Opinion
1:18-cv-03674 (PAE) (SDA)
04-28-2020
David Everette, Petitioner, v. Mark Royce, Superintendent, Green Haven Correctional Facility, [1] Respondent.
HONORABLE PAUL A. ENGELMAYER, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE.
INTRODUCTION
Pro se Petitioner David Everette (“Everette” or “Petitioner”), currently incarcerated at Green Haven Correctional Facility in New York State, seeks a writ of habeas corpus under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254. A New York County jury convicted Everette of two counts of robbery in the first-degree under Penal Law § 160.15(4). He was sentenced as a persistent violent felon to concurrent prison terms of 25 years to life on each robbery count.
In the Petition, which was filed on April 25, 2018, Everette challenges his conviction on six grounds: (1) ineffective assistance of trial counsel based on his failure to: (a) present expert evidence concerning the reliability of witness identification, and (b) object to the prosecutor's alleged improper arguments on summation (Ground One); (2) a violation of his due process rights by the improper admission of identification evidence resulting from an unduly suggestive lineup (Ground Two); (3) a violation of his right to a fair trial through the admission of hearsay to prove and bolster an out-of-court identification (Ground Three); (4) a violation of his right to a fair trial when the court denied his motion to sever the two robbery counts (Ground Four); (5) a violation of his right to a fair trial when the prosecutor committed misconduct on summation (Ground Five); and (6) the sentence imposed upon him was excessive (Ground Six). (Pet., ECF No. 2, at 7-36.) On August 29, 2018, Respondent filed his papers in opposition to the Petition. (Resp.'s Mem., ECF No. 16; Answer, ECF No. 17.) On December 31, 2018, Petitioner filed his reply memorandum. (Pet.'s Reply, ECF No. 28.)
Petitioner initially filed his reply memorandum with exhibits on October 31, 2018. (See ECF No. 20.) Thereafter, he realized that certain exhibits were omitted from his filing and that a number of documents unrelated to his case were attached to his memorandum. (See ECF Nos. 21, 22, 23, 26 and 27.) As a result, Petitioner refiled his reply memorandum with exhibits at ECF No. 28 and 28-1. The Court accepts this filing nunc pro tunc as timely having been filed.
For the reasons set forth below, I recommend that the Petition be DENIED in its entirety.
BACKGROUND
I. Facts Giving Rise To Everette's Conviction
The following facts are derived from trial testimony. The trial transcript was filed by Respondent at ECF No. 17-5. The transcript of witness testimony at trial commences at page 225 of ECF No. 17-5. The last page of the trial transcript is at page 850 of ECF No. 17-5. Citations to pages of the trial transcript (found at pages 225-850 of ECF No. 17-5) are made using the prefix “Tr.” followed by the page number of the transcript itself (e.g., “Tr. 1” corresponds to page 225 of ECF No. 17-5). Where citation is being made to witness testimony, the name of the witness is identified in parentheses following the page number.
A. March 14, 2009 Robbery
On March 14, 2009, at around 2:00 a.m., John Darconte was in his taxicab, near East 241st Street in the Bronx, when a man later identified as Everette approached his cab. (See Tr. 73-76, 84 (Darconte).) Darconte could see Everette's face clearly as he approached the cab. (Id. 75.) Everette asked to be driven to 163rd Street, between Amsterdam and Edgecombe. (Id. 78.) Darconte initially refused, as it was near the end of his shift, but Everette offered to pay extra money and Darconte agreed. (Id. 73.)
During the twenty-minute drive, Darconte and Everette made small talk about Consolidated Edison, Bernie Madoff and Everette's girlfriend. (Tr. 77-78 (Darconte).) Everette requested that Darconte stop the cab in front of an apartment house on 163rd Street. (Id. 77.) Everette then opened the right-side passenger door, and said in a loud voice, “Give me your fucking money. I got a gun. Don't do anything stupid. Just give me the money.” (Id. 78-79.) Darconte saw that Everette had his hand shoved inside his jacket as if to pull something out. (Id. 79-80.) Darconte could not see what was under Everette's jacket, but believed that Everette had a gun and handed him about $250 in cash. (Id. 80.) Everette took the money, exited the cab and ran towards Amsterdam Avenue. (Id.)
Darconte reported the robbery to his dispatcher. (Tr. 81 (Darconte).) He then went to a nearby police station. (Id. 81-82.) Darconte described the robber as African-American or possibly Hispanic, approximately 48 years old, and around 5'9” tall with a slim build. (See id. 95-96, 98, 154.)
B. March 20, 2009 Robbery
On March 20, 2009, at around 3:15 a.m., Mohammad Kibria was in his taxicab at the Port Authority Bus Terminal, when he was asked by an “African-American guy” to be driven to 153rd Street. (Tr. 6-8 (Kibria).) During the ride, Everette and Kibria engaged in small talk ranging from Kibria's background to crime rates in Chicago and New York. (Id. 9.) Everette instructed Kibria to stop on 153rd Street between Broadway and Amsterdam Avenue, in the middle of the block. (Id. 10.) When the cab came to a stop, Everette opened the rear passenger door, stated that he had a gun and demanded money. (See id. 11-13.) Kibria asked Everette if he was serious and Everette repeated that he had a gun and wanted money. (See id.) Everette had his hand inside his jacket. (Id. 12.) Kibria believed Everette had a gun and gave him between $60 and $70 in cash. (Id. 12-13.) Everette then fled east towards Broadway. (Id. 13.)
During his trial testimony, when Kibria was asked whether this individual was in the courtroom, Kibria testified that he was not. (Tr. 7.) However, Kibria later testified that he was certain the man who he saw in the show-up identification (discussed infra), who was Everette, was the man who had robbed him. (See id. 14.)
Kibria immediately called 911. (Tr. 13 (Kibria).) He then was picked up by Police Officers Thomas Sullivan and Erich Obojkovits. (See id. 335, 338-42 (Sullivan).) The officers then began to canvas the area with Kibria. (See id. 13-14 (Kibria), 337-38 (Sullivan).)
Meanwhile, on March 20, 2009, at around 3:40 a.m., Police Officers Juan Cruz and Thomas Dellaporta were on patrol in a marked car and spotted a man wearing a black leather jacket and blue jeans jogging on Broadway just north of West 153rd Street. (Tr. 172-73 (Cruz), 287 (Dellaporta).) Everette looked in the direction of the police vehicle and began sprinting away northbound towards 155th Street, away from the officers. (See id. 173-74 (Cruz), 287-88.) P.O. Cruz and P.O. Dellaporta followed Everette and watched him enter a black livery cab after numerous rapid attempts to pull the cab door open. (Id. 175-76 (Cruz), 289 (Dellaporta).) P.O. Cruz and P.O. Dellaporta followed the cab and observed Everette repeatedly looking back at them through the cab's rear window. (Id. 176-77 (Cruz), 290 (Dellaporta).)
Officers Cruz and Dellaporta both identified the man in court as Everette. (See Tr. 173 (Cruz), 287 (Dellaporta).)
