Opinion
22 Civ. 5765 (VSB) (GWG)
03-28-2023
NYSIA STROUD, Petitioner, v. SUSAN SQUIRES, Respondent.
REPORT & RECOMMENDATION
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
Petitioner Nysia Stroud, currently incarcerated at the Albion Correctional Facility in Albion, New York, has brought this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, the petition should be denied. Stroud's request for a stay of the petition pending her post-conviction application in state court should also be denied.
See Petition for Writ of Habeas Corpus, filed July 6, 2022 (Docket # 2) (“Pet.”); Answer, filed Oct. 21, 2022 (Docket # 11); Memorandum of Law in Opposition, filed Oct. 21, 2022 (Docket # 12) (“Opp.”); State Court Records and Proceedings, filed Oct. 21, 2022 (Docket # 13) (“R.”); State Court Transcript, filed Oct. 21, 2022 (Docket # 14) (“Tr.”); Letter, filed Jan. 18, 2023 (Docket # 19). Supplemental State Court Record, filed February 1, 2023 (Docket # 21) (“Supp. R.”).
I. BACKGROUND
A. Relevant Trial Testimony
Stroud was an officer of the New York City Police Department (“NYPD”) beginning July 6, 2011. (Liss: Tr. 48). In 2015, the NYPD entered an apartment to execute a search warrant for drugs and drug paraphernalia relating to an investigation of an individual named Lionel Delagard. (Rivera: Tr. 125-126, 128). Stroud was found at the apartment during the search, as were an NYPD uniform, drugs, and a scale. Id. at 129-131. The NYPD did not arrest Stroud, but the NYPD's Internal Affairs Bureau began to investigate her. (Liss: Tr. 46, 50-63). A team from Internal Affairs followed Stroud and eventually discovered Stroud was working an unauthorized second job as a security officer at an Adidas store in Manhattan. (Vinas: Tr. 145). An undercover officer who was part of the team following Stroud approached her at the Adidas store and initiated a conversation, pretending to be a hairdresser named “Lisa.” (Undercover 5063: Tr. 246-250). The two exchanged contact information, with Stroud offering to use her employee discount to help the undercover officer buy shoes. Id. The two began communicating by phone and text message and meeting in person. Id. at 251-261. The undercover testified that they also “flirted with each other” and called each other “sweetie” and “honey.” Id. at 273, 359.
At Stroud's request, the undercover sent photos of herself to Stroud. (Undercover 5063: Tr. 274). The two were never “physically romantic,” and the undercover testified she planned to say no if Stroud attempted to initiate physical contact. (Undercover 5063: Tr. 276).
When the undercover mentioned smoking marijuana in a text message, Stroud responded by text that she did not “want to know about it or hear about it.” R. 410. Eventually, the undercover told Stroud that she picked up and dropped of packages for money, “insinuating illegal activity.” (Undercover 5063: Tr. 258, 261). The undercover discussed borrowing Stroud's car so the undercover could act as a courier for drug dealers. See id. at 261, 277, 279284. Eventually, Stroud drove the undercover on multiple occasions to move varying amounts of cocaine and marijuana, as arranged by Internal Affairs. See id. at 284-322. On one occasion, Stroud drove the undercover to an address in Manhattan, where another undercover officer handed the undercover a backpack containing “a large amount of marijuana,” which she took back to Stroud's car. Id. 284-285. Stroud then drove them to another Manhattan address, where the undercover exchanged the bag of marijuana with another undercover, who gave her an envelope of money. Id. at 286. The undercover returned to Stroud's car and gave her $250 of the “prerecorded buy money.” Id. On another drive between the same locations, Stroud said she had been pulled over on the way to meet the undercover but showed her badge and “they let [her] go.” Id. at 296. During this drive, the undercover told Stroud they were transporting “maybe half a kilo of cocaine and marijuana.” Id. at 299. After exchanging the drugs for money, the undercover gave Stroud $350. Id. at 300. On their next drug transportation, the undercover took a kilogram of cocaine out of the bag in the car and showed it to Stroud. Id. at 310. After completing this staged transportation, the undercover gave Stroud $800. Id. at 311. On their final drug transportation, while Stroud drove, the undercover pulled out drugs and showed them again to Stroud and later gave her $1,000. Id. at 318-323. Following their last staged delivery, NYPD Sergeant Jeffrey Liss arrested Stroud on June 13, 2017. (Liss: Tr. 62).
