Opinion
No. 18 Civ. 2125 (ALC) (RWL)
10-07-2019
DAVID SHEARD, Petitioner, v. WILLIAM A. LEE, Respondent.
REPORT AND RECOMMENDATION TO HON. ANDREW L. CARTER , JR.: HABEAS PETITION ROBERT W. LEHRBURGER, United States Magistrate Judge.
David Sheard, proceeding pro se, brings this action for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a jury trial, Sheard was convicted of third-degree criminal sale of a controlled substance and third-degree criminal possession of a controlled substance. As a second felony drug offender previously convicted of a violent felony, Sheard received an aggregate seven-year prison term. Sheard unsuccessfully appealed his conviction to the Appellate Division, First Department and the New York Court of Appeals. In his instant Petition, Sheard makes the same four arguments rejected by the state courts: (1) he was arrested without probable cause; (2) the prosecution committed misconduct in summation; (3) his conviction was against the weight of the evidence; and (4) due to ineffective assistance of counsel, he was deprived of his right to call his codefendant as a defense witness. For the reasons set forth below, I recommend that the Petition be DENIED and the case be DISMISSED.
Background
The State's Answer in Opposition to the Petition for a Writ of Habeas Corpus consists of five documents filed together. (See Dkt. 9.) Dkt. 9-1 is the State's Memorandum of Law. ("State Mem.") Dkt. 9-2 through 9-4 make up the State Court Record ("R.") and are referred to collectively as such. The trial court held a suppression hearing on March 5, 2013; the transcript of this hearing begins on page 1 and ends on page 63 of the PDF filed as Dkt. 9-4. ("H."). The Trial Transcript begins on page 174 and ends on page 396 of the PDF filed as Dkt. 9-4. ("Tr.")
A. The Crime
On June 16, 2012, a team of New York Police Department ("NYPD") officers, including Detective Rudy Lahens ("Detective Lahens"), Undercover Officer 113 ("UC 113"), and Officer Kendric Victoria ("Officer Victoria"), planned to conduct a "buy-and-bust" operation on the West Side of Manhattan near 42nd Street in response to a high number of complaints of narcotic transactions in that area. (See Tr. at 20, 62, 82, 115.)
At the time of the trial, Detective Lahens had been a member of NYPD for 12 years. He had previously participated in over 100 narcotics-related arrests and over 100 "buy-and-bust" operations. (H. at 18; Tr. at 17.) UC 113 had been a member of NYPD for over seven years. He had participated in over 350 successful buy-and-bust operations, approximately 200 of which involved the purchase of crack cocaine. (Tr. at 77-78). Officer Victoria had been a member of NYPD for six years and had participated in approximately 50 buy-and-bust operations. (Tr. at 113-14).
That afternoon, Detective Lahens, who dressed in plain clothes, saw Luis Rodriguez ("Rodriguez") and Sheard standing about one foot apart on 42nd Street between Eighth and Ninth Avenues. (Tr. at 25-26.) When Detective Lahens walked past Sheard and Rodriguez, Rodriguez made eye contact with Detective Lahens and "engaged in conversation." (Tr. at 27.) Detective Lahens asked Rodriguez where he could buy "bud," referring to marijuana. (Tr. at 27.) Rodriguez said that he did not have any marijuana but that he was "rocking the hard," meaning that he was selling crack cocaine. (Tr. at 27-28, 59.) Detective Lahens asked Rodriguez whether he could buy some crack cocaine for his girlfriend; Rodriguez agreed to the sale and said that he needed to get the drugs from his "man." (Tr. at 28, 59.) Rodriguez walked over to Sheard, who pulled a small object out of his waistband and handed it to Rodriguez. (Tr. at 31, 62, 72, 74, 99.) The NYPD field team listened to the conversation between Detective Lahens and Rodriguez over Lahens' radio and instructed UC 113 to buy the narcotics from Rodriguez. (Tr. at 20-22; see also, 82, 85-86.)
