Opinion
18 Civ. 7240 (NSR)(JCM)
11-12-2020
DAVAJ FRAZIER, Petitioner, v. LYNN J. LILLEY, Respondent.
The Honorable Nelson S. Roman, United States District Judge
REPORT AND RECOMMENDATION
JUDITH C. McCARTHY UNITED STATES MAGISTRATE JUDGE
Petitioner Davaj Frazier ("Petitioner"), proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("Petition") on August 9, 2018. (Docket No. 1). On January 3, 2019, Respondent Lynn J. Lilley ("Respondent") filed a memorandum of law and an affirmation in opposition to the Petition. (Docket Nos. 10-11). On February 21, 2019, Petitioner filed a reply memorandum of law in further support of the Petition. (Docket No. 14). For the reasons set forth below, I respectfully recommend that the Petition be denied.
A pro se prisoner's papers are deemed filed at the time he or she delivers them to prison authorities for forwarding to the court clerk. Houston v. Lack, 487 U.S. 266, 276 (1988); see also Walker v. Jastremski, 430 F.3d 560 (2d Cir. 2005) (analyzing the Houston "prison mailbox rule"). Petitioner certified that he delivered his Petition to prison authorities for mailing on August 1, 2018. (Docket No. 1 at 10). Accordingly, because the timeliness of the Petition is not challenged, the Court adopts Petitioner's dates for this filing and all other filings discussed herein.
I. BACKGROUND
A. Crime and Arrest
Petitioner's convictions arise out of his March 21, 2014 arrest for possession of a firearm. Construing the evidence in the light most favorable to the State, see, e.g., Murden v. Artuz, 497 F.3d 178, 184 (2d Cir. 2007), the following facts were established at trial.
At 1:44 a.m. on March 21, 2014, Officer John Maguire of the Newburgh Police Department ("NPD") received a "shots fired" dispatch and was directed to respond to 50 Dubois Street in the City of Newburgh, New York. (Feb. 20, 2015 Trial Tr. at 15-16). Officer Maguire was advised to be on the lookout for a black male wearing a "black jacket and black colored hat." (Id. at 17). Upon arriving at 50 Dubois Street, Officer Maguire observed an individual- whom he later learned was Petitioner-walking southbound fitting this description. (Id. at 17-18, 21). Officer Maguire then shined his spotlight on Petitioner as Officer Yovany Rodriguez of the NPD arrived on the scene, and both officers were informed over their radios that Petitioner was the shooter. (Id. at 18, 46-47). Officer Rodriguez also shined his spotlight on Petitioner, after which Officer Maguire rolled down his window and requested that Petitioner stop, but Petitioner continued southbound on Dubois Street. (Id. at 18-19, 47). Both officers exited their vehicles and asked Petitioner to stop, but he began running. (Id. at 19, 47). Officer Maguire continued to direct Petitioner to stop and Officer Rodriguez demanded to see Petitioner's hands as the officers pursued him across Dubois Street westbound onto Van Ness Street. (Id. at 19-20, 47-48). Officer Brandon Rola of the NPD arrived on scene and, upon seeing the two officers chasing Petitioner, exited his vehicle and joined in the pursuit. (Id. at 57-58).
Refers to the transcript of the Petitioner's trial, which occurred from February 20 to 27, 2015. (Docket Nos. 11-6 to 11-9).
All page number citations to the record refer to the ECF page number unless otherwise noted.
Officers Maguire and Rodriguez both observed that Petitioner had his hand in his jacket pocket and when he removed it was holding a white plastic bag. (Feb. 20, 2015 Trial Tr. at 20, 48-49). As he was running, Petitioner tripped over a curb and stumbled, enabling Officers Maguire and Rodriguez to tackle him to the ground. (Id. at 20, 48-49). Officer Rola caught up to them, and all three officers observed Petitioner attempt to keep his hands tucked under his body. (Id. at 20, 49-50, 58-59). Petitioner was lying "face down with his hands underneath him near his waistband," as the officers were attempting to handcuff him and turn him over. (Id. at 20, 50, 59). Once the officers were able to roll Petitioner over and handcuff him, Officer Rola observed a gun with the handle wrapped in a grocery bag "underneath [Petitioner's] waistband area where [they] pulled his arms away [from]," and Officer Rola proceeded to grab it. (Id. at 20-21, 50, 61-62). Officer Rola secured the gun, checked if it was loaded-observing bullets in the chamber- and subsequently transported it to the police department. (Id. at 62-63).
Officers Christopher Tabachnick and Phillip Mugnano of the NPD had arrived on scene as the other officers were struggling to handcuff Petitioner. (Feb. 23, 2015 Trial Tr. at 10-11, 13). Although they observed the chase from their police cruiser, they did not catch up until Petitioner had already been tackled to the ground. (Id. at 12-13). Once Petitioner had been handcuffed and the handgun had been located, Petitioner informed Officers Tabachnick and Carlos Canario of the NPD that he had been shot in the right arm. (Id. at 13-15, 26-27). Officers Tabachnick and Canario accompanied Petitioner to St. Luke's Hospital to receive treatment for the gunshot wound. (Id. at 15, 27).
Detective Patrick Kelly of the NPD responded to St. Luke's Hospital and informed Petitioner that he was there "to speak with him regarding his shooting and also [regarding] him being apprehended with a firearm." (Feb. 23, 2015 Trial Tr. at 44-45, 47-48). Before speaking with Petitioner, Detective Kelly advised him of his Miranda rights, which he read from a preprinted form. (Id. at 48-49). Detective Kelly, along with Detective Buckley and Petitioner, signed the form, and Petitioner then agreed to speak without an attorney present. (Id. at 48-50). Petitioner stated that he had come to Newburgh to visit his son but was "locked out" of his son's mother's apartment. (Id. at 51). Petitioner explained that he left the apartment, walked down 310 Broadway to Robinson Avenue, and continued eastbound on First Street when he arrived at Dubois Street. (Id. at 51-52). Upon arriving at Dubois Street, Petitioner observed a "group of males" on the west side of the street who asked who he was and, "the next thing he k[n]ew[] they're starting to fire at him." (Id. at 52). When they stopped shooting, Petitioner claims that they fled and "one of them drop[ped] a white bag with a gun in it" which Petitioner picked up. (Id.). The police arrived shortly thereafter, and Petitioner explained that he ran "because he d[idn't] believe they'll believe his story and how he obtained the gun." (Id.). During Detective Kelly's subsequent investigation, he learned that Petitioner did not have a valid gun permit to lawfully possess the firearm. (Id. at 61-62).
On April 17, 2014, the grand jury returned a one-count indictment-Orange County Indictment Number 2014-207-charging Petitioner with criminal possession of a weapon in the second degree, (Penal Law § 265.03 (1) (b)). (Docket No. 11-1 at 2).
B. Pretrial Proceedings
On April 21, 2014, Petitioner's trial counsel made an omnibus motion, seeking: (1) dismissal of the indictment pursuant to C.P.L. Article 210 on the grounds that the evidence before the grand jury was insufficient; (2) to suppress statements made by Petitioner; (3) to prohibit the prosecution from questioning Petitioner regarding prior criminal or bad acts; and (4) Brady material from the People. (Docket No. 11-1 at 6-7). The People opposed on April 25, 2014, (id. at 10-15), and on June 11, 2014, the Honorable Robert H. Freehill of New York State County Court, County of Orange, granted in part and denied in part the motion, (id. at 16-17). On May 6, 2014, a conference was held before Justice Freehill. (May 6, 2014 Hearing Tr. at 1). The People offered a plea deal to Petitioner of nine years in state prison with five years post-release supervision if he pled guilty to "criminal possession of a weapon in the second degree of the class C violent felony." (Id. at 2). At a subsequent October 27, 2014 hearing, Petitioner's then-trial counsel, Gary Abramson, informed the trial court that he counseled Petitioner that a plea deal might be prudent, especially given the evidence that would likely be presented by the People at trial. (Oct. 27, 2014 Hearing Tr. at 2-4). The People indicated that once the suppression hearing began-which was scheduled for October 27, 2014-the People's plea deal would "not go lower." (Id. at 6). The People then summarized the evidence that they planned on presenting at trial, after which Petitioner conferred further with his trial counsel. (Id. at 3-7). Trial counsel informed the trial court that he continued to counsel Petitioner against going to trial because he "d[id] not see an acquittal in th[e] case from what [he] know[s]." (Id. at 7-8). In response to trial counsel's advice, Petitioner "got very angry," and indicated that he believed they "ha[d] a conflict of interest." (Id.). The trial court then questioned whether Petitioner planned on hiring his own attorney-which Petitioner indicated that he did not-after which the suppression hearing commenced.