Stroud testified at trial that she viewed every encounter she had with the undercover as “a full date” and that during the times they transported drugs, Stroud was “getting to know [the undercover] and trying to get more intimate with her.” (Stroud: Tr. 595). At one point Stroud said the undercover told her to “touch her heart” because her heart was “pumping” from being scared. Id. at 603. Stroud “took it upon [her]self to fondle a little bit” because she was “trying to get a free feel” and was “trying to . . get sexual with” the undercover. Id. Stroud testified that certain statements she made to the undercover were to “let her know” that Stroud “want[ed] [her].” Id. at 604. Although it was clear that the undercover “wasn't letting [her] in,” Stroud kept seeing the undercover because Stroud was “emotionally disturbed” and “lusting.” Id. at 605. Stroud testified that she would not “have been involved in this type of narcotics related activity” if the undercover had not “entic[ed] her into a relationship.” Id. at 609. However, Stroud conceded that she accepted money from the undercover after each drug delivery and never returned any money to the undercover. Id. at 632-36.
B. Verdict and Sentencing
The jury found Stroud guilty of two counts of criminal possession of a controlled substance in the first degree and four counts of official misconduct. (Charge: Tr. 784-788). The judge sentenced Stroud to eight years in prison for both counts of possession of a controlled substance, to be served concurrently, one year for each count of official misconduct, to be served concurrently, and five years post-release supervision. (Sentence: Tr. 13).
C. Appeal
Following her conviction, Stroud appealed to Appellate Division, First Department. See R. 128. Stroud argued (a) that she had proved “statutory,” “due process,” and “sentencing” entrapment, and the trial court improperly denied an entrapment instruction at the close of the People's case, thereby necessitating her own testimony on the issue; (2) that the trial court gave an erroneous “acting in concert” instruction; and (3) that the trial court had abused its discretion in admitting evidence of the initial search and in instructing the jury regarding Stroud's criminal history. See R. 129-133.
The Appellate Division rejected all these arguments. See People v. Stroud, 190 A.D.3d 592, 593 (2021). It ruled that Stroud did not preserve her entrapment claim and also rejected it on the merits. Id. It also held that Stroud “did not preserve her claims that the investigators violated her due process rights . . . and that she was entrapped into committing drug crimes of a higher degree than she was predisposed to commit.” Id. at 594. It rejected her remaining claims either as unpreserved or on the merits.
Stroud sought leave to appeal from the New York Court of Appeals, which denied the application. People v. Stroud, 36 N.Y.3d 1124 (2021). This petition followed.
D. The Instant Petition
In the instant petition, Stroud raises the following claims: (1) that police investigators violated her due process rights by using sexual advances to lure her into committing crimes when she was not predisposed to doing so, see Pet. at 3; (2) that the prosecutor violated her right to a fair trial by “relying on a racial trope of the hyper-sexed black woman” to rebut her entrapment defense, see id. at 4; (3) that she was denied the effective assistance of counsel because counsel failed to preserve her due process claims for appeal, see id. at 5; and (4) that her due process rights were violated because the police investigation amounted to sentencing entrapment, see Id. at 6.
