Opinion
19-CV-5038 (MKV) (JLC)
08-13-2021
FRANCISCO TINEO-SANTOS, Petitioner, v. PAUL PICCOLO, Superintendent of Southport Correctional Facility, Respondent.
ORDER & REPORT AND RECOMMENDATION
JAMES L. COTT, UNITED STATES MAGISTRATE JUDGE
Petitioner Francisco Tineo-Santos seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 following his conviction for second-degree murder. He also requests reconsideration of the Court's January 21, 2021 Opinion and Order denying him leave to amend his petition and to stay and hold the case in abeyance while he exhausted a new ineffective assistance of counsel claim in state court. For the reasons set forth below, the Court denies Tineo-Santos' motion for reconsideration and recommends that his petition be denied.
The following facts are drawn from the record of proceedings before the state trial court. To the extent the state court transcript does not contain certain information (e.g., the contents of the written and the video statements made by Tineo-Santos during his post-arrest interviews), the Court has cited to the parties' submissions in this proceeding for that information. In view of Tineo-Santos' conviction, the evidence presented at trial is summarized in the light most favorable to the verdict. See, e.g., Garbutt v. Conway, 668 F.3d 79, 80 (2d Cir. 2012) (citation omitted).
In the early morning of May 10, 2009, Tineo-Santos got into a livery cab to go home. Petitioner's Memorandum in Support of his Claims for Habeas Corpus Relief (“Pet. Mem.”), Dkt. No. 3, at 3-4. During the ride, a dispute between Tineo-Santos and the cab driver, Roberto Pita, arose after Tineo-Santos mistakenly gave him an incorrect address. Id. Tineo-Santos then shot Pita three times, causing the car to crash. Id. at 2-4; Respondent's Memorandum of Law in Opposition to Tineo-Santos' Petition (“Opp.”), Dkt. No. 13 at 2. Two bystanders who were nearby when the shots were fired went to the scene of the incident and observed Tineo-Santos and Pita in the cab. Trial Transcript (“Tr.”), Dkt. No. 14-2-14-5, at 14-39, 103-06. The police arrived at the scene soon thereafter and arrested Tineo-Santos, who was brought to St. Barnabas Hospital (“St. Barnabas”) for his injuries. Id. at 243, 257, 261. Pita was pronounced dead at the scene. Id. at 280-81.
Tineo-Santos underwent surgery that same day, after which he was transferred to the recovery unit of the hospital. Pet. Mem. at 7. Two detectives entered the recovery unit approximately three hours later, and interviewed Tineo-Santos and obtained a written statement from him. Id. at 2; Tr. at 18-19. In the interview, Tineo-Santos admitted that he had shot Pita. Pet. Mem. at 3. At the time of his written statement, Tineo-Santos was taking several medications, including Demerol, Phenergan, and Percocet. Id. at 7 (citing to medical records). An assistant district attorney, Dominick DiMaggio (“ADA DiMaggio”), arrived at the hospital the next day, and after receiving permission to speak with Tineo-Santos from the St. Barnabas Risk Management department (“Risk Management”), obtained a video statement from him admitting to the shooting. Id. at 3. Tineo-Santos also stated that he appreciated that Pita was not pressing charges, even though by that time, unbeknownst to Tineo-Santos, Pita had already passed away. Id. at 4. For both interviews, Tineo-Santos agreed to waive his Miranda rights. Tr. at 141; see Opp. at 2; Pet. Mem. at 2.
A. Huntley Hearing
Tineo-Santos moved to suppress the statements taken from him at the hospital, and a Huntley hearing was held on December 22, 2011. See Huntley Transcript (“Huntley Tr.”), Dkt. No. 14 at 1-24. ADA DiMaggio, who took the video statement, was the sole witness at the hearing concerning both the written and video statements. See id.; Pet. Mem. at 2. While most of the Huntley hearing involved testimony about the video statement, there was also some limited testimony about the written statement. See Huntley Tr. at 5 (“There was a written statement that the defendant had made some time just prior to me actually going on videotape with him. That was also incorporated into the video.”); id. at 9 (identifying written statement); id. at 18-20 (questions on cross-examination about the time, location, and interviewer that took the statement). Following the direct and cross-examination of ADA DiMaggio, Tineo-Santo's trial attorney-David Segal-did not call any witnesses or present any argument, but simply “rest[ed] on the record.” Id. at 23. The court then ruled, finding a “knowing, intelligent and voluntary waiver by the defendant, both to [the] written statement as well as to the video statement” and denied the motion to suppress. Id. at 24.
B. Trial
At the trial, the People called several witnesses. Two of them testified that they had left a deli on the night of the incident when they heard three gunshots, and they watched the taxicab crash. After arriving at the scene of the crash, one of the witnesses observed Tineo-Santos in the backseat of the car reaching for a pistol, and both witnesses observed the driver lying in the front of the car. Tr. at 14-39, 103-06. ADA DiMaggio also testified, stating that Risk Management had “cleared” him to speak with Tineo-Santos in the hospital and, within a few hours, he arrived at the hospital, advised Tineo-Santos of his Miranda rights, and then proceeded to take Tineo-Santos' video statement. Id. at 136-44. The Court then admitted Tineo-Santos' video statement and his written statement into evidence.
