Opinion
6:17-CV-06753 EAW
2021-05-13
Maurice R. HOWIE, Petitioner, v. Superintendent PICCOLO, Respondent.
Maurice R. Howie, Dannemora, NY, Pro Se. Ashley Rae Lowry, Erie County District Attorneys Office, Buffalo, NY, for Respondent.
Maurice R. Howie, Dannemora, NY, Pro Se.
Ashley Rae Lowry, Erie County District Attorneys Office, Buffalo, NY, for Respondent.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
INTRODUCTION
Pro se Petitioner Maurice R. Howie ("Petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the basis that he is being unconstitutionally detained in the custody of respondent Superintendent Piccolo ("Respondent"). Petitioner is incarcerated pursuant to a judgment entered against him on February 28, 2014, in New York State Supreme Court, Erie County (the "trial court"), for two counts of murder in the second degree and two counts of robbery in the first degree. (Dkt. 1 at 1; Dkt. 5 at 3). Petitioner was sentenced to an aggregate term of imprisonment of 35 years to life. (Dkt. 1 at 1; Dkt. 5 at 3-4).
Petitioner contends he is being held unlawfully for the following reasons: (1) he was not afforded effective assistance of trial counsel; (2) his sentence is unduly harsh and severe; and (3) the trial court erred by admitting two statements by a non-testifying co-defendant implicating Petitioner in wrongdoing, in violation of the Bruton rule. (Dkt. 1 at 5-10; Dkt. 5 at 7-17). For the reasons discussed below, the Court finds that Petitioner has not shown that he is entitled to federal habeas relief, and therefore his petition is denied.
BACKGROUND
I. Underlying Crime and Pretrial Proceedings
Petitioner was charged by a grand jury with two counts of robbery in the first degree and two counts of murder in the second degree. (Arraignment T., p. 8). The charges stemmed from six robberies (id. at 5), two of which Petitioner was charged with participating in, and a murder (Dkt. 5 at 3). The indictment contained ten charges against five defendants, and Petitioner was charged in counts seven (robbery in the first degree), eight (murder in the second degree), nine (murder in the second degree), and ten (robbery in the first degree). (Trial T., pp. 2694-95). Petitioner was arraigned on May 23, 2013 and entered a plea of not guilty. (Arraignment T., p. 5). One of Petitioner's co-defendants, Sean Austin (hereinafter, "Austin"), was charged in all ten counts of the indictment, and he proceeded to trial with Petitioner. (Id. , pp. 5-6; see also Trial T. p.1).
Prior to trial, two co-defendants charged in the indictment successfully moved for severance of their trials from the trial of Austin and Petitioner, because Austin was charged with all six robberies and the murder, and Petitioner was also charged with two of the robberies and the murder, due to spillover prejudice that could result from the murder charges. (See January 13, 2014 Hearing Transcript, pp. 4-6). At that time, both the prosecution and the trial court confirmed that, although the trial court had ruled that statements made by Austin implicating Petitioner in the charged crimes could come in at trial, which could create a potential Bruton issue, Petitioner was not seeking severance as a "strategic trial decision." (Id. , p. 7 (Petitioner's counsel confirming that "[t]hat's true, Judge, that's strategic and that's why I'm not seeking severance")).
II. Trial and Sentencing
Trial commenced with jury selection on February 3, 2014 and continued until February 28, 2014. (Trial T., pp. 1, 2689). At the time of his trial, Petitioner was 17 years old. (Sentencing T., p. 14). The jury received testimony from 57 witnesses before rendering a verdict of guilty on both the robbery and murder charges against Petitioner. (See generally Trial T.; Dkt. 5 at 3; see also Trial T. at pp. 2694-95).