After Sheard handed Rodriguez the small object from his waistband, Sheard and Rodriguez started to walk toward Detective Lahens. (Tr. at 88.) UC 113 intercepted Rodriguez and asked whether he could buy crack cocaine; Rodriguez agreed to sell the cocaine to UC 113. (Tr. at 82, 85-89.) Sheard stood nearby, looking up and down the street, while UC 113 and Rodriguez shook hands. (Tr. at 88, 101.) During that handshake, Rodriguez handed UC 113 a twist of crack cocaine, and UC 113 passed Rodriguez $20 of pre-recorded buy money in exchange. (Tr. at 32-33; see also, 67, 70, 89.) When UC 113 said he would buy more crack cocaine from Rodriguez, Rodriguez agreed to the sale and confirmed to UC 113 that Sheard was holding the drugs. (Tr. at 89, 92, 95) Rodriguez and Sheard then made eye contact and started to walk with UC 113 toward Ninth Avenue. (Tr. 60, 92.) Rodriguez turned to Detective Lahens and said, "I still got you." Sheard then reached into his waistband again. (Tr. at 33-35; see also, 69, 92, 106.) After that, UC 113 gave a signal to his field team to let them know that he had bought drugs. (Tr. at 33, 68-69, 93, 105.) Officer Victoria, who was watching from across the street, and the rest of the field team received UC 113's signal and then arrested Rodriguez and Sheard. (Tr. at 35, 117.) When Officer Victoria arrested Rodriguez, Rodriguez had the $20 pre-recorded money that UC 113 had given him. (Tr. at 117.)
A "twist" is a colloquialism referring to a small plastic package containing drugs secured with a twist tie. See, e.g., United States v. Felder, 760 F. App'x 74, 77 (2d Cir. 2019) (describing quantities of drugs and units of measurement).
After the arrest, the field team took Sheard and Rodriguez to the Tenth Precinct stationhouse. (Tr. at 39.) Detective Lahens and his supervisor brought Sheard into the bathroom and asked him to give them what he was concealing in his underwear. (Tr. at 40-41.) Sheard reached into his underwear and handed the officers one loose "twist" of crack cocaine and a bag containing twenty additional twists of crack cocaine. (Tr. at 40-42, 70.) Later testing confirmed that all the seized packages and the package that UC 113 had bought contained cocaine. (Tr. at 43, 47; see also, 123-24, 127.)
B. Pre-trial Hearings
In response to a pre-trial motion by Sheard, Justice Robert M. Stolz of the New York County Supreme Court held a suppression hearing on March 5, 2013 regarding the admissibility of the drugs discovered on Sheard's person following his arrest. (See generally, Dkt. 9-4 at 1-63.) Detective Lahens testified for the State, describing the circumstances surrounding the arrest. (H. at 21-37.)
At the suppression hearing, Sheard was represented by pro bono counsel. (H. at 1-2.) Defense counsel cross-examined Detective Lahens but did not present any evidence. (H. at 26-35; 37-38). (See H. at 37-38.) In conclusion, defense counsel made an oral application to suppress, arguing that any drugs found on Sheard should not be admissible because Sheard did not have contact with Rodriguez. (Id.)
Although not raised by this petition, the transcript from the suppression hearing reflects that the court and defense counsel spent a good amount of time discussing Sheard's refusal to agree to the State's plea deal (contrary to the advice of defense counsel). (H. at 1-16.) The court ultimately determined that Sheard's decision was "knowing and intelligent" despite the advice of counsel. (H. at 13.)
Ruling from the bench, the court credited Detective Lahens's testimony and concluded that the police had probable cause to arrest Sheard when Rodriguez gave UC 113 the drugs that Rodriguez had retrieved from Sheard. (H. at 42-43.) The court further found that the subsequent search of Sheard was reasonable. (See H. at 43-44 (finding that "the search at the precinct was reasonable [because] [t]here was certainly reasonable suspicion that the defendant was concealing evidence beneath his clothing.")) Accordingly, the court denied suppression. (H. at 44.)
In another pre-trial hearing, Sheard expressed his desire to call his co-defendant, Rodriguez, to testify on Sheard's behalf. (R. at 176.) Sheard's defense counsel disagreed and explained to the court that he did not want Rodriguez to testify as a matter of strategy because Rodriguez had pleaded guilty and inculpated Sheard during his plea allocution. The judge confirmed that Rodriguez had pled guilty and inculpated Sheard. The judge then encouraged Sheard to discuss the matter with his counsel. (See R. at 176-78.) Ultimately, defense counsel did not call Rodriguez as a witness.
C. The Trial and Verdict
On March 11, 2013, Sheard proceeded to trial before Justice Stolz on charges of third-degree criminal possession of a controlled substance and third-degree criminal sale of a controlled substance. (Tr. at 1.) The State produced witness testimony of three police officers - Detective Lahens, UC 113, and Officer Victoria - who participated in the arrest of Sheard and Rodriguez. As summarized above, the three witnesses testified that Sheard possessed and sold crack cocaine to an undercover police officer in Manhattan. (See Tr. at 16-118.)
