Williams v. Lamanna

Full title: MICHAEL WILLIAMS, Petitioner, v. JAIME LAMANNA, Respondent.

Court: United States District Court, S.D. New York

Date published: Oct 11, 2023

18 Civ. 2172 (KMK)(JCM) (S.D.N.Y. Oct. 11, 2023)

Opinion

18 Civ. 2172 (KMK)(JCM)

10-11-2023

MICHAEL WILLIAMS, Petitioner, v. JAIME LAMANNA, Respondent.

JUDITH C. MCCARTHY, United States Magistrate Judge.

To the Honorable Kenneth M. Karas, United States District Judge:

REPORT AND RECOMMENDATION

JUDITH C. MCCARTHY, United States Magistrate Judge.

Petitioner Michael Williams (“Petitioner”), proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on March 6, 2018 (the “Petition”).¹ (Docket No. 1). The Dutchess County District Attorney's Office, on behalf of respondent Jaime Lamanna (“Respondent” or the “People”), opposed the Petition (Docket Nos. 7-8), and Petitioner did not submit a reply.² For the reasons set forth below, I respectfully recommend that the Petition be denied in its entirety.

1 A pro se prisoner's papers are deemed filed at the time he delivers them to prison authorities for forwarding to the court clerk. Houston v. Lack, 487 U.S. 266, 276 (1988); see also Walker v. Jastremski, 430 F.3d 560 (2d Cir. 2005) (analyzing the Houston “prison mailbox rule”). Petitioner certified that he delivered the Petition to prison authorities for mailing on March 6, 2018. (Docket No. 1 at 16). Unless otherwise noted, the Court adopts Petitioner's dates for this filing and for all other filings discussed herein.

2 Petitioner requested an extension of time to submit a reply, (Docket No. 12), which the Court granted, (Docket No. 13), but Petitioner did not submit one.

I. BACKGROUND

A. The Crimes and Indictment

Petitioner's conviction stems from his possession and sale of heroin on four separate occasions on July 15 and 16, 2010, in Poughkeepsie, New York. Construing the evidence in the light most favorable to the State, see, e.g., Murden v. Artuz, 497 F.3d 178, 184 (2d Cir. 2007), the following facts were established at trial.

In March 2010, Jason Deigan began working as a police officer with the City of Poughkeepsie Police Department. (Docket No. 7-15 at 123). In July 2010, he was assigned to work in the Neighborhood Recovery Unit (“NRU”) as an undercover officer. (Docket Nos. 7-14 at 182; 7-15 at 123). The NRU had received complaints of drug activity in the area of Mansion and Catherine Streets, near a building at 29 North Hamilton Street that was being used by the Family Partnership to offer job training, meals and shelter. (Docket No. 7-14 at 184-85). On July 15, 2010, the NRU planned an undercover purchase of narcotics from anyone near the Family Partnership, or from an individual known to the NRU's confidential informant as “Flee,”³ who resided in the area of Mansion and Catherine Streets. (Docket Nos. 7-14 at 183-84; 7-15 at 159; 7-16 at 52, 69).

3 Flee was Petitioner's nickname at the time the events underlying this case occurred. It is sometimes spelled “Flee,” (Docket No. 7-14 at 184), and other times “Flea.” (Docket No. 7-4 at 11-12, ¶ 18).

On the morning of July 15, 2010, Sergeant John Zeltmann met with the confidential informant, searched his pockets for money, weapons, or contraband, and patted him down; finding nothing. Sergeant Zeltmann then outfitted the confidential informant with an electronic audio-video recording device, known as a “button cam,” containing a digital recorder and lens. (Docket Nos. 7-14 at 187-88; 7-15 at 125). Officer Deigan was outfitted with an electronic audio transmitting device, commonly referred to as a “wire.” (Docket Nos. 7-14 at 189; 7-15 at 12425). Sergeant Zeltmann gave Officer Deigan and the confidential informant one twenty-dollar bill each from NRU funds and recorded the serial numbers for both bills. (Docket Nos. 7-14 at 193, 196; 7-15 at 125).

Thereafter, at about 11:30 a.m. that same day, Officer Deigan drove to an area near the Family Partnership at North Hamilton Street in Poughkeepsie, with the confidential informant in the passenger seat of the vehicle. (Docket Nos. 7-15 at 126; 7-14 at 161, 184, 197). Conversations from Officer Deigan's wire were transmitted via one-way radio to two surveillance team police vehicles, one vehicle with Detective Michael D'Amicantonio and Officer Anthony Vigna, and the other vehicle with Officer Joe Ciardi. (Docket Nos. 7-14 at 18182, 190, 197; 7-15 at 104). The surveillance team vehicles drove to 29 North Hamilton Street and parked there. (Docket No. 7-14 at 197). Sergeants Zeltmann and McCarthy drove to the area of the Poughkeepsie Journal building, about one block away from Officer Deigan's destination. (Id. at 197-98).

Officer Deigan and the confidential informant saw Flee in the area of Mansion and Catherine Street. (Docket No. 7-15 at 126-27). The confidential informant asked Sergeant Zeltmann by text if they should attempt to buy drugs, (Docket Nos. 7-14 at 40, 198; 7-16 at 52), and Sergeant Zeltmann responded in the affirmative. (Docket Nos. 7-14 at 198; 7-16 at 52-53). Around the same time, Sergeant Zeltmann received a transmission through the wire describing Flee, known now to be Petitioner, as being a black male wearing red shorts, who had no shirt on and several tattoos. (Docket No. 7-14 at 203). From a position on Catherine Street, 50 feet south of the intersection with Mansion Street, Officer Vigna engaged in video surveillance. (Docket No. 7-15 at 104-112).

Sergeant Zeltmann testified that the confidential informant was heard saying, “[t]wo for me, two for him,” and another voice said, “[s]o four bags?” (Docket Nos. 7-14 at 199; 7-15 at 127). The confidential informant responded, “[y]es, four altogether.” (Docket No. 7-14 at 199). Petitioner went into the house, and when he came back out, he took four glassine envelopes with an off-white powder substance out of his left pocket and handed them to the confidential informant, who then gave two of these to Officer Deigan. (Docket Nos. 7-15 at 127-28, 167-69; 7-16 at 56, 71-72). Officer Deigan and the confidential informant each handed Petitioner a $20.00 bill, which he put in his left pocket. (Docket No. 7-15 at 167-69). Officer Deigan observed that the person who sold them the drugs had tattoos on his chest and stomach and a “big scar” on his neck. (Id. at 128-29). The confidential informant asked, gesturing to Officer Deigan, “[i]s it okay if he calls you, he's my cousin.” (Docket No. 7-14 at 199). The other voice responded no, and the confidential informant then said, “[a]ll right, cool, cool.” (Docket Nos. 714 at 199; 7-15 at 168).

A “short time” after the transaction, Sergeant Zeltmann, Officer Deigan, and the confidential informant met in the area of the Chance Theater on Crannel Street. (Docket Nos. 714 at 200; 7-15 at 130). Sergeant Zeltmann immediately turned off the recording equipment, and Officer Deigan and the confidential informant each handed him the two glassine envelopes with off-white powder that they had purchased. (Docket Nos. 7-14 at 200; 7-15 at 131). Officer Diegan's envelopes each bore a red transformer stamp. (Docket No. 7-15 at 131). The confidential informant had one envelope stamped in red with the word “[t]ransformers,” and the other had a word that was smudged and illegible. (Docket Nos. 7-14 at 201; 7-15 at 131). Sergeant Zeltmann placed each set of envelopes directly into an evidence bag and labeled it. (Docket No. 7-15 at 131). He then searched the confidential informant for money, contraband or weapons-finding nothing. (Docket No. 7-14 at 201).

Sergeants Zeltmann and McCarthy and Officer Deigan then drove to the area of Mansion and Catherine Street, where there was a large police presence because officers were attempting to take a “wanted felon” into custody. (Docket Nos. 7-14 at 202; 7-16 at 9). Sergeant Zeltmann saw Petitioner standing in front of 142 Mansion Street, wearing red shorts, no shirt, and a tattoo that said, “[e]ast Side Blood Gang,” matching the earlier description of Flee. (Docket No. 7-14 at 202-05). During this period, which lasted about ten minutes, Sergeant Zeltmann left the evidence that he had recovered in the car with Officer Deigan. (Id. at 205-06). The car had tinted windows and Officer Deigan stayed in the back seat, laying down so no one walking by would see him. (Docket No. 7-16 at 9). The evidence bags remained in the car, in Sergeant Zeltmann's briefcase. (Id. at 10, 51). Sergeant Zeltmann then returned to the car, and once at headquarters, tested the evidence for the presence of heroin, which was positive. (Docket No. 7-14 at 206, 21516). He then resealed the evidence, completed paperwork, and gave it to the evidence custodian. (Id. at 208).

On July 16, 2010, Sergeant Zeltmann was again working as case agent, with Sergeant McCarthy as assistant case agent, Officer Deigan as the undercover officer, and the same confidential informant. (Docket No. 7-15 at 21-22). Detective Ciardi and Officer Vigna, in separate vehicles, were conducting surveillance. (Id. at 21). Sergeant Zeltmann again outfitted Officer Deigan with a wire. (Docket Nos. 7-15 at 22; 7-16 at 10-11). The confidential informant was not given a button camera this time because, when it was used on July 15, 2010, it had not provided usable images. (Docket No. 7-15 at 22). Officer Deigan and the confidential informant were each supplied with a $20.00 bill from NRU funds. (Docket Nos. 7-15 at 22; 7-16 at 11).