E. Post-Petition Motion and Request for Stay
Several days before the instant petition was filed, Stroud filed a motion under New York Criminal Procedure Law (“NYCPL”) §§ 440.10, 440.20 in New York Supreme Court, New York County on June 27, 2022. See R. 342-353 (“§ 440 motion”). In that motion, Stroud raises six separate grounds for relief, including essentially the same four grounds she raises here. Id. Several months later, and after the instant petition was fully briefed, Stroud filed letters requesting a stay of the petition pending the outcome of the § 440 motion and an extension of the time to file her reply brief. See Letter, filed Nov. 23, 2022 (Docket # 15) (“Stay Ltr.”); Letter, filed Dec. 6, 2022 (Docket # 17). The respondent filed a letter in opposition. See Letter, filed Dec. 9, 2022 (Docket # 18) (“Opp. to Stay Ltr.”). The Court granted Stroud an extension to file her reply brief to February 24, 2023 and directed the respondent to supplement the record with any further filings in petitioner's post-conviction proceedings. See Order, filed Jan. 25, 2023 (Docket # 20). The respondent timely provided the supplemental material, which included the State's opposition to Stroud's § 440 motion and a January 3, 2023 decision of Supreme Court, New York County, denying her motion. See Affirmation in Response to the Defendant's Motion to Vacate Judgment and Set Aside Sentence, annexed as attachment # 1 to Supp. R. (Docket # 21-1) (“440 Opp.”); Motion for CPL § 440.10, annexed as attachment # 2 to Supp. R. (Docket # 21-2) (“440 Decision”). Petitioner later sent a letter that appeared to request an extension by this Court for leave to appeal the state court decision on her § 440 motion, see Letter, filed Feb. 23, 2023 (Docket # 22), which the Court explained could not be adjudicated in federal court. See Order, filed Feb. 27, 2023 (Docket # 23). At the same, the Court extended the deadline for her to file a reply. Id. While no reply was timely filed, petitioner filed a letter seeking “more time” to “exhaust all [her] remedies at the state level” before filing a reply brief, see Letter, filed Mar. 20, 2023 (Docket # 24) --- essentially amounting to another application for a stay. The Court denied this request. See Order, filed Mar. 22, 2023 (Docket # 25).
II. LEGAL STANDARD
A petition for a writ of habeas corpus may not be granted with respect to any claim that has been “adjudicated on the merits” in state court unless the state court's adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d).
For a claim to be “adjudicated on the merits” within the meaning of § 2254(d), it must “finally resolv[e] the parties' claims, with res judicata effect,” and it must be “based on the substance of the claim advanced, rather than on a procedural, or other, ground.” Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001). As long as “there is nothing in its decision to indicate that the claims were decided on anything but substantive grounds,” a claim will be considered “adjudicated on the merits” even if the state court fails to mention the federal claim and cites no relevant federal case law. Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001); accord Harrington v. Richter, 562 U.S. 86, 99 (2011) (“When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.”); see also id. at 98 (§ 2254(d) deference applies even “[w]here a state court's decision is unaccompanied by an explanation”). Moreover, a state court's “determination of a factual issue” is “presumed to be correct,” and that presumption may be rebutted only “by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
A state court decision is “contrary to” clearly established federal law only “if the state court applies a rule that contradicts the governing law set forth” in Supreme Court precedent or “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives” at a different result. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Habeas relief is available under the “unreasonable application” clause only “if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. at 413. A federal court may not grant relief “simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. at 411. Rather, the state court's application must have been unreasonable - a standard that is met only “where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with” Supreme Court precedent. Harrington, 562 U.S. at 102; see also id. (“[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable.”). In other words, to demonstrate an “unreasonable” application of Supreme Court law, the habeas petitioner “must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103; see also Woods v. Donald, 575 U.S. 312, 318-19 (2015) (per curiam) (habeas relief available only where there is an “extreme malfunction” by the state court in applying Supreme Court precedent) (citation and internal quotation marks omitted).
The “determination of whether a court has unreasonably applied a legal standard depends in large measure on the specificity of the standard in question.” Brisco v. Ercole, 565 F.3d 80, 89 (2d Cir. 2009). “The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations” inasmuch as the application of a general standard to a specific case “can demand a substantial element of judgment.” Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). Thus, “where the precise contours of a right remain unclear, state courts enjoy broad discretion in their adjudication of a prisoner's claims.” Woods, 575 U.S. at 318 (citation, brackets, and internal quotation marks omitted); accord Brisco, 565 F.3d at 90 (a court applying a “fact-dependent standard . . . to the facts of a specific case is . . . entitled to significant ‘leeway' when [a habeas court] review[s] its decision for reasonableness”) (quoting Yarborough, 541 U.S. at 664).
