Opinion
21 Civ. 5909 (VB)(PED)
01-31-2023
Justin Carrino, Petitioner, v. Superintendent William A. Lee, Respondent.
HONORABLE VINCENT BRICCETTI, UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION
Paul E. Davison, U.S.M.J.
I. INTRODUCTION
Justin Carrino (“Petitioner”), proceeding pro se, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his conviction and sentence from a non-jury trial in New York Supreme Court, Dutchess County. [Dkt. 2.] On June 21, 2016, Petitioner was found guilty of predatory sexual assault, aggravated sexual abuse in the first degree, rape in the first degree, and related lesser charges. He received sentences amounting in the aggregate to 22 % years to life imprisonment. Petitioner is currently serving his sentence at the Wende Correctional Facility in Dutchess County, New York. The Petition comes before me pursuant to an Order of Reference entered on July 14, 2021. [Dkt. 7.] For the reasons set forth below, I respectfully recommend that Your Honor DENY the Petition.
II. BACKGROUND
The information in this section is taken from the Petition and associated filings [Dkts. 2, 3], Respondent's Answer with attached exhibits [Dkts. 10, 11], and Petitioner's traverse [Dkt. 14.].
1. The Crime
Petitioner and Betty Roxanne Holt met in November 2011 at a bar in Augusta, Georgia. At the time, Ms. Holt was married but her husband passed away suddenly on January 11, 2012, By March 2012, Petitioner was living with Ms. Holt and her two children. Ms. Holt received an $82,000 life insurance payment as a result of her husband's death, as well as a social security income of $3,000 per month. While together, Petitioner and Ms. Holt used illegal drugs, starting with marijuana and then proceeding to cocaine and crack. On August 1, 2012, Petitioner and Ms. Holt moved from Georgia to an apartment in Fishkill, New York. In New York, their relationship became increasingly violent and was getting progressively worse.
At some point between September 10th and 24th of 2012, Petitioner pinned Ms. Holt face down on the bed and removed his belt that had an eagle on the belt buckle. He then rammed the tip of one of the eagle wings between her buttocks and moved it around before pulling it out. At another point, some time between September 19th and 24th of 2012, Petitioner pinned Ms. Holt down and pushed a cigarette that she had been smoking into the side of her thigh. The cigarette burned Ms. Holt's skin and left a scar.
The morning of October 2, 2012, Ms. Holt informed Petitioner that she was leaving. She told him she was going back to Georgia, and began packing. Petitioner told Ms. Holt that he did not want her to leave. He started forcibly kissing her and she resisted. Ms. Holt said “no” at least three to four times. Petitioner then threw her on the end of the bed and raped her. Petitioner became frustrated because Ms. Holt was not “into it” and so he began choking her before he became winded and let go of her neck. Ms. Holt then got up and attempted to run to the bedroom door, but Petitioner struck her multiple times on her back and backside with a broomstick, Petitioner then used the handle of the broomstick to anally penetrate Ms. Holt. Shortly thereafter, Petitioner went to shower and Ms. Holt left the apartment. Ms. Holt proceeded to a bank where she asked the bank teller to call the police.
2. Petitioner's Jury Trial
On November 14, 2013, a jury found Petitioner guilty of one count of predatory sexual assault, two counts of aggravated sexual abuse in the first degree, one count of rape in the first degree, two counts of assault in the second degree, and one count of criminal contempt in the first degree. See People v. Carrino, 22 N.Y.S. 3d 116, 118 (App. Div. 2015). Petitioner appealed this verdict to the Appellate Division, Second Department. Id. On appeal, Petitioner argued that he had invoked his right to counsel when he was being questioned by the police and that any statements he had made after that invocation should have been suppressed. See id. The Appellate Division found that Petitioner had indeed invoked his right to counsel and that the trial court should have suppressed the statements that Petitioner made to the police. See id. at 120-22. The Appellate Division further found that such an error was not a harmless one because there was a “reasonable possibility” that the statements Petitioner made could have contributed to his conviction. Id. at 121. Accordingly, the Appellate Division ordered that the judgment be reversed and that Petitioner receive a new trial. Id. at 122.
3. Petitioner's Non-Jury Trial
Prior to Petitioner's second trial, he had a hearing on May 13, 2016. [Dkt. 10-5 at 1.] During the hearing, the prosecutor noted that she offered Petitioner an agreement in which Petitioner would plead guilty to assault in the second degree and criminal contempt, and receive seven years on the assault in the second degree that would run consecutively with one and a third to four years for the contempt charge. [Id. at 2.] Petitioner also would be paroled for three years after release. [Id.] Petitioner rejected the offer and then requested a non-jury trial. [Id. at 2-3.] The court then conducted a colloquy with Petitioner regarding waiving his right to a jury trial and found that Petitioner made a knowing, intelligent, and voluntary waiver of his right to a jury trial. [Id. at 4-10.]
Trial started on June 1, 2016 and lasted until June 14, 2016. The judge provided a verdict on June 21,2016. During the trial, the prosecution offered testimony from eight different witnesses, including Ms. Holt. Ms. Holt provided testimony regarding the events that transpired between her and Petitioner in late September and early October. [Dkt. 10-6 at 46-200; Dkt. 10-7 at 1-92. ] Testimony was also provided by the bank teller who was working when Ms. Holt went into the bank and asked the teller to call the police. [Dkt. 10-6 at 23-35.] The paramedic that arrived at the bank and questioned Ms. Holt also provided testimony, as did the doctor who later examined her. [Dkt. 10-6 at 36-63; Dkt. 10-7 at 94-114.] The SAFE nurse who conducted a colscope exam of Ms. Holt also testified. [Dkt. 10-8 at 6-36.] The two investigators who observed and collected evidence from Ms. Holt's apartment provided further testimony, and another investigator who interviewed Petitioner also testified at the trial. [Dkt. 10-7 at 114-160; Dkt. 10-8 at 37-49.]
For his defense, Petitioner's counsel called three witnesses. The first witness was Brooke Kamrath, Ph. D., who testified that she ran a test to determine whether there was fecal matter on the broom handle that Petitioner used to anally penetrate Ms. Holt, and that the test came back negative. [Dkt. 10-8 at 85-124.] The second witness was Petitioner's sister, Alexandra Spamapapis, who testified about an incident in August 2012 when Ms. Holt and Petitioner got into an altercation. Ms. Spamapapis testified that during the fight, Ms. Holt yelled rape and stated that Petitioner was hurting her and that she was going to report him to the police. [Dkt. 10-9 at 5-32.] The last witness was Frank Sconzo, Jr., M.D. who testified that based on his review of the photographs taken of Ms. Holt's anus, he did not believe Ms. Holt was assaulted with the eagle belt buckle or the broom handle. [Dkt. 10-9 at 34-91.] To rebut Dr. Sconzo, the prosecution called Jack Coyne, M.D. who specialized in child abuse and testified that Ms. Holt's injuries were consistent with being jabbed in the anus with a broom handle. [Dkt. 10-9 at 93120.] Upon the completion of Dr. Coyne's rebuttal testimony, the defense rested. [Id. at 120.]
On June 14, 2016, each party gave its summation. In her summation, the prosecutor played a phone call that Petitioner had with a co-worker, where Petitioner instructed that coworker to contact his sister regarding a letter with instructions that he sent her. The prosecutor then stated that Petitioner's sister, Ms. Spamapapis, lied about being in contact with Petitioner's co-worker and was receiving instructions from Petitioner. [Dkt. 10-9 at 150.] Petitioner's counsel did not object to this statement. [See id.] The prosecutor also implied that one of the reasons why there was no feces on the broom handle was because Petitioner had tampered with the broom to ensure that there would be no feces on it. [Id. at 155.] Petitioner's counsel objected to this statement and the court sustained the objection and struck the statement from the record, [fd] Upon completion of the prosecutor's summation, the judge adjourned until June 21, 2016, when he would render his verdict. [Id. at 159.]
4. The Judgment and Sentencing
On June 21, 2016, the judge issued his verdict. For anally penetrating Ms. Holt with a broomstick on October 2, 2012, the judge found Petitioner guilty of predatory sexual assault and aggravated sexual abuse in the first degree. For striking Ms. Holt with the broomstick prior to anally penetrating her with it, the judge found Petitioner guilty of the first count of assault in the second degree. For raping Ms. Holt on October 2, 2012, the judge found Petitioner guilty of rape in the first degree. For burning Ms. Holt with a cigarette some time between September 19 and 24, 2012, the judge found Petitioner guilty of the second count of assault in the second degree. For Petitioner's continued contact with Ms. Holt in violation of an order of protection, the judge found Petitioner guilty of criminal contempt in the first degree. [Dkt. 10-9 at 162-63.] Finally, for Petitioner's alleged anal penetration of Ms. Holt with an eagle belt buckle, the judge found Petitioner not guilty of aggravated sexual assault in the first degree. [Id. at 163.]