On July 16, 2010, Sergeant Zeltmann monitored the confidential informant while he used his own cell phone to call Petitioner's phone number. (Docket No. 7-15 at 24). During the phone call, which was recorded, the confidential informant arranged a “meet location of C block,” that is, Catherine Street. (Id. at 24-25). The confidential informant and Officer Deigan then drove in the undercover vehicle to Catherine Street. Sergeants Zeltmann and McCarthy followed them for a short period and remained in the vicinity. (Id. at 25). They could hear the voices of Officer Deigan and the confidential informant via transmissions from Officer Deigan's wire. Sergeant Zeltmann heard Petitioner direct them to move up to the parking lot at 53 Catherine Street, which they did. (Docket Nos. 7-15 at 26; 7-16 at 12, 75). At 11:56 a.m., Sergeant Zeltmann heard a voice stating, through the wire transmission, “two for me and two for him.” (Docket No. 7-15 at 26). Shortly thereafter, Petitioner showed up to the passenger side of the window, pulled four bags of heroin from the waistband of his shorts and handed them to the confidential informant. (Docket No. 7-16 at 13, 76). Officer Deigan and the confidential informant each handed over a $20.00 bill. (Id. at 14, 76).

At about 12:06 p.m., Officer Deigan and the confidential informant returned, and met with Sergeant Zeltmann in the parking lot opposite the Mid-Hudson Civic Center. (Docket Nos. 7-15 at 29-30; 7-16 at 76). They shut off the audio transmitting equipment, and Officer Deigan and the confidential informant each handed Sergeant Zeltmann two glassine envelopes with an off-white powder. (Docket Nos. 7-15 at 30; 7-16 at 14-15). The glassine envelopes were placed in evidence bags and labeled. (Docket No. 7-15 at 30). Sergeant Zeltmann field tested the substance, which was positive for heroin. (Id. at 31). He turned over the envelope to the evidence custodian. (Id. at 33).

On January 11, 2011, Petitioner was indicted in Dutchess County on four counts of Criminal Possession of a Controlled Substance in the Third Degree and four counts of Criminal Sale of a Controlled Substance in the Third Degree in relation to his actions. (Docket Nos. 7 ¶ 4; 7-3).⁴ On February 3, 2011, Petitioner was arraigned in the Dutchess County Court, (Docket No. 7-4 at 9), at which time he was represented by appointed counsel Lee Klein. (Docket No. 7 ¶ 5).

4 On the same date, January 11, 2011, the prosecution provided a Voluntary Statement of Disclosure reflecting Petitioner's prior conviction on April 22, 2005, upon his plea of guilty in the Dutchess County Court, to criminal possession of a weapon in the third degree, Penal Law § 265.02(4), a Class D felony. (Docket Nos. 7-4 ¶ 11; 7-4 at 28-37).

B. Pre-Trial Motions and Hearings

Petitioner's counsel, Mr. Klein, filed an omnibus motion on March 30, 2011, seeking:

(1) to examine the grand jury minutes to determine whether the evidence was legally sufficient; (2) to dismiss the indictment and grand jury proceedings as defective; (3) a Dunaway ⁵ hearing, to dismiss the indictment for lack of probable cause to arrest; (4) a Wade ⁶ hearing, for suppression of evidence; (5) an order requiring disclosure of Brady⁷ material; (6) disclosure of any prior crimes or bad acts evidence, so that defendant could request Sandoval and Ventimiglia ⁸ hearings to determine the admissibility of such evidence; and (7) an order striking any reference to the nickname, “LIFE,” as this was not a name that Petitioner used. (Docket Nos. 7 ¶ 5; 7-4 at 3-19).

5 “[A] Dunaway hearing is used to determine whether a statement or other intangible evidence obtained from a person arrested without probable cause should be suppressed at a subsequent trial.” Berry v. Hulihan, No. 08-CV-6557 (LBS), 2009 WL 233981, at *7 (S.D.N.Y. Jan. 28, 2009).

6 “The purpose of a Wade hearing is to determine [before] the trial whether pretrial identification procedures have been so improperly suggestive as to taint an in-court identification.” Lynn v. Bliden, 443 F.3d 238, 248 (2d Cir. 2006), as amended (May 19, 2006).

7 In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that the prosecutor must disclose exculpatory evidence to defense counsel.

8 A Sandoval hearing refers to the New York procedure for determining whether evidence of prior crimes is admissible for impeachment purposes in the event the defendant testifies at trial. People v. Sandoval, 34 N.Y.2d 371 (1974). A Ventimiglia hearing considers whether prior crimes or uncharged criminal conduct is probative, such as to show motive, intent, or identity, and whether the probative value outweighs its prejudicial effect. People v. Ventimiglia, 52 N.Y.2d 350 (1981).

Later, Petitioner relieved Mr. Klein as counsel and, on April 28, 2011, appeared in Dutchess County Court with newly retained counsel Cynthia Kasnia. (Docket No. 7 ¶ 5). On May 27, 2011, Ms. Kasnia advised the court that she had reviewed the omnibus motion and was adopting it. (Docket Nos. 7-6 at 1; 7 ¶ 5). The prosecution opposed the motion and filed a crossmotion. (Docket No. 7-5 at 1-13). The Honorable Peter M. Forman issued a decision on June 28, 2011, granting Petitioner's requests for: (1) a Sandoval hearing; (2) a hearing to confirm whether the confidential informant's identification of Petitioner was confirmatory; (3) an extension of time to bring additional motions; and (4) to remind the prosecution of their Brady obligations. In the same order, Judge Forman also granted the prosecution's request for reciprocal discovery, (Docket No. 7-7 ¶ 6), but denied the remaining requests in the motion, (id. at 1-4). By separate order issued the same day, Judge Forman granted the prosecution's ex parte motion for a protective order delaying discovery of information that would disclose the identity of the confidential informant or the undercover officer. (Docket No. 7-8 at 1-3).

On August 30, 2011, Judge Forman held a pretrial hearing regarding identification testimony. (Docket No. 7-9 at 1-2). At the hearing, Judge Forman stated on the record that the prosecution had offered a plea that would recommend a sentence capped at 10 years, and he indicated that, at that time, he would consider a plea that was a minimum of 6 years and capped at 8 years. (Id. at 5-6). Sergeant Zeltmann then testified regarding Officer Deigan's identification of Petitioner's photo and the confidential informant's selection of Petitioner's photo from an array of six photos. (Id. at 7-39). By Order dated October 4, 2011, Judge Forman denied Petitioner's motion to suppress the identification evidence, holding that there was nothing unduly suggestive in the photo array shown to the confidential informant, that the photograph shown to Officer Deigan was confirmatory and a Wade hearing was unnecessary. (Docket No. 7-10 at 1-4).

C. Trial and Sentence

The parties appeared before the Honorable Victor J. Alfieri on November 29, 2011, and a Sandoval hearing was held regarding the admissibility of prior bad acts and convictions. (Docket No. 7-11 at 11-18).⁹ Judge Alfieri then granted Petitioner's application to adjourn the trial to the following day so Petitioner could retain new counsel. (Id. at 27-38). Petitioner's proposed new counsel appeared on November 30, 2011, and indicated that, based on the established trial schedule, they could not represent him. (Id. at 40-44). Petitioner thus continued to be represented by Ms. Kasnia. That same day, jury selection was set to commence. (Id. at 44).

9 The court held that if Petitioner took the stand, the prosecution could ask whether he was convicted of a crime on April 22, 2005, but the court would instruct the jury that they could not speculate about the nature of the crime. (Docket No. 7-11 at 17). The court would also permit questioning on Petitioner's April 11, 2011 third degree assault conviction, (Id. at 18), but denied the prosecution's application to use evidence of other crimes or immoral acts. (Id. at 18).

Before jury selection, Ms. Kasnia raised the issue of a plea deal, and Judge Alfieri cautioned Petitioner that he “could be looking at a considerable amount of time, something in excess of 20 years” because some or “all of [the charges] could be run consecutively.” (Docket No. 7-12 at 4). Judge Alfieri stated that, in exchange for a guilty plea, he could promise a sentence of 12 years' incarceration, though he would consider a sentence of 10 years' incarceration “on a good to excellent probation report.” (Id.). Judge Alfieri gave Ms. Kasnia an opportunity to speak with Petitioner about the plea offer. After a brief recess, jury selection began. (Id. at 4-6).

Late in the afternoon, Ms. Kasnia noted that court officers had excluded Petitioner's friends and family from the courtroom at one point during jury selection. (Id. at 192.) Judge Alfieri stated, “[y]ou have to tell me that it's going on or I can't do anything.” (Id. at 192). Ms. Kasnia stated:

At this point, I'm not making an issue because it's jury selection. They've been very cooperative. Nobody has pushed back. When there is room, the court officers are kind enough, like ushers, to let them know there's enough room. To get things moving I want to let everyone know going forward no one tried to contact a witness, approach a witness. These boys are not here to do that. They're not here to do that.

(Id. at 192-93). Judge Alfieri added:

I just will to say [sic] for the record so it's clear on this - and it's a pretty important issue - that I haven't closed the courtroom. And when I saw what I thought may have been an officer telling someone they couldn't come in, I sent the clerk over immediately to tell the officer that this is an open courtroom. They have to let them in.

(Id. at 193).

Jury selection continued on December 1, 2011, and by the end of the day, 11 jurors had been selected and sworn in. (Docket No. 7-13 at 143). On December 2, 2011, the jury was finalized and the parties gave their opening statements. (Docket No. 7-14 at 158-167). Sergeant Zeltmann testified on December 2 and 5, 2011. (Docket Nos. 7-14 at 168-219; 7-15 at 3-81). This was followed by testimony from Verizon Wireless records custodian Cherylene Paddock regarding calls made on July 15 and 16, 2010, to a cell phone number registered to customer Maurene S. Estriplet. (Docket No. 7-15 at 82-94). Officers Vigna and Deigan then testified about their roles on July 15 and 16, 2010, and a surveillance video and still photos were offered into evidence. (Id. at 100-121, 122-29, 169).

