Cox v. Bradt

Full title: KEITH COX, Petitioner, v. MARK BRADT, Respondent.

Court: UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Date published: Jun 15, 2012

10 Civ. 9175 (CM) (JLC) (S.D.N.Y. Jun. 15, 2012)

Opinion

10 Civ. 9175 (CM) (JLC)

06-15-2012

KEITH COX, Petitioner, v. MARK BRADT, Respondent.

Keith Cox 107-07 142nd Street Jamaica, NY 11435 Alyson J. Gill State of New York Office of the Attorney General Federal Habeas Corpus Section 120 Broadway New York, NY 10271-0332

JAMES L. COTT, United States Magistrate Judge.

REPORT AND RECOMMENDATION

JAMES L. COTT, United States Magistrate Judge.

To the Honorable Colleen McMahon, United States District Judge:

Pro se petitioner Keith Cox seeks a writ of habeas corpus under 28 U.S.C. § 2254, challenging his June 8, 2007 conviction and sentence in New York State Supreme Court, New York County. Cox was convicted of burglary in the third degree under New York Penal Law § 140.20. The Court found Cox to be a second felony offender and sentenced him to a prison term of three and one-half to seven years. In his Petition, Cox alleges that the admission of seven trespass notices into evidence at trial violated his right to confrontation and due process; the prosecution's remarks during its opening statement and summation violated his right to a fair trial; his trial counsel provided ineffective assistance; and the trial court lacked jurisdiction and denied him a speedy trial. For the reasons stated below, I recommend that the Petition be DENIED.

I. BACKGROUND

The following facts are drawn from the record of proceedings before the state trial court. In view of Cox's conviction, the evidence presented at trial is summarized in the light most favorable to the verdict. See Garbutt v. Conway, 668 F.3d 79, 80 (2d Cir. 2012) (citation omitted).

A. The Evidence Presented at Trial

1. The Prosecution's Case

On October 20, 2006, at approximately 6:40 p.m., Keith Cox entered a Duane Reade drugstore located at 4 Times Square in Manhattan. (Trial Transcript Volume II 46:10-47:15).¹ Izri Marrero, a plain-clothed loss prevention officer at Duane Reade, observed Cox enter the multi-level store and take the escalator to the lower level. (Tr. II 42:11-12, 45:19-24, 47:4-48:13, 48:18-20). Marrero followed Cox to the lower level and, while he was still on the escalator about two feet from Cox, observed Cox "stuffing" cameras from a display into his backpack. (Tr. II 48:11-50:6). Cox then proceeded towards the store exit where Marrero stopped him and requested that he re-enter the store so Marrero could ask him some questions. (Tr. II 51:5-25, 52:1-4). Cox complied. (Tr. II 52:5-7). Marrero opened Cox's backpack and retrieved twelve Kodak cameras. (Tr. II 52:12-53:14). While Marrero believed the cameras he retrieved were the same cameras he had observed Cox stuffing into his backpack, Cox told him that he had stolen the cameras from a Conway store. (Tr. II 53:18-21, 57:19-22).

1 The transcript of the proceedings before the New York State Supreme Court, New York County (the "trial court" or "state court") consists of four volumes that are separately paginated. The first volume contains the minutes of the pretrial proceedings, which occurred on April 11, 2007 ("Tr. I"). The second volume contains the minutes of the trial, which occurred on April 16 and 17, 2007. ("Tr. II"). The third volume consists of the predicate felony hearing, which occurred on May 10, 2007 ("Pr. Felony Hear. Tr."). The fourth volume consists of the sentencing hearing, which occurred on June 8, 2007 ("Sent. Tr.").

Cox complied with Marrero's request to accompany him to a stock room on the lower level, where Marrero took Cox's photograph. (Tr. II 57:23-58:11). Marrero asked Cox if he had ever been "caught" shoplifting in a Duane Reade store, and Cox said he had not. (Tr. II 58:24-59:2). Marrero then issued Cox a trespass notice and explained that Cox's privilege to enter any Duane Reade store was thereafter revoked. (Tr. II 59:2-12). Marrero asked Cox to sign the notice, but Cox refused. (Tr. II 60:2-5). Marrero also told Cox that if the total value of the cameras exceeded a certain amount, he would need to call the police to arrest Cox. (Tr. II 59:13-17). Duane Reade employees then confirmed that the twelve cameras were Duane Reade merchandise because they rang up on the store's cash register. (Tr. II 53:18-21). Specifically, the cash registers rang up the cameras as costing $11.99 each, for a total of $155.93 for the twelve cameras including tax. (Tr. II 53:18-55:1). Based on this calculation, a store manager called the police, who arrested Cox. (Tr. II 61:18-24; see also Tr. II 78:16-22, 79:25-80:7).

William Chalavoutis, a loss prevention auditor responsible for asset protection throughout the entire Duane Reade chain, testified regarding the store's purpose in, and practice of, issuing trespass notices. (Tr. II 14:5-7, 15:5-6). Chalavoutis testified that a trespass notice is issued at the time of a shoplifting incident to notify a purported violator that he is no longer permitted to enter any Duane Reade location. (Tr. II 15:23-16:9). Chalavoutis explained that, according to the store protocol for issuing trespass notices, the Duane Reade employee or store detective who stops a suspected violator will escort the violator to a manager's office or stock area where the employee fills out and issues the trespass notice privately, reads the language contained in the notice to the violator, requests certain identifying information, asks for his signature, and takes his photograph for identification purposes. (Tr. II 16:15-17:24, 18:8-21, 19:10-16). The completed trespass notice is then sent to the main Duane Reade office. (Tr. II 19:17-19).

After a violator receives the trespass notice, he may be released if the amount of the merchandise involved is below a certain amount or if the incident was free of violent activity. (Tr. II 19:22-20:1). When a violator is apprehended, a Duane Reade employee on site will contact the main office, where the violator's name is checked against a database of prior trespass notices. (Tr. II 20:2-6). If the violator is apprehended after the main office closes, which usually occurs around 5:30 p.m., the Duane Reade employee issuing a trespass notice does not call the main office. (Tr. II 20:2-12). Chalavoutis further testified that it is "the regular course of business for Duane Reade to make and keep these trespass notices" (Tr. II 21:23-25); that the entries on the trespass notices are "made at the time the recorded transaction or events took place or within a reasonable time there[]after" (Tr. II 22:1-4); and that the employee or store detective completing the trespass notice is "under a business duty to do so accurately." (Tr. II 22:5-8).

The evidence at trial established that the October 20, 2006 incident was not the first time that Cox had been issued a trespass notice in a Duane Reade store. Between October 31, 2005 and October 7, 2006, Cox had been issued seven trespass notices for stealing or damaging store property at various Duane Reade locations. (See Declaration Opposing a Petition for a Writ of Habeas Corpus ("Opp'n Decl.") (Dkt. No. 15), Exhibit ("Ex.") A (Trespass Notices)).² The notices issued to Cox set forth his name, date of birth, and address. (Tr. II 23:21-24:1, 25:14-19, 27:1-5, 28:9-13, 29:11-13, 30:10-13, 31:9-12). Each contains the following language, or a nearly-identical variation: "I, [Keith Cox] understand that my privilege to enter all Duane Reade stores is revoked. I was told that if I re-enter any of these stores, I can be arrested for the crime of Trespass, pursuant to section 140.10 of the New York State penal law and any Other appropriate criminal charge." (Tr. II 24:4-9, 25:20-25, 27:6-8, 28:14-16, 29:14-17, 30:14-16, 31:13-15). Below this statement is a space for the "Signature of the person receiving the notice" along with the date. (Tr. II 24:10-11, 26:6-7, 27:11-13, 28:17-18, 29:18-24, 30:14-14, 31:20-23). Cox's signature appears on six of the seven notices, and the unsigned notice is marked "refused." (Id.). Cox's photograph is attached to several of the seven notices that were admitted into evidence at trial. (Tr. II 26:10-22, 28:1-8, 28:21-29-2, 29:25-30:2, 30:25-31:8, 31:24-7).³

2 The trespass notices are dated: October 31, 2005, November 21, 2005, November 26, 2005, February 2, 2006, March 28, 2006, April 18, 2006, and October 7, 2006.

3 The Court notes that the copies of the trespass notices issued to Cox contain additional information. In particular, below the signature line, the notices contain the following statement: "[T]he above-named individual was given this trespass notice after she/he was observed inside the store located at . . . ." and there is a space where the issuing Duane Reade employee has described the reasons for the issuance. (Opp'n Decl., Ex. A). The record before the Court shows no indication that this portion of the trespass notices was presented to the jury.

After Chalavoutis testified about the trespass notices, the trial court gave an instruction regarding the limited purpose of the trespass notices as evidence. In particular, the trial court explained to the jury that the trespass notices were "not admitted to show that [Cox] committed other crimes on other occasions and it's no proof whatsoever that he possessed the propensity or disposition to commit the crime charged in this indictment or any other crime. It is not offered for such purposes and must not be considered by you for that purpose." (Tr. II 39:17-24). Rather, the trial court stated that the notices had been offered "solely for the purpose of the defendant[']s intent in this case and his knowledge that he was not to enter any Duane Reade stores and solely is [sic] the contention of the prosecution." (Tr. II 40:1-5).

When his case was presented to the grand jury on December 28, 2006, Cox testified that he sold cameras on the street and that an acquaintance had provided him with the cameras that were found in his bag on October 20, 2006. (Tr. II 88:24-90:8 (excerpt of Cox's grand jury testimony as read into evidence at trial)). He also identified two of the prior trespass notices (Tr. II 90:10-91:25), and stated that the notices had "probably" been read to him. (Tr. II 91:11-12).