Petitioner was sentenced on July 22, 2016. [Dkt. 10-10 at 2.] For the predatory sexual assault count, the judge sentenced Petitioner to an indeterminate term of 10 years to life. [Id. at 15-16.] With respect to the aggravated sexual abuse count, the judge sentenced Petitioner to 10 years and for the rape in the first degree count, the judge sentenced Petitioner to 18 years. [Id. at 16.] For the first count of assault in the second degree, the judge sentenced Petitioner to five years and for the second count of assault in the second degree, the judge sentenced Petitioner to three years. [Id.] Regarding Petitioner's sentence for criminal contempt in the first degree, the judge sentenced Petitioner to an indeterminate term of one and Vs to four years. [Id. at 17.] The judge further instructed that Petitioner's sentences were to inn concurrently with one another, with the exception of Petitioner's second count of assault in the second degree and his criminal contempt count, which would inn consecutively to one another and the other sentences. [Id. at 16-17.] As noted above, these sentences aggregate to 22 Vs years to life.
On August 12, 2016, the judge re-sentenced Petitioner because he realized he had failed to indicate any post-release supervision. [Dkt. 10-11 at 2.] For Petitioner's sentence for aggravated sexual abuse in the first degree, the judge included five years post-release supervision. [Id at 5.] For Petitioner's sentence for rape in the first degree, the judge included five years post-release supervision. [Id. ] For Petitioner's sentence for each count of assault in the second degree, the judge included two years post-release supervision, respectively. [Id. at 6.]
B. Procedural History
1. The Direct Appeal
On October 26, 2017, Petitioner, through counsel, appealed his conviction. [Dkt. 10-12 at 39.] Petitioner raised four arguments in his appeal. Specifically, Petitioner argued that: (1) the prosecution failed to prove beyond a reasonable doubt either predatory sexual assault, aggravated sexual abuse in the first degree, rape in the first degree, or two counts of assault in the first degree; (2) the county court violated Petitioner's due process right to be present during all material stages of the trial when it did not obtain a waiver of his right to be present during sidebar conferences until after the prosecution had called two witnesses and commenced the complainant's testimony; (3) the county court's admission of photographs of the complainant's two children was irrelevant and prejudicial; and (4) Petitioner's sentence was unduly harsh and excessive. [Id. at 6-39.] The state submitted its opposition on January 5, 2018. [Dkt.10-13 at 57.]
By decision dated August 15, 2018, the Appellate Division, Second Department affirmed the judgment against Petitioner. See People v. Carrino, 79 N.Y.S.3d 297 (App. Div. 2018). The Appellate Division found that the evidence was “legally sufficient to establish the defendant's guilt” for the crimes he was challenging. Id. at 298. The Appellate Division also held that Petitioner's claim that he was absent from a sidebar bench conference was without merit because “the record is insufficient to establish facts necessary to meet the defendant's burden of showing that he was absent from a material stage of the trial.” Id. at 297 (internal citations omitted). The Appellate Division further held that the county court “did not improvidently exercise its discretion” when it admitted a photograph of the complainant's home and her two children in the background because the “photo was relevant to a material issue at trial and elucidated the complainant's testimony.” Id. (internal citations omitted). Finally, the Appellate Division found that Petitioner's sentence was not excessive. Id. at 298.
On September 29, 2018, Petitioner, through counsel, requested leave to appeal the Appellate Division's decision to the Court of Appeals. [Dkt. 10-15 at 1.] The state submitted its opposition on October 15, 2018. [Dkt. 10-16 at 1.] On November 30, 2018, the Court of Appeals summarily denied Petitioner's request for leave to appeal. People v. Carrino, 115 N,E.3d 1016 (Table) (N.Y. 2018).
2. Petitioner's Motion for Writ of Error Coram Nobis
By papers dated November 23, 2019, Petitioner moved for a writ of error coram nobis. [Dkt. 10-18 at 4.] Petitioner argued that he received ineffective assistance of appellate counsel when his appellate counsel failed to argue: (1) that the disparity between his sentence and the plea offer demonstrated that the trial court was punishing Petitioner for going to trial; and (2) that Petitioner received ineffective assistance of trial counsel when trial counsel failed to timely object to statements made by the prosecutor during summation. [Id. at 14-22.] The state submitted its opposition on January 17, 2020. [Dkt. 10-19 at 36.] Through papers dated February 17, 2020, Petitioner submitted a reply. [Dkt. 10-25 at 4.] The Appellate Division denied Petitioner's application for a writ of error coram nobis on October 14, 2020, finding that Petitioner “failed to establish that he was denied the effective assistance of appellate counsel.” People v. Carrino, 130 N.Y.S.3d 401 (App. Div. 2020) (internal citations omitted). Petitioner sought leave to appeal this decision to the Court of Appeals through papers dated March 7, 2021. [Dkt. 10-27 at 3.] The state submitted its opposition on March 24, 2021. [Dkt. 10-28 at 1.] On March 29, 2021, the Court of Appeals summarily denied Petitioner's application. People v. Carrino, 36 N.E.3d 1277 (Table) (N.Y. 2021).
3. Petitioner's CPL § 440.10 Motion
Through papers dated June 5, 2020, Petitioner submitted a motion to vacate the judgment pursuant to CPL § 440.10. [Dkt. 10-30 at 48.] Petitioner raised three arguments in his motion; (1) he is actually innocent of the crimes; (2) he was denied his due process rights due to prosecutorial misconduct; and (3) his trial counsel was ineffective because his trial counsel failed to investigate and complete the defense. [Id. at 14-48.] The state submitted its opposition on September 2, 2020. [Dkt. 10-31 at 42.] Petitioner submitted a reply through papers dated September 14, 2020. [Dkt. 10-37 at 6.] The County Court for the County of Dutchess issued a decision on September 29, 2020. [Dkt. 10-38 at 8.] The County Court found all of Petitioner's arguments to be without merit and therefore denied Petitioner's motion in its entirety. [Id. at 4-7.]
By papers dated October 17, 2020, Petitioner filed an application for leave to appeal the County Court's decision to the Appellate Division. [Dkt. 10-39 at 2.] The state submitted its opposition on November 11, 2020. [Dkt. 10-40 at 2.] On November 27, 2020, the Appellate Division denied Petitioner's application. [Dkt. 10-41 at 1.]
4. The Instant Petition
Petitioner executed the instant Petition and delivered it to prison officials for mailing on June 28, 2021. [Dkt. 2 at 23.] The Respondent filed a response in opposition to the Petition on September 10, 2021. [Dkt. 11.] On October 13, 2021, Petitioner filed a traverse in reply to Respondent's answer. [Dkt. 14.]
HI. APPLICABLE LAW
“Habeas review is an extraordinary remedy.” Bousley v. United States, 523 U.S. 614, 621 (1998) (citing Reed v. Farley, 512 U.S. 339, 354 (1994)). 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. If there has been procedural compliance with these statutes, the court must then determine the appropriate standard of review applicable to the petitioner's claim(s) in accordance with § 2254 (d). The procedural and substantive standards applicable to habeas review, which were substantially modified by the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), are summarized below.
A. Exhaustion Requirement
A federal court may not grant habeas relief unless the petitioner has first exhausted his claims in state court. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); see 28 U.S.C. § 2254(b)(1) (“[a]n 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. Rose v. Lundy, 455 U.S. 509, 518-19 (1982).
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 nonconstitutional 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). A claim may be “fairly presented” to the state courts therefore, even if the petitioner has not cited “chapter and verse of the Constitution,” in one of several ways:
(a) [R]eliance 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.Daye v. Att'y Gen. of N. Y, 696 F.2d 186, 194 (2d Cir. 1982). 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. Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
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 of28 U.S.C. § 2254(b).” Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991). Such a procedurally barred claim may be deemed exhausted by a federal habeas court. See, e.g, Reyes, 118 F.3d at 139. However, absent a showing of either “cause for the procedural default and prejudice attributable thereto,” Harris v. Reed, 489 U.S. 255, 262 (1989), or “actual innocence,” Schhip v. Delo, 513 U.S. 298 (1995), the petitioner's claim will remain unreviewable by a federal court.