During a break in Office Deigan's testimony, a juror asked to speak to Judge Alfieri. (Id. at 139). She explained that, when she returned from lunch, she saw a spectator in the courtroom, Andrew Hardy, who she knew from Poughkeepsie High School and with whom she was friends on Facebook. (Id. at 139-40, 141). The juror expressed concern that she would know others who might come to court to support Petitioner, or that the spectator might try to message her on Facebook. (Id. at 140-41). She stated that she was “very well-known” at Poughkeepsie High School and that she was “very easily pointed out.” (Id. at 142). The prosecutor asked the juror if she would be influenced by people contacting her about the case, and she responded that it “would feel a little awkward, I think.” (Id.). The juror explained that she did not fear for her safety but did “fear the validity of this case” if people were saying, “by the way, [this particular juror] is on the jury.” (Id.). Andrew Hardy was a friend of her brother and knew both the juror and her family. The juror stated that, as soon as she recognized him, she “felt uncomfortable” and felt her face get red. (Id. at 143). In response to the prosecutor's question about whether this would “color her thinking,” the juror responded that she did not want to “sway anything.” (Id. at 140). She elaborated:

Not that I think it's going to influence my decision, but I don't want to be in Poughkeepsie next month and have someone say, oh hey, you were on Michael's jury. Whatever happened to him. Because that's not their business. And I feel like so many people are going to keep questioning me about it. I understand my civic duty, but I don't think it's really fair to me.

(Id. at 143-44).

Asked whether she might experience “a backlash,” the juror said, “[k]ind of.” (Id. at 144). She added, “I'm not like afraid. I'm just uncomfortable.” (Id. at 144). She summarized, “I don't like being on this jury because I know [the defendant's] friends,” and she asked to “be excused if that's a possibility.” (Id. at 145-46).

Defense counsel objected to removing the juror, arguing that she had not indicated that she was afraid, that she was merely seeking “a way to get out,” and that every juror faces the possibility that “the world” may not agree with the jury's decision. (Id. at 147). The prosecution argued that the juror made it clear that she was uncomfortable; that she expected “some kind of feedback” for whatever decision she made; that she was “connected to [the] case in a way that a fair and impartial juror should not be;” and that she had asked to be excused. (Id. at 148-49).

Defense counsel responded that Andrew Hardy, the spectator known to the juror, had been present during jury selection - except during the period when Petitioner's “support network” was excluded for a period and remained in the hallway because “there wasn't room for them in the courtroom” due to the number of prospective jurors. (Id. at 149-50). Defense counsel pointed out that the juror failed to raise the issue when she had an opportunity to do so. Judge Alfieri noted that the juror appeared to be upset and doubted she could be a “fair and impartial juror at this point in time, having to worry about who she's facing on the outside if she arrives at one verdict or another.” (Id. at 151). When asked, the juror agreed that there was “definitely” a likelihood that she could not be a fair and impartial juror. Therefore, Judge Alfieri granted the prosecution's motion to exclude her. (Id. at 151-52). An alternate juror was then seated, and Officer Deigan's testimony continued. (Id. at 153-54).

Trial resumed on December 7, 2011. Defense counsel had requested redactions to another surveillance video offered, which had been synced with the audio. After these redactions, the synced version of the surveillance video was played for the jury. (Docket No. 716 at 8). Officer Deigan's testimony continued, and a stipulation about the handling of drug evidence was read to the jury. (Id. at 2-4, 33). After Officer Deigan's testimony concluded, the confidential informant took the stand. (Id. at 56-90). Thereafter, Officer Thomas Mathews, who booked Petitioner on February 2, 2011, testified that he photographed Petitioner's tattoos. (Id. at 91-95). Just before ending for the day, defense counsel stated that Petitioner's friends had been escorted out of the courtroom “a few moments ago.” (Id. at 97). At a sidebar on the issue, the court officer explained:

Initially, there were two gentlemen in the back and there was a third gentleman sitting right in front of him.... The guy on the right-hand side was telling the defendant that the guy in front of him was a police officer. I signaled to the other

officer to just keep an eye out for what was going on back there. He asked him to leave. They stepped out. And one of the guys, I don't know, because they both look pretty similar. One of the guys started lipping off. They were told they couldn't come back in.

(Id. at 98).

Judge Alfieri told the court officer:

I have to make sure that the courtroom is always kept open. And only for very good reason can I close the courtroom or have anybody omitted from the courtroom. So, please, if anything like that happens in the future, let's have a side bar on that....I'll make the decision in the future whether somebody should be escorted out of the courtroom.

(Id. at 99).

Judge Alfieri told defense counsel, “I want to make it clear. You tell those people they can come back into this courtroom. It's an open courtroom....[I]t's not closed to them despite the fact they may have been escorted out.” (Id. at 100). The judge acknowledged that attempting to talk to or signal Petitioner could be grounds for removal but that he would hold a hearing before doing so. (Id.). The court officer interjected that not only had the individuals been signaling Petitioner, once they were outside the courtroom, they were “cursing” and “raising a ruckus.” (Id. at 101-02).

The court officer also clarified that he had asked only “the gentleman in the red pants” to step outside the courtroom for a moment to “stop them from talking to the defendant during the proceeding.” (Id.). The court officer had also “called his superior officer from downstairs to come up” to explain the court rules. (Id. at 109). The other man came outside without having been asked. Before the court officer could explain, the man in red pants began cursing and then walked out of the building. (Id. at 101-02). The court officer “did not tell them to leave, did not escort them out.” (Id. at 109). Before trial ended for the day on December 7, 2011, the prosecutor noted for the record that the courtroom had not been closed and that the individual was “just asked to step out to address [an] issue.” (Id. at 103). Defense counsel later agreed that the individuals, whom she referred to as “the Hardy brothers” had not been “barred from the courtroom,” and they were “free to come back in.” (Id. at 110).

Trial was set to resume at on December 9, 2011, at 9:30 a.m., for the final day, but Petitioner did not show up. (Id. at 96, 105-06, 124). At 10:20 a.m., when Petitioner had still not arrived, efforts were made to locate him, including contacting hospitals and having Judge Alfieri issue a warrant for Petitioner's arrest, with instructions to bring him directly to court. (Id. at 10608). At 11:20 a.m., defense counsel detailed, on the record, her efforts to contact Petitioner, including calling him and his mother, as well as local hospitals. (Id. at 111-14). Defense counsel noted that Petitioner knew the proceedings were set to begin that day at 9:30 a.m. (Id. at 114). She later added that she had texted Andrew and Aaron Hardy, who had visited Petitioner in jail, to locate Petitioner, but Aaron Hardy responded that they had no information about his whereabouts. (Id. at 123).

Detective Ciardi took the witness stand to describe efforts to execute the arrest warrant to bring Petitioner to court: Officer Matthews went to Petitioner's home address, but the individual who answered stated that Petitioner was not home and denied the officer's request to search the residence. (Id. at 115-17). The warrant for Petitioner was entered into the NYSPIN terminal. (Id. at 117-18). Efforts were made to contact Petitioner at the phone number listed in City of Poughkeepsie records and to contact others with connections to Petitioner's home address. (Id. at 118-19). In addition, the Poughkeepsie Police Department determined that Petitioner had not been involved in an accident. (Id. at 117-19, 120-21). After hearing this testimony, Judge Alfieri concluded that “the evidence supports the fact that the defendant has willfully absented himself from this trial.” (Id. at 125). He determined that trial would proceed and instructed the jury not to take Petitioner's absence from the courtroom that day into consideration in arriving at a verdict. (Id. at 125, 128-29).

Detective Ciardi then testified about his role in the events of July 15 and 16, 2010. (Docket Nos. 7-16 at 129-156; 7-17 at 1-4). The People entered into evidence an expenditure voucher for payment to the confidential informant. (Docket No. 7-17 at 4-5). Defense counsel moved to dismiss the indictment on the ground that the government had failed to proffer evidence on each element of the crime. (Id. at 6). The prosecution pointed to the evidence that had been offered at trial, and Judge Alfieri denied the motion to dismiss. (Id. at 6-7). Defense counsel noted that, before his absence, she and Petitioner had not yet decided whether he would testify but since he was not present, the issue was moot. (Id. at 7-8). Defense counsel entered two exhibits into evidence. (Id. at 8). Judge Alfieri indicated that defense counsel could have an additional hour to continue attempting to locate Petitioner and that, if he was unavailable, summations could proceed in the afternoon. (Id. at 9).

Petitioner still did not appear, and defense counsel delivered her summation that afternoon. In closing, she asked jurors to remember that Petitioner is a husband, a father, and a son. (Id. at 22). The prosecutor stated the following in her summation:

[T]here is no evidence that he's a father. There's no evidence that he's a husband. We have no idea if he has children. What we do know is he's a drug dealer. This defendant makes his money off of the misery of people's addictions and because of people like the defendant the addicts are able to purchase drugs freely and openly on the streets of Poughkeepsie in broad daylight, and the defendant brings these people to his own neighborhood.

(Id. at 23).

During her summation, the prosecutor used a slide show of exhibits that had previously been put in evidence but now contained circled or highlighted information. Defense counsel objected that it was “highly prejudicial” for the prosecution to show photographs and other materials in summation that had “been altered” and thus constituted “new demonstrative evidence.” (Id. at 29, 31). Judge Alfieri stated that he did not “find anything improper about” highlighting and overruled the objection, but stated that he would consider a proposed instruction to the jury about the issue. (Id. at 32-33). Jury instructions were then finalized with an instruction not to draw any inferences from Petitioner's absence from the courtroom that day, and Judge Alfieri charged the jury. (Id. at 33-50, 51). On December 12, 2011, the jury returned a unanimous verdict, finding defendant guilty on all eight counts of the indictment. (Docket Nos. 7 ¶ 11; 7-17 at 123-25).

