Opinion
1:19-cv-04020 (LJL) (VF)
07-25-2022
EDWIN SANTIAGO, Petitioner, v. WILLIAM F. KEYSER, Respondent.
REPORT AND RECOMMENDATION
VALERIE FIGUEREDO, UNITED STATES MAGISTRATE JUDGE
TO: THE HONORABLE LEWIS J. LIMAN, UNITED STATES DISTRICT JUDGE
On June 8, 2012, Petitioner Edwin Santiago was convicted of assault in the first degree in the New York Supreme Court, New York County (the “trial court”) and sentenced to a term of imprisonment of 21 years, followed by 5 years of post-release supervision. Petitioner appealed his conviction, which was unanimously affirmed by the Appellate Division, First Department. Petitioner was subsequently denied leave to appeal to the New York Court of Appeals. See People v. Santiago, 161 A.D.3d 642 (1st Dep't), lv. denied, 32 N.Y.3d 1068 (2018). On May 3, 2019, Petitioner, proceeding pro se, filed the instant Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Petition, ECF No. 2.
Petitioner asserts three grounds for habeas relief: (1) that his conviction was contrary to the weight of the evidence; (2) that the trial court denied him his Sixth Amendment right to present a complete defense by effectively restricting the introduction of exculpatory evidence; and (3) that his sentence was excessive and should be reduced. Id. at 2. Respondent opposes the Petition, arguing that Petitioner fails to state a claim upon which habeas relief can be granted because: (1) Petitioner's claims regarding the weight of the evidence and excessive sentence are not cognizable on habeas review; and (2) Petitioner's Sixth Amendment claim is meritless because the trial court's evidentiary ruling did not amount to a denial of Petitioner's right to present a complete defense and the Appellate Division reasonably applied clearly established Supreme Court law in rejecting Petitioner's claim. See Resp't Br. at 19-27, ECF No. 14.
Petitioner appends to his Petition his counseled brief to the First Department. See Petition, Ex. A. The Petition itself does not include any legal or factual arguments; Petitioner only cites to the point headings for the three claims he raised to the First Department. Because Petitioner is pro se, this Court construes the factual and legal arguments made in the brief to the First Department as part of the Petition for habeas relief. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam) (“It is well established that the submissions of a pro se litigant must be construed liberally and interpreted to raise the strongest arguments that they suggest.”) (internal quotation marks and citations omitted); Erickson v. Pardus, 551 U.S. 89, 94 (2007) (requiring courts to hold pro se pleadings to less stringent standards). References to arguments presented to the First Department in Petitioner's brief to that court will hereafter be cited as “Petition, Exhibit A” followed by the relevant page number.
For the reasons set forth below, the Court respectfully recommends that the Petition be DENIED.
FACTUAL BACKGROUND
A. The Underlying Offense
At approximately 1:45 a.m. on January 10, 2003, Yael Leopold, a college senior, went to a nightclub in Manhattan with friends (Leopold: 8-11). There, Leopold danced and hung out with friends, but did not consume any alcoholic beverages or use drugs (Leopold: 12-13). At around 4:30 a.m., Leopold left the nightclub, taking the 4 train at Union Square to the Brooklyn Bridge-City Hall Station, where she switched to the JMZ subway line to continue onto Brooklyn (Leopold: 13-14).
Citations to testimony from Petitioner's trial are designated by the witnesses' last name and the page number. Citations to other portions of the trial transcript are denoted by “T” followed by the page number. Citations to portions of the Voir Dire are denoted as “VD” followed by the page number. Citations to portions of Petitioner's Sentencing are denoted as “S” followed by the page number. These transcripts are located at ECF No. 16.
While waiting on the “well lit” platform for the JMZ subway line, Leopold, who had 20/20 vision, made eye contact with Petitioner, who was “pretty far down the platform” (Leopold: 7, 13, 14-16). Upon making eye contact, Petitioner “hid” behind a pillar and started to glance around it, which Leopold thought was “weird” and further drew her attention to him (Leopold: 16-19). As Leopold was waiting for the train, she looked toward Petitioner and again made eye contact for about two to three seconds (Leopold: 18-19, 76). This time, Petitioner was closer to Leopold and again jumped behind a pillar immediately after their eyes locked on each other (Leopold: 18).
Shortly thereafter, Leopold noticed, out of the corner of her eye, that Petitioner had come around to her left side and “was standing really close” to her (Leopold: 19-20, 78). From about a foot-and-a-half away, Petitioner asked Leopold whether she was “working” (Leopold: 22-23, 79). Leopold, who was looking directly at Petitioner's face, asked what he meant (Leopold: 24). Petitioner asked if she was an “escort,” and she responded that she was not (Leopold: 24-25, 7981). During this time, Leopold had looked at Petitioner's face for about 25 to 30 seconds and noticed that he had a “crazed” and “glossy” look in his eyes (Leopold: 22-25, 89). Leopold was able to see Petitioner's face from his eyebrows to above his lower lip (Leopold: 22, 98, 110). She noticed that he was a light-skinned Hispanic man with “weird, scary eyes,” “blackish” eyebrows, and a thick mustache that Leopold believed was a goatee because it continued to run under his clothing (Leopold: 25). Leopold estimated that Petitioner was in his late twenties or early thirties and was around 5'8” to 5'9” tall-approximately a “few inches” shorter than her (Leopold: 25-26). Suddenly, Petitioner began striking Leopold on her head, and she closed her eyes and started screaming (Leopold: 27-29). When Leopold opened her eyes, she noticed that her left thumb was “pretty much cut off,” and she ran away screaming (Leopold: 29).
The attack was witnessed by two individuals: Pablo Alarcon and Edwin Rios. Alarcon, a 24-year-old native of Argentina who had overstayed his visa, was on the subway platform at around 4:50 a.m. as part of his daily commute (Alarcon: 282-88). Alarcon noticed Petitioner on the platform, because he was “covering his face” and appeared “mysterious” and “weird” (Alarcon: 288-89, 326-27). Alarcon made eye contact with Petitioner, from about 15 feet away, and saw Petitioner's face from the middle of his forehead down to his jaw (Alarcon: 288-89, 291-93). Alarcon believed that Petitioner was either Alarcon's height of 5'11” or taller (Alarcon: 327). Rios, another daily commuter, arrived on the platform and saw Petitioner standing directly in front of Leopold (Rios: 217-23, 253-55). Rios, who was about 12 feet away from Petitioner, had no difficulty seeing Petitioner's face (Rios: 220). Rios noticed that Petitioner appeared to be about 5'7” tall (Rios: 218, 259). Both Alarcon and Rios saw Petitioner hitting Leopold and heard Leopold screaming (Rios: 227; Alarcon: 295-96, 329). As Leopold ran away from Petitioner screaming, Petitioner ran towards Rios and Alarcon (Rios: 229-30; Alarcon: 296-97). Rios saw Petitioner's face (from about six or seven feet away), and both Rios and Alarcon noticed that he was holding a boxcutter (Rios: 228-30, 260-61; Alarcon: 297-98, 330). Petitioner then climbed down onto the subway tracks and ran away (Alarcon: 298; Rios 229-30).