Following a recess, Segal objected to the admission of the written statement, claiming that a Huntley hearing had not been held as to the written statement. Tr. at 168-74. Specifically, Segal contended that the People “never said they were going to use that [written] statement” and that there was no Huntley hearing held as to that statement. Id. at 169. Segal again reiterated that he believed that “the video was coming in and that was it” and that he was “objecting to [the written statement]” and he did not “want the written statement coming in” as evidence. Id. at 170, 172. The court then read into the record the Huntley hearing minutes, in which the motion to suppress both the video and the written statements had been denied. Id. at 174. Upon hearing this ruling, Segal “withdr[e]w what [he] said.” Id.
The People continued to present its case. Testimony was elicited from the vice president for Quality and Clinical Services at St. Barnabas, who explained the Risk Management policy for visits from the police, id. at 221-38, as well as from a police officer who responded to the shooting, who described the scene of the crime and how she secured the gun, id. at 245-49. Finally, a medical examiner testified about Pita's autopsy. See id. at 318-54.
Tineo-Santos did not present a defense. See id. at 356. In summation, his attorney noted that the “most important part of th[e] case . . . is [the] video [statement],” id. at 395, but that the ADA had manipulated Tineo-Santos into making that statement and that the People did not call the detective who had taken the written statement “because it would [have] hurt them,” id. at 399.
The court submitted to the jury the charge of second-degree murder and, alternatively, first-degree manslaughter. Tr. at 455-64. Deliberations lasted from December 11 through December 24, 2012, adjourning for four days for various reasons during this period. See Pet. Mem. at 11, 13. During their deliberations the jury reported multiple deadlocks, and the court issued an abbreviated Allen charge and then a full Allen charge before the jury ultimately returned a verdict of guilty of second-degree murder. Tr. at 650. On January 18, 2013, Tineo-Santos was sentenced to 25 years to life. See Transcript of Sentencing Hearing, Dkt. No. 14-5 at 1-13; Petition for Writ of Habeas Corpus by a Person in State Custody (“Pet.”), Dkt. No. 1, ¶ 3.
C. Post-Conviction Proceedings
Following sentencing, Tineo-Santos appealed his conviction to the First Department. Pet. ¶ 9. He also challenged the conviction by bringing an ineffective assistance of counsel claim under New York Criminal Procedure Law Section 440.10 on April 13, 2016. Pet. ¶ 11. Specifically, Tineo-Santos argued that the failure of his trial counsel, Segal, inter alia, to present any arguments or to call as a witness the detective who took Tineo-Santos' written statement at the Huntley hearing amounted to ineffective assistance of counsel. See Opp. Ex. 2, Dkt. No. 13-2, at 3031.
In a Decision and Order dated November 21, 2016, the New York State Supreme Court, Bronx County denied Tineo-Santos' Section 440.10 motion, holding that Tineo-Santos did not establish that he was prejudiced by Segal's performance. See Pet. Ex. B, Dkt. No. 1-2, at 13-18. First, the court found that “[t]he voluntariness of both the written and video statements was not tainted by police misconduct,” id. at 13, as “a police deception technique of stating to [a] suspect that the murder victim is still alive in and of itself does not invalidate the voluntariness of a statement made subsequent to a proper Miranda warning,” id. at 15. In light of the “absence of promises made to or threats made against” Tineo-Santos at the time he made the statements, his relatively limited interaction with law enforcement personnel, and the fact that Tineo-Santos was only “lightly sedated,” the court concluded that the “written and video statements were voluntary.” Id. Second, the court held that, even if the statements were not voluntary and Segal had successfully suppressed both statements, “the results would not have been completely dispositive of the proceeding.” Id. at 17. The court noted that the evidence presented at trial included, inter alia, two eyewitnesses and the testimony of the responding officer and concluded that “in the totality of the circumstances, defendant was not deprived of a fair trial based on counsel's failure to object to the voluntariness of the written and videotape statements.” Id. at 17-18. The court then opined that it was not necessary to determine whether counsel's performance was deficient because Tineo-Santos had failed to establish prejudice, but nonetheless added that Segal “performed effectively” and “provided competent, meaningful, and effective, counsel.” Id. at 20.
Tineo-Santos appealed this ruling, and this appeal was consolidated with his direct appeal. See Pet. Ex. C. In resolving the consolidated appeal, on April 10, 2018, the First Department affirmed the trial court's ruling on the Section 440.10 motion, denied Tineo-Santos' argument on direct appeal that his statements should have been suppressed, and affirmed Tineo-Santos' conviction. Pet. Ex. D, Dkt. 1-4, at 21-24. The First Department ruled that “it was objectively reasonable for counsel to believe that admission of the statements, and the video statement in particular, might-without the risk of putting his client on the stand-encourage the jury to find a lack of homicidal intent, elicit sympathy for his client, or at least do no harm.” Id. at 22. The First Department went on to conclude that “even if counsel had actually obtained suppression of all statements, the People's case was still overwhelming, and we are unpersuaded that defendant was denied the right to a fair trial.” Id. at 22-23. On May 31, 2018, the New York State Court of Appeals denied leave to appeal. Ex. E, Dkt. No. 1-5; Pet. ¶ 9.