On March 8, 2012, Petitioner appeared in the Dutchess County Court for sentencing before Judge Alfieri. (Docket No. 7-18 at 2). Defense counsel did not controvert the allegations in the second felony offender statement regarding Petitioner's 2005 conviction, upon his guilty plea, for criminal possession of a weapon in the third degree, N.Y. Penal Law § 265.02(4). (Docket Nos. 7-4 at 10; 7-4 at 32; 7-18 at 3-4). The prosecution requested - based on Petitioner's criminal history, including his present violations of an order of protection, his inability to be deterred, and his conduct during trial demonstrating his disregard for the criminal justice system (e.g. absconding, and requiring the intervention of a S.W.A.T. team to bring him into custody) - the maximum sentence, to be served consecutively. (Docket No. 7-18 at 8). Defense counsel objected to the prosecution's reliance on uncharged conduct, requested leniency, and asked the court not to consider the request for consecutive sentences. (Id. at 9-11).

Judge Alfieri noted that Petitioner's record demonstrated a need for “removal from society” because it showed that Petitioner “has not been deterred.” (Id. at 14). Judge Alfieri also invoked what he referred to as the “somewhat antiquated” concept of retribution, based on the “ramifications from the sale of drugs far beyond the actual sale itself,” including on the local community. (Id.). On the first four counts of the indictment, relating to the possession and sale of heroin on July 15, 2010, Judge Alfieri sentenced Petitioner to concurrent ten-year terms of imprisonment, followed by three years of post-release supervision. (Docket No. 7 ¶ 12). On counts five through eight of the indictment, relating to the sale and possession of heroin on July 16, 2010, Petitioner was also sentenced to concurrent ten-year terms of imprisonment, followed by three years of post-release supervision. (Docket Nos. 7 ¶ 12; 7-18 at 16-17). The sentences on counts one through four were to run consecutively to the sentences under counts five though eight, for an aggregate sentence of 20 years' imprisonment, to be followed by three years of postrelease supervision. (Docket Nos. 7 at 7, ¶ 13; 7-18 at 16-19).

D. Direct Appeal

A notice of appeal was filed on March 20, 2012. (Docket Nos. 7-19 at 1; 7 ¶ 14).

Attorney Neil Futerfas was assigned to represent Petitioner on direct appeal, (Docket No. 7 ¶ 15), and he raised the following issues: (1) Petitioner was deprived of his right to an open and public courtroom when court officers removed his family and friends from the courtroom, in violation of the Fourth and Fourteenth Amendments, (Docket No. 7-20 at 28); (2) the court erred in proceeding with the trial in Petitioner's absence, in violation of the Fourth and Fourteenth Amendments, (i) where the court had never provided a “Parker warning” that trial could proceed in his absence, and (ii) without having considered an adjournment, given that the only remaining witness was one police officer, who was unlikely to become unavailable, (Id. at 30-32); (3) the prosecutor's summation deprived Petitioner of due process, in violation of the Fourth and Fourteenth Amendments, since the People: (i) improperly disparaged defense evidence, (ii) asked the jurors to become protectors, enforcers, and punishers rather than fact-finders; and (iii) emphasized certain portions of the record through highlighting, to an extent that constituted prejudice, (Id. at 32-37); (4) the sentence was harsh and excessive in violation of the Fourteenth Amendment, (Docket No. 7-20 at 37-38); (5) the court erred in dismissing a sworn juror, over defense counsel's objection, in violation of the Fourteenth Amendment, (Id. at 46-47); and (6) the combination of these errors rendered the proceeding fundamentally unfair, in violation of the Fourteenth Amendment, (Id. at 48-49).

The government filed a brief in opposition, (Docket No. 17-21), and on February 15, 2017, the Supreme Court of the State of New York, Appellate Division, Second Judicial Department (“Appellate Division”) affirmed the conviction. See People v. Williams, 47 N.Y.S.3d 421 (2d Dep't 2017). Appellate Counsel raised the same issues in his application for leave to appeal to the New York Court of Appeals, (Docket No. 7-23 at 1), and on April 10, 2017, added additional arguments about the use of the Power Point slides during summation, (Docket No. 726). The government opposed the application for leave to appeal, (Docket No. 7-25 at 1-4), and on May 12, 2017, the New York Court of Appeals denied the application. People v. Williams, 29 N.Y.3d 1038 (2017).

E. N.Y. C.P.L. § 440 Motion

Petitioner submitted a pro se motion under N.Y. Crim. Proc. Law (“C.P.L.”) § 440.10 on September 5, 2017. (Docket No. 7-28 at 1-81). He argued that defense counsel was ineffective during plea negotiations in failing to advise him that his maximum sentence exposure was 25 years - not 15 years, as he understood - causing him to reject the initial plea offer of six to eight years. (Id. at 2-4). The trial court had stated that the maximum sentence for a Class B felony as a second felony offender was 15 years. (Id. at 2-4). Petitioner asserted that “[i]f he had known he could end up with a 20 yea[r] sentence he would have accepted the 6 to 8 plea deal.” (Id. at 6).

The government opposed the motion on the grounds that: (1) the plea negotiation issue was apparent from the record and could have been raised on direct appeal; (2) the trial court had advised Petitioner on the record of the plea offers, which he rejected; (3) the trial court properly stated, in the context of a possible plea to a Class B felony, that the maximum sentence for a Class B felony as a second felony offender was 15 years; and (4) the trial court explicitly told Petitioner “he faced a sentence in excess of twenty years if convicted of all eight counts.” (Docket No. 7-29 at 2). In reply, Petitioner argued that if he had understood that he faced a possible sentence of 120 years due to the possibility of consecutive sentences he would have accepted the 6 to 8 year plea offer. (Docket No. 7-30 at 1-6).

By order, dated February 8, 2018, Judge Peter M. Forman denied the motion. (Docket No. 7-31 at 1-5). Judge Forman agreed with the government that the alleged misstatement about the maximum sentence for a Class B felony being 15 years appeared on the record and was required to have been raised on direct appeal. Judge Forman further held that when the trial court explicitly conveyed that sentences could run consecutively if Petitioner were convicted of multiple counts, and that he faced a maximum prison sentence “in excess of 20 years,” Petitioner did not “assert that this was new information” and did not accept the plea offer of a 12-year cap. (Id. at 4-5).

There is no indication that Petitioner appealed the denial of his §440.10 motion to the Appellate Division, nor does he raise ineffective assistance of counsel during plea negotiations as a ground for habeas relief. (See Docket No. 1).

F. The Instant Petition

Petitioner filed the instant Petition on March 6, 2018. (Id. at 16). The Petition sets forth six grounds for relief - the same six that he raised on direct appeal and in his application to the Court of Appeals for leave to appeal.¹⁰ The six grounds are that: (1) he was deprived of his constitutional right to a public trial when his supporters were excluded from the courtroom, (the “Public Trial Claim”); (2) the trial court violated his constitutional right to be present when it proceeded with trial during his absence on the last day of testimony, (the “Trial In Absentia Claim”); (3) prosecutorial misconduct during summation deprived him of a fair trial, (“Prosecutorial Misconduct Claim”); (4) his sentence is excessive, (the “Excessive Sentence Claim”); (5) discharging a sworn juror deprived him of his constitutional rights, (the “Juror Discharge Claim”); and (6) cumulative errors deprived him of a fair trial.

10 The Petition does not reference his September 5, 2017 § 440.10 motion and erroneously states that Petitioner did not bring any applications challenging the conviction other than the direct appeal. (Docket No. 1 at 4, ¶ 10).

The Petition refers to and attaches pages from Petitioner's appellate brief, which made the same arguments raised in the Petition, and the Court liberally construes the Petition to incorporate by reference all of the arguments raised in the appellate brief. See Bernardez v. Graham, No. 11 Civ. 6463 (NSR)(JCM), 2015 WL 13236701, at *5 (S.D.N.Y. Nov. 3, 2015); Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010) (Pro se petitioner “is entitled to special solicitude - meaning, his arguments will be liberally construed.”)

II. APPLICABLE LAW

“The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996” (“AEDPA”). Harrington v. Richter, 562 U.S. 86, 97 (2011). “Before a federal district court may review the merits of a state criminal judgment in a habeas corpus action, the court must first determine whether the petitioner has complied with the procedural requirements set forth in 28 U.S.C. §§ 2244 and 2254.” Visich v. Walsh, No. 10-CV-4160 (ER)(PED), 2013 WL 3388953, at *9 (S.D.N.Y. July 3, 2013).¹¹

11 If Petitioner does not have access to cases cited herein that are available only by electronic database, then he may request copies from Respondent's counsel. See Local Civ. R. 7.2 (“Upon request, counsel shall provide the pro se litigant with copies of such unpublished cases and other authorities as are cited in a decision of the Court and were not previously cited by any party.”)

A. Exhaustion

A habeas petition may not be granted unless the petitioner has exhausted his claims in state court. See 28 U.S.C. § 2254(b). As the statute prescribes:

(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 State corrective process; or

(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

...

(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.