After the State presented its case, Sheard testified in his own defense and denied selling or possessing cocaine on June 16, 2012. He testified that on that afternoon, after "panhandling" for change on 42nd Street between Eighth and Ninth Avenues in Manhattan, he decided to buy pizza on his way to visit a friend nearby. (Tr. at 131-33, 135-38.) He ran into Rodriguez on the way, whom he stated that he knew from homeless shelters, and stopped to talk to him briefly. (Tr. at 132-34, 138.) Sheard was arrested a "couple of seconds" later. (Tr. at 132.) Sheard testified that he was strip-searched at the precinct, but the police did not recover any drugs from him. (Tr. at 133, 140-41.)
On March 12, 2013, the jury unanimously convicted Sheard of both counts of the crime charged. (Tr. at 210-13.) On April 3, 2013, Justice Stolz sentenced Sheard to seven years of incarceration followed by three years of post-release supervision. (Tr. at 397.)
D. The Direct Appeal
Represented by counsel, Sheard timely appealed his conviction. (Dkt. 9-3 at 10-23.) On December 6, 2016, the First Department unanimously rejected Sheard's arguments and affirmed the April 3, 2013 conviction. People v. Sheard, 145 A.D.3d 476, 477 (1st Dep't 2016) (see also, Tr. at 139-141). Two days later, Sheard, still represented by pro bono defense counsel, sought leave to appeal to the New York Court of Appeals. (Tr. at 142-149.) The Court of Appeals denied leave to appeal on March 3, 2017. People v. Sheard, 29 N.Y.3d 952 (2017); see also Tr. at 153.
Sheard's initial appeal to the First Department came in the form of a counseled Appellant's Brief dated April 29, 2014. (Dkt. 9-3 at 1-31) (brief submitted by Robert S. Dean, Esq. of the Center for Appellate Litigation). The State filed its Respondent's Brief on December 1, 2014. (Dkt. 9-3 at 32-59.) Sheard then filed a pro se "Supplemental Brief" on July 11, 2016. (Dkt. 9-3 at 60-96.) The State submitted a reply brief to the "Supplemental Brief" on September 1, 2016. (Dkt. 9-3 at 97-137.)
E. Sheard's Habeas Petition
On March 8, 2018, Sheard filed the instant habeas petition asserting the same grounds he asserted in his state court appeals. First, he argues that he was arrested without probable cause because the police had not actually observed the exchange of drugs between Sheard and Rodriguez, the same argument made at his suppression hearing. (Dkt. 1 ("Petition") at 3-5.) Second, Sheard argues that the prosecutor committed misconduct in summation by making "inflammatory and unsupported statements" that denied him a fair trial. (Petition at 5-8.) Third, Sheard contends his conviction was against the weight of the evidence. (Petition at 8-9.) Finally, Sheard asserts that he was deprived of his right to call his codefendant as a defense witness because his trial counsel failed to do so and was thus ineffective. (Petition at 10-12.)
The State filed its answer opposing Sheard's Petition on May 22, 2018. (Dkt. 9.) On August 23, 2018, Sheard informed this Court that he was filing a motion for a writ of error coram nobis in the Court of Appeals. (Dkt. 11.) On March 14, 2019, the State filed a status letter explaining that Sheard had filed two pro se motions for a writ of error coram nobis in which he argued that the indictment was defective and that the trial court mishandled a jury note. (Dkt. 13 at 2.) Both motions were denied by the Appellate Division, First Department. (Id.) In its letter, the State urged this Court not to stay this action even though Sheard could still apply for leave to appeal the denial of the coram nobis motions. (Dkt. 13 at 2-3.) On March 18, 2019, Sheard filed his own letter stating that this Court "should move on with a decision without waiting for [the result]" regarding his error coram nobis motion. (Dkt. 14.) The Court does so now.
In New York, a convicted criminal defendant may file a motion for a writ of error coram nobis to set aside a judgment due to errors not apparent on the record. See N.Y. Crim. Proc. Law § 460.30; "Writ of Error," BLACK'S LAW DICTIONARY (11th ed. 2019).
Legal Standards
This case is governed by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). Congress enacted AEDPA to limit "the power of federal courts to grant writs of habeas corpus to state prisoners." Williams v. Taylor, 529 U.S. 362, 399 (2000) (O'Connor, J., concurring). Under AEDPA, a district court may consider a state prisoner's application for a writ of habeas corpus "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).
Habeas petitioners also must meet certain threshold requirements such as timeliness and exhaustion of state remedies. Galdamez v. Keane, 394 F.3d 68, 73 (2d Cir. 2005). Sheard satisfies those requirements, and the State does not contend otherwise.
