Opinion
19-CV-6924 (MKV) (RWL)
10-09-2020
JASON TEN EYCK, Petitioner, v. WILLIAM A. LEE, Superintendent, Respondent.
REPORT AND RECOMMENDATION TO HON. MARY KAY VYSKOCIL: HABEAS CORPUS
ROBERT W. LEHRBURGER, U.S. MAGISTRATE JUDGE
Jason Ten Eyck (“Ten Eyck”), proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction following a jury trial in the New York State Supreme Court, New York County. Ten Eyck contends that: (1) he was denied the right to a fair trial because of a “prejudicial and erroneous” jury charge; (2) his due process rights were violated when the trial judge denied him a new trial based on newly discovered evidence; (3) his trial counsel was ineffective, depriving him of due process; (4) he was denied a fair trial and due process when the prosecutor committed misconduct by “mak[ing] himself a witness”; (5) his conviction was against the weight of the evidence, violating his due process rights; (6) he was denied a fair trial and due process because the “[c]onviction was obtained after a prejudicial Sandoval hearing”; (7) the judge's denial of a motion to dismiss after “[e]ntrapment as a matter of law was fully established” violated his due process rights; and (8) his Sixth Amendment rights were violated when the judge did not hold a hearing on whether a witness had valid privilege against self-incrimination during Ten Eyck's trial. (Dkt. 1 (“Pet.”) at 4-10.) For the reasons that follow, I recommend that Ten Eyck's petition be DENIED.
Background
The jury convicted Ten Eyck on eighteen counts, including one count of conspiracy in the fourth degree, one count of criminal sale of a firearm in the second degree, seven counts of criminal sale of a firearm in the third degree, seven counts of criminal possession of a weapon in the second degree, one count of attempted criminal sale of a firearm in the third degree, and one count of attempted criminal possession of a weapon in the second degree.
A. The Crimes and Investigation
In December 2011, Ten Eyck responded to an advertisement on Craigslist that offered for sale “Roxies” and “Blues” - street names for Oxycodone. (Tr. 367-68.) Ivan Chavez, a confidential informant for the police, had posted the advertisement. (Tr. 368.) Chavez responded to Ten Eyck's inquiry and arranged to meet Ten Eyck in Queens. (Tr. 368.) At their meeting, Chavez sold Ten Eyck “10 or 15 pills” of a 30-milligram dosage of oxycodone. (Tr. 368-69.) Ten Eyck met with Chavez at least two more times to conduct similar transactions. (Tr. 370.) On the “third or fourth” occasion that Ten Eyck met Chavez, they were in the car “talking doing the transaction” when Chavez “opened up his coat and showed [Ten Eyck] a gun.” (Tr. 370.) Chavez then asked Ten Eyck if he “knew anybody that knew of any guns or if [Ten Eyck] had any guns that [he] wanted to sell.” (Tr. 370.) According to Ten Eyck, Chavez asked him “pretty much ... every other day” whether Ten Eyck could find a gun for sale or if he had a gun for sale, and offered to “give [Ten Eyck] pills” if he “found” a gun. (Tr. 372-73.)
“Tr.” means the transcript of Ten Eyck's trial held before the New York State Supreme Court, New York County. (Dkts. 13 and 13-1.)
On one occasion when Ten Eyck “didn't have any money,” he asked Chavez if Chavez could “put on credit some pills for [him].” (Tr. 373-74.) Chavez declined, offering instead to “give [Ten Eyck] some pills” if Ten Eyck “deliver[ed] something for [Chavez].” (Tr. 374.) Ten Eyck “said no at first” but then “called [Chavez] back because withdrawal is terrible.” (Tr. 374.) On March 14, 2012, Ten Eyck met Chavez in Queens where Chavez “put the rifle into [Ten Eyck's] car.” (Tr. 375.) Later that day, Chavez sent a text message to Ten Eyck, instructing Ten Eyck to meet him in Manhattan. (Tr. 375.) When Ten Eyck met Chavez in Manhattan, Chavez introduced Ten Eyck to an undercover police officer (hereinafter “UC180”) whom Chavez called “my friend Danny”. (Tr. 376.) UC180 “came and took the rifle out of [Ten Eyck's] back seat” and “put it in his [own] trunk.” (Tr. 376.) UC180 “gave [Ten Eyck] five hundred dollars.” (Tr. 377.) Ten Eyck later gave Chavez the money in exchange for which Chavez gave him “10, 15 or 20” pills. (Tr. 377-78.)
The undercover officer is identified in the state court record and transcripts as “UC180.”
After this transaction, Ten Eyck met with UC180 six more times and sold eight firearms in total. (Tr. 390-91.) According to Ten Eyck, each of these transactions followed a similar pattern. (Tr. 379-85.) First, Chavez, or another co-conspirator,would give Ten Eyck the name of the guns. (Tr. 380.) Next, Ten Eyck would contact UC180, describe the guns' model, quote a price, and arrange to meet UC180 to sell them. (Tr. 380-83.) Ten Eyck would proceed to “pick up the guns and drop them off” to UC180. (Tr. 383.) In exchange for selling the guns, Ten Eyck “got pills” from Chavez. (Tr. 383.) Ten Eyck testified that this relationship “came to an end in June” because Ten Eyck “had just gotten a job” and was “trying to do better.” (Tr. 385.) On July 13, 2012, Ten Eyck was arrested at his home in New Jersey.
Marcos Echevarria, Nicholas Mina, Meryl Lebowitz, and Jennifer Sultan were charged alongside Chavez and Ten Eyck. (SR. 058.) “SR” means the State Court Record. (Dkts. 14, 14-1, and 14-2.)
UC180 testified that after Chavez introduced him to Ten Eyck, Chavez “stepped out of the picture.” (Tr. 126.) However, upon examination and forensic testing of the firearms that UC180 bought from Ten Eyck, Detective Richard Wells - a detective in the Firearms Investigation Unit of the New York Police Department (the “FIU”) who worked on the investigation of Ten Eyck's case - determined that many of the firearms Ten Eyck sold to UC180 had been stolen from the NYPD and specifically the Ninth Precinct. (Tr. 174-82.) Upon further investigation, “around mid May 2012,” Detective Wells uncovered that an officer from the Ninth Precinct, Nicholas Mina, had provided Chavez with the stolen firearms.(Tr. 149-50, 181-83.)
Mina was separately charged with stealing and selling firearms. (Tr. 388-89.)
B. The Trial Court Proceedings
On July 13, 2012, a grand jury indicted Ten Eyck. (SR. 058.) The jury charged Ten Eyck with one count of conspiracy in the fourth degree, one count of criminal sale of a firearm in the second degree, seven counts of criminal sale of a firearm in the third degree, seven counts of criminal possession of a weapon in the second degree, one count of attempt to commit the crime of criminal sale of a firearm in the third degree, and one count of attempt to commit the crime of criminal possession of a weapon in the second degree. (SR. 058.)
1. Ruling on Prior Arrests
Prior to beginning trial, Justice Edward J. McLaughlin held a Sandoval hearing to rule on the prosecution's request to cross-examine Ten Eyck about certain of his prior convictions and bad acts. (Hr. 3.) Justice McLaughlin considered whether evidence could be introduced about two incidents in Florida in 1996, one an arrest for driving while intoxicated after Ten Eyck flipped over his car into a lake and the second an arrest for cocaine possession. (Hr. 14.) After allowing evidence to be introduced surrounding other of Ten Eyck's prior acts, Justice McLaughlin ruled that “there's a point when enough is enough. For Sandoval purposes I don't believe that either of the Florida cases need to be and consequently should be asked of him.” (Hr. 16.)
“Hr.” means the transcript of the Voir Dire / Sandoval / Antomarchi hearing held before the New York State Supreme Court, New York County, prior to Ten Eyck's trial. (Dkt. 13.)