28 U.S.C. § 2254(b)-(c).

Exhaustion requires a prisoner to have “fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts.” Turner v. Artuz, 262 F.3d 118, 123 (2d Cir. 2001) (internal quotations omitted). If a petitioner “cites to specific provisions of the U.S. Constitution in his state court brief, the petitioner has fairly presented his constitutional claim to the state court.” Davis v. Strack, 270 F.3d 111, 122 (2d Cir. 2001); see also Reid v. Senkowski, 961 F.2d 374, 376 (2d Cir. 1992) (even “a minimal reference to the Fourteenth Amendment” presents a federal constitutional claim to the state courts).

A petitioner may fairly present his claim even without citing to the U.S. Constitution, by, inter alia: “(a) [relying] on pertinent federal cases employing constitutional analysis, (b) [relying] on state cases employing constitutional analysis in like fact situations, (c) [asserting] . . . [a] claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) [alleging] . . . a pattern of facts that is well within the mainstream of constitutional litigation.” Daye v. Attorney Gen. of State of N.Y., 696 F.2d 186, 194 (2d Cir. 1982). Fair presentation includes petitioning for discretionary review in the state's highest appellate court. See O'Sullivan v. Boerckel, 526 U.S. 838, 839-40 (1999) (“[A] state prisoner must present his claims to a state supreme court in a petition for discretionary review in order to satisfy the exhaustion requirement[.]”).

B. Adequate and Independent State Law Ground

“It is well established that federal courts will not review questions of federal law presented in a habeas petition when the state court's decision rests upon a state-law ground that ‘is independent of the federal question and adequate to support the judgment.'” Cone v. Bell, 556 U.S. 449, 465 (2009) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)). “A state court decision will be ‘independent' when it ‘fairly appears' to rest primarily on state law.” Taylor v. Connelly, 18 F.Supp.3d 242, 253 (E.D.N.Y. 2014) (quoting Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir. 2006)). Typically, a ground is adequate “only if it is based on a rule that is ‘firmly established and regularly followed' by the state in question.” Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999) (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)); see also Cotto v. Herbert, 331 F.3d 217, 239 (2d Cir. 2003).

C. AEDPA Standard of Review

When a federal court reaches the merits of a habeas petition, AEDPA prescribes a “highly deferential” standard for reviewing state court rulings. Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997); see also Fischer v. Smith, 780 F.3d 556, 561 (2d Cir. 2015) (quoting Richter, 562 U.S. at 98). An application for a writ of habeas corpus:

shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1)-(2).

Courts have interpreted the phrase “adjudicated on the merits” in AEDPA as meaning that a state court “(1) dispose[d] of the claim ‘on the merits,' and (2) reduce[d] its disposition to judgment.” Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001). Courts examine the “last reasoned decision” by the state courts in determining whether a federal claim was adjudicated on the merits. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (noting the presumption that “[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground”). “[W]hen a state court issues an order that summarily rejects without discussion all the claims raised by a defendant, including a federal claim that the defendant subsequently presses in a federal habeas proceeding, the federal habeas court must presume (subject to rebuttal) that the federal claim was adjudicated on the merits.” Johnson v. Williams, 568 U.S. 289, 293 (2013) (citing Richter, 562 U.S. at 86). The same presumption applies when “a state court rules against the defendant and issues an opinion that addresses some issues but does not expressly address the federal claim in question.” Id at 292. This “presumption is a strong one that may be rebutted only in unusual circumstances.” Id. at 302.

If a state court adjudicates a federal claim on the merits, the Court must apply AEDPA deference to that state court ruling. See 28 U.S.C. § 2254(d)(1)-(2). In the context of AEDPA deference, the phrase “clearly established Federal law” means “the holdings, as opposed to the dicta, of [the Supreme Court of the United States'] decisions as of the time of the relevant statecourt decision.” Williams v. Taylor, 529 U.S. 362, 365 (2000) (internal quotations omitted). “A state court decision is contrary to such clearly established federal law if it applies a rule that contradicts the governing law set forth in the Supreme Court's cases or if the state court confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from its precedent.” Lewis v. Conn. Comm'r of Corr., 790 F.3d 109, 121 (2d Cir. 2015) (quotation marks and citations omitted).

A state court decision involves an “unreasonable application” of Supreme Court precedent if: (1) “the state court identifies the correct governing legal rule from [Supreme Court] cases but unreasonably applies it to the facts of the particular state prisoner's case,” or (2) “the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Williams, 529 U.S. at 407. For a federal court to find a state court's application of Supreme Court precedent unreasonable, the state court's decision must have been more than incorrect or erroneous-it must have been “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003). In other words, a state court's decision “that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Richter, 562 U.S. at 101 (citation omitted). However, “the trial court's decision need not teeter on ‘judicial incompetence' to warrant relief under § 2254(d).” Alvarez v. Ercole, 763 F.3d 223, 229 (2d Cir. 2014) (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)). If a state court decision does not contain reasons for the dismissal of a defendant's federal claim, the Court must consider “‘what arguments or theories . . . could have supported[ ] the state court's decision,' and may grant habeas only if ‘fairminded jurists could [not] disagree that those arguments or theories are inconsistent with the holding in a prior decision of' the Supreme Court.” Lynch v. Superintendent Dolce, 789 F.3d 303, 311 (2d Cir. 2015) (alterations in original) (citation omitted).

III. DISCUSSION

A. Public Trial Claim

Petitioner asserts that he was deprived of an open and public courtroom in violation of his rights under the Sixth and Fourteenth Amendments due to the exclusion of his family and friends from the courtroom. (Docket No. 1 at 6, 31, 41). Petitioner's supporters were excluded from the courtroom on two occasions: (1) on December 1, 2011, during jury selection, (Docket No. 7-12 at 192), and (2) on December 7, 2011, during trial, (Docket No. 7-16 at 110).

1. Exhaustion

When raising this claim on direct appeal, Petitioner's appellate brief explicitly invoked the U.S. Constitution and discussed the claim in federal constitutional terms.¹² (Docket No. 7-20 at 32). The People responded that Petitioner: (1) had not preserved the Public Trial Claim for appellate review by contemporaneously objecting to the court officer's actions; (2) the courtroom had not actually been closed; and (3) the court officer's actions had been proper to preserve decorum. (Docket No. 17-21 at 22-28). The Appellate Division found that the claim was unpreserved, and it addressed the Public Trial Claim on the merits. (Docket No. 7-22). Petitioner appealed the Appellate Division's decision on the Public Trial Claim to the New York Court of Appeals. (Docket No. 7-27). Therefore, the Court finds that this claim has been fully exhausted.

12 The Petition and appellate brief both refer to this argument in terms of violations of Petitioner's rights under “U.S. Const. Amend. iv, xiv.” (Docket No. 1 at 6, 31). Because a public trial claim implicates the Sixth Amendment, but not the Fourth Amendment, this appears to be a typographical error. The Court liberally construes the Petition as asserting the Public Trial Claims under the Sixth and Fourteenth Amendments.

2. Reasonable determination of the facts

The Appellate Division issued the last reasoned decision on Petitioner's Public Trial Claim stating in relevant part:¹³

13 “Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.” Ylst, 501 U.S. at 803.

Contrary to the defendant's contention, his right to a public trial was not violated by the temporary exclusion of members of the public from the courtroom owing to overcrowding, or the removal from the courtroom by court officers of two of the defendant's friends who were communicating with the defendant during the trial.

Williams, 47 N.Y.S.3d at 422 (citations omitted).

Applying AEDPA deference, the Court considers whether the state court's adjudication on the merits “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,” or “was contrary to, or involved an unreasonable application of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1)-(2).

First, as to the exclusion during jury selection, the Appellate Division found that Petitioner's “right to a public trial was not violated by the temporary exclusion of members of the public from the courtroom owing to overcrowding ....” Williams, 47 N.Y.S.3d at 422. The Appellate Division's finding is consistent with the underlying facts. The evidence indicates that:

(1) Petitioner's supporters were asked to remain in the hallway at one point during jury selection because “there wasn't room for them in the courtroom because we were filling the room up with prospective jurors,” (Docket No. 7-15 at 149-50); and (2) the judge specifically stated, “I haven't closed the courtroom. And when I saw what I thought may have been an officer telling someone they couldn't come in, I sent the clerk over immediately to tell the officer that this is an open courtroom. They have to let them in,” (id. at 193). Therefore, the Appellate Division's determination of the facts was not unreasonable in light of the evidence.

Second, as to the exclusion during trial, the Appellate Division held that Petitioner's right to a public trial was not violated by the temporary removal of two of Petitioner's friends who were “communicating with [him] during the trial.” Williams, 47 N.Y.S.3d at 423. This finding is consistent with the evidence before the Appellate Division that: (1) a court officer testified that, “[t]hey were signaling” Petitioner, (Docket No. 7-16 at 101-02); (2) the prosecutor noted for the record that one individual was “just asked to step out to address [an] issue” and the other followed, (id. at 103); (3) the trial court stated that efforts by spectators to “talk to or signal defendant would obviously subject them to removal” but that he would hold a hearing before doing so, (id. at 103); and (4) defense counsel's statement that these individuals had been escorted out “a few moments ago,” (id. at 97), and her later concession that the individuals had not been “barred from the courtroom,” and were “free to come back in,” (id. at 110). Therefore, the Appellate Division's factual determination was not unreasonable given the record evidence.

3. Not contrary to, or an unreasonable application of, federal law

The Appellate Division's findings that these exclusions did not violate Petitioner's Sixth Amendment rights were not contrary to, nor an unreasonable application of, clearly established federal law as determined by the Supreme Court:

The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions.