Refers to the transcripts of Petitioner's pretrial proceedings, which occurred on April 21, 2014, May 6, 2014, August 26, 2014, September 11 and 18, 2014, October 2, 7, 27 and 30, 2014, November 3, 2014, December 18, 2014, and January 12,2015. (Docket Nos. 11-4 and 11-5).
The People called the following witnesses: (1) Officer Maguire, (Oct. 27, 2014 Hearing Tr. at 10-31); (2) Officer Tabachnick, (id. at 30-39); and (3) Detective Kelly, (id. at 39-61). Officer Maguire testified that at approximately 1:44 a.m. on March 21, 2014, he received a dispatch indicating that shots had been fired at 50 Dubois Street in the City of Newburgh, NY. (Id. at 11). Upon arriving at 50 Dubois Street, Office Maguire testified that he observed a black male in a black jacket and black hat walking south, fitting the description of the suspected shooter. (Id. at 11-12). Officer Maguire proceeded to shine his spotlight on the individual, who he later learned was Petitioner, and was informed over the radio dispatch that the individual with the spotlight shining on him was, in fact, the shooter. (Id. at 12-13, 14). Officer Maguire explained that this information had been relayed to the 911 dispatcher "[f]rom a witness who was on the telephone with them." (Id. at 13). Officer Maguire exited his vehicle and told Petitioner to stop and show him his hands, but Petitioner began running. (Id.). Officer Maguire followed Petitioner as he crossed Dubois Street onto Van Ness Street and could see Petitioner holding a white bag that he had pulled out of his pocket. (Id. at 13-14). Petitioner tripped on the curb at Van Ness Street, and Office Maguire testified that he was able to tackle him to the ground. (Id. at 14). Officer Rodriguez arrived and he and Officer Maguire handcuffed Petitioner and, upon rolling him over, observed that he was laying on a handgun wrapped in a white plastic bag. (Id. at 15). Officer Tabachnick testified that he arrived at 50 Dubois Street and observed Officer Maguire chasing Petitioner. (Id. at 31-32). After Petitioner was apprehended, Officer Tabachnick testified that he took him into custody. (Id. at 32-33). Petitioner then informed Officer Tabachnick that he had been shot and needed to go to the hospital, after which he and Officer Maguire brought Petitioner to the hospital. (Id. at 32-33, 37). Officer Tabachnick testified that Petitioner did not say anything during the ride to the hospital. (Id. at 33).
Detective Kelly testified that he and Detective Buckley went to St. Luke's Hospital- where Petitioner had been taken-to interview Petitioner. (Oct. 27, 2014 Hearing Tr. at 40). Prior to interviewing Petitioner, Detective Kelly read him his Miranda rights from a printed form, which Petitioner indicated that he understood and subsequently signed. (Id. at 41-43). Detective Kelly testified that Petitioner did not ask for an attorney or raise any objections to speaking with him, and that Petitioner's answers were logical and clear during their conversation. (Id. at 43-44, 46, 56-57). Petitioner informed Detective Kelly that he had been walking on the west side of Dubois street when "a few unknown males" confronted him. (Id. At 44). Petitioner indicated that "[w]ords were exchanged and then [the unknown males] started firing at [Petitioner]," after which they fled the area and one of the individuals dropped a gun in a white bag. (Id.). Petitioner told Detective Kelly that he picked up the gun, continued to walk away, and the police arrived a short time later. (Id.). Petitioner explained to Detective Kelly that he ran from the police because "he didn't think they would believe his story of how he acquired [the gun]." (Id.). At the conclusion of Detective Kelly's testimony, the trial court adjourned the hearing until a later date because the People had additional witnesses who could not be present. (Id. 60).
At the continuation of the hearing on October 30, 2014, Petitioner's trial counsel raised concerns regarding a potential conflict of interest that the Legal Aid Society-the organization that employed him-might have in defending Petitioner. (Oct. 30, 2014 Hearing Tr. at 2-3). Specifically, the Legal Aid Society had previously represented the individual who placed the 911 call, which eventually led to Petitioner's arrest, on a criminal mischief charge. (Id. at 2). Despite trial counsel's objections, the court saw no conflict of interest because the People did not intend to call this individual as a witness at the hearing. (Id. at 3-6). Petitioner also expressed discomfort with trial counsel's continued representation due to the perceived conflict of interest, leading the court to schedule the matter for a further conference. (Id. at 8-10). On November 3, 2014, the court heard argument relating to the conflict of interest and decided to relieve the Legal Aid Society and Mr. Abramson, and appointed Peter Green to represent Petitioner. (Nov. 3, 2014 Hearing Tr. at 1-8).
The suppression hearing continued on December 18, 2014. (Dec. 18, 2014 Hearing Tr. at 1-2). The People called Officer Mugnano, who testified that he had responded to 50 Dubois Street at approximately 1:44 a.m., where he observed Officer Maguire shine a spotlight on Petitioner, and then begin to chase him. (Id. at 3-4). After Petitioner had been placed in custody, and informed the officers that he had been shot, Officer Mugnano accompanied him to the hospital, where he remained with Petitioner. (Id. at 4-5). Officer Mugnano testified that while he "was questioning [Petitioner] as a victim" at the hospital, Petitioner told him that "he seem[ed] like a decent person ... at which time he went into full detail of the whole incident." (Id. at 5). Officer Mugnano did not advise Petitioner of his Miranda warnings prior to speaking with him, or before Petitioner provided the "full detail of the whole incident." (Id. at 5-6).
On January 12, 2015, Justice Freehill issued a decision granting in part and denying in part trial counsel's suppression motion. (Docket No. 11-1 at 19-23). First, Justice Freehill determined that the handgun was properly recovered from Petitioner because the police had reasonable suspicion to stop Petitioner based on the description of the suspect and the subsequent confirmation. (Id. at 21). Second, Justice Freehill determined that the statements Petitioner made to Officer Mugnano were not admissible because Petitioner was not advised of his Miranda rights. (Id. at 21-22). Third, Justice Freehill found Petitioner's statements to Detective Kelly admissible because Petitioner was read his Miranda rights and knowingly waived them. (Id. at 22).
C. The Trial
Justice Freehill presided over the trial and conducted jury selection on February 19, 2015. (Feb. 19, 2015 Jury Selection Tr. at 6-93). The trial commenced on February 20, 2015 with opening statements. (Feb. 20, 2015 Trial Tr. at 2-12). The People called the following witnesses for its case-in-chief: (1) Officer Maguire, (id. at 15); (2) Officer Rodriguez, (id. at 46); (3) Officer Rola, (id. at 55); (4) 911 Dispatcher Maria Panico, (Feb. 23, 2015 Trial Tr. at 5); (5) Officer Tabachnick, (id. at 10); (6) Officer Canario, (id. at 23); (7) Detective Kelly, (id. at 44); (8) Detective Kevin Burns, (Feb. 24, 2015 Trial Tr. at 3); and (9) Officer Anthony Giudice, (id. at 37). The People rested on February 24, 2015. (Id. at 53). Petitioner's trial counsel moved for an order of dismissal, arguing that the People did not meet their burden and that there was insufficient evidence to support the charges. (Id. at 53). The trial court denied the motion. (Id. at 54). Petitioner's trial counsel called Petitioner to testify, (id. at 55), and rested on February 24, 2015, (id. at 92). On February 26, 2015 both parties delivered summations, after which the court charged the jury. (Feb. 26, 2015 Trial Tr. at 14-71). The jury deliberated for two days and returned a verdict on February 27, 2015, finding Petitioner guilty of criminal possession of a weapon in the second degree (Feb. 27, 2015 Trial Tr. at 10-12). On March 30, 2015, the trial court sentenced Petitioner to ten years in state prison with credit for time served, followed by five years post-release supervision. (Mar. 30, 2015 Sentencing Tr. at 10-11).