Finally, notwithstanding the procedure described above, a federal court may yet exercise its discretion to review and deny a mixed petition containing both exhausted and unexhausted claims, if those unexhausted claims are “plainly meritless.” Rhines v. Weber, 544 U.S. 269, 277 (2005); see 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”); Padilla v. Keane, 331 F.Supp.2d 209, 216 (S.D.N.Y. 2004) (interests in judicial economy warrant the dismissal of meritless, unexhausted claims).
B. Procedural Default
Even where an exhausted and timely habeas claim is raised, comity and federalism demand that a federal court abstain from its review when the last-reasoned state court opinion to address the claim relied upon “an adequate and independent finding of a procedural default” to deny it. Harris, 489 U.S. at 262; see also Coleman v. Thompson, 501 U.S. 722, 730 (1991); Ylst V. Nunnemaker, 501 U.S. 797, 803 (1991); Levine v. Comm 'r of Corr. Servs., 44 F.3d 121,126 (2d Cir. 1995). A state court decision will be “independent” when it “fairly appears” to rest primarily on state law. Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir. 2006) (citing Coleman, 501 U.S. at 740). A decision will be “adequate” if it is “‘firmly established and regularly followed' by the state in question.” Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999) (quoting Fordv. Georgia, 498 U.S. 411,423-24 (1991)).
The Supreme Court has held that a federal court may review a claim that is procedurally barred if the petitioner can show a “miscarriage of justice,” which occurs where a petitioner is “actually innocent of the crime for which he has been convicted.” Cotto v. Herbert, 331 F.3d 217, 239 n.lO (2d Cir. 2002); see Coleman, 501 U.S. at 729.
C. AEDPA Standard of Review
Before a federal court can determine whether a petitioner is entitled to federal habeas relief, the court must determine the proper standard of review under AEDPA for each of the petitioner's claims. 28 U.S.C. § 2254(d)(1)-(2). This statute “modifie[d] the role of federal habeas corpus courts in reviewing petitions filed by state prisoners,” and imposed a more exacting standard of review. Williams v. Taylor, 529 U.S. 362, 402 (2000). For petitions filed after AEDPA became effective, federal courts must apply the following standard to cases in which the state court adjudicated on the merits of the claim:
An application for a writ of habeas coipus on behalf of a person in custody pursuant to the judgment of a State court 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.§ 2254(d)(1)-(2). The deferential AEDPA standard of review will be triggered when the state court has both adjudicated the federal claim “on the merits,” and reduced its disposition to judgment. Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001).
Under the first prong, a state court decision is contrary to federal law only if it “arrives at a conclusion opposite to that reached by the [the Supreme Court] on a question of law or if [it] decides a case differently than [the Supreme Court] on a set of materially indistinguishable facts.” Williams, 529 U.S. at 413. A decision involves an “unreasonable application” of Supreme Court precedent if the state court “identifies the correct governing legal rule from the Supreme Court cases but unreasonably applies it to the facts of the particular state prisoner's case,” or if it “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.” Id. at 407.
Under the second prong of AEDPA, the factual findings of state courts are presumed to be correct. 28 U.S.C. § 2254(e)(1); see Nelson v. Walker, 121 F.3d 828, 833 (2d Cir. 1997). The petitioner must rebut this presumption by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
IV. ANALYSIS
In his timely filed Petition, Petitioner raises seven grounds for habeas relief. Petitioner argues: (1) the evidence presented at trial was insufficient to convict Petitioner; (2) the trial court improperly denied Petitioner the right to be present during side bar conferences without first obtaining a valid waiver of that right; (3) the trial court improperly allowed the admission of irrelevant and prejudicial photographs and testimony; (4) he was denied effective assistance of appellate counsel because his appellate counsel failed to raise certain claims on appeal; (5) he is actually innocent of the crimes for which he was convicted; (6) he was denied his due process rights due to prosecutorial misconduct; and (7) he was denied effective assistance of trial counsel because his trial counsel failed to investigate the defense.
A. There Is Sufficient Evidence to Support Petitioner's Conviction
Petitioner first argues that the evidence presented at trial was insufficient to support his conviction. Petitioner properly exhausted this argument by raising it in his appeal to the Appellate Division and in his leave application to the Court of Appeals. The Appellate Division was not persuaded by Petitioner's argument and determined that “[v]iewing the evidence in the light most favorable to the prosecution, we find that it was legally sufficient to establish the defendant's guilt of those crimes.” Carrino, 79N.Y,S.3dat298 (internal citations omitted). The Appellate Division further stated that “[u]pon reviewing the record here, we are satisfied that the verdict of guilt as to those crimes was not against the weight of the evidence.” Id. (internal citations omitted).
“The evidence is sufficient to support a conviction whenever, ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'” Parker v. Matthews, 567 U.S. 37, 43 (2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Accordingly, on habeas review in a federal court, “a state-court decision rejecting a sufficiency challenge may not be overturned on federal habeas unless the decision was ‘objectively unreasonable.'” Id. (internal quotation marks omitted). A petitioner thus bears a heavy burden to overcome this “twice-deferential” standard. Santone v. Fischer, 689 F.3d 138, 144 (2d Cir. 2012). Under the AEDPA standard, “federal courts must look to state law for the substantive elements of the criminal offense, but the minimum amount of evidence that the Due Process Clause requires to prove the offense is purely a matter of federal law.” Coleman v. Johnson, 566 U.S. 650, 655 (2012) (internal citation and quotation marks omitted).
To establish Petitioner's guilt for predatory sexual assault, the prosecutor had to prove that Petitioner committed the crime of aggravated sexual assault in the first degree when he inserted a broomstick in Ms. Holt's anus, and in the course of the commission of that crime, he used or threatened the immediate use of a dangerous instrument, in this case a broomstick. See N.Y. Penal Law § 130.95 (1)(b). A dangerous instrument is defined as “any instrument, article or substance” that “is readily capable of causing death or other serious physical injury.” Id. § 10.00 (13). To establish Petitioner's guilt for aggravated sexual abuse in the first degree, the prosecutor had to prove that Petitioner inserted a “foreign object”, in this case a broom handle, into Ms. Holt's anus by forcible compulsion. See id. § 130.70 (1)(a). To establish Petitioner's guilt for rape in the first degree, the prosecutor needed to establish that Petitioner engaged in sexual intercourse with Ms. Holt by forcible compulsion. See id. § 130.35 (1). To establish Petitioner's guilt for the first count of assault in the second degree, the prosecutor would need to show that Petitioner had intent to cause physical injury to Ms. Holt by means of a dangerous instrument, in this case a broomstick. See id. § 120.05 (2). To establish Petitioner's guilt for the second count of assault in the second degree, the prosecutor had to show that Petitioner had intent to cause physical injury to Ms. Holt by means of a dangerous instrument, in this case a lit cigarette. See id.
To the extent that Petitioner's argument can be construed to challenge the sufficiency of evidence to support his conviction for the count of criminal contempt in the first degree, Petitioner did not raise this argument in his direct appeal. [See Dkt. 10-12 at 14-24.] Because Petitioner did not raise this particular claim on direct appeal, this claim is unexhausted. Although unexhausted, Petitioner “no longer has remedies available in the courts of the State” for this record-based claim. Grey, 933 F.2d at 120; see N.Y. Crim. Proc. Law § 440.10(2)(c). Thus, the claim is deemed exhausted but procedurally barred. Petitioner may overcome this if he can show actual innocence or cause for the procedural default and resulting prejudice. Schlup, 513 U.S. at 315; Harris, 489 U.S. at 262. Petitioner alleges actual innocence, but for the reasons discussed infra Section IV.E, Petitioner fails to make a showing of actual innocence. Petitioner does not argue cause and resulting prejudice. Therefore, this Court cannot review this claim.
The elements of each crime were established by Ms. Holt's testimony. For the charge of predatory sexual assault, aggravated sexual assault, and the first count of assault in the second degree, Ms. Holt testified that Petitioner had hit her with a broomstick and then inserted the handle of the broomstick into her anus. [Dkt. 10-6 at 156-59.] For the charge of rape in the first degree, Ms. Holt testified that she said “no” three to four times before Petitioner had sex with her. \Id. at 155-57.] For the second count of assault in the second degree, Ms. Holt testified that Petitioner pushed her down, pinned her, and then pushed a cigarette she had been smoking into the side of her thigh, burning the skin. [Dkt. 10-6 at 144.] Even if Ms. Holt's testimony were uncorroborated, it would still be sufficient to support Petitioner's conviction. See Scott v. Graham, 2018 WL 5257613, at *23 (S.D.N.Y. Oct. 22, 2018) (collecting cases).