2. Cox's Testimony

Cox was the sole witness in his defense. He testified that on October 20, 2006, he was in midtown Manhattan looking for an acquaintance, Anthony Darden, who owed him money. (Tr. II 101:25-102:12). Cox had done business with Darden for the three previous years, selling cameras on Broadway. (Tr. II 104:15-20, 108:3-13). Earlier that week, Cox had purchased Kodak cameras from Darden but could not sell them so, on October 20, he was looking for Darden to recover his money in exchange for the cameras. (Tr. II 107:23-108:2, 117:14-18). As Cox walked to the subway station located on Broadway between 42nd and 43rd Streets, he suffered from fever-like symptoms caused by an infection on his face. (Tr. II 1021:13-24). He entered what he recognized to be a drugstore, although he did not realize it was a Duane Reade store. (Tr. II 102:18-21, 104:21-23, 110:5-9, 142:1-24). Cox stopped first at the counter to ask where he could find treatment for his face infection. (Tr. II 102:18-24, 111:2-16). He then went downstairs and asked for assistance at the pharmacy and was directed to an aisle containing shampoo. (Tr. II 102:25-103:3). While Cox was looking at the shampoos, a security guard named "Victor" asked him to open his bags, and Cox complied. (Tr. II 103:21-25). After Victor had looked inside Cox's bags, he returned them to Cox and told him "to go about [his] business." (Tr. II 104:1-4).

Shortly thereafter, Cox left the store without making any purchases. (Tr. II 114:15-17, 115:16-116:1). When he was halfway down the block after leaving the store, Marrero stopped him. (Tr. II 103:9-12, 115:20-25). Cox walked with Marrero back to the store, where Victor told Marrero that he had already searched Cox's bag and found nothing from the store. (Tr. II 115:25-116:3). Marrero, however, insisted that he had observed Cox place something from the store into his backpack. (Tr. II 116:4-6). He directed Cox to the storage room within the store. (Tr. II 118:5-7). There, Marrero removed twelve Kodak cameras from Cox's backpack—the cameras that Darden had given him earlier that week. (Tr. II 117:5-7, 138:8-10). Marrero read to Cox a portion of the trespass notice, which stated that Cox had removed twelve cameras from the store. (Tr. II 118:8-10). Marrero never read to Cox the section of the notice stating that his privilege to enter all Duane Reade stores was thereafter revoked. (Tr. II 121:20-122:2). Cox refused to sign the notice because he "didn't do anything." (Tr. II 121:24-122:4).

During his cross-examination, Cox further testified that in addition to obtaining medicine for himself, he also planned to fill a prescription issued to his godmother while he was in the pharmacy. (Tr. II 140:17-141:9). Additionally, he denied that he had been told he was prohibited from entering Duane Reade stores even though he had testified before the grand jury that he had been told he could not do so. (See Tr. II 144:11-149:8). Cox also admitted to a criminal history that included a felony robbery charge in 1994, and four separate petit larceny convictions between 2005 and 2006. (Tr. II 150:8-153:2).

B. Procedural History

1. The Trial Court Proceedings

On February 22, 2007, Cox, then proceeding pro se, unsuccessfully moved to dismiss the indictment against him on the grounds that "(1) the initial complaint was based on hearsay; and (2) he was denied his right to a speedy trial." (See Memorandum of Law Opposing Petition for a Writ of Habeas Corpus, dated May 23, 2011 ("Opposition" or "Opp'n Mem.") (Dkt. No. 16), at 9 n.2; see also Opp'n Decl., Ex. B (Petitioner's Motion to Set Aside Verdict, dated May 9, 2007), at 2-3 (enumerating grounds for moving to dismiss indictment)).

At a pretrial conference on April 11, 2007, the prosecution sought to admit into evidence at trial the seven trespass notices Duane Reade had issued to Cox prior to his October 20, 2006 arrest. (Tr. I 53:20-54:4). The prosecution sought the admission of the trespass notices in part under People v. Molineux, 168 N.Y. 264, 293-94 (1901), which announced an evidentiary rule pursuant to which evidence of uncharged crimes may be admitted when probative of a material element of a charged offense.⁴ To make out a prima facie case of burglary in the third degree, the prosecution had to prove that Cox "[k]nowingly entered . . . unlawfully with intent to commit a crime." (Tr. I 59:15-16). The prosecution argued that the trespass notices helped establish Cox's knowledge and intent in entering the Duane Reade on October 20, 2006. (Tr. I 61:5-64:8; see also Tr. I 66:12-67:21). The prosecution also stated that it would seek to inquire about the trespass notices and previous convictions related to theft if Cox were to testify under People v. Sandoval, 34 N.Y.2d 371, 374 (1974), which permits a trial judge to rule in advance of trial with respect to the prosecution's use of a defendant's prior convictions or misconduct to impeach credibility. (See Tr. I 53:20-54:3).

4 In Molineux, 168 N.Y. at 293, the New York Court of Appeals "adopted what law students have come to know as the 'MIMIC' exceptions to the proscription against the prosecution's use of evidence of other crimes at trial." Archbold v. Hessel, No. 08 Civ. 3898 (SHS) (FM), 2011 WL 2671527, at *6 n.5 (S.D.N.Y. June 20, 2011) (citing Fed. R. Evid. 404(b), which provides that evidence of other "crimes, wrongs, or acts" is admissible in federal court to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident," if the defendant receives adequate advance notice of general nature of evidence prosecution proposes to use).

Cox's trial counsel challenged the admission of the trespass notices, arguing they were uncharged crimes proffered as "propensity" evidence, which would be "strongly prejudicial" to Cox. (Tr. I 67:25-68:2-7). The trial court, however, determined that the notices were relevant to establish that Cox knew he was prohibited from entering Duane Reade stores, and that he intended to commit the crime of burglary upon entry. (Tr. I 73:22-74:9). It further found that the probative value of admitting the trespass notices significantly outweighed the prejudice, especially if the notices were redacted to minimize any prejudice. (Tr. I 74:16-23). The trial court then directed the prosecution to redact the narrative portion of each trespass notice that described the conduct prompting its issuance. (Tr. I 75:12-20; see also Tr. I 77:5-10). It further ruled that the prosecution should redact photographs or portions of photographs that were attached to some of the notices and showed the merchandise Cox was purported to have stolen, although the photographs of Cox could be admitted for identification purposes. (Tr. I. 75:21-26, 80:2-16).

Cox's counsel also objected to the admission of the notices as violating Cox's right to confrontation, noting that they contained out of court statements prepared by individuals who would not be testifying at trial and thus could not be cross-examined. (Tr. I 76:10-23). The prosecution responded by arguing that the trespass notices had not been prepared in anticipation of litigation but "were prepared to ban a person from a store." (Tr. I 76:26-77:3). The prosecution further explained that "when [Duane Reade] find[s] out someone has stolen a toothbrush, something minor, they let the person go. But, if they find out the people have a prior history in their stores they will contact the police based on that, [and] have them arrested for a petty larceny." (Tr. I 78:14-19). Therefore, the prosecution argued that the notices were business records and not subject to confrontation. (See Tr. I 76:24-79:5). The trial court overruled Cox's objection and determined that the prosecution could admit the trespass notices if it could lay a proper foundation to establish they were business records. (Tr. I 79:22-80:2, 81:5- 18). The trial court also agreed to provide a limiting instruction to the jury. (Tr. I 79:16-80:5, 291:10-293:17).

The trial commenced on April 16, 2007 with Cox represented by counsel. After the prosecution rested, Cox's counsel moved to dismiss the burglary count, arguing that the prosecution had failed to make out a prima facie case because the charge was based solely on inferential hearsay. (Tr. II 93:2-21). The trial court denied the motion. (Tr. II 93:24-94:6). On April 17, 2007, the jury returned a guilty verdict as to the charge of burglary in the third degree pursuant to New York Penal Law ("PL") § 140.20. (Tr. II 283:20-284:11).

On May 9, 2007, Cox, proceeding pro se, moved to set aside the verdict under Section 330.30 of the New York Criminal Procedure Law ("CPL") (the "motion to set aside the verdict") on the grounds that: (1) the prosecution had suppressed exculpatory video surveillance evidence and a radio run report; (2) the trial court failed to rale on Cox's pro se motion to dismiss the indictment, thus denying him due process of law; and (3) he received ineffective assistance of counsel. (Opp'n Decl., Ex. B at 1; see also Sent. Tr. 2:12-13 (trial court referring to that motion)). On May 10, 2007, the trial court held a predicate felony hearing, during which the prosecution filed a statement of predicate felony conviction pursuant to CPL § 400.20. (Pr. Felony Hear. Tr. 3:16-25).

At the sentencing hearing on June 8, 2007, the prosecution opposed Cox's motion to set aside the verdict. (Sent. Tr. 2:16-20). The trial court concluded that there was "no merit whatsoever" to the motion, observing, among other things, that trial counsel was "very effective" and had "represented Mr. Cox admirably." (Sent. Tr. 3:14, 4:2-16, 6:8-9). The court also found Cox to be a predicate felon. (Sent. Tr. 13:10-11). Cox's counsel requested that he be sentenced to a term less than the maximum permitted by law, because of his limited understanding of the proceedings and the non-violent nature of his crimes. (Sent. Tr. 15:7-18:13). However, the trial court sentenced him as a "second felony offender" to the maximum sentence allowable by law, an indeterminate prison term of three and one-half to seven years. (Sent. Tr. 20:22-21:2).

2. Cox's Direct Appeal

On March 23, 2009, Cox, again represented by counsel, filed an appeal in the Appellate Division, First Department, asserting that (1) the trial court deprived him of his Sixth Amendment right to confrontation when it admitted the trespass notices into evidence; (2) the trial court improperly admitted all seven trespass notices, exceeding the scope of the trial court's Molineux ruling because a lesser number would have been sufficient; (3) the prosecution made improper remarks during opening and in summation by implying Cox had a propensity to shoplift from Duane Reade, in violation of his right to a fair trial; and (4) his sentence was overly harsh under the circumstances. (Opp'n Decl., Ex. C (Brief for Defendant-Appellant, dated March 2009), at ii-iii, 63).

The Appellate Division affirmed the conviction on June 30, 2009. People v. Cox, 883 N.Y.S.2d 184 (2009) (also available as Opp'n Decl., Ex. E). The Appellate Division rejected Cox's first two claims, concluding that all seven notices were properly admitted because (1) the notices helped establish Cox's knowledge and intent in entering the Duane Reade and his conduct in the store, and (2) the trial court "minimized any prejudice" by ordering that the notices be redacted "to eliminate any reference to the conduct that prompted them" and charging the jury with a limiting instruction. Id. at 185. The court also rejected Cox's arguments that the prosecution's opening statement was "argumentative" and that the summation "made improper use of prior convictions that had been elicited when defendant testified at trial." Id. The court found "[a]ll of [Cox's] remaining challenges to the opening statement and summation [were] unpreserved[,]" and rejected them on the merits in the alternative. See id. Finally, the Appellate Division "perceive[d] no basis" for reducing Cox's sentence. Id. at 186.