Robert Klages, an employee of the New York City Transit Authority, heard a “blood curdling scream” and found Leopold “cut up bad” with “blood all over” (Klages: 115-19). Police Officer Michelle Robinson, responding to a radio report, arrived at the subway station to find Leopold “cut up very badly” and in “excruciating” pain (Robinson: 124-26). At the hospital, Leopold underwent surgery to her face, neck, and thumb, and she received sutures to close four or five wounds (Dr. Vasiliki Karlis: 200-06). As a result of the injuries she sustained, Leopold suffers from permanent nerve damage in her thumb and face (Karlis: 206-07).
B. The Investigation
After the assault, Leopold told Officer Robinson that Petitioner was Hispanic, 5'8” to 5'9” tall, and had a goatee (Robinson: 132). Leopold also met with a sketch artist who constructed a composite sketch of Leopold's assailant (Leopold: 85-87).
On January 13, 2003, Rios met with police and told them what he had witnessed (Rios: 237). Rios was shown the composite sketch and told the police that it depicted “approximately” how Petitioner looked (Rios: 238-39). On the same day, Alarcon also met with police and told them what he had witnessed (Alarcon: 299-302, 328).
On January 19, 2003, Petitioner was arrested by Police Officer Desmond Morales for “selling subway swipes” outside of the J train subway station on Myrtle Avenue in Brooklyn (Morales: 345; VD: 520-21). In the arrest paperwork, Morales recorded Petitioner's height as 5'5” based on Petitioner's representation of his own height; Morales did not measure Petitioner (Morales: 382-84). The following day, Sergeant Kristine Gosling, after reviewing the report prepared by Morales, obtaining a photograph of Petitioner, and comparing that photograph to the composite sketch, concluded that there was a significant resemblance between Petitioner and the sketch (Gosling: 391-92, 453).
On January 22, 2003, Alarcon viewed a photo array, which included a photograph of Petitioner, and indicated to police that he did not recognize anyone in the photographs (Alarcon 301-04, 321, 328). Alarcon later stated he had recognized Petitioner but did not want to say so because of concerns over his immigration status (Alarcon: 321-22). On January 24, 2003, Leopold was shown the photo array and she immediately recognized Petitioner (Leopold: 48, 50). That same day, police officers arrested Petitioner at a shelter on Ward's Island (Gosling: 398-401).
During his arrest processing, Petitioner reported his height as 5'5” (Gosling: 403-04, 44143). On January 25, 2003, Leopold again identified Petitioner as her assailant, selecting him from a lineup conducted at the precinct stationhouse (Leopold: 64-65; Gosling 420-22). That same day, Alarcon also viewed the lineup and although he recognized Petitioner, he told police that he did not recognize anyone (Alarcon: 305-06; Gosling 418-20). Almost a year later, on December 21, 2003, Alarcon was shown a photograph of the January 2003 lineup and he identified Petitioner as Leopold's assailant (Alarcon 309-11). Alarcon admitted that had recognized Petitioner during the January 2003 photo array and lineup, but had withheld this information because he was afraid of getting involved due to his fear of being deported to Argentina (Alarcon: 306-14; Gosling 423-25). At another lineup conducted on January 20, 2004, Rios identified Petitioner as Leopold's assailant (Rios: 239-44; Gosling: 425-36).
C. Petitioner's Trial
A New York grand jury charged Petitioner with first-degree assault, Penal Law § 120.10(1), on February 6, 2003. On January 29, 2004, Petitioner proceeded to a jury trial, and on February 5, 2004, a jury convicted Petitioner of first-degree assault. Petitioner appealed his conviction, and in 2011, the New York Court of Appeals reversed, concluding that the trial court should have permitted Petitioner to offer expert testimony on eyewitness identifications. See People v. Santiago, 17 N.Y.3d 661 (2011). On April 3, 2012, Petitioner's retrial commenced before a jury.
1. Petitioner's Motion to Introduce his Height Measurement
During trial, Petitioner's counsel moved for permission to introduce testimony from an investigator who had measured Petitioner and would testify to Petitioner's height (VD: 540).Counsel also sought to bar introduction by the prosecution of various photographs of Petitioner from the Department of Corrections, taken during his admission at different correctional facilities, where Petitioner was shown standing next to a height measurement line (VD: 540-42). In those photographs, Petitioner's height varied between 5'6,” 5'8,” and 5'9” (VD: 541). Petitioner's counsel argued that the photographs were not “probative,” because each photograph reported a different height for Petitioner (T: 153). Counsel further argued that there was not a proper foundation for them as business records, as no witness could testify that the measurement sticks in the photographs were accurate, and Petitioner had no duty to report his height accurately when the photographs were taken (T: 154-55, 162, 372-74). Finally, counsel argued that the photographs were unduly prejudicial because there was no way to effectively redact the photographs and “divorce [them] from their Corrections setting” (T: 155, 162, 381).
Petitioner's counsel later relayed to the court that the defense investigator would testify that she measured Petitioner as 5'6” tall (T: 179).
The prosecutor argued that the photographs were relevant because Petitioner's height was disputed and if the court permitted the defense's investigator to testify about measuring Petitioner, then Petitioner's “ability to manipulate his own height” would be at issue (T: 157-58, 393-94). The prosecutor contended that the photographs demonstrated the ease with which a person could manipulate her height by, for example, slouching or standing tall, and thus the photographs were necessary to rebut the evidence of Petitioner's height put forth by the defense (T: 157-58, 160-61, 393-94). Further, the prosecutor asserted that the individual who took the photographs worked for the Department of Corrections and was under a business duty to take the photographs accurately, and that a custodian of records from the Department of Corrections could authenticate the photographs as business records (T: 158-74, 360-61, 393). The prosecutor also argued that the photographs were not unduly prejudicial, because the jury already knew that Petitioner had been arrested at least twice in connection with the underlying offense and the photographs could be partially redacted “so it would be essentially an undated photograph of him without a source” (T: 159-60, 177). Finally, further addressing the potential for prejudice from the admission of the photographs, the prosecutor noted that laypeople are generally aware that when a person is arrested, their photograph is taken (T: 395).