Waller v. Georgia, 467 U.S. 39, 46 (1984) (citations omitted). The Supreme Court has recognized, however, that “the right to an open trial may give way in certain cases to other rights or interests, such as the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information.” Id. at 45. Petitioner argues that: (1) the exclusion was not de minimis; (2) although the trial judge was not contemporaneously aware of the exclusion, the court officer “usurped the judicial function;” and (3) heightened scrutiny of the exclusion was warranted given the “sensitivity” of access by family and friends. Petitioner's arguments are contrary to established law. See, e.g., Rodriguez v. Miller, 537 F.3d 102, 108-09 (2d Cir. 2007) (“Waller does not demand a higher showing before excluding a defendant's friends and family.”); Gibbons v. Savage, 555 F.3d 112, 116 (2d Cir. 2009) (“[N]either Waller nor any other Supreme Court holding acknowledged the appropriateness of a different standard for the exclusion of family members than for the exclusion of the general public, [and] an inferior court may not justify a grant of habeas corpus relief . . . by reference to such a heightened standard”).

The Supreme Court established in Waller, a four-part test for determining if courtroom closure is warranted: (1) “the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced” if the courtroom is not closed, (2) “the closure must be no broader than necessary to protect that interest,” (3) “the trial court must consider reasonable alternatives to closing the proceeding,” and (4) the trial court “must make findings adequate to support the closure.” Id. at 48. First, applying the Waller test here, the courtroom was never closed. Second, assuming arguendo, that the temporary exclusion of some members of Petitioner's friends and family constitutes closure, the reason the court officers did so was to advise spectators of the rule against communicating with the accused, which is within the recognized interest in maintaining decorum in the courtroom. See, e.g., Illinois v. Allen, 397 U.S. 337, 343 (1970) (allowing the accused to be removed from the courtroom for unruly behavior). Third, the exclusion - which was temporary and limited to the spectators who communicated with the accused - was not broader than necessary. In fact, the presiding judge specifically stated that, “I have to make sure that the courtroom is always kept open....I'll make the decision in the future whether somebody should be escorted out of the courtroom.” (Docket No. 7-16 at 99). The presiding judge also told defense counsel, “I want to make it clear. You tell those people they can come back into this courtroom. It's an open courtroom....[I]t's not closed to them despite the fact they may have been escorted out.” (Id. at 100). Under the Waller factors, there has been no violation of Petitioner's Sixth Amendment rights.

Some district courts have concluded that “the Waller factors . . . only apply when there has been [a] decision by the court to close the courtroom.” DeFreitas v. Kirkpatrick, No. 16-CV-638 (LEK)(ATB), 2017 WL 2348776, at *10 (N.D.N.Y. May 3, 2017), report and recommendation adopted, 2017 WL 2345663 (N.D.N.Y. May 30, 2017); Baker v. Fischer, No. 11-CV-6295 (MAT), 2012 WL 1909286, at *7 (W.D.N.Y. May 25, 2012) (noting that the Supreme Court has “never applied the Waller factors in the context of a targeted closure, i.e., closure of a courtroom only to specific individuals such as some but not all of defendant's family members or friends”). Instead, these courts evaluated whether a particular targeted exclusion undermines the values that the Supreme Court has articulated that the Sixth Amendment aims to protect. Carson v. Fischer, 421 F.3d 83, 92-93 (2d Cir. 2005) (citing Peterson v. Williams, 85 F.3d 39, 43 (2d Cir. 1996)). These values include: “1) to ensure a fair trial; 2) to remind the prosecutor and judge of their responsibility to the accused and the importance of their functions; 3) to encourage witnesses to come forward; and 4) to discourage perjury.” Peterson, 85 F.3d at 43 (citing Waller 467 U.S. at 46-47).

Here, the exclusion from the courtroom was inadvertent and brief, the proceedings during the periods of exclusion concerned collateral issues and transcripts of the proceedings were available to the public. In similar situations, the Second Circuit has concluded that the Sixth Amendment was not violated. See, e.g., Peterson, 85 F.3d at 44 (“[I]n the context of this case, where the closure was 1) extremely short, 2) followed by a helpful summation, and 3) entirely inadvertent, the defendant's Sixth Amendment rights were not breached.”); Brown v. Kuhlmann, 142 F.3d 529, 545 (2d Cir. 1998) (finding that a deliberate courtroom closure during a police officer's testimony was “not substantial enough to undermine the values furthered by the public trial guarantee” because the officer's testimony was cumulative of other witnesses' testimony, it concerned a collateral issue, and transcripts of the trial were publicly available). Therefore, the Appellate Division's determination that Petitioner's Sixth Amendment rights were not violated as a result of the temporary exclusions during jury selection and trial due to overcrowding and a spectator's communication with Petitioner was not contrary to, nor an unreasonable application of, clearly established federal law.

Accordingly, I conclude and respectfully recommend that Petitioner's Public Trial Claim be denied.

B. Trial In Absentia

Petitioner contends that the trial court violated the U.S. Constitution when it continued the trial in his absence.¹⁴ He argues that continuing a trial in absentia is not automatic; that the trial court failed to consider alternatives, such as rescheduling the trial until the warrant was executed (particularly given that the only trial witness remaining was a police officer who was not likely to become unavailable); and that the trial court had failed to provide him a “Parker warning,” People v. Parker, 57 N.Y.2d 136 (1982), that the trial could proceed in his absence.

14 In the Petition, Petitioner cites to “U.S. Const. Amend. iv, xiv” for his claim that he was tried in absentia in violation of his constitutional rights. (Docket No. 1 at 8). This appears to be a typographical error because the right to be present at trial implicates the Sixth Amendment, not the Fourth Amendment. Therefore, the Court liberally construes the Petition as asserting claims under the Sixth Amendment.

1. Exhaustion

Petitioner explicitly invoked the Sixth Amendment in his appellate brief, (Docket No. 720 at 29), even though his “Parker warning” argument relied on state law. Petitioner also raised this claim to the Court of Appeals, when he asserted all of the claims raised in his appellate brief in his leave application. Thus, he has exhausted his Trial In Absentia claim by presenting the claim to both the Appellate Division and Court of Appeals. The Appellate Division addressed this claim on the merits as follows:

[A]fter the defendant absconded during the trial, the County Court properly continued the trial in his absence. Although a defendant has a fundamental right to be present at all material stages of his trial, he may forfeit that right by deliberately absenting himself from the proceedings.

When a defendant is absent from the courtroom after trial has begun, the court should inquire and recite on the record the facts and reasons it relied upon in determining that the defendant's absence was deliberate before proceeding in the defendant's absence.

Here, the record supports the court's determination, made after an inquiry, that the defendant's absence at the time his trial reconvened was deliberate and that,

therefore, his conduct “unambiguously indicate[d] a defiance of the processes of law” sufficient to effect a forfeiture of his right to be present.

Williams, 47 N.Y.S.3d at 422-23 (internal citations omitted).

2. Reasonable determination of facts

The Appellate Division's conclusion - that the record supported the trial judge's finding that Petitioner's absence was deliberate - was not an unreasonable determination of the facts in light of the evidence. The record establishes that Petitioner had been advised of the time and place of trial. (Docket No. 7-16 at 96). Defense counsel stated that Petitioner had not attempted to reach her, that his family and friends did not provide any information about his whereabouts and that she confirmed that Petitioner was not hospitalized in nearby counties. (Id. at 105-07). In addition, when the police canvassed Petitioner's neighborhood and visited his home they were informed that he was not there and were denied entry. (Id. at 115-17). Police officers also searched for accident reports involving Petitioner and found none. Thus, there was sufficient evidence in the record to support the Appellate Division's determination that Petitioner's absence was deliberate.

3. Not contrary to, or an unreasonable application of, federal law

The Appellate Division's decision that Petitioner's conduct “effect[ed] a forfeiture of his right to be present,” Williams, 47 N.Y.S.3d at 423, was neither contrary to, nor an unreasonable application of, clearly established federal law. The Sixth Amendment's Confrontation Clause guarantees a criminal defendant the right to be present at all stages of his trial. See Allen, 397 U.S. at 338; Rushen v. Spain, 464 U.S. 114, 117-18 (1983) (per curiam) (holding that the right to personal presence at all critical stages of the trial is a “fundamental right[ ] of each criminal defendant”).¹⁵ However, the Supreme Court has held that a defendant may waive his right to be present at trial. See Taylor v. United States, 414 U.S. 17, 20 (1973); Diaz v. United States, 223 U.S. 442, 455 (1912) (holding that a defendant who knowingly absents himself from the courtroom after trial has commenced, “leaves the court free to proceed with the trial in like manner and with like effect as if he were present”). A waiver of the right to be present must be both knowing and voluntary, which may be inferred from the defendant's conduct either during, or before, trial. See Taylor, 414 U.S. at 19-20 (waiver of the right to be present was implied where accused violated bail in the middle of trial); Allen, 397 U.S. at 346-47 (implied waiver from disruptive behavior during trial). Here, the record established that Petitioner's failure to attend trial was deliberate and, thus, constituted an implied waiver of his right to be present during trial under federal law. See Taylor, 414 U.S. at 19-20.

15 The right to be present during trial also flows from the guarantee of a fair trial articulated in the due process clauses of the Fifth and Fourteenth Amendments. Clark v. Stinson, 214 F.3d 315, 322 n.5 (2d Cir. 2000).

Petitioner's argument that the trial court failed to consider alternatives to proceeding in his absence is insufficient to show that the Appellate Division's decision was contrary to federal law. The trial court employed alternative measures before continuing the trial, including adjourning the matter for several hours to allow time to locate Petitioner, and issuing a bench warrant with instructions to bring Petitioner directly to court. (Docket No. 7-16 at 106-08). The trial court also protected Petitioner's rights by instructing the jury not to draw any inferences from his absence. (Docket No. 7-17 at 51). Consequently, it was not unconstitutional for the trial judge to exercise his discretion in favor of proceeding after taking these steps. See, e.g., Allen, 397 U.S. at 343-46 (holding that, although the trial judge who removed unruly defendant from the courtroom could have taken alternative steps (such as binding and gagging him, or citing him for contempt), it was not unconstitutional to reject those options in favor of removing the defendant).