Just before Ten Eyck's testimony, however, Justice McLaughlin ruled that the prosecution could ask Ten Eyck about his 1996 arrests in Florida to show that he lied on a security questionnaire that he completed to join the Navy in 1998. (Tr. 356.) On this questionnaire, Ten Eyck answered “no” to the question “Have you ever been charged or convicted of any offense related to alcohol or drugs?” (Tr. 356, 404.) Allowing the questioning, Justice McLaughlin stated that the 1996 arrests constitute “evidence that's admissible on your trial about whether you're prone to or don't lie.” (Tr. 356.) After this ruling, defense counsel stated for the record, “I except [sic] the ruling ... [a]nd preserve [Ten Eyck's] right.” (Tr. 357.)
During Ten Eyck's testimony, the prosecutor confirmed Justice McLaughlin's ruling that he could ask about Ten Eyck's 1996 arrests. (Tr. 405.) Justice McLaughlin confirmed that those topics were “available.” (Tr. 405.) The prosecutor proceeded to ask Ten Eyck about the 1996 incidents. (Tr. 405-06.) The prosecution asked, “So, the answer you gave on that [Navy] application under penalty of perjury was a lie?” (Tr. 407.) Ten Eyck responded, “Yes.” (Tr. 407.)
2. Attempt to Call Chavez to Testify
Ten Eyck attempted to call Chavez as a witness during trial. (Tr. 347.) In response, Chavez's attorney represented that Chavez “has no desire to testify” and that Chavez had grounds to decline to testify under the Fifth Amendment. (Tr. 347.) Specifically, Chavez's lawyer stated that “although there was a waiver of many Appellate rights, Mr. Chavez did file a notice of appeal [in his own criminal case] so that he may have a Fifth Amendment right to decline to testify at this point ....” (Tr. 347.) Justice McLaughlin then asked defense counsel if there was “anything [he] want[ed] to say about that.” (Tr. 347.) Counsel responded, “I'd like to ask him myself.” (Tr. 347.) After an exchange about the fact that defense counsel had spoken with Chavez that morning, Justice McLaughlin asked defense counsel whether he wanted Chavez to “formally invoke his privilege against self-incrimination in front of the jury or not.” (Tr. 349.) Ten Eyck's counsel responded that he did not, and posed no formal objection to the judge's implicit assessment that Chavez would invoke his Fifth Amendment privilege if compelled to testify. (Tr. 350.)
3. Jury Charge on Entrapment
Ten Eyck presented an entrapment defense. New York Penal Law § 40.05 provides for such a defense and states in pertinent part:
In any prosecution for an offense, it is an affirmative defense that the defendant engaged in the proscribed conduct because he was induced or
encouraged to do so by a public servant, or by a person acting in cooperation with a public servant, seeking to obtain evidence against him for purpose of criminal prosecution, and when the methods used to obtain such evidence were such as to create a substantial risk that the offense would be committed by a person not otherwise disposed to commit it.
New York Penal Law § 40.05. Instructing the jury on this defense, the judge stated that “if you find the People have proven beyond a reasonable doubt each of the elements as to a charge that exists in the indictment and on the verdict sheet, you must consider the affirmative defense of entrapment that the defendant has raised.” (Tr. 508.) The judge defined entrapment as an affirmative defense for “a person not otherwise disposed to commit [the crime].” (Tr. 509.) Justice McLaughlin then stated that:
In determining whether the defendant was not otherwise disposed to commit the offenses or an offense, you may consider his prior criminal conduct.
The fact that the defendant has prior criminal conduct in his past, however, does not require you to find that he was predisposed to commit the crime. It is simply one of the factors that you may take into account in making that decision.(Tr. 509.) During deliberations, the jury sent a note to Justice McLaughlin that “ask[ed] for the definition of entrapment.” (Tr. 517.) Instructing the jury on entrapment for a second time, Justice McLaughlin stated the following about the “disposition” element:
In determining whether the defendant was not otherwise predisposed to commit the offense or offenses, you may consider his criminal convictions and/or criminal conduct.
The fact that the defendant has a criminal conviction or has engaged in criminal conduct, whether or not involving the criminal conduct alleged in the indictment, however, does not require you to find that he is predisposed to commit the crimes charged.
It is simply one of the factors that you may take into account in making that determination.(Tr. 520-21.) Before instructing the jury a second time, the judge noted that the phrase “whether or not involving the criminal conduct alleged in the indictment” was “certainly ... not in the CJI charge,” but it “certainly is the law as various appellate courts have said.” (Tr. 518.) Neither party objected to Justice McLaughlin's instruction to the jury.
4. Prosecution's Summation
During the Sandoval hearing described above, the prosecutor referenced facts “proffered by the defendant during proffer interviews in an attempt to essentially curry sympathy from the prosecution related to his criminal conduct ..” (Hr. 9.) These facts were a “fabricated story about an accident on the flight deck of the US[S] George Washington,” which the prosecution claimed was an attempt to “cast some sort of blame for his conduct on this incident [and] what he claims was PTSD which he suffered as a result of it.” (Hr. 8-9.) The prosecution and defense counsel also raised facts in relation to Ten Eyck's service and discharge from the Navy, including “large periods of unauthorized absence,” and various court-martials and desertion adjudications. (Hr. 10.) Justice McLaughlin ruled that the prosecution could bring up the story about the fabricated plane crash accident on its direct case because the “complete fabrication” is “certainly particularly probative of his . prior deceit . [and] of his likelihood of placing his own interest above those of society.” (Hr. 9.) In addition, Justice McLaughlin ruled that in the context of an entrapment defense, the jury was “entitled to hear some of the other misconduct during his time in the Navy, in particular, the large periods of unauthorized absences, desertion and court martial and charges related to it.” (Hr. 10.)
Prior to Ten Eyck's testimony, the judge affirmed that “everything related to his naval service” was “completely open”. (Tr. 354.) Justice McLaughlin further stated that “[Ten Eyck's] claim about the flight deck crash” was “all available.” (Tr. 354.) Later, but still prior to Ten Eyck's testimony, the following exchange occurred between the prosecution and the Court:
MR. PREVOST: ... In addition to that he has admitted to me he used marijuana as well as cocaine back in that time period of his life which precedes this application. So, again, that is a false statement.
THE COURT: You shouldn't make yourself a witness, what he admitted to you. But the rest of it is available.(Tr. 357.) During cross-examination of Ten Eyck, the prosecution questioned Ten Eyck about both the fabricated plane crash incident and the conditions under which Ten Eyck was discharged from the Navy. (SR. 395-99, 409-14.) Ten Eyck admitted that he lied when he told the judge and the defense counsel that his service was “under normal conditions”; Ten Eyck maintained, however, that he had been discharged under “honorable conditions.” (SR. 396-97, 410.) When the prosecution asked him about the conditions under which he was discharged, Ten Eyck stated, “If you did your homework you would have learned that honorable conditions are honorable, other than dishonorable and bad conduct.” (SR. 397.) When questioned about the plane crash incident on the USS George Washington, Ten Eyck admitted that the story was “completely false” and confirmed that there was “not a single thing about that story that's even a little bit true.” (SR. 413.)
During summation, the prosecutor argued that “every single thing the defendant told you on the witness stand must be viewed through a lens of the pattern and volume of lies that the defendant has . told you, lies that he told before he got here, when he got here and right up here in front of you from the witness stand.” (Tr. 462-63.) As an example, the prosecution referenced Ten Eyck's having lied on his application to join the Navy, which he had admitted to doing on cross-examination. (Tr. 465.) The prosecution stated that Ten Eyck “made up, not exaggerated completely, but made up these stories about the false activity of a flight deck carrier where people were burning to death right in front of him.” (Tr. 463.) Similarly, the prosecution argued that Ten Eyck told the jury a “bald-face lie” when he testified that he was “discharged under honorable conditions” from the Navy. (Tr. 464.)