Refers to the transcript of the jury selection in Petitioner's trial, which occurred on February 19, 2015. (Docket No. 11-5).
Refers to the transcript of Petitioner's sentencing hearing, which was held on March 30, 2015. (Docket No. 11-9 at 94-104).
D. Direct Appeal
Petitioner, through appellate counsel, appealed his conviction, raising the following three grounds: (1) Petitioner innocently possessed the weapon; (2) trial counsel was ineffective; and (3) Petitioner's sentence was excessive. (Docket No. 11-1 at 24-49). The People opposed on January 3, 2017. (Docket No. 11-2 at 2-32). By Decision and Order dated July 26, 2017, the New York State Supreme Court, Appellate Division: Second Department ("Appellate Division") affirmed the judgment. See People v. Frazier, 152 A.D.3d 791 (2d Dep't 2017). The Appellate Division found that Petitioner's challenge to the sufficiency of the evidence was unpreserved for review, but was otherwise without merit. See Id. at 791-92. Relatedly, the Appellate Division found that the verdict was not against the weight of the evidence. See Id. at 792. The Appellate Division further opined that "there was no reasonable view of the evidence upon which the jury could have found that the [Petitioner's] possession of the weapon was innocent," and observed that "[r] etaining a gun beyond opportunities to safely relinquish it is utterly at odds with any claim of innocent possession." Id. (quotations omitted). Finally, the Appellate Division found Petitioner's contention that he received ineffective assistance of counsel "without merit," and that the sentence imposed was not excessive. Id.
By notice and affirmation dated August 28, 2017, Petitioner's appellate counsel moved for leave to appeal the Appellate Division's decision to the New York State Court of Appeals. (Docket No. 11-3 at 2-9). Appellate counsel withdrew this application and subsequently refilled on September 7, 2017 because it had been improperly filed. (Id. at 15-23). The People opposed on September 13, 2017. (Id. at 33-35). On August 11, 2017, Petitioner filed a separate appeal pro se, arguing that the trial court erred in not suppressing his statements to Detective Kelly. (Id. at 38-46). On November 8, 2017, the Court of Appeals denied Petitioner's application. (Id. at 50). On February 22, 2018, the People moved to dismiss Petitioner's August 11, 2017 appeal, arguing that his appellate counsel had already moved for leave to appeal, rendering Petitioner's second application improper. (Id. at 48). On April 20, 2018, the Court of Appeals dismissed Petitioner's second application "because an application for the same relief ha[d] already been made." (Id. at 51).
E. Petitioner's Federal Habeas Corpus Proceedings
Petitioner filed a Petition for writ of habeas corpus on August 9, 2018, raising the following grounds for relief: (1) he innocently possessed the gun recovered by the police; and (2) trial counsel was ineffective by (a) permitting the admission of the 911 recording; and (b) failing to object to the admission of Petitioner's Miranda warnings. (Docket No. 1). Respondent opposed on January 3, 2019, (Docket Nos. 10-11), and Petitioner filed a reply memorandum of law on February 14, 2019, (Docket No. 14).
II. APPLICABLE LAW
"The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)." Harrington v. Richter, 562 U.S. 86, 97 (2011). "Before a federal district court may review the merits of a state criminal judgment in a habeas corpus action, the court must first determine whether the petitioner has complied with the procedural requirements set forth in 28 U.S.C. §§ 2244 and 2254." Visich v. Walsh, No. 10 Civ. 4160 (ER)(PED), 2013 WL 3388953, at *9 (S.D.N.Y. July 3, 2013). The procedural and substantive standards are summarized below.
If Petitioner does not have access to cases cited herein that are reported only on Westlaw, then he may request copies from Respondent's counsel. See Local Civ. R. 7.2 ("Upon request, counsel shall provide the pro se litigant with copies of cases and other authorities that are unpublished or reported exclusively on computerized databases that are cited in a decision of the Court and were not previously cited by any party").
A. Timeliness Requirement
Federal habeas corpus petitions are subject to AEDPA's strict, one-year statute of limitations. 28 U.S.C. § 2244(d)(1). The statute allows for four different potential starting points to determine the limitations period and states that the latest of these shall apply. As the statute explains:
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1)(A)-(D). However, this one-year period will be tolled during the pendency of a properly filed application for post-conviction relief. 28 U.S.C. § 2244(d)(2). This period may also be subject to equitable tolling, but "only in the rare and exceptional circumstance." Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (internal quotation marks omitted); see also Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)) (setting forth a two-step analysis for equitable tolling).
B. Exhaustion as a Procedural Bar
A habeas petition may not be granted unless the petitioner has exhausted his claims in state court. See 28 U.S.C. § 2254(b). As the statute prescribes:
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that-
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.28 U.S.C. § 2254(b)-(c).
Exhaustion requires a prisoner to have "fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts." Turner v. Artuz, 262 F.3d 118, 123 (2d Cir. 2001) (internal quotation marks omitted). If a petitioner "cites to specific provisions of the U.S. Constitution in his state court brief, the petitioner has fairly presented his constitutional claim to the state court." Davis v. Strack, 270 F.3d 111, 122 (2d Cir. 2001); see also Reid v. Senkowski, 961 F.2d 374, 376 (2d Cir. 1992) (even "a minimal reference to the Fourteenth Amendment" presents a federal constitutional claim to the state courts). However, a petitioner may fairly present his claim even without citing to the U.S. Constitution. As the Second Circuit has stated:
the ways in which a state defendant may fairly present to the state courts the constitutional nature of his claim, even without citing chapter and verse of the Constitution, include (a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.Daye v. Attorney Gen. of State of N.Y., 696 F.2d 186, 194 (2d Cir. 1982). Fair presentation includes petitioning for discretionary review in the state's highest appellate court. See O 'Sullivan v. Boerckel, 526 U.S. 838, 838-39 (1999) ("[A] state prisoner must present his claims to a state supreme court in a petition for discretionary review in order to satisfy the exhaustion requirement.").
However, "a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred." Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (internal quotation marks omitted). In such cases, although the claim is technically unexhausted, the district court may deem the claim to be exhausted but procedurally barred from habeas review. See Id. at 140 ("[A] claim is procedurally defaulted for the purposes of federal habeas review where '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.'" (quoting Coleman v. Thompson, 501 U.S. 722, 735 (1991)).
Under New York law, defendants are permitted only one direct appeal. See Dasney v. People of the State of New York, No. 15 Civ. 5734 (RJS), 2017 WL 253488, at *5 (S.D.N.Y.Jan. 19, 2017) (citing NY. Ct. App. R. § 500.20); see also Roa v. Portuondo, 548 F.Supp.2d 56, 78 (S.D.N.Y.2008) ("Any attempt to raise these claims at this stage as part of a direct appeal would be rejected because a criminal defendant is entitled to only one direct appeal and one application for leave to appeal to the Court of Appeals."). Petitioners must raise record-based claims by direct appeal rather than by a collateral motion in state court. See, e.g., O 'Kane v. Kirkpatrick, No. 09 Civ. 05167 (HB)(THK), 2011 WL 3809945, at *7 (S.D.N.Y. Feb. 15, 2011) ("[A]ll claims that are record-based must be raised in a direct appeal. ... It is only when a defendant's claim hinges upon facts outside the trial record, that he may collaterally attack his conviction by bringing a claim under CPL § 440.10."), report and recommendation adopted, 2011 WL 3918158 (S.D.N.Y. Aug. 25, 2011); Lowman v. New York, No. 09 Civ. 0058T, 2011 WL 90996, at *9 (W.D.N.Y. Jan. 11, 2011) ("Collateral review of this claim-by way of another CPL § 440 motion-is also barred because the claim is a matter of record that could have been raised on direct appeal, but unjustifiably was not.)" (citing N.Y. C.P.L. § 440.10(2)(c)). To avoid the procedural default of an unexhausted claim, a petitioner may show "cause for the default and prejudice, or that failure to consider the claim will result in miscarriage of justice, i.e., the petitioner is actually innocent." Sweet v. Bennett, 353 F.3d 135, 141 (2d Cir. 2003).