Only holdings of the Supreme Court are considered for purposes of determining clearly established federal law. Rodriguez v. Miller, 537 F.3d 102, 106 (2d Cir. 2008). Thus, “[n]o principle of constitutional law grounded solely in the holdings of the various courts of appeals or even in the dicta of the Supreme Court can provide the basis for habeas relief.” Id. at 106-07.
Where there is “[n]o holding” from the Supreme Court on the question presented, Carey v. Musladin, 549 U.S. 70, 77 (2006), or where Supreme Court cases “give no clear answer” to the question presented in the petition, Wright v. Van Patten, 552 U.S. 120, 126 (2008) (per curiam), a state court's decision can be neither contrary to nor an unreasonable application of clearly established federal law.
III. DISCUSSION
The respondent argues that Stroud's claims are unexhausted or otherwise procedurally barred. We do not reach these issues as the claims would fail on the merits anyway. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”); Trubin v. Mazzuca, 2006 WL 1876669, at *11 (S.D.N.Y. July 6, 2006) (declining to reach the issue of whether a claim was “procedurally barred because we would deny habeas relief on this claim even on the merits”); see also Greiner v. Wells, 417 F.3d 305, 317 n.14 (2d Cir. 2005) (“By reaching the merits of the ineffective assistance claim, we need not determine whether the claim is procedurally barred.” (citation omitted)).
We address each claim in the petition next.
A. Due Process Claim as to Investigation
Stroud argues that her “conviction should be vacated because during the investigation the government engaged in outrageous conduct and violated [her] state/federal constitutional due process and fair trial rights by utilizing sexual and romantic advances to lure [her] into committing crimes[.] [She] was not predisposed to crime.” Pet. at 12. She contends that “[t]he government relentlessly employed outrageous, overzealous, unnecessary, and deceptive tactics to overcome my reluctance to have anything to do with drugs.” Id. This claim does not directly relate to Stroud's entrapment defense, which was presented to and rejected by the jury, but instead makes a separate due process argument attacking the conduct of the police officers.
Stroud, however, points to no “clearly established Federal law, as determined by the Supreme Court,” 28 U.S.C. § 2254(d), that runs counter to the state court's decision upholding her conviction. And to the Court's knowledge, there is no Supreme Court precedent clearly establishing a right to be free from the type of investigation claimed by Stroud. See Primavera v. Sec'y, Dep't of Corr., 2021 WL 4383889, at *4 (M.D. Fla. Sept. 24, 2021) (“The U.S. Supreme Court has never held that outrageous government conduct violates the federal due process clause and only mentioned in dicta that a future case may present facts that demonstrate a violation”). Thus, the petition fails for this reason alone. See Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (“[I]t is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by [the Supreme] Court.”) (citations and internal quotation marks omitted). For what it is worth, we note also that Stroud's conviction would not even run afoul of the due process clause as interpreted by the Second Circuit.
As the Second Circuit has explained, “[g]overnment involvement in a crime may in theory become so excessive that it violates due process and requires the dismissal of charges against a defendant even if the defendant was not entrapped.” United States v. Al Kassar, 660 F.3d 108, 121 (2d Cir. 2011). In assessing whether the government's conduct “violated standards of due process because the Government's role in the investigation was excessive and fundamentally unfair,” the Second Circuit has noted that rather than focusing on “the defendant's predisposition,” a due process claim “focuses on the conduct of the government agents.” United States v. Myers, 692 F.2d 823, 836 (2d Cir. 1982). “To establish a due process violation on this ground, a defendant must show that the government's conduct is so outrageous that common notions of fairness and decency would be offended were judicial processes invoked to obtain a conviction.” Al Kassar, 660 F.3d at 121 (citation and punctuation omitted). “[T]he burden of establishing outrageous investigatory conduct is very heavy.” United States v. Rahman, 189 F.3d 88, 131 (2d Cir. 1999).