Copies of unreported cases cited herein will be mailed to Petitioner as 3 pro se litigant. See Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Petitioner does not argue that Ms. Holt's testimony failed to establish any of the elements of the crimes for which he was convicted. Instead, Petitioner argues that Ms. Holt's testimony was “wholly incredible[.]” [Dkt. 3 at 17.] Indeed, Petitioner's trial counsel attempted to challenge Ms. Holt's credibility on cross examination and in the summation, Petitioner's trial counsel argued that Ms. Holt “lied” and that her “lies were not supported by logic” or “by the evidence.” [Dkt. 10-7 at 7-89; Dkt. 10-9 at 124-45.] However, the trial judge found Ms. Holt to be credible and at Petitioner's sentencing stated that she was “the true victim in this case[.]” [Dkt. 10-10 at 14.] “It is well-established that credibility determinations are to be made by the fact-finder and are not reviewable by a federal habeas court.” Scott, 2018 WL 5257613, at *23 (collecting cases). Further, great deference is afforded to credibility determinations in bench trials where a judge is acting as the fact-finder. See id. (collecting cases). As a result, this Court will not disturb the credibility determinations made by the trial judge. Given that Ms. Holt's testimony will be afforded the credibility prescribed by the trial judge, Petitioner's arguments are insufficient to demonstrate that the evidence does not support his conviction.
Therefore, when the Appellate Division considered the “evidence in the light most favorable to the prosecution” and found that it was “legally sufficient to establish [Petitioner s] guilt of those crimes”, its holding was not objectively unreasonable. Carrino, 79 N.Y.S.3d at 298. Ms. Holt's testimony satisfied the elements of each charge, and that is sufficient to support Petitioner's conviction. Thus, the Appellate Division's holding was neither contrary to Supreme Court law, nor an unreasonable interpretation of the facts. Accordingly, I conclude, and I respectfully recommend Your Honor conclude, that the evidence was sufficient to establish Petitioner's guilt.
B. Petitioner Was Not Denied the Right to Be Present
Petitioner next argues that he was denied the right to be present during sidebar conversations, because he did not execute an Antommarchi waiver until after two witnesses and the victim had provided testimony. [Did. 3 at 22.] This argument was properly exhausted in Petitioner's direct appeal to the Appellate Division and in Petitioner's leave application to the Court of Appeals. In considering Petitioner's argument, the Appellate Division determined that Petitioner's claim was without merit because “the record is insufficient to establish facts necessary to meet the defendant's burden of showing that he was absent from a mateiial stage of the trial.” Carrino, 79 N.Y.S.3d at 297 (internal citations omitted).
To the extent that Petitioner's claim is based on the rule established by the New York Court of Appeals in People v. Antommarchi, 80 N.Y.S.2d 33 (1992), that rule is based on state law and therefore cannot serve as the basis for Petitioner's habeas petition. See Diaz v. Herbert, 317 F.Supp.2d 462, 473 (S.D.N.Y. 2004) (“Subsequent decisions of the New York Court of Appeals make clear that the Antommarchi rule is not a result of federal constitutional or statutory mandate, but rather, is grounded in New York Criminal Procedure Law § 260.20 . . ..”); see also 28 U.S.C. § 2254(a). Nonetheless, under the Constitution, Petitioner does have the right to be present at all material stages of the trial. “The Due Process Clause and the Confrontation Clause of the Sixth Amendment, as applied to the States via the Fourteenth Amendment, both guarantee to a criminal defendant... the ‘right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings.'” Tennessee v. Lane, 541 U.S. 509, 523 (2004) (quoting Faretta v. California, 422 U.S. 806, 819 n.15 (1975)). The Supreme Court has “recognized that this right is protected by the Due Process Clause in some situations where the defendant is not actually confronting witnesses or evidence against him.” United States v. Gagnon, 470 U.S. 522, 526 (1985). However, “the right to be present is not absolute: it is triggered only when the defendant's ‘presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.'” Cohen v. Senkowski, 290 F.3d 485, 489 (2d Cir. 2002) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06 (1934)). Accordingly, a criminal defendant need not be present “when presence would be useless, or the benefit but a shadow[.]” Kentucky v. Stincer, 482 U.S. 730, 745 (1987).
In Antommarchi, the New York Court of Appeals held that a criminal defendant has the right to be present during a side bar voir dire of a potential juror when the questioning pertains to the potential juror's background touching upon the juror's ability to objectively weigh the evidence. 80 N.Y.2d at 250.
Petitioner contends that his right to be present was violated because he was not present at sidebar discussions that occurred during the testimony for the first two witnesses, and part of Ms. Holt's testimony. However, Petitioner does not argue that his presence at these sidebar conversations “has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge,” Cohen, 290 F.3d at 489. Because it is difficult to demonstrate that sidebar conversations have a relation with a defendant's opportunity to defend himself, “courts dealing with a defendant's claims of exclusion from a sidebar conference during trial have invariably found no due process violation on the ground that the Federal Constitution does not require a defendant's presence at sidebar conferences.” Wilson v. Bennett, 188 F.Supp.2d 347, 356 (S.D.N.Y. 2002) (internal quotation marks omitted) (collecting cases). Here, Petitioner's argument fails because he cannot show that his presence at any alleged sidebar conversations would have had any relation to his opportunity to defend against the charge. Therefore, the Appellate Division's finding that Petitioner's claim was meritless was a finding that was not contrary to Supreme Court law. See Carrino, 79 N.Y.S.3d at 297.
Further, a review of the record does not indicate that there were any sidebar discussions during the testimony of the first two witnesses and part of Ms. Holt's testimony. [See Dkt. 10-6 at 14-104.] Nor does Petitioner identify any sidebar conversations. Instead, Petitioner summarily asserts “[i]t is irrelevant whether or not there were any side bar conferences[.]” [Dkt. 3 at 23.] Petitioner is incorrect. When determining whether Petitioner has the right to be present at a particular stage in a trial, whether that particular stage even occurred is highly relevant to the inquiry. Thus, when the Appellate Division held that “the record is insufficient to establish facts necessary” to support Petitioner's claim, that finding was not an unreasonable interpretation of the facts. Carrino, 79 N.Y.S.3d at 297. Accordingly, I respectfully recommend that Your Honor conclude that Petitioner's right to be present was not violated.
C. Trial Court Appropriately Allowed the Admission of A Photograph and Testimony Into Evidence
For his third ground, Petitioner argues that the trial court improperly allowed the admission of photographs and testimony into evidence. [Dkt. 3 at 25-26.] This argument was properly exhausted as Petitioner raised it in his direct appeal to the Appellate Division and in his leave application to the Court of Appeals. In deciding Petitioner's claim, the Appellate Division found that the trial court appropriately exercised its discretion and that “the photo was relevant to a material issue at trial and elucidated the complainant's testimony.” Carrino, 79 N.Y.S.3d at 297.
“Issues regarding the admissibility of evidence in state court concern matters of state law and are not subject to federal review unless the alleged errors are so prejudicial as to constitute fundamental unfairness.” Nunez v. Conway, 923 F.Supp.2d 557, 568 (S.D.N.Y. 2013). “A petitioner seeking habeas relief from an allegedly erroneous evidentiary ruling bears the burden of establishing that the evidentiary error deprived the petitioner of due process because it was so pervasive that it denied the petitioner a fundamentally fair trial.” Id. “The erroneous admission of evidence rises to a deprivation of due process under the Fourteenth Amendment only if the evidence in question was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it.” Silva v. Keyser, 271 F.Supp.3d 527, 541 (S.D.N.Y. 2017)
Here, Petitioner argues that the photograph that was improperly admitted into evidence was a photograph of the refrigerator in Petitioner and Ms. Holt's apartment. That photograph depicted three photographs on the refrigerator, and Ms. Holt was questioned by the prosecutor, Ms. Angela Lopane, about those photographs:
LOPANE: Okay. There's some photographs on the refrigerator; is that correct?
HOLT: Yes.
LOPANE: Who's depicted in the photographs?