Subsequently, Petitioner's counsel proposed that instead of calling the investigator to testify about Petitioner's height, he would have a court officer measure Petitioner with all parties present, but outside the presence of the jury (T3: 364-65). The prosecutor contended that Petitioner knew his height was an issue and thus he had incentive to manipulate his height (T3: 365-66). The prosecutor further contended that the photographs were taken at a time when Petitioner had less incentive to manipulate his height (T3: 365-66). Petitioner's counsel argued that he had the right to put on a defense, which included putting forth evidence of Petitioner's height, but that he would not do so if it would permit the prosecution to admit the photographs (T3: 371). Petitioner's counsel conceded that while it is “somewhat” possible to manipulate height, he would argue that it could not be manipulated to the degree the prosecutor was asserting (T3: 371).
Volume Three of the trial transcript restarts the pagination at 357 even though these page numbers were used in Volume Two, which concludes at page 399. Therefore, all references to Volume Three of the trial transcript where the pages overlap with Volume Two are preceded by “T3.”
The court granted the defense's request, ruling that defense counsel could have Petitioner measured in court (T3: 560). The court further ruled that if Petitioner chose to proffer that evidence, the prosecution would be allowed to rebut it through the admission of one frontal photograph of Petitioner, capturing him “from his collar up,” taken by the Department of Corrections as a business record, showing his height as 5'8'' (T: 609-10, 808-15). To protect Petitioner from undue prejudice, the court ordered that the logo of the Department of Corrections be redacted (T: 609-11, 807-19), and that the custodian used to authenticate the photograph testify that he worked for an “executive branch of New York State government” and the photograph was “an official record of a New York State agency” (T: 560, 610, 809). Further, the court noted in its ruling that, because the photograph only showed Petitioner “from his collar up,” one could not determine from the photograph whether Petitioner was wearing “correctional garb” (T: 815).
Petitioner's counsel informed the court that he was withdrawing his request to have Petitioner's height measured in open court because the court's ruling permitting the prosecution to admit the photograph would “unfairly prejudice” Petitioner (T: 611). The court indicated that it was not inclined to enter the photograph without Petitioner's in-court measurement, and the prosecutor agreed that there was “no need” to introduce the photograph absent such a measurement (T: 611). The prosecution did not introduce the photograph at trial (T: 611).
2. The Prosecution's Case
The prosecution premised its case on the identifications of Petitioner made by Leopold, Rios, and Alarcon. Leopold identified Petitioner in court as her assailant and testified that although it had been approximately nine years since the attack, she still saw Petitioner's face in her mind “all the time” (Leopold: 25-27, 73). Leopold testified that she recalled Petitioner was approximately 5'8” to 5'9” tall (Leopold: 25-26).
Alarcon and Rios also identified Petitioner as Leopold's assailant (Alarcon: 294; Rios: 224). Rios testified that Petitioner appeared to be approximately 5'7” tall (Rios: 218-19, 259); Alarcon testified that Petitioner was approximately 5'11” tall (Alarcon: 327). The jury heard that the arrest paperwork prepared following Petitioner's arrest described Petitioner as being 5'5''. (Morales: 382-84; Gosling: 403-04, 439-43).
3. The Defense's Case
Petitioner called Peggy Cross-Goldenberg and Jennifer Dysart to challenge the reliability of the eyewitness identifications. Cross-Goldenberg, an attorney from the Legal Aid Society, testified about the January 20, 2004 lineup where Rios identified Petitioner, which Cross-Goldenberg attended and observed (Cross-Goldenberg: 536-56). Cross-Goldenberg testified that Rios, during the lineup, had told police that he had not gotten a “good look” at Petitioner and had only seen Petitioner's “eyes as he was running toward [him]” (CrossGoldenberg: 536-38, 551-52). Dysart, an expert in psychology with a focus on eyewitness identification, testified as to the various factors that impact eyewitness identifications, including but not limited to, the witness's stress level, “cross-racial” bias, and the amount of time the witness had to observe the subject's face (Dysart: 628-759). Dysart expressed that her testimony did not speak to the specific identifications of Leopold, Rios, or Alarcon, or the “actual merits of the case” (Dysart: 697-98).
4. Jury Verdict and Sentence
On April 12, 2012, Petitioner was found guilty of first-degree assault (T: 996). On June 8, 2012, Petitioner was sentenced as a second-felony offender to a determinate prison sentence of 21 years followed by 5 years of post-release supervision (S: 26).
D. Petitioner's Direct Appeal
Petitioner appealed his conviction to the Appellate Division of the New York Supreme Court, First Department, arguing that (1) his conviction was contrary to the weight of the evidence because he was wrongly identified as Leopold's attacker; (2) the trial court denied him his Sixth Amendment right to present a defense by permitting the prosecution to introduce an unduly prejudicial photograph; and (3) his sentence was excessive. See Petition, Ex. A. The First Department unanimously affirmed Petitioner's conviction. See People v. Santiago, 161 A.D.3d 642 (1st Dep't 2018).
The First Department rejected Petitioner's challenge to the weight of the evidence, concluding that there was “no basis for disturbing the jury's determinations concerning credibility and identification, including its evaluation of the strengths and weaknesses of the testimony of three identifying witnesses.” Id. at 642. The First Department further held that the trial court properly exercised its discretion in ruling that if Petitioner introduced evidence of a contemporaneous height measurement of 5'6”, it would open the door to the introduction of the redacted photograph from the Department of Corrections indicating a height of 5'8”. Id. The court concluded that the photograph was admissible as a business record and “was reliable to the extent that . . . the photo showed that [Petitioner] could have manipulated his apparent height while being measured.” Id. at 642-43. The First Department also concluded that the photo was not unduly prejudicial, because the trial court ordered numerous redactions “to avoid any suggestion that it was taken while [Petitioner] was in custody,” and the jury already knew that Petitioner had previously been arrested. Id. at 643. As to Petitioner's Sixth Amendment claim, the First Department held that “although [Petitioner] ultimately opted not to introduce the evidence of his height, for fear of opening the door to admission of the photo, there was no impairment of his right to present a defense.” Id. The First Department reasoned that the trial court's “ruling did not preclude [Petitioner] from introducing evidence; instead, it merely gave the People an opportunity for rebuttal.” Id. Finally, the court found no basis to reduce Petitioner's sentence. Id.
Petitioner filed an application for leave to appeal to the New York Court of Appeals, asking the court to review his claim that the trial court effectively denied him his right to present a defense by permitting introduction of the People's unduly prejudicial photograph showing his height. State Record at 289-99, ECF No. 15. The People opposed the leave application, id. at 300-03, and on October 4, 2018, the Court of Appeals denied leave to appeal. People v. Santiago, 32 N.Y.3d 1068 (2018).