By letters dated August 7, 2009 and September 16, 2009, Cox requested leave to appeal to the New York Court of Appeals. (Opp'n Decl., Ex. F (Letter to Hon. Jonathan Lippman, dated Aug. 7, 2009); Opp'n Decl., Ex. G (Letter to Hon. Jonathan Lippman, dated Sept. 16, 2009)). His application was denied on November 30, 2009. People v. Cox, 13 N.Y.3d 859 (2009) (Table) (also available as Opp'n Decl., Ex. H).

3. Cox's Motion to Vacate the Judgment

On November 1, 2010, Cox, again proceeding pro se, moved pursuant to CPL § 440.10 before the trial court to vacate the judgment (the "motion to vacate") on the grounds that (1) the judgment was obtained in violation of his Sixth Amendment right to confrontation, (2) his trial counsel provided him with ineffective assistance, and (3) the trial court lacked jurisdiction to impose the judgment. (Opp'n Decl., Ex. I (Notice of Motion to Vacate Judgment dated Nov. 1, 2010) , at 1-2; see also Opp'n Decl., Ex. I (Affidavit of Keith Cox in Support of Motion to Vacate Judgment, dated Nov. 1, 2010)).⁵

5 Section 440.10(1) states, in relevant part that upon motion of a defendant, "[a]t any time after the entry of a judgment, the court in which it was entered may, upon motion of the defendant, vacate such judgment upon the ground that: . . . (a) The court did not have jurisdiction of the action or of the person of the defendant; . . . or (h) The judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States."

On January 28, 2011, the court denied Cox's motion to vacate on both procedural and substantive grounds. (Opp'n Decl., Ex. L at 8). Although the court determined that Cox had preserved his Confrontation Clause claim, it declined to review the claim on the merits because the Appellate Division had previously rejected it and there had been no change in the law to warrant additional consideration. (Id. at 2). Additionally, the court found no merit to Cox's ineffective assistance of counsel claim, which, although preserved, contained "no specific allegations." (Id. at 7-8). Finally, the court reasoned that Cox's jurisdictional claim was unpreserved because he had not argued it on direct appeal, and even if he had, the record "demonstrate[d] proper CPL § 170.20 notice was given to [Cox]." (Id. at 3, 5).

On February 14, 2011, Cox moved for reargument on his motion to vacate. (Opp'n Decl., Ex. M (Notice of Motion Pursuant to New York Civil Practice Law & Rules ("CPLR") § 2221(d)(2) for Reargument, dated Feb. 14, 2011)). The state court denied his motion on April 8, 2011. (See Opp'n Mem. at 14). On April 15, 2011, Cox applied to the Appellate Division for leave to appeal the denial of his motion. (See id.). This Court's review of the Appellate Division Calendar demonstrates that on May 31, 2011—after Cox had filed his Petition and the State had submitted its opposition—the Appellate Division denied Cox's application, finding "there is no question of law or fact presented which ought to be reviewed." (See Certificate Denying Leave, entered on June 21, 2011, available at http://www.nycourts.gov/courts/ad1/calendar/appsmots/2011/June/2011_06_21_mot.pdf, at 60).⁶

6 Neither party has otherwise provided the Court with this information.

4. Cox's Petition

Cox brought the instant pro se habeas petition, dated November 29, 2010, pursuant to 28 U.S.C. § 2254 against Mark Bradt, superintendent of the Attica Correctional Facility (the "State"). (Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody ("Petition" or "Pet.") (Dkt. No. 2).⁷ In the Petition, Cox asserts several grounds for challenging his conviction. First, he alleges that he was "denied his rights to a fair appraisal of the constitutional questions raised in the lower courts[,] including the Court of Appeals . . . on direct appeal." (Pet. § 13, "One"),⁸ Reviewing his submission liberally, as we must, the Court deems the first ground to include his objection to the admission of the seven trespass notices issued by Duane Reade, which, Cox contends, implicates his Sixth Amendment right to confrontation and his Fourteenth Amendment right to due process because the notices were evidence of uncharged crimes. (See Opp'n Decl., Ex. C at 26-50). The Court also interprets this challenge to include his argument that the prosecution's comments during opening statement and summation violated his right to a fair trial under the Fourteenth Amendment. (See Opp'n Decl., Ex. C. at 50-59). Second, he argues that the trial court denied him a speedy trial and lacked jurisdiction pursuant to CPL §§ 170.20, 200.60. (Pet. § 13, "Two"). Finally, Cox alleges that trial counsel provided him with ineffective assistance by "fail[ing] to investigate, [or] interview potential witnesses as well as failing to raise [a] 'particularly strong' Rosario claim." (Pet. § 13, "Three").⁹

7 Although Cox was incarcerated at Attica Correctional Facility at the time he filed his Petition, Cox was released on parole from a separate facility on June 5, 2012, according to the New York State Department of Corrections and Community Supervision Inmate Lookup service. See http://nysdoccslookup.doccs.ny.gov/. He is therefore no longer in the custody of Respondent Mark Bradt. However, at the time of filing, Bradt was the properly named respondent under Rule 2(a) of the Rules Governing Section 2254 Cases in the United States District Courts, which requires that a state prisoner's habeas petition "name as respondent the state officer who has custody." Accordingly, the Court treats Cox's Petition as if he had named the proper respondent. See, e.g., Bell v. Ercole, 631 F. Supp. 2d 406, 411 n.1 (S.D.N.Y. 2009) (although petitioner was relocated to different prison after filing petition, court deemed respondent proper because named respondent had custody of petitioner at time he filed petition, petitioner was pro se, and State did not challenge court's jurisdiction) (citations omitted). Additionally, the fact that pox has been released on parole does not moot his habeas petition, as he remains subject to "collateral consequences" from his conviction. See Spencer v. Kemna, 523 U.S. 1, 7-8 (1998) (petitioner's incarceration when he filed petition, despite subsequently being paroled, was all that "'in custody' provision of 28 U.S.C. § 2254 requires" and collateral consequences of wrongful conviction are presumed to exist, even if "remote and unlikely to occur") (citations omitted).

8 Although Cox has not specified in his Petition precisely which constitutional claims support his request for habeas relief, he has attached to the Petition both the Table of Contents of his brief to the Appellate Division and his application for leave to appeal to the Court of Appeals. As both documents raise constitutional claims, and because Cox is pro se, this Court construes the Petition to include the constitutional claims raised therein. See, e.g., McRae v. Senkowski, No. 01 Civ. 2916 (GWG), 2002 WL 1880730, at *6 (S.D.N.Y. Aug. 15, 2002) (incorporating arguments made on direct appeal in habeas proceeding because petition directed court to "See the Brief" as grounds for habeas relief).

9 The reference is to People v. Rosario, 9 N.Y.2d 286, 289 (1961), which recognized "a state law duty on the part of the prosecutor to give defense counsel all pretrial statements of prosecution witnesses." Boyette v. Lefevre, 246 F.3d 76, 85 n.5 (2d Cir. 2001).

On May 23, 2011, the State filed its opposition to the Petition, arguing that each of Cox's claims lacks merit and that certain of his objections to the prosecution's opening statement and summation as well as his jurisdictional and speedy trial claims are procedurally barred by an independent and adequate state law. (See Opp'n Mem, at 19-52).¹⁰

10 After Cox sought leave to appeal the denial of his motion to vacate in state court, the State requested a stay of the Petition until Cox had exhausted all available state remedies for three of the claims that he alleges in the Petition. The Court denied the request for a stay without prejudice to renew the request upon the State's response to the Petition. (Order dated Apr. 19, 2011 (Dkt. No. 13)). The State did not renew its request.

On June 17, 2011, Cox filed his reply memorandum, responding primarily to the State's argument that certain of his claims are procedurally barred because they were rejected as unexhausted by the court that denied his motion to vacate. (Petitioner's Reply to Notice of Motion and Memorandum of Law Opposing Habeas Corpus ("Reply Memorandum" or "Reply Mem."), at 2, 4-5 (Dkt. No. 17)).

Cox's Petition is dated November 29, 2010. (Pet. at 6). Under 28 U.S.C. § 2244(d)(1), a federal habeas corpus petition must be filed within one year of the date on which the petitioner's state court conviction became final. Here, petitioner's conviction became final on March 1, 2010, after the time to seek a writ of certiorari had expired. Thus, Cox had until March 1, 2011 to file his petition. His petition is therefore timely under AEDPA's one-year statute of limitations, a point the State concedes. (Opp'n Mem. at 14 (citing 28 § U.S.C. 2254 (d)(1); Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001))).

II. DISCUSSION

A. Applicable Legal Standards

1. AEDPA's Exhaustion Requirement

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") requires state prisoners seeking federal habeas relief to exhaust available state court remedies prior to seeking relief in federal court. See 28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement provides "the state the opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam) (internal alterations and quotations omitted)). A petitioner must "alert the state court to the constitutional nature of a claim[,]" St. Helen v. Senkowski, 374 F.3d 181, 182 (2d Cir. 2004) (citation omitted), although he need not "cite 'chapter and verse of the Constitution' in order to satisfy this requirement." Carvajal, 633 F.3d at 104 (quoting Daye v. Attorney Gen. of N.Y., 696 F.2d 186, 194 (2d Cir. 1982) (en banc)). "State remedies are deemed exhausted when a petitioner has: (i) presented the federal constitutional claim asserted in the petition to the highest state court . . . and (ii) informed that court (and lower courts) about both the factual and legal bases for the federal claim." Thomas v. Heath, No. 10 Civ. 5861 (BSJ) (JLC), 2011 WL 1849097, at *4 (S.D.N.Y. May 16, 2011) (quoting Ramirez v. Attorney Gen. of State of N.Y., 280 F.3d 87, 94 (2d Cir. 2001), adopted, 2011 WL 2671300 (S.D.N.Y. July 6, 2011); see also Richardson v. Superintendent of Mid-Orange Corr. Facility, 621 F.3d 196, 201 (2d Cir. 2010) (exhaustion requires prisoner to "'fairly present' the federal claim 'in each appropriate state court'") (quoting Baldwin v. Reese, 541 U.S. 27, 29 (2004)).