Nor is it contrary to federal law to conclude that an accused need not receive an explicit warning that trial could continue in his absence before he can be considered to have waived his constitutional right to be present at trial. The Supreme Court stated in Allen that a defendant could be removed from the courtroom for unruly behavior “after he has been warned by the judge,” but “did not indicate whether such a warning was a requirement in every situation.” Gilchrist v. O'Keefe, 260 F.3d 87, 96 (2d Cir. 2001) (discussing Allen, 397 U.S. at 343); Pearson v. Rock, No. 12-CV-3505, 2015 WL 4509610, at *10 (E.D.N.Y. July 24, 2015) (“[A]t no time does the majority opinion [in Allen,] suggest that a warning is necessary before a defendant forfeits his right to be present.”).

In Taylor, the Supreme Court “was not troubled by the lack of a warning, finding it ‘incredible' that the defendant would not know of his right to be present throughout his own trial and would not know that the trial would continue in his absence.” Gilchrist, 260 F.3d at 96 (discussing Taylor, 414 U.S. at 20). Thus, even if, as Petitioner argues, New York law required a so-called “Parker warning” in the circumstances presented here, such a claim is not cognizable on habeas review as federal law does not impose a similar warning requirement. Taylor, 414 U.S. at 20; Gilchrist, 260 F.3d at 95 (noting that Supreme Court precedent has established that “no warning need precede the court's deprivation of the right” to be present at one's own trial). Therefore, the Appellate Division's decision that Petitioner had “forfeited” his right to be present at trial does not violate clearly established federal law. Accordingly, I conclude and respectfully recommend denying this claim.

C. Prosecutorial Misconduct During Summation

Petitioner asserts two claims that the prosecutor's summation violated his federal constitutional rights. First, he objects to comments the prosecutor made during summation, arguing that she: (i) improperly commented on defense evidence (referring to it as “a distraction,” a “smokescreen,” and “smoke and mirrors”); and (ii) inflamed the jury by calling Petitioner a “drug dealer,” who makes money “off the misery of others,” and brought drug addicts to the neighborhood. Second, Petitioner argues that the targeted emphasis on certain portions of the record (through highlighting of pictures and other evidence used in a slideshow presentation) rose to the level of prejudice. (Docket No. 7-20 at 32-37). Respondent counters that Petitioner's claims of prosecutorial misconduct are procedurally barred from habeas review. (Docket No. 8 at 18-19).

1. Comments during summation

Petitioner's counsel did not object to the prosecutor's remarks during summation. (See Docket No. 7-17 at 23). On appeal, the Appellate Division ruled that “defendant's contention that certain remarks made during summation deprived him of a fair trial is, for the most part, unpreserved for appellate review since he failed to object to most of the remarks at issue.” Williams, 47 N.Y.S.3d at 423. By failing to contemporaneously object to the remarks when they were made, Petitioner did not preserve this claim for appellate review and federal habeas relief is precluded as a result. See Gutierrez v Smith, 702 F.3d 103, 110-11 (2d Cir. 2012). Furthermore, state remedies are no longer available since Petitioner has already taken his one direct appeal and the claim is not subject to collateral review via a § 440.10 motion. The claim is therefore deemed exhausted and procedurally defaulted.

To avoid a procedural default based on independent and adequate state grounds, a petitioner must “show ‘cause' for the default and ‘prejudice attributable thereto,'. . . or demonstrate that failure to consider the federal claim will result in a ‘fundamental miscarriage of justice.'” Harris v. Reed, 489 U.S. 255, 262 (1989) (quoting Murray v. Carrier, 477 U.S. 478, 485 (1986)). Petitioner fails to show cause or prejudice for his procedural default, nor does he demonstrate that a failure to consider this claim will result in a miscarriage of justice. See Harris, 489 U.S. at 262. Therefore, the Court cannot review this claim. See, e.g., Butler v. Cunningham, 313 Fed.Appx. 400, 401 (2d Cir. 2009) (affirming state court's finding that Petitioner's claim was “unpreserved for appellate review is an independent and adequate state ground that bars a federal court from granting habeas relief.”).

Nonetheless, even assuming, arguendo, that this claim was not procedurally barred, it is still without merit. For prosecutorial misconduct to amount to constitutional error, “it is not enough that the prosecutors' remarks were undesirable or even universally condemned.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citation omitted). To warrant relief, the comments must have “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Id. at 181 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 647 (1974)); Dunn v. Sears, 561 F.Supp.2d 444, 455 (S.D.N.Y. 2008) (“[i]t is well-settled that the propriety of comments made by a prosecutor on summation generally does not present a federal constitutional violation.”).

Here, the Appellate Division concluded that the prosecutor's comments did not deprive Petitioner of his right to a fair trial:

[A]lthough some of the prosecutor's remarks improperly appealed to the jury's fears and passions with regard to drug dealing, they were not so flagrant or pervasive as to deprive the defendant of a fair trial.

Williams, 47 N.Y.S.3d at 423 (internal citations omitted). The Appellate Division's determination is not contrary to, nor an unreasonable application of, federal law as determined by the Supreme Court. In Darden, where the “prosecutors' argument did not manipulate or misstate the evidence,” or “implicate other specific rights of the accused,” “[m]uch of the objectionable content was invited by or was responsive to the opening summation of the defense,” and “the weight of the evidence against petitioner was heavy,” the Supreme Court found that the trial was “not perfect” but “neither was it fundamentally unfair.” Darden, 477 U.S. at 181-83.

In the instant case, the Appellate Division reasonably concluded that the prosecutor's comments were not “pervasive.” Rather, the comments were limited to the initial portion of the prosecutor's closing argument, and were in response to defense counsel's summation urging the jury to remember that Petitioner is “a husband . . . a father . . . a son,” even though there was no evidence in the record to support this, but there was evidence that Petitioner was a drug dealer. (Docket No. 7-17 at 22-23); see Dunn, 561 F.Supp.2d at 456 (noting that the allegedly improper comments on summation were “isolated” and “mitigated by the brevity and fleeting nature of the improper comments”) (citations and internal quotations omitted); Osorio v. Conway, 496 F.Supp.2d 285, 302 (S.D.N.Y. 2007) (“[T]he allegedly prejudicial statements were a minor part of a long trial and were isolated incidents that did not undermine the overall fairness of the trial.”). In addition, the trial judge instructed the jury that summation was not evidence. (Docket No. 717 at 32-33). As a result, the Appellate Division's determination that the prosecutor's comments did not amount to an unconstitutional denial of due process is not contrary to, nor an unreasonable application of, federal law.

2. Highlighting slides and evidence

Petitioner's claim that the prosecutor violated his right to a fair trial by putting certain evidence on slides, as well as circling and highlighting portions of the evidence that was admitted at trial is exhausted, but not cognizable on habeas review. Habeas relief based on prosecutorial misconduct during summation is unavailable unless the challenged comments “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden, 477 U.S. at 181 (quoting Donnelly, 416 U.S. at 643); see also, supra, Section III.C.1. Thus, even if the prosecutor's actions were improper, Petitioner is not entitled to habeas relief on this basis unless “he suffered actual prejudice because the prosecutor's [actions] during summation had a substantial and injurious effect or influence in determining the jury's verdict.” Bentley v. Scully, 41 F.3d 818 (2d Cir. 1994).

Here, the Appellate Division determined that the use of highlighting on admitted evidence was not improper. The slides were not given to the jury, and the judge instructed the jury that the summations were not evidence. (Docket 17-21 at 37). Therefore, the Appellate Division's conclusion that there was no violation of Petitioner's due process rights is not contrary to, nor an unreasonable application of, federal law. See, e.g., Anderson v. Lee, 453 F.Supp.3d 574, 581 (E.D.N.Y. 2020) (“[T]here was nothing improper about the New York Court of Appeals' conclusion that since the PowerPoint presentation was based on the evidence or inferences that a jury could reasonably draw from the evidence, the prosecutor had not engaged in any misconduct at all.”)

Accordingly, I conclude and respectfully recommend that Petitioner's Prosecutorial Misconduct Claim be denied as procedurally barred and without merit.

D. Excessive Sentence

Petitioner contends that his sentence is “harsh and excessive” in violation of the Fourteenth Amendment.¹⁶ (Docket No. 1 at 11). Respondent maintains that this claim should be rejected because it is not cognizable on habeas review. (Docket No. 8 at 20).

16 Petitioner's reference to the sentence as harsh and excessive appears to derive from state law. See N.Y. C.P.L. § 470.15(6)(b). However, he also invoked the Fourteenth Amendment in his appeal to the Appellate Division and in his application to the Court of Appeals. Thus, this claim is fully exhausted. Furthermore, although Petitioner did not explicitly invoke the Eighth Amendment, (Docket No. 1 at 11; Docket No. 20 at 37), the Supreme Court has articulated a principle of “gross disproportionality” for measuring whether a prisoner's sentence violates the Eighth Amendment' proscription against “cruel and unusual punishment.” Harmelin v. Michigan, 501 U.S. 957 (1997). Even if Petitioner could be considered to have raised an Eighth Amendment claim by referring to his sentence as excessive, for the same reasons stated herein, there is no constitutional issue presented for habeas review. See White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992). Finally, to the extent Petitioner challenges his sentence under state law, it is well-established “that a petitioner's reliance on a state procedural law granting courts discretionary authority to reduce sentences does not fairly present a federal constitutional claim in state court.” Bell v. Ercole, 631 F.Supp.2d 406, 418 (S.D.N.Y. 2009).