A. Overall Standard
A district court may grant a writ of habeas corpus only where the state court's adjudication of the claim resulted in a decision that was either: (1) contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d). A state court's 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." Taylor, 529 U.S. at 412-13. A decision involves "an unreasonable application of clearly established federal law" when a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. at 413. This standard does not require that all reasonable jurists agree that the state court was wrong. Taylor, 529 U.S. at 409-10. Rather, the standard falls somewhere between "'merely erroneous and unreasonable to all reasonable jurists.'" Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000) (quoting Francis v. Stone, 221 F.3d 100, 109 (2d Cir. 2000)). Ultimately, a federal court may overrule a state court's judgment only if "after the closest examination of the state court judgment, [the] court is firmly convinced that a federal constitutional right has been violated." Taylor, 529 U.S. at 389.
B. Materiality of State Court Error
Even if a state trial court error meets the standards required by AEDPA, habeas relief is not warranted unless the violation "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637-38 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)); see also Fry v. Pliler, 551 U.S. 112, 121 (2007) (confirming continued applicability of Brecht under AEDPA); Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994) ("[h]abeas relief is not appropriate when there is merely a 'reasonable possibility' that trial error contributed to the verdict") (quoting Brecht, 507 U.S. at 635); Butler v. Graham, No. 07 Civ. 6586, 2008 WL 2388740 *6 (S.D.N.Y. June 12, 2008) (recognizing and applying "substantial and injurious effect standard" and citing Brecht and Fry). For example, the standard for determining whether the admission of evidence deprived a defendant of due process under the Fourteenth Amendment is "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 reasonable doubt that would have existed on the record without it." Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985); see also Perez v. Phillips, 210 Fed. App'x 55, 57-58 (2d Cir. 2006) (denying habeas relief where evidence excluded by state court, if otherwise admitted, would not have created "a previously non-existent reasonable doubt" and thus was not material).
C. Deference to State Court Decisions
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) (per curiam)). This stringent standard requires a petitioner to show that the "state court's ruling . . . was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair minded disagreement." White v. Woodall, 572 U.S. 415, 419-20 (2015) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). A state court's findings of fact are "presumed to be correct," 28 U.S.C. § 2254(e)(1), and will be upheld "unless objectively unreasonable in light of the evidence presented in the state court proceeding." Lynn v. Bliden, 443 F.3d 238, 246-47 (2d Cir. 2006) (quoting Miller-El v Cockrell, 537 U.S. 322, 340 (2003)).
D. Burden of Proof
The petitioner "bears the burden of proving by a preponderance of the evidence that his constitutional rights have been violated." Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997). The petitioner also bears "the burden of rebutting the presumption of correctness" of state court fact determinations "by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
Because Sheard is proceeding pro se, the Court must construe his submissions liberally and interpret them "to raise the strongest arguments that they suggest." Kirkland v. Cablevision Systems, 760 F.3d 223, 224 (2d Cir. 2014) (per curiam) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). This does not, however, excuse Sheard "from compliance with relevant rules of procedural and substantive law." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (quoting Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981) (per curiam) (internal quotations omitted)).
Discussion
A. Sheard's Fourth Amendment Claim Is Not a Viable Habeas Claim.
Sheard asserts that habeas relief should be granted pursuant to the Fourth Amendment because his arrest was not supported by probable cause. (Petition at 3-5.) This claim is not cognizable on federal habeas review because the procedures followed by the state court were adequate.
Federal habeas relief is not available on a Fourth Amendment claim "where the State has provided an opportunity for full and fair litigation of [the] claim." Stone v. Powell, 428 U.S. 465, 481-82 (1976); see also Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992). Under this standard, there are only two instances in which review of a Fourth Amendment claim will be granted: (1) "if the state has provided no corrective procedures at all to redress the alleged fourth amendment violations"; or (2) "if the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process." Capellan, 975 F.2d at 70. "[O]nce it is established that a petitioner has had an opportunity to litigate his or her Fourth Amendment claim (whether or not he or she took advantage of the state's procedure), the court's denial of the claim is a conclusive determination that the claim will never present a valid basis for federal habeas relief." Graham v. Costello, 299 F.3d 129, 134 (2d Cir. 2002)
"It is well-established that New York's corrective procedures for litigating Fourth Amendment claims under Criminal Procedure Law § 710.10 et seq. are constitutionally adequate." Monroe v. Smith, No. 16 Civ. 2074, 2017 WL 933109, at *9 (S.D.N.Y. March 8, 2017); accord Capellan, 975 F.2d at 70 n.1 ("[F]ederal courts have approved New York's procedure for litigating Fourth Amendment claims, embodied in N.Y. Crim. Proc. Law § 710.10 et seq. . . . as being facially adequate.") (quoting Holmes v. Scully, 706 F. Supp. 195, 201 (E.D.N.Y. 1989))). Sheard must therefore show that he was precluded from using that mechanism because of an unconscionable breakdown in the process. He does not and cannot do so.
