properly exhausted this claim by raising it to the County Court, and appealing the County Court's denial to the Appellate Division, In denying Petitioner's claim, the County Court found that the prosecution had appropriately “provided voluminous discovery material prior to the commencement of trial and continued to do so during the course of the proceedings” and that any newly discovered evidence would not have changed the outcome of the trial. [Dkt. 8-29 at 45.]
Petitioner argues that the total amount of payments made to Ms. Perez-Colon was $2,200.00. [Dkt. 2-1 at 35.] However, the evidence shows one check for $1,500.00 for Ms. Perez-Colon's mother, Elizabeth Perez-Colon, and another check for $500.00 with the name of the individual blackened out. [Dkt. 8-25 at 37.]
Pursuant to the Supreme Court's decision in Brady v. Maryland, “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. 83, 87 (1963). “There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82 (1999). “A habeas petitioner must satisfy all three elements to prevail on a Brady claim.” Chrysler v. Guiney, 14 F.Supp.3d 418, 449 (S.D.N.Y. 2014).
In Giglio v. United States, Supreme Court expanded the meaning of Brady material to include “evidence that is useful for impeachment, i.e., having the potential to alter the jury's assessment of the credibility of a significant prosecution witness.” United States v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998) (citing Giglio, 405 U.S. 154-55 (1972)). “If the government has failed to disclose to the defendant evidence favorable to him, relief is warranted only if the evidence was ‘material.'” Id. at 256. “[F]avorable evidence is material, and constitutional error results from its suppression by the government, if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Id. Evidence for impeachment purposes is “less likely to be considered material when it merely furnishes an additional basis on which to impeach a witness whose credibility has already been shown to be questionable.” United States v. Spinelli, 551 F.3d 159,165 (2d Cir. 2008) (internal quotations omitted).
Here, Petitioner alleges that his BradylGiglio rights were violated because the prosecution failed to disclose that payments were made to Ms. Perez-Colon. Indeed, payments were made by the prosecution to Ms. Perez-Colon's mother, Elizabeth Perez-Colon. [Dkt. 8-25 at 37.] In further support of his CPL § 440.10 motion, Petitioner submitted a letter from one of the attorneys who represented him during trial, Devon M. Wilt. In the letter, Ms. Wilt indicated that she did “not have any knowledge of any information as to any witness being paid by the District Attorney” and that the only compensation she remembered was a hotel room for the male victim. [Id. at 42.] The prosecutor on the case, Mr. Weishaupt, submitted an affidavit in opposition to Petitioner's CPL § 440.10 motion and asserted that the payment was made to reimburse Ms. Perez-Colon's mother, “who had already paid the first month's rent at the place where the witness relocated because of a continued threat to kill her from [Petitioner] and his Latin King associates.” [Dkt. 8-27 at 2.] The prosecutor also stated that the payment was made after the witness testified and that Petitioner's attorney was “advised that the witness had been relocated.” [Id] Based on the conflicting accounts from Petitioner's counsel and the prosecutor, the record is unclear as to whether the prosecution indeed disclosed the assistance it provided to Ms. Perez-Colon, and if so, whether the extent of that assistance was disclosed.
The prosecutor states that the checks were issued after Ms. Perez-Colon's testimony. However, the relevant checks are dated May 1, 2013 [dkt. 8-25 at 37], and Ms. Perez-Colon testified on April 29, 2013, April 30, 2013, May 1, 2013, and May 2, 2013 [dkts. 9-11 to 9-14].
Nonetheless, even assuming arguendo that the payment to Ms. Perez-Colon's mother for their relocation was not disclosed, “there is not a reasonable likelihood that the failure to disclose the assistance could have affected the jury's judgment.” Taylor v. Capra, 412 F.Supp.3d 126, 138-39 (E.D.N.Y. 2019). First, as Respondent argues, Petitioner's counsel conducted only a limited examination of Ms. Perez-Colon, consistent with a trial strategy of distancing Ramirez-who was not present when Ms. Perez-Colon was attacked-from the defendants who actually participated in the attack. Second, sound defense strategy dictated that counsel avoid any reference to the fact that Ms. Perez-Colon had been relocated-including any payments related to the relocation-to avoid “opening the door” to evidence that the victim had been threatened by Petitioner and the other Latin Kings. Third, although Petitioner's counsel did not seek to impeach Ms. Perez-Colon, the witness was extensively impeached by counsel for Petitioner's co-defendants, who introduced prior inconsistent statements and testimony including contradictions regarding a previous TOS [dkt. 9-13 at 39], regarding whether she was expecting an attack [Id. at 84-85, 94-95], and regarding which conspirators were present at the attack [Id. at 177-78]. Disclosure of the relocation assistance would have only had some additional impeaching effect, and thus the evidence is not material. See Taylor, 412 F.Supp.3d at 139.
