Opinion
9:18-CV-01226 (TJM/CFH)
07-23-2024
WILLIAM WHEELER, Petitioner, v. JAMES LAMANNA, Respondent.
William Wheeler Green Correctional Facility Petitioner pro se. Attorney General for the State of New York MARGARET A. CIEPRISZ, ESQ. Assistant Attorney General Attorney for Respondent.
William Wheeler Green Correctional Facility Petitioner pro se.
Attorney General for the State of New York MARGARET A. CIEPRISZ, ESQ. Assistant Attorney General Attorney for Respondent.
REPORT-RECOMMENDATION AND ORDER
This matter was referred to the undersigned for Report-Recommendation and Order pursuant to 28 U.S.C. § 636(b) and N.D.N.Y. L.R. 72.3(c).
Christian F. Hummel U.S. Magistrate Judge.
Presently pending before the Court is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by pro se petitioner William Wheeler (“petitioner”). See Dkt. No. 1 (“Pet.”). In December 2015, following a jury trial in the Albany County Supreme Court, petitioner was convicted of one count of criminal possession of a controlled substance in the first degree in violation of N.Y. Penal Law § 220.21(1), and one count of criminal possession of a controlled substance in the third degree in violation of N.Y. Penal Law § 220.16(1). See Pet. at 1; see also People v. Wheeler, 72 N.Y.S.3d 220, 222-23 (A.D.3d Dep't 2018). Petitioner was sentenced to fifteen years of imprisonment followed by five years of post-release supervision upon his conviction of criminal possession of a controlled substance in the first degree, and twelve years of imprisonment followed by three years of post-release supervision upon his conviction of criminal possession of a controlled substance in the third degree, with the sentences to run concurrently. See Pet. at 1; see also Wheeler, 72 N.Y.S.3d at 222.
Citations to the record are to the pagination generated by CM/ECF, located at the top of each page.
Petitioner now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on grounds that (1) the arresting police officers violated his Fourth Amendment rights when they stopped and searched the automobile without probable cause; (2) he was denied his Sixth Amendment right to a speedy trial, and trial counsel was ineffective for waiving that right; (3) the trial court's bias against him and prosecutorial misconduct resulted in a deprivation of due process; and (4) the evidence was legally insufficient to support his conviction. See Pet. at 5, 7-8, 10; see also Dkt. No. 1-2 at 1-6. Respondent opposed the petition. See Dkt. No. 17. Petitioner filed a traverse. See Dkt. No. 22. For the reasons that follow, it is recommended that the petition be denied.
The undersigned summarizes only the procedural history that is relevant to this Court's review of the habeas petition.
A. Investigation and Arrest
On December 3, 2013, Michael Thomas assisted petitioner with repairing petitioner's van at an auto repair shop. See Dkt. No. 19-2 at 843. Later that afternoon, Thomas agreed to drive petitioner, using a Honda Accord belonging to petitioner's wife, to pick up petitioner's daughter from school. See Id. at 800-01. As they were leaving the shop, Thomas tossed his black and grey backpack in the backseat. See Id. Thomas and petitioner then picked up petitioner's daughter, who brought a duffle bag with her into the back seat of the car. See id. at 802. When they dropped her off at the auto repair shop, she left her duffle bag behind. See id. Petitioner then received a phone call, told Thomas he needed to make a stop, and directed Thomas to drive to 575 Washington Avenue in Albany, New York. See id. at 803-04. When they arrived at the address, Thomas waited outside while petitioner went into the house. See id. at 804.
At this time, a task force of federal and local police officers were in cars on the block watching 575 Washington Avenue. See Dkt. No. 19-2 at 763. Investigator William Webster saw the Honda pull up and park near the house. See id. When petitioner got out of the passenger side of the car and walked into the house, Webster noticed that petitioner was carrying a backpack over his shoulder. See id. Thomas got out of the car and stood next to it. See id. at 933.
Petitioner left the house about 20 minutes later, and he and Thomas drove off. See Dkt. No. 19-2 at 805. Webster noticed that petitioner had the same backpack that he had carried into the house, and subsequently radioed a description of the car and petitioner to other units over an unrecorded broadcast channel. See id. at 903-04, 93435, 938-39. Police Officers Ryan Moore and Alton Miftari thereafter received a radio call from their dispatcher with Webster's descriptions, as well as instructions to follow the car and pull it over if they observed any traffic law violations. See id. at 998-1000, 1098-1100.
Within seconds of receiving the radio call, Moore and Miftari saw the Honda and began to follow it. See Dkt. No. 19-2 at 1004-05, 1100. When Thomas committed two traffic infractions, they pulled the car over. See id. at 1005, 1101-02. Miftari approached the Honda on the driver's side and Moore approached the passenger's side. See id. at 1007, 1102-03. Thomas rolled down his window when Miftari came to his door, and Miftari asked Thomas for his driving documents. See id. at 807, 1103. As he was talking to Thomas, Miftari noticed the smell of marijuana coming from the car, as did Moore. See id. at 1008-09, 1103. Miftari and Moore then returned to their patrol car and attempted to contact the detectives at 575 Washington Avenue for guidance on how to proceed. See id. at 1104. They could not reach the detectives, so they returned to the Honda, removed Thomas and petitioner from the car, handcuffed them, and put them in the back of the patrol car. See id. at 1009-10, 1104.
The officers then searched the car for marijuana. See Dkt. No. 19-2 at 1010-11, 1105. Moore found several bags on the back seat. See id. at 1011, 1105. Specifically, Moore found a blue and black backpack, that Webster later identified as being “the same color and approximate size” as the one petitioner had been carrying, on the back seat directly behind where petitioner had been seated. Id. at 935, 1011-12. Inside the backpack, Moore found a large bag of marijuana and six other plastic bags containing a white powder later analyzed and found to be cocaine. See id. at 782-84, 1012, 110506. Thomas, who had been watching the search from the patrol car, saw the police first look through his backpack, then petitioner's daughter's duffle bag, and finally petitioner's blue and black backpack. See id. at 810-11. Upon seeing the police pull the drugs out of the blue and black backpack, Thomas turned to petitioner and asked, “[I]s that what you went to do[?]” Id. at 811. Petitioner did not respond. See id. at 812. Both petitioner and Thomas were then placed under arrest. See id. at 1033-34.
The cocaine in petitioner's bag weighed 549 grams and was valued at between $50,000 and $54,900. See Dkt. No. 19-2 at 782, 966.
Following their arrest, petitioner and Thomas had several conversations about the events of December 3. See Dkt. No. 19-2 at 813-14. During the first, Thomas told petitioner that he had “nothing to do with” “this situation” and that petitioner needed to make it right. Id. at 814. Petitioner responded, “don't worry about it, I got this, I'll take care of you, I'll make sure that you won't get in any trouble on this.” Id. However, on three or four occasions after this, petitioner approached Thomas and asked him to “take the charges” because Thomas “wouldn't get as much time . . . because[ Thomas had] no record.” Id. at 824-25. Sometime later, when Thomas and petitioner were out on bail, petitioner approached Thomas and asked Thomas if he had “turn[ed] State on him[.]” Id. at 826-27. Thomas said that he had not. See id. at 827.
B. Statutory Speedy Trial Motion
Following his December 3, 2013, arrest, petitioner was indicted on July 11, 2014. See Dkt. No. 19-1 at 74-75. Petitioner filed a pro se motion on September 10, 2014, objecting to the state's failure to indict him within six months of the commencement of criminal proceedings, as required under New York state law. See Dkt. No. 19-1 at 101. Petitioner stated that his attorney, Joseph Meany, waived his speedy trial rights without his consent. See id. Given this allegation, Albany County Court Judge Peter A. Lynch appointed attorney Danielle Neroni to represent petitioner, and held an evidentiary hearing on October 10, and 16, 2014. See id. at 107.
At the hearing, Meany “testified that he had many meetings with [petitioner] to discuss the speedy trial waiver” and “acknowledged that the meetings were contentious.” Dkt. No. 19-1 at 108; see Dkt. No. 19-2 at 25-51. Meany testified, however, that petitioner eventually “acceded to his advice” to waive his speedy trial rights upon Meany explaining to petitioner that there would be more flexibility to negotiate a favorable plea offer if petitioner was not indicted for the first-degree charge that he was facing. Dkt. No. 19-1 at 108; see Dkt. No. 19-2 at 29 (“What I said was this is a marathon, not a sprint. We need to maintain flexibility here. He agreed with me at that time.”). Meany further testified, “given the extent of his discussions with [petitioner,] that it was his view [petitioner] clearly understood and authorized him to so waive speedy trial.” Dkt. No. 19-1 at 108.
On October 20, 2014, Judge Lynch issued a decision and order denying petitioner's motion. See Dkt. No. 19-1 at 106-10. Judge Lynch detailed Meany's testimony and concluded that he was “credible and truthful.” Id. at 108. Judge Lynch determined that Meany had met with petitioner soon after the arrest, had advised petitioner that it was in his best interests to waive his speedy trial right to begin negotiations for a favorable plea agreement, and had contacted the prosecutor and orally waived petitioner's right to a speedy trial. See id. at 107-08. Judge Lynch noted that, although petitioner at times questioned the benefit of the waiver during subsequent meetings with Meany, petitioner continued to agree to the waiver until late May or early June 2014, when Meany contacted the prosecutor and revoked the waiver, and petitioner was indicted. See id. at 108. Judge Lynch concluded that, because petitioner authorized Meany to waive his statutory speedy trial right, his right had not been denied. See Id. at 106-10.