C. Adequate and Independent State Grounds as a Procedural Bar
"It is well established that federal courts will not review questions of federal law presented in a habeas petition when the state court's decision rests upon a state-law ground that 'is independent of the federal question and adequate to support the judgment.'" Cone v. Bell, 556 U.S. 449, 465 (2009) (quoting Coleman, 501 U.S. at 729); see also Downs v. Lape, 657 F.3d 97, 23 (2d Cir. 2011). This preclusion applies even if the state court alternatively rules on the merits of the federal claim, so long as there is an adequate and independent state ground that would bar the claim in state court. See, e.g., Harris v. Reed, 489 U.S. 255, 264 n.10 (1989); Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999).
"A state court decision will be 'independent' when it 'fairly appears' to rest primarily on state law." Taylor v. Connelly, 18 F.Supp.3d 242, 253 (E.D.N.Y. 2014) (quoting Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir. 2006)). In the normal case, a ground is adequate "only if it is based on a rule that is 'firmly established and regularly followed' by the state in question." Garcia, 188 F.3d at 77 (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)); see also Cotto v. Herbert, 331 F.3d 217, 239 (2d Cir. 2003). A decision that a state procedural rule is inadequate should not be made "lightly or without clear support in state law." Garcia, 188 F.3d at 77 (internal quotation marks omitted). However, "there are 'exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question.'" Cotto, 331 F.3d at 240 (quoting Lee v. Kemna, 534 U.S. 362, 376 (2002)). In determining whether a case is "exceptional" in that the state ground should be held inadequate, the Second Circuit uses the following factors as "guideposts":
(1) whether the alleged procedural violation was actually relied on in the trial 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.Id. (internal quotation marks omitted).
To avoid a procedural default based on independent and adequate state grounds, a petitioner must "show 'cause' for the default and 'prejudice attributable thereto,' ... or demonstrate that failure to consider the federal claim will result in a 'fundamental miscarriage of justice.'" Harris, 489 U.S. at 262 (quoting Murray v. Carrier, Ml U.S. 478, 485 (1986)).
D. AEDPA Standard of Review
When a federal court reaches the merits of a habeas petition, AEDPA prescribes a "highly deferential" standard for reviewing state court rulings. Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997); see also Fischer v. Smith, 780 F.3d 556, 561 (2d Cir. 2015). An application for a writ of habeas corpus:
shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28U.S.C. § 2254(d)(1)-(2).
Courts have interpreted the phrase "adjudicated on the merits" in AEDPA as meaning that a state court "(1) dispose[d] of the claim on the merits, and (2) reduce[d] its disposition to judgment." Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001) (internal quotation marks omitted). Courts examine the "last reasoned decision" by the state courts in determining whether a federal claim was adjudicated on the merits. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) ("Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground."). "[W]hen a state court issues an order that summarily rejects without discussion all the claims raised by a defendant, including a federal claim that the defendant subsequently presses in a federal habeas proceeding, the federal habeas court must presume (subject to rebuttal) that the federal claim was adjudicated on the merits." Johnson v. Williams, 568 U.S. 289, 293 (2013) (emphasis in original). The same presumption applies when "a state court rules against the defendant and issues an opinion that addresses some issues but does not expressly address the federal claim in question." Id. at 292. This "presumption is a strong one that may be rebutted only in unusual circumstances." Id. at 302.
If a state court adjudicates a federal claim on the merits, the Court must apply AEDPA deference to that state court ruling. 28 U.S.C. § 2254(d)(1)-(2). In the context of AEDPA deference, the phrase "clearly established Federal law" means "the holdings, as opposed to the dicta, of [the Supreme Court of the United States'] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 365 (2000). "A state court decision is contrary to such clearly established federal law if it 'applies a rule that contradicts the governing law set forth in the Supreme Court's cases' or 'if the state court confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from its precedent.'" Lewis v. Conn. Comm 'r o/Corr., 790 F.3d 109, 121 (2d Cir. 2015) (quoting Boyette v. Lefevre, 246 F.3d 76, 90 (2d Cir. 2001)).
A state court decision involves an "unreasonable application" of Supreme Court precedent if: (1) "the state court identifies the correct governing legal rule from [Supreme Court] cases but unreasonably applies it to the facts of the particular state prisoner's case," or (2) "the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Williams, 529 U.S. at 407. For a federal court to find a state court's application of Supreme Court precedent unreasonable, the state court's decision must have been more than "incorrect or erroneous" - it must have been "objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75 (2003). In other words, "[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Richter, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 665 (2004)). However, "the trial court's decision need not teeter on 'judicial incompetence' to warrant relief under § 2254(d)." Alvarez v. Ercole, 763 F.3d 223, 229 (2d Cir. 2014) (quoting Francis S v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)). If a state court decision does not contain reasons for the dismissal of a defendant's federal claim, the Court must "consider 'what arguments or theories . . . could have supported[] the state court's decision,' and may grant habeas only if 'fairminded jurists could [not] disagree that those arguments or theories are inconsistent with the holding in a prior decision of the Supreme Court." Lynch v. Superintendent Dolce, 789 F.3d 303, 311 (2d Cir. 2015) (alterations in original) (quoting Richter, 562 U.S. at 102).
III. DISCUSSION
Petitioner argues that he is entitled to relief because: (1) he innocently possessed the weapon ("Ground One"); and (2) trial counsel was ineffective by: (a) permitting the admission of the 911 recording during the trial; and (b) permitting the admission of Petitioner's Miranda warnings without objection, (collectively, "Ground Two"). (Docket No. 1 at 4-6). Respondent argues that Ground One is procedurally barred, Ground Two is partially procedurally barred, and that both grounds are otherwise without merit. (Docket No. 11).
A. Ground One
Petitioner argues that the evidence adduced at trial was legally insufficient to establish that he criminally possessed a firearm. (Docket Nos. 1 at 4; 14 at 17). Petitioner explains that he innocently possessed the weapon, which he had picked up off the ground after he was being robbed at gunpoint, and that the People failed to prove otherwise. (Docket No. 14 at 21-23). Respondent argues that Petitioner's challenge to the verdict is procedurally barred because the Appellate Division found it unpreserved, and that the claim is otherwise without merit. (Docket No. 11 at 11-17). On direct appeal, Petitioner's appellate counsel argued that "[t]he facts in this case overwhelmingly establish that [Petitioner] had innocently possessed the handgun," and that his conviction should be reversed. (Docket No. 11-1 at 40-42). The Appellate Division found this argument "unpreserved for appellate review," and alternatively determined that the evidence "was legally sufficient to establish the [Petitioner's] guilt beyond a reasonable doubt." Frazier, 152A.D.3d at 791.
The Appellate Division's alternative finding on the merits does not negate the procedural bar created by finding the argument was unpreserved. See Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990)("[F]ederal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim.").