P.O. Cruz observed the cab fail to signal while making a right turn. (Tr. 177 (Cruz).) P.O. Cruz then ran the cab's license plate and discovered that the cab's registration was suspended. (Id.) Thereafter, P.O. Cruz and P.O. Dellaporta pulled the cab over at West 161st Street and Amsterdam Avenue. (Id. 178.) When the cab came to a stop, Everette opened the passenger door and stepped out of the cab as if to run. (Id. 179.) P.O. Cruz instructed Everette to return to the cab and he complied. (Id. 179-81 (Cruz).) Everette told P.O. Cruz that he had been running away from two men who had just robbed him. (Id. 181.) P.O. Cruz recalled that Everette appeared “sweaty” and “nervous, ” and refused to comply with repeated instructions to keep his hands visible. (Id. 181-84.) Thus, P.O. Cruz had Everette exit the cab, and P.O. Cruz proceeded to frisk him. (See id. 184.)
While P.O. Cruz was frisking Everette, a radio call came through the police radios regarding a robbery with a suspect description that matched Everette's appearance; a black man wearing a black leather jacket and blue jeans. (See Tr. 185 (Cruz), 294 (Dellaporta).) P.O. Dellaporta heard on the radio that “a yellow cab had been robbed at gunpoint at West 153rd Street and Riverside Drive.” (Id. 293-94 (Dellaporta).) When Everette heard the radio call, he attempted to flee. (See id. 185-86.) After a brief struggle, P.O. Cruz and P.O. Dellaporta were able to handcuff him. (Id. 186 (Cruz), 295 (Dellaporta).) P.O. Dellaporta then radioed to have the complainant (i.e., Kibria) brought to him to seek to make an identification. (Id. 186-88 (Cruz), 295 (Dellaporta).)
A situation such as this commonly is referred to as a “show-up, ” where “the accused is exhibited singly to the eyewitness for purposes of identification.” M. Seng & W. Carroll, Eyewitness Testimony: Strategies and Tactics, § 3:9 (2d ed. 2019).
P.O. Sullivan drove Kibria to 161st Street and Amsterdam Avenue where P.O. Dellaporta was with Everette. (See Tr. 295 (Dellaporta), 338-39, 342-44 (Sullivan).) As P.O. Sullivan and Kibria arrived on the scene, Kibria, who had a well-lit and unobstructed view of Everette from approximately 15 to 20 feet away, exclaimed, “Oh my God. Thank God you caught him.” (Id. 341-42 (Sullivan); see also id. 27 (“[W]hen I saw him I really recognized him and I was shocked. I was like yelling oh, my God, oh, my God, it is the same guy.” (Kibria).) Everette was placed under arrest by P.O. Sullivan. (See id. 295 (Dellaporta), 336 (Sullivan).)
C. Lineup Identification
On March 20, 2009, Darconte was contacted by police and brought to the station to view a lineup. (Tr. 82 (Darconte).) Detectives Michael Pellegrino and Kevin Rivera conducted the lineup featuring Everette and four fillers. (Id. 441 (Rivera); Trial Exhibits 15 & 16 (color photographs), SR. 359-62.) The fillers were all black men ranging in height from 5'6” to 6'4” and ranging in weight from 140 pounds to 215 pounds. (See Pet.'s Appellate Brief, SR. 120-21; see also Trial Exhibits 15 & 16.) Everette and the fillers were seated. (Tr. 445 (Rivera).)
Records of proceedings in the state court were filed at ECF Nos. 17-2 and 17-3. References to pages from the state record are made as follows: “SR. XX, ” with “XX” being the page number of the state record.
When Det. Rivera advised Everette that he was going to be in a line up, Everette responded, “You are going to have to hold me down. I'm not doing any lineup.” (Tr. 439-40 (Rivera).) Everette asked for a lawyer and was assigned Jonathan Marvinny, who came to the precinct and was present during the lineup. (Id. 440-41.) At the time of the lineup, Everette's attorney objected to the lineup on the basis that the fillers were “[n]ot as healthy” as Everette. (Id. 512 (Pellegrino).) The attorney also objected that one filler was too tall, one was too short and one was too dark. (Id. 512-13.) In addition, he objected that the lineup was not conducted in a “double blind” fashion and that there should have been “an extra filler.” (See Id. 512-13 (Pellegrino).)
Defense counsel's surname was phonetically spelled in the trial transcript as “Martini.” (Tr. 440.)
Det. Rivera asked Everette to “pick out a number in the position of the lineup” and Everette chose number two. (Id. 441-42 (Rivera).) Det. Rivera suggested that Everette and the other fillers wear identical hats during the lineup, because “all of the hairstyles of the individuals in the lineup were a little different.” (Id. 441-42.) Everette refused to wear a hat, both before and after consulting his attorney about it. (Id. 442-44.) Ultimately, neither Everette nor the fillers wore hats in the lineup. (Id. 443.) Darconte identified number two in the lineup as the one who robbed him. (Id. 82-84 (Darconte), 441 (Rivera), 491 (Pellegrino).)
After the lineup was completed, Det. Pellegrino took Everette to central booking, where Everette volunteered that, “he was going to have the judge throw the lineup out [and] that's why he did[ not] wear a hat.” (Tr. 493-94 (Pellegrino).) Everette further stated that it was “because one of the [fillers] was bald.” (Id. 494.)
II. Relevant State Court Proceedings
Petitioner was indicted on two counts of robbery in the first-degree on March 27, 2009. (See SR. 186.)
A. Pretrial Motions
On May 19, 2009, Petitioner, through his counsel, Marvinny, filed an omnibus pretrial motion seeking, inter alia, to sever the two counts of robbery in the first degree and to suppress statements and identification evidence. (5/19/09 Omnibus Mot., SR. 438-51, ¶¶ 17-32.) A Wade hearing was held before Justice Richard D. Carruthers on April 29, 2010. Four witnesses provided testimony at the hearing, each of whom extensively was cross-examined by defense counsel Marvinny, including P.O. Cruz (Wade Hearing Tr. at 4-36), Det. Rivera (id. at 61-82) and Det. Pellegrino. (Id. at 82-102.)
A Wade hearing is a pretrial hearing for the purpose of determining “whether a pretrial identification of the defendant violated [a] defendant's constitutional rights and, if so, what the remedy should be.” People v. Boyer, 6 N.Y.3d 427, 434 (2006) (citing United States v. Wade, 388 U.S. 218, 242 (1967)). The Wade hearing transcript (“Wade Hearing Tr.”) was filed at ECF No. 17-4 at pages 1 to 102.
On September 1, 2009, Marvinny filed a motion to permit the expert testimony of Dr. Jennifer Dysart, an expert on eyewitness identifications and their reliability. (9/1/09 Not. of Mot. to Permit Expert Testimony, SR. 510-33.) On December 23, 2009, Justice Carruthers deferred ruling on the motion, stating that “a decision on the motion will be rendered when the case is ready for trial by the trial judge who is assigned to the case.” (12/13/09 Decision, SR. 423-24.)
In July 2010, Marvinny was replaced as Everette's counsel by David Segal. Segal did not seek a ruling on the motion to permit expert testimony, and did not seek to introduce expert testimony at trial. (See Background Section II.D., infra.)
On June 9, 2010, Justice Carruthers issued a decision denying Petitioner's motion to sever. (6/9/10 Decision and Order, SR. 418-20.) He held that the two incidents, i.e., the robbery on March 14, 2009 and the robbery on March 20, 2009, involved “the same type of offense, and were committed in a similar manner, in the same general area of the city, and within a week.” (Id., SR. 418-19.)