5. Conviction and Denial of Motion to Dismiss
At the close of the People's case, defense counsel had made an oral motion to dismiss on the merits and on grounds that Ten Eyck's due process rights were violated. (Tr. 351.) Defense counsel argued that the evidence showed that “the police officers started the case” and therefore that “if the case was submitted to the jury at this time it would be in violation of his due process rights and the case should be dismissed.” (Tr. 351.) Justice McLaughlin denied both motions. (Tr. 351.)
On June 24, 2013, the jury convicted Ten Eyck on all counts, having rejected Ten Eyck's entrapment defense. (Tr. 522-28.)
C. Post-Trial Motions
On March 21, 2016, Ten Eyck filed a pro se motion to vacate the judgment pursuant to New York Criminal Procedure Law § 440.10(1)(h), claiming actual innocence and ineffective assistance of counsel. (SR. 154-64.) Ten Eyck subsequently retained appellate counsel, who filed an affirmation to supplement Ten Eyck's motion to vacate the judgment based on newly discovered evidence. (SR. 256-63.)
1. Ineffective Assistance of Counsel
In his pro se motion to vacate, Ten Eyck claimed that his trial counsel was ineffective in failing to present medical evidence of his drug addiction. (SR. 160.) Ten Eyck highlighted the prosecutor's summation, where the prosecutor argued that there was a lack of evidence presented to substantiate Ten Eyck's claim that he was addicted to painkillers, and characterized Ten Eyck as “wholly untrustworthy.” (See S.R. 158 (“[T]here were no friends, no neighbors, no attendants at rehab documented .., no medical records, no prescriptions. He hasn't offered ... anything other than his word. His self-serving, self-interested statements that drug addiction was behind this.”).) Ten Eyck contended that his medical records should have been introduced because they “conclusively establish[ ] his diagnosis and treatment.” (SR. 156.) Additionally, Ten Eyck argued that the medical records would have aided in proving his entrapment defense, because they show that “he was in need of medication for pain” and Chavez, knowing this, induced him to commit the crime that he was not otherwise “predisposed” to commit. (SR. 162.)
2. Actual Innocence
Ten Eyck's pro se motion also claimed that he was “factually innocent of conspiring to possess and sell firearms.” (SR. 155.) Ten Eyck claimed that there was “absolutely nothing in the instant record to indicate that before meeting Ivan Chavez, the Defendant was ‘predisposed' to possess or sell guns.” (SR.162.) Because of this, Ten Eyck argued, “here, the Defendant is actually, factually innocent ..” (SR. 163.)
3. Newly Discovered Evidence
The “newly discovered evidence” proffered by Ten Eyck was an affidavit (the “Affidavit”), dated March 1, 2016, from Chavez, the confidential informant, regarding the circumstances under which Ten Eyck and Chavez met and under which Ten Eyck sold the firearms. (SR. 292-96.) Among other details, the Affidavit corroborates Ten Eyck's statement that he did not know Chavez until December 2011, when he responded to the advertisement on Craigslist, as well as Ten Eyck's recounting that Chavez “lifted [his] coat to show [Ten Eyck] that [Chavez] was carrying a gun,” which Chavez stated he did to “put fear in [Ten Eyck].” (SR. 294-95.) The Affidavit also corroborates Ten Eyck's statements that he initially refused “to have anything to do with the guns” but became “strung out and needed [the pills] badly but had no money to pay [Chavez] and wondered if [Chavez] would give him the pills on credit.” (SR. 295-96.) In the Affidavit, Chavez stated that he “knew [Ten Eyck] had a problem and needed painkillers like oxycodone, or any type of controlled substance.” (SR. 295.) Chavez also asserted that Ten Eyck “never provided any guns to me to sell and [Chavez] supplied all the firearms for which [Ten Eyck] [was] charged in the indictment.” (SR. 295.) Ten Eyck's appellate counsel received the Affidavit on or about October 19, 2015, and submitted it as part of his motion to vacate on June 17, 2016. (SR. 258, 263.)
In support of Ten Eyck's motion to vacate the judgment of the state trial court based on newly discovered evidence, defense counsel made two main arguments. First, counsel argued that the Affidavit supports Ten Eyck's entrapment defense because the Affidavit “corroborates” Ten Eyck's account of how he met Chavez and how the firearm transactions were initiated, and that the police “aided” Chavez in his “efforts to entrap the defendant.” (SR. 261-62.) Second, defense counsel argued that the prosecution's strategy in the case was to discredit Ten Eyck's overall credibility rather than challenge Ten Eyck's specific account of how Ten Eyck and Chavez met and the circumstances under which Ten Eyck began to trade the firearms. (SR. 262.) If Chavez had testified, counsel argued, “the People would not have been able to take that tact but instead would have had to directly address the matter [of the circumstances under which they met].” (SR. 262.) In sum, counsel argued that “[i]f Chavez were to testify in a new trial ... the jury may have been able to adopt the version of the facts testified to by the defendant to support his claim of entrapment.” (SR. 262-63.)
On October 26, 2016, the trial court denied Ten Eyck's motion to vacate. (SR. 322-31.) First, Justice McLaughlin concluded that the Affidavit did not constitute “newly discovered evidence” because Ten Eyck was aware, at the time of trial, of what information Chavez possessed. (SR. 326-27.) Moreover, Justice McLaughlin concluded that Ten Eyck failed to demonstrate that, if granted retrial, testimony from Chavez consistent with the Affidavit would “probably” change the verdict. (SR. 327.) Second, Justice McLaughlin concluded that Ten Eyck failed to allege adequate facts to support his claim of ineffective assistance of counsel because counsel could have had a “tactical” reason for not offering the medical records or calling Ten Eyck's doctor. (SR. 330.) Third and finally, Justice McLaughlin ruled that “defendant has not supplied evidence to support his claim of actual innocence ., which is presumably based on defendant's assertion that he was entrapped by Chavez.” (SR. 331.) Justice McLaughlin added that Ten Eyck's trial testimony and the Affidavit “are not sufficiently trustworthy to satisfy whatever standard of proof applies to a claim of actual innocence.” (SR. 331.)
D. The Appeals
Ten Eyck appealed his conviction to the New York Supreme Court, Appellate Division, First Department (the “First Department”). In a counseled brief dated July 2015, Ten Eyck argued that: (1) the verdict was against the weight of the evidence; (2) Justice McLaughlin impermissibly allowed the prosecutor to ask Ten Eyck about prior criminal acts after ruling out those acts in his initial Sandoval ruling; and (3) Justice McLaughlin impermissibly allowed the prosecutor to make himself a witness during the trial. (SR. 104-50.) In a supplemental brief filed pro se and dated January 2017, Ten Eyck made the following additional arguments: (1) the trial court abused its discretion in denying Ten Eyck's motion to dismiss; (2) Ten Eyck was denied a fair trial based on Chavez's assertion of a Fifth Amendment privilege against testifying; and (3) the entrapment instruction to the jury was “prejudicial, bias[ed] and wholly erroneous.” (SR. 338-85.)
The First Department denied Ten Eyck's appeal in its entirety. First, the court held that the verdict was not against the weight of the evidence, noting that “there is no basis for disturbing the jury's credibility determinations.” People v. Teneyck, 65 N.Y.S.3d 22, 155 A.D.3d 489, 489-90 (1st Dep't 2017). Second, the court rejected the contention that the trial court impermissibly modified its Sandoval ruling, stating that this claim is “unpreserved” and “declin[ing] to review it in the interest of justice.” 155 A.D.3d at 490. In the alternative, the court found this claim “unavailing.” Id. Third, the court rejected the argument that the prosecutor impermissibly made himself a witness to what he had heard prior to trial, stating that “[a]ny impropriety in the sole argument in the prosecutor's summation challenged on appeal was not so egregious or pervasive as to warrant reversal.” Id. Addressing both the claim about the prosecutor's summation and the Sandoval ruling, the court added that “any error concerning the modified Sandoval ruling or the prosecutor's summation was harmless in light of the overwhelming evidence of guilt.” Id.