D. Habeas Proceedings
On May 30, 2019, Tineo-Santos, represented by counsel, timely filed his petition for a writ of habeas corpus along with supporting papers, arguing that the state court decisions were based on “an unreasonable application of clearly established Federal law” that violated his Sixth Amendment right to a fair trial and to effective assistance of counsel. Pet. ¶ 23; Pet. Mem. at 19-27. In his petition, Tineo-Santos contends that at the Huntley hearing, his attorney failed to make any challenge to the voluntariness of the written and video statements taken from him, thus rendering ineffective assistance of counsel. Pet. ¶ 12(a); Pet. Mem. at 26-27. Respondent filed a memorandum of law and declaration in opposition to the petition on November 18, 2019. Declaration of T. Charles Won in Opposition to Petition for a Writ of Habeas Corpus and Memorandum of Law (“Won Decl.”), Dkt. No. 13. Petitioner submitted his reply papers on March 5, 2021. Petitioner's Reply Memorandum of Law in Support of his Claims for Habeas Corpus Relief (“Pet. Reply”), Dkt. No. 36.
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a petitioner has one year from the “date on which the judgment became final by the conclusion of direct review” to make an application for a writ of habeas corpus. 28 U.S.C. § 2244 (d)(1)(A). Since the Court of Appeals issued its decision denying leave to appeal on May 31, 2018, and the time to seek a writ of certiorari expired 90 days thereafter, Tineo-Santos' conviction became final on August 29, 2018. See, e.g., Smith v. Lord, 230 F.Supp.2d 288, 291 (E.D.N.Y. 2002) (conviction final “when the United States Supreme Court denies the prisoner's petition for a writ of certiorari or the time for seeking such a writ has expired, which is 90 days”). Tineo-Santos' petition was filed before the one-year deadline and therefore is timely.
Prior to submitting his reply papers earlier this year, Tineo-Santos filed a motion to amend and to stay and hold in abeyance his petition on February 28, 2020 in light of evidence produced by the New York City Police Department in response to a Freedom of Information Law (“FOIL”) request. See Dkt. Nos. 21, 25-28. Specifically, on August 27, 2019, the NYPD produced to Tineo-Santos “a 911 SPRINT Report and (3) Complaint Follow-Up Reports detailing witness statements.” Dkt. No. 28 at 4. Tineo-Santos contended that the 911 report “creates a significant presumption of innocence,” Dkt. No. 26-10 (Proposed Amended Petition) ¶ 12, “Ground Two: Ineffective assistance of counsel” at (a), because it suggests that another person was at the scene of the crime. Dkt. No. 28 at 9-10. In light of this 911 Report, Tineo-Santos sought to amend his petition to bring ineffective assistance of counsel claims as a result of trial counsel's failure to introduce the 911 transcript at trial, and appellate counsel's failure to “appraise the Supreme Court, Bronx County of the existence of the 911 recording” in the section 440.10 motion. Dkt. No. 26-10 ¶ 12.
By Opinion and Order dated January 27, 2021, the Court denied Tineo-Santos' motion to amend and stay the proceedings because, inter alia, he failed to establish that “good cause” existed for not exhausting his claims earlier. Dkt. No. 30. Following this decision, Tineo-Santos moved for reconsideration under Rules 59(e) and 60(b)(1) of the Federal Rules of Civil Procedure with supporting papers on February 24, 2021. Motion for Reconsideration, Dkt. No. 33; Declaration of Alexander M. Dudelson (“Dudelson Reconsid. Decl.”), Dkt. No. 34; Memorandum of Law in Support of Motion for Reconsideration (“Pet. Reconsid. Mem.”), Dkt. No. 35. Respondent submitted a declaration in opposition to the motion for reconsideration and an attached memorandum of law on March 16, 2021. Declaration of T. Charles Won in Opposition of Motion for Reconsideration (“Won Reconsid. Decl.”), Dkt. No. 38.
A series of extension requests to file reply papers followed. The Court originally gave Tineo-Santos until April 6, 2021 to file his papers. Dkt. Nos. 39-40. A further extension was then requested because of purported difficulties in preparing the petitioner's declaration, and the Court then granted an extension until April 13, 2021. Dkt. Nos. 41-42. A third extension request was then sought and reluctantly granted, with the admonition that it was not clear from the record why it would take 42 days to file reply papers on a motion for reconsideration in a counseled case, even if petitioner was having issues with law library access, as was contended. Dkt. Nos. 43-44. Tineo-Santos then made a further extension request to file by May 11, 2021, which the Court granted with the warning that there would be no further extensions. Dkt. Nos. 45-46.
All extension requests were made on consent.
Tineo-Santos finally filed his reply papers on May 11. Dkt. No. 47. In these papers, he requested that the Court allow him to add his now apparently exhausted claim of ineffective assistance of appellate counsel (as it relates to counsel's purported failure to raise the issue of the 911 call in a section 440.10 motion) because it was now exhausted. In light of this argument, the Court then directed respondent to submit his position with respect to this application by May 21, which he did by filing a “declaration in opposition to motion to amend” and a memorandum of law (“Resp. Opp. Mem.”). Dkt. Nos. 48-49.
Finally, on June 8, 2021, notwithstanding that he is represented by counsel in this habeas proceeding, Tineo-Santos filed pro se a declaration in support of a request for an extension of time for 30 days “to be able to consult with my presently representing counsel, prepare legal documents and motions that needs to be file [sic] with this Court on my behalf for this action and be able to secure the discovery forms and evidence that I am in essential need to attach to Motions, Legal Documents and Petition need to be file [sic] with this Court in relation to my habeas corpus proceedings.” Dkt. No. 50, at 5.
Docket Numbers 51 and 52 are copies of the papers filed at Docket No. 50.
The Court will first address Tineo-Santos' motion for reconsideration and then turn to the merits of his petition.