On November 18, 2010, Justice Carruthers issued a Decision and Order that denied Petitioner's motion to suppress the identification evidence. (11/18/10 Decision, SR. 404-17.) He held that “the lineup was fairly composed without any undue suggestiveness arising from the appearance of either Everette or the fillers.” (Id., SR. 416.)
B. Trial
Commencing on November 15, 2010, Everette was tried by jury before Justice Carruthers, the same judge who decided the pretrial motions. (See Tr. 1.) A summary of the trial testimony offered by the prosecution is set forth in Background Section I, supra. Petitioner's counsel Segal cross-examined each of the prosecution witnesses, including, most notably, extensive cross-examinations of the two victims, Kibria and Darconte. (See Tr. 27-61, 91-115, 117-56, 160-69.) After the prosecution rested its case, Petitioner offered no evidence or witnesses and rested his case. (See Tr. 545.)
1. Summations
In his summation, Petitioner's counsel Segal raised issues regarding the identification by Kibria and by Darconte of Petitioner as the perpetrator in the two robberies, seeking to create reasonable doubt for the jurors. (See Tr. 550-52, 554-56.) He noted that Kibria did not make an in-court identification of Petitioner. (Id. 550.) Segal argued to the jury that the prosecution must “prove to [them] beyond a reasonable doubt that David Everette committed these two crimes on March 14th and March 20th, ” and that the prosecution had failed to do so. (Id. 562-63.)
On summation, the prosecutor described how Petitioner was identified, including the March 20 lineup, Kibria's testimony and Darconte's testimony and in-court identification of Petitioner. (See Tr. 570-74, 577-78.) The prosecutor noted that Everette refused to wear a hat during the lineup, so that “he [could] ask the Judge to throw out the lineup because there is a bald guy in there.” (See Id. 577.) The prosecutor also argued that the March 14 and March 20 robberies were linked through distinctive modus operandi. For example, both times, the robber made small talk about current events and women with the cab driver, directed the cab driver to pull over on a side street and mimicked a weapon under his jacket. (See Tr. 574.) Segal did not object to the prosecutor's argument regarding modus operandi, but objected to the prosecution's argument regarding the lineup. (See Id. 577.)
2. Verdict
On November 23, 2010, the jury convicted Everette of two counts of robbery in the first degree. (Tr. 623.)
C. Sentencing
On February 22, 2011, Justice Carruthers sentenced Petitioner. Records were placed before the court by the prosecution to show that Petitioner had two prior convictions and that, with respect to the second conviction, he was sentenced as a second violent felony offender. (S. Tr. 3.) Justice Carruthers found that Petitioner was a persistent violent felony offender, and was to be sentenced in accordance with that finding. (Id. 4.) Accordingly, he sentenced Petitioner to concurrent prison terms of 25 years to life on each of the two counts. (Id. 6.)
The February 22, 2011 sentencing transcript (“S. Tr.”) is filed at ECF No. 17-5 at pages 851 to 856.
D. Post-Trial Motion And Hearing
On May 1, 2014, Petitioner, represented by Cravath, Swaine & Moore LLP and the Office of the Appellate Defender, filed a motion in the trial court, pursuant to N.Y. Crim. Proc. Law § 440.10, to vacate the judgment of conviction against him (“440 Motion”). (440 Mot. Mem., SR. 1-31.) Petitioner's 440 Motion asserted that Segal was ineffective due to Segal's failure to (1) investigate and make use of expert testimony to attack the reliability of eyewitness identification evidence, and (2) object to the prosecutor's purportedly improper arguments in summation seeking to link the two robberies to each other and to Petitioner. (Id., SR. 9-30.)
Justice Carruthers held a hearing on Petitioner's 440 Motion commencing on April 27, 2015, and continuing over the course of nine non-consecutive days. Segal was called to testify on April 27, 2015. Segal, who had been practicing in New York since 1974, had handled “thousands” of cases as a criminal defense attorney, most of which “involved identification issues.” (440 Tr. Vol. I 30.) Segal testified that he decided not to use an expert witness because “[a]fter cross-examining the two eyewitnesses [i.e., Kibria and Darconte] it was [his] belief that [he] had created the reasonable doubts necessary to go to a jury with; and even more so after questioning the police officers, [he] felt that there were enough reasonable doubts.” (Id. 34.) Segal further testified that he decided that an expert would not help because “the problem with the case, basically, was the consolidation, and that you had two trials in one.” (Id.) From Segal's experience, his “belief is no good can come to a defendant if you call a witness” and as a result, from a strategy perspective, he was “reluctant -- very reluctant -- to ever call a witness.” (Id. at 36.) As for expert witnesses, he believed “jurors look at [expert witnesses] as paid perjurers, [who will] say anything for either side - whether it's the Prosecution or Defense.” (Id. 36-37.) Finally, Segal explained that he made a “strategic decision” not to use expert witnesses in proceeding with Petitioner's case. (Id. 44-46.) by the Neighborhood Defender Service of Harlem. (Id. 59-60.) He was fired by Petitioner after the suppression hearing and Petitioner's family retained Segal, who was a private attorney. (See id. 60, 72-73.) Marvinny testified that he told Segal about the motion that Marvinny had made to have Dr. Dysart testify as an expert witness regarding eyewitness identifications and that Justice Carruthers had deferred deciding the motion. (Id. 66.) Marvinny also told Segal that Marvinny “thought calling an expert was essential and critical to Mr. Everette's defense and that [he] thought Professor Dysart was going to be an excellent witness.” (Id.)
The 440 Motion hearing transcripts are filed at ECF Nos. 17-6 through 17-11. The hearing took place on April 27, 2015 (ECF No. 17-6 at 1-55), May 8, 2015 (ECF No. 17-6 at 57-91), June 2, 2015 (ECF No. 17-6 at 92-108), October 19, 2015 (ECF No. 17-6 at 109-35 and ECF No. 17-7 at 1-72), November 6, 2015 (ECF No. 17-7 at 73-137), December 9, 2015 (ECF No. 17-7 at 138-40 and ECF No. 17-8 at 1-51 and ECF No. 17-9 at 1-27), December 10, 2015 (ECF No. 17-9 at 28-172), December 14, 2015 (ECF No. 17-9 at 173-80 and ECF No. 17-10 at 1-135) and December 15, 2015 (ECF No. 17-10 at 136-69 and ECF No. 17-11.) Citations to the 440 Motion hearing transcript will be made by volume. Volume I (“440 Tr. Vol. I”) consists of the April 27, 2015 and May 8, 2015 transcripts; Volume II (“440 Tr. Vol. II”) consists of the June 2, 2015 transcript; Volume III (“440 Tr. Vol. III”) consists of the October 19, 2015 and November 6, 2015 transcripts; Volume Marvinny, Petitioner's initial counsel, also testified. (See 440 Tr. Vol. I 58-88.) At the time he was appointed to represent Petitioner in the underlying state case, Marvinny was employed IV (“440 Tr. Vol. IV”) consists of the December 9, 2015 transcript; and Volume V (“440 Tr. Vol. V”) consists of the December 10, 2015, December 14, 2015 and December 15, 2015 transcripts.