E. Petitioner's Petition for Writ of Habeas Corpus
On April 28, 2019, Petitioner filed the instant Petition, asserting three grounds for relief: (1) his conviction was against the weight of the evidence; (2) the trial court's ruling concerning admission of the photograph denied him his constitutional right to present a defense by restricting the introduction of exculpatory evidence; and (3) his sentence was excessive and should be reduced. See Petition at 2. On September 5, 2019, Respondent opposed the Petition, arguing that Petitioner's first and third claims are not cognizable on habeas review and Petitioner's second claim lacks merit. See Resp't Br. at 19-27.
LEGAL STANDARDS FOR HABEAS RELIEF UNDER 28 U.S.C. § 2254
“The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).” Harrington v. Richter, 562 U.S. 86, 97 (2011). A state prisoner seeking habeas relief under § 2254 must show by a preponderance of the evidence that he or she is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); see Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997).
A. Timeliness
AEDPA imposes a one-year statute of limitations on habeas corpus petitions. As relevant here, a state prisoner has one year to file his petition after “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). A judgment becomes final “upon the completion of direct appellate review in state court and by the United States Supreme Court- either when certiorari proceedings are completed or when the time for seeking direct review by the United States Supreme Court expires, i.e., ninety (90) days after the last decision by the highest state court to which a direct appeal can be taken.” Wynerman v. Colvin, 2017 WL 3503402, at *2 (S.D.N.Y. June 13, 2017) (citing Clay v. United States, 537 U.S. 522, 531-32 (2003)); accord Williams v. Artuz, 237 F.3d 147, 150-51 (2d Cir. 2001).
B. Exhaustion
A federal court may not consider a petition for a writ of habeas corpus, even if timely filed, unless the petitioner has exhausted available remedies in the state courts. 28 U.S.C. § 2254(b)(1)(A); see also Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014) (“To provide the state with the first opportunity to consider and correct alleged violations of its prisoners' constitutional rights, a state prisoner is required to exhaust all of his available state remedies before a federal court can consider his habeas application.”). In other words, the petitioner “must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). In New York, a petitioner invokes “one complete round” of review by appealing an issue to the Appellate Division, then seeking leave to appeal to the New York Court of Appeals. Galdamez v. Keane, 394 F.3d 68, 74 (2d Cir. 2005).
To satisfy the exhaustion requirement, a petitioner must “fairly present” each of his habeas claims, in “each appropriate state court (including a state supreme court with powers of discretionary review),” in a manner that “alert[s] that court to the federal nature of the claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotation marks and citations omitted); Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014) (“While ‘a state prisoner is not required to cite chapter and verse of the Constitution in order to satisfy this requirement,' he must tender his claim ‘in terms that are likely to alert the state courts to the claim's federal nature.'”) (quoting Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011)).
A petitioner can “fairly present” his claims in several ways, including by citing to the applicable provisions of the federal Constitution in his state-court briefs, see Davis v. Strack, 270 F.3d 111, 122-23 (2d Cir. 2001), or by citing “pertinent federal cases employing constitutional analysis,” Rustici v. Phillips, 308 Fed.Appx. 467, 469 (2d Cir. 2009) (citation and internal quotation marks omitted). However, a claim is generally not “fairly presented” to a state court “if that court must read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so.” Baldwin, 541 U.S. at 32. Moreover, the federal claim must be presented with some specificity: “a general appeal to a constitutional guarantee as broad as due process” is insufficient “to present the ‘substance' of such a claim to a state court.” Gray v. Netherland, 518 U.S. 152, 163 (1996) (citing Anderson v. Harless, 459 U.S. 4, 7 (1982)).
C. Procedural Default
If a habeas petition presents unexhausted claims, the federal court must determine whether the petitioner would be able to return to state court to exhaust those claims. Jackson, 763 F.3d at 133. An unexhausted claim for which the petitioner cannot obtain further review in state court is procedurally defaulted and must be dismissed. Id. (“[I]f the state prisoner fails to exhaust his state remedies in a manner in which, were he to return to the state courts with his unexhausted claim, those courts would find the claim barred by the application of a state procedural rule, we must deem the claim procedurally defaulted.”) (internal quotation marks and citations omitted). The exception to this rule is if the petitioner establishes either “cause and actual prejudice or that he is actually innocent.” Bousley v. United States, 523 U.S. 614, 615 (1998) (internal quotation marks and citations omitted); see also Coleman v. Thompson, 501 U.S. 722, 748-50 (1991).
A petitioner can show “cause” for a procedural default when (1) “the factual or legal basis for a claim was not reasonably available,” (2) “some interference by state officials made compliance [with the procedural rule] impracticable,” or (3) “the procedural default is the result of ineffective assistance of counsel.” Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994) (internal quotation marks and citation omitted). Although the Supreme Court has not given “precise content” to the term “prejudice,” see Wainwright v. Sykes, 433 U.S. 72, 91 (1977), the prejudice must be sufficient “to overcome society's justified interests in the finality of criminal judgments,” United States v. Frady, 456 U.S. 152, 175 (1982). “The petitioner's burden in making a gateway showing of actual innocence is deliberately ‘demanding.'” Hyman v. Brown, 927 F.3d 639, 656 (2d Cir. 2019) (quoting House v. Bell, 547 U.S. 518, 538 (2006)). The standard of innocence in this context “references ‘factual innocence, not mere legal insufficiency.'” Id. at 657 (citing Bousley, 523 U.S. at 623).
D. Merits
AEDPA “imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt.” Jones v. Murphy, 694 F.3d 225, 234 (2d Cir. 2012) (quoting Hardy v. Cross, 565 U.S. 65, 66 (2011)). Under AEDPA, courts may only grant a habeas petition if the challenged state-court decision was (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” at the time of the state-court decision, or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2).
“Clearly established” federal law means “the holdings, as opposed to the dicta,” of the decisions of the United States Supreme Court “as of the time of the relevant state-court decision,” and does not include opinions of lower federal appellate courts. Green v. Travis, 414 F.3d 288, 296 (2d Cir. 2005) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)); see also Parker v. Matthews, 567 U.S. 37, 48-49 (2012) (circuit precedent, even if “merely reflecting]” Supreme Court precedent, does not constitute “clearly established federal law” for purposes of § 2254(d)(1)).
Under the first prong, section 2254(d)(1)'s “‘contrary to' and ‘unreasonable application of' clauses have independent meaning.” Carmichael v. Chappius, 848 F.3d 536, 544 (2d Cir. 2017) (citing Williams v. Taylor, 529 U.S. 362, 404-05 (2000)). 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.” Williams, 529 U.S. at 413. A state court makes an unreasonable application of clearly established federal law if the state court “correctly identifies the governing legal rule but applies that rule unreasonably to the facts of a particular prisoner's case.” White v. Woodall, 572 U.S. 415, 419 (2014). Such application of federal law must be “‘objectively unreasonable,' not merely wrong; even ‘clear error' will not suffice.” Id. (quoting Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003)). “The state court decision must be ‘so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair minded disagreement.'” Woods v. Etherton, 578 U.S. 113, 117 (2016) (quoting White v. Woodall, 572 U.S. 415, 420 (2014)).