HOLT: The top left is me and my youngest son, Logan, at Chucky Cheese. The bottom right is me and my other son, C.J., at Chucky Cheese, and the top right is the Defendant and I at dinner.[Dkt. 10-6 at 130.] Petitioner argues that the photograph and the associated testimony “so infused the trial with unfairness as to deny due process of law.” Dkt. 3 at 25 (quoting Estelle v. McGuire, 502 U.S. 62, 68 (1991)). Petitioner is incorrect. The photograph at issue here, and the associated testimony, would infuse the trial with unfairness if it was “sufficiently material to provide the basis for conviction[.]” Silva, 271 F.Supp.3d at 541. However, the photograph here was not determinative in the outcome of the trial. Indeed, the record contained other evidence that was far more significant than this photograph and tended to prove Petitioner's guilt. Primarily, the testimony of Ms. Holt as to Petitioner's rape and assaults [Dkt. 10-6 at 144, 15559], and the testimony concerning Ms. Holt's injuries by the doctor that examined her [Dkt. 10-7 at 108] and by the SAFE nurse that examined her [Dkt. 10-8 at 14-20]. The admission of the photograph and the testimony associated with that photograph did not provide the basis for Petitioner's guilt and therefore did not infuse the trial with unfairness. See Silva, 271 F.Supp.3d at 541. Further, “judges routinely hear inadmissible evidence that they are presumed to ignore when making decisions.” Harris v. Rivera, 454 U.S. 339, 346 (1981). Given that this was a bench trial, the potential for prejudice is minimal. See Steinhilber v. Kirkpatrick, 2020 WL 9074808, at *14 (S.D.N.Y. Aug. 21, 2020) (collecting cases), report and recommendation adopted 2021 WL 1254554 (S.D.N.Y. Apr. 5, 2021). Accordingly, the Appellate Division's holding was neither contrary to Supreme Court law, nor an unreasonable interpretation of the facts. Thus, I respectfully recommend Your Honor conclude that Petitioner's case is without merit and that the trial court did not err in the admission of the photograph at issue or Ms. Holt s associated testimony.
D. Petitioner Was Not Denied Effective Assistance of Appellate Counsel
Petitioner next argues that he was denied effective assistance of appellate counsel, because his appellate counsel failed to raise two arguments. First, Petitioner argues that his appellate counsel failed to argue that his sentence was punishment for him exercising his right to trial. [Dkt. 3 at 28-32.] Petitioner's second argument is that his appellate counsel failed to argue that the prosecutor made improper statements in her summation and that his trial counsel failed to object to those statements. [Id. at 32-35.] Petitioner's arguments were properly exhausted as he raised them in his petition for a writ of error coram nobis, and appealed the Appellate Division's denial of writ to the Court of Appeals. The Appellate Division determined that Petitioner “failed to establish that he was denied the effective assistance of appellate counsel.” Carrino, 130 N.Y.S.3d at 401 (internal citations omitted).
Under the AEPDA, the proper standard for evaluating Petitioner's ineffective assistance of appellate counsel “is that enunciated in Strickland v. Washington, 466 U.S. 668,104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).” Chrysler v. Guiney, 14 F.Supp.3d 418, 457 (S.D.N.Y. 2014) (alteration omitted). To establish that he did not receive effective assistance of counsel, “Petitioner ‘must first show that his counsel was objectively unreasonable' in failing to raise the issue on appeal, and then ‘must show a reasonable probability that, but for his counsel s unreasonable failure [to raise the issue], he would have prevailed on his appeal.” Id. (quoting Smith v. Robbins, 528 U.S. 259, 285-86 (2000)). A petitioner may satisfy the first prong by showing “that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker.” Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). Under the second prong, “a petitioner must demonstrate that there was a reasonable probability that his claim would have been successful before the state's highest court.' Id. at 534. Further, the “AEDPA review must be ‘doubly deferential' in order to afford ‘both the state court and the defense attorney the benefit of the doubt.'” Woods v. Donald, 575 U.S. 312, 316-17 (2015) (quoting Burt v. Titlow, 571 U.S. 12, 15 (2013)).
1. Petitioner's Appellate Counsel Was Not Ineffective for Not Raising Petitioner's Sentencing Argument
Petitioner first argues that his appellate counsel was ineffective for failing to raise the argument that he was vindictively sentenced by the trial judge. Petitioner's argument centers on the disparity between the plea deal that he was offered by the prosecution prior to trial and the amount of time he was sentenced to after trial. [See Dkt. 3 at 28-32.] Prior to trial, the prosecution offered Petitioner an agreement whereby Petitioner would plead guilty to assault in the second degree and criminal contempt, and receive seven years for the assault charge and one and a third to four years for the contempt charge. [Dkt. 10-5 at 2.] These sentences would run concurrently with one another. [Id.] As part of the agreement, Petitioner also would be paroled for three years after release. [Id.] Petitioner rejected this offer and instead proceeded to trial. After trial, the judge sentenced Petitioner as follows: (1) an indeterminate term often years to life for predatory sexual assault; (2) ten years for aggravated sexual abuse; (3) eighteen years for rape in the first degree; (4) five years for one of the assaults in the second degree; (5) three years for the other assault in the second degree; and (6) an indeterminate term of one and a third to four years for criminal contempt in the first degree. [Diet. 10-10 at 15-17.] The judge further instructed that Petitioner's sentences were to run concurrently with one another, with the exception of Petitioner's second count of assault in the second degree and his criminal contempt count, which would run consecutively to each other and the other sentences. [Id. at 16-17.] Accordingly, Petitioner's aggregate sentence was 22 Va years to life imprisonment.
“Under New York law, ‘ [t]he mere fact that a sentence imposed after trial is greater than that offered in connection with plea negotiations is not proof that defendant was punished for asserting his right to trial[.]'” Van Gorder v. Allerd, 387 F.Supp.2d 251, 260 (W.D.N.Y. 2005) (quoting People v. Chappelle, 787 N.Y.S.2d 501, 502 (App. Div. 2005)). Further “[a]s the New York Court of Appeals has pointed out, ‘given . . . the quid pro quo of the bargaining process . . ., it is also to be anticipated that sentences handed out after trial may be more severe than those proposed in connection with a plea.'” Id. (alteration omitted) (quoting People v. Pena, 406 N.E.2d 1347, 1353 (N.Y. 1980)). Given that Petitioner's argument would likely have failed on appeal, he has failed to satisfy either prong of the Strickland standard. See id. (“Since no more than that occurred here, appellate counsel had no basis on which to argue that [petitioner] was sentenced vindictively for taking his case to trial.”) Therefore, the Appellate Division did not err in finding that Petitioner's appellate counsel was not ineffective, and its conclusion was not contrary to Supreme Court law nor an unreasonable interpretation of the facts.
2. Petitioner's Appellate Counsel Was Not Ineffective for Not Raising Petitioner's Arguments Regarding the Prosecutor's Summation
Petitioner next argues that his appellate counsel failed to argue that the prosecutor made improper statements during summation and that his trial counsel failed to object to those statements. Petitioner specifically takes issue with statements the prosecutor made regarding the testimony provided by his sister, Alexandra Spamapapis:
So much for the credibility of Alexandra Spamapapis, who took the stand and lied to the Court about being in contact with Tabitha Santi, receiving instructions from Defendant regarding Roxanne, which she completely denied.[Dkt. 10-9 at 150.] Petitioner's trial counsel, Mr. James Hill and Ms. Jennifer Burton, did not object to this statement. Petitioner argues that this statement is improper because it was “simply not true” and that his appellate counsel should have raised it in his direct appeal. [Dkt. 3 at 33.]
Petitioner's appellate counsel's failure to raise this argument on appeal was not objectively unreasonable. “Under New York law, to preserve a contention that the prosecutor's summation resulted in deprivation of a fair trial, the defendant must object to the improper remarks, and, if the objection is sustained, request a curative instruction and move for a mistrial.” See King v. Geiner, 2009 WL 2001439, at *8 (S.D.N.Y. July 8, 2009). Because trial counsel neither objected to the statement, nor moved for a mistrial, Petitioner's appellate counsel could not raise it on appeal. See Coello v. Bell, 2019 WL 2092596, at *21 (S.D.N.Y. May 14, 2019), (“Under New York law, points which were not raised at trial may not be considered for the first time on appeal.” (internal quotation marks omitted)), report and recommendation adopted 2020 WL 2793986 (S.D.N.Y. May 28, 2020). Accordingly, it would have been futile for Petitioner's appellate counsel to argue that Petitioner did not receive a fair trial based on this statement made by the prosecutor during her summation, because the argument was unpreserved for appeal. See id. Therefore, the Appellate Division did not unreasonably apply Strickland in denying Petitioner's writ of error coram nobis.
Petitioner also argues that his appellate counsel should have argued that his trial counsel rendered ineffective assistance for failing to object to the prosecutor's statement during summation. Petitioner nonetheless fails to show that his appellate counsel was ineffective for failing to argue that his trial counsel was ineffective for failing to object to the prosecutor's summation. First, Petitioner's trial counsel was not ineffective for failing to object to the prosecutor's statement regarding the credibility of Ms. Spamapapis. “Under New York law, statements during summation are permissible if they constitute a ‘fair comment on the evidence at trial, or a ‘fair response to remarks made by the defense counsel during summation.'” Alvarez v. Kirkpatrick, 2019 WL 2425181, at *12 (S.D.N.Y. Mar. 1, 2019) (quoting People v. Perez, 794 N.Y.S.2d 439, 440 (App. Div. 2005)). Petitioner contends that “[n]o proof of any kind was put forth by the People to establish the People's [sic] sister had at anytime tried to manipulate the alleged victim in this case on her own or on behalf of Petitioner[.]” [Dkt. 3 at 33.] Petitioner is mistaken.