II. ANALYSIS
A. The Motion for Reconsideration is Denied
Tineo-Santos has moved for reconsideration under Rules 59(e) and 60(b)(1) of the Federal Rules of Civil Procedure. “[T]o prevail on a Rule 59(e) motion to alter or amend a judgment, a movant must either (1) present factual matters or controlling decisions the court overlooked that might materially have influenced its earlier decision or (2) demonstrate the need to correct a clear error or prevent manifest injustice.” QS Holdco Inc. v. Bank of Am. Corp., No. 18-CV-824 (RJS), 2020 WL 6321712, at *1 (S.D.N.Y. Jan. 6, 2020) (citations and quotations omitted). Under Rule 60(b)(1), a court may grant a motion for reconsideration due to “mistake, inadvertence, surprise, or excusable neglect.”
“A motion for reconsideration is an extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources . . . and appropriate only when a court overlooks ‘controlling decisions or factual matters that were put before it on the underlying motion' and which, if examined, might reasonably have led to a different result.” Benjamin v. Goord, No. 02-CV-1703 (NRB), 2010 WL 3341639, at *1 (S.D.N.Y. Aug. 18, 2010) (citations and quotations omitted). “Rules 59 and 60 should be narrowly construed and strictly applied to avoid repetitive arguments already submitted to the Court.” Wong v. Healthfirst, Inc., No. 04-CV-10061 (DAB), 2007 WL 1295743, at *1 (S.D.N.Y. Apr. 25, 2007) (citations and quotations omitted). Ultimately, “[t]he decision to grant or deny a motion for reconsideration rests within the sound discretion of the district court.” In re Taneja, No. 17-CV-9429 (JGK), 2019 WL 1949839, at *1 (S.D.N.Y. Apr. 19, 2019).
Here, Tineo-Santos requests that the Court reconsider its decision denying his motion to amend and stay the proceedings. See Tineo-Santos v. Piccolo, No. 19-CV-5038 (MKV) (JLC), 2021 WL 266561, at *6-7 (S.D.N.Y. Jan. 27, 2021) (the “Opinion”). In its Opinion, the Court found, inter alia, that Tineo-Santos had failed to show “‘good cause' for not exhausting his ineffective assistance of appellate counsel claim prior to instituting this habeas proceeding.” Id. at *6. In doing so, the Court noted that, based on the information provided in respondent's declaration, Tineo-Santos had “apparently filed a coram nobis writ . . . alleging ineffective assistance of appellate counsel on a variety of grounds, but not on the ground presented” in the motion-i.e., that appellate counsel failed to introduce the 911 recording. Id. at *6 n.7.
Contrary to respondent's representations, it turned out that Tineo-Santos “did in fact file a pro se coram nobis writ in the Appellate Division - First Judicial Department” in which he had argued that “he was denied effective assistance of counsel when his Appellate Counsel failed to raise issues regarding the 911 Sprint Report.” Pet. Reconsid. Mem. at 11; see Dudelson Reconsid. Decl., Ex. I, Dkt. No. 34-9, ¶¶ 21-24, 32. Tineo-Santos' counsel admits that he “mistakenly relied on” respondent's representations about the “arguments made to the Appellate Division - First Judicial Department regarding the 911 recording” and that he “should have rebutted the omission of [respondent] in a reply.” Dudelson Reconsid. Decl. ¶¶ 15 16.However, the blame does not lay squarely on respondent. Indeed, respondent's counsel emailed a copy of Tineo-Santos' application for a writ of coram nobis and specifically asked Tineo-Santos' counsel if he “plan[ned] to add the issue raised in the coram as part of your application to stay the habeas, or should I consider the coram as a separate matter pursued pro se by defendant,” to which Tineo-Santos' counsel responded that “[t]his one has nothing to do with me” and “I am doing a 440.10 application based on the 911 call, as set forth in my proposed mixed petition. I have no idea what he is doing in the [coram] application.” See Won Reconsid. Decl., Ex. 1, Dkt. No. 38-1, at 1.
Tineo-Santos' counsel attempts to justify his mistaken reliance on respondent's representations by stating that he did so “during a time that he was not in his office due to the pandemic.” Pet. Reconsid. Mem. at 12; see Dudelson Decl. ¶ 12. However, it is unclear why being out of his office would have made any difference here, where respondent emailed a copy of the application for a writ of coram nobis to which Tineo-Santos' counsel responded that same day. See Won Decl., Ex. 1 (Dkt. No. 38-1).
This correspondence is revealing of two things. First, it appears that Tineo-Santos did not intend to move to amend the petition by adding an ineffective assistance of appellate counsel claim, an issue that was unclear as the Court noted in its Opinion, because Tineo-Santos' counsel advised respondent that he had “nothing to do with” the coram nobis application and that his representation of Tineo-Santos was limited to the Section 440.10 application “as set forth in [the] proposed mixed [habeas] petition.” See id.; Tineo-Santos, 2021 WL 266561, at *2 (“Although Tineo-Santos proposes to amend his petition to add just a single additional claim, “Ground Two: Ineffective assistance of counsel,” he appears to be asserting two separate ineffective assistance of counsel claims under this caption- one against his trial counsel and one against his appellate counsel-premised on each counsel's failure to introduce the 911 Report.”). Second, the fact that Tineo-Santos' counsel denied the relevance of the writ of coram nobis, but now, after the Court has denied Tineo-Santos' motion, urges that the coram nobis proceeding must be considered, strongly suggests that the motion for reconsideration is simply an attempt to relitigate issues already decided. For these reasons alone, the motion for reconsideration lacks merit. See Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (“[A] motion to reconsider should not be granted where the moving party seeks solely to relitigate an issue already decided.”).