In the context of undercover investigations and government involvement in criminal activity, the behavior of an undercover officer must “shock the conscience.” Id. The Second Circuit has held that:
Generally, to be “outrageous,” the government's involvement in a crime must involve either coercion or a violation of the defendant's person. [United States v.] Schmidt, 105 F.3d [82,] 91 [(2d Cir. 1997)]; Myers, 692 F.2d at 837. It does not suffice to show that the government created the opportunity for the offense, even if the government's ploy is elaborate and the engagement with the defendant is extensive. Schmidt, 105 F.3d at 91; Myers, 692 F.2d at 837. Likewise, feigned friendship, cash inducement, and coaching in how to commit the crime do not constitute outrageous conduct. Myers, 692 F.2d at 837-39.Al Kassar, 660 F.3d at 121.
Here, Stroud takes issue with a course of conduct by the undercover officer in using “sexual and romantic advances” to lure Stroud into committing crimes. Pet. at 12. But the record shows that, at most, the conduct consisted of flirtation. Stroud never claimed that the two were ever physically, let alone sexually, intimate. In reviewing a case where a defendant contended a federal agent pursued a “love interest” with defendant and actually did engage in sexual relations with her, the Second Circuit cautioned that the defendant would need a specific and substantial showing for their finding a due process violation. United States v. Cuervelo, 949 F.2d 559 (2d Cir. 1991). It held that “at a minimum, the defendant must show: (1) that the government consciously set out to use sex as a weapon in its investigatory arsenal, or acquiesced in such conduct for its own purposes upon learning that such a relationship existed; (2) that the government agent initiated a sexual relationship, or allowed it to continue to exist, to achieve governmental ends; and (3) that the sexual relationship took place during or close to the period covered by the indictment and was entwined with the events charged therein.” Id. at 567; see also United States v. Nolan-Cooper, 155 F.3d 221, 234 (3d Cir. 1998) (no due process violation where agent initiated “dinners, nightclubbing, and other socializing” as part of a romantic relationship was not a due process violation); United States v. Mahon, 2010 WL 4038763, at *8 (D. Ariz. Oct. 14, 2010) (no due process violation where “the government deliberately chose to present Defendants with a younger, sexually attractive female to win their confidence.”). Neither in her petition nor in her brief on appeal in state court did the defendant marshal any evidence that would meet the criteria outlined in Cuervelo.
B. Prosecutor's Portrayal of Stroud
Stroud argues in her petition that the prosecution “[v]iolated [her] rights by relying on a racial trope of the hyper-sexed black woman to rebut the defense that [she] was lured by the undercover officer's active sexual and romantic advances into committing crimes [she] was not predisposed to commit....The prosecutor falsely portrayed [her] as an oversexed black lesbian too involved with other women to have been lured by the advances of the female undercover.” Pet. at 13.
Stroud's petition does not specify when exactly the prosecution invoked the alleged racist or sexist tropes or what the offending language was. In her § 440 motion, Stroud raised a similar argument and explained that “[r]eliance on this stereotype was especially apparent during my cross-examination by the prosecutor, who repeatedly focused on my other concurrent sexual relationships.” R. 346. She continues: “In this case, the prosecutor kept implying that the undercover did not sexually or romantically entice me into committing acts I was not predisposed to commit because I was sexually and romantically involved with other women.” Id.
On cross examination at her trial, the following exchanges took place between the prosecution and Stroud:
Q Now, Officer Stroud, you have -- you have been in relationships before; isn't that right?
A Yes, sir.
Q And in fact I believe on direct, you said that at the time you were dating numerous other women, is that correct?
A. Yes.
Q And there was -- you told Lisa about some of these women, correct?
A Yes.
Q One of them was a woman named Quay?
A Yes.
Q And how long did you date her for?
A Probably about five months, six months; something like that.
Q Okay. And there is also another woman you dated named Star; is that correct?