C. The Suppression Hearing
Petitioner filed a motion to suppress the “tangible property seized from the automobile that he was a passenger in[,]” alleging that he was “aggrieved by an unlawful arrest and unlawful search and seizure.” Dkt. No. 19-1 at 87-88. On March 25 and 26, 2015, Judge Lynch held a pretrial Dunaway/Mapp hearing. See Dkt. No. 19-2 at 66-232. Officers Moore and Miftari testified at the hearing for the prosecution. See id. at 69-82, 114-29. Officers Moore and Miftari testified that, on December 3, 2013, at approximately 6:00 p.m., they were on routine patrol. See id. at 71-72, 116-17. At that time, a detective asked them to assist with the execution of a search warrant at 575 Washington Avenue. See id. at 89-90, 132-33. Moore and Miftari were instructed to park behind the house and to pursue anyone who fled from the house. See id. at 73, 117-18. Soon after they parked, a radio dispatcher informed them that someone carrying a bag had left the house and drove away in a Honda, and instructed them to follow the Honda and pull the vehicle over if there were any traffic violations. See id. at 73-74, 118. The officers followed the car and pulled it over after Thomas failed to activate a turn signal far enough before turning and stopped in a crosswalk at an intersection. See id. at 74-76. Miftari approached the driver's side, where Thomas was seated; Moore approached the passenger's side, where petitioner was seated. See id. at 77. Moore testified that he believed that when they approached the car, both he and Miftari had their guns drawn for their safety based on the information they had heard about the search warrant. See id. at 100-02, 108. Miftari, however, testified that he never had his gun drawn, and he believed that Moore did not have his gun out either. See id. at 124, 149-51. After Thomas rolled down his window at Miftari's direction, the officers noticed the distinct odor of marijuana coming from the car. See Id. at 71, 78, 124. The officers took Thomas and petitioner out of the car, searched the car, and, in a backpack in the backseat of the car behind where petitioner had been seated, Moore found marijuana and cocaine. See id. at 79. Petitioner was then arrested. See Dkt. No. 19-1 at 90.
Such a hearing is held pursuant to: “(1) Mapp v. Ohio, 367 U.S. 643 (1961), to determine whether physical evidence sought to be used against [p]etitioner was obtained illegally[, and] (2) Dunaway v. New York, 442 U.S. 200 (1979), to determine whether there was probable cause for [petitioner's arrest[.]” McKelvey v. Bradt, No. 13-CV-3527 (CM/DF), 2016 WL 3681457, at *4 n.3 (S.D.N.Y. July 6, 2016).
The defense presented testimony from Lieutenant Thomas Gibbons of the Albany Police Department. See Dkt. No. 19-2 at 170-82. “Officer Gibbons testified that he is in charge of the video/audio equipment maintenance,” and that the patrol car that Officers Moore and Miftari likely were driving on December 3, 2013, was equipped with a camera that appeared to have been in working order.Dkt. No. 19-1 at 91; see Dkt. No. 19-2 at 170-78, 197. Yet, “[n]o audio/video was preserved.” Dkt. No. 19-1 at 91. Petitioner also presented testimony, testifying that he had nothing in his hands when he left 575 Washington Avenue on December 3, 2013. See Dkt. No. 19-2 at 198-99. Petitioner further “denied that [Thomas] had committed any vehicle and traffic infractions” and “testified that there were two police vehicles and that both officers approached their vehicle with guns drawn.” Dkt. No. 19-1 at 91. Petitioner testified that “the officers directed [petitioner] and [Thomas] to get out of the vehicle or they would be shot” and “the officers offered an explanation for the stop, ‘It's higher up than us.'” Id.; see Dkt. No. 19-2 at 202-03.
“The record established that activation of the lights, automatically activates the vehicle audio/video equipment.” Dkt. No. 19-1 at 91.
Following the testimony, defense counsel requested that the court draw an adverse inference of the facts based on the failure of the prosecution to preserve the video from the patrol car's camera, which “is now destroyed[.]” Dkt. No. 19-2 at 224. The court agreed and held that the patrol car had a camera and would have begun recording once the car's emergency light had been activated, but that this video “clearly ha[d] not been preserved.” Id. at 224-25. For purposes of the hearing, the court “impos[ed] an adverse inference in [its] evaluation of the facts” due to the failure to preserve the car's video. Id.
On April 13, 2015, Judge Lynch issued a decision and order denying petitioner's motion to suppress in all respects. See Dkt. No. 19-1 at 87-97. Judge Lynch determined that, “notwithstanding the ongoing investigation of the premises at 575 Washington Avenue, the credible evidence supports a finding that police officers stopped [petitioner's] vehicle on the basis of observed traffic infractions.” Id. at 93. Judge Lynch further concluded that the police were justified in approaching petitioner's car with their guns drawn because they knew that a search warrant was being executed at the home petitioner had just left. See id. at 96. Specifically, Judge Lynch found that the police had probable cause to believe a crime had been committed, which “heightened their need for officer safety, justifying the gunpoint approach” to the car. Id. Moreover, when petitioner and Thomas rolled down the windows and the officers smelled marijuana, the officers had probable cause to arrest both petitioner and Thomas and to search the car. See id. The court denied a subsequent motion for reargument. See Id. at 98-100.
D. The Trial
A jury trial took place from August 17, 2015, to August 25, 2015. See Dkt. No. 19-2 at 234-1418. The prosecution presented evidence and testimonysummarizing the investigation and arrest as detailed above. See discussion supra Subsection I.A. The defense presented three witnesses. See Dkt. No. 19-2 at 1243-74. First, Jason Gailliard testified that the Honda Accord in which petitioner was arrested in was owned by the mother of petitioner's wife. See id. at 1243-52. Second, Lieutenant Gibbons once again testified, in relevant part, that the patrol car Moore and Miftari would have been using on December 3, 2013, likely was equipped with a camera that was in working order. See id. at 1252-69. Third, Albany County Clerk Maureen Hartmann testified that Thomas' charges from the December 3 arrest were still pending at the time of trial. See id. at 1269-74.
Specifically, DEA forensic chemist Anthea Chang, Thomas, Global Tel Link field service manager Roger Colby Pitman, DEA Special Agent Michael Murphy, DEA Special Agent David Buckley, Investigator William Webster, Homeland Security Special Agent Justin Jones, Sergeant Marcus Decker, Officer Ryan Moore, Detective William DeCarlo, State Trooper Travis Kline, Officer Alton Miftari, and DEA Special Agent Joseph Klimek testified for the prosecution. See Dkt. No. 19-2 at 776-912, 923-1092, 1095-1192, 1216-37.
E. Verdict and Sentencing
On August 25, 2015, petitioner was found guilty of one count of criminal possession of a controlled substance in the first degree in violation of N.Y. Penal Law § 220.21(1), and one count of criminal possession of a controlled substance in the third degree in violation of N.Y. Penal Law § 220.16(1). See Dkt. No. 19-2 at 1413-14; see also Dkt. No. 19-1 at 76.
Prior to sentencing, on December 1, 2015, petitioner filed a counseled motion to set aside the verdict pursuant to N.Y. Crim. Proc. Law (“CPL”) § 330.30. See Dkt. No. 19-1 at 1-11. Specifically, petitioner argued (1) “the Court erred as a matter of law in denying [petitioner's] motion to suppress the narcotics seized from the vehicle”; (2) the indictment was “duplicitous” because petitioner was charged under a constructive possession theory, but the prosecution presented evidence of his actual possession of the backpack, so some jurors may have voted to convict based on his actual possession rather than on constructive possession; and (3) “the Court improperly allowed [the prosecution] to introduce testimony regarding alleged illicit activities occurring at 575 Washington Avenue,” which was “highly prejudicial” to petitioner. Id. at 2, 6-10. The trial court denied petitioner's motion in an order issued from the bench during petitioner's December 2, 2015, sentencing. See Dkt. No. 19-2 at 1445-46.
On December 2, 2015, the court sentenced petitioner, as a second felony offender, to a determinate prison term of term of fifteen years, to be followed by five years of post-release supervision on the first-degree criminal possession of a controlled substance count, and to a concurrent determinate term of twelve years plus three years of post-release supervision for the third-degree criminal possession count. See Dkt. No. 19-2 at 1453-54; see also Wheeler, 72 N.Y.S.3d at 222.
F. Direct Appeal
Petitioner's appellate counsel filed a brief on May 28, 2017, in the New York State Supreme Court, Appellate Division, Third Department, arguing, inter alia, that: (1) the trial court erred in its jury charge; (2) the prosecution's summation remarks denied him a fair trial; (3) the trial court erred in admitting petitioner's recorded telephone conversations that occurred while he was in jail; (4) his speedy trial rights were violated because he never took an affirmative action to waive such rights; (5) the tangible evidence recovered by the police should have been suppressed as the fruit of an unlawful stop; (6) portions of Officer Moore's testimony should have been precluded, given the prosecution's failure to preserve police radio transmissions and recordings from the patrol car camera in violation of Rosario ; (7) the verdict was not supported by legally-sufficient evidence; (8) the trial court erred in its Sandoval ruling; (9) references to petitioner's nickname should not have been permitted, as it was irrelevant and prejudicial; and (10) the sentence imposed was harsh and excessive. See Dkt. No. 191 at 12-71.
“Under the rule announced in People v. Rosario, 9 N.Y.2d 286 (1961), the prosecutor is required to disclose to the defense (1) [a]ny written or recorded statement, (2) made by a person whom the prosecutor intends to call as a witness at trial, and (3) which relates to the subject matter of the witness's testimony.” Chase v. Russell, No. 1:19-CV-00617 (EAW/LGF), 2024 WL 3030568, at *2 n.4 (W.D.N.Y. June 17, 2024) (citing People v. Kelly, 88 N.Y.2d 248, 251 (1996), and N.Y. CPL § 240.45(1)(a)) (internal quotation marks omitted).
“A Sandoval ruling is a New York trial court's determination as to whether the government will be permitted to inquire into a criminal defendant's prior conviction(s) in the event that the defendant testifies at trial.” Smith v. Keyser, No. 17-CV-557 (RRM), 2021 WL 84233, at *1 n.2 (E.D.N.Y. Jan. 11,2021) (citing People v. Sandoval, 314 N.E.2d 413 (1974), and Harris v. Kuhlmann, 346 F.3d 330, 337 (2d Cir. 2003) (describing the nature of a Sandoval ruling)).