As of April 27, 2015, Segal was under suspension from the practice of law. (440 Tr. Vol. I 27-28.) He previously had been suspended for two years in 1993, and had received two letters of admonition during his legal career. (Id. at 29.)
Segal was mistaken regarding the procedural posture of the motion that had been made by Marvinny to permit expert testimony on eyewitness identifications and their reliability. Segal erroneously believed that the motion had been denied with leave to renew before the trial judge (440 Tr. Vol. I 32-33), when in fact the motion simply was deferred. (See 12/13/09 Decision, SR. 423-24.)
Dr. Dysart, who has a Ph.D. in psychology from Queens University, with a specialization in eyewitness identification, testified at the 440 Hearing on behalf of Petitioner over the course of five days. (See 440 Tr. Vol. III, Vol. IV & Vol. V.) Dr. John Wixted, a Ph.D. in Clinical Psychology, who also is an expert in eyewitness identification and memory, testified on behalf of the prosecution over the course of two days. (See 440 Tr. Vol. V.)
On December 23, 2015, Justice Carruthers denied Petitioner's 440 Motion. (440.10 Decision, SR. 82-97.) He found that Segal's decision not to call an expert was “based on [Segal's] judgment that his cross-examination of the witnesses would be sufficient to safeguard his client from undeserved conviction.” (See id., SR. 89-90.) He held that Petitioner “suffered no prejudice as a result of the fact that Mr. Segal refrained from calling an eyewitness identification witness at the trial.” (Id., SR. 96.) Justice Carruthers also found that, upon review of the transcript of the prosecutor's summation at trial, there was “no reason to vacate the judgment on the basis of its content.” (440.10 Decision, SR. 96-97.)
Petitioner sought leave to appeal from the Appellate Division of the trial court's denial of his motion to vacate, and on March 3, 2016, the Appellate Division granted him leave to appeal and consolidated that appeal with a direct appeal of his guilty verdict. (3/3/16 Order, SR. 98.) His appeal to the Appellate Division, First Department, is discussed below.
E. Direct Appeal
Petitioner raised six grounds on his appeal to the Appellate Division: (1) ineffective assistance of trial counsel based on Segal's failure to (a) make a reasonable investigation of available expert testimony relevant to eyewitness investigations in the case, and (b) object to the prosecutor's improper remarks during summation; (2) deprivation of Petitioner's due process rights where the identification testimony of a critical witness followed an unduly suggestive lineup in which the characteristics of the fillers differed significantly from Petitioner and from the witness's description of the perpetrator; (3) deprivation of Petitioner's right to a fair trial by the prosecution's use of inadmissible hearsay to prove and bolster an out-of-court identification; (4) deprivation of Petitioner's right to a fair trial where the trial court denied his motion to sever the two counts in the indictment despite the unfair prejudice that would arise from trying the two counts together; (5) deprivation of Petitioner's right to a fair trial where the prosecutor engaged in misconduct by repeatedly making improper arguments during summation; and (6) the sentence imposed was excessive and should be reduced in the interest of justice. (Pet.'s Appellate Brief, SR. 142-84.)
On March 26, 2017, the Appellate Division unanimously affirmed Everette's conviction and denied his motion to vacate the judgment. People v. Everette, 148 A.D.3d 513 (1st Dep't 2017). The Appellate Division first addressed Petitioner's second ground for appeal and held that “the lineup was not unduly suggestive, ” since, based on the “actual appearances of the lineup participants, ‘the numerical age difference[s]' were insufficient to show suggestiveness and any height or weight disparity was sufficiently minimized.” Everette, 148 A.D.3d at 513 (internal citations omitted).
With respect to Petitioner's third ground for appeal, the Appellate Division held that the police testimony regarding Kibria's statement of identification at the show-up was admissible at trial and was not hearsay because it was an excited utterance. Everette, 148 A.D.3d at 513. The court reasoned that “under the circumstances, the identification was made ‘under the stress of excitement caused by an external event and [was] not the product of studied reflection and possible fabrication.'” Id. at 514 (quoting People v. Johnson, 1 N.Y.3d 302, 306 (2003)). In any event, the Appellate Division found that “any error was harmless in light of the overwhelming evidence of guilt and the fact that the officer's testimony was cumulative to the victim's own testimony recounting his out-of-court identification.” Id.
With respect to Petitioner's fourth ground for appeal, the Appellate Division held that the trial court properly had used “its discretion in denying [Petitioner's] severance motion, ” based on the “overlapping evidence regarding [Petitioner's] distinctive modus operandi.” Everette, 148 A.D.3d at 514. With respect to Petitioner's fifth ground, the Appellate Division held that Petitioner's “arguments concerning the [prosecutor's] summation [were] unpreserved, and . . . decline[d] to review them in the interest of justice, ” and alternatively held that the prosecutor's “arguments on the common modus operandi of the two crimes were permissible” and that “the summation otherwise provide[d] no basis for reversal. Id.
With respect to Petitioner's first ground for appeal, the Appellate Division held that the trial court properly denied Petitioner's 440 Motion for ineffective assistance of counsel. The court held that Petitioner “ha[d] not established that his trial counsel's alleged deficiencies were objectively unreasonable or that they resulted in prejudice under the state or federal standards.” Everette, 148 A.D.3d at 514-15. The court stated: “The record establishes that counsel pursued a legitimate strategy that was objectively reasonable. Furthermore, defendant has not shown a reasonable probability that calling an expert would have affected the outcome or fairness of the trial.” Id. at 515 (citations omitted). With respect to Segal's mistaken belief that Marvinny's motion for expert testimony had been denied, not deferred, the court stated: “Even if counsel mistakenly believed that the court had denied, with leave to renew, his predecessor's pretrial motion to present such expert testimony, when in fact the court had merely deferred the decision to the trial court, this did not affect either the reasonableness of the strategy or the absence of prejudice.” Id. The Appellate Division also found that “counsel's failure to object to the summation remarks challenged on appeal did not constitute ineffective assistance.” Id.
With respect to Petitioner's sixth ground for appeal, the Appellate Division found no basis for reducing the sentence imposed. Everette, 148 A.D.3d at 515.
F. Denial Of Leave To Appeal To The Court Of Appeals
Petitioner next sought leave to appeal to the New York Court of Appeals. (4/12/17 Ltr., SR. 334-35.) After the matter was assigned to Judge Fahey, Petitioner, through counsel, filed a supplemental letter setting forth the grounds upon which he sought leave to appeal, as the New York Court of Appeals rules provide. (See 5/8/17 Ltr., SR. 337-54.)
In the supplemental letter, Everette raised his ineffective assistance of counsel claim with respect to Segal's failure to call an identification expert at trial. (5/8/17 Ltr., SR. 337-52.) Specifically, the May 8, 2017 letter argued that “[l]eave to appeal should be granted in this case to allow the Court to issue clear guidance on a matter of public importance: defense counsel's obligation to confer with and, where appropriate, introduce the testimony of experts-both generally and in relation to the reliability of eyewitness identifications in particular.” (Id., SR. 339.)