Fourth, the appellate court ruled that the trial court “providently” exercised its discretion in denying the motion to vacate based on newly discovered evidence. Id. The appellate court found that the trial court “reasonably” found that the Affidavit did not constitute newly discovered evidence within the meaning of New York Criminal Procedure Law § 440.10(1)(g) because Chavez's “account of his meetings and arrangements with [Ten Eyck] to sell firearms were already known to [Ten Eyck].” Id. Further, there was “no probability that the information in the affidavit would have caused the verdict to be more favorable to defendant, even assuming that [Chavez] would have been called to testify about that information notwithstanding his assertion of the Fifth Amendment privilege against self-incrimination at trial.” Id.
Finally, the court summarily rejected Ten Eyck's pro se arguments, stating that “[w]e have considered and rejected defendant's pro se claims.” Id. at 491.
Ten Eyck submitted a counseled letter, dated December 8, 2017, requesting leave to appeal the First Department's decision to the New York Court of Appeals. (SR. 557-58.) In the letter, Ten Eyck asserted simply that “[t]here are issues of law, and more particularly issues concerning entrapment which should be considered by this Court.” (SR. 557.) Ten Eyck then submitted a pro se letter, dated January 9, 2018, to the Court of Appeals in an effort to supplement counsel's application, setting forth eight separate grounds for relief: (1) the verdict was against the weight of the evidence, denying Ten Eyck his Fourteenth Amendment rights; (2) his Due Process rights were violated when the trial court permitted the prosecution to question him about prior criminal acts “after the court had already ruled prohibiting the use of such evidence”; (3) his right to Due Process was violated when the prosecution argued during summation that Ten Eyck “had lied to the trial court ... about [his] having been honorably discharged from the Navy” when “no evidence was presented ... during trial to establish that fact”; (4) his right to Due Process was violated when the trial court denied without a hearing his motion to vacate based on newly discovered evidence; (5) his Fourteenth Amendment rights were violated when the trial court denied his motion to dismiss following the close of the People's direct case; (6) his Sixth and Fourteenth Amendment rights were violated when the trial court permitted Chavez “to assert his Fifth Amendment rights and refuse to appear in court to testify without first evaluating the propriety of the claim”; (7) the “erroneous and prejudicial jury charge regarding entrapment” violated Ten Eyck's Fourteenth Amendment rights; and (8) Ten Eyck's Sixth and Fourteenth Amendment rights were violated when the trial court denied without a hearing his motion to vacate the judgment based on actual innocence and ineffective assistance of trial counsel. (SR. 561-63.) On April 20, 2018, the Court of Appeals summarily denied Ten Eyck's application for leave to appeal. (SR. 569.)
On July 22, 2019, Ten Eyck, again proceeding pro se, filed the instant petition alleging eight grounds for habeas relief. (Dkt. 1.) Those grounds are: (1) he was denied the right to a fair trial because of a “prejudicial and erroneous” jury charge; (2) his due process rights were violated when the trial judge denied him a new trial based on newly discovered evidence; (3) his trial counsel was ineffective, depriving him of due process; (4) he was denied a fair trial and due process when the prosecutor committed misconduct by “mak[ing] himself a witness”; (5) his conviction was against the weight of the evidence, violating his due process rights; (6) he was denied a fair trial and due process because the “[c]onviction was obtained after a prejudicial Sandoval hearing”; (7) the judge's denial of his motion to dismiss after “[e]ntrapment as a matter of law was fully established” violated his due process rights; and (8) his Sixth Amendment rights were violated when the judge did not hold a hearing on whether a witness had valid privilege against self-incrimination during the trial. (Pet. at 4-10.)
Legal Standards
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) provides a remedy for a state prisoner when his continued custody is in violation of federal law. 28 U.S.C § 2254(a). Under AEDPA, an application for a writ of habeas corpus on behalf of a state prisoner “shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim” either:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d). “Deciding whether a state court's decision ‘involved' an unreasonable application of federal law or ‘was based on' an unreasonable determination of fact requires the federal habeas court to ‘train its attention on the particular reasons - both legal and factual - why state courts rejected a state prisoner's federal claims,' and to give appropriate deference to that decision.” Wilson v. Sellers, __ U.S. __,__, 138 S.Ct. 1188, 1191-92 (2018) (first quoting Hittson v. Chatman, 576 U.S. 1028, 1028 (2015) (Ginsburg, J., concurring in denial of certiorari); and then citing Harrington v. Richter, 562 U.S. 86, 101-02 (2011)).
A state court decision is “contrary to” clearly established precedent when the state court applies a rule that is “diametrically different, opposite in character or nature, or mutually opposed” to the governing law set forth in Supreme Court cases. Williams v. Taylor, 529 U.S. 362, 405 (2000) (internal quotation marks omitted) (quoting Contrary, WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (1976)). By contrast, “[a] court may grant relief under the ‘unreasonable application' clause if the state court correctly identifies the governing legal principle ... but unreasonably applies it to the facts of the particular case.” Bell v. Cone, 535 U.S. 685, 694 (2002) (quoting Williams, 529 U.S. at 407-08). This inquiry focuses not on whether the state court's application of clearly established federal law is merely incorrect or erroneous, but on whether it is objectively unreasonable. See id. “Under § 2254(d), a habeas court must determine what arguments or theories supported or, . could have supported, the state court's decision; and then it must ask whether it is possible fair minded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Harrington, 562 U.S. at 102.
AEDPA forecloses “using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.” Parker v. Matthews, 567 U.S. 37, 38 (2012) (per curiam) (quoting Renico v. Lett, 559 U.S. 766, 779 (2010)). “A state court's findings are not unreasonable under § 2254(d)(2) simply because a federal habeas court reviewing the claim in the first instance would have reached a different conclusion.” Pine v. Superintendent, Green Haven Correctional Facility, 103 F.Supp.3d 263, 275 (N.D.N.Y. 2015) (citing Wood v. Allen, 558 U.S. 290, 301 (2010)). “The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable - a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007).
Even if a 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 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)); see also Fry v. Pliler, 551 U.S. 112, 121-22 (2007) (confirming continued applicability of Brecht under AEDPA); Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994) (“Habeas relief is not appropriate when there is merely a ‘reasonable possibility' that trial error contributed to the verdict.”) (quoting Brecht, 507 U.S. at 637); Butler v. Graham, No. 07-CV-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).
The habeas 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). Where a petitioner proceeds pro se, the court must construe his submissions liberally and interpret them “to raise the strongest arguments that they suggest.” Kirkland v. Cablevision System, 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 a petitioner “from compliance with relevant rules of procedural and substantive law.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (per curiam) (quoting Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981)).
AEDPA imposes a number of threshold requirements on habeas petitioners, including that petitioners first exhaust their claims in state court. 28 U.S.C. § 2254(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Galdamez v. Keane, 394 F.3d 68, 72 (2d Cir. 2005). The exhaustion requirement is designed to provide state courts with the “opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Jackson v. Edwards, 404 F.3d 612, 619 (2d Cir. 2005) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)); see Galdamez, 394 F.3d at 72-73 (“Comity concerns “lie at the core of the exhaustion requirement.”). The Second Circuit has cautioned against “interpreting this [exhaustion] provision too narrowly,” citing the Supreme Court's holding that exhaustion requires “only that state prisoners give state courts a fair opportunity to act on their claims.” Galdamez, 394 F.3d at 72 (quoting O'Sullivan, 526 U.S. at 844).
The exhaustion inquiry involves two related questions. “First, a federal court must examine whether applicable state court remedies remain available to the petitioner.” Id. at 73. A petitioner need not have invoked every possible avenue of state court review, but instead 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.” Id. (quoting O'Sullivan, 526 U.S. at 845). A “complete round” requires presenting the federal claim to the highest court of the state, which in this case is the New York Court of Appeals. See id. (citing Morgan v. Bennett, 204 F.3d 360, 369 (2d Cir. 2000)).