In a Decision and Order dated March 8, 2018, the Appellate Division denied petitioner's direct appeal and affirmed the trial court's December 2, 2015, judgment of conviction. See Wheeler, 72 N.Y.S.3d at 228. The Appellate Division held that (1) the trial court's jury instructions were proper; (2) petitioner was not deprived of a fair trial due to statements made by the prosecution during summation; (3) the trial court did not err in admitting the recorded telephone conversations; (4) the waiver of petitioner's statutory speedy trial rights was valid; (5) the trial court did not err in denying petitioner's motion to suppress the physical evidence; (6) the trial court did not err in permitting the testimony of Officer Moore, especially given the adverse inference charge to the jury; (7) petitioner's verdict was supported by legally-sufficient evidence; (8) the Sandoval compromise was not an abuse of discretion; (9) petitioner was not unduly prejudiced by the prosecution's references to his nickname; and (10) his sentence was not harsh or excessive, especially given that petitioner was a second felony drug offender. See id. at 222-28.
On April 27, 2018, petitioner filed a counseled letter petition seeking leave to appeal to the New York Court of Appeals, in which he incorporated all of the claims raised in his brief in the Appellate Division. See Dkt. No. 19-1 at 426-27. The Court of Appeals denied petitioner's request on June 21,2018. See People v. Wheeler, 31 N.Y.3d 1123 (2018).
II. Discussion
A. Standard of Review
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), “when a state court has already ruled on the merits of the habeas petitioner's claim,” the petitioner “must show that decision was either (1) ‘contrary to' or an ‘unreasonable application of' clearly established federal law, as determined by the decisions of th[e Supreme] Court, or (2) based on an ‘unreasonable determination of the facts' presented in the state-court proceeding.” Brown v. Davenport, 596 U.S. 118, 125 (2022) (quoting 28 U.S.C. § 2254(d)). This is a “difficult to meet” and “highly deferential standard” for evaluating state-court rulings, which “demands that state-court decisions be given the benefit of the doubt[.]” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citations omitted).
“A claim is ‘adjudicated on the merits' if the state court ruled on the substance of the claim rather than on a procedural ground.” Jordan v. Lamanna, 33 F.4th 144, 150 (2d Cir. 2022) (quoting Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001)). A state court “decision is ‘contrary to' clearly established federal law ‘if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the [it] decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.'” Id. (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). “A decision is an ‘unreasonable application' of clearly established federal law ‘if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.'” Id. (quoting Williams, 529 U.S. at 413). “A writ cannot be granted ‘simply because . . . the relevant state-court decision applied clearly established federal law erroneously or incorrectly[]”; “[r]ather, whether a decision is ‘contrary to' or an ‘unreasonable application of' clearly established federal law is a ‘substantially higher threshold' than mere incorrectness.” Id. (citations omitted). Further, a state court's factual findings are presumed correct, unless that presumption is rebutted by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). If the state court did not decide a claim “on the merits,” the pre-AEDPA standard of review applies, and both questions of law and mixed questions of law and fact are reviewed de novo. Washington v. Shriver, 255 F.3d 45, 55 (2d Cir. 2001).
B. Fourth Amendment Claim
Petitioner argues that the “police did not have probable cause to stop and search [the] automobile, which car was pulled over by police with their guns drawned [sic], whereas, police alleged that [the] car was stop[ped] because of a traffic violation.” Pet. at 5; see Dkt. No. 22-1 at 6. Petitioner claims that the “contraband was allegedly discovered in the backseat inside of a carry bag, that did not belong to [him]; yet [he] was charged and convicted of possession of the contraband[.]” Pet. at 5. Petitioner notes that “the carry bag with contraband was actually unattended.” Id. Petitioner appears to argue that the officers violated his Fourth Amendment rights, and, therefore, any evidence seized from the unlawful search and seizure should have been suppressed. See id.; see also Dkt. No. 22-1 at 2-6. Respondent contends that “[t]he Court should dismiss petitioner's claim as it is precluded from habeas review pursuant to Stone v. Powell, 428 U.S. 465 (1976).” Dkt. No. 17 at 18.
Petitioner's arguments are a challenge to the state court's application of the exclusionary rule under the Fourth Amendment, which guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. CONST. AMEND. IV. In Stone v. Powell, however, the Supreme Court held that “where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” 428 U.S. at 494-95; see Pina v. Kuhlmann, 239 F.Supp.2d 285, 289 (E.D.N.Y. 2003) (“It is well settled that [Fourth Amendment] claims are not cognizable for habeas corpus review where a State has provided a full and fair opportunity to litigate this issue.”); see also Parker v. Ercole, 582 F.Supp.2d 273, 286 (N.D.N.Y. 2008). Following Stone, review of Fourth Amendment claims in habeas petitions is permissible only: “(a) if the state has provided no corrective procedures at all to redress the alleged fourth amendment violations; or (b) if the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process.” Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992) (citing Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977)); see also Ramdeo v. Phillips, No. 04-CV-1157 (SLT/RLM), 2007 WL 1989469, at *27 (E.D.N.Y. Jul. 9, 2007) (“Since petitioner has failed to show a lack of State corrective procedures or a breakdown in the underlying process, this claim for habeas relief must be denied.”).
All unpublished opinions cited in this Report-Recommendation and Order, unless otherwise noted, have been provided to petitioner.
1. New York's Corrective Procedures
“New York has a corrective procedure for Fourth Amendment violations, which is facially adequate.” Baptiste v. Ercole, 766 F.Supp.2d 339, 359 (N.D.N.Y. 2011) (citing CPL art. 710, and Capellan, 975 F.2d at 70 n.1); see Evans v. Giambruno, No. 00-CV-5980 (NRB), 2000 WL 1876642, at *1 (S.D.N.Y. Dec. 26, 2000) (“It is well-settled that New York State provides for a full and fair opportunity to litigate a Fourth Amendment claim.”) (citing Grey v. Hoke, 933 F.2d 117, 121 (2d Cir. 1991)). “Under CPL [art.] 710, a defendant may move to suppress evidence he claims was unlawfully obtained when he has ‘reasonable cause to believe that such [evidence] may be offered against him in a criminal action.'” Miles v. Smith, No. 9:05-CV-1200 (LEK), 2008 WL 1809401, at *6 (N.D.N.Y. Apr. 21,2008) (quoting Huntley v. Superintendent, Southport Corr. Fac., No. 00-CV-191, 2007 WL 319846, at *7 (N.D.N.Y. Jan. 30, 2007), and citing CPL § 710.20).
“Here, petitioner availed himself of New York's corrective procedures when he filed a motion to suppress the evidence recovered from the automobile.” Ladd v. Bradt, No. 08-CV-6025 (MAT), 2011 WL 334211, at *4 (W.D.N.Y. Jan. 31,2011); see Dkt. No. 19-1 at 87. As detailed above, Judge Lynch held a suppression hearing on March 25 and 26, 2015, and denied petitioner's motion on April 13, 2015. See Dkt. No. 19-2 at 66-232; see also Dkt. No. 19-1 at 87-97. Petitioner again raised his claim to the Appellate Division on direct appeal, and the Appellate Division denied his claim on the merits. See Wheeler, 72 N.Y.S.3d at 224-25 (“[B]ased upon the officers' information and upon smelling marihuana emanating from the vehicle, there was probable cause to search every part of the vehicle and its contents that may conceal the object of the search.”) (internal quotation marks and citations omitted); see also Ladd, 2011 WL 334211, at *4 (“Furthermore, petitioner litigated his Fourth Amendment claims in the state appellate court, which considered his claims and rejected them on the merits. Accordingly, petitioner received an opportunity for full and fair litigation of his Fourth Amendment claims in state court, and he is now precluded from further review in this habeas proceeding.”). Thus, it cannot be said that New York “provided no corrective procedures at all to redress [petitioner's] alleged fourth amendment violations.” Capellan, 975 F.2d at 70.
2. “An Unconscionable Breakdown”
An “unconscionable breakdown in the state's process must be one that calls into serious question whether a conviction is obtained pursuant to those fundamental notions of due process that are at the heart of a civilized society.” Cappiello v. Hoke, 698 F.Supp. 1042, 1050 (E.D.N.Y. 1988) (noting such examples as bribing of trial judge, government's knowing use of perjured testimony, or use of torture to extract a guilty plea), aff'd, 852 F.2d 59 (2d Cir. 1988); see Capellan, 975 F.2d at 70 (observing that an “unconscionable breakdown” must entail some sort of “disruption or obstruction of a state proceeding”). The focus of the inquiry regarding whether there has been an “unconscionable breakdown” must be on “the existence and application of the corrective procedures themselves” rather than on the “outcome resulting from the application of adequate state court corrective procedures.” Capellan, 975 F.2d at 71; see Graham v. Costello, 299 F.3d 129, 134 (2d Cir. 2002) (“[O]nce it is established that a petitioner has had an opportunity to litigate his or her Fourth Amendment claim (whether or not he or she took advantage of the state's procedure), the court's denial of the claim is a conclusive determination that the claim will never present a valid basis for federal habeas relief. . . . [T]he bar to federal habeas review of Fourth Amendment claims is permanent and incurable absent a showing that the state failed to provide a full and fair opportunity to litigate the claim[.]”).
Here, petitioner took full advantage of the available state process by litigating his Fourth Amendment claim through his motion to suppress and on direct appeal. See Dkt. No. 19-1 at 87-97; see also Wheeler, 72 N.Y.S.3d at 224-25. His disagreement with the outcome of the state courts' rulings “is not the equivalent of an unconscionable breakdown in the state's corrective process.” Capellan, 975 F.2d at 72; see Gates, 568 F.2d at 840 (“Stone v. Powell . . . holds that we have no authority to review the state record and grant the writ simply because we disagree with the result reached by the state courts.”); see also Watkins v. Perez, No. 05-CV-477 (GEL), 2007 WL 1344163, *23 (S.D.N.Y. May 7, 2007) (holding that without more, rejection by state appellate court of the petitioner's Fourth Amendment claims, is not an “unconscionable breakdown” in the state's corrective process, and noting that a “habeas court cannot grant relief simply because it may disagree with the state court's resolution of the claim.”).
Therefore, because New York State provided petitioner with a corrective procedure to redress his Fourth Amendment claims, and because he has not demonstrated that an “unconscionable breakdown” occurred in the courts below, it is recommended that his claim for habeas relief on Fourth Amendment grounds be denied. Gates, 568 F.2d at 840.