Moreover, Tineo-Santos has failed to establish how consideration of his coram nobis proceeding at the time his stay motion was adjudicated might reasonably have led to a different result. As the Court explained in its Opinion denying the motion, “Tineo-Santos has failed to meet his burden by showing ‘good cause' for not exhausting his ineffective assistance of appellate counsel claim prior to instituting this habeas proceeding.” Tineo-Santos, 2021 WL 266561, at *6. Nothing that Tineo-Santos has presented to the Court changes the fact that he has not satisfied this “good cause” requirement to stay and hold the habeas proceeding in abeyance.
Notably, even if the Court were to reach the merits of Tineo-Santos' claim, the result would not be different. Petitioner is claiming, essentially, that the 911 report would have established that another person was present in the livery cab, and therefore it would exonerate him. But as the Court noted in its Opinion, “there does not appear to be anything in the record containing any mention of [petitioner] ever describing (in his statements or otherwise) a third individual in the livery cab, which is ostensibly why he has now presented the 911 Report as the predicate for his proposed new claims. He alleges only that he ‘always stated' the existence of a third person to his attorneys.” 2021 WL 266561, at *7 n.9 (citing Tineo-Santos Decl. ¶ 22). No other information about a third person is provided, despite Tineo-Santos having given both a written and a video statement about the incident. As the respondent points out, in convicting Tineo-Santos the jury ultimately credited the two eyewitnesses, who only saw Pita and Tineo-Santos inside the livery cab, and they would not have had any testimony from an anonymous caller explaining what she had purportedly seen, or under what circumstances the caller had observed the incident. Resp. Opp. Mem. at 5. It strains credulity to think that the jury would have credited the statement of an anonymous individual - assuming this statement would even have come into evidence - instead of the eyewitnesses who testified at trial. Thus, given all of these circumstances, appellate counsel justifiably did not raise in the 440.10 motion that Tineo-Santos' trial counsel had rendered ineffective assistance of counsel by not utilizing the 911 report.
Respondent also contends that petitioner failed to exhaust this claim. Resp. Opp. Mem. at 4. But Tineo Santos had to proceed by coram nobis before raising the claim in this habeas proceeding, and that, in fact, he has now done.
Petitioner never addresses the admissibility of the 911 Report in his submissions to the Court.
Ultimately, the Court does not believe a different result would have obtained even if this evidence had been part of the trial, or that a “manifest injustice” would occur unless it ruled otherwise. For all these reasons, Tineo-Santos' motion for reconsideration is denied.
Tineo-Santos' belated motion that he filed pro se, in which in conclusory fashion he seeks an extension of time for vague purposes and unspecified discovery, is also denied. As chronicled in the recitation of the procedural history, the Court gave him ample time to submit his reply papers on his motion for reconsideration. Moreover, discovery in habeas proceedings is limited, and Tineo-Santos has not provided any justification for discovery in this case. “A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997). Rather, Rule 6(a) of the Rules Governing Section 2254 Proceedings provides that a “judge may, for good cause, authorize a party to conduct discovery. . . .” 28 U.S.C. § 2254, Rule 6(a). Good cause requires more than “[generalized statements regarding the possible existence of discoverable material.” Pizzuti v. United States, 809 F.Supp.2d 164, 176 (S.D.N.Y. 2011) (citations omitted); see also Gonzalez v. United States, No. 12-CV-5226 (JSR) (JLC), 2013 WL 2350434, at *3 (S.D.N.Y. May 23, 2013), reconsideration denied in part, 2013 WL 4453361 (S.D.N.Y. July 9, 2013); Edwards v. Superintendent, Southport C.F., 991 F.Supp.2d 348, 364 (E.D.N.Y. 2013) (citations omitted). Moreover, “Rule 6 does not license a petitioner to engage in a ‘fishing expedition' by seeking documents ‘merely to determine whether the requested items contain any grounds that might support his petition, and not because the documents actually advance his claims of error.'” Gonzalez, 2013 WL 2350434, at *3 (quoting Pizzuti, 809 F.Supp.2d at 176).
B. Tineo-Santos' Petition Should Be Denied
Upon finding that Tineo-Santos' motion for reconsideration is without merit, the Court will now address his underlying habeas petition requesting relief under 28 U.S.C. § 2254(d).
1. Standard of Review
Pursuant to 28 U.S.C. § 2254(d), an application for a writ of habeas corpus should only be granted if adjudication of the claim in state court “(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.”
In his petition, Tineo-Santos seeks relief under Section 2254(d)(1), the “unreasonable application” clause. “A state court decision involves an unreasonable application of . . . clearly established Federal law when the state court correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case.” Cosey v. Lilley, 460 F.Supp.3d 346, 376 (S.D.N.Y. 2020) (citing Williams v. Taylor, 529 U.S. 362, 407-08 (2000)) (quotations omitted). “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, a substantially higher threshold.” Colon v. Sheahan, No. 13-CV-6744 (PAC) (JCF), 2016 WL 3919643, at *8 (S.D.N.Y. Jan. 13, 2016), adopted by 2016 WL 3926443 (July 14, 2016); see Arroyo v. Lee, 831 F.Supp.2d 750, 759 (S.D.N.Y. 2011) (“[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.”). At the same time, “[w]hile the test requires some increment of incorrectness beyond error, . . . the increment need not be great; otherwise habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.” Arroyo, 831 F.Supp.2d at 758 (cleaned up) (“This standard ‘falls somewhere between merely erroneous and unreasonable to all reasonable jurists.'”). Ultimately, the petitioner “bears the burden of rebutting the state court's factual findings ‘by clear and convincing evidence.'” Burt v. Titlow, 571 U.S. 12, 18 (2013).