“Second, and often of central concern in habeas proceedings,” the federal court must assess whether the petitioner properly exhausted the state court remedies by having “fairly presented his claims to the state courts, such that the state court had a fair opportunity to act.” Id. (internal quotation marks and alterations omitted) (quoting O'Sullivan, 526 US. at 848). Substantively, the petitioner must have “fairly presented” his claim to state courts by apprising them of “both the factual and the legal premises of the claim [the petitioner] asserts in federal court.” Jones, 126 F.3d at 413 (quoting Daye v. Attorney General of State of New York, 696 F.2d 186, 191 (2d Cir. 1982) (en banc)). Although the petitioner need not “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.” Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014) (internal quotation marks omitted) (quoting Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011)). A petitioner may meet this requirement by presenting the claim in any of the following ways:
(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.Strogov v. Attorney General of State of New York, 191 F.3d 188, 191 (2d Cir. 1999) (quoting Daye, 696 F.2d at 194).
Where a state appellate court summarily affirms a decision by the lower court, the federal habeas court “‘look[s] through' the unexplained decision to the last related state-court decision that does provide a relevant rationale” and “then presume[s] that the unexplained decision adopted the same reasoning.” Wilson, 138 S.Ct. at 1192. “[T]he State may rebut the presumption by showing that the unexplained affirmance relied or most likely did rely on different grounds than the lower state court's decision, such as alternative grounds for affirmance that were briefed or argued to the state supreme court or obvious in the record it reviewed.” Id.
Discussion
A. Jury Charge Claim
Ten Eyck first claims that Justice McLaughlin's jury charge on entrapment was “prejudicial and erroneous and deprived Defendant of the right to a fair trial.” (Pet. at 4.) Ten Eyck states that while the “[o]riginal [entrapment] charge was submitted to the [j]ury properly,” after the jury asked for the definition of entrapment during their deliberations, Justice McLaughlin “chose to erroneously provide the jury with a different and misleading version of the official charge.” (Pet. at 5.) Specifically, Ten Eyck objects to Justice McLaughlin's inclusion of the phrase “whether or not involving the criminal conduct alleged in the indictment” in the definition of the predisposition element. (Pet. 4-5.) The Government argues that this claim is one of state law, and not a cognizable basis for habeas review. (Respondent's Memorandum of Law in Opposition to the Petition for a Writ of Habeas Corpus, Dkt. 15-1 (“Opp.”), at 8-10.) The Government is correct.
Jury instructions typically are matters of state law that are not cognizable for habeas review. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“the fact that the [jury] instruction was allegedly incorrect under state law is not a basis for habeas relief” as “it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions”); see also United States v. Taylor, 475 F.3d 65 (2d Cir. 2007) (“The [entrapment] defense lacks a constitutional dimension”) (citing United States v. Russell, 411 U.S. 423, 433 (1973)).
Indeed, the Second Circuit has held that “[i]n order to obtain a writ of habeas corpus in federal court on the ground of error in a state court's instructions to the jury on matters of state law, the petitioner must show not only that the instruction misstated state law but also that the error violated a right guaranteed to him by federal law.” Castro v. LaManna, No. 18-CV-03315, 2020 WL 2768790, at *13 (S.D.N.Y. March 30, 2020) (quoting Sams v. Walker, 18 F.3d 167, 171 (2d Cir. 1994)), R. & R. adopted, 2020 WL 3893251 (S.D.N.Y. July 10, 2020); accord Stokes v. LaManna, No. 18-CV-3637, 2020 WL 1033591 at *2 (S.D.N.Y. March 2, 2020); see also Williams v. Chappius, No. 16-CV-08329, 2018 WL 7133267, at *7 (S.D.N.Y Nov. 16, 2018) (same), R. & R. adopted, 2019 WL 330630 (S.D.N.Y. Jan. 25, 2019).
Here, Ten Eyck fails to demonstrate that the addition of the phrase “whether or not involving criminal conduct alleged in the indictment” to Justice McLaughlin's jury instruction regarding entrapment, even if erroneous (which this Court does not find), “so infected the entire trial that the resulting conviction violates due process.” Cupp v. Naughten, 414 U.S. 141, 147 (1973). This is made all the more clear when viewed in contrast to cases where habeas relief has been granted based on errors in jury instruction. For example, in Davis, the trial court failed to charge the jury with justification. Davis v. Strack, 270 F.3d 111, 131 (2d Cir. 2001). The Second Circuit recognized that this failure was an error of state law, but held that the state law error violated defendant's due process because the ruling “completely deprived [defendant] of his highly credible defense to the homicide charge and guaranteed his conviction.” Id. Here, in contrast, Ten Eyck's entrapment defense was submitted to the jury. The nuances of the specific instruction and the extent or effect of any disparity between the first and second time it was given are not for this Court to entertain. Nor is the state appellate courts' rejection of the claim.
B. Sandoval Claim
Ten Eyck argues that his conviction “was obtained after a prejudicial Sandoval hearing denying the Defendant a fair trial and due process.” (Pet. at 7-8.) Ten Eyck challenges Justice McLaughlin's mid-trial decision to permit questioning about the two 1996 criminal offenses to show that Ten Eyck lied on his application to join the Navy, despite having ruled otherwise during a pre-trial Sandoval hearing. (Pet. at 7-8.) Among other things, the Government argues that this “garden-variety state law claim” is not cognizable as a basis for habeas relief. (Opp. at 20-21.) The Government again is correct.
Courts in this Circuit have characterized Sandoval rulings as “evidentiary in nature,” Sorrentino v. Lavalley, No. 12-CV-7668, 2016 WL 3460418, at *4 (S.D.N.Y. June 21, 2016) (citation omitted), and repeatedly held that such “rulings by the state trial court on evidentiary questions are a matter of state law and pose no constitutional issue,” Roberts v. Scully, 875 F.Supp. 182, 189 (S.D.N.Y.1995) (collecting cases), aff'd, 71 F.3d 406 (2d Cir. 1995). See Bowman v. Raclette, 661 Fed.Appx. 56, 85 (2d. Cir. 2016) (summary order) (“Where, as here, a petitioner argues a constitutional error based on state-law evidentiary rulings, he faces a ‘doubly difficult' challenge”) (quoting Evans v. Fischer, 712 F.3d 125, 133 (2d Cir. 2013)); Grace v. Artuz, 258 F.Supp.2d 162, 171-72 (E.D.N.Y. 2003) (“petitioner's claim as to the impropriety of the Sandoval ruling does not raise a constitutional issue cognizable on habeas review”); see generally Hawkins v. Costello, 460 F.3d 238, 244 (2d Cir. 2006) (“habeas corpus relief does not lie for errors of state law, and that necessarily includes erroneous evidentiary rulings”) (internal quotation marks and citation omitted). Indeed, “admission of prior convictions is not in and of itself a constitutional violation.” Butler, 2008 WL 2388740, at *5.
A state court ruling on evidentiary matters, however, may be reviewed by a federal court on habeas review when “the alleged errors are so prejudicial as to constitute fundamental unfairness.” Ip v. Henderson, 710 F.Supp. 915, 919 (S.D.N.Y. 1989), aff'd, 888 F.2d 1376 (2d Cir. 1989); see Jenkins v. Bara, 663 F.Supp. 891, 899 (E.D.N.Y. 1987) (declining to review state trial court's Sandoval ruling, which the court characterized as “evidentiary in nature” and thus “not redressable in a federal habeas corpus proceeding absent a showing that the particular errors were of constitutional magnitude”). And, even where a matter of state law reaches that high bar, a habeas court must also conclude that it “had substantial and injurious effect or influence in determining the jury's verdict.” Brecht, 507 U.S. at 637 (quoting Kotteakos, 328 U.S. at 776); see also Fry, 551 U.S. at 121-22 (confirming continued applicability of Brecht “substantial and injurious” standard for reviewing federal constitutional errors in state court criminal trials under AEDPA).