While federal courts may dismiss an unexhausted claim without prejudice to allow a petitioner to exhaust the claim in state court, if a petitioner can no longer present his unexhausted claim in state court, district courts must deem the claim procedurally barred. See id. (citing Acosta v. Artuz, 575 F.3d 177, 188 (2d Cir. 2009) and Coleman v. Thompson, 501 U.S. 722, 732 (1991)); Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001) ("[W]hen 'the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred,' federal habeas courts also must deem the claims procedurally defaulted.") (quoting Coleman, 501 U.S. at 735 n.1).

2. Standard of Review Under AEDPA

Under AEDPA, a federal court may not grant habeas relief on any "claim that was adjudicated on the merits in State court proceedings" unless the state court decision (1) "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." Cullen v. Pinholster, 131 S. Ct. 1388, 1414 (2011) (citing 28 U.S.C. § 2254(d)). The Supreme Court has held that "clearly established Federal law" refers to "the holdings, as opposed to the dicta, of th[e] [Supreme] Court's decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000).

A state court decision is "contrary to" clearly established federal law under the first clause of § 2254(d)(1) "if the state court arrives at a conclusion opposite to that reached by th[e] [Supreme] Court on a question of law or if the state court decides a case differently than th[e] [Supreme] Court has on a set of materially indistinguishable facts." Id. at 412-13. A state court decision involves an "unreasonable application" of clearly established federal law under the second clause of § 2254(d)(1) "if the state court identifies the correct governing legal principle from th[e] [Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. Additionally, a state court unreasonably applies Supreme Court precedent if it "unreasonably extends a legal rule established by the Supreme Court or if it unreasonably fails to extend a legal rule to a context in which the rule reasonably should apply." Serrano v. Fischer, 412 F.3d 292, 296-97 (2d Cir. 2005) (citation omitted).

The Supreme Court has explained "that 'an unreasonable application of federal law is different from an incorrect application of federal law.'" Renico v. Lett, 130 S. Ct. 1855, 1862 (2010) (quoting Williams, 529 U.S. at 410) (emphasis in original). In other words, "'a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. (quoting Williams, 529 U.S. at 411). Rather, "that application must be 'objectively unreasonable[,]'" id. (quoting Williams, 529 U.S at 409), meaning that a "petitioner must identify some increment of incorrectness beyond error in order to obtain habeas relief." Ortiz v. N.Y.S. Parole in Bronx, N.Y., 586 F.3d 149, 156 (2d Cir. 2009) (quoting Lynn v. Bliden, 443 F.3d 238, 246 (2d Cir. 2006)).

3. AEDPA's Procedural Bar for Claims Rejected on an Independent and Adequate State Law Ground

"A federal habeas court will not review a claim rejected by a state court 'if the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment.'" Walker v. Martin, 131 S. Ct. 1120, 1127 (2011) (quoting Beard v. Kindler, 130 S. Ct. 612, 614 (2009)). This rule "is designed to 'ensur[e] that the States' interest in correcting their own mistakes is respected in all federal habeas cases.'" Cone v. Bell, 556 U.S. 449, 465 (2009) (quoting Coleman, 501 U.S. at 732).

The bar on federal courts considering claims that were rejected on independent and adequate state law grounds "applies regardless of whether the independent state law ground is substantive or procedural and whether the case is in federal court on direct review or from state court via a habeas corpus petition." Garvey v. Duncan, 485 F.3d 709, 713 (2d Cir. 2007) (citing Lee v. Kemna, 534 U.S. 362, 375 (2002)). The Supreme Court thus "ha[s] held that when a petitioner fails to raise his federal claims in compliance with relevant state procedural rules, the state court's refusal to adjudicate the claim ordinarily qualifies as an independent and adequate state ground for denying federal review." Cone, 556 U.S. at 465 (citing Coleman, 501 U.S. at 731).

a. Independence

To qualify as an independent ground foreclosing federal habeas review, the state court's reliance on the state procedural rule must be "clear from the face of the opinion." Coleman, 501 U.S. at 735 (citation omitted); see, e.g., Carrion v. Smith, 549 F.3d 583, 587 n.1 (2d Cir. 2008); Messiah v. Duncan, 435 F.3d 186, 195 (2d Cir. 2006). "Even where the state court has ruled on the merits of a federal claim 'in the alternative,' federal habeas review is foreclosed where the state court has also expressly relied on the petitioner's procedural default." Murden v. Artuz, 497 F.3d 178, 191 (2d Cir. 2007) (citing Green v. Travis, 414 F.3d 288, 294 (2d Cir. 2005)); see also Harris v. Reed, 489 U.S. 255, 264 n.10 (1989). However, if the state court decision contains ambiguous language such as "the claims are either unpreserved or without merit," the claims are subject to federal court habeas review. Jimenez v. Walker, 458 F.3d 130, 139-40 (2d Cir. 2006) (citations omitted); see also Grigg v. Phillips, 401 F. App'x 590, 592 (2d Cir. 2010); DeBerry v. Portuondo, 403 F.3d 57, 64 (2d Cir. 2005).

b. Adequacy

A state law ground is "only adequate to support the judgment and foreclose review of a federal claim if it is 'firmly established and regularly followed' in the state." Garyey, 485 F.3d at 713 (quoting Lee, 534 U.S. at 376). In certain limited circumstances, however, even state rules that are firmly established and regularly followed will not foreclose review of a federal claim. This occurs where the particular application of the rule is "'exorbitant.'" Garvey, 485 F.3d at 713-14 (quoting Lee, 534 U.S. at 376). The Supreme Court in Lee determined that the application of a firmly established and regularly followed state procedural rule would be exorbitant based on three considerations, 534 U.S. at 381, which the Second Circuit adopted and summarized in formulating a three-part test in Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003). These three considerations, though not dispositive for determining adequacy, serve as guidelines in evaluating "the state interest in a procedural rule against the circumstances of a particular case." Garvey, 485 F.3d at 714. The three factors are as follows:

(1) whether the alleged procedural violation was actually relied on in the that court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.

Cotto, 331 F.3d at 240 (quoting Lee, 534 U.S. at 381-85).

c. Exceptions to the Independent and Adequate State Law Ground Bar

A petitioner can overcome the procedural bar of an independent and adequate state law ground only if he can demonstrate either (1) "cause for the default and actual prejudice as a result of [an] alleged violation of federal law[,]" or (2) "that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. To establish cause for the default, a petitioner must demonstrate that "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 479 (1986). To establish actual prejudice, a petitioner must demonstrate that the outcome of the case would likely have been different but for the alleged constitutional violation. See Reed v. Ross, 468 U.S. 1, 12 (1984); see, e.g., Collins v. Artus, No. 08 Civ. 1936 (PKC) (JCF), 2009 WL 2633636, at *8 (S.D.N.Y. Aug. 26, 2009).

Absent a showing of cause and prejudice, a petitioner may be entitled to habeas review if he can show that denying review would result in a "fundamental miscarriage of justice." Murray, 477 U.S. at 495-96. A court may grant such relief, however, only in an "extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent." Id. at 496. To be credible, a claim of actual innocence must be supported by "new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial." Schlup v. Delo, 513 U.S. 298, 324 (1995); see, e.g., House v. Bell, 547 U.S. 518, 522 (2006).

4. Interpretation of Pro Se Submissions

Cox is proceeding pro se, and therefore his submissions "'must be held to less stringent standards than formal pleadings drafted by lawyers.'" Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)). Additionally, the Court must liberally construe the pleadings and interpret them "'to raise the strongest arguments that they suggest.'" Diaz v. United States, 517 F.3d 608, 613 (2d Cir. 2008) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Pro se status, however, "does not exempt a party from compliance with relevant rules of procedural and substantive law." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (citation and internal quotation marks omitted).

B. Consideration of Cox's Claims under AEDPA

1. Claims Concerning the Admission of the Trespass Notices into Evidence

The Court construes Cox's Petition to raise two distinct arguments concerning the admission into evidence of the seven trespass notices issued to him prior to his October 20, 2006 arrest. He alleges that the trial court's admission of the seven trespass notices violated, first, his right to confrontation and, second, his right to due process because the notices reflected inadmissible uncharged crimes. (See Opp'n Decl., Ex. C at 26-44). The Appellate Division rejected both arguments on appeal. See Cox, 883 N.Y.S.2d at 185. Therefore, the State concedes that these claims are fully exhausted. (See Opp'n Mem. at 15).

a. Cox's Confrontation Clause Claim

The Sixth Amendment states that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. In Crawford v. Washington, 541 U.S. 36, 49-52, 68 (2004), the Supreme Court interpreted the right to confrontation as a protection against the admission of testimonial hearsay unless certain conditions are met. In particular, the Supreme Court reasoned that the Confrontation Clause of the Sixth Amendment was intended to prohibit a witness's out-of-court testimony "unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Id. at 54.

Although Crawford does not define "testimony" outright, it notes that it encompasses a "core class" of statements such as ex parte in-court testimony, affidavits, statements in response to police interrogation, or similar statements "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Id. at 51-52. In contrast to this definition, Crawford characterized business records as "statements that by their nature [are] not testimonial" and thus not violative of a defendant's hearsay protections. Id. at 56.

In Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2538 (2009), the Supreme Court reviewed more closely the issue of whether business records are testimonial in nature. The Court clarified that "[b]usiness and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because—having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial—they are not testimonial." Id. at 2539-40. The Court relied in part on Federal Rule of Evidence 803(6), which provides that "[d]ocuments kept in the regular course of business may ordinarily be admitted at trial despite their hearsay status," unless "the regularly conducted business activity is the production of evidence for use at trial." Id. at 2538. However, the Court was clear that "[w]hether or not [records] qualify as business or official records" under a jurisdiction's hearsay rules, if they are "prepared specifically for use at petitioner's trial[,]" they are testimonial and subject to confrontation under the Sixth Amendment. Id. at 2540.