Further, Ms. Perez-Colon's testimony “was just one piece of a larger puzzle of evidence at trial.” Id. In addition to Ms. Perez-Colon's testimony, there was also testimony from the other victim, Mr. Rivera, and three of Petitioner's co-conspirators. Mr. Rivera testified that Petitioner was the first crown of the group and any TOS needed to be approved of by him. [Dkt. 9-14 at 133.] A former co-defendant, Miosotys Herrera-Garcia, testified that on March 4, 2013, Petitioner instructed her and the other co-conspirators to cany out a TOS on Mr. Rivera and Ms. Perez-Colon within 48 hours. [Dkt. 9-18 at 150-51.] Another witness similarly testified that she was present and heard this discussion between Petitioner and his co-conspirators. [Dkt. 9-25 at 202.] Finally, yet another former co-defendant, Nyquez Price, testified that after Mr. Rivera and Ms. Perez-Colon were shot, the co-defendant who shot them called Petitioner to inform him that the TOS had been carried out. [Dkt. 9-20 at 165-66.] Therefore, although Ms. Perez-Colon's testimony was undoubtedly helpful, her testimony is not what ultimately connected Petitioner to the attack. Thus, even if additional impeachment evidence was introduced, it would have little impact on the result because Ms. Perez-Colon's testimony was not part of the evidence that actually connected Petitioner to the attack. See Avellino, 136 F.3d at 255. Given that the relocation assistance evidence is not material, the County Court's holding that any newly discovered evidence would not have changed the outcome of the trial was not contrary to Supreme Court law, [Dkt. 8-29 at 4-5.]
The County Court's holding was also not an unreasonable interpretation of the facts. Petitioner argues that the County Court's factual findings are not entitled to deference, because the County Court did not conduct an evidentiary hearing. Indeed, a state court's factual findings are “generally presumed to be correct”, but this presumption is not required when the material facts were not “adequately developed at the state court hearing or the court's factual determinations are not fairly supported by the record.” Morris v. Reynolds, 264 F.3d 38, 47 (2d Cir. 2001) (internal quotation marks omitted). Here, however, the County Court determined that there was no need for a hearing because Petitioner presented the alleged BradylGiglio evidence and the state offered evidence to rebut Petitioner's alleged BradylGiglio violation. Thus, the record was adequately developed and the court's factual determinations were fairly supported by the record. Morris, 264 F.3d at 47. Accordingly, I conclude, and I respectfully recommend Your Honor conclude, that there was no violation of Brady and its progeny, and that this claim should be denied as meritless.
2. Petitioner's Claim of Actual Innocence is Not Cognizable
Petitioner also argues that his BradylGiglio claim supports his claim of actual innocence. Petitioner properly exhausted this argument by raising it in a CPL § 440.10 motion to the County Court, and appealing the County Court's denial to the Appellate Division. When it denied Petitioner's argument, the County Court found that Petitioner failed to show by clear and convincing evidence that he was actually innocent, especially in light of the Appellate Division's finding that there was overwhelming evidence of Petitioner's guilt. [Dkt. 8-29 at 5-6.]
As Petitioner acknowledges, “[c]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.” Herrera v. Collins, 506 U.S. 390, 400 (1993). Petitioner claims that the BradylGiglio violation is the independent constitutional violation. However, for the reasons stated above, Petitioner's claim under BradylGiglio is without merit. Given that there was no independent constitutional violation, the County Court's findings were neither contrary to Supreme Court law, nor an unreasonable interpretation of the facts. Accordingly, I respectfully recommend that Your Honor conclude that this claim is without merit.
C. Petitioner Was Not Subjected to a Vindictive Sentence
For his third ground for habeas relief, Petitioner argues that the County Court imposed a sentence that penalized him for exercising his right to trial. This ground was properly exhausted by Petitioner as he raised it when he appealed his conviction to the Appellate Division and when he appealed the Appellate Division's decision to the Court of Appeals. The Appellate Division held that the “County Court did not improperly penalize him for exercising his right to a jury trial” and that a “review of the record reveal[ed] no retaliation or vindictiveness against the [Petitioner] for electing to proceed to trial.” Ramirez, 69 N.Y.S.3d at 79.