Directly prior to her statement regarding Ms. Spamapapis, the prosecutor played a redacted call between Petitioner and Tabitha Santi that Petitioner made while he was in jail on December 23, 2012. [Diet. 10-19 at 33.] The recording included the following:
PETITIONER: ... I know my sister has been in a lot of pain apparently. I need to find out what's going on with that letter I sent her. That was two weeks ago now.
SANTI: I'm texting her.
PETITIONER: Ask her Justin wants to know the update on the letter. Have her write me and it's all said and done.
SANTI: I just asked her how she is feeling and did you get his letter (inaudible)?
SANTI: She said yeah, I've had it.
PETITIONER: Yeah, she's had what, the letter? What?
SANTI: Hold on. I don't know. I'm asking.
PETITIONER: Yeah, I've had it?
SANTI: I said - LOL, not today dork. This past week. She said yeah, I've had it.
PETITIONER: Okay.
SANTI: Maybe she's thinking you sent her another one. Hold on. I'll ask the right questions. Did you get any letter with the instructions?
SANTI: ... Oh, she got it, she did it. She said I got it, I did it. I've been really busy.
PETITIONER: Like she needs to write me fucking yesterday. Or she needs to tell you and please send me a fucking letter if she's too fucking lazy to tell me something. I understand that she had back surgery, I get it.
SANTI: Hold on.
PETITIONER: It's not like I'm asking her to go run a fucking marathon or win the lottery for me. It's very simple shit.
SANTI: Such an idiot. She tried texting back to you. Back to Ally I got it. I did it. I've been really busy. What do you want me to say?
PETITIONER: So, question mark. I mean how fucking --
(interrupted)
SANTI: I don't even know what you put in the letter. All right.
PETITIONER: Ask her what the outcome was, question mark? See if she replies. Or just have her write me tell her. If it's too much to text to you because we don't have too much time left on the phone have her send me a letter or have her explain everything to you. I'd rather her tell you what I said than me. I'd rather not say it on the phone.
SANTI: She has to be careful what she writes.
PETITIONER: Right. Or she could tell you and you could read -1 know your language.
SANTI: I just texted her he wants to know what the outcome was.
PETITIONER: Unbelievable. Half of my worries are sitting in that fucking letter.
SANTI: Oh, fucking people amaze me.
PETITIONER: Here's how we - we know that she didn't fucking change it. So we could get ahold of her, see what I'm saying.[Dkt. 10-24 at 35-36, 40-44.] The transcript of this call was received into evidence. [Dkt. 10-6 at 125.] Further, when questioned by the prosecutor, Ms. Kristine Whelan, during her testimony, Ms. Spamapapis denied having contact with Tabitha Santi:
WHELAN: Well, let me ask you this: --
SPAMAPAPIS: Sure.
WHELAN: -- did you receive - you received a letter, didn't you?, from your brother with what he referred to as instructions; correct?
SPAMAPAPIS: There was [sic] a lot of letters.
WHELAN: Well, I'm specifically talking about the one where he gave you very explicit instructions with what to do regarding Betty Roxanne Holt and this criminal case. Do you remember that one?
SPAMAPAPIS: No, I don't.
WHELAN: You don't remember telling Tabitha via text message that, yes, you got your brother's letter and, yes, you did what he instructed you to do?
SPAMAPAPIS: No.[Dkt. 10-9 at 29.] Given the call that Petitioner had with Ms. Santi and Ms. Spamapapis's testimony, the prosecutor's statement regarding Ms. Spamapapis constituted fair comment on the evidence at trial and Petitioner's trial counsel did not act unreasonably in failing to object to the comment. Petitioner has therefore failed to satisfy the first prong of the Strickland test with respect to his trial counsel. Petitioner also cannot satisfy the second prong, because he cannot show that he was prejudiced by his trial counsel's failure to object. Had Petitioner s trial counsel objected, it is unlikely that such objection would have been sustained given that the prosecutor's statement constituted fair comment on the evidence at trial. Accordingly, Petitioner cannot show that he received ineffective assistance of trial counsel for failing to object.
Given that Petitioner's trial counsel did not render ineffective assistance of counsel, Petitioner cannot demonstrate that his appellate counsel fell below the Strickland standard for failing to raise this argument. Under the first prong, Petitioner's appellate counsel did not act unreasonably in failing to raise the issue on appeal because Petitioner's trial counsel did not render ineffective assistance. Under the second prong, Petitioner's appellate counsel would not have prevailed on the issue on appeal, because the prosecutor s statement constituted fair comment on the evidence. Accordingly, Petitioner's appellate counsel did not render ineffective assistance of counsel for failing to argue that Petitioner received ineffective assistance from his trial counsel.
Petitioner also takes issue with the prosecutor's statement that he wiped feces off the broom handle:
LOPANE: . . . The Defendant was left in that apartment when Roxanne fled that morning. He had access to the apartment all day. And, in fact, he was quite adamant that there would be no feces on that broom handle. Who's to say he didn't return to that apartment and make sure -
HILL: Objection.
LOPANE: - that there was no feces -
COURT: Sustained.
LOPANE: - on that broom.
DR. SCONZO: --
HILL: Judge, I just - I assume you're going to -
COURT: It will be stricken and disregarded.[Dkt. 10-9 at 155.] As noted in the transcript, and as acknowledged by Petitioner, Petitioner's trial counsel appropriately objected to that statement and the statement was stricken.
As noted above, in order to preserve the argument that the prosecutor's summation deprived a defendant of a fair trial, “the defendant must object to the improper remarks, and, if the objection is sustained, request a curative instruction and move for a mistrial. See King, 2009 WL 2001439, at *8. Here, although Petitioner's counsel objected to the statement, and arguably requested a curative instruction by requesting the trial judge disregard the statement, Petitioner s counsel nonetheless did not move for a mistrial on the basis of the sustained objection, Accordingly, it would have been futile for appellate counsel to appeal based on this argument because the argument was unpreserved for appeal, and appellate counsel did not render ineffective assistance by failing to raise it. See Coello, 2019 WL 2092596, at *21.
Even if Petitioner's trial counsel had preserved the argument for appeal by moving for a mistrial, Petitioner still fails to establish that his appellate counsel rendered ineffective assistance of counsel for not raising this argument on appeal. Under Strickland's first prong, appellate counsel did not act objectively unreasonable in not raising this argument. The trial judge specifically stated that he would disregard the statement by the prosecutor. Therefore, the prosecutor's statement had no bearing on the trial judge finding Petitioner guilty. Further, it is unlikely that Petitioner would be able to satisfy Strickland's second prong. Had Petitioner's appellate counsel raised this argument on appeal, the Appellate Division likely would have concluded that the trial judge, as fact-finder, was able to disregard such remarks. See People v. Johnson, 144 N.Y.S.3d 614, 615 (App. Div. 2021) (“Since the factfinder in this nonjury trial was the court, there is no danger that the defendant's conviction rests upon the prosecutor's summation argument.” (internal citations omitted)). Thus, even if Petitioner s trial counsel had preserved the argument, Petitioner still fails to meet the Strickland standard and demonstrate that his appellate counsel rendered ineffective assistance of counsel for failing to raise the argument on appeal.
Therefore, the Appellate Division's holding that Petitioner was not denied effective assistance of appellate counsel was neither contrary to Supreme Court law, nor an unreasonable interpretation of the facts. Accordingly, I respectfully recommend Your Honor conclude that Petitioner received effective assistance of appellate counsel.
E. Petitioner's Claim of Actual Innocence Is Not Cognizable
In his fifth ground for habeas relief, Petitioner argues that he is actually innocent of the crimes for which he was convicted. Petitioner asserts this argument based on text messages between Petitioner and Ms. Holt, a police report regarding a domestic dispute on September 29, 2012, and the evidence presented at trial. [Dkt. 3 at 38-46.] Petitioner properly exhausted this argument by raising it in his CPL § 440.10 motion to the County Court and by raising it in a leave application to the Appellate Division. In deciding Petitioner's argument, the County Court concluded that Petitioner “has failed to meet his burden of providing clear and convincing evidence of his actual innocence[.]” [Dkt. 10-40 at 7.]