The only other claim upon which Petitioner sought leave to appeal to the New York Court of Appeals was his claim regarding the purportedly suggestive lineup. Petitioner sought “leave to appeal on the issue of whether he was deprived of his right to due process when the identification testimony of a critical witness followed an unduly suggestive line-up in which the characteristics of the fillers differed significantly from [Petitioner] and from the witness's description of the perpetrator.” (5/8/17 Ltr., SR. 352.)
On June 7, 2017, the Court of Appeals denied Everette leave to appeal. People v. Everette, 29 N.Y.3d 1078 (2017).
III. Habeas Petition
In the Petition filed in this Court, Petitioner seeks relief on the same six grounds that he raised in his direct appeal to the Appellate Division (see Pet. at 2-36), many of which he failed to raise when he sought leave to appeal to the New York Court of Appeals.
LEGAL STANDARDS I. AEDPA Generally
Under 28 U.S.C. § 2254(a), as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a person in custody pursuant to a state court judgment only may prevail on an application for a writ of habeas corpus on the ground that his or her custody violates “the constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The petitioner must show that the state court decision, having been adjudicated on the merits, is either “contrary to, or involved an unreasonable application of, clearly established Federal law” or is “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). For the purposes of federal habeas review, “clearly established law” is defined as “the holdings, as opposed to the dicta, of [the 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, ” or an “unreasonable application of, ” clearly established law if it: (1) is contrary to Supreme Court precedent on a question of law; (2) arrives at a conclusion different than that reached by the Supreme Court on “materially indistinguishable” facts; or (3) identifies the correct governing legal rule but unreasonably applies it to the facts of the petitioner's case. Id. at 412-13. The state court decision must be “more than incorrect or erroneous;” it must be “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003). The AEDPA “dictates a highly deferential standard for evaluating state-court rulings” and “demands that state-court decisions be given the benefit of the doubt.” Bell v. Cone, 543 U.S. 447, 455 (2005) (internal quotation marks and citations omitted).
II. Ineffective Assistance Of Counsel
“The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686 (1984). “To prevail on a claim of ineffective assistance of counsel, a petitioner must show (1) that his counsel's representation ‘fell below an objective standard of reasonableness,' and (2) that he suffered prejudice[.]” Momplaisir v. Capra, 718 Fed.Appx. 91, 92 (2d Cir. 2018) (citing Strickland, 466 U.S. at 688, 694).
Under the first Strickland prong, there is a “strong presumption” that a lawyer's conduct “falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. Thus, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” Id. at 689; see also Silva v. Keyser, 271 F.Supp.3d 527, 546 (S.D.N.Y. 2017) (“a defendant has the burden of proving ‘that counsel's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy.'”) (quoting Kimmelman v. Morrison, 477 U.S. 365, 381 (1985) (citing Strickland, 466 U.S. at 688-89)). “In considering whether counsel ‘failed to exercise the skills and diligence that a reasonably competent attorney would provide under similar circumstances,' Boria v. Keane, 99 F.3d 492, 496 (2d Cir. 1996) (emphasis omitted), the Court looks to the totality of the record and must make ‘every effort . . . to eliminate the distorting effects of hindsight.'” Guerrero v. United States, No. 07-CR-00248 (GHW), 2017 WL 1435743, at *6 (S.D.N.Y. Apr. 20, 2017) (quoting Strickland, 466 U.S. at 688-89).
Under the second Strickland prong, the petitioner must demonstrate that the ineffective assistance prejudiced the defense, which means showing “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.
“The Strickland standard is rigorous, and the great majority of habeas petitions that allege constitutionally ineffective counsel founder on that standard.” Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001). Moreover, under AEDPA, a petitioner must show that the state court's application of the Strickland standard was not simply incorrect, but was objectively unreasonable. See Harrington v. Richter, 562 U.S. 86, 101 (2011); see also Fischer v. Smith, 780 F.3d 556, 561 (2d Cir. 2015) (“The standards created by Strickland and § 2254(d) are both highly deferential, and when the two apply in tandem, review is doubly so.”) (internal citations omitted). Thus, on habeas review, a federal court may reverse a state court ruling “only where it was so lacking in justification that there was . . . no possibility for fair-minded disagreement.” Fischer, 780 F.3d at 562 (internal quotation omitted).
III. Exhaustion Requirement And Procedural Bar
“[B]efore a federal court can consider a habeas application brought by a state prisoner, the habeas applicant must exhaust all of his state remedies.” Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011) (citing 28 U.S.C. § 2254(b)(1)(A)). The exhaustion requirement has two components. See Parrish v. Lee, No. 10-CV-08708 (KMK), 2015 WL 7302762, at *6 (S.D.N.Y. Nov. 18, 2015). First, a court considers whether the petitioner “‘fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts.'” Id. (quoting Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981)). “Second, having presented [the] federal constitutional claim to an appropriate state court, and having been denied relief, the petitioner must have utilized all available mechanisms to secure [state] appellate review of the denial of that claim.” Parrish, 2015 WL 7302762, at *7 (quoting Klein, 667 F.2d at 282). In connection with this requirement, “the Supreme Court has held that when a ‘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 claim procedurally defaulted.” Sweet v. Bennett, 353 F.3d 135, 139 (2d Cir. 2003) (quoting Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991)).
“In New York, . . . a criminal defendant must first appeal his or her conviction to the Appellate Division, and then must seek further review of that conviction by applying to the Court of Appeals for a certificate granting leave to appeal.” Galdamez v. Keane, 394 F.3d 68, 74 (2d Cir. 2005). “New York procedural rules bar its state courts from hearing either claims that could have been raised on direct appeal but were not, or claims that were initially raised on appeal but were not presented to the Court of Appeals.” Sparks v. Burge, No. 06-CV-06965 (KMK) (PED), 2012 WL 4479250, at *4 (S.D.N.Y. Sept. 28, 2012); see also DiGuglielmo v. Smith, 366 F.3d 130, 135 (2d Cir. 2004) (affirming the “denial of [a] habeas petition on the grounds, inter alia, that [petitioner's] claims were not properly exhausted” where “they were not properly presented to New York's highest court”).
“When a petitioner can no longer present his unexhausted claim of trial error to the state courts, ” a federal court sitting in habeas review “deem[s] the claim procedurally barred.” Richardson v. Superintendent of Mid-Orange Corr. Facility, 621 F.3d 196, 201 (2d Cir. 2010) (internal quotation marks and citations omitted). The merits of a procedurally defaulted claim may not be reviewed by a federal court “unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claim[ ] will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750; see also Dretke v. Haley, 541 U.S. 386, 388 (2004) (“[A] federal court will not entertain a procedurally defaulted constitutional claim in a petition for habeas corpus absent showing of cause and prejudice to excuse the default, ” or by showing petitioner was “actually innocent of the underlying offense.”).
Finally, because Petitioner is pro se, the court must liberally construe his petition and interpret it “to raise the strongest arguments that [it] suggest[s].” Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (internal citation omitted).
DISCUSSION
I. Petitioner's Claims Based Upon Ineffective Assistance Of Trial Counsel (Ground One) Should Be Denied
In Ground One, Petitioner asserts two bases for his claim that his trial counsel was ineffective: (1) his trial counsel failed to make a reasonable investigation of available expert testimony relevant to the eyewitness identifications in his case; and (2) his trial counsel failed to object to the prosecutor's improper arguments during summation. (Pet. at 2.) Each of these claims was raised in Petitioner's 440 Motion and was rejected by Justice Carruthers (440.10 Decision, SR. 82-97), who in turn was affirmed by the Appellate Division. Everette, 148 A.D.3d at 514-15. In order to obtain habeas relief, Petitioner must establish that the decisions of Justice Carruthers and the Appellate Division were “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or were “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1).