The procedures followed here were adequate. Sheard presented the Fourth Amendment suppression claim to the state court. The issue was addressed at length at the suppression hearing on March 5, 2013. (H. at 17-40.) The court analyzed the issues and made well-considered rulings following discussion and questioning of counsel. (H. at 40-44.) Sheard also made the suppression claim on appeal in his pro se supplemental brief. (R. at 70-77). The First Department explicitly considered this claim and summarily rejected it. Sheard, 145 A.D.3d at 477.
The petition fails to assert, and this Court cannot infer, any basis to conclude that the state's process was flawed. Accordingly, Sheard's Fourth Amendment claim is not a ground for granting habeas relief. See, e.g., Garcia v. Griffin, No. 16 Civ. 2584, 2018 WL 9801209, *13 (S.D.N.Y. May 8, 2018) (Fourth Amendment claim not cognizable after petitioner's Fourth Amendment claim was addressed at a suppression hearing and summarily rejected by the Appellate Division); Monroe, 2017 WL 933109, at *9 (Fourth Amendment claim not cognizable where state trial court fully considered claim); Haynes, 2012 WL 1339434, at *4 (Fourth Amendment claim not cognizable where trial court conducted full suppression hearing).
B. Sheard's Prosecutorial Misconduct Claim Has No Merit.
Sheard's prosecutorial misconduct claim is based on the prosecutor's "inflammatory and unsupported statements" in summation, which allegedly "deprived [Sheard] of a fair trial[.]" (Petition at 5-6.) More specifically, Sheard argues that when commenting on Sheard's relationship to Rodriguez, the prosecutor "distorted the evidence during summation to support her speculative and inflammatory accusation . . . ." (Petition at 5.) Sheard also argues that the prosecutor committed misconduct in summation when she allegedly "belittle[d] the defense" by calling Sheard "lying" and "vouch[ed] for the people's witness[es.]" (Petition at 5.) Sheard raised these misconduct arguments on direct appeal to the First Department, which rejected the claim as meritless. Sheard, 145 A.D.3d at 477.
Generally, "prosecutorial misconduct cannot give rise to a constitutional claim unless the prosecutor's acts constitute 'egregious misconduct.'" Miranda v. Bennett, 322 F.3d 171, 180 (2d Cir. 2003) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 647-48 (1974)). Any misconduct "must be assessed 'in the context of the entire trial.'" Id. at 180 (quoting Donnelly, 416 U.S. at 639). The relevant inquiry, therefore, is whether the prosecutor's conduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly, 416 U.S. at 643); see also Murray v. Greene, No. 06 Civ. 3677, 2006 WL 3751294, at *17 n. 36 (S.D.N.Y. Dec. 21, 2006) (describing high bar in prosecutorial misconduct cases) (citations omitted).
"[T]he Supreme Court has instructed federal courts reviewing habeas claims brought by state prisoners and premised upon prosecutorial misconduct in summation to distinguish between 'ordinary trial error of a prosecutor and that sort of egregious misconduct . . . amount[ing] to a denial of constitutional due process.'" Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir. 1990) (second and third alterations in original) (quoting Donnelly, 416 U.S. at 647-48). It is not enough that the prosecutor's remarks were improper; rather, "the question . . . is whether 'the prosecutorial remarks were so prejudicial that they rendered the trial . . . fundamentally unfair.'" Id. (quoting Garofolo v. Coomb, 804 F.2d 201, 206 (2d Cir. 1986); see also Dunn v. Sears, 561 F. Supp. 2d 444, 455 (S.D.N.Y. 2008) ("It is well-settled that the propriety of comments made by a prosecutor on summation generally does not present a federal constitutional violation").
Under these standards, the prosecutor's statements in summation were neither improper nor so prejudicial as to render trial fundamentally unfair.
1. The Prosecutor's Statements Were Not Improper.
Sheard first contends that the prosecutor "distorted the evidence during summation to support her speculative and inflammatory accusation in summation." (Petition at 5.) Specifically, Sheard points to the following statements made by the prosecutor:
I submit that was not the first sale that those two made together on June 16, 2012. And I submit that those two, the
defendant and Luis Rodriguez both from the Bronx know each other quite a bit more than the defendant let's [sic] on. This was a team effort, this was a planned thing, their roles were known.(Tr. at 166.) The State contends that "[t]he prosecutor's remarks . . . commented fairly on the evidence and drew inferences with support in the record" because (1) "it was reasonable to infer that [Sheard] and Rodriguez knew each other . . . since they both told police that they lived in the Bronx [ ] and they were obviously working together" and (2) "[i]t was reasonable for the prosecutor to suggest that they had made other sales that day based on the high degree of coordination that they used to execute the charged sale." (State Mem. at 15-16.)