The Appellate Division did not articulate its reasons for finding this claim unpreserved. See Frazier, 152 A.D.3d 791. Nevertheless, courts faced with similarly ambiguous rulings have found that the Appellate Division likely "relied upon New York's contemporaneous objection rule." Gonzalez v. Cunningham, 670 F.Supp.2d 254, 261 (S.D.N.Y. 2009)(collecting cases); see also Cruz v. Griffin, 16 Civ. 8998 (CS)(JCM), 2019 WL 6220806, at *20 (S.D.N.Y. Oct. 24, 2019) (finding that the appellate division likely relied on the contemporaneous objection rule when it found unpreserved a sufficiency of the evidence challenge despite not articulating its reasoning), report and recommendation adopted, 2019 WL 6211262 (S.D.N.Y. Nov. 20, 2019); Brown v. Fisher, No. 13-cv-2071 (NSR)(PED), 2015 WL 3619628, at *11 (S.D.N.Y. June 9, 2015) ("failure to preserve a sufficiency of the evidence claim by moving for a trial order of dismissal specifically identifying the error alleged ... constitutes an independent and adequate stale [sic] ground"); Bowman v. Racette, No. 12CV4153-LTS-SN, 2015 WL 1787130, at *30 (S.D.N.Y. Apr. 20, 2015) (finding challenge to the sufficiency of the evidence barred from habeas review because the appellate division found it unpreserved, and noting that the "failure to object at trial when required by New York's contemporaneous objection rule, C.P.L. § 470.05(2), is an adequate and independent state ground."). Although Petitioner's trial counsel moved for an order of dismissal at the close of the People's case-in-chief, (Feb. 24, 2015 Trial Tr. at 53), he neglected to renew this motion at the close of the defense case or prior to closing statements, (id. at 92-93; Feb. 26, 2015 Trial Tr. at 2-10). Thus, the Appellate Division's ruling serves as an adequate and independent state procedural rule that bars habeas review.
Petitioner cannot overcome this procedural default by demonstrating either cause for the default and prejudice or that a failure to consider the claim will result in a miscarriage of justice. See Sweet, 353 F.3d at 141 (citing Coleman, 501 U.S. at 748). Neither the Petition nor the reply memorandum of law set forth any grounds that would establish either cause and prejudice, or that a failure to consider this argument would result in a miscarriage of justice. (Docket Nos. 1 and 14 at 17-23). To the extent Petitioner argues that he has overcome the procedural bar because he is actually innocent-i.e., that he innocently possessed the handgun, and therefore the conviction cannot stand-this argument is unavailing. See, e.g. Fabers v. Lamanna, 18-CV-2399 (PKC), 2020 WL 1875288, at *22 (E.D.N.Y.Apr. 15, 2020) (To establish a claim of actual innocence, the claim must be credible. "For the claim to be 'credible,' it 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'") (emphasis added) (quoting Rivas v. Fischer, 780 F.3d 529, 541 (2d Cir. 2015)). Trial counsel explicitly argued on summation that Petitioner innocently possessed the weapon, which Petitioner claimed to have retrieved off the ground after an individual attempted to rob him. (Feb. 26, 2015 Trial Tr. at 15-17). Trial counsel also argued that the People failed to present evidence that disproved Petitioner's assertion that he did not possess the handgun lawfully or temporarily. (Id. at 19-22). Moreover, the trial court instructed the jury on the elements of criminal possession of a weapon in the second degree, including what would constitute innocent possession. (Id. at 63-65). Accordingly, Petitioner's assertion-that he innocently possessed the handgun-cannot serve as a basis for overcoming the procedural default.
Even assuming, arguendo, that Petitioner could overcome this procedural bar, his challenge to the sufficiency of the evidence also fails on the merits. An individual is guilty of criminal possession of a weapon in the second degree when, "with intent to use the same unlawfully against another, such person: (a) possesses a machine-gun; or (b) possesses a loaded firearm; or (c) possessed a disguised gun." N.Y. Penal Law § 265.03. At trial, the People presented testimony establishing that at approximately 1:44 a.m. on March 21, 2014, Petitioner was at 50 Dubois Street in the City of Newburgh, NY, and was in possession of a loaded firearm without a gun permit. (Feb. 20, 2015 Trial Tr. at 21, 18, 46-50, 58-62; Feb. 23, 2015 Trial Tr. at 10-13, 44-52, 61-62). Petitioner, who testified on his own behalf, largely corroborated these facts. (Feb. 24, 2015 Trial Tr. at 63-67, 80-81, 83, 85-90). Specifically, on cross-examination, Petitioner acknowledged that he was in possession of the firearm, which he had placed in his pocket, and when the police arrived and put a spotlight on him, he ran in the opposite direction. (Id. at 81-82, 85-86, 89-90).
Petitioner's argument-that he innocently possessed the weapon-is only supported by his version of the events that preceded the arrival of the police and subsequent chase. On direct examination, Petitioner explained that he had been at a bar in Newburgh and subsequently left with two friends to go purchase marijuana. (Feb. 24, 2015 Trial Tr. at 58-61). After parking his car, Petitioner testified that he approached a group of three individuals and asked if they were selling marijuana, which they were. (Id. at 60-61). Petitioner indicated that he was looking to purchase $20 worth of marijuana, and one of the individuals left, only to return a short time later with a bag. (Id. at 62). This individual commented that he "like[d] [Petitioner's] jacket" and that he wanted it. (Id.). Petitioner told the individual that he could not have the jacket, leading the individual to pull out a gun and point it at Petitioner. (Id. at 62-63). Petitioner claims that he "lunged at [the individual]" in order to "grab the weapon from him," causing a struggle to ensue during which the gun went off. (Id. at 63-64). As the two were "tussling," the individual dropped the gun, which Petitioner picked up. (Id. at 64). Petitioner proceeded to chase the individual as he ran away, but was unable to catch up to him. (Id. at 64). At this point, Petitioner ran back to his car, but could not remember where he parked it. (Id.). At the same time, Petitioner realized that during the struggle he had been shot in the arm and was bleeding. (Id. at 64-66). Petitioner claims that he then put the gun in his left pocket and started walking; when the police arrived and put a spotlight on him, he ran. (Id. at 66-67). On cross-examination, Petitioner explained that he was planning on calling the police upon returning to his car, but also acknowledged that he had two cellphones on him at the time of his arrest. (Id. at 85-89).
Both appellate counsel and Petitioner argued that this testimony established that Petitioner innocently possessed the weapon and rendered the evidence insufficient to sustain his conviction. (Docket Nos. 1 at 4; 11-1 at 41-42; 14 at 21-22). The jury, however, weighed the evidence, clearly credited the People's version of the events, and found the elements of the crime were met beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). This Court cannot now substitute its own credibility determinations for that of the jury as "[t]he law is well established that questions of witness credibility are jury questions and a federal habeas court may not reassess the jury's findings of credibility." Rodriguez v. Smith, No. 10 Civ. 8306 (KMK)(LMS), 2015 WL 6509153, at *21 (S.D.N.Y. Oct. 28, 2015) (internal quotations and citations omitted).
Accordingly, the Court respectfully recommends finding Ground One procedurally barred and otherwise without merit.
B. Ground Two
Petitioner argues that trial counsel was ineffective by: (1) failing to object to the admission of a 911 recording, which he characterizes as "the single, most one-sided piece of evidence;" and (2) allowing his Miranda warnings into evidence without conducting voir dire. (Docket No. 1 at 4-6). Respondent argues that these claims are partially procedurally barred and otherwise without merit. (Docket No. 11 at 22).
The Supreme Court has long recognized that "a person accused of a federal or state crime has the right to have counsel appointed," and further that '"the right to counsel is the right to the effective assistance of counsel.'" Strickland v. Washington, 466 U.S. 668, 685-87 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). To establish ineffective assistance of counsel, a habeas petitioner must demonstrate that his lawyer's performance "fell below an objective standard of reasonableness," id. at 688, and that there is a "reasonable probability" that but for counsel's error, "the result of the proceeding would have been different," id. at 694. Moreover, the Supreme Court has emphasized that when a petitioner brings a claim for ineffective assistance of counsel, "AEDPA review is doubly deferential, because counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Woods v. Etherton, 136 S.Ct. 1149, 1151 (2016) (citations and internal quotation marks omitted); Burt v. Titlow, 571 U.S. 12, 15 (2013) (explaining that the doubly deferential standard of review must give "both the state court and the defense attorney the benefit of the doubt"); Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (the Court's review of appellate counsel's performance must be "highly deferential," and there is a "strong presumption" of attorney competence.). "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).