Under the second prong, a state-court decision constitutes an “unreasonable application” of the Supreme Court's precedent if the state court applied the Supreme Court's “precedents to the facts in an objectively unreasonable manner.” Brown v. Payton, 544 U.S. 133, 141 (2005) (citations omitted). A state court's factual determination may not be deemed unreasonable “merely because [a reviewing court] would have reached a different conclusion in the first instance.” Brumfield v. Cain, 576 U.S. 305, 313-14 (2015) (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)). Instead, § 2254(d)(2) requires a reviewing court to “accord the state trial court substantial deference.” Brumfield, 576 U.S. at 314. If ‘[Reasonable minds reviewing the record might disagree' about the finding in question, ‘on habeas review that does not suffice to supersede the trial court's . . . determination.'” Id. (alterations in original) (citation omitted). For federal habeas review, factual determinations made by a state court are presumed correct, and a petitioner bears the burden of rebutting this presumption “by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
E. Pro Se Filings
Courts liberally construe pleadings prepared by pro se litigants and hold them “to less stringent standards than formal pleadings drafted by lawyers.” Erickson, 551 U.S. at 94 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). It is appropriate to interpret pro se submissions to raise the strongest arguments that they suggest. Gomez v. Brown, 655 F.Supp.2d 332, 342 (S.D.N.Y. 2009) (explaining that because of the right of self-representation, the court is obligated to make reasonable allowances to protect pro se litigants from “inadvertent forfeiture of important rights because of their lack of legal training”) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
DISCUSSION
A. Petitioner's Claims are Timely
Petitioner's conviction became final on January 2, 2019-90 days after the Court of Appeals denied his leave application on October 4, 2018. Wynerman, 2017 WL 3503402, at *2. Petitioner signed his Petition on April 28, 2019, and it was received by this Court on May 3, 2019, well within AEDPA's one-year statute of limitations. The Petition is therefore timely under 28 U.S.C. § 2244(d)(1).
B. Petitioner's Weight-of-the-Evidence Claim
Petitioner claims that his conviction was contrary to the weight of the evidence because the People's case relied entirely on unreliable eyewitness testimony. See Petition, Ex. A at 21-33. Respondent argues that this claim is not cognizable on federal habeas review. See Resp't Br. at 19-20. For the reasons that follow, Petitioner's claim that his conviction was against the weight of the evidence is procedurally defaulted and, in any case, does not present a basis for habeas relief.
1. Petitioner's weight-of-the-evidence claim is procedurally defaulted.
In seeking leave to appeal from the New York Court of Appeals, Petitioner submitted an initial leave application and a supplemental letter. State Record at 289-99. In both letters, Petitioner pressed only a single claim: that the trial court had deprived him of his constitutional right to present a complete defense because it allowed the People to introduce “highly prejudicial hearsay” if Petitioner introduced evidence of his height in the form of an in-court measurement. See id. at 290, 295-98. Petitioner expressly argued at length why leave to review his Sixth Amendment claim was warranted. And although Petitioner attached his briefs to the First Department to his initial letter in support of his leave application, see id. at 290, nowhere in either letter did Petitioner make any mention of his other claims raised in those briefs. Nor did Petitioner in either letter include a request that the Court of Appeals review the other claims raised in his briefs to the First Department. Where a Petitioner presses a single claim in his leave application to the New York Court of Appeals, without any mention of the other claims raised in the Appellate Division-as occurred here-the Second Circuit has held that the claims not specifically argued in the leave application were not fairly presented to the New York Court of Appeals and thus were not exhausted for purposes of habeas review. See, e.g., Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (“The fair import of petitioner's submission to the Court of Appeals, consisting of his brief to the Appellate Division that raised three claims and a letter to the Court of Appeals arguing only one of them, was that the other two had been abandoned.”); Jordan v. Lefevre, 206 F.3d 196, 198-99 (2d Cir. 2000) (“We conclude . . . that arguing one claim in his letter while attaching an appellate brief without explicitly alerting the state court to each claim raised does not fairly present such claims for purposes of the exhaustion requirement underlying federal habeas jurisdiction.”); see also Parrish v. Lee, No. 10-CV-8708 (KMK), 2015 WL 7302762, at *8-9 (S.D.N.Y. Nov. 18, 2015); cf Galdamez v. Keane, 394 F.3d 68, 74-75 (2d Cir. 2005).
An unexhausted claim will nonetheless be deemed exhausted if the petitioner no longer has an available remedy in state court. See Castille v. Peoples, 489 U.S. 346, 351 (1989); Bossett v. Walker, 41 F.3d 825, 828-29 (2d Cir. 1994). Petitioner has no available state-court remedies to exhaust his claim. Petitioner could have raised his weight-of-the-evidence claim on direct appeal in his leave application to the New York Court of Appeals. New York procedural rules permit only one application by an appellant for leave to appeal to the Court of Appeals. See CPL § 460.10(5)(a) (requiring that leave to appeal be sought by an appellant within 30 days after service upon the appellant of a copy of the order sought to be appealed); see also Colon v. Connell, 2009 WL 2002036, at *6, n.4 (S.D.N.Y. July 9, 2009) (explaining New York's requirement limiting an appellant to one leave application to the Court of Appeals). Petitioner has already sought leave to appeal from the Court of Appeals and his application was denied. Moreover, Petitioner is now foreclosed from raising his weight-of-the-evidence claim collaterally in a Section 440.10 motion. See N.Y. Crim. Pro. § 440.10(2)(c) (barring collateral review of claims that could have been raised on direct appeal). Petitioner also cannot seek state review of his claim pursuant to either a writ of error coram nobis or a state writ of habeas corpus. See People v. Gordon, 183 A.D.2d 915 (2d Dep't 1992) (coram nobis relief only available for claims of ineffective assistance of appellate counsel); People ex rel. Allah v. Leonardo, 170 A.D.2d 730, (3d Dep't 1991) (state writ of habeas corpus unavailable where claim could have been raised on direct appeal).
Because Petitioner has no procedural mechanism in state court for raising his weight-of-the-evidence claim, the claim is deemed exhausted and procedurally defaulted. See Bossett, 41 F.3d at 825. When a claim is deemed exhausted because of a procedural bar, “the procedural bar that gives rise to exhaustion provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas corpus review of the defaulted claim.” Gray v. Netherland, 518 U.S. 152, 162 (1996); see also Carmona v. United States Bureau of Prisons, 243 F.3d 629, 633 (2d Cir. 2001). Nor does Petitioner present any basis to overcome that procedural bar. See Carvajal, 633 F.3d at 104 (noting that a petitioner may overcome the procedural bar by demonstrating “cause for the default and prejudice or by showing that he is actually innocent of the crime for which he was convicted”) (internal quotation marks omitted). In any case, as discussed below, even if Petitioner's procedurally defaulted claim were reviewed on the merits, it would fail because his state-law claim does not present a basis for habeas relief.