The facts proven at Cox's trial demonstrate that the trespass notices are not testimonial because they are created and maintained for Duane Reade's internal administration and not for the purpose of establishing or proving some fact at trial. First, regardless of whether the notices will ever be used in a criminal proceeding—and thus serve as testimony—in every instance of their issuance, the central purpose of the trespass notice is to notify a purported violator that he is no longer permitted to enter any Duane Reade location and to provide Duane Reade with a database of past violators so that it may easily eject them if they enter the store. (Tr. II 15:23-16:9). For example, during pre-trial proceedings, the record established that Duane Reade contacted the police on only three of the eight occasions that Cox was issued a trespass notice, including on October 20, 2006. (Tr. I 55:13-57:15). Additionally, on four of the five occasions that Duane Reade did not contact the police, Cox had previously been issued a trespass notice. (Id.). Therefore, Duane Reade does not automatically contact the police or initiate criminal charges upon discovery that an individual has violated a trespass notice and, indeed, did not do so on four of the seven occasions when Cox was issued a repeat trespass notice. These facts support the trial court's finding that the notices were not testimonial. See Michigan v. Bryant, 131 S. Ct. 1143, 1157 n.9 (2011) (stating that if records are "created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial—they are not testimonial.").

Likewise, Cox's interaction with Duane Reade employees on October 20, 2006 reasonably supports the trial court's finding that the trespass notices were not created for the purpose of establishing or proving some fact at trial. Marrero testified that his decision to contact the police in Cox's case was based on an assessment of the twelve Kodak cameras' value, not the existence of prior trespass notices. (Tr. II 58:24-59:17). This too suggests that Duane Reade's primary intent in maintaining the trespass notice database is not prosecutorial but rather to inform violators that they are banned from entering Duane Reade stores and assist in their prompt removal from Duane Reade stores should they fail to abide by the notices.

A court in this District recently considered the non-testimonial nature of Diane Reade's trespass notices. Liner v. Artus, No. 08 Civ. 5886 (GEL), 2008 WL 5114485 (S.D.N.Y. Dec. 5, 2008). The court in Liner acknowledged that "[i]t may well be that not all business records fall outside of the testimonial category." Id. at *3. Nevertheless, the court rejected the petitioner's Confrontation Clause argument and determined that the trespass notices were non-testimonial business records because they were "generated long before defendant's arrest, were not prepared by or on behalf of law enforcement . . . [or] created solely for the purpose of criminal prosecution" or "to memorialize witness testimony." Id. at *2, 4 (citations omitted). Rather, the trespass notices were intended to "inform[] a suspected shoplifter that he is no longer welcome on the store's property, and is excluded from the store's general invitation to the public to enter its premises . . . [and] are then maintained in substantial part to enable store personnel to identify persons who have been thus excluded." Id. at *4. Although Liner was decided prior to Melendez-Diaz, the court's Confrontation Clause findings did not rely solely on a determination that the trespass notices were business records, but were merely informed by it. Thus Liner is consistent with Melendez-Diaz. Applying the same reasoning, the trespass notices admitted in Cox's case were not testimonial in nature and thus did not implicate Cox's right to confrontation.

Furthermore, the trespass notices issued by Duane Reade include statements by Cox, who in signing them acknowledged that he "underst[oo]d that [his] privilege to enter all Duane Reade stores [wa]s revoked" and that he could be arrested for trespass if he entered another Duane Reade store. (Tr. II 24:4-9, 25:20-25, 27:6-8, 28:14-16, 29:14-17, 30:14-16, 31:13-15). "To the extent that [a petitioner] object[s] to the introduction of [his] own statements, the Confrontation Clause of the Sixth Amendment is not implicated." Hearns v. Artus, Nos. 08 Civ. 192 (NGG), 08 Civ. 218 (NGG), 2010 WL 2653380, at *4 (E.D.N.Y. June 23, 2010) (citing Williamson v. United States, 512 U.S. 594, 605 (1994) (emphasis in original)). That Cox may "confront" himself at trial therefore also supports the trial court's finding that the admission of the trespass notices into evidence did not violate Cox's right to confrontation. See, e.g., Liner, 2008 WL 5114485, at *4 ("[T]he trespass notices in this case are in fact statements of Liner, who by his signature adopted the text reciting that he had been advised that he was no longer welcome in Duane Reade stores.").

b. Cox's Due Process Claim

In his Petition, Cox also advances an argument made to the Appellate Division, that the trial court's admission of so many trespass notices—seven prior notices and one for the October 20, 2006 incident—exceeds the rule announced by Molineux that although "[e]vidence of uncharged crimes is inadmissible where its only purpose is to show bad character or propensity towards crime[,] . . . [w]hen evidence of uncharged crimes is relevant to some issue other than the defendant's criminal disposition, it is generally held to be admissible on the theory that the probative value will outweigh the potential prejudice to the accused." People v. Arafet, 13 N.Y.3d 460, 464-65 (2009) (citations omitted).

As a threshold matter, Molineux sets forth a state evidentiary rule, not a rule of clearly established federal law, and "it is not the province of a federal habeas court to re-examine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see also Roberts v. Scully, 875 F. Supp. 182, 189 (S.D.N.Y. 1995) ("[R]ulings by the state trial court on evidentiary questions are a matter of state law and pose no constitutional issue.") (citation omitted), aff'd, 71 F.3d 406 (2d Cir. 1995). A trial court's decision to admit evidence of uncharged crimes pursuant to Molineux "constitutes an evidentiary ruling based on state law" and is therefore generally not subject to habeas review. Sierra v. Burge, No. 06 Civ. 14432 (DC), 2007 WL 4218926, at *5 (S.D.N.Y. Nov. 30, 2007) ("A decision to admit evidence of a criminal defendant's uncharged crimes or bad acts under Molineux constitutes an evidentiary ruling based on state law.") (citing Roldan v. Artuz, 78 F. Supp. 2d 260, 276-77 (S.D.N.Y. 2000) ("A habeas claim asserting a right to relief on Molineux grounds must rise to the level of a constitutional violation . . . because Molineux is a state law issue.")); see, e.g., Jones v. Phillips, No. 03 Civ. 2115 (ENV), 2008 WL 4146197, at *3 (E.D.N.Y. Sept. 8, 2008).

Moreover, the Supreme Court has expressly declined to decide whether admitting evidence of uncharged crimes violates due process. See Estelle, 502 U.S. at 75 n.5 ("[W]e express no opinion on whether a state law would violate the Due Process Clause if it permitted the use of 'prior crimes' evidence to show propensity to commit a charged crime."); see, e.g., Dixon v. McGinnis, No. 06 Civ. 39 (RJS) (FM), 2010 WL 3260459, at *14 (S.D.N.Y. June 9, 2010) (finding prosecution's inquiry into petitioner's prior convictions during cross-examination, even if improper, was not subject to habeas review because "Supreme Court has yet to rule that the use of such evidence gives rise to a constitutional violation"); Pinero v. Greiner, 519 F. Supp. 2d 360, 367 (S.D.N.Y. 2007) ("Estelle does not prohibit the consideration of evidence of uncharged crimes for the purposes identified by the trial court" where "the trial court made clear that the evidence was to be considered only to show 'that there was a motive for this particular incident, for this particular crime [with] which the defendant is charged'" under Molineux).

Notwithstanding these well-settled principles, habeas relief may be warranted based on a state court's evidentiary ruling in the rare case where a petitioner can demonstrate that an erroneous evidentiary ruling resulted in a violation of a fundamental constitutional right, like the right to a fair trial or due process. See Sierra, 2007 WL 4218926, at *5 (citations omitted); Roldan, 78 F. Supp. 2d at 276. In this context, "[t]he 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.'" Johnson v. Ross, 955 F.2d 178, 181 (2d Cir. 1992) (quoting Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985)). This standard places "a heavy burden" on a petitioner "because evidentiary errors generally do not rise to constitutional magnitude." Sierra, 2007 WL 4218926, at *5 (quoting Copes v. Shriver, No. 97 Civ. 2284 (JGK), 1997 WL 659096, at *3 (S.D.N.Y. Oct. 22, 1997)).

Here, the trial court admitted the trespass notices under Molineux because they tended to support the prosecution's case on two elements of Cox's third-degree burglary charge—his knowledge and his intent to commit the crime. See PL § 140.20 ("A person is guilty of burglary in the third degree when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein."). The notices' tendency to establish that Cox "knowingly entered unlawfully into the store with the intent to commit a crime[,]" as the prosecution phrased its burden (Tr. I 59:10-14), was particularly useful to rebut Cox's claims that he did not know the drugstore he entered on October 20, 2006 was a Duane Reade or that he had been banned from all Duane Reade locations, and therefore could not have known his entry was unlawful. (Tr. II 104:21-23, 110:5-23).

The prosecution's reliance on the admission of the prior trespass notices as "probative of [Cox's] knowledge that he was barred from entering Duane Reade" (Opp'n Mem. at 31) is recognized under federal law as well as under Molineux. Compare Fed. R. Evid. 404(b)(2) (recognizing evidence of a crime, wrong, or other act "may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident") with People v. Till, 87 N.Y.2d 835, 836 (1995) ("A trial court may admit into evidence uncharged crimes when the evidence is relevant to a pertinent issue in the case" if the prosecution does not seek to admit the evidence to help establish criminal propensity, and if the trial court finds that the evidence's "probative value for the jury outweighs the risk of undue prejudice to the defendant") (citing cases).

Additionally, the trial court acted to ensure that the evidence would not be used for propensity purposes and that its probative value in establishing Cox's knowledge and intent outweighed its prejudicial effect. First, the notices were redacted "to eliminate any reference to the conduct that prompted them." Cox, 883 N.Y.S.2d at 185. (See also Tr. I 80:7-24). Second, the trial court provided the jury with a comprehensive limiting instruction, noting that the trespass notices were not admitted to show a "propensity or disposition to commit the crime charged in the indictment or any other crime" but were offered "solely for the purpose of the defendant[']s intent in this case and his knowledge that he was not to enter any Duane Reade stores." (Tr. II 39:17-40:8). Therefore, Cox cannot establish that he was denied due process, or any other constitutional protection, as is needed to satisfy the heavy burden he must meet to obtain habeas relief as a result of the trial court's Molineux ruling. See, e.g., Mercedes v. McGuire, No. 08 Civ. 299 (JFB), 2010 WL 1936227, at *7 (E.D.N.Y. May 12, 2010) (denying habeas petition and finding state trial court's limiting instruction lessened potential prejudicial effect over petitioner's Molineux argument) (citation omitted); Reyes v. Morrissey, No. 07 Civ. 2539 (LAP) (DF), 2010 WL 2034531, at *13 (S.D.N.Y. Apr. 21, 2010) (recommending dismissal of habeas petition and recognizing "[o]ne legitimate reason for the introduction of [uncharged crimes] evidence is 'to complete the narrative of events regarding the commission of the crime'") (quotation omitted), adopted, 2010 WL 2034527 (S.D.N.Y. May 19, 2010).