A claim of actual innocence is a “gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.” Herrera v. Collins, 506 U.S. 390, 404 (1993). To obtain such relief, “a petitioner ‘must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.'” McQuiggin v. Perkins, 569 U.S. 383, 399 (2013) (quoting Schlup, 513 U.S. at 327). Although the Supreme Court has yet to decide whether a freestanding claim of actual innocence is cognizable on federal habeas review, McQuiggin, 569 U.S. at 392, “courts in this district have declined to consider actual innocence as a ‘freestanding claim' for relief.” Haywood v. Griffin, 2019 WL 8128481, at *22 (S.D.N.Y. Dec. 27, 2019) (collecting cases).
Petitioner asserts that he was denied his rights under Strickland v. Washington, 466 U.S. 668 (1984) and Nqpwe v. Illinois, 360 U.S. 264 (1959). However, Petitioner's right to effective assistance of trial and appellate counsel was not violated, see supra Section IV.D and infra Section IV.G, nor was Petitioner's right to a fair trial violated through prosecutorial misconduct, see infra Section IV .F. Further, Petitioner is not seeking “excusal of a procedural error so that he may bring an independent constitutional claim challenging his conviction or sentence[.]” Herrera, 506 U.S. at 404. Given that Petitioner cannot claim a constitutional violation, and that Petitioner is not seeking excusal of a procedural error, Petitioner's claim of actual innocence is “freestanding.” Because a freestanding claim of actual innocence is not cognizable on habeas review, this claim is not cognizable on habeas review. See Haywood, 2019 WL 8128481, at *22.
Even if Petitioner's freestanding actual innocence claim were cognizable on habeas review, it would still fail on the merits. In order to obtain habeas relief under a freestanding actual innocence claim, Petitioner would have to satisfy a higher burden than that required by the Schlup standard. See House, 547 U.S. at 555. The Schulp standard provides that the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” 513 U.S. at 327. To satisfy this standard, the evidence of actual innocence “must be both ‘credible' and ‘compelling.'” Rivas v. Fischer, 687 F.3d 514, 541 (2d Cir. 2012) (quoting House, 547 U.S. at 521). To be “credible,” the evidence must consist of “‘new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.'” Id. (quoting Schlup, 513 U.S. at 324). To determine whether the new evidence is reliable, the habeas court must “consider[ ] it both on its own merits and, where appropriate, in light of the pre-existing evidence in the record.” Doe v. Menefee, 391 F.3d 147,161 (2d Cir.2004). To be “compelling,” the evidence must reveal that, “more likely than not, in light of the new evidence, no reasonable juror would find [the petitioner] guilty beyond a reasonable doubt-or to remove the double negative, that more likely than not any reasonable juror would have reasonable doubt.” Rivas, 687 F.3d at 541.
Here, Petitioner's purported new evidence consists of text messages he received from Ms. Holt. Petitioner claims that the text messages demonstrate that Ms. Holt had animus towards him and that she fabricated the claims against him for revenge. [Dkt. 3 at 42.] Such evidence is insufficient to overcome the Schhip standard, let alone the higher standard required by a freestanding actual innocence claim. See House, 547U.S. at 555. First, Petitioner faces an issue with respect to whether the text messages are authentic. The record reveals that Petitioner's counsel failed to turn over the phone to the prosecutor in his first trial. [Dkt. 10-36 at 194-98.] The phone was apparently lost by the public defender's office sometime before the second trial. [Dkt. 10-30 at 56.] As a result, the only evidence of the text messages in the record consists of screenshots from Petitioner's phone and Petitioner's own representations. [Did. 3 at 38-39; Dkt. 10-30 at 50-55.] Accordingly, it is difficult to determine whether the evidence is credible.
In any event, even if the text messages are authentic and their contents are as described, they fail to demonstrate that no reasonable juror would have convicted Petitioner. See Schlup, 513 U.S. at 327. The text messages do not “compellingly point to [Petitioner]'s innocence”, but rather demonstrate that Ms. Holt and Petitioner had a tumultuous relationship. Rivas, 687 F.3d at 546. Given that Petitioner's evidence is neither credible, nor compelling, he fails to satisfy the Schlup standard, let alone the higher standard required by an actual innocence claim.
Petitioner also attempts to argue that Ms. Holt's credibility should have been drawn into question based on a police report regarding an incident that occurred on September 29, 2012 and other evidence presented at trial. With respect to the police report, Petitioner argues that the report demonstrates that Ms, Holt was not afraid of Petitioner. [Dkt. 3 at 42-45.] However, because the police report concerns an incident that was unrelated to the crime for which Petitioner was found guilty, it “does not compellingly point to [Petitioner]'s innocence” to the extent that Schlup requires. Rivas, 687 F.3d at 546. Indeed, the police report may show that Ms. Holt was not afraid of Petitioner the evening of September 29, 2012, but does nothing to show that Petitioner did not commit the crimes for which he was convicted.
The other evidence that Petitioner argues demonstrates Ms. Holt was lying was presented at trial, and therefore is not considered new evidence for the purposes of the actual innocence standard. See Schlup, 513 U.S. at 324 (claim of actual innocence must be supported with “new reliable evidence” that was “not presented at trial”). Further, Petitioner's discussion concerning the other evidence presented at trial rests on reasoning similar to his legal sufficiency argument. This is insufficient for an actual innocence claim. See Bousley v. United States, 523 U.S. 614, 623 (1998) (‘“[A]ctual innocence' means factual innocence, not mere legal insufficiency.”).
Therefore, even if this Court were to reach the merits of Petitioner's freestanding actual innocence claim, it would be without merit. Nonetheless, I recommend Your Honor decline to review this claim on the basis that it is not cognizable in habeas.
F. There Was No Prosecutorial Misconduct
For his sixth ground of habeas relief, Petitioner argues that the prosecutor for his case engaged in prosecutorial misconduct. Petitioner specifically alleges two instances of prosecutorial misconduct. First, Petitioner argues that the prosecutor allowed Ms. Holt to provide perjured testimony. Second, Petitioner argues that the integrity of the grand jury was compromised because the prosecutor failed to show the grand jury the text messages. This argument was properly exhausted when Petitioner raised it in his CPL § 440.10 motion to the County Court, and to the Appellate Division when requesting leave to appeal the County Court's denial. In consideration of Petitioner's argument, the County Court stated that Petitioner's “allegations of prosecutorial misconduct are speculative in nature at best and therefore insufficient to warrant a hearing or reversal of his conviction.” [Dkt. 10-40 at 8.]
1. Ms. Holt Did Not Provide Perjured Testimony
A petitioner's claim that his conviction was based on perjured testimony is analyzed under the Due Process Clause of the Fourteenth Amendment. Napue v. Illinois, 360 U.S. 264, 269 (1959). The threshold question is whether the witness in fact committed peijury. United States v. Monteleone, 257 F.3d 210, 219 (2d Cir. 2001). “A witness commits perjury if he gives false testimony concerning a material matter with the willful intent to provide false testimony, as distinguished from incorrect testimony resulting from confusion, mistake, or faulty memory.” Id. (citing United States v. Dunnigan, 507 U.S. 87, 94 (1993)). “The petitioner has the burden of demonstrating, by a preponderance of the evidence, that the witness committed perjuiy. Black v. Rock, 103 F.Supp.3d 305, 317 (E.D.N.Y. 2015). “If the evidence is false or the testimony is perjured, then the introduction of perjured testimony at a criminal trial violates due process where the prosecution knew or should have known of the peijury and where there is any reasonable likelihood that the perjured testimony could have affected the judgment of the jury.” Id. at 317-318 (internal quotation marks and alteration omitted).
Here, Petitioner argues that there were two instances where the prosecutor failed to correct Ms. Holt's perjured testimony. First, Petitioner argues that Ms. Holt improperly testified that the day before Petitioner attacked and raped her, she called him regarding a check that Petitioner had forged to obtain funds from her account. [She Dkt. 10-6 at 137-38.] Petitioner contends that Ms. Holt did not call him regarding the forged check, but rather texted him regarding the forged check. [Dkt. 3 at 51.] In order for Petitioner to establish that Ms. Holt indeed perjured herself, he must show that she wilfully provided false testimony concerning a material issue. See Monteleone, 257 F.3d at 219. Petitioner fails to do so here. Ms. Holt s statement that she called Petitioner, as opposed to texting him, is simply “incorrect testimony resulting from confusion, mistake, or faulty memory” and does not rise to the level of showing willful intent. See id. Further, Ms. Holt's testimony does not concern a material matter. Indeed, her testimony concerned the events leading up to the crime, but did not relate to the crime itself. Accordingly, Ms. Holt's statement that she called Petitioner, as opposed to texting, had no bearing on the outcome of the trial. Therefore, Ms. Holt did not provide false testimony and the prosecutor did not commit prosecutorial misconduct for failing to correct Ms. Holt's statement.