Despite appending the words “fair trial” and “due process of law” to his Sandoval argument in his petition Ten Eyck's Sandoval claim is ultimately an evidentiary matter based on state law that is not cognizable under habeas review. See Petrucelli v. Coombe, 735 F.2d 684, 688 (2d Cir. 1984) (“mere statement” that “due process” rights have been violated does not necessarily give rise to a constitutional violation because “‘due process,' like ‘fair trial,' can be a catchphrase used by habeas petitioners as part of an allegation about any type of trial court error, including errors in ruling based on state law”); see also Tyrell v. Lee, No. 11-CV-3348, 2015 WL 9666334, at *7 (S.D.N.Y. Dec. 14, 2015) (same); Read v. Thompson, No. 13-CV-6962, 2015 WL 9701084, at *12 (S.D.N.Y. Oct. 15, 2015) (same), R. & R. adopted, 2016 WL 165716 (S.D.N.Y. Jan. 13, 2016). Ten Eyck fails to demonstrate that Justice McLaughlin's ruling was so “fundamentally unfair” as to warrant relief under habeas.
As expressly reflected in the transcript, Justice McLaughlin's revision of his earlier ruling mid-trial allowed the prosecutors to question Ten Eyck about certain arrests to show that Ten Eyck had lied on his Navy application - and thereby call his credibility into question. (Tr. 356.) The earlier Sandoval hearing focused on a different issue, namely the admissibility of prior bad acts showing a propensity to commit criminal conduct. (Hr. 12.) A trial court's modification of an earlier Sandoval ruling, such as that made by Justice McLaughlin, is fully within its discretion. See Wilson v. Bradt, No. 13-CV-6937, 2014 WL 4116960, at *10 (S.D.N.Y. Aug. 20, 2014) (“the nature of a criminal trial is such that a trial judge's pretrial determinations may be altered - to the benefit or detriment of defendant - throughout the course of the trial”); Tyrell, 2015 WL 9666334, at *6 (“Sandoval is a creature of state law and both an initial Sandoval determination, as well as a court's subsequent, mid-trial modification of a Sandoval ruling, do not implicate federal law.”) (internal quotation marks and citation omitted); see also People v. Santiago, 564 N.Y.S.2d 412, 169 A.D.2d 557, 558 (1st Dep't 1991) (the trial court can modify a Sandoval ruling because “[a] Sandoval ruling does not allow a defendant to deceive the jury and be free from confrontation, as a defendant who takes the stand is obliged to speak truthfully and accurately”)
As the First Department found and the Court of Appeals declined to review, Ten Eyck's Sandoval claim does not reach constitutional magnitude and is therefore not a cognizable basis for habeas review.
C. Sixth Amendment Claim
Ten Eyck next argues that the trial court's decision to give Chavez “blanket immunity” from testifying at the trial was a “well thought out infringement” of Ten Eyck's “right to confront this confidential informant who created and was actively involved in every single transaction.” (Pet. at 9.) Specifically, Ten Eyck challenges the trial court's failure to compel Chavez to testify, particularly “without questioning defense counsel about the potential questions that may be asked of him,” maintaining that “if the court had held a hearing and proceeded to have an itemized inquiry into the questions that defense counsel wished to ask of him the Judge would have had no choice but to compel Chavez to testify considering that the questions only pertained to the crimes for which he pled guilty.” (Pet. at 10.) In response, the Government argues that Chavez had a viable Fifth Amendment privilege to assert as he “could reasonably have feared that - if he won his appeal - his testimony would incriminate him at his re-trial or resentencing.” (Opp. at 24.) The Government again is correct.
Ten Eyck's Sixth Amendment claim suffers from multiple deficiencies. First, Ten Eyck lodged this argument before the First Department, which “considered and rejected” Ten Eyck's challenge. Teneyck, 155 A.D.3d at 491. Although the Court did not elaborate, this ruling constitutes an adjudication on the merits of the claim over which AEDPA deference applies. See Ancrum v. Fischer, No. 02-CV-2568, 2003 WL 21976397, at *2 (S.D.N.Y. Aug. 19, 2003); Burgess v. Bintz, No. 00-CV-8271, 2002 U.S. Dist. LEXIS 7168, at *11 (S.D.N.Y. April 24, 2002) (“considered and rejected” constituted adjudication on the merits); Jones v. Spitzer, No. 01-CV-9754, 2003 U.S. Dist. LEXIS 4499, at *32-33 (S.D.N.Y. March 26, 2003) (collecting cases and noting that “considered and rejected” is sufficient to trigger deferential AEDPA standard of review), R. & R. adopted, 2005 U.S. Dist. LEXIS 1020 (S.D.N.Y. Jan. 24, 2005), aff'd, 254 Fed.Appx. 6 (2d Cir. 2007) (summary order).
Second, as set forth above, Ten Eyck's counsel affirmatively rejected Justice McLaughlin's offer to have Chavez formally invoke his Fifth Amendment right in front of the jury. (Tr. 349.) And, because of that, Chavez never did so. While Ten Eyck may be dissatisfied with his counsel's decisions, Ten Eyck cannot characterize his own counsel's refusal to call Chavez to the stand so that Chavez would invoke his Fifth Amendment privilege as an attempt by the trial court to frustrate Ten Eyck's rights under the Sixth Amendment. See United States v. Herron, 762 Fed.Appx. 25, 29 (2d Cir. 2019) (summary order) (Sixth Amendment claim waived when defense counsel, knowing that witness would invoke the Fifth Amendment with respect to certain questions, indicated that he was “finished with that witness”; petitioner “cannot now complain that he was denied process to compel [witness] to testify.”)
Third, no hearing to assess Chavez's Fifth Amendment rights was warranted. Ten Eyck is correct that courts in this Circuit generally will not accept a “blanket assertion” of a witness' invocation of his Fifth Amendment rights; rather, courts generally should undertake a “particularized inquiry to determine whether the assertion was founded on a reasonable fear of prosecution as to each of the posed questions.” United States v. Zappola, 646 F.2d 48, 53 (2d Cir. 1981); accord United States v. Cimino, 639 Fed.Appx. 26, 28 (2d Cir. 2016) (summary order); see also United States. v. Arias, 404 Fed.Appx. 554, 556 (2d Cir. 2011) (summary order) (quoting Zappola but holding that any error in failing to hold a hearing on witness's Fifth Amendment rights was harmless “beyond a reasonable doubt”) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)). At the same time, however, the Second Circuit has deemed “proper” a witness' invocation of the Fifth Amendment privilege with respect to all questioning where there is “sufficient evidence” in the record to support the court's conclusion that there was a valid basis to invoke this privilege. Herron, 762 F. App'x. at 29; see, e.g., United States v. Rodriguez, 706 F.2d 31, 37-38 (2d Cir. 1983) (court's acceptance of witness' assertion of Fifth Amendment privilege in response to all questioning was proper where there were a “pending grand jury investigation” of witness' activities and other potential related charges of the witness).
That is precisely the situation here. As Chavez's counsel explained to Justice McLaughlin, Chavez had filed a notice of appeal in his own state court criminal case, which was pending at the time of Ten Eyck's trial. (Tr. 349-50.) Were he to have succeeded on appeal and been re-tried, Chavez would have been vulnerable to any testimony given at Ten Eyck's trial. See Mitchell v. United States, 526 U.S. 314, 326 (1999) (Fifth Amendment privilege ceases only when “the sentence has been fixed and the judgment of conviction has become final”). And, as the Government points out, Chavez “had not been prosecuted by federal authorities at the time, the statute of limitations had not yet expired, and his prosecution by New York authorities did not preclude a successive federal prosecution of the same conduct.” (Opp. at 24.) Chavez “could have reasonably feared that incriminating testimony at [Ten Eyck]'s trial would be used against him in future federal prosecution,” and thus had a valid Fifth Amendment privilege to assert. (Opp. at 24-25.) See Rodriguez, 706 F.2d at 36-37 (“the Fifth Amendment privilege is not lost after a witness has pleaded guilty if the witness is still subject to a realistic risk of incrimination on other charges, or if the desired testimony about the transaction in question would give rise to a risk of incrimination in connection with other transactions”) All of this demonstrates that the trial court did not unreasonably apply federal law in not holding a hearing to determine if and to what extent Chavez had a right to invoke the Fifth Amendment.