2. Federal Standard for Ineffective Assistance of Counsel Claims
The federal standard for assessing an ineffective assistance of counsel claim is set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, to prevail on an ineffective assistance of counsel claim, a defendant must establish (1) “that [his] counsel's representation fell below an objective standard of reasonableness,” and (2) that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” 466 U.S. at 688, 694. In order to satisfy the “performance” prong, a petitioner must demonstrate that “counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id. “Such errors include ‘omissions [that] cannot be explained convincingly as resulting from a sound trial strategy, but instead arose from oversight, carelessness, ineptitude, or laziness.'” Wilson v. Mazzuca, 570 F.3d 490, 502 (2d Cir. 2009) (citations omitted). “Judicial scrutiny of counsel's performance must be highly deferential” and there is a “a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 689. “Under the second prong-the prejudice prong-a ‘reasonable probability' of a different result is a ‘probability sufficient to undermine confidence in the outcome.'” Wilson, 570 F.3d at 502. “The prejudice prong can be satisfied ‘even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.'” Id. “A defendant's ineffective assistance of counsel claim fails if the defendant does not meet both prongs of the Strickland standard.” Hamilton v. Lee, 707 Fed.Appx. 12, 15 (2d Cir. 2017).
Given the deferential standard under Strickland and Section 2254(d), “[a] federal court may reverse a state court ruling only where it was so lacking in justification that there was . . . [no] possibility for fairminded disagreement.” Fischer v. Smith, 780 F.3d 556, 561 (2d Cir. 2015) (quotation omitted). “The question ‘is not whether a federal court believes the state court's determination' under the Strickland standard ‘was incorrect but whether that determination was unreasonable-a substantially higher threshold.'” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).
3. Application
Here, for the reasons discussed below, Tineo-Santos has established that the First Department unreasonably applied the performance prong under Strickland as it relates to the written statement taken from him, but has failed to establish that it unreasonably applied the prejudice prong.
a. Performance Prong Under Strickland
The First Department found that, because there was overwhelming proof that defendant intentionally killed the victim, “it was objectively reasonable for counsel to believe that admission of the statements . . . [might] encourage the jury to find a lack of homicidal intent, elicit sympathy for his client, or at least do no harm.” Pet. Ex. D at 22. In doing so, it concluded that Tineo-Santos had failed to establish an absence of strategic or legitimate explanations for his counsel's actions. Id.
The decision is reported at 160 A.D.3d 465 (1st Dep't 2018).
i. Video Statement
With respect to the video statement, the First Department found that Tineo-Santos failed to establish the performance prong under Strickland. It reasoned, in part, that his trial attorney, Segal, made a strategic decision to allow the video statements to be admitted and theorized about why Segal may have wanted the video statement to be admitted-the statement might “encourage the jury to find a lack of homicidal intent, elicit sympathy for his client, or at least do no harm,” id.- but those reasons, perfectly plausible on their own, are undermined by the record as Segal did not pursue such a strategy. To the contrary, Segal attempted to discredit the video statement in summation, arguing that ADA DiMaggio “had manipulated Mr. Santos into making the video statement while he was under the influence of medication.” Opp. Ex. 2 at 14 (citing to Tr. at 396-98, 401); see Opp. Ex. 3 at 17-18.
Moreover, it is clear from the record that Segal challenged the admission of the video statement at the Huntley hearing and sought its suppression. See Huntley Tr. at 3-19. As Segal explained in his September 1, 2015 letter submitted in response to the ineffective assistance of counsel allegations, he cross-examined ADA DiMaggio about whether Tineo-Santos understood the questions and voluntarily made the video statement, questioned the ADA about any threats or promises made to Tineo-Santos, and then rested on the record because he believed that the “video spoke for itself as to the issues at the Huntley hearing.” Opp. Ex. 2 at 28-29 (citing Segal's Sept. 1, 2015 Letter). While Segal's strategy to suppress the video statement leaves much to be desired-particularly given the potential issues with the initial written statement that might have impacted the admissibility of the second statement, as Tineo-Santos points out (Pet. Mem. at 26)-“[s]trategic decisions regarding the challenging of evidence and witnesses cannot be second-guessed in an effort to support an ineffective assistance of counsel claim,” Loucks v. Capra, No. 16-CV-3115 (NSR) (JCM), 2019 WL 4921722, at *12 (S.D.N.Y. Mar. 28, 2019) (quoting Miller v. Graham, No. 14-CV-5901 (KAM), 2018 WL 3764257, at *14 (E.D.N.Y. Aug. 8, 2018)), adopted by 2019 WL 4917191 (Oct. 4, 2019); Ortiz v. Barkley, 558 F.Supp.2d 444, 453 (S.D.N.Y. 2008) (“a decision not to call a particular witness-‘even one[ ] that might offer exculpatory evidence-is ordinarily not viewed as a lapse in professional representation'”) (quoting United States v. Best, 219 F.3d 192, 201 (2d Cir. 2000)). Moreover, “[i]t is not sufficient for the habeas petitioner to show merely that counsel omitted a nonfrivolous argument, for counsel does not have a duty to advance every nonfrivolous argument that could be made.” Arroyo v. Eckert, No. 18-CV-5819 (PGG) (JLC), 2020 WL 3884892, at *18 (S.D.N.Y. May 28, 2020) (report and recommendation) (quoting Clark v. Stinson, 214 F.3d 315, 322 (2d Cir. 2000)).