The Court first addresses the issue of exhaustion. On direct appeal, Petitioner's appellate counsel argued that trial counsel was ineffective because he "permitted the single most one-sided piece of evidence (the 911 recording) into evidence without any foundation being laid, chain of custody, or cross examination" and "allowed [Petitioner's] Miranda warnings in without voir dire." (Docket No. 11-1 at 45). Appellate counsel also argued that trial counsel's failure to call the 911 caller as a witness violated Petitioner's Confrontation Clause rights. (Id. at 45-46). The Appellate Division rejected appellate counsel's ineffective assistance claim on direct appeal, finding it "without merit." Fraizer, 152 A.D.3d at 792. Although appellate counsel moved for leave to appeal to the Court of Appeals, he argued solely that the evidence was insufficient to support the conviction, and that the jury erred by failing to consider Petitioner's defense of "innocent possession." (Docket No. 11-3 at 4-9, 18-22). Petitioner also separately submitted his own appeal, arguing that the trial court should have suppressed statements he made to Detective Kelly at the hospital. (Docket No. 11-3 at 41-46). However, neither appellate counsel's nor Petitioner's appeals to the Court of Appeals sought review of the Appellate Division's rejection of the ineffective assistance of counsel claims. (Id. at 18-22, 41-46). Thus, because Petitioner did not fairly present these claims to the Court of Appeals, they are unexhausted. See O 'Sullivan, 526 U.S. at 839-40; see also Loucks v. Capra, 16 Civ. 4227 (KMK)(JCM), 2019 WL 2330295, at *15 (S.D.N.Y. Apr. 22, 2019) (finding ineffective assistance of counsel claims unexhausted where petitioner presented them to the Appellate Division, but did not include them in his letter to the Court of Appeals), report and recommendation adopted, 2019 WL 2326225 (S.D.N.Y. May 30, 2019).
Furthermore, because both claims of ineffective assistance of counsel are record based, they are also procedurally barred. See Roa, 548 F.Supp.2d at 78 ("Any attempt to raise these claims at this stage as part of a direct appeal would be rejected because a criminal defendant is entitled to only one direct appeal and one application for leave to appeal to the Court of Appeals."); see also N.Y. Ct. App. R. § 500.20(a) (stating, in relevant part, that "only one application [for leave to appeal] is available"); Gomez v. Brown, 655 F.Supp.2d 332, 346 (S.D.N.Y. 2009) ("Petitioner forfeited his opportunity to raise this claim on appeal, and because New York courts would refuse to address the unexhausted claim, to require Petitioner to return to the state court to exhaust the claim would be futile."); Yates v. Rivera, No. 9:03-CV-1057 (LEK7DEP), 2007 WL 2027284, at *13 (N.D.N.Y. July 9, 2007) ("Moreover, since New York does not otherwise permit collateral attacks on a conviction when the defendant unjustifiably failed to raise the issue on direct appeal.. .petitioner could not now properly raise this claim, which is based upon the record, in an Article 440 motion.") (internal quotations and citations omitted). Thus, the Court deems these claims exhausted because they are procedurally defaulted since returning to state court at this point would be futile. See Reyes, 118 F.3d at 140. Having determined that Petitioner's ineffective assistance claims are procedurally defaulted, a federal court may not review them unless Petitioner establishes cause for the default and prejudice or actual innocence. See Sweet, 353 F.3d at 141. However, Petitioner does not present any arguments setting forth cause for the default and prejudice-nor does he present any grounds that would demonstrate actual innocence.
Even assuming, arguendo, that these claims were properly exhausted, they would otherwise fail on the merits.
1. Failure to Object to the 911 Recording
Petitioner asserts that trial counsel was ineffective by failing to object to the 911 recording. (Docket Nos. 1 at 5; 14 at 25-26). Specifically, Petitioner argues that the People failed to lay the proper foundation, establish chain of custody, and that his trial counsel failed to cross-examine the witness who the People admitted the recording through. (Id.). Respondent argues that this claim is without merit primarily because any such objections would have been futile. (Docket No. 11 at 22-24).
"Where, as here, [Petitioner's claim rests in part upon the failure to object to the admission of evidence, it is necessary to determine whether the evidence was so damaging that counsel's failure to object deprived petitioner of the 'reasonably effective assistance' to which he is entitled." Henry v. Scully, 918 F.Supp. 693, 718 (S.D.N.Y. 1995) (quoting Quartararo v. Fogg, 679 F.Supp. 212, 240 (E.D.N.Y. 1988)). "For an evidentiary error to rise to the level of a constitutional violation, the petitioner has to show that the alleged error was so prejudicial that it deprived him of a 'fundamentally fair trial.'" Jones v. Conway, 442 F.Supp.2d 113, 130 (S.D.N.Y. 2006)(quoting Rosario v. Kuhlman, 839 F.3d 918, 925 (2d Cir. 1988)). "For the erroneous admission of other unfairly prejudicial evidence to amount to a denial of due process, the item must have been 'sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it.'" Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998), abrogated on other grounds by 565 U.S. 228 (2012) (quoting Johnson v. Ross, 955 F.2d 178, 181 (2d Cir. 1992)). Thus, the "Court must consider whether it is confident that the verdict of the jury would not have changed had the errors ... not occurred." Henry, 918 F.Supp. at 718.
Petitioner's claim fails for several reasons. First, despite Petitioner's insistence that trial counsel should have objected based on the People's alleged failure to lay a proper foundation or establish chain of custody, these objections would have been futile. (Docket Nos. 1 at 5; 14 at 26). The People called Maria Panico, a dispatcher for the City of Newburgh Police, who testified that she received the 911 call at issue. (Feb. 23, 2015 Trial Tr. at 5-6). Panico testified that she was working on March 21, 2014 and received a call complaining of shots fired at 50 Dubois Street, leading her to dispatch officers to the area. (Id.). Panico further testified that she had listened to the 911 recording, and that it was a fair and accurate recording of the conversation she had with the complainant. (Id. at 6-8). It was only after this testimony did the People seek to admit the 911 recording, which the trial court admitted without objection from Petitioner's trial counsel. (Id. at 8). This testimony is sufficient to establish a proper foundation and the authenticity of the recording. See, e.g., People v. Torres, 167 A.D.3d 665, 667 (2d Dep't 2018) (finding 911 recording properly authenticated by the 911 technician who listened to the recording); People v. Warren, 124 A.D.3d 699, 701 (2d Dep't 2015) (finding that the People established a proper foundation for the admission of a 911 recording by demonstrating a complete chain of custody and unchanged condition); People v. Knight, 280 A.D.2d 937, 939 (4th Dep't 2001) (rejecting defendant's argument on appeal that the 911 recording was admitted without a proper foundation where the 911 operator who received the call verified its accuracy, and the employee who made the recording verified the authenticity). Second, Petitioner does not argue that the 911 recording was tampered with or altered in any manner, nor does Petitioner identify any specific deficiency in the chain of custody. (Docket Nos. 1 at 5; 14 at 25). Appellate counsel similarly did not make any such argument on direct appeal. (Docket No. 11-1 at 45-46). Rather, they both include "chain of custody" in a list of objections that they claim trial counsel should have made. (Docket Nos. 1 at 5; 11-1 at 45-46; 14 at 25). This, however, is insufficient to demonstrate that trial counsel's failure to object on this ground led to the admission of evidence so damaging so as to remove reasonable doubt, rendering this claim meritless. See Dunnigan, 137F.3d at 125.