D. Prosecutorial Misconduct Claim
Ten Eyck next argues that the prosecutor “committed misconduct when he, at the Trial Judge's condemnation, continued to make himself a witness violating the Defendant's right to a fair trial and due process of law.” (Pet. at 6.) The Court construes Ten Eyck's prosecutorial misconduct claim to refer to both (1) the prosecutor's discussion during summation of the “story about the plane crash” aboard the USS George Washington that Ten Eyck allegedly fabricated and told to his defense counsel, the prosecutor, and the judge during pre-trial proffer interviews; and (2) the prosecutor's argument during summation that Ten Eyck lied about the conditions under which Ten Eyck served and was discharged from the Navy. The First Department considered and rejected the prosecutorial misconduct claim on its merits. Teneyck, 155 A.D.3d at 490. And rightly so. Neither the trial court nor the appellate court unreasonably applied clearly established federal law regarding prosecutorial misconduct. Accordingly, habeas relief is not warranted.
As a general rule, “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)). To constitute “egregious misconduct,” a prosecutor's summation must have “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). A single potentially inappropriate remark in an extended summation that is subject to “[c]onflicting inferences” does not violate due process if “it is by no means clear that the jury ... would seize such a comment out of context and attach [a prejudicial] meaning to it,” even if the prosecutor could fairly be criticized for speaking thoughtlessly. Donnelly, 416 U.S. at 643-44. To qualify for habeas relief, a petitioner must also “demonstrate that he suffered actual prejudice because the prosecutor's comments during summation had a substantial and injurious effect or influence in determining the jury's verdict.” Bentley, 41 F.3d at 824. And, when a defendant fails to object to the summation at trial, as Ten Eyck failed to do, the court “will not reverse absent flagrant abuse.” United States v. Zichettello, 208 F.3d 72, 103 (2d Cir. 2000) (internal quotation marks and citation omitted).
Ten Eyck does not come close to meeting the exacting standards to demonstrate prosecutorial misconduct sufficient to have deprived him of a fair trial. As the Government aptly argues, the jury “could, and likely did, interpret the prosecutor's reference to pre-trial negotiations as based solely on the trial testimony” rather than as based on the prosecutor's say-so as a witness. (Opp. at 19.) On cross-examination, Ten Eyck admitted to lying both about the plane crash story and to the prosecutor and judge when he told them prior to the trial that his discharge was “under normal conditions.” (Tr. 410-13.) With respect to the fabricated story about the plane crash, Ten Eyck admitted that the story was “completely false” and confirmed that there was “not a single thing about that story that's even a little bit true.” (Tr. 413.) With respect to the conditions under which Ten Eyck was discharged, Ten Eyck admitted he lied when he told the judge and the prosecutor that his discharge was “under normal conditions.” (Tr. 410-12.) The jury thus heard directly from Ten Eyck that he lied about both events.
Viewing the prosecutor's remarks in the context of the entire trial, it is “by no means clear” that the jury would take the prosecutor's closing remarks as a form of testimony rather than as a reference to Ten Eyck's own admissions. Donnelly, 416 U.S. at 643-44. Accordingly, the state courts did not unreasonably apply federal law in finding that the prosecutor's conduct during summation was not so egregious as to have a “substantial and injurious effect or influence in determining the jury's verdict.” Bentley, 41 F.3d at 824; see also Donnelly, 416 U.S. at 643-44 (potentially inappropriate remark in an extended summation subject to “[c]onflicting inferences” does not violate due process if “it is by no means clear that the jury ... would seize such a comment out of context and attach [a prejudicial] meaning to it”) In short, Ten Eyck's claim that the prosecutor “made himself a witness” does not warrant habeas relief.
E. Newly Discovered Evidence Claim
Ten Eyck argues that Justice McLaughlin's refusal to grant him a new trial based on “new evidence” - the Affidavit executed by Chavez two years following the trial -warrants habeas relief. (Pet. at 5-6.) Ten Eyck asserts that “if the Jury would have heard [the Affidavit] as testimony, [it] very well could have swayed the Jur[y's] decision in the Defendant[']s way,” and that the information “was vital to the defense considering the District Attorney's trial tactic of discrediting the Defendant.” (Pet. at 6.) The Government argues that Ten Eyck's claim that the Affidavit proves he is actually innocent, even if true, is not a cognizable basis for habeas relief. (Opp. at 10-11.)
In order for Ten Eyck to be granted habeas relief on this claim, he must show that the “new” evidence is “so compelling that it would be a violation of the fundamental fairness embodied in the Due Process Clause” not to grant relief. White v. Keane, 51 F.Supp.2d 495, 502 (S.D.N.Y. 1999) (quoting Coogan v. McCaughtry, 958 F.2d 793, 801 (7th Cir. 1992)); see also Herrera v. Collins, 506 U.S. 390, 400 (1993) (“Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.”); Cosey v. Lilley, No. 18-CV-11260 2020 WL 2539065, at *13 (S.D.N.Y. May 19, 2020) (“the petitioner's claim of actual innocence, untethered to any claim of a constitutional violation, provides no basis to hear his successive petition for habeas corpus”).
To rise to the level of a constitutional violation, a habeas petitioner must show that the newly discovered evidence is “material” to the underlying conviction. Ortega v. Duncan, 333 F.3d 102, 108 (2d Cir. 2003). A court must then “decide whether the jury probably would have altered its verdict if it had had the opportunity to appraise the impact of the newly-discovered evidence not only upon the factual elements of the government's case but also upon the credibility of the government's witness.” Id. (quoting United States v. Stofsky, 527 F.2d 237, 246 (2d Cir. 1975)). A court considers “whether there was a significant chance that this added item, developed by skilled counsel ... could have induced a reasonable doubt in the minds of enough jurors to avoid a conviction.” Id. (quoting United States v. Seijo, 514 F.2d 1357, 1364 (2d Cir. 1975)).
Ten Eyck did not and cannot show that the Affidavit testimony from Chavez would have raised a reasonable doubt sufficient to avoid a conviction. To the contrary, in denying Ten Eyck's motion to vacate, Justice McLaughlin considered this claim and concluded that Chavez was an “inherently untrustworthy” source, and “in the absence of any independently trustworthy evidence to corroborate the testimony of [Ten Eyck] and Chavez” there was “no probability” that Ten Eyck would receive a more favorable verdict at retrial.” (SR. 328.) This Court has no basis to conclude otherwise. See Balkman v. Poole, 725 F.Supp.2d 370, 377 (W.D.N.Y. 2010) (newly discovered evidence consisting of testimony from a jailhouse informant purporting to relate a confession by a fellow inmate was not grounds for a new trial where the informant was “inherently lacking in credibility” and thus would not have changed the outcome); Morris v. Duncan, No. 03-CV-1428, 2007 WL 2815632, at *13 (N.D.N.Y. Sept. 25, 2007) (finding that an affidavit purportedly containing new testimony revealing the names of occupants of a vehicle involved in drug transaction for which petitioner was convicted was not newly discovered evidence, in part because “Petitioner failed to provide any ‘proof of the reliability of such recantation'”) (citation omitted). Again, the state courts did not unreasonably apply federal law.
F. Weight of the Evidence Claim
Ten Eyck next argues that his conviction was obtained in violation of due process because the verdict was “against the weight of the evidence that [he] had been [e]ntrapped into committing the crimes.” (Pet. at 7.) This claim is not a cognizable basis for habeas review.