This Court agrees with the State that the prosecutor's remarks were reasonable inferences drawn from the record. The jury had heard testimony from two NYPD officers - Detective Lahens and UC113 - who personally saw Sheard and Rodriguez work together on 42nd street. (Tr. at 20-21.) They heard testimony that when Detective Lahens asked to purchase narcotics, Rodriguez stated that he needed to get drugs from his "man" and walked over to Sheard, who gave Rodriguez an object from his underpants that tested positive for crack cocaine. (Tr. at 21-23.) Both Sheard and Rodriguez also told the officers that they lived in the Bronx. (Tr. at 39.) In short, the prosecutor's statement describing their work as a "team effort" and asserting that they "know each other" is reasonable from the record plainly before the jury. Having made comments based on reasonable inferences, the prosecutor did not engage in misconduct. See United States v. Hawkins, 125 F. App'x 364, 366 (2d Cir. 2005) (a prosecutor does not commit misconduct if he merely presents "one view of the evidence, which the jury could accept or reject based on its own knowledge and judgment of the entire record."); see also Dunn, 561 F. Supp. 2d at 456 (no prosecutorial misconduct when prosecutor fairly commented on the evidence and made reasonable inferences).
Sheard next argues that the prosecutor committed misconduct in summation when the prosecutor "belittle[d] the defense" by calling Sheard "lying" and "vouch[ed] for the people's witness[es.]" (Petition at 5.) In defending the credibility of its witnesses, the prosecutor stated that the testifying police officers were "telling you the truth" (Tr. at 176); "[t]hey were not evasive, they answered all the questions that defense counsel asked them"; and "they [were] sure about the things that they saw . . . they did not waiver . . . " (Tr. at 175-77.) And in commenting on Sheard's defense, the prosecutor stated: "Think about why the defendant may not be [] truthful to you . . . his story was ridiculous, he lied, think about why he lied, because he is guilty." (Tr. at 177.)
The State argues that the prosecutor's remarks were appropriate because they merely "responded to petitioner's aggressive attack on the police officers' credibility[.]" (State Mem. at 15-16.) Indeed, as the State aptly notes, "[i]n summation petitioner described the police witnesses, because they worked in an undercover capacity, as 'trained liars,' who were 'trained to deceive[.]'" (State Mem. at 16) (quoting Tr. at 153.)
The State is correct. Because Sheard attacked the credibility of the prosecution's witnesses, the prosecutor was well within bounds to respond by calling Sheard a liar. See Dunn, 561 F. Supp. 2d at 455-56 (prosecutor's remarks, including calling petitioner a "prolific and skillful con artist[,]" were not inappropriate because they were invited by petitioner's summation); United States v. Thomas, 377 F.3d 232, 246 (2d Cir. 2004) (prosecutor's use of the word "lied" more than once on summation in connection with defendant does not constitute misconduct). Further, the prosecutor's "vouching" for the police witnesses was not improper because "the government is allowed to respond to an argument that impugns its integrity or the integrity of its case, and when the defense counsel have attacked the prosecutor's credibility or the credibility of the government agents, the prosecutor is entitled to reply with rebutting language suitable to the occasion." United States v. Thai, 29 F.3d 785, 807 (2d Cir. 1994) (citations and internal quotation marks omitted); see also Osorio v. Conway, 496 F. Supp. 2d 285, 301 (S.D.N.Y. 2007) (prosecutor's "vouching" for the government's witness was appropriate because it was "merely a response to defense counsel's attacks on [the witness's] reliability); Sheard v. Conway, No. 09 CV 3603, 2010 WL 9023189, at *10 (E.D.N.Y. July 19, 2010) (prosecutor's vouching for government's witnesses was not improper after defense counsel attacked government's witnesses as "unprofessional" and "not worthy of belief").
In short, the prosecutor's statements during summation were entirely proper.
2. Sheard Suffered No Actual Prejudice.
Even assuming arguendo that the prosecutor's summation was improper, Sheard suffered no actual prejudice. That is because the prosecution produced ample evidence by which reasonable jurors could have found Sheard guilty beyond a reasonable doubt. Dunn, 561 F. Supp. 2d at 458 ("[i]f there is clear evidence of guilt, prosecutorial misconduct on summation is considered harmless error.") (citing Garofolo, 804 F.2d 201 at 206).