2. Petitioner's weight-of-the-evidence claim is not cognizable on habeas review.
In the First Department, Petitioner challenged his conviction on the ground that it was contrary to the weight of the evidence because, among other things, the government's case consisted solely of unreliable eyewitness testimony, the assailant's face was obscured, Petitioner did not match the witnesses' descriptions of the assailant, and he only became a suspect based on his supposed resemblance to the composite sketch. See Petition, Ex. A at 2235. He repeats that claim before this Court.
It is well established that weight-of-the-evidence claims are purely state-law claims and are therefore not cognizable on habeas review. See McKinnon v. Superintendent, Great Meadow Corr. Facility, 422 Fed.Appx. 69, 75 (2d Cir. 2011) (“the argument that a verdict is against the weight of the evidence states a claim under state law, which is not cognizable on habeas corpus”) (citing Estelle, 502 U.S. at 67-68); Garrett v. Perlman, 438 F.Supp.2d 467, 470 (S.D.N.Y. 2006) (“[u]nlike a sufficiency of the evidence claim, which is based upon federal due process principles, a weight of the evidence claim is an error of state law, for which habeas review is not available”) (internal citations omitted).
“A weight of the evidence claim is a state law claim under New York Criminal Procedure Law § 470.15(5), which allows New York appellate courts to make weight of the evidence determinations.” Cintron v. Fisher, No. 07-CV-1058, 2012 WL 213766, at *3 (S.D.N.Y. Jan. 24, 2012). Such a claim does not implicate the Due Process Clause-or any other provision of federal law-because “as a matter of federal constitutional law a jury's verdict may only be overturned if the evidence is insufficient to permit any rational juror to find guilt beyond a reasonable doubt.” McKinnon, 422 Fed.Appx. at 75 (citations omitted). Thus, “the argument that a verdict is against the weight of the evidence states a claim under state law, which is not cognizable on habeas corpus.” Id. Moreover, although a challenge to the legal sufficiency of the evidence underlying a conviction may raise a question of federal law, Garrett, 438 F.Supp. at 470, Petitioner never argued on direct appeal that the evidence submitted at trial was legally insufficient to support the verdict, Petition, Ex. A.
Accordingly, Petitioner's weight-of-the-evidence claim is unexhausted and procedurally barred. The claim also does not present a basis for federal habeas corpus relief.
C. Petitioner's Sixth Amendment Claim
1. Petitioner's Sixth Amendment claim has been exhausted.
Petitioner also argues that he is entitled to habeas relief because the trial court denied him his constitutional right to present a defense. Petitioner asserts that the trial court effectively restricted him from presenting an in-court measurement of his height by permitting the prosecution to introduce, as rebuttal evidence, a redacted photograph of Petitioner standing next to a measuring stick, taken during his admission to a correctional facility. Petitioner raised the same claim in his counseled brief before the First Department and in his counseled leave application to the New York Court of Appeals. See Petition, Ex. A at 36-46; State Record at 28999.
Specifically, in his brief to the First Department, Petitioner argued that “the impact of the trial court's ruling deprived [him] of his constitutional right to present a defense,” citing a United State Supreme Court case, Crane v. Kentucky, 476 U.S. 683 (1986), as support for the alleged violation of his rights guaranteed by the Sixth and Fourteenth amendments. Petition, Ex. A. at 36, 44 (emphasis added). Similarly, in his leave application to the Court of Appeals, Petitioner, again citing to United States Supreme Court precedent, argued that the trial court's evidentiary ruling permitting admission of the photograph “deprived [Petitioner] of his fundamental, constitutional right to present a complete defense.” See State Record at 290, 292, 295, 297-98.
The record thus establishes that Petitioner fairly presented his federal law claim to the state courts. See Strack, 270 F.3d at 122 (“[I]f a petitioner cites to specific provisions of the U.S. Constitution in his state court brief, the petitioner has fairly presented his constitutional claim to the state court”); Jones, 126 F.3d at 414 (finding petitioner exhausted his state remedies by asserting in his Appellate Division brief that the trial court's ruling deprived him of his “constitutional right to counsel” while directing the court's attention to relevant Supreme Court precedents, and then reiterating this claim in his leave letter to the Court of Appeals); Herron v. Fields, No. 17-CV-07221 (VEC) (DF), 2021 WL 706334, at *11 (S.D.N.Y. Jan. 7, 2021), Report and Recommendation adopted, No. 17-CV-7221 (VEC), 2021 WL 695111 (S.D.N.Y. Feb. 19, 2021) (finding petitioner exhausted his claim by raising it in constitutional terms before the Appellate Division as well as in his application for leave to appeal to the Court of Appeals). Accordingly, Petitioner's Sixth Amendment claim is exhausted.
2. Petitioner's Sixth Amendment claim does not provide a basis for habeas relief.
“Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.'” Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984) (internal citations omitted); United States v. Almonte, 956 F.2d 27, 30 (2d Cir. 1992) (“[T]he compulsory process clause of the Sixth Amendment guarantee[s] each criminal defendant the right to present a defense.”). The right of an accused in a criminal trial “to a fair opportunity to defend against the State's accusations” is “among the minimum essentials of a fair trial.” Chambers v. Mississippi, 410 U.S. 284, 294 (1973). Included in this concept is the defendant's “fundamental” right to “present witnesses in his own defense.” Chambers, 410 U.S. at 302; see also Taylor v. Illinois, 484 U.S. 400, 408 (1988) (explaining that a criminal defendant has “the right to put before a jury evidence that might influence the determination of guilt”). “To establish a Sixth Amendment violation, a defendant must demonstrate that he was deprived of the opportunity to present a witness who would have provided testimony that was ‘both material and favorable to his defense.'” Howard v. Walker, 406 F.3d 114, 132 (2d Cir. 2005) (quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982)).
Petitioner argues that his Sixth Amendment right to present a defense was infringed by the trial court's ruling which “effectively barred” him from introducing evidence of his height. But, as Respondent argues, the trial court did not preclude introduction of the evidence Petitioner sought to admit. See Resp't Br. at 24-25. Instead, the trial court expressly allowed Petitioner to present evidence of his height in the form of an in-court measurement (T: 560). As the First Department concluded, the trial court's ruling “did not deprive [Petitioner] of a fair trial or impair his defense” because the court “did not preclude [Petitioner] from introducing evidence” but, rather, “merely gave the People an opportunity for rebuttal.” Santiago, 161 A.D.3d at 642-43. Given that Petitioner's counsel chose not to introduce such evidence at trial, the First Department's conclusion that Petitioner's right to present a defense was not impaired was not objectively unreasonable.