Because Segal's decision to cross-examine ADA DiMaggio and then rest on the record falls comfortably within an attorney's strategic discretion, his conduct appears reasonable. In any event, there is no evidence to establish that the First Department applied the facts of this case in an objectively unreasonable manner in determining that Tineo-Santos did not satisfy the performance prong of Strickland.
ii. Written Statement
As for the written statement, the First Department found that any failure by Segal to challenge the written statement would also have been objectively reasonable as a strategic decision. Pet. Ex. D at 22. To the extent that Segal decided not to challenge the written statement, that decision falls within his discretion as to trial strategy and does not constitute objectively unreasonable conduct under the performance prong of Strickland. See Awan v. United States, No. 09-CV-0359 (JS), 2009 WL 3245884, at *3 (E.D.N.Y. Sept. 30, 2009) (“an action or omission that might be considered sound trial strategy does not amount to ineffective assistance”); Pet. Ex. D at 22 (listing reasonable strategies for allowing the statements to be admitted).
However, it appears that Segal's failure to challenge the written statement was not a strategic decision but rather an oversight on his part. As Tineo-Santos points out, “Segal did not seem to grasp the scope of the Huntley hearing or evidentiary rulings” and he “himself acknowledged that he did not want the written statement coming in”-effectively negating a basis for finding Segal's decision to be strategic. Pet. Mem. at 25. Indeed, Segal made clear his mistaken belief at trial, stating that “a Huntley hearing was held as to the video” but not the written statement and that the People “never said anything about the [written] statement.” Tr. at 169. Accordingly, unlike his actions relating to the video statement, there is no evidence to suggest that Segal considered and made an affirmative decision to abandon the suppression of the written statement. Instead, Segal failed to challenge the written statement altogether based on an erroneous belief that the People did not seek to admit it. See Pet. Mem. at 7 (Segal stating his belief that “the People never said they were going to use that [written] statement”).
In light of these circumstances, “the question . . . is not whether a suppression motion would have succeeded, or even whether it necessarily should have been made; it is whether counsel's failure to investigate the option, consider its strategic merits and demerits, and then make an informed decision about it fell below an objective standard of reasonableness.” Lopez v. Greiner, 323 F.Supp.2d 456, 476 (S.D.N.Y. 2004). Whether an attorney's failure to seek to suppress evidence falls below a standard of reasonableness “depends on how a reasonable New York practitioner would have assessed the potential risks and benefits of such a motion, including its potential merits and possible strategic reasons to forego it.” Id. at 474.
Here, a reasonably competent New York attorney would have investigated the circumstances surrounding the written statement given that Tineo-Santos had provided it shortly after surgery and while on medication, and apparently under the belief that the victim was alive and not pressing charges. See Pet. Mem. at 4 (Tineo-Santos stated he appreciated Pita was not pressing charges during his video statement (citing video statement)); id. at 27 (“Mr. Tineo-Santos was administered several medications, including but not limited to Demerol, Phenergan and Percocet”) (citing medical records). Indeed, but for his mistaken belief that the People did not seek to admit the written statement, Segal himself acknowledged that he would have challenged the admissibility of the written statement. Tr. at 172 (“Judge, I'm objecting to [the written statement] coming in in [sic] evidence. I don't want the written statement coming in.”). Taken together, Segal's conduct- his failure to appreciate that the People sought to admit the inculpatory written statement, and his failure to investigate admissibility of that statement and make a strategic decision as to suppression-falls below an objective standard of reasonableness. See, e.g., Cornell v. Kirkpatrick, 665 F.3d 369, 379-80 (2d Cir. 2011) (trial counsel's failure to object to venue due to oversight constituted objectively unreasonable performance). The First Department's proffer of hypothetical strategic reasons why Segal may have foregone suppressing the written statement was thus an unreasonable application of Strickland as it failed to analyze Segal's performance in light of his oversight (and instead assumed he made an affirmative decision to forego suppressing the written statement). See Lopez, 323 F.Supp.2d at 478 (“Insofar as Justice Snyder denied Lopez's ineffectiveassistance claim on the ground that ‘objective[ly] reasonable strategies exist to explain why defense counsel would have chosen not to controvert the warrant,' her decision unreasonably applied Strickland, for in this case the inquiry under federal law is not whether a hypothetical, reasonably competent attorney may have had a strategic reason not to make a motion to suppress; it is whether Lopez's counsel in fact neglected his ‘duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.'”) (citing Strickland, 466 U.S. at 691).
b. Prejudice Prong Under Strickland
In determining that counsel's performance was not prejudicial, the First Department found that “even if counsel had actually obtained suppression of all statements, the People's case was still overwhelming” and “Defendant's argument about any alleged weaknesses in the prosecution's case [was] unpersuasive.” Ex. D at 22-23. This application of Strickland was not unreasonable.