C. Speedy Trial Claim
Petitioner argues that his “[s]peedy trial right [was] denied in violation of the Sixth Amendment to the United States Constitution.” Dkt. No. 1-2 at 2. Specifically, petitioner asserts that he “did not intentionally and voluntarily give up, relinquish, or surrender his known constitutional guaranteed right to a speedy trial” because he “did not express any agreement or create any circumstances for waiver to have been inferred” and “courts will not imply waiver from a silent record.” Pet. at 7. Petitioner contends that “trial counsel [was] ineffective and constructively absent” because “counsel did not handle this case with the same professional standards that other attorneys would have.” Id.; Dkt. No. 22-1 at 10. Respondent points out that “[petitioner never raised a Sixth Amendment speedy trial claim in state court, he raised only a speedy trial claim under state law, so his present claim is unexhausted and procedurally barred from habeas review.” Dkt. No. 17 at 20. Respondent argues that “[i]n any event, such a claim lacks all merit.” Id. Respondent further contends that “[petitioner's claim that counsel was ineffective for waiving his state statutory speedy trial claim also is unexhausted and entirely meritless.” Id.
1. Exhaustion
“A federal court may not grant habeas relief unless the petitioner has first exhausted his claims in state court.” Jackson v. Ercole, No. 07-CV-0457 (KMK/PED), 2010 WL 8357326, at *5 (S.D.N.Y. Dec. 23, 2010) (citing O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999)), report and recommendation adopted, 2012 WL 292324 (S.D.N.Y. Jan. 30, 2012); see 28 U.S.C. § 2254(b)(1) (“An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant”); id. § 2254(c) (“[The petitioner] shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented.”). “The exhaustion requirement promotes interests in comity and federalism by demanding that state courts have the first opportunity to decide a petitioner's claims.” Cain v. Hunt, No. 07-CV-5919 (KMK/PED), 2010 WL 8367771, at *3 (S.D.N.Y. Nov. 10, 2010) (citing Rose v. Lundy, 455 U.S. 509, 518-19 (1982)), report and recommendation adopted, 2012 WL 340117 (S.D.N.Y. Feb. 2, 2012).
To exhaust a federal claim, the petitioner must have “fairly presented] his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim,” and thus “giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotation marks and citations omitted). “Because non-constitutional claims are not cognizable in federal habeas corpus proceedings, a habeas petition must put state courts on notice that they are to decide federal constitutional claims.” Petrucelli v. Coombe, 735 F.2d 684, 687 (2d Cir. 1984) (citing Smith v. Phillips, 455 U.S. 209, 221 (1982)). Such notice requires that the petitioner “apprise the highest state court of both the factual and legal premises of the federal claims ultimately asserted in the habeas petition.” Galdamez v. Keane, 394 F.3d 68, 73 (2d Cir. 2005) (internal citation omitted).
In doing so, a petitioner need not cite chapter and verse of the Constitution; there are a number of other ways in which a petitioner may fairly apprise the state court of the constitutional nature of his claim, including: “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.”Alston v. Griffin, No. 12-CV-8092 (CS/PED), 2014 WL 6663458, at *7 (S.D.N.Y. Oct. 16, 2014) (quoting Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011)). “A habeas petitioner who fails to meet a state's requirements to exhaust a claim will be barred from asserting that claim in federal court, absent a showing of cause and prejudice, or a fundamental miscarriage of justice.” Carmona v. Connolly, No. 07-CV-11300 (DLC/PED), 2011 WL 2847792, at *5 (S.D.N.Y. Jan. 21, 2011) (citing Edwards v. Carpenter, 529 U.S. 446, 451 (2000)), report and recommendation adopted, 2011 WL 2748694 (S.D.N.Y. July 13, 2011).
However, “[f]or exhaustion purposes, a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred.” Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (internal quotation omitted). “In such a case, a petitioner no longer has ‘remedies available in the courts of the State' within the meaning of 28 U.S.C. § 2254(b).” Grey, 933 F.2d at 120. “Such a procedurally barred claim may be deemed exhausted by a federal habeas court.” Jackson, 2010 WL 8357326, at *6 (citing Reyes, 118 F.3d at 139). “However, absent a showing of either ‘cause for the procedural default and prejudice attributable thereto,' or ‘actual innocence,' the petitioner's claim will remain unreviewable by a federal court.” Carmona, 2011 WL 2847792, at *5 (quoting Harris v. Reed, 489 U.S. 255, 262 (1989), and Schlup v. Delo, 513 U.S. 298 (1995)).
“Unexhausted claims may also be denied on the merits in appropriate circumstances.” Carmona, 2011 WL 2847792, at *5 (citing 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”), Rhines v. Weber, 544 U.S. 269, 277 (2005) (explaining that federal district courts may exercise discretion and review the merits of unexhausted claims in a “mixed” habeas petition if such claims are “plainly meritless”), and Padilla v. Keane, 331 F.Supp.2d 209, 216 (S.D.N.Y. 2004) (indicating that the interests in judicial economy warrant the dismissal of meritless claims)).
“It is well settled that a petitioner who raises only a statutory speedy trial claim pursuant to [CPL] § 30.30 has not invoked the federal constitution and therefore has not exhausted a federal claim.” Delvalle v. Sabourin, No. 00-CV-3302 (HB/FM), 2002 WL 1000968, at *3 (S.D.N.Y. May 16, 2002) (citing Gonzalez v. Garvin, No. 99-CV-11062 (SAS), 2002 WL 655164, at *2 (S.D.N.Y. Apr. 22, 2002) (“[A]sserting a claim under section 30.30 does not call to mind a specific right protected by the constitution.”), Rodriguez v. Miller, No. 96-CV-4723 (HB), 1997 WL 599388, at *2 (S.D.N.Y. Sept. 29, 1997) (“[A] CPL § 30.30 claim . . . has been held not to raise the federal constitutional speedy trial claim for purposes of a federal habeas petition”), and Gibriano v. Attorney Gen. of N.Y., 965 F.Supp. 489, 491-92 (S.D.N.Y. 1997) (dismissing the petitioner's habeas petition in its entirety because the petitioner, who raised only a CPL § 30.30 claim in state court, did not raise a federal constitutional speedy trial claim in state court)); see Walker v. Bennett, 262 F.Supp.2d 25, 30 (W.D.N.Y. 2003) (“A New York § 30.30 statutory claim is distinct from a Sixth Amendment speedy trial claim.”).
Here, as respondent argues, petitioner did not raise a Sixth Amendment speedy trial claim before the state court, but instead only raised a statutory speedy trial claim pursuant to CPL § 30.30. See Dkt. No. 17 at 21. The undersigned notes that petitioner did not cite to the Sixth Amendment in his pro se motion objecting to the state's failure to indict him within six months of the commencement of criminal proceedings. See Dkt. No. 19-1 at 101. Petitioner also did not raise any Sixth Amendment claim on direct appeal. See id. at 40-44; see also Wheeler, 72 N.Y.S.3d at 225-26. Further, petitioner did not mention a claim under CPL § 30.20 in his pro se motion or on direct appeal. See Dkt. No. 19-1 at 40-44, 101; see also Chander v. Lee, No. 17-CV-5919 (EK/LB), 2022 WL 3369785, at *19 (E.D.N.Y. Aug. 16, 2022) (concluding that the petitioner's speedy trial claim was exhausted, even though the petitioner's brief to the Appellate Division relied exclusively on state law, because the Appellate Division construed the petitioner's brief to assert a claim under N.Y. CPL § 30.20, which embodies the federal constitutional speedy trial right), certificate of appealability denied, No. 22-2633, 2023 WL 7009626 (2d Cir. Apr. 12, 2023); Parrish v. Lee, No. 10-CV-8708 (KMK), 2015 WL 7302762, at *12 (S.D.N.Y. Nov. 18, 2015) (explaining that raising a § 30.20 claim in state court “can exhaust a federal constitutional speedy trial claim” because “[§] 30.20 embodies the federal constitutional speedy trial right”). Thus, petitioner's Sixth Amendment speedy trial claim is unexhausted. See, e.g., Richardson v. Miller, No. 22-CV-6606 (LTS/JLC), 2024 WL 763395, at *16 (S.D.N.Y. Feb. 23, 2024) (“[The petitioner] did not alert the Court of Appeals to the constitutional nature of his speedy trial claims, and those claims are therefore unexhausted.”).
To the extent petitioner seeks to raise a statutory speedy trial claim, “such state law claim is not cognizable in a federal habeas petition.” Harrison v. Thompson, No. 9:20-CV-705 (MAD/ATB), 2021 WL 1601281, at *8 (N.D.N.Y. Feb. 25, 2021) (“[T]he role of courts reviewing habeas petitions is not to reexamine the determinations of state courts on state law issues, but only to examine federal constitutional or statutory claims.”) (citations omitted), report and recommendation adopted, 2021 WL 1599121 (N.D.N.Y. Apr. 23, 2021); see, e.g., Dowling v. Fisher, No. 11-CV-2025 (SLT), 2014 WL 3611645, at *4 (E.D.N.Y. July 22, 2014) (“[T]o the extent Petitioner challenges his conviction pursuant to CPL § 30.30, New York's speedy trial statute, this Court simply does not have the power to review that claim.”); Wilson v. Goord, No. 00-CV-4849 (LTS), 2004 WL 226149, at *4 (S.D.N.Y. Feb. 6, 2004) (“[E]ven if Petitioner's statutory speedy trial right [under § 30.30] was violated, Petitioner has failed to raise a constitutional claim that is cognizable on federal habeas corpus review.”).
Moreover, petitioner's speedy trial claim is procedurally defaulted because he cannot return to state court to raise it. See Walker, 262 F.Supp.2d at 31. As discussed above, petitioner “has already filed the one direct appeal to the Appellate Division to which he is entitled, and he was denied leave to appeal to the Court of Appeals.” Id.; see discussion supra Subsection I.F. Pursuant to CPL § 440.10(2)(c), a petitioner who has prosecuted a direct appeal may not subsequently seek collateral review of an issue that could have been raised on appeal but was not. See Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994). “Because [petitioner] raised a statutory speedy trial claim on direct appeal, there can be no question that he could have raised a federal speedy trial claim based on the Sixth Amendment as well[.]” Walker, 262 F.Supp.2d at 31. Thus, “because it was not fairly presented to the [s]tate court[ ], [petitioner's] federal speedy trial claim has been procedurally defaulted.” Delvalle, 2002 WL 1000968, at *4.