A Yes.
Q And that was actually the woman that you met when you were in Miami when you were on vacation, correct?
A Yes.
Q And this was the vacation that you took the very beginning of May 2017?
A Yes.
Q And is it fair to say that you were very much into Star when you got back from Miami; is that right?
A Yes.
Q You bought her a dress?
A Yes.
Q You went to Pennsylvania to visit her?
A Yes.
Q She came to visit you?
A Yes.
Q Did you ever transport drugs with her?
A No.
Q Did you ever transport drugs with Quay?
A No.
Q Did you ever transport drugs with any other woman you dated?
A No.(Stroud: Tr. 696-697).
At summation, the prosecution referred back to the alleged “flirtation” between Stroud and the undercover (Tr. 730), and in arguing against Stroud's attempted defense of entrapment, the prosecution added:
And it is kind of actually ridiculous to think that, you know, the undercover somehow tricked her or somehow used her appearance or by flirting with her, tricked -- the undercover tricked the defendant into doing this.... [Y]ou heard the defendant talk about how she said . . . at the time she was dating numerous other women. You heard about the woman Quay, Star[,] and the defendant never transported drugs for them. That's because that's not what this was about. This wasn't about some kind of inducement or relationship. This was about greed and money.(Tr. 733-734).
In other words, the testimony elicited by the prosecutor was specifically for the purpose of rebutting Stroud's testimony that she viewed her relationship with the undercover to be romantic in nature.
When a federal habeas court reviews comments made by a prosecutor during trial, “[t]he relevant question is whether the prosecutor's comments ‘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 v. DeChristoforo, 416 U.S. 637, 643 (1974)). The scope of review for allegations of prosecutorial misconduct in the habeas context is “quite limited.” Tankleff v. Senkowski, 135 F.3d 235, 252 (2d Cir. 1998). Relief is available only where the court “find[s] that the prosecutor's comments constituted more than mere trial error, and were instead so egregious as to violate the defendant's due process rights.” Id. (citing Donnelly, 416 U.S. at 647-48). In other words, “the law is settled that federal habeas relief is not available on the basis of improper prosecutorial statements at trial unless the errors, in context of the summation as a whole, were so fundamentally unfair as to deny petitioner a fair trial.” Tejada v. Senkowski, 1993 WL 213036, at *3 (S.D.N.Y. June 16, 1993) (punctuation omitted), affd mem., 23 F.3d 397 (2d Cir. 1994).
Stroud cannot meet this standard because the prosecution's elicitation and description of Stroud's romantic history was necessary for the prosecution to rebut Stroud's own argument that she viewed herself and the undercover as having a romantic relationship. Thus, far from being “egregious” or “fundamentally unfair,” the prosecution's actions were appropriate.
Accordingly, this claim does not support a grant of habeas relief.
C. Sentencing Entrapment
Stroud argues that the prosecution “violated [her] due process rights by controlling the quantity and type of drugs involved in the undercover operation thereby manipulating the sentence [she] would receive if convicted.” Pet. at 15. This argument is easily disposed of as the Court is unaware of any “clearly established” Supreme Court law recognizing such a claim. Indeed, a sentencing entrapment claim - or what also might be called a “sentencing manipulation” claim depending on what exactly Stroud is arguing, see United States. v. Cromitie, 2011 WL 2693297, at *1 (S.D.N.Y. June 29, 2011) (distinguishing between the two claims), affd, 727 F.3d 194 (2d Cir. 2013) - has not even been recognized in the Second Circuit, see United States v. Gagliardi, 506 F.3d 140, 148 (2d Cir. 2007), let alone the Supreme Court. See United States. v. Gardner, 488 F.3d 700, 716-717 (6th Cir. 2007) (“the Supreme Court [has not] officially . . . recognized the theory of sentencing entrapment”). Thus, the decision upholding Stroud's conviction cannot be said to be contrary to or involve an unreasonable application of “clearly established” law.