Petitioner also argues that the prosecutor failed to correct Ms. Holt's testimony with respect to the incident that occurred on September 29, 2012. Petitioner argues that the police report of the incident shows that Ms. Holt “was the abusive one[.]” [Dkt. 3 at 50.] Despite his general assertion, Petitioner fails to identify what exactly was false about Ms. Holt's testimony. With respect to the September 29th incident, Ms. Holt testified that she “argued” and “struggled” with Petitioner, that Petitioner called the police, and that the police declined to credit her version because she appeared to be intoxicated.. [See Dkt. 10-6 at 140-41.] Petitioner has failed to show that Ms. Holt's testimony was false or that she committed perjury. See Monteleone, 257 F.3d at 219.
Because Petitioner has failed to show that Ms. Holt provided perjured testimony, the County Court's conclusion with respect to Petitioner's prosecutorial misconduct argument was neither contrary to Supreme Court law, nor an unreasonable interpretation of the fact. I therefore respectfully recommend Your Honor conclude that Petitioner's claim alleging prosecutorial misconduct with respect to Ms. Holt's testimony is without merit.
2. Petitioner's Argument Related to Grand Jury Proceedings Is Not Grounds for Habeas Relief
Petitioner next claims that the prosecutor engaged in prosecutorial misconduct because she failed to submit the text messages between Petitioner and Ms. Holt to the grand jury. Had the prosecutor shown the text messages to the grand jury, Petitioner argues, “there is no reason they would have voted to indict” him. [Dkt. 3 at 55.] Generally, “claims of deficiencies in a state grand jury proceeding cannot support a collateral attack under 28 U.S.C. § 2254.” Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989). Indeed, “[i]f federal grand jury rights are not cognizable on direct appeal where rendered harmless by a petit jury, similar claims concerning a state grand jury proceeding are a fortiori foreclosed in a collateral attack brought in a federal court.” Lopez, 865 F.2d at 32. Further, any error that may have occurred is rendered harmless by a defendant's subsequent conviction in a criminal trial. See id. (holding that the “subsequent guilty verdict means not only that there was probable cause to believe that the defendants were guilty as charged, but also that they are in fact guilty as charged beyond a reasonable doubt.”).
Accordingly, Petitioner's argument regarding the grand jury proceedings is not cognizable on habeas review, and I recommend that Your Honor decline to review this argument.
G. Petitioner Was Not Denied Effective Assistance of Trial Counsel
For his final ground for habeas relief, Petitioner argues that he was denied effective assistance of trial counsel. Specifically, Petitioner argues that his trial counsel failed to investigate and complete his defense by challenging Ms. Holt's credibility through: (1) the text messages between him and Ms. Holt; and (2) the police report regarding the September 29thincident. [Dkt. 3 at 57-58.] Petitioner exhausted this argument by raising it in his CPL § 440.10 motion to the County Court, and by appealing the County Court's denial to the Appellate Division. The County Court determined that Petitioner's claim was without merit and that Petitioner “failed to demonstrate the absence of a strategic or other legitimate explanation for defense counsel's alleged failure to investigate or pursue an avenue of inquiiy, the [Petitioner's] mere disagreement with that strategy is insufficient to establish that counsel was ineffective.” [Dkt. 10-40 at 8-9.]
Similar to Petitioner's ineffective assistance of appellate counsel claim, in order for Petitioner to prevail on an ineffective assistance of trial counsel claim, Petitioner must show: (1) his counsel's performance “fell below an objective standard of reasonableness,” and (2) he suffered prejudice as a result. Strickland, 466 U.S. at 688, 691, 694. A failure by trial counsel to investigate a defendant's case may serve as the basis for an ineffective assistance of counsel claim. See id. at 690. “[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Id. at 691. When a petitioner claims ineffective assistance of counsel due to failure to investigate, counsel's decision “must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.” Id. Indeed, a petitioner “must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. at 689. Further, “a petitioner must do more than make vague, conclusory, or speculative claims as to what evidence could have been produced by further investigation. United States v. Peterson, 896 F.Supp.2d 305, 316 (S.D.N.Y. 2012).
Here, Petitioner first argues that his counsel should have “investigated” the text messages between him and Ms. Holt. However, the record shows that, prior to Petitioner s first trial, defense counsel extracted the text messages from Petitioner's cell phone and shared them with the prosecution. The trial court nonetheless precluded the defense from using the text messages at trial because defense counsel-acting on Petitioner's instructions-refused to comply with the court's order directing her to turn Petitioner's cell phone over to the prosecution for their review. [Dkt. 10-36 at 189-207.] Thus, even though Petitioner's cell phone was apparently lost by the public defender's office sometime between the first trial and the second trial, defense counsel was familiar with Petitioner's text communications with Ms. Holt and was therefore in a position to make a “reasonable decision” whether to seek those communications via a subpoena to Petitioner's cell phone carrier. Strickland, 466 U.S. at 691. Notably, defense counsel had and used at trial-ample evidence to undercut Ms. Holt's credibility. Counsel's cross-examination stressed impeaching characteristics including the victim's heavy drinking, drug use, and profligate spending. Counsel called Petitioner's sister to testify about an incident in which Ms. Holt falsely accused Petitioner of rape, and also called two medical experts whose testimony called into question the victim's claim to have been sodomized with the broomstick. Against this backdrop, trial counsel's decision not to attempt to recover the previously-precluded text messages via subpoena when they “would not contribute substantially to [Petitioner's] defense [was] not unreasonable.” Davis v. Greene, 2008 WL 216912, at *10 (S.D.N.Y. Jan. 22, 2008).
Defense counsel's decision not to pursue this line of inquiry seems particularly justifiable in light of the likelihood that, on retrial, the court would adhere to the preclusion ruling based on the antecedent discovery violation.
Petitioner also argues that his counsel should have “investigated” the police report because it “would have proven that Ms. Holt provided false or perjurious testimony and that the People failed to correct it.” [Dkt. 3 at 58-59.] In support of this argument, Petitioner states that his trial counsel was “in possession of' the police report but chose not to use it. Id. Because Petitioner's counsel was in possession of the police report, there is no basis for Petitioner s claim that counsel failed to “investigate” it. As for counsel's choice not to use the police report during her cross-examination of Ms. Holt, “[d]ecisions about whether to engage in cross-examination, and if so to what extent and in what manner, are ... strategic in nature” and “generally will not support and ineffective assistance claim.” Dunham v. Travis, 313 F.3d 724, 732 (2d Cir. 2002) (quotation omitted). Here, Petitioner's counsel's cross-examination of Ms. Holt regarding the September 29'h episode underscored the fact that Petitioner called the police on that occasion, that Ms. Holt had been drinking, and that the police who responded did not credit her account because she appeared “drunk.” [Dkt. 10-7 at 45-47.] Petitioner has not shown why this line of questioning was inadequate, or why more explicit use of the September 29th police report would have contributed substantially to his defense. In short, Petitioner has failed to rebut the presumption that counsel's strategic decisions were sound. See Strickland, 466 U.S. at 689.
In sum, the County Court's holding that Petitioner was not denied effective assistance of trial counsel was neither contrary to Supreme Court law, nor an unreasonable interpretation of the facts. Accordingly, I respectfully recommend Your Honor conclude that Petitioner received effective assistance of trial counsel and that his claim is without merit.
V. CONCLUSION
For the reasons set forth above, I respectfully recommend that Your Honor DENY the Petition for a Writ of Habeas Corpus. I recommend that no certificate of appealability be issued 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. See 28 U.S.C. 2253 (c); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, 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 service 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 an additional three (3) days, or a total of seventeen (17) days, from service of this Report and Recommendation to serve and file written objections. See also Fed.R.Civ.P. 6 (d). Such objections, if any, along with any responses to the objections, shall be filed with the Clerk of the Court with extra copies delivered to the chambers of the Honorable Vincent Briccetti, at the Honorable Charles L. Brieant Jr. Federal Building and United States Courthouse, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered. See Caidor v. Onondaga County, 517 F.3d 601, 604 (2d Cir. 2008).
Requests for extensions of time to file objections must be made to Judge Briccetti. A copy of this Report and Recommendation has been mailed to:
Justin Carrino 13-A-5200 Wende Correctional Facility 3040 Wende Rd P.O. Box 1187 Alden, NY 14004-1187