The evidence at trial revealed that the Buffalo Police were investigating a string of robberies that occurred between December 2012 through March 2013, including: the December 2, 2012 robbery of a pizza delivery man; a December 2, 2012 robbery of a taxi driver; a December 3, 2012 robbery of a taxi driver; the February 1, 2013 robbery of a food delivery man; a February 9, 2013 robbery of a taxi driver; and the March 6, 2013 robbery and murder of Mazen Abdallah, a taxi driver for Airport Taxi (hereinafter, "the victim"), who was found dead in the backseat of his abandoned taxi cab with two gunshot wounds in his head from a .22-calibur firearm. (See Trial T., pp. 1112-15, 1462-72, 1492, 1843-59, 1911-21, 2005-20, 2098-2104, 2167-78, 2417; see also Petitioner's Appellate Brief, p. 6).
The victim of the March 6, 2013 robbery and homicide had been dispatched to pick up a fare from 312 Perry Street in the City of Buffalo, with a drop-off location of 95 Comstock. (Trial T., pp. 1114-15, 1135, 1183, 1187-88). The victim was discovered in his taxi cab at 717 Norfolk Street. (Id. , pp. 1119-20, 1139). Video surveillance from 312 Perry (which had video cameras as part of the Buffalo Police Department housing unit) showed three young black males exiting the building and walking toward the cab. (Id. , pp. 1226-28, 1237, 1478-79). Only two males entered the cab, including one wearing a black hoodie and black pants with a white stripe, and the other wore jeans, a black sweatshirt, and dark shoes. (Id. , pp. 1479-82). Investigators were able to trace the call made to Airport Taxi on March 6, 2013 to a phone registered to Austin. (Id. , pp. 1631-32, 1637). Investigators took a statement from Austin on April 3, 2013, and he implicated Petitioner and himself in the February 9, 2013 robbery, and Petitioner and an individual named "Dev" in the March 6, 2013 robbery and homicide. (Id. , pp. 1525-46). Investigators also spoke with Petitioner on April 9, 2013, and he gave a voluntary statement denying his participation in the robberies and homicide. (Id. , p. 1438). Following further investigation, Petitioner was charged with participating in the February 9, 2013 robbery and the March 6, 2013 robbery and homicide. (Id. , pp. 1069-70).
At trial, and through testimony by Detective Mordino, Austin's statements implicating Petitioner in the two incidents for which he was charged were admitted into evidence, without objection. Specifically, Austin gave a statement that Petitioner was involved in the February 9 robbery, in which Austin explained that he entered the vehicle and robbed the driver while Petitioner stood outside, and that Petitioner had given him the sawed-off .22 caliber rifle used in the robbery. (Id. , pp. 1545-46). Austin also gave a statement implicating Petitioner and another individual named "Dev" for the March robbery and homicide (id. , pp. 1528-35), although investigators were not able to identify or locate the "Dev" individual (id. , pp. 1539-40). The trial court instructed the jury, both during trial when Austin made these statements and during the final instructions, that the jury could consider the statements as evidence only against Austin, and not as evidence against Petitioner. (See id. , pp. 2636-37).
Additional evidence was offered at trial, including the following DNA evidence and corroborating witness testimony: (1) DNA evidence linking Petitioner to the taxi cab, including that a known DNA sample from Petitioner matched the major DNA profile from the interior rear driver door handle release, as well as the interior rear driver-door fixed handle (which was a one in 19.67 quadrillion, and one in 876 probability for U.S. individuals, respectively), and Petitioner also could not be excluded as a contributor to the minor profile obtained from the wet blood on the ammunition round recovered from the back seat of the cab (see id. , pp. 2317, 2319, 2321-22, 2349-50); (2) DNA analysis of blood-stained jeans recovered during the execution of a search warrant at Austin's residence confirmed that the main DNA profile from the jeans matched Petitioner (a one in 2.685 quintillion probability for U.S. individuals) and the blood on the jeans matched the victim's DNA (a one in 211.1 trillion probability in U.S. individuals) (id. , pp. 1520, 2354-55); (3) witness Mileec DeBarry testified that Petitioner was living with him in an apartment at 312 Perry on the date of the murder, and Petitioner, and Austin, and an individual named Andre Owens were at the apartment on the evening of March 5, 2013, and DeBarry had also identified Petitioner as wearing a black shirt and jeans from a still photograph from the surveillance video (id. , pp. 1263-75,1285-90); (4) witness Andre Owens, who left 312 Perry with Petitioner and Austin early in the morning on March 6, 2013, identified Petitioner from the still photographs and surveillance video from 312 Perry (id. , pp. 1309-18); and (5) testimony by an individual named Edward Dozier, who had initially been a person of interest in the February 9, 2013 robbery but was later excluded because he did not match either of the individuals depicted in video footage or photos of the suspects involved in the robbery, had reluctantly identified Petitioner from a photograph lineup (id. , pp. 1803-04, 2137-39)
During his summation, Petitioner's attorney argued that, even if the People proved and the jury believed that Petitioner was present at the time of the March 6, 2013 robbery and homicide, it was Austin who robbed and murdered the victim, and Petitioner was not aware of his plan to do so. (See, e.g., id. , pp. 2467-68, 2475).