“‘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[s] 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)). As such, habeas corpus review is not available. McKinnon v. Superintendent, Great Meadow Correctional Facility, 422 Fed.Appx. 69, 75 (2d. Cir. 2011) (summary order) (“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”); 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”); see generally Estelle, 502 U.S. at 67 (“We have stated many times that ‘federal habeas corpus relief does not lie for errors of state law.'”) (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)).
The First Department - a New York State intermediate appellate court -considered and rejected Ten Eyck's weight of the evidence claim under state law. See Teneyck, 155 A.D.3d at 490 (the verdict was not against the weight of the evidence because “[Ten Eyck's] testimony, even if credited, did not establish that anyone acting in cooperation with a public servant induced [Ten Eyck] to engage in conduct that he was not predisposed to commit, rather than merely taking an opportunity offered to him.”). Accordingly, habeas review is not available.
G. Denial of Motion to Dismiss
Ten Eyck next argues that the trial judge's denial of his motion to dismiss after the close of the State's case violated his due process rights as “[e]ntrapment as a matter of law was fully established with no evidence of predisposition, independent of the inducement, was entered into evidence against him.” (Pet. at 8-9.) Like Ten Eyck's claim that the verdict was against the weight of the evidence, this claim is one purely of state law and therefore not a cognizable basis for habeas relief.
Ten Eyck's challenge to Justice McLaughlin's denial of his motion to dismiss rests on the contention that Justice McLaughlin incorrectly interpreted and applied the state laws related to his entrapment defense. (See Pet. at 8-9.) Indeed, Ten Eyck's counseled brief to the First Department couches his entrapment claim as one grounded in state law. (SR. 139-40.) But, as courts routinely hold, habeas courts - even if they would have ruled differently than the state court - have no authority to hear such challenges. See Estelle, 502 U.S. at 63 (“it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions”); Smith v. Commissioner of Correction, No. 3:14-cv-00916, 2017 WL 3633757, at *5 (D. Conn. Aug. 23, 2017) (“To the extent that [defendant] challenges the trial court's denial of his motion to dismiss based on the judge's interpretation and application of state law, I have no authority to hear that claim.”).
H. Ineffective Assistance of Counsel Claim
Finally, Ten Eyck argues that he was denied due process based on ineffective assistance of counsel. (Pet. at 6.) Specifically, Ten Eyck argues that trial counsel was ineffective by (1) failing to obtain his medical records, and thereby failing “to investigate the very basic element” of the defenses rooted in Ten Eyck's addiction to Oxycodone; or (2) failing to call his doctor to testify, and thereby causing “Defendant to be ill-prepared for testifying.” (Pet. at 6.) This claim does not stand up to scrutiny.
In order to prove ineffective assistance of counsel, a petitioner must show that (1) “counsel's representation fell 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.” Harrington, 562 U.S. at 104 (quoting Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)); accord United States v. Brown, 623 F.3d 104, 112 (2d Cir. 2010). 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.”) (quoting United States v. Eisen, 974 F.2d 246, 265 (2d Cir. 1992)). In the context of federal habeas review, “[t]he standards created by Strickland and [AEDPA, 28 U.S.C. § 2254(d),] are both highly deferential and, when the two apply in tandem, review is doubly so.” Harrington, 562 U.S. at 105 (internal quotation marks and citations omitted).
In denying Ten Eyck's motion to vacate the judgment based on ineffective assistance of counsel, the trial court found that “[d]efendant's motion does not satisfy the performance prong” of the Strickland standard. (SR. 329.) The court reasoned that because Ten Eyck failed to make allegations about “his own discussions - or lack thereof - with defense counsel,” Ten Eyck failed to satisfy his burden of alleging facts to support his claim that counsel was incompetent for not offering medical records into evidence at trial. (SR. 329.) The court added that “[t]he need for such allegations is particularly important here because defense counsel could have had a tactical reason for not offering the medical records.” (SR. 330.) As an example of such a “tactical reason,” the court pointed out that the records “undermined defendant's explanation for how he met Chavez and his claim that he had been induced to sell firearms to obtain painkillers for his injured back.” (SR. 330.) The court noted that “[Ten Eyck] testified that he lost his job and could no longer afford to see a doctor and purchase pain medication”; his medical records, however, show that “defendant was seeing doctors and being prescribed medication through May 2012.” (SR. 330.) Accordingly, defense counsel “could have reasonably decided as a matter of tactics not to offer those record[s] into evidence, so as to deny the prosecutor the opportunity to exploit their evidentiary value against the entrapment defense.” (SR. 330.) On appeal, the First Department “considered and rejected” Ten Eyck's ineffective assistance of counsel claim. Teneyck, 155 A.D.3d at 491.
The state courts' determination that trial counsel was not ineffective for failing to obtain or present medical evidence and testimony did not unreasonably apply the federal standards for ineffective assistance of counsel. As explained by both the trial and the appellate courts, counsel acted well within the tactical discretion afforded to him in formulating a strategy when he chose not to present medical evidence of Ten Eyck's Oxycodone addiction or to call Ten Eyck's doctors to testify about such. See Harrington, 562 U.S. at 107 (counsel not ineffective for failing to provide expert blood testimony that “could” support defendant's defense because he was “entitled to formulate a strategy that was reasonable at the time and to balance limited resources in accordance with effective trial tactics and strategies”); Santana v. Capra, 284 F.Supp.3d 525, 542 (S.D.N.Y. 2018) (rejecting petitioner's ineffective assistance of counsel claim because petitioner failed to point to the absence of 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).
As highlighted by the trial court, defense counsel's decision not to obtain medical records or call Ten Eyck's doctor to testify were eminently reasonable given Ten Eyck's demonstrated credibility issues. Ten Eyck told his defense counsel the “fabricated story” about witnessing a plane crash during plea negotiations and maintained that this story was true until confronted with objective evidence that showed otherwise. (SR. 324.) Defense counsel thus had ample “reason to question the truth of his client's account,” and his decision not to call doctors or present medical evidence that could further undermine Ten Eyck's credibility fell within the scope of reasonable, tactical decision-making. Harrington, 562 U.S. at 104, 108; see Strickland, 466 U.S. at 691 (“when a defendant has given counsel reason to believe that pursing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable”); Ryan v. Rivera, 21 Fed.Appx. 33, 35 (2d Cir. 2001) (summary order) (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] more than it would help him”).
That Ten Eyck believes the medical evidence would have been beneficial to his case does not alter the analysis. As noted, Ten Eyck failed to make allegations about “what discussions, if any, defendant had with counsel about using the medical records as evidence.” (SR. 329.) The trial court noted that “[t]hose discussions surely occurred, either because defense counsel asked defendant about his medical records when they discussed the entrapment defense before trial, or because defendant spontaneously volunteered to his lawyer that his medical records would support his claims. And if the topic was never discussed, that non-discussion would have been such a serious dereliction of duty by counsel that defendant surely would have alleged it in his motion.” (SR. 329.)
In light of the foregoing, the Court cannot say that the state courts unreasonably applied the Strickland standard in resolving Ten Eyck's ineffective assistance of counsel claim against him. And, because the Court finds that the first element of Strickland is not satisfied, the Court need not address the second element whether petitioner was prejudiced by unprofessional errors. See Sellan v. Kulhman, 261 F.3d 303, 317 (2d Cir. 2001) (declining to address second prong of Strickland after finding that the first prong was not unreasonably applied).
Conclusion
For the foregoing reasons, I recommend that Ten Eyck's petition for habeas corpus be denied in its entirety.
Procedures for Filing Objections
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 have fourteen (14) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of Court, with extra copies delivered to the Chambers of the Honorable Mary Kay Vyskocil, 500 Pearl Street, New York, New York 10007, and to the Chambers of the undersigned, 500 Pearl Street, New York, New York 10007. FAILURE TO FILE TIMELY OBJECTIONS WILL RESULT IN WAIVER OF OBJECTIONS AND PRECLUDE APPELLATE REVIEW.