The State produced substantial evidence proving Sheard's guilt at trial, including testimony from three police officers who participated in Sheard's arrest, and physical evidence seized from Sheard after he was arrested. Meanwhile, Sheard's defense consisted only of his own testimony. Regardless of the propriety of the prosecutor's summation, Sheard cannot demonstrate that he suffered actual prejudice because the State presented clear evidence of Sheard's guilt at trial. See, e.g., Bradley v. Meachum, 918 F.2d 338, 344 (2d Cir. 1990) (finding prosecutor's improper summation harmless when prosecutor produced detailed witness testimony about the alleged crime); Dunn, 561 F. Supp. 2d at 458 (finding prosecutor's improper summation harmless when prosecution produced "overwhelming" evidence consisting of numerous witnesses and recovered physical evidence in defendant's possession while defendant was arrested).
Any prejudice also was mitigated by the trial court's instructions to the jury following summation. As the court instructed:
In deliberation you will use your recollection of the testimony, not that of either lawyer or myself for that matter. As judges of the facts it is you alone that determine the truthfulness and accuracy of the testimony of each witness. You must decide whether a witness told the truth and was accurate or instead testified falsely or was mistaken. . .(Tr. at 184.); see, e.g., Osorio, 496 F. Supp. 2d at 302 (petitioner suffered no prejudice from prosecutor's summation when trial court "mitigated any prejudice" by instructing the jury that "what the lawyers say is not evidence"); Garcia, 2018 WL 9801209, at *18 (petitioner was not prejudiced by the prosecutor's summation when trial judge reminded the jury that they were the "judges of the facts in the case"); Velazquez v. Poole, 614 F. Supp. 2d 284, 318 (E.D.N.Y. 2007) (prosecutor's improper summation was sufficiently mitigated when trial court's closing charge instructed jury that "[jury] must determine both the credibility of each witness and the weight to afford each witness's testimony"). Any prejudice was even further mitigated by the brevity of the prosecutor's statements and the fact that she did not repeat them. See Tankleff v. Senkowski, 135 F.3d 235, 253 (2d Cir.1998) (the severity of prosecutor's misconduct on summation, if any, was "mitigated by the brevity and fleeting nature of the improper comments"); Dunn, 561 F. Supp. 2d at 456 (no prosecutorial misconduct when allegedly improper remarks by prosecutor were brief, isolated, and not repeated after a sustained objection).
In sum, this Court finds that the challenged statements from the prosecutor's summation were neither improper nor so prejudicial as to have denied Sheard a fair trial. The First Department's rejection of Sheard's prosecutorial misconduct claim was neither contrary to, nor an unreasonable application of, Supreme Court law. Accordingly, Sheard is not entitled to habeas relief based on prosecutorial misconduct.
C. Sheard's Weight of Evidence Claim Is Not Actionable.
Sheard argues that his guilty verdict was "against the weight of the evidence." (Petition at 8.) The State correctly points out that this claim is not a cognizable ground under federal habeas review.
Courts in the Second Circuit have long established that "'[a] weight of the evidence argument is a pure state law claim grounded in New York Criminal Procedure Law § 470.15(5)' which empowers New York State intermediate appellate court to make weight of the evidence determinations." Garrett v. Perlman, 438 F. Supp. 2d 467, 470 (S.D.N.Y. 2006) (quoting Correa v. Duncan, 172 F. Supp. 2d 378, 381 (E.D.N.Y. 2001)). The Appellate Division, First Department did exactly that when it considered but rejected Sheard's weight of the evidence claim.
Simply put, in making a "weight of the evidence" argument, petitioner has not asserted a federal claim as required by 28 U.S.C. § 2254(a); instead, he has raised an error of state law, for which habeas review is not available. Garrett, 438 F. Supp. 2d at 470 (citing Lewis v. Jeffers, 497 U.S. 764, 780 (1990)); see also Douglas v. Portuondo, 232 F. Supp. 2d 106, 116 (S.D.N.Y. 2002) (a weight of the evidence claim is "an error of state law, for which habeas review is not available.") Accordingly, habeas relief is not warranted based on Sheard's weight of the evidence argument.
D. Sheard's Ineffective Assistance of Counsel Claim Lacks Merit.
Sheard argues that his counsel was ineffective because he did not call Sheard's co-defendant, Rodriguez, to testify even though Sheard asked to do so. (Petition at 9-11.) Sheard raised this claim on direct appeal to the Appellate Division, which rejected it and concluded the following:
Although defendant "vehemently" wanted his codefendant to testify on his behalf, defendant's trial counsel made a decision, in the exercise of professional judgment, not to call this witness. . . Moreover, counsel had a sound reason for not calling the codefendant, who, in his plea allocution, had implicated defendant in the drug sale.Sheard, 145 A.D.3d at 476-77 (citations omitted).