2. Cox's Fair Trial Claim

Next, the Court construes the Petition to raise a claim that Cox's due process right to a fair trial was violated by the prosecution's "implication" during the opening statement and summation that he had a propensity to shoplift. (Pet. § 13, "One"). As the Petition does not specify what statements Cox believes violated his right to a fair trial, the Court locks to the claims raised on appeal. (Opp'n Decl., Ex. C at 51). First, Cox argued that the prosecution exceeded the scope of the trial court's admission of the notices under Molineux by "repeatedly highlight[ing] the number of the notices [he] had received" during its opening statement. (Opp'n Decl., Ex. C at 51). He argued further that the prosecution compromised his right to a fair trial by suggesting during summation that the notices demonstrated Cox's "modus operandi [was] to shoplift from Duane Reade." (Id.). He also argued that the prejudice of these comments was "exacerbated by [the] prosecution's observation that [Cox's] prior convictions demonstrate [his] 'willingness to break the law whenever he wants.'" (Id. at 55 (quoting Tr. II 226-127 (reference in summation to Cox's testimony on cross-examination concerning prior convictions for, among other conduct, stealing from a Staples store)); see also Tr. II 150:8-19, 151:19-153:2 (Cox's cross-examination testimony concerning prior convictions)). Finally, Cox argued that the prosecution had "exceed[ed] the bounds of legitimate advocacy" by "us[ing] the trespass notices as a prod to jab at [Cox's] credibility and disparage his defense[,]" which amounted to "insult and insinuation." (Opp'n Decl., Ex. C at 55, 57).

The Appellate Division found "no merit" to Cox's contentions that the prosecution had been argumentative during its opening statement or that the summation "made improper use of prior convictions that had been elicited when defendant testified at trial." Cox, 883 N.Y.S.2d at 185. It rejected all of Cox's "remaining" challenges to the fairness of his trial as unpreserved and, in the alternative, as without merit. Id. (citing People v. Overlee, 666 N.Y.S.2d 572 (1st Dep't 1997); People v. D'Alessandro, 591 N.Y.S.2d 1001 (1st Dep't 1992)). While the State concedes that Cox has fully exhausted his fair trial claim (Opp'n Mem. at 15), it opposes Cox's Petition on the grounds that the objections made by Cox's trial counsel were meritless and that Cox's remaining challenges were unpreserved and thus procedurally barred from review. (Opp'n Mem. at 35).

a. Claims Subject to Habeas Review

The Appellate Division held that two of Cox's contentions were preserved for its review, first, that the prosecution's statements were argumentative and, second, that they improperly referred to prior convictions. To the extent the Appellate Division found Cox's fair trial claims preserved and thus reviewable on appeal, this Court should assess whether the Appellate Division's denial of those claims on the merits was based on an unreasonable determination of facts or was contrary to, or an unreasonable application of, clearly established federal law under AEDPA. 28 U.S.C. § 2254(d). Federal courts assessing allegations that prosecutorial misconduct constituted a due process violation must determine whether the conduct "'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Parker v. Matthews, --- S. Ct. ----, No. 11-845, 2012 WL 2076341, at *5 (June 11, 2012) (quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)); see, e.g., Brown v. Lee, No. 10 Civ. 7605 (RWS), 2011 WL 3837123, at *8 (S.D.N.Y. Aug. 30, 2011) (denying habeas petition where petitioner raised prosecutorial misconduct claims). "To constitute a due process violation, the prosecutorial misconduct must be of sufficient significance to result in the denial of the defendant's right to a fair trial." Greer v. Miller, 483 U.S. 756, 765 (1987) (internal quotation marks and citations omitted).

As a general matter, the prosecution has "broad latitude in the inferences it may reasonably suggest to the jury." United States v. Martinez, 419 F. App'x 34, 35 (2d Cir. 2011) (citation omitted). Likewise, "[n]ot every trial error or infirmity . . . constitutes a 'failure to observe that fundamental fairness essential to the very concept of justice.'" Haynes v. Ercole, No. 08 Civ. 3643 (JFB), 2011 WL 2341277, at *10 (E.D.N.Y. June 8, 2011) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974)). Consequently, the Supreme Court has cautioned that "[a] criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone." United States v. Ozsusamlar, 349 F. App'x 610, 611-12 (2d Cir. 2009) (quoting United States v. Young, 470 U.S. 1, 11 (1985)). A court evaluating a prosecutorial misconduct claim should thus consider the severity of the prosecution's conduct; the measures, if any, taken by the trial court to remedy any resulting prejudice; and the certainty of conviction absent the prosecutorial remarks. See United States v. Elias, 285 F.3d 183, 190 (2d Cir. 2002); United States v. Perez, 144 F.3d 204, 210 (2d Cir. 1998) (citation omitted); Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994).

Cox has not demonstrated that he was denied due process on the basis of the prosecution's comments during opening and in summation. First, he has not established the prosecution's comments infected the proceedings with unfairness such that he was deprived of a fair trial. Importantly, many of the challenged remarks were offered in response to arguments the defense made during the trial. To this end, the prosecution emphasized Cox's seven prior trespass notices to demonstrate that he knew when he entered the Duane Reade location on the day of his arrest that he had been barred from all Duane Reade stores. The seven prior notices were thus probative of his knowledge of being barred from the store and his intent to commit a crime when he entered. The prosecution likewise was permitted to refer to prior convictions to discredit Cox, who argued that he was unaware that he had entered a drugstore affiliated with Duane Reade and that he was unaware he had been banned from all Duane Reade stores. The law permits a prosecutor to rebut arguments made by a criminal defendant. See Young, 470 U.S. at 12-13 (the court "must not only weigh the impact of the prosecutor's remarks, but must also take into account defense counsel's opening salvo"); see, e.g., Robinson v. Cunningham, No. 09 Civ. 1904 (KAM) (LB), 2011 WL 7046020, at *7-8 (E.D.N.Y. Jan. 4, 2011).

Even if the Court assumes that the prosecution's remarks were argumentative or improperly cited prior convictions, the trial court took action to remedy any potential prejudice. While Cox suggests that the prosecution's reference to the number of trespass notices he had received or its use of the expression "modus operandi" was improper, the trial court gave a limiting instruction to the jury after the admission of the trespass notices. The court stated that "this evidence was not admitted to show that the defendant committed other crimes on other occasions and it's no proof whatsoever that [Cox] possessed the propensity or disposition to commit the crime charged." (Tr. II 39:17-40:8). Likewise, in its charge, the trial court advised the jury that they were "not required to reject the testimony of a witness who has been convicted of a crime or engaged in criminal conduct . . . . With respect to the defendant's such prior convictions or criminal conduct, are not evidence [sic] of the defendant's guilt in this case or evidence that the defendant is a person who's disposed to commit crimes. You must consider such convictions only to help you evaluate the defendant[']s truthfulness." (Tr. II 245:16-246:4). The court also noted in the jury charge that the trespass notices had been admitted "solely for the purpose of defendant[']s intent in this case and his knowledge that he was not to enter any Duane Reade store and solely his contentions per arguments of the prosecution." (Tr. II 246:17-21). These instructions mitigated any prejudice caused by the prosecution's reference during opening and in summation to Cox's prior uncharged acts.

Finally, notwithstanding this Court's assessment that the prosecution's statements were proper and that the trial court remedied any potential prejudice, the "certainty of conviction" in this case was high absent the prosecution's challenged remarks. Floyd v. Meachum, 907 F.2d 347, 355 (2d Cir. 1990) (citing United States v. Modica, 663 F.2d 1173, 1181 (2d Cir. 1981)). Even without the prosecution's assessment of the case against Cox, the evidence presented to the jury weighed overwhelmingly against him. Most telling is Marrero's testimony that he saw Cox enter the store and walk "straight down to the lower level" where Marrero observed him "stuffing cameras into his backpack." (Tr. II 47:21-24, 48:21-25, 50:3-6). Marrero then recovered twelve cameras from Cox, which rang up on Duane Reade's cash register. (Tr. II 52:12-53:24). Additionally, the trial court admitted into evidence the trespass notices issued to Cox, six of which bear his signature below a statement acknowledging that he was barred from future entry (Tr. II 23:16-18, 23:21-32:11), and Chalavoutis testified that Duane Reade protocol required employees issuing such notices to read them to violators. (Tr. II 16:15-17:24, 18:8-10). The jury could thus reasonably conclude that each time Cox entered a Duane Reade store following receipt of the first trespass notice, he was knowingly doing so in violation of prior orders and with the intent to steal.

Likewise, even if the prosecution had not highlighted Cox's past convictions, Cox's own testimony called his credibility into question. He had contradictory explanations for his purpose in entering the Times Square Duane Reade, ranging from immediate medical need to wanting to fill a prescription for his godmother. (Compare Tr. II 102:13-24 with Tr. II 140:17-141:9). Moreover, on cross-examination, he undermined his credibility by contradicting his grand jury testimony. (See Tr. II 144:3-155:18). Thus, the prosecution's statements concerning the trespass notices and Cox's modus operandi were not necessary to the jury's concluding that he entered the store with the knowledge that he was doing so unlawfully and that he did so with the intent to steal. See, e.g., Villacorta v. Supreme Court, N.Y. Cnty., No. 10 Civ. 9516 (DLC), 2011 WL 3251816, at *8 (S.D.N.Y. July 29, 2011) (denying habeas relief over petitioner's unfair trial claim where there was "ample evidence in the record to convict [petitioner] without reference to the challenged conduct"); Haynes, 2011 WL 2341277, at *12 (concluding that five improper statements made by prosecution "were not sufficiently severe as to warrant habeas relief") (citing Martin v. Brown, No. 08 Civ. 0316 (JFB), 2010 WL 1740432, at *15 (E.D.N.Y. Apr. 29, 2010) (habeas relief not warranted because "the challenged comments did not play a substantial role in the summation" and there was "overwhelming evidence of [defendant's] guilt")).