Further, petitioner has not shown cause, prejudice, or actual innocence, “nor is there any reason to believe that [ ] these required showings could be made.” Delvalle, 2002 WL 1000968, at *4; see Laufer v. Annucci, No. 22-CV-3304 (HG), 2023 WL 3948737, at *9 (E.D.N.Y. June 12, 2023) (“To ‘escape the fate' of a procedural bar, a petitioner can demonstrate: (i) cause for the default; (ii) actual prejudice; and (iii) that failure to consider the claims will result in a fundamental miscarriage of justice due to actual innocence.”) (citing Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001), and Holmes v. Lamanna, No. 20-CV-2769 (AMD/LB), 2022 WL 1556497, at *6 (E.D.N.Y. May 17, 2022)), reconsideration denied, 2023 WL 5613395 (E.D.N.Y. Aug. 30, 2023); see also Brims v. Collado, No. 18-CV-6973 (KMK/PED), 2022 WL 6781686, at *22 (S.D.N.Y. Mar. 4, 2022) (“To the extent that Petitioner now seeks to advance a Sixth Amendment speedy trial claim, any such record-based claim is unexhausted but deemed exhausted because it is procedurally barred.”), report and recommendation adopted, 2022 WL 6807545 (S.D.N.Y. Oct. 11, 2022). Therefore, it is recommended that petitioner's constitutional speedy trial claim be denied as procedurally barred.
2. Merits
Even if petitioner had exhausted his Sixth Amendment speedy trial claim, his claim would fail on the merits. “The Supreme Court has identified four relevant factors for determining if [Sixth Amendment] speedy trial rights . . . have been violated.” Zapata v. Yelich, No. 18-CV-04207 (JMA), 2024 WL 3228454, at *22 (E.D.N.Y. June 28, 2024) (citing Barker v. Wingo, 407 U.S. 514, 530-32 (1972)). These factors are: “[1] whether delay before trial was uncommonly long, [2] whether the government or the criminal defendant is more to blame for that delay, [3] whether, in due course, the defendant asserted his right to a speedy trial, and [4] whether he suffered prejudice as the delay's result.” Doggett v. United States, 505 U.S. 647, 651 (1992) (citing Barker, 407 U.S. at 530). No individual factor is “either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial”; “[r]ather, they are related factors and must be considered together with such other circumstances as may be relevant.” Barker, 407 U.S. at 533. However, “[w]here a defendant in state court consents to a delay, he is deemed to have waived his constitutional right to a speedy trial.” Martin v. Ercole, No. 08-CV-933 (NGG), 2011 WL 2748655, at *5 (E.D.N.Y. July 13, 2011) (citing U.S. v. Kabot, 295 F.2d 848, 852-53 (2d Cir. 1961), and Georgiadis v. Superintendent Eastern Corr. Facility, 450 F.Supp. 975, 980 (S.D.N.Y. 1978), aff'd, 591 F.2d 1330 (2d Cir. 1978)).
Here, as detailed above, the trial court found that petitioner “knew of and authorized” a speedy trial waiver. See discussion supra Subsection I.B; see also Dkt. No. 19-1 at 109. The Appellate Division upheld this determination on direct appeal. See Wheeler, 72 N.Y.S.3d at 225-26 (“Defendant also maintains that County Court erred in denying his motion to dismiss the indictment pursuant to CPL 30.30 because the waiver of his speedy trial rights was invalid. We disagree.”). Thus, given the trial court's and the Appellate Division's determinations, petitioner consented to the delay and he, therefore, waived his constitutional right to a speedy trial. See Brown v. Conway, No. 06-CV-5041 (SCR/GAY), 2009 WL 7809913, at *4 (S.D.N.Y. June 23, 2009) (dismissing the petitioner's Sixth Amendment speedy trial claim where there was evidence that the petitioner consented to the delay to consider a plea bargain), report and recommendation adopted, 2011 WL 1362125 (S.D.N.Y. Apr. 8, 2011).
Even if petitioner's waiver of his speedy trial rights was not valid, he has not shown that the delay caused any prejudice. The Supreme Court identified three “interests of defendants which the speedy trial right was designed to protect,” the last of which being the most serious. Barker, 407 U.S. at 532. These interests are: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Id. Petitioner makes no allegations as to any of the three interests identified by the Supreme Court and instead only vaguely alleges that he was prejudiced. See Dkt. No. 22-1 at 7. Such conclusory allegations do not suffice to establish prejudice. See Delvalle, 2002 WL 1000968, at *6 (dismissing the petitioner's claim for habeas relief on speedy trial grounds because the petitioner's papers were “utterly devoid of any indication that he was prejudiced by the delay. Among other things, he does not claim that his incarceration prior to his release on bail was oppressive, nor does he indicate that witnesses were unable to testify or had a loss of memory as a result of the delay.”).
Accordingly, it is alternatively recommended that petitioner's claim for habeas relief on grounds of constitutional speedy trial be denied on the merits.
3. Ineffective Assistance of Counsel
To the extent petitioner argues that counsel was ineffective for waiving his right to speedy trial, he did not raise such a claim before the trial court or the Appellate Division on direct appeal. See Dkt. No. 19-1 at 40-43; see also Chase v. Russell, No. 1:19-CV-00617 (EAW/LGF), 2024 WL 1739708, at *8 (W.D.N.Y. Apr. 23, 2024) (explaining that a petitioner “may exhaust [an ineffective assistance of counsel] claim by presenting it to the trial court via a collateral post-conviction motion; typically, a motion to vacate the judgment pursuant to CPL § 440.10”). His claim is, therefore, unexhausted. See Zapata, 2024 WL 3228454, at *17 (E.D.N.Y. June 28, 2024) (concluding that the petitioner's ineffective assistance claim was not exhausted and is procedurally barred where the petitioner never raised such a claim on direct appeal); see also MacLeod v. McCarthy, No. 1:20-CV-01680 (EAW), 2024 WL 3022587, at *5 (W.D.N.Y. June 17, 2024) (“[T]he current claim of ineffective assistance of trial counsel is unexhausted because [the petitioner] did not present to the state court the substantial equivalent of the claim raised in the federal habeas petition.”) (internal quotation marks and citations omitted). Moreover, petitioner's unexhausted ineffective assistance of counsel (“IAC”) claim may be deemed exhausted but procedurally defaulted, as “he has no state-court forum in which he could now raise the claim.” Tafari v. Superintendent, No. 9:12-CV-985 (GLS/ATB), 2014 WL 2215763, at *6 (N.D.N.Y May 29, 2014). “Petitioner has already perfected the state court appeal to which he is entitled, and he cannot properly present his claim in a § 440.10 motion because it is record based, and could have been raised on direct appeal.” Malloy v. Royce, No. 9:19-CV-988 (GTS/ATB), 2020 WL 6063809, at *14 (N.D.N.Y. Sept. 17, 2020), report and recommendation adopted, 2020 WL 6059747 (N.D.N.Y. Oct. 14, 2020). Petitioner also has not established that cause, prejudice, or a “fundamental miscarriage of justice” will result due to the procedural bar. Id. Therefore, it is recommended that petitioner's claim for habeas relief on IAC grounds be dismissed due to the procedural bar.
In any event, petitioner's IAC claim lacks merit. The standard applicable to IAC claims is “highly demanding” and “rigorous.” Kimmelman v. Morrison, 477 U.S. 365, 382 (1986); Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001). To prevail on an IAC claim, petitioner must meet a two-pronged test: (1) he “must show that counsel's performance was deficient,” such that, “in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance”; and (2) he must show “that the deficient performance prejudiced the defense,” in the sense that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 687-94 (1984); see Patiwana v. United States, 928 F.Supp. 226, 233 (E.D.N.Y. 1996) (“Generally, in order to prevail on an ineffective assistance of counsel claim, a petitioner must establish . . . that counsel's representation fell below an objective standard of reasonableness[.]”), (internal quotation marks and citations omitted), aff'd, 173 F.3d 845 (2d Cir. 1999). “[An] IAC claim must be rejected if the defendant fails to meet either the performance prong or the prejudice prong.” Bennett v. United States, 663 F.3d 71, 85 (2d Cir. 2011).
Strickland instructs a court to “indulge a strong presumption that counsels' conduct falls within the wide range of professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.'” Strickland, 466 U.S. at 689 (quoting Michael v. State of Louisiana, 350 U.S. 91, 101 (1955)). The Supreme Court recognized in Strickland that “there are countless ways to provide effective assistance in any given case,” and that even the “best criminal defense attorneys would not defend a particular client the same way.” Id. Thus, “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable[.]” Id. at 690.
Here, petitioner argues that Meany was “ineffective and constructively absent” when he waived his Sixth Amendment right to a speedy trial without petitioner's consent. See Pet. at 7. However, as the trial court concluded, “the record is undisputed that [petitioner] knew of and authorized Mr. Meany to . . . waive[ his speedy trial rights].” Dkt. No. 19-1 at 109. Specifically, Meany “credibl[y] and truthful[ly]” testified that “given the extent of his discussions with [petitioner] that it was his view [petitioner] clearly understood and authorized him to so waive speedy trial.” Id. at 108. Meany noted that petitioner “acceded to his advice to keep the waiver intact while he continued to pursue a more favorable plea agreement and/or to pursue tactical advantages[.]” Id. Thus, given the circumstances, Meany's representation does not fall below an objective standard of reasonableness. See Abdul v. Conner, No. 24-CV-21068, 2024 WL 2976752, at *9 (S.D. Fla. June 13, 2024) (“Counsel cannot be ineffective for waiving his client's speedy-trial rights where counsel was actively pursuing a defense and preparing for trial by deposing witnesses and conducting an investigation.”) (internal quotation marks and citations omitted); see also Jaramillo v. Artus, No. 9:12-CV-01657 (JKS), 2014 WL 2986926, at *11 (N.D.N.Y. July 2, 2014) (“[T]herefore, counsel's waiver of [the petitioners rights to a speedy trial, even if counsel was acting without [the petitioners consent or knowledge, does not alone rise to the level of deficient performance.”).