Even assuming, arguendo, that they did present some argument concerning a break in the chain of custody, it would likely be without merit. "Under New York law, 'failure to establish a chain of custody may be excused where the circumstances provide reasonable assurances of the identity and unchanged condition' of the evidence.'" Tirado v. Senkowski, 367 F.Supp.2d 477, 487-88 (W.D.N.Y. 2005) (quoting People v. Julian, 41 N.Y.2d 340, 392 (1977)). "Furthermore, both Federal and State law clearly hold that a defect in the chain of custody goes to the weight of the evidence, not its admissibility." Id. at 488. Not only does Panico's testimony establish "assurances of the identity and unchanged condition" of the recording, id. at 487, any defect in the chain of custody would have gone to the weight, not admissibility, of the recording. See Danford v. Graham, No. 9:12-cv-0201-JKS, 2014 WL 1412492, at *6 (N.D.N.Y.Apr. 11, 2014) (rejecting habeas claim premised on chain of custody violation and noting that the jury could have reasonably concluded it was established or been assured of the identity and unchanged condition of the evidence); see also Crawford v. Artuz, 165 F.Supp.2d 627, 636 (S.D.N.Y. 2001) ("Likewise, alleged weakness in the chain of custody and questions about the authenticity of the evidence go only to the weight of evidence and not its admissibility."); accord People v. Anglin, 178 A.D.3d 839, 842 (2d Dep't 2019) (rejecting chain of custody argument and noting that any "deficiencies in the chain of custody ... [and] any possible contamination resulting from the police officer's alleged mishandling of the evidence went to the weight rather than to the admissibility of the evidence.") (internal citations omitted).
Petitioner also argues that trial counsel was ineffective by failing to object to the People's decision not to call the 911 caller as a witness, which he claims resulted in a violation of his Confrontation Clause rights. (Docket No. 14 at 27-28). Even assuming this argument had been exhausted, it misses the mark. In Crawford v. Washington, 541 U.S. 36, 68-69 (2004), the Supreme Court held that the use of testimonial statements by an unavailable declarant is prohibited unless the defendant had an opportunity to cross-examine the declarant with respect to the statement at issue. In Davis v. Washington, 547 U.S. 813, 817 (2006), the Supreme Court addressed an analogous circumstance to the one at issue in the instant case: whether the admission of a victim's recorded statement to a 911 dispatcher in which she stated that she was being assaulted was testimonial or nontestimonial. Because the victim was "speaking about events as they were actually happening, rather than describing past events," and the circumstances demonstrated that the primary purpose of the dispatcher's "interrogation ... was to enable police assistance to meet an ongoing emergency," the Supreme Court held that the recorded statement was nontestimonial, and thus its admission did not violate the defendant's rights under the Confrontation Clause. Id. at 827-28 (emphasis in original) (alterations omitted in first quote).
Similar to Davis, the statements made by the 911 caller in the instant case were nontestimonial. Panico-the 911 dispatcher-testified that the caller indicated that shots had been fired at 50 Dubois Street, provided a description of the shooter (i.e. the Petitioner) as well as the direction he was travelling, and continued to provide information as the police were pursuing him. (Feb. 23, 2015 Trial Tr. at 5-6). This information was nontestimonial because it was provided as the underlying criminal activity was in progress and enabled the police to "meet an ongoing emergency." Davis, 547 U.S. at 828. Thus, the admission of the 911 recording did not violate Petitioner's rights under the Confrontation Clause. See e.g.,McCall v. Capra, 102 F.Supp.3d 427, 444 (E.D.N.Y.2015) (which determined that a 911 call was nontestimonial where any questions asked "were made to resolve the ongoing emergency of an armed individual on the public street," rendering the recording's admission at trial not violative of petitioner's rights under the Confrontation Clause); Rodriguez v. Lee, No. 10 Civ. 3451 (RMB)(JCF), 2011 WL 1362116, at *8 (S.D.N.Y. Feb. 22, 2011) (finding that the admitted 911 recordings "fit squarely within the Supreme Court's definition of nontestimonial" where the caller described an ongoing chase as well as the parties involved, and aided the police in locating and apprehending the suspects), report and recommendation adopted, 2011 WL 1344599 (S.D.N.Y. Apr. 8, 2011); Coleman v. Squilliante, No. 06 Civ. 13518 (JSR), 2008 WL 4452351, at *9 (S.D.N.Y. Oct. 2, 2008) (finding statements in 911 call "clearly ... nontestimonial" where they described the events as happening, or right after they occurred); accord People v. McCauley, 162 A.D.3d 1307, 1309 (1st Dep't 2018) (finding that defendant's Confrontation Clause rights were not violated because the statements made on the 911 call were "made for the purpose of obtaining emergency assistance, [and thus] were nontestimonial"), lv. denied, 32 N.Y.3d 939 (2018).
Finally, Petitioner's claim that trial counsel was ineffective by failing to cross-examine the 911 dispatcher is similarly without merit. Generally, "' [decisions whether to engage in cross-examination, and if so to what extent and in what manner, are ... strategic in nature.'" Lopez v. Greiner, 323 F.Supp.2d 456, 481 (S.D.N.Y.2004) (quoting United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987)). As set forth earlier, Panico's testimony was limited, and largely established the foundation for the admission of the 911 recording. (Feb. 23, 2015 Trial Tr. at 5-8). As "hindsight is notoriously lucid," this Court cannot conclude that trial counsel's strategic decision to not cross-examine this witness-especially considering the likely futility of attempting to attack her credibility given the limited scope of her testimony-amounted to an '"error[] so serious that [he] was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.'" Lopez, 323 F.Supp.2d at 480-81 (quoting Strickland, 466 U.S. at 687)).
2. Failure to Object to the Miranda Warnings
Petitioner claims that trial counsel erred by allowing his Miranda warnings into evidence, which he appears to argue were invalid because they were issued to him while he was at the hospital "in great pain." (Docket No. 1 at 6). Respondent argues that Petitioner fails to demonstrate how this evidence-the Miranda warning waiver itself-prejudiced him, and that the claim otherwise is without merit. (Docket No. 11 at 22, 25-28).
"The Supreme Court has held that the voluntariness of a habeas petitioner's confession is a question of law entitled to de novo review by a federal court." Scott v. Fisher, 652 F.Supp.2d 380, 428 (W.D.N.Y. 2009) (citing Miller v. Fenton, 474 U.S. 104, 112 (1985)). "A voluntary relinquishment of a right occurs when the relinquishment is the 'product of a free and deliberate choice rather than intimidation, coercion, or deception.'" U.S. v. Medina, 19 F.Supp.3d 518, 538 (S.D.N.Y. 2014) (quoting U.S. v. Male Juvenile, 121 F.3d 34, 41 (2d Cir. 1997)). '"Only if the totality of the circumstances surrounding the interrogation reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.'" Andrango v. Chappius, No. 14-CV-7716 (JPO), 2015 WL 4039839, at *13 (S.D.N.Y. July 1, 2015) (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)). While a state court's "subsidiary factual" determinations, such as "whether in fact the police engaged in the intimidation tactics alleged by the [Petitioner]," are presumed correct unless rebutted by the Petitioner with clear and convincing evidence, the question of whether a challenged confession was voluntary under the totality of the circumstances is a matter for "independent federal determination."Miller v. Fenton, 474 U.S. 104, 112 (1985) ("[T]he federal habeas court, should, of course, give great weight to the considered conclusions of a coequal state judiciary."); see also 28U.S.C. § 2254(e)(1).
Petitioner does not claim that he was coerced into waiving his Miranda rights, or that his subsequent statements were the product of police intimidation. (Docket No. 1 at 6). Rather, he appears to claim that the waiver was involuntary because he was in the hospital "encumbered by tubes, needles, [and] breathing apparatus." (Id.). Construing this argument liberally, Petitioner is asserting that he was incapable of validly waiving his Miranda rights and thus any statements made following his waiver should have been suppressed. The record, however, does not support this argument. Detective Kelly testified at the suppression hearing that he read Petitioner his Miranda rights before speaking to him, and that Petitioner waived those rights by signing a Miranda warnings waiver sheet. (Oct. 27, 2014 Hearing Tr. at 40-42). Detective Kelly specifically testified that Petitioner did not ask for an attorney, subsequently spoke with him after waiving his Miranda rights, and that Petitioner was able to logically and coherently answer his questions. (Id. at 43-44, 54, 56-57). Detective Kelly further explained that while he was aware that Petitioner had been shot his right arm, Petitioner did not appear confused or disoriented. (Id. at 54, 56-57). In finding the statements to Detective Kelly admissible, Justice Freehill determined that "[t]he credible testimony ... provided beyond a reasonable doubt that... [Petitioner] was advised of his constitutional rights, [and] that he knowingly waived them." (Docket No. 11-1 at 22).