D. Ineffective Assistance of Counsel
Stroud claims that she was “[d]enied state/federal constitutional rights to meaningful and effective assistance of counsel based on [her] lawyer[']s failure to address and/or preserve the above instances of outrageous conduct on the part of the investigating officers and the prosecutor.” Pet. at 14. Specifically, Stroud asserts that her attorney “should have asked for dismissal of [the] indictment based on the undercover's outrageous sexual seduction which crossed the line amounting to an improper use of government power.” Id.
To demonstrate ineffective assistance of counsel, a petitioner must show that her “counsel's representation fell below an objective standard of reasonableness” and “must demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Harrington, 562 U.S. at 104 (punctuation omitted) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)); accord Tavarez v. Larkin, 814 F.3d 644, 648 (2d Cir. 2016); United States v. Brown, 623 F.3d 104, 112 (2d Cir. 2010); Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2003); see also Massaro v. United States, 538 U.S. 500, 505 (2003) (“[A] defendant claiming ineffective counsel must show that counsel's actions were not supported by a reasonable strategy and that the error was prejudicial.”).
In evaluating the first prong - whether counsel's performance fell below an objective standard of reasonableness - “[j]udicial scrutiny . . . must be highly deferential,” and the petitioner must “overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Bell v. Cone, 535 U.S. 685, 698 (2002) (punctuation omitted) (quoting Strickland, 466 U.S. at 689); see Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (according counsel a presumption of competence). This analysis requires a court to “affirmatively entertain the range of possible reasons [petitioner]'s counsel may have had for proceeding as they did.” Cullen v. Pinholster, 563 U.S. 170, 196 (2011) (punctuation omitted); accord Jackson v. Conway, 763 F.3d 115, 152-53 (2d Cir. 2014).
The second prong requires a showing of prejudice. To satisfy this prong, the petitioner “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694; accord Tavarez, 814 F.3d at 648. With respect to the second prong, the Second Circuit generally “requires some objective evidence other than defendant's assertions to establish prejudice.” Pham, 317 F.3d at 182 (citing United States v. Gordon, 156 F.3d 376, 380-81 (2d Cir. 1998) (per curiam)); accord Melo v. United States, 825 F.Supp.2d 457, 462 (S.D.N.Y. 2011). Unlike the reasonableness prong, “the prejudice determination may be made with the benefit of hindsight.” Lynch v. Dolce, 789 F.3d 303, 311 (2d Cir. 2015) (punctuation omitted) (quoting Mayo v. Henderson, 13 F.3d 528, 534 (2d Cir. 1994)). Thus, a court will consider the evidence against a defendant in deciding if the outcome of the trial would have been different but for her attorney's performance. See, e.g., United States v. Hasan, 586 F.3d 161, 170 (2d Cir. 2009) (“[G]iven the overwhelming evidence against [the defendant] at trial, [he] cannot show prejudice ....”).
“The standards created by Strickland and § 2254(d) are both highly deferential, and when the two apply in tandem, review is doubly so.” Harrington, 562 U.S. at 105 (punctuation and internal citation omitted). A petitioner “must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance . . . . Rather, he must show that the [state court] applied Strickland to the facts of his case in an objectively unreasonable manner.” Bell, 535 U.S. at 698-99. Our task on habeas review is limited, therefore, to asking whether the state court's “rejection of this claim amounted to an unreasonable application of the Strickland standard.” Aparicio, 269 F.3d at 99 (citing 28 U.S.C. § 2254(d)(1)).
Stroud's claim regarding ineffective assistance fails on both prongs of the Strickland analysis. As already demonstrated, Stroud's claims regarding due process violations and the prosecutor's comments did not violate any constitutional principle. As the Second Circuit has squarely held, the “failure to make a meritless argument” cannot establish that “counsel's conduct fell below ‘an objective standard of reasonableness.'” United States v. Kirsh, 54 F.3d 1062, 1071 (2d Cir. 1995) (citing Strickland, 466 U.S. at 688). Thus, the clam of ineffective assistance fails.