To satisfy the prejudice prong, Tineo-Santos needs to establish that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome,' and thus the chance of an alternate result must be ‘substantial,' not just ‘conceivable.'” Waiters v. Lee, 857 F.3d 466, 480 (2d Cir. 2017) (internal citations) omitted). “[I]n the context of suppression motions[, ] ‘the defendant must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice.'” Watson v. New York, No. 07-CV-1111 (RJS) (RLE), 2011 WL 4639812, at *2 (S.D.N.Y. Oct. 6, 2011) (citing Kimmelman v. Morrison, 477 U.S. 365, 375 (1986)). Moreover, where “a conviction is supported by overwhelming evidence of guilt,” prejudice will not be found. Sepulveda v. Lee, No. 11-CV-487 (CS) (JCM), 2015 WL 5703135, at *13 (S.D.N.Y. Sept. 28, 2015) (quotation and citation omitted); see Waiters, 857 F.3d at 480 (“a verdict or conclusion with ample record support is less likely to have been affected by the errors of counsel than ‘a verdict or conclusion only weakly supported by the record'” (citation omitted)).
Here, the First Department appropriately found that the evidence was overwhelming and, therefore, Tineo-Santos has failed to satisfy the prejudice prong. See Pet. Ex. D at 22-23. Tineo-Santos argues that the evidence was not overwhelming and focuses on the evidence establishing intent. He contends that the statements provided the “only direct evidence relating to his motive and intent,” Pet. Mem. at 25, and were “central to the prosecution's case” as the prosecutor “placed a great emphasis” on the statements in summation, Pet. Reply at 6, and emphasizes that the case was close as the jury deliberated from December 11 to 24 and at several stages the court was prepared to declare a mistrial, Pet. Mem. at 25. In opposition, respondent contends that habeas relief should be denied because “[h]ad petitioner never said a word to the police, the proof that he intentionally killed Roberto Pita still would have been completely overwhelming” given the eyewitness accounts that Pita was “slumped over and near death, in the driver's seat, and petitioner [was] injured but nevertheless reaching for a pistol, in the back.” Opp. at 5.
Under New York law, “[a] person is guilty of murder in the second degree when . . . [w]ith intent to cause the death of another person, he causes the death of such person.” N.Y. Penal Law § 125.25 (McKinney).
The record contains ample proof independent of the statements to support Tineo-Santos' conviction. While Tineo-Santos' argument that the statements provided the only direct evidence of intent is accurate, he fails to address why the strong circumstantial evidence in the record is insufficient to establish intent. See United States v. Heras, 609 F.3d 101, 106 (2d Cir. 2010) (“The law has long recognized that criminal intent may be proved by circumstantial evidence alone.”); Lopez v. Superintendent of Five Points Corr. Facility, No. 14-CV-4615 (RJS) (JLC), 2015 WL 1300030, at *17 (S.D.N.Y. Mar. 23, 2015) (“guilt beyond a reasonable doubt may be established entirely by circumstantial evidence”) (citation omitted) adopted by 2015 WL 2408605 (May 20, 2015). Indeed, Tineo-Santos seemingly acknowledges the strong circumstantial evidence against him, including that there was testimony from multiple witnesses and a medical examiner, but attempts to diminish this evidence by merely pointing out that the case “becomes much stronger when [his] statement is added.” Pet. Reply at 7. Taken together, the evidence before the jury-including the fact that Tineo-Santos and Pita were the only people in the taxi, Pita had been shot three times while driving, and a gun was found near Tineo-Santos at the scene of the accident-provides more than enough to support the second-degree murder conviction such that there is not a reasonable probability that the result would have been different even without the errors of counsel.
In any event, to warrant habeas relief, 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, because under § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly. Rather, he must show that the [First Department] applied Strickland to the facts of his case in an objectively unreasonable manner.” Bell v. Cone, 535 U.S. 685, 698-99 (2002); see Colon v. Sheahan, No. 13-CV-6744 (PAC) (JCF), 2016 WL 3919643, at *8 (S.D.N.Y. Jan. 13, 2016) (“Even if reasonable minds reviewing the record might disagree about the finding in question, on habeas review that does not suffice to supersede the trial court's . . . determination.” (cleaned up)), adopted by 2016 WL 3926443 (S.D.N.Y. July 14, 2016)). Tineo-Santos has failed to meet this doubly deferential standard. See Waiters, 857 F.3d at 477 n.20 (“the Supreme Court has indicated that double deference is appropriate when evaluating Strickland claims governed by § 2254(d)”) (citing Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)).
In fact, Tineo-Santos focused his arguments solely on the Strickland standard and did not address the additional deferential treatment afforded to the First Department's decision under Section 2254(d)(1).
Ultimately, “[t]his is not a case where [the absence of the statements] would have so clearly ‘alter[ed] the entire evidentiary picture' that the [] court's decision is indefensible” given the other evidence that supported his conviction. Waiters, 857 F.3d at 484 (citations omitted). Instead, given the record, the First Department could have reasonably concluded that, even without the statements, the verdict would have been the same. Because Tineo-Santos has not established that the First Department's decision to deny his ineffective assistance of counsel claim was an unreasonable application of Strickland, his petition should be denied.
III. CONCLUSION
For the reasons set forth above, the Court denies Tineo-Santos' motion for reconsideration and his pro se extension request. The Court also recommends that the petition for a writ of habeas corpus be denied. The Clerk is respectfully directed to close Docket Nos. 33 and 52 and mark them as “denied.”
PROCEDURE FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Order and Report and Recommendation to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to such objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Mary Kay Vyskocil, United States Courthouse, 500 Pearl Street, New York, New York 10007, and to the chambers of the undersigned, United States Courthouse, 500 Pearl Street, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Vyskocil.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. 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).
SO ORDERED.