First, because Petitioner fails to overcome Justice Freehill's credibility determinations with clear and convincing evidence, they are entitled to deference on habeas review. See, e.g. Nash v. Griffin, No. 13-CV-6150 (KMK)(LMS), 2017 WL 3769323, at *4 (S.D.N.Y. Aug. 30, 2017) (declining on habeas review to disturb the trial court's ultimate determination or its credibility determinations where the record demonstrated that the trial court heard testimony and credited the testimony of the state's witnesses); Scott, 652 F.Supp.2d at 429-30 (rejecting petitioner's argument that the trial court erred in crediting the police version over his where "[t]he record adequately supported] the conclusion that, contrary to [petitioner's] contentions, the police officers read him the entire set of Miranda warnings"); Tirado v. Walsh, 168 F.Supp.2d 162, 170 (S.D.N.Y. 2001) ("At bottom, [Petitioner] takes issue with the trial court's assessment of [the detective's] credibility and its decision to admit and credit [the detective's] testimony at the suppression hearing ... [However,] [i]t is not within the purview of a federal court on habeas review to reassess and pass judgment upon the credibility of a witness whose testimony and demeanor it has not observed").
Furthermore, the totality of the circumstances demonstrate that Plaintiffs waiver was voluntary. "[G]iving the warnings and getting a waiver has generally produced a virtual ticket of admissibility; maintaining that a statement is involuntary even though given after warnings and voluntary waiver of rights requires unusual stamina, and litigation over voluntariness tends to end with the finding of a valid waiver." Missouri v. Seibert, 542 U.S. 600, 608-09 (2004). The credible evidence adduced during the suppression hearing demonstrates that Petitioner was conscious while at the hospital and, after being read his Miranda warnings, knowingly waived them by signing a waiver form. (Oct. 27, 2014 Hearing Tr. at 41-44). Petitioner then coherently and logically responded to Detective Kelly's questioning, and did not give Detective Kelly any reason to believe that he was impaired or disoriented. (Id. at 44-45, 56-58). Other than asserting in the Petition that his statements were involuntary because he was "in great pain, medicated with morphine, and ... encumbered by tubes, needles, [and a] breathing apparatus," Petitioner fails to set forth facts demonstrating that the waiver of his Miranda rights was involuntary. See, e.g., Campaneria v. Reid, 891 F.2d 1014, 1020 (2d Cir. 1989), cert, denied, 499 U.S. 949 (1991) (rejecting petitioner's contention that his confession was involuntary where he was in the hospital where the record indicated that he "was alert and awake despite his pain," and "[although he suffered pain and discomfort, it was not so severe as to render him unable to make a voluntary statement or unduly susceptible to manipulation by his interrogators"); Schrock v. Kirkpatrick, 16-CV-6364 CJS, 2019 WL 8807887, at *16 (W.D.N.Y.Mar. 27, 2019) ("Moreover, to the extent that [Petitioner] had sustained some minor cuts and bruises, either from the crash or from struggling with the deputy, was experiencing discomfort due to pepper spray, and was restrained in the hospital, such facts do not negate the voluntariness of his statements"); DeJesus v. Superintendent of Attica Corr. Facility, No. 17 Civ. 3932 (GBD)(AJP), 2017 WL 6398338, at *26 (S.D.N.Y. Dec. 13, 2017) ("[Although [Petitioner] argued that he suffered severe heroin withdrawal while in custody, [the detective] testified that [Petitioner] never mentioned that he was tired, suffering heroin withdrawal, or presently on drugs. The state court's factual findings are entitled to AEDPA deference"), report and recommendation adopted, 2018 WL 4043144 (S.D.N.Y.Aug. 7, 2018). Thus, the totality of the circumstances demonstrate that Petitioner knowingly and voluntarily waived his Miranda rights.
Given that the record demonstrates that Petitioner validly waived his Miranda rights, his arguments that trial counsel was ineffective for failing to either: (a) keep out his Miranda warnings; or (b) suppress or object to the statements Petitioner made after waiving his Miranda rights, are both without merit. With respect to the suppression motion, trial counsel did, in fact, attempt to suppress the statements, (Docket No. 11-1 at 6-9), but the trial court rejected this motion, (id. at 22). Moreover, to the extent Petitioner is arguing that trial counsel was ineffective for not objecting to the admission of the Miranda warning waiver itself, this similarly would be without merit. While trial counsel did not object to the admission of the waiver, (Feb. 23, 2015 Trial Tr. at 44-45), any such objection-given the trial court's decision finding that Petitioner knowingly waived his Miranda rights-would have been futile. (Docket No. 11-1 at 22). Furthermore, Petitioner fails to demonstrate that the admission of his Miranda warning sheet was "so damaging that counsel's failure to object deprived petitioner of the 'reasonably effective assistance' to which he was entitled." Henry, 918 F.Supp. at 718 (quoting Quartararo, 679 F.Supp. at 240). Indeed, Petitioner makes no attempt to argue that the Miranda warnings themselves were prejudicial. (Docket No. 1 at 6). Finally, given the trial court's determination concerning the admissibility of the Miranda warnings, the Court cannot glean any reason that would render the Miranda warnings form prejudicial-let alone so prejudicial to transform trial counsel's decision to not object into constitutionally ineffective assistance of counsel. Accordingly, the Court respectfully recommends finding Petitioner's ineffective assistance of counsel claims unexhausted and otherwise without merit.
On reply, Petitioner argues that trial counsel rendered ineffective assistance when he "allow[ed] into evidence photos of the alleged weapon without foundation [and] photos of [Petitioner] at the hospital in without foundation." (Docket No. 14 at 26). However, Petitioner did not include these claims in the underlying Petition and may not raise them for the first time on reply. See, e.g., Zuniga v. Lamana, 18-CV-5717 (LGS)(JLC), 2019 WL 4124416, at *11 n. 11 (S.D.N.Y.Aug. 30, 2019) (deeming waived ineffective assistance of counsel claims that were raised for the first time on reply); Silvestre v. Capra, No. 15 Civ. 9425 (KPF)(DCF), 2018 WL 3611988, at *31 n.27 (S.D.N.Y.July 27, 2018) (collecting cases). Even assuming, arguendo, that the Court were to consider these additional grounds, they are unexhausted because Petitioner's appellate counsel did not include them in his brief to the Court of Appeals. (Docket No. 11-3 at 18-23). Accordingly, the Court respectfully recommends declining to address these additional arguments.
IV. CONCLUSION
For the foregoing reasons, I respectfully recommend that the Petition be denied. Further, because reasonable jurists would not find it debatable that Petitioner has failed to demonstrate by a substantial showing that he was denied a constitutional right, I recommend that no certificate of appealability be issued. See 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). The Clerk of Court is requested to mail a copy of this Report and Recommendation to the pro se Petitioner.
V. NOTICE
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts, the parties shall have fourteen (14) days from the receipt of this Report and Recommendation to serve and file written objections. If copies of this Report and Recommendation are served upon the parties by mail, the parties shall have seventeen (17) days from receipt of the same to file and serve written objections. See Fed. R. Civ. P. 6(d). Objections and responses to objections, if any, shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Nelson S. Roman at the United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Requests for extensions of time to file objections must be made to the Honorable Nelson S. Roman and not to the undersigned. Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be rendered. See 28 U.S.C. § 636(b)(1); Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008).