The First Department also did not commit constitutional error in upholding the trial court's evidentiary ruling that the prosecution could introduce, as a business record, a redacted photograph of Petitioner that showed his height. Generally, “it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.” Estelle, 502 U.S. at 67-68. A state trial court's evidentiary determinations do not implicate federal constitutional questions unless an adverse ruling so infected the trial as to “deprive[ ] [the defendant] of a fundamentally fair trial.” Zarvela v. Artuz, 364 F.3d 415, 418 (2d Cir. 2004); accord Dowling v. United States, 493 U.S. 342, 352 (1990); Vega v. Walsh, 669 F.3d 123, 126 (2d Cir. 2012); Taylor v. Curry, 708 F.2d 886, 890-91 (2d Cir. 1983). “[T]he Supreme Court has ‘defined . . . very narrowly'” the guarantee of “fundamental fairness.” Evans v. Fischer, 712 F.3d 125, 133 (2d Cir. 2013) (quoting Dowling, 493 U.S. at 352).
To show that an evidentiary ruling violated due process, a court must first determine that the evidentiary ruling was erroneous under state law, because “the proper application of a presumptively constitutional state evidentiary rule could not be unconstitutional.” DeJesus v. Superintendent of Attica Corr. Facility, 2017 WL 6398338, at *27 (S.D.N.Y. Dec. 13, 2017); see also Zarvela, 364 F.3d at 418 (first assessing whether state court erred in excluding testimony under New York law). If the ruling was erroneous, then a petitioner must show that the evidentiary error violated his due process rights. See Rosario v. Kuhlman, 839 F.2d 918, 925 (2d Cir. 1988). With erroneously admitted evidence, a court asks “whether ‘the erroneously admitted evidence, viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it.'” Smith v. Greiner, 117 Fed.Appx. 779, 781 (2d Cir. 2004) (summary order) (quoting Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985)); accord Vega v. Portuondo, 120 Fed.Appx. 380, 382 (2d Cir. 2005) (summary order). Even when a district court answers this second question in the affirmative, under 28 U.S.C. § 2254(d) it may only grant habeas relief if it finds that the state court decision was “objectively unreasonable.” Jones v. Stinson, 229 F.3d 112, 119-21 (2d Cir. 2000).
The trial court's evidentiary ruling, permitting the prosecution to admit in rebuttal a single photograph showing Petitioner's height, was not erroneous under state law. In New York, “all relevant evidence is admissible unless its admission violates some exclusionary rule,” People v. Scarola, 71 N.Y.2d 769, 777 (1988), and a trial court “enjoys broad discretion in deciding whether to admit evidence,” People v. Brewer, 28 N.Y.3d 271, 277-78 (2016). CPLR § 4518, the business records exception, permits the admission of a business record where the record “was made in the regular course of any business” and it was “the regular course of such business to make” the record “at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter.” To be admissible as a business record, the record must satisfy three foundational requirements: (1) it must have been “made in the regular course of business-essentially, that it reflect a routine, regularly conducted business activity, and that it be needed and relied on in the performance of functions of the business”; (2) that it was “made pursuant to established procedures for the routine, habitual, systematic making of such a record”; and (3) that it was “made at or about the time of the event being recorded-essentially, that recollection be fairly accurate and the habit or routine of making the entries assured.” People v. Kennedy, 68 N.Y.2d 569, 579-80 (1986). Additionally, if the business record is admitted for the truth of statements made therein, the initial declaration must have been reported by someone with a duty to report accurately. People v. Crastley, 86 N.Y.2d 81, 90 (1995).
CPLR § 4518 is made applicable in criminal trials pursuant to Criminal Procedure Law § 60.10.
Here, the trial court properly determined that the photograph was admissible in rebuttal as a business record. As the prosecutor represented to the trial court, a records custodian at the Department of Corrections would have testified that the photographer was under a business duty to take the photograph accurately because the purpose of the photograph is to have an accurate record of an inmate's identification (T: 158-74, 360-61, 393). Moreover, it is undeniable that records of this nature serve an important business-related function for the Department, which is tasked with housing, transporting, and providing security for inmates detained in its facilities. Creating and maintaining accurate identification records of these inmates undoubtedly aids in effectively performing those functions. Finally, the record was made at or near the time of the event since a photograph is an instantaneous record of what it depicts. The photograph thus fits squarely under the business records exception.
Moreover, the trial court properly concluded that admission of the photograph would not be unduly prejudicial to Petitioner. The photograph was highly probative of whether Petitioner could manipulate his height, an issue relevant to Petitioner's identification as Leopold's assailant. Additionally, the trial court required “numerous redactions” to the photograph and took other “precautions in the event the People introduced the photo, in order to avoid any suggestion that it was taken while [Petitioner] was in custody.” Santiago, 161 A.D.3d at 643. More specifically, the court would have required the custodian authenticating the photograph to testify that he was an employee of an “executive branch of New York State” and that the photograph was an “official record of a New York State agency” (T: 560, 608-10, 809-09). Additionally, the photograph of Petitioner was a frontal shot and did not show his clothing (T: 808-815). And, as the First Department reasonably concluded, “even if the jury might still have speculated that it was an arrest photo, it already knew that [Petitioner] had been arrested for the present crime and on another occasion relevant to the investigation, so any potential for prejudice was minimal.” Santiago, 161 A.D.3d at 643. In short, the trial court's evidentiary ruling permitting admission of the photograph as a business record was not erroneous under state law.
In any case, even if the Court assumes that the trial court barred Petitioner from presenting evidence of his height and erred in permitting the People to introduce the photograph, those errors would not have deprived Petitioner of a fundamentally fair trial. See Chambers, 410 U.S. at 302-03 (reasoning that the erroneous exclusion of evidence amounts to constitutional error if it deprives the defendant of a fundamentally fair trial); Vega, 669 F.3d at 126 (assessing whether trial court's erroneous admission of evidence was “so extremely unfair that its admission violate[d] fundamental conceptions of justice”) (internal quotation marks omitted). “Whether the exclusion of [evidence] violate[s] [a defendant's] right to present a defense depends upon whether the omitted evidence[,] evaluated in the context of the entire record[,] creates a reasonable doubt that did not otherwise exist.” Justice v. Hoke, 90 F.3d 43, 47 (2d Cir. 1996) (citation and internal quotation marks omitted).