Indeed, a court may not “vindictive[ly]” sentence a defendant for exercising a constitutional right, such as going to trial instead of agreeing to plea. See North Carolina v. Pearce, 395 U.S. 711, 725 (1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794 (1989). Petitioner argues that he was vindictively sentenced because the prosecution offered him ll/z years, but the trial judge later sentenced him to an indeterminate term of 581/s to 75 years.[See Dkt. 2-1 at 47; see also Dkt. 8-1 at 1.] First, I note that the prosecution's 1 DA year offer was explicitly conditioned on Petitioner's “full cooperation” at the trial of any co-defendants who proceeded to trial [dkt. 9-9 at 50], and of course such cooperation was not forthcoming. In any event, the disparity between the plea offer and the eventual sentence is insufficient to establish that Petitioner was punished for exercising his right to proceed to trial. Walker v. Walker, 259 F.Supp.2d 221, 226 (E.D.N.Y. 2003) (“However, the mere fact that the sentence imposed following trial is greater than the offer made during pleas negotiations, does not indicate that a petitioner has been punished for exercising his right to proceed to trial.”)
The record reflects that Petitioner and his attorney anticipated a sentence in this range in the event of a conviction. See Dkt. 9-9 at 51 (“I have explained to him the ramifications, what will happen if he is convicted, the amount of time that he would probably get would be somewhere probably forty, fifty or more years.”)
Petitioner also argues that the vindictiveness of the sentencing is supported by comments made by the trial judge. More specifically, Petitioner observes that the trial judge stated: “For reasons I don't understand people don't want to plead, I just don't understand.” [Dkt. 9-13 at 228.] Shortly thereafter, the trial judge also stated:
Well, the answer is this, the answer is with your client, Mr. Segal [Petitioner's counsel], we all know that, either he's going to come - there's going to be some disposition with him because without him there can't be any disposition, which is quite obvious. He can actually issue a direct order, but you and I both know as a practical matter this case is not going to move unless Mr. Ramirez moves.[Id. at 229.] A week later, the trial judge stated “It's like a root canal, this trial. Did you ever have a root canal? Let's see if we could shorten it a little.” [Dkt. 9-17 at 51.] Petitioner argues that these comments demonstrate that the trial judge was frustrated with Petitioner-who was perceived as able to influence the other defendants-and therefore vindictively sentenced him. However, these comments do not amount to actually indicating vindictiveness. Indeed, had the trial judge threatened Petitioner with a more severe sentence if he elected to proceed to trial, that would “establish a per se violation of the defendant's Sixth Amendment right to trial[.]” Fielding v. LeFevre, 548 F.2d 1102,1106 (2d Cir. 1977). However, the trial judge here only expressed exasperation and did not actually threaten Petitioner with a more severe sentence. See id.', see also Brewster v. People of State of New York, 2010 WL 92884, at *11 (E.D.N.Y. Jan. 6, 2010) (collecting cases).
Copies of unreported cases cited herein will be mailed to Petitioner as a pro se litigant. See Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Thus, the Appellate Division's finding that Petitioner was not penalized for exercising his right to trial was not contrary to Supreme Court law. Further, it was not an unreasonable interpretation of the facts, given that a review of the record indeed does not reveal retaliation or vindictiveness toward Petitioner. Accordingly, I conclude, and I respectfully recommend Your Honor concludes, that Petitioner's argument that he was vindictively sentenced is without merit.
D. The Prosecution's Statements During Summation Did Not Deprive Petitioner of a Fair Trial
For his final ground for habeas relief, Petitioner argues that he was deprived of his right to a fair trial based on comments made by the prosecutor during summation. [Dkt. 2-1 at 52.] Petitioner properly exhausted this argument by raising it in his appeal to the Appellate Division, and by then appealing the Appellate Division's denial to the Court of Appeals.