The clearly established law relevant to the adjudication of ineffective assistance of counsel claims is the Supreme Court's decision in Strickland, which presents this Court with a doubly deferential standard. (See Legal Standards Section II, supra.) Applying this standard, on the record before the Court, it cannot be said that either Justice Carruthers or the Appellate Division unreasonably applied federal law as determined by the Supreme Court or that their decisions were based on an unreasonable determination of the facts in light of the evidence presented.
With respect to counsel's failure to adduce expert testimony regarding eyewitness identifications, Petitioner has not shown that the state court's application of Strickland was objectively unreasonable. With respect to the first prong of Strickland, Justice Carruthers found that Segal's decision not to call an expert was “based on [Segal's] judgment that his cross-examination of the witnesses would be sufficient to safeguard his client from undeserved conviction.” (440.10 Decision, SR. 89-90.) This finding, which was affirmed by the Appellate Division, Everette, 148 A.D.3d at 514-15, was a reasonable one. See Swaby v. New York, 613 Fed.Appx. 48, 50 (2d Cir. 2015) (“failure to seek an expert does not satisfy the performance prong of Strickland where counsel chooses a strategy that does not require an expert”); see also Harrington, 562 U.S. at 106-07 (“Here it would be well within the bounds of a reasonable judicial determination for the state court to conclude that defense counsel could follow a strategy that did not require the use of experts . . ..”); Strickland, 466 U.S. at 690 (“[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.”).
As to the second prong of Strickland, Justice Carruthers held that Petitioner “suffered no prejudice as a result of the fact that Mr. Segal refrained from calling an eyewitness identification witness at the trial.” (440.10 Decision, SR. 96.) Moreover, the Appellative Division held that Petitioner “has not shown a reasonable probability that calling an expert would have affected the outcome or fairness of the trial.” Everette, 148 A.D.3d at 515. Given the strength of the evidence against Petitioner, as well as the vigorous cross-examination that Segal did of the prosecution witnesses, these holdings were not objectively unreasonable. See United States v. Brown, 710 Fed.Appx. 491, 493 (2d Cir. 2018) (“Given the evidence against Brown, and his counsel's seeming success [on cross-examination], it is implausible that additional cross-examination or the calling of a rebuttal expert would create ‘a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'” (citing Strickland, 466 U.S. at 694)).
Petitioner failed to raise any claim regarding his counsel's failure to object to the summation in his application for leave to appeal to the New York Court of Appeals and such claim therefore is procedurally barred. (See Discussion Section III, infra.) In any event, with respect to counsel's failure to object to the prosecutor's purportedly improper arguments during summation, the Appellate Division held that “counsel's failure to object to the summation remarks challenged on appeal did not constitute ineffective assistance.” Everette, 148 A.D.3d at 515. This holding was not objectively unreasonable. Any such objection would have been futile since the prosecutor's arguments regarding Petitioner's modus operandi were supported by the evidence. See Paige v. Lee, 99 F.Supp.3d 340, 346 (E.D.N.Y. 2015) (habeas petition based upon ineffective assistance of counsel for failing to object during summation denied where “any attempt to object to the prosecutor's statements made during summation would have been futile”).
II. Petitioner's Claim Based Upon The Lineup (Ground Two) Should Be Denied
In Ground Two, Petitioner asserts that he was deprived of his right to due process when the identification testimony of a crucial witness followed an “unduly suggestive” lineup. (Pet. at 2-3.) The lineup first was challenged by Petitioner in a motion to suppress, which was denied by the trial court in a Decision and Order dated November 18, 2010. (11/18/10 Decision, SR. 404-17.) The trial court stated “that the Court has inspected photographs taken of the lineup participants. Upon this inspection, the Court finds that despite the objections made at the time by the appointed attorney, the lineup was fairly composed without any undue suggestiveness arising from the appearance of either [Petitioner] or the fillers.” (11/18/10 Decision, SR. 416.) On appeal, the Appellate Division held that, based on its “review of the photograph of the lineup viewed by the victim of one of the robberies, ” the “record supports the hearing court's conclusion that the lineup was not unduly suggestive.” Everette, 148 A.D.3d at 513. The Appellate Division further held that, “[g]iven the actual appearances of the lineup participants, the ‘numerical age difference[s]' were insufficient to show suggestiveness, and any height or weight disparity was sufficiently minimized” Id. (citing People v. Holley, 26 N.Y.3d 514, 525 (2015)).
On habeas review, the factual determinations made by the trial court and the Appellate Division regarding the lineup are “presumed to be correct, ” 28 U.S.C. § 2254(e)(1), and are entitled to deference. See Fabers v. Lamanna, No. 18-CV-02399 (PKC), 2020 WL 1875288, at *7 (E.D.N.Y. Apr. 15, 2020) (“[T]he trial court 's factual determination that Petitioner was sufficiently similar in appearance to the fillers in the lineup is entitled to AEDPA deference.”); Brown v. Fisher, No. 13-CV-02071, 2015 WL 3619628, at *2 (S.D.N.Y. June 9, 2015) (“Giving due deference to the state court's determinations, any alleged variation in appearance between the fillers and Petitioner were not so substantial as to render the lineup impermissible.”). Petitioner has failed to proffer clear and convincing evidence to rebut the presumption of correctness of the state courts' factual determinations. See 28 U.S.C. § 2254(e)(1) (“The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.”).
In any event, even if Petitioner differed in appearance from the four fillers who attended the lineup with him, the trial court's and Appellate Division's determinations do not constitute an unreasonable application of Supreme Court precedent. See Jones v. Fischer, No. 05-CV-07774, 2009 WL 884814, at *5 (S.D.N.Y. Mar. 30, 2009) (“Although [Petitioner] is larger than the other men in the lineup, there is no evidence strong enough to disturb the trial court's finding that the members of the lineup were sufficiently similar in appearance. Accordingly, it was not an unreasonable application of Supreme Court precedent concerning identification procedures for the state court to conclude that the lineup was not unduly suggestive.”).
III. Grounds Three Through Six (And Part Of Ground One) Of The Petition Are Procedurally Barred And Should Be Denied
In his application for leave to appeal to the New York Court of Appeals, Petitioner failed to raise Grounds Three through Six of the Petition, and also failed to raise that portion of Ground One that related to the failure to object to the prosecutor's summation. Petitioner's initial letter to the Court of Appeals stated that “[t]his case raises important questions of law, including but not limited to, whether a defense attorney who categorically rejects the use of expert testimony has provided effective assistance of counsel . . .” and requests leave “to file a supplemental letter and materials with the judge to whom this matter may be assigned, addressing in greater detail the reasons why the Court should review his case and how the issues are preserved for this Court's review.” (4/12/17 Ltr., SR. 335.) The initial letter also attached copied of the briefs submitted to the Appellate Division. (See id.) Petitioner's supplemental letter then only addressed two grounds (i.e., part of Grounds One and Ground Two of the Appellate Division briefs and the Petition in this case), but wholly omitted Grounds Three through Six and that part of Ground One relating to counsel's failure to object to the prosecutor's summation. (See 5/8/17 Ltr., SR. 337-53.)