Moreover, as detailed above, petitioner does not appear to have had a viable claim that he was convicted following a violation of his Sixth Amendment right to a speedy trial. See Smith v. Marsh, No. CV 20-2901, 2023 WL 4629046, at *9 (E.D. Pa. Mar. 13, 2023) (rejecting the petitioner's IAC claim for not protecting his right to a speedy trial because “[the p]etitioner [did] not appear to have had a viable claim that he was convicted following a violation of his Sixth Amendment right to a speedy trial”), report and recommendation adopted, 2023 WL 4629597 (E.D. Pa. July 19, 2023); see also Bazzo v. Soto, No. EDCV 12-02112 (CJC), 2015 WL 3561733, at *19 (C.D. Cal. Mar. 3, 2015) (dismissing claim that counsel was ineffective for waiving the petitioner's right to speedy trial, noting that the petitioner “has not alleged any non-speculative specific prejudice from the delay or that his defense was impaired in any manner”), report and recommendation adopted, 2015 WL 3561735 (C.D. Cal. June 2, 2015).
Accordingly, it is alternatively recommended that petitioner's claim for habeas relief on IAC grounds be denied on the merits.
D. Due Process Claim
Petitioner asserts that his due process rights were violated. See Dkt. No. 1-2 at 4. Specifically, petitioner argues that the trial judge was improperly biased because he “allowed into trial inadmissible testimony that prejudice[d] petitioner, and suppressed testimonial evidence that was in favor of [the] defense.” Pet. at 8. Petitioner also asserts that there was “improper conduct of the prosecution.” Id.; see Dkt. No. 22-1 at 12. Respondent argues that “petitioner's judicial bias claim is unexhausted and procedurally defaulted,” and, nevertheless, “petitioner's judicial bias claim is meritless.” Dkt. No. 17 at 30-33. Respondent also contends that “petitioner's prosecutorial misconduct claim is partially unexhausted and entirely without merit.” Id. at 32-40.
1. Judicial Bias
Petitioner did not raise his claim of judicial bias before the Appellate Division. See Wheeler, 72 N.Y.S.3d at 222-28. Thus, as respondent argues, his claim is unexhausted and procedurally defaulted. See Dkt. No. 17 at 30-33; see also Cross v. McCarthy, No. 20-CV-7018 (FPG), 2023 WL 3230427, at *8 (W.D.N.Y. May 3, 2023) (concluding that the petitioner's judicial bias claim was not exhausted because he raised the claim for the first time in his habeas petition). In any event, his claim is meritless. See Wagoner v. James, 645 F.Supp.3d 137, 146 (W.D.N.Y. 2022) (concluding that the petitioner's judicial bias claims were meritless because the petitioner failed to establish that the trial court's adverse rulings “were erroneous, much less so egregiously and blatantly wrong that they must have resulted from judicial bias, or that they rendered [the petitioner's] trial fundamentally unfair”), appeal dismissed, No. 22-3185, 2023 WL 4054366 (2d Cir. June 1, 2023).
To prevail on a claim of judicial bias, the Supreme Court has held that a petitioner must demonstrate “deep-seated favoritism or antagonism that would make fair judgment impossible.” Liteky v. United States, 510 U.S. 540, 555 (1994); see Bracy v. Gramley, 520 U.S. 899, 904-05 (1997) (“Due Process . . . clearly requires a ‘fair trial in a fair tribunal' before a judge with no actual bias against the defendant or interest in the outcome of his particular case.”) (quoting Withrow v. Larkin, 421 U.S. 35, 46 (1975)). The relevant inquiry is “not whether a judge harbors an actual, subjective bias, but instead whether, as an objective matter, ‘the average judge in his position is likely to be neutral, or whether there is an unconstitutional potential for bias.'” Williams v. Pennsylvania, 579 U.S. 1, 8 (2016) (quoting Caperton v. A.T. Massey Coal Co., 556 U.S. 872, 881 (2009)). “Mere allegations of judicial bias or prejudice do not state a due process violation.” Brown v. Doe, 2 F.3d 1236, 1248 (2d Cir. 1993), cert. denied, 510 U.S. 1125 (1994); see LoCascio v. United States, 473 F.3d 493, 495 (2d Cir. 2007) (“[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute [bias] unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.”).
Here, petitioner argues that Judge Lynch was unconstitutionally biased because he “allowed into trial inadmissible testimony that prejudice[d] petitioner, and suppressed testimonial evidence that was in favor of [the] defense.” Pet. at 8; see Dkt. No. 22-1 at 11-12; see also Dkt. No. 1-2 at 4-5. However, petitioner presents no evidence demonstrating that Judge Lynch was biased against him. See Granger v. Artus, No. 17-CV-888 (RJD), 2022 WL 3228259, at *20 (E.D.N.Y. Aug. 10, 2022) (“Petitioner's claim of judicial bias is a catalog of practically every pre-trial, trial, and sentencing ruling with which he disagrees coupled with his speculative assertion that the adversity of the ruling must reflect judicial partiality. But a defendant's displeasure with adverse rulings, standing alone, is not evidence of actual bias against petitioner or interest in the outcome of his case, and nothing in the record gives rise to an inference of such bias or interest.”) (internal quotation marks and citation omitted), certificate of appealability denied, No. 22-3044, 2023 WL 3719037 (2d Cir. Apr. 12, 2023).
In fact, “[f]or the most part, his bias claim consist[s] of nothing more than conclusory allegations that [Judge Lynch] was biased against him” as evidenced by unspecified evidentiary rulings. Martinez v. Graham, No. 13-CV-8914 (AJN/HBP), 2018 WL 10128083, at *25 (S.D.N.Y. Jan. 23, 2018) (“For the most part, [the petitioner's] bias claim consist of nothing more than conclusory allegations that the Trial Judge was biased against him with no explanation of the source of the alleged violation, no specification of the source of the alleged bias and no explanation of how the alleged bias resulted in erroneous rulings that prejudiced petitioner”), report and recommendation adopted, 2019 WL 3729461 (S.D.N.Y. Aug. 8, 2019); see Mills v. Poole, No. 1:06-CV-00842 (MAT/VEB), 2014 WL 4829437, at *6 (W.D.N.Y. Sept. 29, 2014) (stating that the habeas petitioner's “claims of bias and impartiality” were “conclusory and based entirely on his disagreement with the Court's decisions” and provided “an insufficient basis for recusal”). “From a review of the record, the [undersigned] does not find that any of the trial court's evidentiary rulings displayed any ‘deep-seated favoritism or antagonism that would make fair judgment impossible.'” Ramos v. Lee, No. 19-CV-1125 (JS), 2021 WL 3269237, at *13 (E.D.N.Y. July 30, 2021) (quoting Liteky, 510 U.S. at 555); see, e.g., Chen v. Chen Qualified Settlement Fund, 552 F.3d 218, 227 (2d Cir. 2009) (“Generally, claims of judicial bias must be based on extrajudicial matters, and adverse rulings, without more, will rarely suffice to provide a reasonable basis for questioning a judge's impartiality.”).
Accordingly, it is recommended that petitioner's claim for habeas relief on grounds of judicial bias be denied.
2. Prosecutorial Misconduct
Similar to his judicial bias claim, petitioner did not raise many of his prosecutorial misconduct claims before the Appellate Division. See Wheeler, 72 N.Y.S.3d at 222 28. Specifically, petitioner claims for the first time that the prosecutor presented and failed to correct false testimony, that the prosecutor withheld Brady material, and that the prosecutor dismissed the charges against Thomas and wrongfully granted him immunity in exchange for his testimony. See Pet. at 8. Thus, as respondent argues, these claims are unexhausted and procedurally defaulted. See Dkt. No. 17 at 33-34; see also Mancha v. Dep't Superintendent, No. 20-CV-953 (EK), 2023 WL 8788909, at *10 (E.D.N.Y. Dec. 19, 2023) (determining that the petitioner's prosecutorial misconduct claim was unexhausted because the petitioner was “raising it now for the first time”). In any event, his claims are meritless.
However, as respondent notes, petitioner did raise claims related to the prosecutor's summation remarks and unpreserved evidence before the Appellate Division. See Dkt. No. 17 at 33; see also Wheeler, 72 N.Y.S.3d at 226-27. Thus, petitioner did exhaust his prosecutorial misconduct claim to the extent the claim is based on summation remarks and unpreserved evidence.
Brady v. Maryland, 373 U.S. 83 (1963).
A petitioner “who seeks to overturn his conviction based on alleged prosecutorial misconduct in summation bears a ‘heavy burden.'” United States v. Farhane, 634 F.3d 127, 167 (2d Cir. 2011) (citation omitted). “The federal courts' review of a prosecutorial misconduct claim in a petition for writ of habeas corpus is limited to the narrow issue of whether the alleged misconduct violated due process.” Baltas v. Comm'r of Correction, No. 3:22-CV-571 (VAB), 2024 WL 2801668, at *10 (D. Conn. May 31, 2024) (citing Darden v. Wainwright, 477 U.S. 168, 181 (1986)). Habeas relief will be granted only when the misconduct “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden, 477 U.S. at 171 (quoting Donnelly v. De Christoforo, 416 U.S. 637, 643 (1974)); see also Bossett, 41 F.3d at 829 (“The appropriate standard of review for a claim of prosecutorial misconduct on a writ of habeas corpus is the narrow one of due process, and not the broad exercise of supervisory power.”) (citations and internal quotation marks omitted).
To constitute a due process violation, the prosecutorial misconduct must be “of sufficient significance to result in the denial of . . . a fair trial.” Greer v. Miller, 483 U.S. 756, 765 (1987) (citation omitted); see Donnelly, 416 U.S. at 647-48 (noting that the prosecutorial misconduct must be “egregious” to be found to have violated a defendant's constitutional rights.). “Thus, the petitioner must show that there is a reasonable probability the identified error affected the outcome of the trial, i.e., that absent the alleged misconduct, the verdict probably would have been different.” Baltas, 2024 WL 2801668, at *10; see Black v. Griffin, No. 15-CV-08112 (ALC), 2019 WL 2551685, at *20 (S.D.N.Y. Jan. 14, 2019), report and recommendation adopted, 2019 WL 2548132 (S.D.N.Y. June 20, 2019).