Contrary to Petitioner's characterization, his in-court measurement did not constitute exculpatory evidence. Here, viewed in light of the entire record, Petitioner's in-court measurement would not have changed the outcome of the trial, because the evidence establishing that Petitioner was Leopold's attacker was overwhelming. Leopold testified that she had a face-to-face conversation with her assailant for about 25-30 seconds, while he was standing right next to her on a well-lit subway platform and during which time she looked directly at his face (Leopold: 15, 22-26, 89, 98, 110). And, in describing her attacker to police, Leopold consistently provided details that closely matched Petitioner's ethnicity, complexion, age, and facial hair (Leopold: 25-27; Robinson: 132)-culminating in a composite sketch that ultimately led police to Petitioner (Gosling: 391-92, 451-53). In addition, two witnesses, both of whom saw the attack unfold, testified at trial that Petitioner was Leopold's assailant (Rios: 224; Alarcon: 294). Further, as it pertained to the issue of Petitioner's height, the jury heard credible evidence that corroborated Leopold's estimate that her assailant was 5'8” tall. Namely, Sergeant Gosling, who was 5'7” (almost 5'8”), stood next to Petitioner several times while Petitioner's arrest was processed, and she testified that Petitioner was slightly taller than her (Gosling: 404, 506, 515516). As the jury reasonably concluded, the fact that Petitioner self-reported his height as 5'5” did not undermine the credibility of Leopold's identification of Petitioner as her assailant. Because the introduction of Petitioner's in-court measurement would not have undermined the overwhelming evidence of Petitioner's guilt, it cannot be said that Petitioner was denied a fundamentally fair trial, even if the trial court had precluded the evidence Petitioner sought to introduce.
Similarly, the trial court's decision to permit introduction of a photograph depicting Petitioner's height did not deprive Petitioner of a fair trial. In Dowling v. United States, the Supreme Court held that the introduction of evidence may be improper where it is “so extremely unfair that its admission violates fundamental conceptions of justice.” 493 U.S. at 352; accord Perry v. New Hampshire, 565 U.S. 228, 237 (2012) (“Only when evidence is so extremely unfair that its admission violates fundamental conceptions of justice ha[s the Supreme Court] imposed a constraint [on state and Federal evidence rules] tied to the Due Process Clause.”) (citation and internal quotation marks omitted). Where unfairly prejudicial evidence has been introduced, habeas relief is still not available unless the evidence “was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it.” McKinnon, 422 Fed. App'x at 73 (internal quotation marks omitted) (quoting Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985)). The Appellate Division concluded that admission of the photograph would not have been unduly prejudicial to Petitioner. Santiago, 161 A.D.3d at 643. That ruling does not represent an unreasonable application of Dowling. As already discussed, the issue concerning Petitioner's height did not undermine the strength of Leopold's identification of Petitioner as her attacker. And, even without the photograph, the jury knew that Petitioner had been arrested. The introduction of the photograph thus could not have had any impact on the jury's determination of the critical factual issues in the case.
In short, Petitioner's Sixth Amendment claim fails because he has not shown any error of state law and certainly no violation of his right to a fundamentally fair trial.
D. Petitioner's Excessive Sentence Claim
Petitioner's final claim is that his “near-maximum sentence was excessive.” Petition at 2. Respondent argues that the claim is not cognizable on habeas review because it is grounded in state law, and even if construed as based on federal constitutional law, the sentence was within the statutory range. Resp't Br. at 26-27. Respondent is correct.
1. Petitioner's excessive sentence claim is unexhausted and procedurally defaulted.In his counseled brief to the First Department, Petitioner presented his excessive sentence claim as raising a pure question of state law. See Petition, Ex. A at 46-48. Specifically, citing to state-law cases discussing the First Department's interest of justice jurisdiction under New York Criminal Procedure Law § 470.15, appellate counsel argued on direct appeal that Petitioner's sentence was excessive because of Petitioner's difficult childhood, history of homelessness and substance abuse, and struggles with mental health. Id. Petitioner did not contend that his sentence violated the Eighth Amendment or any right protected by federal law.
It is well settled that “[a]lthough New York's Appellate Division has the power . . . to reduce a sentence in the interest of justice, a claim for a reduction in sentence . . . does not, without more, raise a federal constitutional issue.” Bonilla v. Lee, 35 F.Supp.3d 551, 563 (S.D.N.Y. 2014); see also Baide-Ferrero v. Ercole, No. 06 Civ. 6961, 2010 WL 1257615, at *4 (S.D.N.Y. Mar. 31, 2010) (“[A] claim that a sentence should be reduced in the interest of justice does not allege a violation of a federally protected right.”) (collecting cases); Edwards v. Marshall, 589 F.Supp.2d 276, 290 (S.D.N.Y. 2008) (“[Petitioner] claims that his sentence should be reduced in the interest of justice. To the extent that this claim relies on state-law principles, it is not cognizable on federal habeas review.”). Because Petitioner relied only on state law and did not reference the Eighth Amendment or argue that his sentence was disproportionate to the crime, Petitioner did not alert the state court to the federal nature of his claim and thus his claim is unexhausted. And, as discussed with regards to Petitioner's weight-of-the-evidence claim, Petitioner's excessive sentence claim is also procedurally defaulted because he has no available state-court remedies to exhaust the claim.
2. Petitioner's excessive sentence
In any case, even if reviewed on the merits, Petitioner's excessive sentence claim fails. It is well settled that a sentence does not violate the Eighth Amendment if the sentence falls within the statutory range. See White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (per curiam) (“No federal constitutional issue is presented where . . . the sentence is within the range prescribed by state law.”); see also McCall v. Rivera, 965 F.Supp.2d 311, 335 (S.D.N.Y. 2013) (“[C]laims of an unduly harsh sentence do not raise a cognizable federal constitutional issue if the sentence was within the range prescribed by state law.”).
Petitioner's sentence was within the range prescribed by New York state law. Petitioner was adjudicated a second felony offender, see Penal Law § 70.06, and was convicted of first-degree assault, Penal Law § 120.10(1), a class-B violent felony, see Penal Law § 70.02(1)(a) (S: 13, 26). The court was thus required to sentence Petitioner to a determinate sentence of at least eight years and not more than 25 years. See Penal Law § 70.06(6)(a). The trial court sentenced Petitioner to 21 years' imprisonment (S: 26). Because Petitioner's sentence is within the range prescribed by state law, and is therefore not grossly disproportionate to the crime, any claim that his sentence violates the Eighth Amendment is meritless.
CONCLUSION
For the foregoing reasons, the Court respectfully recommends that the Petition be denied.
NOTICE
Petitioner shall have fourteen days, and Respondent shall have fourteen days, from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days only when service is made under Fed.R.Civ.P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)). A party may respond to another party's objections after being served with a copy. Fed.R.Civ.P. 72(b)(2).
Petitioner shall have fourteen days to serve and file any response. Respondent shall have fourteen days to serve and file any response. Any 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 Lewis L. Liman at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and served on the other parties. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Liman. The failure to file timely objections shall result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).