1. Petitioner's Summation Claim Is Not Procedurally Defaulted
When the Appellate Division denied Petitioner's argument that the prosecutor's summation violated his right to a fair trial, the Appellate Division held:
The [Petitioner's] contention that certain comments made by the prosecutor during his summation were improper and deprived him of a fair trial is unpreserved for appellate review (see CPL 470.05[2]; People v. Grant, 137 A.D.3d 938, 938, 26 N.Y.S.3d 483). In any event, the challenged remarks were either within the broad bounds of permissible rhetorical comment, fair comment on the evidence and the reasonable inferences to be drawn therefrom, or otherwise did not deprive the [Petitioner] of a fair trial (see People v. Hawley, 112 A.D.3d 968, 969, 977N.Y.S.2d 391; People v. McGowan, 111 A.D.3d 850, 851, 975 N.Y.S.2d 147; People v. Cromwell, 99 A.D.3d 1017, 1018, 952 N.Y.S.2d 302). Further, there is no merit to the defendant's contention that the cumulative effect of the alleged trial errors, combined with the prosecutor's comments, deprived him of a fair trial (see People v. Racks, 125 A.D.3d 692, 694, 2 N.Y.S.3d 598).Ramirez, 69 N.Y.S.3d at 78. Respondent argues, in part, that Petitioner's claim is foreclosed because the Appellate Division expressly relied on an independent and adequate state ground, more specifically, section 470.05(2), also known as the “contemporaneous objection rale.” [Dkt. 9 at 83.] Indeed, the Second Circuit has consistently recognized New York's contemporaneous objection rule as an independent and adequate state procedural rule barring habeas review. See Whitley v. Ercole, 642 F.3d 278, 292 (2d Cir. 2011).
Nonetheless, before enforcing a procedural bar, this Court must apply the Cotto “guideposts”, in order to determine where the state court's application of its own procedural rule was so “exorbitant” as to render it inadequate to preclude habeas review of the federal claim. See Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003); see also Whitley, 642 F.3d at 287-88. Here, the Cotto guideposts compel the conclusion that the appellate court erred in denying Petitioner's challenges to the prosecution's summation, because Petitioner's counsel did in fact object to the improper remarks, and when the objection was sustained, moved for mistrial. See King v. Geiner, 2009 WL 2001439, at *8 (S.D.N.Y. July 8, 2009) (“Under New York law, to preserve a contention that the prosecutor's summation resulted in deprivation of a fair trial, the defendant must object to the improper remarks, and, if the objection is sustained, request a curative instruction and move for a mistrial.”). Petitioner's counsel specifically objected to certain comments made by the prosecutor during summation and, after the jury left the room, moved for a mistrial based on the inflammatory words used by the prosecutor in his summation. [Dkt. 9-30 at 107, 110,116.] In moving for a mistrial, Petitioner's counsel specifically cited the language that he, as well as co-defendants' counsel, objected to throughout the prosecutor's summation. [Id. at 117-18.] It is unclear what more Petitioner's counsel could reasonably have done to “appreciably aid the trial court in assessing the nature or merits of the claim.” Martin v. Perez, 2016 WL 5815841, at *7 (S.D.N.Y. Feb. 18, 2016) (alterations omitted) (collecting cases), report and recommendation adopted as modified, 2016 WL 5720820 (S.D.N.Y. Oct. 3, 2016). Accordingly, Petitioner's summation claim is not procedurally defaulted.
2. Petitioner's Summation Claim Is Without Merit
“The Supreme Court has instructed that habeas relief is appropriate based on improper prosecutorial comments in summation only where the prosecutor's comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.'” Griggs v. Lempke, 191 Fed.Appx. 612, 616 (2d Cir. 2020) (quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)). Accordingly, “[t]he 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. “When reviewing such 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 v. Conway, 763 F.3d 115, 146 (2d Cir. 2014) (quoting Parker v. Matthews, 567 U.S. 37, 48 (2012)).
Here, Petitioner argues that certain statements made by the prosecutor during summation deprived him of a fair trial. More specifically, in his summation, the prosecutor stated that the jury.
... got a glimpse into the skurge [sic] that these gangs reap on every community they touch across the nation. It doesn't matter what state. It doesn't matter what city. They all bring the same skurge [sic]. It's given you an insight, the evidence has, into the unspeakable and irrational violence that these people lash out with at each other and at others of a community. . . . The evidence has also provided you with a look here in this case at the unique depravity that gangs can bring. Here the recruiting of our own children, our own children.[Dkt. 9-30 at 12.] The prosecutor made a similar statement later in his summation: “ ... I ask you to hold them all accountable, and send this message that the skurge [sic] that these gangs bring to communities ... we don't want it here in Dutchess County ....” [Id. at 109-10.] Although Petitioner may not like the prosecutor's statements, in the context of the prosecutor's hours long summation that took place at the end of a six-week trial, the prosecutor's use of dramatic and evocative language did not undermine the fairness of the trial. “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 United States v. Rivera, 971 F.2d 876, 884 (2d Cir. 1992)). Accordingly, the prosecutor's description of the defendants's gang activity as a scourge does not merit habeas review.