First, petitioner claims that the prosecutor presented and failed to correct false testimony. See Pet. at 8. However, in order to succeed on such a claim, “[petitioner must establish that ‘the prosecution knew, or should have known, of the perjury,' and that there was ‘any reasonable likelihood that the false testimony could have affected the judgment of the jury.'” Brewer v. Cunningham, No. 13-CV-2873 (NSR/PED), 2018 WL 6705707, at *14 (S.D.N.Y. Feb. 8, 2018) (quoting Drake v. Portuondo, 321 F.3d 338 (2d Cir. 2002), and United States v. Agurs, 427 U.S. 97, 103 (1976)), report and recommendation adopted, 2018 WL 6697991 (S.D.N.Y. Dec. 20, 2018); see Sanders v. Sullivan, 863 F.2d 218, 225-26 (2d Cir. 1988) (explaining that perjured testimony must be of “extraordinary nature” to trigger a due process violation; it must “leave the court with a firm belief that but for the perjured testimony, the defendant would most likely not have been convicted”). Perjury is established by showing that the witness “knowingly and willingly” gave “materially false” testimony. 18 U.S.C. § 1001(a)(2); see United States v. Salameh, 54 F.Supp.2d 236, 261-62 (S.D.N.Y. 1999). Petitioner bears the burden of demonstrating perjury by a preponderance of evidence. See Anekwev. Phillips, No. 05-CV-2184 (ARR), 2007 WL 1592973, at *6 (E.D.N.Y. May 31, 2007).
Even construing the petition in the light most favorable to petitioner, he has provided no factual basis to support his conclusory allegation that “the prosecutor . . . knowingly presented] false testimony and [failed] to correct [the false] testimony.” Pet. at 8; see Brewer, 2018 WL 6705707, at *15 (“Even construing the petition in the light most favorable to petitioner, the petition suggests no basis supporting petitioner's conclusory allegation that the prosecution knew or should have known of the perjury or his theory of how this allegedly perjured testimony would have altered the verdict”). Notably, petitioner has not identified what testimony was actually false. See Black, 2019 WL 2551685, at *22 (“In order to demonstrate that a prosecutor knowingly introduced false evidence, however, or failed to correct unsolicited evidence known to have been false, a petitioner would first have to demonstrate that the evidence in question was, in fact, false.”); see also Ortiz v. Attica Corr. Facility, No. 15-CV-02698 (WHP/DF), 2017 WL 7736415, at *24 (S.D.N.Y. Nov. 21, 2017) (“In the absence of evidence of falsity, much less known falsity, Petitioner cannot show that the prosecutor engaged in misconduct at all, in presenting the testimony of the People's witnesses.”), report and recommendation adopted, 2018 WL 1010295 (S.D.N.Y. Feb. 20, 2018). Accordingly, petitioner has not stated a prosecutorial misconduct claim based on false testimony.
Second, petitioner appears to state a Brady claim, arguing that the prosecutor failed “to disclose exculpatory evidence” and “information that could be used to . . . impeach government witnesses.” Pet. at 8. “To establish a Brady violation, [petitioner] must show (1) that the evidence at issue is ‘favorable to the accused, either because it is exculpatory, or because it is impeaching'; (2) the ‘evidence must have been suppressed by the State, either willfully or inadvertently'; and (3) ‘prejudice must have ensued.'” United States v. Paulino, 445 F.3d 211, 224 (2d Cir. 2006) (quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)). Under this third requirement, the evidence must be “material”-that is, there must be “a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” Cone v. Bell, 556 U.S. 449, 469-70 (2009). “A reasonable probability does not mean that the defendant ‘would more likely than not have received a different verdict with the evidence,' only that the likelihood of a different result is great enough to ‘undermine[ ] confidence in the outcome of the trial.'” Smith v. Cain, 565 U.S. 73, 75 (2012) (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)).
Similar to his false testimony claim, petitioner fails to explain the factual basis for his Brady claim. See Pet. at 8. Petitioner did not identify the exculpatory or impeachment evidence that he claims the prosecutor withheld. See Chrysler v. Guiney, 14 F.Supp.3d 418, 450 (S.D.N.Y. 2014) (“Petitioner's Brady claim is entirely speculative. And as a general matter, Brady claims fail where the claimant fails specifically to identify the ‘potential undisclosed Brady materials' or ‘to set forth any specific facts indicating that such evidence was withheld. Conclusory or speculative allegations that the Government failed to disclose evidence are insufficient to support a Brady violation.'”) (quoting Verdel v. Cunningham, No. 07-CV-0837 (JGK), 2008 WL 2755833, at *4 (S.D.N.Y. July 14, 2008)), aff'd, 806 F.3d 104 (2d Cir. 2015). Such conclusory and vague contentions are insufficient to state a claim for habeas relief. See Reich v. City of New York, No. 19-CV-6491 (EK/RER), 2021 WL 11628271, at *6 n.12 (E.D.N.Y. July 23, 2021) (explaining that conclusory allegations will not suffice to state a valid Brady claim), report and recommendation adopted, 2021 WL 5783382 (E.D.N.Y. Dec. 7, 2021); see also Visich v. Walsh, No. 10-CV-4160 (ER/PED), 2013 WL 3388953, at *16 (S.D.N.Y. July 3, 2013) (“Without more, Petitioner's unsupported assertion that the prosecution failed to disclose exculpatory or impeaching information at the time of trial . . . is insufficient to warrant habeas relief.”).
Third, petitioner asserts that the prosecutor “destroyed] pertinent Rosario material prior to trial.” Dkt. No. 1-2 at 4; see Dkt. No. 22-1 at 11. Based on the arguments that petitioner advanced on direct appeal, it appears that his claim derives from the police's failure to preserve audio and video recordings from the patrol car camera. See Dkt. No. 19-1 at 51-53 (arguing that the audio and video recordings from the vehicle that Officers Moore and Miftari were driving was pertinent Rosario material that was wrongfully destroyed); see also Wheeler, 72 N.Y.S.3d at 226. Petitioner did not advance a prosecutorial misconduct claim before the Appellate Division, but instead argued that the “testimony of one of the arresting officers with respect to the traffic stop and [petitioner's] actions after his arrest should have been precluded,” because of the destroyed Rosario material. Wheeler, 72 N.Y.S.3d at 226. The Appellate Division noted that the trial court “decided to sanction the People for the Rosario violations by giving an adverse inference charge to the jury,” and held that “the adverse inference charge was sufficient to remedy the violation and, accordingly, [the trial court] did not abuse its discretion in denying the preclusion motion.” Id.
“The Due Process Clause of the Fourteenth Amendment . . . mandates that the government preserve any evidence relevant to the prosecution of the case.” Bogan v. Bradt, No. 11-CV-1550 (MK/BLB), 2017 WL 2913465, at *6 (E.D.N.Y. July 6, 2017) (citing Arizona v. Youngblood, 488 U.S. 51, 55, 57 (1988)). However, “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Youngblood, 488 U.S. at 58; see DeJesus v. Superintendent of Attica Corr. Facility, No. 17-CV-3932 (GBD/AJP), 2017 WL 6398338, at *34 (S.D.N.Y. Dec. 13, 2017) (“DeJesus cannot show that the prosecution, the police department or any other state agent destroyed the tape in bad faith, which is fatal to his destruction of evidence claim”), report and recommendation adopted, 2018 WL 4043144 (S.D.N.Y. Aug. 7, 2018). Here, petitioner has not alleged the prosecutor acted in bad faith, and there is no indication in the record that the prosecutor intentionally destroyed the audio or video recordings in efforts to thwart the defense. See Illinois v. Fisher, 540 U.S. 544, 548 (2004) (finding no due process violation where the “respondent did not allege, nor did the Appellate Court find, that the Chicago police acted in bad faith when they destroyed the [evidence]”). Moreover, to the extent that there was any error, the Appellate Division held that the adverse inference charge was sufficient to remedy the situation. See Wheeler, 72 N.Y.S.3d at 226; see also Moody v. Comm'r of Corr., No. 3:11-CV-1109 (JBA), 2014 WL 1690386, at *8 (D. Conn. Apr. 29, 2014) (holding that habeas relief for prosecutorial misconduct was not warranted given “the curative measures utilized to cure the misconduct”). Thus, petitioner has not established prosecutorial misconduct on this ground to warrant habeas relief.
Fourth, petitioner argues that that the prosecutor improperly dismissed the charges against Thomas relating to the December 3, 2013, arrest and granted him “testimonial immunity,” which gave him an “incentive to lie” at trial. Dkt. No. 1-2 at 6. However, petitioner provides no further factual allegations, and his contentions are contradicted by the trial record. See Dkt. No. 19-2 at 477-79, 828. Specifically, before opening statements, the following exchange took place:
PROSECUTOR: Mr. Thomas was not promised anything whatsoever so there's no Brady information. Mr. Thomas doesn't have any criminal history this was the first time he had ever been arrested and that arrest report was provided to defense counsel.
COURT: Okay. And what happened to his charge?
PROSECUTOR: It was my understanding that they were dismissed and defense counsel brought that to my attention yesterday that they'd not been, that was the first time I had heard of that, it was my understanding that based on these circumstances surrounding the stop and the fact that Mr. Wheeler had went in the house and came out with the drugs and whatnot that there wasn't much against Mr. Thomas so that had been dismissed. . . .
COURT: So, is Mr. Thomas being called as a witness in this case?
PROSECUTOR: Yes, Your Honor.
COURT: And the People have not made any promise to him whatsoever?
PROSECUTOR: None whatsoever.
COURT: I think that ends the inquiry.Id. at 477-79. Further, during his testimony, Thomas stated he was not “promised . . . anything in relation to the charges in order to get [him] to testify” and was only testifying “just to clear [his] name.” Id. at 828. Accordingly, the record reflects that the prosecutor did not make any promises to Thomas in exchange for his testimony. Thus, petitioner has not shown any prosecutorial misconduct on this ground.