It is well-settled that “[w]hen a sentence is in accord with the range established by state statutory law, there is no constitutional issue presented for habeas review.” Williams v. Lee, No. 14 Civ. 2981 (VB)(JCM), 2017 WL 4685273, at * 16 (S.D.N.Y. Aug. 8, 2017) (citing White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992)), report and recommendation adopted, 2017 WL 4685105 (S.D.N.Y. Oct. 17, 2017); see also McCalvin v. Senkowski, 160 F.Supp.2d 586, 589 (S.D.N.Y. 2001) (“[s]entencing decisions are not cognizable on habeas corpus review unless the sentence imposed falls outside the range prescribed by state law.”) (citation omitted); Rispers v. Capra, No. 18 Civ. 4604 (VB)(PED), 2021 WL 5360642, at *6 (S.D.N.Y. Oct. 26, 2021) report and recommendation adopted, 2021 WL 6064540 (S.D.N.Y. Dec. 20, 2021) (denying excessive sentence claim where the petitioner's sentence fell within the range prescribed by state law); Arnold v. Superintendent of Upstate Corr. Facility, No. 21-cv-10423 (LGS)(SDA), 2022 WL 18542150, at *15 (S.D.N.Y. Sept. 24, 2022), report and recommendation adopted, 2023 WL 1438729 (S.D.N.Y. Feb. 1, 2023). Rather, “if a petitioner's sentence is within state statutory limits, he must show that the state court's decision was ‘wholly devoid of discretion, or that an error of law resulted in the improper exercise of the sentencer's discretion and thereby deprived the petitioner of his liberty.'” Arnold, 2022 WL 18542150, at *15.

Here, Petitioner does not dispute that the trial court's sentence was within the statutorily prescribed range. Docket No. 1 at 11. Nor does Petitioner argue that his sentence was arbitrary, capricious, an abuse of discretion, or “wholly devoid of discretion.” Arnold, 2022 WL 18542150, at *15. Consequently, Petitioner has failed to raise a cognizable federal constitutional issue. Accordingly, I conclude and respectfully recommend that Petitioner's Excessive Sentence Claim be denied.

E. Juror Discharge Claim

Petitioner contends that the trial court improperly dismissed a sworn juror, over objection, because the juror stated that she knew a “member of the audience,” that she “felt uncomfortable,” and, after the court suggested it, that she could not be fair and impartial. (Docket No. 1 at 17). Respondent counters that “no constitutional error occurred when the trial court excused the juror after she advised the court that she could not be fair and impartial.” (Docket No. 8 at 12-18).

1. Exhaustion

In the Petition and his appellate brief, Petitioner's only reference to federal law relating to this claim was a bare citation to “U.S. Const. Amend. XIV.” (Id.; Docket No. 7-20 at 43). He otherwise solely relied on state law, particularly N.Y. C.P.L. § 270.35(1). Although Petitioner's appellate brief referenced the “constitutional dimension” of the right of an accused to a particular jury that he had taken part in selecting, the case law cited in his brief refers to the New York State Constitution, art. I, § 2, not the U.S. Constitution. Nevertheless, he did cite to the Fourteenth Amendment, and “even a minimal reference to the Fourteenth Amendment satisfies the exhaustion requirement.” Reid, 961 F.2d at 376. Thus, Petitioner has fairly presented his constitutional challenge to the juror's discharge, and the claim is exhausted.

2. Merits

The Appellate Division addressed the juror discharge issue on the merits, though it did not reference federal law:

After a “probing and tactful inquiry[,]” the County Court properly discharged a sworn juror who recognized a spectator in the courtroom as a long-time acquaintance. The totality of the juror's statements, including her statement that she could not be fair and impartial, coupled with the court's evaluation of her upset demeanor, described by the court on the record, established that she was grossly unqualified to continue to serve.

Williams, 47 N.Y.S.3d at 423 (internal citations omitted). Nevertheless, even when the state court “does not expressly address the federal claim,” the federal habeas court “must presume (subject to rebuttal) that the federal claim was adjudicated on the merits.” Johnson, 568 U.S. at 293. The Sixth Amendment grants criminal defendants “the right to trial by a jury composed of a fair cross section of the community.” Tennessee v. Lane, 541 U.S. 509, 523 (2004); see Irvin v. Dowd, 366 U.S. 717, 722 (1961) (“the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent' jurors.”). The Fourteenth Amendment extends this right to “all criminal cases which-were they to be tried in a federal court-would come within the Sixth Amendment's guarantee.” Duncan v. State of Louisiana, 391 U.S. 145, 149 (1968).

The substitution of one juror with another does not raise a federal question absent allegations of bias or prejudice. Ford v. Crinder, No. 97-CV-3031, 2001 WL 640807, at *4 (S.D.N.Y. June 8, 2001) (noting that there is no federal constitutional requirement that composition of jury remain unaltered); Baston v. Artus, No. 08-CV-3425 (RMB)(JFC), 2010 WL 5067696, at *3 (E.D.N.Y. Dec. 6, 2010) (“[e]ven if the trial judge erred in dismissing [the sworn juror], habeas relief would not be warranted as Petitioner does not allege, let alone establish, that he was prejudiced by the substitution.”); see also United States v. Millar, 79 F.3d 338, 342 (2d Cir. 1996) (“substitution of an alternate juror for reasonable cause is the prerogative of the court and does not require the consent of any party”) (alteration in original) (internal quotation omitted).

Here, the trial judge reasonably concluded that the juror could not be fair and impartial. “[T]he finding that a juror is incapable of rendering an impartial verdict is a factual determination involving credibility and, therefore, is granted particular deference.” Ford, 2001 WL 640807, at *4 (relying on Patton v. Yount, 467 U.S. 1025, 1036-38 (1984)). The record reflects that the trial judge's determination was amply supported as the juror was “flushed” after seeing Petitioner's supporter in the courtroom, described having “similar circles of friends” as the accused, expected some kind of feedback for her decision, and ultimately agreed that she “definitely” could not be fair and impartial. (Docket No. 7-15 at 139-151). The discharged juror was replaced with an alternate juror, (id. at 153), and Petitioner makes no allegations of bias or prejudice resulting from the substitution. Thus, the Appellate Division's conclusion that there was no violation of the U.S. Constitution was not contrary to, nor an unreasonable application of, clearly established federal law. Accordingly, I conclude and respectfully recommend that Petitioner's Juror Discharge Claim be denied.

F. Denial of a Fair Trial Based on Cumulative Errors

Finally, Petitioner contends in the Petition and his appellate brief that the “combination of all errors rendered [the trial] fundamentally unfair and unconstitutional. U.S. Const. Amend. XIV. N.Y. Cons. art. I, § 6.” (Docket Nos. 1 at 17; 7-20 at 48). Petitioner's cumulative error claim, like his other claims, had to be exhausted in state court before seeking habeas relief in federal court. See, e.g., Jimenez, 458 F.3d at 149 (“Jimenez did not fairly present his cumulative-error claim to the state courts.”). In his appellate brief, Petitioner relies on Taylor v. Kentucky, 436 U.S. 478, 488 (1978), in which the Supreme Court concluded that cumulative errors at a criminal trial, taken together gave rise to a genuine risk that the jury would convict defendant based on extraneous considerations, rather than solely on the proof adduced at trial. Petitioner's discussion of Taylor and his citation to the Fourteenth Amendment sufficed to alert the state court to the federal constitutional nature of his claim. Thus, Petitioner's cumulative error claim, which was raised to the Court of Appeals on direct appeal, is exhausted.

Turning to the merits of Petitioner's claim, the compounding errors in jury instructions at issue in Taylor bear no resemblance to the alleged errors raised here, which are unrelated to one another. See, e.g., Rose v. Lundy, 455 U.S. 509, 531 n.8 (1982) (“Conceivably, habeas relief could be justified only on the basis of a determination that the cumulative impact of the . . . errors so infected the trial as to violate respondent's due process rights. But Lundy's four claims, on their face, are distinct in terms of the factual allegations and legal conclusions on which they depend.”). Not only does Petitioner fail to show compounding errors, but he also fails to show that these errors undermined the strength of the evidence supporting Petitioner's conviction, or the overall fairness of his trial. See, e.g., Krivoi v. Chappius, 573 F.Supp.3d 816, 831 (E.D.N.Y. 2021) (“[T]he combined effect of the Bruton violation and alleged Brady errors are rendered harmless by the strength of the remaining evidence. Thus, the Petitioner's cumulative error challenge is denied”), aff'd No. 21-2934-PR, 2022 WL 17481816 (2d Cir. Dec. 7, 2022). Therefore, there is no meritorious claim upon which habeas relief should be granted.

Accordingly, I conclude and respectfully recommend that the cumulative error claim be denied.

IV. CONCLUSION

For the foregoing reasons, I respectfully recommend that the Petition be denied in its entirety. Further, because reasonable jurists would not find it debatable that Petitioner has failed to demonstrate by a substantial showing that he was denied a constitutional right, I recommend that no certificate of appealability be issued. See 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).

The Clerk of Court is requested to mail a copy of this Report and Recommendation to the pro se Petitioner.

V. NOTICE

Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts, the parties shall have fourteen (14) days from the receipt of this Report and Recommendation to serve and file written objections. If copies of this Report and Recommendation are served upon the parties by mail, the parties shall have seventeen (17) days from receipt of the same to file and serve written objections. See Fed.R.Civ.P. 6(d). Objections and responses to objections, if any, shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Kenneth M. Karas at the United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.

Requests for extensions of time to file objections must be made to the Honorable Kenneth M. Karas and not to the undersigned. Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be rendered. See 28 U.S.C. § 636(b)(1); Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008).