When viewed in the context of the other evidence and the trial court's limiting instructions, the prosecution's remarks did not "infect" the trial with unfairness so as to deny Cox due process. Accordingly, the allegations of prosecutorial misconduct underlying Cox's fair trial claim that are subject to this Court's review do not warrant habeas relief.

b. Procedurally Barred Claims

The Appellate Division rejected "[a]ll of defendant's remaining challenges to the opening statement and summation a[s] unpreserved." Cox, 883 N.Y.S.2d at 185. While the Appellate Division did not elaborate what those "remaining" claims include and was silent as to the basis for its conclusion that Cox's claim of prosecutorial misconduct was unpreserved, the State contends the court "invoked" New York's contemporaneous objection rule, CPL § 470.05(2). (See Opp'n Mem. at 36). That rule provides that unchallenged comments at trial are unpreserved for appellate review. The State contends that this is an independent and adequate state ground for denial of Cox's "remaining" fair trial claims. Id. The Court agrees with this assessment.

i. Independence and Adequacy

The Second Circuit has "held repeatedly" that CPL § 470.05(2), New York's contemporaneous objection rule, is an independent and adequate state procedural ground, which is "firmly established and regularly followed," Downs v. Lape, 657 F.3d 97, 104 (2d Cir. 2011) (collecting cases). Thus, this Court need only review whether the Appellate Division's application of the rule here was "exorbitant" under the Cotto factors. Id. (citation omitted). A consideration of each factor weighs against Cox.

The first Cotto factor—whether the trial court "actually relied on" the procedural default—is "less applicable in this case because the lack of a contemporaneous objection would not, almost by definition, be mentioned by the trial court." Cotto, 331 F.3d at 242; see, e.g., Kozlowski v. Hulihan, Nos. 09 Civ. 7583 (RJH) (GWG), 10 Civ. 0812 (RJH) (GWG), 2012 WL 383667, at *5 (S.D.N.Y. Feb. 7, 2012).

As to the second Cotto factor—whether New York law requires compliance with the rule in the circumstances presented—New York courts consistently require compliance with the contemporaneous objection rule in situations such as this one. See, e.g., People v. Smith, 942 N.Y.S.2d 375, 375-76 (2d Dep't 2012) ("The defendant's contention that certain remarks made by the prosecutor during summation deprived him of the right to a fair trial is unpreserved for appellate review, as the defendant failed to object to the subject remarks.") (citations omitted); People v. Davis, 934 N.Y.S.2d 150, 151 (1st Dep't 2011) ("By failing to object, by making only generalized objections, and by failing to request further relief after objections were sustained, defendant failed to preserve his present challenges to the People's cross-examination and summation, and we decline to review them in the interest of justice."). Accordingly, a determination by the Appellate Division that Cox had not raised a contemporaneous objection to each of the claims he raised on appeal was consistent with New York practice and weighs against any finding that the Appellate Division's ruling was "exorbitant."

The third and final Cotto factor—an assessment of Cox's compliance with the contemporaneous objection rule and whether demanding perfect compliance with the rule would serve a legitimate governmental interest—weighs against Cox as well. "The basis of § 470.05(2) is that the trial court must be given a fair opportunity to rule on an issue of law before it can be raised on appeal[,]" and the Second Circuit has recognized that demanding compliance with CPL § 470.05 serves a legitimate governmental interest—"the interest in allowing the trial court to have the first opportunity to rule on and possibly rectify any alleged legal error." Garvey, 485 F.3d at 720. Taken together, the Cotto factors do not suggest that the application of the contemporaneous objection rule was exorbitant here.

Because the Appellate Division's decision was based on a ground independent of any federal question and adequate under firmly established and regularly followed state law, Cox's due process claim to a fair trial as to the remaining challenges to the prosecution's opening statement and summation is procedurally barred.

ii. Cause and Prejudice, or Fundamental Miscarriage of Justice

Cox may overcome this procedural bar only if he can demonstrate either cause for the default and prejudice, or that failure to consider the federal habeas claim will result in a fundamental miscarriage of justice. See Coleman, 501 U.S. at 749-50. A petitioner may establish cause by demonstrating that "'some objective factor external to the defense impeded counsel's efforts' to raise the claim in state court." McCleskey v. Zant, 499 U.S. 467, 493 (1991) (quoting Murray, 477 U.S. at 488). Cox has not identified any such objective factor to substantiate this defense, and thus fails to demonstrate cause. Because Cox has not demonstrated cause for his procedural default, the Court need not address the issue of prejudice. See id. at 502. Cox has also not demonstrated that this Court's failure to consider his claims would constitute a fundamental miscarriage of justice, which occurs only in those "extraordinary instances when a constitutional violation probably has caused the conviction of one innocent of the crime." Id. at 494. Accordingly, Cox fails to overcome the procedural bar based on the state court's independent and adequate state law determination.

3. Cox's Ineffective Assistance of Counsel Claim

In his Petition, Cox also alleges that he "was denied effective assistance of counsel by the State of New York assigning ineffective counsel who failed to investigate [or] interview potential witnesses as well as fail[ed] to raise [a] 'particularly strong' Rosario claim." (Pet. § 13, "Three"). This claim mirrors the ineffective assistance of counsel claim he raised in his motion to vacate, which included allegations that none of his "several" trial counsel "assist[ed] in the preparation, investigation and building [of] a defense for the defendant." (Opp'n Decl., Ex. I (Memorandum of Law in Support of Motion to Vacate Judgment) at 13-14). In his motion to vacate, Cox highlighted certain conduct of his trial counsel that he argues constituted ineffective assistance. In particular, Cox argued that counsel "fail[ed] to locate and interview potential witnesses[,]" including the arresting officer, the arresting officer's partner, and assisting supervisor. (Id. at 14). He further alleged that trial counsel also failed to scrutinize the "conflicting statements given by the Security Guard [Victor], Store Manager, and [the] prosecution's sole witness including whether [there] was . . . any evidence preserved from the store especially the surveillance video tape." (Id. at 15).¹¹ The state court rejected this ineffective assistance claim and noted that a similar claim, which Cox brought in moving to set aside the verdict pursuant to CPL § 330.30 prior to his sentencing, had also been denied. (Opp'n Decl., Ex. L at 3, 6-8). The State does not dispute that Cox has exhausted his ineffective assistance claim. (See Opp'n Mem. at 15-16). The Court must therefore determine whether the state court's rejection of this claim was contrary to, or constituted an unreasonable application of, clearly established federal law.

11 Cox does not specify which Duane Reade employee he is referring to as the prosecution's "sole" witness, but the suggestion that the prosecution called only one witness is factually incorrect. The prosecution called Chalavoutis (Tr. II 13:24-13:25), Marrero (Tr. II 41:5-41:6), and Police Officer Henry Burkhardt (Tr. II 77:2-77:3) as witnesses. Defense counsel cross-examined each of these witnesses. (Tr. II 34:1-37:10, 62:8-69:13, 86:1-13).

a. Standard for Assessing an Ineffective Assistance of Counsel Claim

The standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), "is the relevant 'clearly established Federal law, as determined by the Supreme Court of the United States'" for claims of ineffective assistance of counsel. Aparicio, 269 F.3d at 95 (quoting 28 U.S.C. § 2254(d)(1)); accord Knowles v. Mirzayance, 556 U.S. 111, 122 (2009). To prevail on a claim of ineffective assistance of counsel, a petitioner must "(1) demonstrate that his counsel's performance fell below an objective standard of reasonableness in light of prevailing professional norms; and (2) affirmatively prove prejudice arising from counsel's allegedly deficient representation." Carrion, 549 F.3d at 588 (citation and quotation marks omitted); see also Gueits v. Kirkpatrick, 612 F.3d 118, 122 (2d Cir. 2010); Knowles, 556 U.S. at 124 (citing Strickland, 466 U.S. at 687).

Under the first Strickland prong, the reviewing court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. In evaluating counsel's effectiveness, the court must assess the case from the viewpoint of the attorney at the time of the challenged conduct or omission. Lockhart v. Fretwell, 506 U.S. 364, 371-72 (1993). Rather than strictly scrutinizing every move that an attorney makes, the court must focus on whether counsel's behavior was so unreasonable as to represent a "breakdown in the adversarial process that our system counts on to produce just results." Strickland, 466 U.S. at 696. "[T]he record must demonstrate that 'counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.'" Wilson v. Mazzuca, 570 F.3d 490, 502 (2d Cir. 2009) (quoting Strickland, 466 U.S. at 687).

If a court finds counsel to have been deficient, the petitioner must then establish that he was prejudiced as a result. "To establish prejudice, the petitioner 'must show thai there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Gueits, 612 F.3d at 122 (quoting Strickland, 466 U.S. at 694). "'A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Woodford v. Visciotti, 537 U.S. 19, 23 (2001) (quoting Strickland, 466 U.S. at 694). The Supreme Court has emphasized that "there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland, 466 U.S. at 697.

b. Consideration of Trial Counsel's Performance

Cox cannot satisfy the first prong of Strickland because none of the allegedly improper actions he attributes to his trial counsel constitutes deficient performance. As a preliminary matter, the Court notes that, in reviewing Cox's motion to set aside the verdict, the trial court concluded that there was "no merit whatsoever" to Cox's motion and that trial counsel "represented Mr. Cox admirably." (Sent. Tr. 3:14-15, 6:8-9). The trial court also observed that "this [motion] is completely unwarranted, [and] unjustified in this case." (Sent. Tr. 3:25-4:1). In considering Cox's motion to vacate, the state court again rejected these allegations, characterizing them as "bare and conclusory." (Opp'n Decl., Ex. L at 7).