To the extent petitioner argues he is the victim of selective prosecution, such a claim is without merit. “For a valid claim of selective prosecution to stand, [petitioner] must prove that he was treated differently from other similarly situated persons, or that he was singled out for an illegitimate reason such as race or the exercise of a protected right.” Costanzo v. United States, 758 F.Supp. 869, 872 (S.D.N.Y. 1990) (citing Wayte v. United States, 470 U.S. 598, 623-26 (1985)). Petitioner has made no such allegations here. See, e.g., Guastella v. United States, No. 06-CV-2924 (SAS), 2009 WL 1286382, at *12 (S.D.N.Y. May 8, 2009) (“[The petitioner's] conclusory allegation that the Government did not charge every potential member of the conspiracy-without alleging that the Government's actions were motivated by a discriminatory purpose-is not sufficient to satisfy th[e] rigorous [selective prosecution] standard.”) (internal quotation marks omitted).
Last, petitioner challenges the prosecutor's summation remarks. See Dkt. No. 12 at 4; see also Dkt. No. 22-1 at 11. “[A] criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone . . . in an otherwise fair proceeding.” United States v. Young, 470 U.S. 1, 11 (1985). “[I]t ‘is not enough that the prosecutors' remarks were undesirable or even universally condemned.'” Darden, 477 U.S. at 181 (citation omitted). “In order to reach the level of a constitutional violation, a prosecutor's remarks must ‘so infect[ ] the trial with unfairness as to make the resulting conviction a denial of due process.'” Gonzalez v. Sullivan, 934 F.2d 419, 424 (2d Cir. 1991) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). “Whether a prosecutor's improper remarks result in a denial of due process depends upon whether the remarks caused ‘substantial prejudice' to the defendant.” United States v. Tutino, 883 F.2d 1125, 1136 (2d Cir. 1989) (citation omitted). To determine whether “substantial prejudice” exists, the court “must assess how prejudicial the prosecutor's conduct was, what measures, if any, the trial court used to cure the prejudice, and whether conviction was certain absent the prejudicial conduct.” Gonzalez, 934 F.2d at 424; see Young v. Collado, No. 20-CV-2172 (DC), 2024 WL 3218839, at *13 (E.D.N.Y. June 28, 2024) (“The [erroneous summation remarks] did not rise to the level of a constitutional violation, however, because [the petitioner] fails to establish that the remarks were so egregious as to deprive him of a fundamentally fair trial in light of the other evidence of his guilt presented at trial).
Here, petitioner specifically challenges the prosecutor's summation remarks that Thomas “came in here and he told the truth.” Dkt. No. 1-2 at 4; see Dkt. No. 22-1 at 11. At trial, the defense objected to this remark, and the Court immediately instructed the jury:
That objection is sustained. Counsel is not permitted to comment that Mr. Thomas is coming in here and telling the truth, counsel is not permitted to vouch for the credibility of the witnesses. So to the extent that that comment was made, it is struck from the record and you are to disregard it. It is for you to, ladies and gentlemen, to assess the credibility of each and every witness that includes, your assessment of the credibility of Mr. Thomas. That is a function of the jury. Not the attorneys.Dkt. No. 19-2 at 1357-58. Petitioner again raised his challenge on direct appeal and the Appellate Division held that, while the prosecutor's comment was improper, it was cured by the trial court's instruction to the jury to disregard the comment. See Wheeler, 72 N.Y.S.3d at 227. The Appellate Division's conclusion that petitioner was not deprived of a fair trial due to the prosecution's summation remarks is not contrary to, or based on, unreasonable applications of federal precedent. See United States v. Aquart, 912 F.3d 1, 27 (2d Cir. 2018) (“It is a ‘rare case' in which [a court] will identify a prosecutor's summation comments, even if objectionable, as so prejudicial as to warrant relief from conviction.”) (citing United States v. Rodriguez, 968 F.2d 130, 142 (2d Cir. 1992)); see also Vaughan v. Coveny, No. 19-CV-612 (GRB), 2023 WL 2614145, at *4 n.12 (E.D.N.Y. Mar. 23, 2023) (denying the petitioner's request for habeas relief on grounds of prosecutorial misconduct in connection with summation statements because “the trial court's curative instruction cured any potential harm caused by the prosecutor's summation comments.”).
Accordingly, it is recommended that petitioner's claim for habeas relief on grounds of prosecutorial misconduct be denied.
E. Sufficiency of Evidence
Petitioner argues that his conviction was not supported by legally-sufficient evidence to “prove guilt beyond a reasonable doubt and, of every element of the crime with which [he] is charged.” Pet. at 10. Respondent points out that, on direct appeal, “the Appellate Division rejected this claim on the merits,” noting “that petitioner was seen carrying the bag out of 575 Washington Avenue and that his statements to Thomas reflected his consciousness of guilt.” Dkt. No. 17 at 41. Thus, respondent argues that petitioner's legal sufficiency claim has no merit. See id.
On direct appeal, the Appellate Division summarized the evidence:
At trial, a police investigator testified that, in December 2013, he was outside of 575 Washington Avenue in the City of Albany with agents of the Rensselaer County Sheriff's Office, the Drug Enforcement Agency (hereinafter DEA), the City of Albany Police Department, the State Police and the Department of Homeland Security when he observed a Honda pull up to the opposite side of the street. The investigator observed [petitioner] exit the vehicle with a blue and black backpack, enter the residence and then return to the passenger seat of the Honda carrying the same backpack, after which the vehicle drove away. Upon hearing a radio dispatch relaying these facts, two police officers followed the vehicle and pulled it over after observing various traffic infractions. The officers testified that they smelled marihuana upon approaching the vehicle, ordered [petitioner and Thomas] to step outside and then initiated a
search of its interior. During the search, the officers located a backpack behind the front passenger seat of “the same color and approximate size” as the one that [petitioner] carried out of 575 Washington Avenue that contained a large quantity of what appeared to be marihuana and cocaine.
A forensic chemist confirmed that one of the substances was pure, unadulterated, cocaine hydrochloride with a net weight of 549 grams and revealed that it was separately packaged in six “knotted clear plastic bags.” Moreover, a special agent who conducted investigations with the Department of Homeland Security approximated that the total value of 549 grams of cocaine would have been between $50,000 and $54,900 in December 2013, and that quantity plays a large role in determining whether the possession is for personal use or distribution purposes. The People also elicited testimony from [Thomas,] the driver of the Honda, who revealed that, when he and [petitioner] were at the Albany County Jail on the underlying charges, he told [petitioner] that [petitioner] “needed to get [him] out of this situation [because he] ha[d] nothing to do with it,” to which [petitioner] replied, “don't worry about it, I got this, I'll take care of you, I'll make sure that you won't get in any trouble.” [Thomas] maintained that [petitioner] asked him to “take the charges” during a subsequent conversation.Wheeler, 72 N.Y.S.3d at 222-24. The Appellate Division concluded
that legally sufficient evidence was provided as to the knowing element of criminal possession of a controlled substance in the first degree by the combination of, among other proof, the 549 grams of cocaine found in the backpack that [petitioner] was observed carrying out of the residence and his statements to [Thomas] that were indicative of his consciousness of guilt. Moreover, the manner in which the cocaine was packaged, coupled with its weight and substantial street value, permitted a rational inference that [petitioner] possessed the cocaine with the intent to sell, which supports his conviction of criminal possession of a controlled substance in the third degree[.]Id. at 224.
Although petitioner conclusorily alleges that there was insufficient evidence to support his conviction, he has not established that the Appellate Division's holding is contrary to, or an unreasonable application of, clearly-established federal precedent. See, e.g., Sincere M. v. New York Off. of Mental Hygiene, 409 F.Supp.3d 70, 76 n.1 (E.D.N.Y. 2018) (“For an appellate court to conclude that a jury verdict is supported by sufficient evidence, the court must determine whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial.”) (citing People v. Bleakley 508 N.E.2d 672 (1987)); see also Rios v. Kaplan, No. 1:17-CV-00314 (LTS/SDA), 2019 WL 13400101, at *10 (S.D.N.Y. July 23, 2019) (“Based on the foregoing evidence, there were valid lines of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury that Rios intended to kill Grullon by shooting at her repeatedly. Thus, the Appellate Division's affirmance was not objectively unreasonable.”), report and recommendation adopted, 2023 WL 4348353 (S.D.N.Y. July 5, 2023); Nevins v. Giambruno, 596 F.Supp.2d 728, 742 (W.D.N.Y. 2009) (dismissing the petitioner's claim of legal insufficiency as to his criminal possession conviction because “[t]he inferences to be drawn from the prosecution's proof logically support the conclusion that [the petitioner] possessed the packages of cocaine base with the intent to sell them, based on the evidence that Office[r] Guilian saw [the petitioner] throw the drugs out of the window, the cocaine base was separately packaged, and [the petitioner's] car contained $765 in small bills when he was arrested. In sum, I cannot find that [the petitioner] has proven that no rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found all of the essential elements of the crime charged beyond a reasonable doubt.”).
Accordingly, it is recommended that petitioner's claim for habeas relief on grounds of legal insufficiency be denied.
III. Conclusion
WHEREFORE, for the reasons set forth herein, it is hereby:
RECOMMENDED, that the petition for a writ of habeas corpus (Dkt. No. 1) be DENIED IN ITS ENTIRETY; and it is further
RECOMMENDED, that no certificate of appealability be issued with respect to any of petitioner's claims as petitioner has not made a “substantial showing of the denial of a constitutional right” pursuant to 28 U.S.C. § 2253(c)(2). See 28 U.S.C. § 2253(c)(2) (“A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.”); see also Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000); and it is
ORDERED, that the Clerk of the Court serve a copy of this ReportRecommendation and Order on all parties in accordance with Local Rules.
IT IS SO ORDERED.
Pursuant to 28 U.S.C. § 636(b)(1), petitioner has FOURTEEN (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 6(a), 72.
If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three (3) additional days will be added to the fourteen (14) day period, meaning that you have seventeen (17) days from the date the Report-Recommendation and Order was mailed to you to serve and file objections. FED. R. CIV. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Id. § 6(a)(1)(c).