IV. REQUEST FOR STAY
Stroud filed a letter to the Court on November 23, 2022, requesting the Court “hold, in abeyance, all proceedings in [this] matter until [her] pending state motion . . . has been decided including any discretionary appeals to which [she is] entitled.” See Stay Ltr. Respondent has opposed this request. See Opp. to Stay Ltr. Under Rhines v. Weber, 544 U.S. 269 (2005), a district court may not stay a petition to allow for exhaustion unless, inter alia, the petitioner shows the unexhausted claims are “potentially meritorious.” Id. at 278. For the reasons stated above, all the claims in the petition as it exists now fail on the merits, and thus the request for a stay should be denied for this reason alone.
We are aware that Stroud has raised two new claims in her § 440 motion, neither of which are raised in her habeas petition. One claim is that Stroud's “sentence should be set aside because [she] received an enhanced sentence - or ‘trial penalty' - as punishment for exercising [her] right to proceed to trial[,] and [she] was sentenced more harshly than white former police officers convicted of similar offenses in violation of [her] state and federal constitutional rights to trial, due process and equal protection.” R. at 350-51. The other new claim is that Stroud received ineffective assistance of counsel at sentencing because her attorney failed to object to her sentence on the grounds that it was a trial penalty, was racially disparate, and was the result of a government case based on sentence manipulation. R. at 352-53.
We do not reach the question of whether Stroud could amend the petition now to include those claims because neither claim is “potentially meritorious” and thus a stay could not be granted for this reason alone.
Stroud asserts in her § 440 motion that, prior to trial, the state made a plea offer of five years and that her sentence at trial ended up being three years more than the rejected plea offer. See R. 351. This pre-trial offer, apparently, was based on an offer to permit Stroud to plead guilty to the “lesser offense of Criminal Possession of a Controlled Substance in the Second Degree.” 440 Opp. at 17. Stroud's decision to decline the offer meant she faced two charges at trial for Criminal Possession of a Controlled Substance in the First Degree, see 440 Opp. at 1718. Following the guilty verdicts on these counts, see Charge: Tr. 784-785, the judge sentenced Stroud to eight years on each of these counts, to be served concurrently, which the judge noted was the “minimum sentence,” see Sentence: Tr. 13; see also N.Y. Penal Law § 70.71 (2)(b)(i) (McKinney) (“for a class-A-I felony, the term shall be at least eight years and shall not exceed twenty years”). Certainly, a defendant's choice to opt for a trial cannot itself be grounds for a higher sentence. See United States v. Whitten, 610 F.3d 168, 195 (2d Cir. 2010) (it is unconstitutional for the government to use a defendant's “demand for trial to evidence” characteristics necessary to obtain a harsher sentence). There is no evidence, however, that this is what happened in Stroud's case. Stroud chose to reject a plea to a lesser offense and opted to go to trial for the greater offense with which she was charged. She has not provided any evidence that her decision to go to trial rather than her conviction on the greater charge at trial was the reason for the higher sentence.
Stroud's claim that her sentence was the product of disparate racial prejudice fares no better. The factual premise for this claim consists solely of four news articles about sentences received by police officers and a firefighter for varying crimes. See R. 367-374. None of these defendants were convicted of the same charges the jury found Stroud guilty of. More to the point, Stroud has not controverted the sentencing judge's assertion that she got the minimum sentence, and thus her sentence could not have been the result of any racial disparity.
Stroud's second new claim fails as well, inasmuch as it asserts ineffective assistance by her trial counsel because he failed to raise the first claim as well as the “sentencing manipulation” claim raised in her petition. An attorney cannot be found to have provided ineffective assistance for failing to raise a meritless argument. See, e.g., Kirsh, 54 F.3d at 1071 (“the failure to make a meritless argument does not rise to the level of ineffective assistance”).
Because Stroud has not shown that any of her unexhausted claims are “potentially meritorious,” Stroud's request for stay should be denied.
V. Conclusion
For the foregoing reasons, Stroud's petition for a writ of habeas corpus and her request for a stay (Docket # 15) should be denied.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to Judge Broderick. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).