Based upon an independent review of Cox's ineffective assistance allegations, the Court agrees that Cox has not alleged facts to support any of the grounds on which he bases this claim. While Cox argues that his trial counsel failed to locate and interview potential witnesses—in particular the security guard named Victor who he claims first approached him at the Times Square Duane Reade—"[a] lawyer's decision not to pursue a defense does not constitute deficient performance if, as is typically the case, the lawyer has a reasonable justification for the decision." DeLuca v. Lord, 77 F.3d 578, 588 n.3 (2d Cir. 1996); see also Greiner v. Wells, 417 F.3d 305, 319 (2d Cir. 2005) ("We will not normally fault counsel for foregoing a potentially fruitful course of conduct if that choice also entails a significant potential downside.") (internal quotation marks and citations omitted); Bell v. Cone, 535 U.S. 685, 700-02 (2002) (concluding that state court's application of Strickland's attorney-performance standard was rot objectively unreasonable in finding that counsel's conduct fell "within the wide range of reasonable professional assistance" where, among other items, counsel decided not to call certain witnesses for "tactical reasons"). For example, considering the strong evidence against his client, trial counsel may have reasonably decided against pursuing the testimony of the security guard as part of trial strategy. Moreover, Cox does not articulate why he thinks the security guard would have been a helpful witness, especially given the testimony of Marrero, the loss prevention officer.

Likewise, while Cox also contends that trial counsel failed to make out a "particularly strong Rosario claim" (Pet. § 13, "Three"), Cox does not identify the witness statements that would form the basis of a Rosario claim and does not indicate how he was adversely impacted as a result. See Haouari v. United States, 429 F. Supp. 2d 671, 679 (S.D.N.Y. 2006) (petitioner's failure to address how testimony would have changed outcome undermines a Strickland claim). Consequently, there is no basis to conclude that trial counsel's performance fell below Strickland's objective standard of reasonableness.

Nevertheless, even if the first prong of Strickland was satisfied and trial counsel's performance was found to be deficient, Cox fails to demonstrate how counsel's conduct prejudiced the outcome of his case. As an initial matter, Cox has not identified what additional information his trial counsel should have introduced and therefore cannot establish prejudice. Additionally, given the abundant evidence against Cox (see, supra, Section II.B.2.a), including eyewitness testimony of Cox shoplifting, there is no reason to believe that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694; see also United States v. Nersesian, 824 F.2d 1294, 1322 (2d Cir. 1987) (second prong of Strickland not satisfied where evidence against petitioner at trial was "overwhelming"); Williams v. United States, Nos. 00 Cr. 1008, 09 Civ. 2179, 09 Civ. 3493, 09 Civ. 2535 (NRB), 2011 WL 3296101, at *10 (S.D.N.Y. July 28, 2011) ("Prejudice can only be shown . . . where the defendant shows that the 'proposed testimony would have altered the outcome of the trial.'") (quoting Rega v. United States, 263 F.3d 18, 21 (2d Cir. 2001)).

4. Cox's Jurisdictional and Speedy Trial Claims

Finally, Cox asserts that "his conviction was obtained without the proper jurisdiction of the court[,]" and in violation of his "right to a speedy trial under the Sixth Amendment of the United States Constitution." (See Pet. § 13, "Two"). Cox does not articulate the factual bases for these claims in his Petition so the Court looks to the submissions in support of, and in opposition to, the motion to vacate (Opp'n Decl., Exs. I-K), as well as the state court's decision denying that motion (Opp'n Decl., Ex. L), all of which considered the two claims together.

As the state court described it, Cox's jurisdictional claim is premised on his contention that the trial court "lacked jurisdiction over []his case because the [prosecution] failed to file a special information, pursuant to CPL § 200.60, and notice was not properly given" under CPL § 170.20. (See id. at 4; see also Affidavit in Support of Notice of Motion to Vacate Judgment, dated Nov. 1, 2010), at 5-8). CPL § 200.60 requires a district attorney to file a "special information" with the court when a previous conviction raises an offense of lower grade to one of higher grade. CPL § 200.60(1)-(2). Section 170.20 provides a procedure for removal of a misdemeanor charge initiated in a local criminal court to a superior court for a grand jury indictment, and permits a stay in the local criminal court to allow time for presenting the matter to a grand jury. See Peter Preiser, McKinney's Practice Commentaries, CPL § 170.20. If the prosecution seeks adjournment pursuant to § 170.20(2), a "defendant will of course have notice, but no specific notice [to defendant] is required." Id.

The basis for the speedy trial claim Cox raises in his Petition is somewhat less clear. In his motion to set aside the verdict, Cox refers to an earlier motion to dismiss the indictment, in which he purportedly sought dismissal for failure to timely prosecute under CPL § 30.30(1)(a) and (2)(a).¹² Additionally, the state court construed Cox's motion to vacate as contending that "an alleged ten-day delay in the presentation of his case to the grand jury warrant[ed]" vacating his sentence. (Opp'n Decl., Ex. L at 5). This reading likely relates to Cox's statement in the motion to vacate that he was not permitted to testify before the grand jury until December 28, 2006 despite being notified that he would have such an opportunity on December 18, 2006. (Opp'n Decl., Ex. I at 5-6). Cox's motion to vacate also contends that this opportunity to testify came only after "approximately forty-five (45) days of incarceration and service of a[] trial ready notice[.]" (Opp'n Decl., Ex. I at 5).

12 Under CPL § 30.30(1)(a), a motion to dismiss "must be granted where the people are not ready for trial within . . . six months of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a felony." Under CPL § 30.30(2)(a), a defendant in custody "must be released on bail or on his own recognizance . . . if the people are not ready for trial in that criminal action within . . . ninety days from the commencement of his commitment to the custody . . . [if] the defendant is accused of one or more offenses, at least one of which is a felony."

The State contends that these claims are procedurally barred because Cox failed to raise them on his direct appeal, and that they are otherwise not subject to habeas review and meritless. (See Opp'n Mem. at 16-17, 48-52).

a. State-Law Grounds for Cox's Jurisdictional and Speedy Trial Claims

Cox's jurisdictional and speedy trial claims rest on state law grounds that do not warrant habeas review. The Second Circuit has recognized that a habeas petition challenging a state court's interpretation of CPL § 170.20(2)(a) is a state law issue beyond the scope of federal court review. See Brancoccio v. Hanslmaier, 162 F.3d 1147, at *2 (2d Cir. 1998) (Table) ("[I]nterpretation of § 170.20(2)(a) is clearly a question of a state law."). CPR § 200.60 is another similar provision of state law that is "not cognizable for federal habeas corpus review." Adorno v. Portuondo, No. 97 Civ. 696 (FJS) (GLS), 2000 WL 33767758, at *2 (N.D.N.Y. Aug. 31, 2000) (declining to review petitioner's allegation that grand jury proceedings failed to conform to CPL §§ 200.60(1) and (2)) (citations omitted). Moreover, a violation of CPL § 30.30, to the extent that provision forms the basis of Cox's speedy trial claim, is not cognizable on federal habeas review. See Smith v. LaClair, No. 04 Civ. 4356 (SAS), 2008 WL 728653, at *3 & n.28 (S.D.N.Y. Mar. 17, 2008) (citations omitted).

b. Cox's Speedy Trial Claim under the Sixth Amendment

The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial." U.S. Const. amend. VI. Although Cox failed to raise a speedy trial claim under the Sixth Amendment on his direct appeal and thus is barred from asserting it here, the Court nonetheless briefly considers his application in light of Barker v. Wingo, 407 U.S. 514, 530 (1972). See, e.g., Parrilla v. Goord, No. 02 Civ. 5443 (WHP), 2005 WL 1422132, at *4-5 (S.D.N.Y. June 20, 2005) (noting Barker is applicable clearly established federal law to assess speedy trial claims). Barker counsels courts to consider four factors in determining whether there has been a violation of the speedy trial provision of the Sixth Amendment: "'[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.'" U.S. v. Abad, 514 F.3d 271, 274 (2d Cir. 2008) (quoting Barker, 407 U.S. at 530). Courts consider the first factor—whether there was a presumptively prejudicial delay—to assess whether to examine the remaining three Barker factors. See Doggett v. United States, 505 U.S. 647, 652 n.1 (1992) (presumptive prejudice "marks the point at which courts deem the delay unreasonable enough to trigger the Barker enquiry") (citations omitted). Usually, any delay exceeding one year is presumptively prejudicial. See, e.g., United States v. Penn, 434 F. Supp. 2d 229, 231 (S.D.N.Y. 2006) (citing Doggett, 505 U.S. at 652 n.1; United States v. Blanco, 861 F.2d 773, 777-78 (2d Cir. 1988)).

The less than six-month period of time between Cox's arrest and the commencement of his trial is well below the one-year presumptively prejudicial threshold. Other courts within this Circuit have denied habeas relief for so-called delays of similar length. See, e.g., Garcia v. Annetts, No. 08 Civ. 0736 (LEK) (RFT), 2011 WL 4810012, at *7 (N.D.N.Y. Sept. 1, 2011) (five-month delay between petitioner's arrest and counsel's waiver of speedy trial rights "not sufficient to establish a constitutional violation"); Adkins v. Greene, No. 05 Civ. 522 (FJS) (VEB), 2008 WL 3155825, at *7 n.13 (N.D.N.Y. Aug. 4, 2008) ("approximately seven (7) month delay between indictment and trial would not, by itself, give rise to a constitutional speedy trial claim" unless the petitioner could demonstrate "actual prejudice caused by the delay") (citation omitted). Therefore, the delay in this case does not trigger consideration of the remaining three Barker factors. See, e.g., Garcia, 2011 WL 4810012, at *7 (five-month delay "does not trigger application of the remaining Barker factors") (citations omitted).

III. CONCLUSION

For the foregoing reasons, I recommend that Cox's petition for a writ of habeas corpus be DENIED. Further, I recommend that the Court decline to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1)(A), because Cox has failed to make "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see United States v. Perez, 129 F.3d 255, 260 (2d Cir. 1997).

PROCEDURE FOR FILING OBJECTIONS

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections, and any responses to such objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Colleen McMahon and to the chambers of the undersigned, United States Courthouse, 500 Pearl Street, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge McMahon. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. If Petitioner does not have access to cases cited herein that are reported on LexisNexis or Westlaw, he should request copies from the State's counsel. See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009).

Dated: New York, New York

June 15, 2012

/s/_________

JAMES L. COTT

United States Magistrate Judge

Copies of this Report and Recommendation have been sent by mail to the following:

Keith Cox 107-07 142nd Street Jamaica, NY 11435 Alyson J. Gill State of New York Office of the Attorney General Federal Habeas Corpus Section 120 Broadway New York, NY 10271-0332