Moreover, “statements during summation are permissible if they constitute a fair comment on the evidence at trial and reasonable inference therefrom, or a fair response to remarks made by the defense counsel during summation.” Ogletree v. Graham, 559 F.Supp.2d 250, 260 (N.D.N.Y. 2008) (internal quotation marks omitted). Here, the prosecutor's statements constituted fair comment on the trial. Indeed, Mr. Rivera testified that one of the ways to initiate an individual into the Latin Kings was to have a “beat in” whereby an individual was beaten as part of their initiation. [Dkt. 9-14 at 99.] Witness testimony identified three instances of this kind of initiation. [Dkt. 9-12 at 52-54; Dkt. 9-15 at 131; Dkt. 9-18 at 119-22.] Ms. Perez-Colon specifically testified that she saw the “beat in” of a girl that looked to be approximately thirteen years old. [See Dkt. 9-12 at 52-54.] Witnesses also testified to instances when members of the Latin Kings were beaten for not following orders. [Dkt. 9-11 at 57-58; Dkt. 9-14 at 113-16.] Therefore, the prosecutor's statements concerning the recruitment of children and the unspeakable violence that the group lashed out with constituted fair comment on the evidence. Thus, these statements by the prosecutor do not merit habeas review.
Petitioner also argues that the prosecutor compounded these comments when he argued that Petitioner “came up here and was going to kill everybody that got in his path if they looked at him wrong.” [Dkt. 9-30 at 107.] As stated above, statements by the prosecution during summation that constitute fair comment on the evidence are permissible. See Ogletree, 559 F.Supp.2d at 260. Here, witness testimony established that Petitioner indeed came to Poughkeepsie from Bronx, New York. [Dkt. 9-21 at 169.] Mr. Rivera further testified that Petitioner's goal for the group was that they would “take over and destroy.” [Dkt. 9-14 at 85.] More specifically, Mr. Rivera testified that Petitioner wanted to “take over and have no remorse, no cares, no worries. Just take over.” [Id. at 86.] Thus, the prosecutor's statements regarding Petitioner were permissible as they constituted fair comment on the evidence.
Accordingly, the Appellate Division's conclusion that “the challenged remarks were either within the broad bounds of permissible rhetorical comment, fair comment on the evidence and the reasonable inferences to be drawn therefrom, or otherwise did not deprive the [Petitioner] of a fair trial ” was neither contrary to Supreme Court law, nor an unreasonable interpretation of the facts. Ramirez, 69 N.Y.S.3d at 78. Therefore, I respectfully recommend Your Honor conclude that Petitioner's argument is without merit and his due process rights were not violated by the statements made by the prosecutor in his summation.
V. CONCLUSION
For the reasons set forth above, I respectfully recommend that Your Honor DENY the Petition for a Writ of Habeas Corpus. I recommend that no certificate of appealability be issued because reasonable jurists would not find it debatable that Petitioner has failed to demonstrate by a substantial showing that he was denied a constitutional right. See 28 U.S.C. 2253 (c); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, and Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts, the parties shall have fourteen (14) days from service of this Report and Recommendation to serve and file written objections. If copies of this Report and Recommendation are served upon the parties by mail, the parties shall have an additional three (3) days, or a total of seventeen (17) days, from service of this Report and Recommendation to serve and file written objections. See also Fed.R.Civ.P. 6 (d). Such objections, if any, along with any responses to the objections, shall be filed with the Clerk of the Court with extra copies delivered to the chambers of the Honorable Kenneth M. Karas, at the Honorable Charles L. Brieant Jr. Federal Building and United States Courthouse, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered. See Caidor v. Onondaga County, 517 F.3d 601, 604 (2d Cir. 2008). Requests for extensions of time to file objections must be made to Judge Karas. A copy of this Report and Recommendation has been mailed to:
Timothy Ramirez
DIN# 13-A-3638
Five Points Correctional Facility
State Route 96, P.O. Box 119
Romulus, NY 14541