Where, as here, Petitioner argues two claims in his application for leave to appeal to the Court of Appeals without reference to others, except by attaching the Appellate Division briefs, the unstated claims are not exhausted. See Jordan v. Lefevre, 206 F.3d 196, 198 (2d Cir. 2000) (“Arguing a single claim at length and making only passing reference to possible other claims to be found in the attached briefs does not fairly apprise the state court of those remaining claims.” (citing Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991))). Since the claims contained in Grounds Three through Six (and part of Ground One) are unexhausted, they are procedurally barred and should be denied. See Sparks, 2012 WL 4479250, at *5 (habeas claim held to be procedurally barred where raised on direct appeal to the Appellate Division, but not included in leave application to Court of Appeals).
Petitioner does not demonstrate cause for his failure to exhaust his claims, nor actual prejudice. And, given the record evidence of Petitioner's guilt, he cannot demonstrate a fundamental miscarriage of justice to overcome the procedural bar.
Under 28 U.S.C. § 2254(b)(2), “[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.” Here, the Court finds that Grounds Three Through Six also should be denied on the merits, as discussed below.
The bases for denial of Ground One on the merits are discussed in Discussion Section I, supra.
IV. Petitioner's Claim Based Upon The Purported Use Of Hearsay To Bolster An Out-Of-Court Identification (Ground Three) Should Be Denied
In Ground Three, Petitioner asserts that he “was deprive[d] of his right to a fair trial by the prosecutor's use of hearsay to prove and bolster an out of court identification.” (Pet. at 3.) The “hearsay” to which Petitioner refers were Kibria's statement identifying Petitioner at the show-up and P.O. Sullivan's repetition of Kibria's statement at the show-up, which the trial court admitted. (See Pet. at 15.) The Appellate Division held that Kibria's statements upon seeing Petitioner under arrest were admissible as excited utterances. See Everette, 148 A.D.3d at 513-14.
As set forth above, this claim is procedurally barred and should be denied on that basis. See Discussion Section III, supra. As discussed below, it also should be denied on the merits.
When a petitioner on habeas review challenges evidentiary rulings made by the state courts below, “a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991); see 28 U.S.C. § 2254(a). To prevail on a claim that evidentiary error resulted in a constitutional deprivation of due process, a petitioner must establish “the error was so pervasive as to have denied him a fundamentally fair trial.” Collins v. Scully, 755 F.2d 16, 18 (2d Cir. 1985) (citation omitted). In so doing, a petitioner “bears a heavy burden because evidentiary errors generally do not rise to constitutional magnitude.” Copes v. Schriver, No. 97-CV-02284 (JGK), 1997 WL 659096, at *3 (S.D.N.Y. Oct. 22, 1997) (citation omitted).
See also Crane v. Kentucky, 476 U.S. 683, 689 (1986) (acknowledging a “traditional reluctance to impose constitutional constraints on ordinary evidentiary rulings by state trial courts”); DiGuglielmo, 366 F.3d at 136 (alleged errors of state law “cannot be repackaged as federal errors simply by citing the Due Process Clause”) (internal quotations marks and citation omitted); Ponnapula v. Spitzer, 297 F.3d 172, 182 (2d Cir. 2002) (“not every error of state law can be transmogrified by artful augmentation into a constitutional violation”) (internal quotation marks and citation omitted).
“As a first step, the Court must determine whether the State court did reach an erroneous conclusion about New York evidence law.” Mulligan v. Griffin, No. 15-CV-06502 (MAT), 2016 WL 6248850, at *6 (W.D.N.Y. Oct. 26, 2016) (citing Evans v. Fischer, 712 F.3d 125, 133 (2d Cir. 2013)). “If so, the Court then must determine whether the errors were ‘so egregious as to implicate the Fourteenth Amendment's guarantee of due process.'” Id.
In the present case, Petitioner has not demonstrated that the trial court misapplied state evidentiary standards.
Under New York law, an out-of-court statement by a non-testifying witness, though normally inadmissible as hearsay, is properly admitted as an excited utterance if it is “made . . . under the stress of excitement caused by an external event” and not “under the impetus of studied reflection.” People v. Brown, 70 N.Y.2d 513, 519-20 (1987). “While it is critical that statements be made before a declarant had an opportunity to reflect, the relevant time period is not measured in minutes or seconds but rather is measured by facts.” People v. Cotto, 92 N.Y.2d 68, 79 (1998) (citations and quotations omitted).Neloms v. Brown, No. 05-CV-08162 (GWG), 2007 WL 809703, at *7 (S.D.N.Y. Mar. 16, 2007). Here, Kibria testified that he “was not expecting [Petitioner] to get caught, ” and that when Kibria saw Petitioner, Kibria was “shocked” and then yelled “oh, my God, oh, my God, it is the same guy.” (Tr. 26-27.) The rulings by the trial court and the Appellate Division regarding the admissibility of Kibria's testimony are consistent with New York Law. Nonetheless, even if Kibria's testimony was admitted in error, it cannot be said to have prejudiced Petitioner given the overwhelming evidence of guilt present in this case. See Thompson v. Artus, No. 10-CV-01443 (CBA), 2013 WL 6408354, at *12 (E.D.N.Y. Dec. 6, 2013) (holding that elicitation of hearsay testimony did not violate due process “given the overwhelming evidence of [petitioner's] guilt”).
Thus, Petitioner's claim under Ground Three should be denied.
V. Petitioner's Claim Based Upon The Denied Of His Motion To Sever The Two Counts In The Indictment (Ground Four) Should Be Denied
In Ground Four, Petitioner asserts that he “was deprived of his right to a fair trial when the court denied his motion to sever the two counts in the indictment despite the unfair prejudice that would arise from trying the two counts together.” (Pet. at 3.) In his Decision and Order denying Petitioner's motion to sever, Justice Carruthers applied Section 200.20 of the New York Criminal Procedure Law, which provides, in part, that “in the interest of justice and for good cause shown, [a trial court] may, upon application of either a defendant or the people, in its discretion, order that [two offenses charged in an indictment] be tried separately.” N.Y. C.P.L. § 200.20(3). Justice Carruthers found that “the showing made by [Petitioner] in support of his motion to sever [was] insufficient, and that the counts were properly joined in a single indictment for presentation to the grand jury.” (6/9/10 Decision and Order, SR. 419.) He held that the two incidents, i.e., the robbery on March 14, 2009 and the robbery on March 20, 2009, involved “the same type of offense, and were committed in a similar manner, in the same general area of the city, and within a week.” (Id., SR. 418-19.) The Appellate Division affirmed, holding that the trial court properly had used “its discretion in denying [Petitioner's] severance motion, ” based on the “overlapping evidence regarding [Petitioner's] distinctive modus operandi.” Everette, 148 A.D.3d at 514.
As set forth above, this claim is procedurally barred and should be denied on that basis. See Discussion Section III, supra. As discussed below, it also should be denied on the merits.