To establish a claim for constitutionally deficient assistance of counsel, the party challenging the conviction must show that (1) the counsel's representation falls "below an objective standard of reasonableness" and (2) there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694 (1984). Further, a court considering a claim of ineffective assistance must apply a "strong presumption" that counsel's representation was within the "wide range" of reasonable professional assistance. Id. at 689.
Importantly, "actions or omissions by counsel that 'might be considered sound trial strategy' do not constitute ineffective assistance." United States v. Best, 219 F.3d 192, 201 (2d Cir. 2000) (quoting Strickland, 466 U.S. at 689); see also, United States v. Smith, 198 F.3d 377, 386 (2d Cir. 1999) ("The decision whether to call any witnesses on behalf of the defendant, and if so which witnesses to call, is a tactical decision of the sort engaged in by defense attorneys in almost every trial"); United States v. Schmidt, 105 F.3d 82, 90 (2d Cir. 1997) (defense counsel's decision whether "to call specific witnesses - even ones that might offer exculpatory evidence - is ordinarily not viewed as a lapse in professional representation"); Jones v. Hollins, 884 F. Supp. 758, 765-66 (W.D.N.Y.1995) ("the decision whether to pursue a particular defense is a tactical choice which does not rise to the level of a constitutional violation . . . the habeas court will not second-guess trial strategy simply because the chosen strategy has failed") (citations omitted), affirmed, 89 F.3d 826, 1995 WL 722215 (2d Cir.1995).
In the context of federal habeas review, "[t]he standards created by Strickland and [AEDEPA (28 U.S.C. § 2254(d))] are both highly deferential and when the two apply in tandem, review is doubly so." Harrington v. Richter, 562 U.S. 86, 105 (2011) (citations and internal quotation marks omitted). The Supreme Court has instructed that "[t]he Strickland standard is a general one, so the range of reasonable applications is substantial." Id. In federal habeas review, "[t]he question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.
Defense counsel's decision not to call Rodriguez as a witness is a prime example of the type of sound trial strategy that cannot be the basis for an ineffective assistance of counsel claim. As defense counsel explained to the court before trial, calling Rodriguez would have been detrimental to Sheard because Rodriguez had pleaded guilty and inculpated Sheard during his plea allocution. (H. at 38.) Defense counsel's decision was both sensible and far from prejudicial. There is no reasonable probability that Rodriguez testimony could have changed the case's outcome because Rodriguez had allocuted and inculpated Sheard in the crime and Rodriguez could have been easily impeached had he given exculpatory testimony at odds with his allocution.
Accordingly, habeas relief on the grounds of ineffective assistance of counsel is not warranted. See Ryan v. Rivera, 21 F. App'x 33, 35 (2d Cir. 2001) (rejecting petitioner's ineffective assistance of counsel claim based on counsel's failure to call witnesses when counsel concluded that the witnesses "were not credible or that their testimony would harm [petitioner]"); Santana v. Capra, 284 F. Supp. 3d 525, 542 (S.D.N.Y. 2018) (rejecting petitioner's ineffective assistance of counsel claim because there were strategic reasons for his defense counsel not to call certain witnesses; state court's decision rejecting petitioner's argument was therefore not an unreasonable application of federal law); Montalvo v. Annetts, No. 02 Civ. 1056, 2003 WL 22962504, at *26 (S.D.N.Y. Dec. 17, 2003) (no ineffective assistance of counsel because petitioner "may not merely allege that certain witnesses might have supplied relevant testimony, but must state exactly what testimony they would have supplied and how such testimony would have changed the result").
Conclusion
For the foregoing reasons, I recommend that the Petition for writ of habeas corpus be DENIED and the case be DISMISSED. Petitioner's remaining arguments, to the extent not addressed herein, have been considered by the Court and found to be without merit.
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the Chambers of the Honorable Andrew L. Carter, Jr., United States Courthouse, 40 Foley Square, Room 435, New York, New York 10007, and to the Chambers of the undersigned, 500 Pearl Street, New York, Room 1960, New York 10007. Failure to file timely objections will result in a waiver of objections and will preclude appellate review.
Respectfully Submitted,
/s/_________
ROBERT W. LEHRBURGER
UNITED STATES MAGISTRATE JUDGE Dated: October 7, 2019
New York, New York Copies transmitted to all counsel of record and mailed to:
David Sheard
Woodbourne Correctional Facility
DIN No. 13-A-1702
99 Prison Rd.
P.O. Box 1000
Woodbourne, NY 12788