Ground Four is not cognizable on habeas review because the claim is based on the state statute governing joinder, i.e., N.Y. C.P.L. § 200.20. “The joinder of offenses for trial is a matter of state law, and federal habeas corpus relief does not extend to mere errors of state law.” Harris v. Burge, No. 04-CV-05066 (HB) (FM), 2008 WL 772568, at *7 (S.D.N.Y. Mar. 25, 2008) (citing Estelle, 502 U.S. at 68). “Improper joinder of charges against a defendant does not, in itself, amount to a constitutional violation.” McKinnon v. Superintendent, 422 Fed.Appx. 69, 72 (2d Cir. 2011) (citation omitted). A misjoinder claim rises to the level of a constitutional violation “only if it actually renders petitioner's state trial fundamentally unfair and hence, violative of due process.” Herring v. Meachum, 11 F.3d 374, 377 (2d Cir. 1993). “[J]oinder of offenses has long been recognized as a constitutionally acceptable accommodation of the defendant's right to a fair trial” and therefore, to succeed on a claim of due process based on joinder, a petitioner “must go beyond the potential for prejudice and prove that actual prejudice resulted from the events as they unfolded during the trial.” Id. at 377-78 (alteration in original). “[P]etitioners challenging their state convictions under the general ‘fairness' mandate of the due process clause bear an onerous burden.” Id. at 378. Petitioner has not met his burden here. Contrary to Petitioner's argument that the jury would use the “stronger” proof of guilt for the Kibria robbery to fill in gaps for the Darconte robbery (see Pet. at 31), the identification evidence was strong as to both robberies because both victims had a good opportunity to view Petitioner, both made a reliable identification and both identifications were corroborated by additional evidence.
In any event, any prejudice to Petitioner was addressed by the trial court's instructions to the jury. See McKinnon, 422 Fed.Appx. at 72 (“[w]here the jury learns of multiple crimes alleged to have been committed by a defendant, ‘the defendant's interests are protected by limiting instructions'”) (quoting Spencer v. Texas, 385 U.S. 554, 561 (1967)). The trial court instructed the jury that it must determine whether or not the prosecution had proven Petitioner's guilt beyond a reasonable doubt “on each of these robbery charges” (Tr. 593) and that the jury “must arrive at a separate determination for each charge.” (Id. 597.)
VI. Petitioner's Claim Based Upon Purported Prosecutorial Misconduct (Ground Five) Should Be Denied
In Ground Five, Petitioner asserts that he “was deprived of his right to a fair trial when the prosecutor engaged in misconduct by repeatedly making improper arguments during summation.” (Pet. at 3.) The improper arguments purportedly made by the prosecutor related to the modus operandi used by Petitioner during the robberies. (See Pet. at 33.)
As set forth above, this claim is procedurally barred and should be denied on that basis. See Discussion Section III, supra. As discussed below, it also should be denied on the merits.
There is an adequate and independent state ground for denying Ground Five of the Petition, such that Petitioner's claim in Ground Five is procedurally barred. The Appellate Division held that Petitioner's “arguments concerning the [prosecutor's] summation [were] unpreserved, and . . . decline[d] to review them in the interest of justice.” Everette, 148 A.D.3d at 514. New York's preservation rules constitute an adequate and independent state law ground. See Garcia v. Lewis, 188 F.3d 71, 79 (2d Cir. 1999) (“we have observed and deferred to New York's consistent application of its contemporaneous objection rules”); accord Whitley v. Ercole, 642 F.3d 278, 288 (2d Cir. 2011). Thus, the claim based upon Ground Five is procedurally barred and is not reviewable by this Court. Petitioner also fails to show a fundamental miscarriage of justice, i.e., that he is actually innocent of the crime for which he has been convicted, given the overwhelming evidence of his guilt.
Even assuming, arguendo, that the issues regarding prosecutorial misconduct during summation were properly preserved, Petitioner's Ground Five fails. The Appellate Division found, “as an alternative holding, ” that the prosecutor's “arguments on the common modus operandi of the two crimes were permissible” and that “the summation otherwise provide[d] no basis for reversal.” Everette, 148 A.D.3d at 514. This alternative holding was neither contrary to, nor an unreasonable application of, clearly established United States Supreme Court precedent. See 28 U.S.C. § 2254(d).
The scope of review of prosecutorial misconduct on a habeas petition is very limited. “To prevail on a prosecutorial misconduct claim, a habeas petitioner must show that the alleged misconduct ‘constituted more than mere trial error, and w[as] instead so egregious as to violate the defendant's due process rights.'” Smith v. Unger, No. 13-CV-05485 (LGS), 2014 WL 7008949, at *3 (S.D.N.Y. Dec. 12, 2014) (citing Tankleff v. Senkowski, 135 F.3d 235, 252 (2d Cir. 1998)). Petitioner must show “that he suffered actual prejudice because the prosecutor's comments during summation had a substantial and injurious effect or influence in determining the jury's verdict.” Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994) (quotation and citation omitted); accord Smith, 2014 WL 7008949, at *3.
In the present case, Petitioner is unable to show actual prejudice. The evidence of his guilt is overwhelming. See McManus v. Vann, No. 18-CV-03800 (JFB), 2019 WL 3767538, at *16 (E.D.N.Y. Aug. 9, 2019) (habeas petition denied where “the evidence of petitioner's guilt was so overwhelming that the outcome would have been the same absent the alleged prejudicial conduct”). Thus, Ground Five of the Petition also should be denied.
VII. Petitioner's Claim Based Upon A Sentencing Error (Ground Six) Is Unexhausted And Not Cognizable
The sixth and final ground raised by Petitioner for habeas relief is that his sentenced should be reduced in the “interest of justice.” (Pet. at 3.) Ground Six is unexhausted and not cognizable on federal habeas review. Even assuming that Petitioner had exhausted his excessive sentence claim by raising it on his leave application to the New York Court of Appeals, he did not exhaust it in the Appellate Division. In his brief to the Appellate Division, Petitioner requested that the Appellate Division exercise its discretion to reduce Petitioner's sentence. (See App. Br., SR. 181.) However, “an appeal to the Appellate Division's discretionary power to reduce a sentence does not exhaust an Eighth Amendment claim.” Porter v. Martuscello, No. 16-CV-01417 (WHP) (HBP), 2018 WL 8895807, at *18 (S.D.N.Y. Aug. 10, 2018), report and recommendation adopted, 2019 WL 2537415 (S.D.N.Y. June 20, 2019).
As set forth above, this claim is procedurally barred, since it was not raised in the leave application to the New York Court of Appeals, and should be denied on that basis. See Discussion Section III, supra. As discussed below, it also should be denied on the merits.
In any event, Petitioner's excessive sentence claim is not cognizable on federal habeas review. “A sentence that is within the range permitted by state law may not be held to be disproportionate under the Eighth Amendment.” Silvestre v. Capra, No. 15-CV-09425 (KPF) (DCF), 2018 WL 3611988, at *33 (S.D.N.Y. July 27, 2018); see also Estelle, 502 U.S. at 67-68 (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions”) (internal quotations and citations omitted). Thus, I recommend that Ground Six be denied.
CONCLUSION
For the foregoing reasons, I respectfully recommend that the Petition be denied in its entirety.
SO ORDERED.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Engelmayer.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).