The trial court sentenced Petitioner on June 4, 2014. (Sentencing T., p. 1). At sentencing, the trial court considered whether Petitioner was entitled to a youthful offender adjudication, as he was 16 years old when he committed the crimes for which he was convicted, and determined that he was not. (Id. , pp. 19-20). On the first robbery (count seven), the trial court sentenced Petitioner to a determinate term of ten years imprisonment, followed by five years of post-release supervision. (Id. , pp. 23-24). For the second robbery and homicide (counts eight, nine and ten), the trial court sentenced Petitioner to an indeterminate term of imprisonment of twenty-five years to life for each murder count, to run concurrent with each other but consecutive to the sentence on count seven, and seven years and a post-release period of supervision of five years for the second robbery, to run concurrent with counts eight and nine. (Id. , pp. 24-25). The aggregate sentence was 35 years to life. (Id. ; see also Dkt. 5 at 4).
III. Direct Appeal
Petitioner appealed the judgment. On appeal, Petitioner presented six arguments, including: (1) his convictions should be vacated because the trial court erred by admitting two statements by a non-testifying co-defendant that facially incriminated him of wrongdoing, in violation of the Bruton rule; (2) his convictions should be reversed because the trial court erred by prohibiting defense counsel from questioning a witness about threats and intimidation from the co-defendant's family, which may have affected and tainted the witness's testimony; (3) his convictions should be vacated because the trial court erred by refusing to sever the trial between the defendants where a Bruton violation was apparent, and each defendant was blaming the other for the shooting; (4) his convictions should be reversed because he was denied effective assistance of counsel; (5) his convictions should be vacated because the evidence was insufficient to support a guilty verdict which was against the weight of the evidence; and (6) his convictions should be modified as unduly harsh and severe, considering the unique circumstances and mitigating factors of the case. (Petitioner's Appellate Brief, pp. i, 22-40).
On April 28, 2017, the Appellate Division, Fourth Department, affirmed Petitioner's convictions. See People v. Howie , 149 A.D.3d 1497, 53 N.Y.S.3d 748 (4th Dep't 2017). Petitioner moved for leave to appeal to the Court of Appeals, which was denied on August 16, 2017. See People v. Howie , 29 N.Y.3d 1128, 64 N.Y.S.3d 678, 86 N.E.3d 570 (2017), lv. denied sub nom. People v. Quell , 29 N.Y.3d 1132, 64 N.Y.S.3d 682, 86 N.E.3d 574 (2017).
IV. Habeas Petition
Petitioner, proceeding pro se , filed a Writ of Habeas Corpus on November 2, 2017, alleging that he was being held in violation of his constitutional rights. (Dkt. 1). The petition raises three grounds for relief, including: (1) he was not afforded effective assistance of trial counsel; (2) his sentence is unduly harsh and severe; and (3) the trial court erred by admitting two statements by a non-testifying co-defendant implicating Petitioner in wrongdoing, in violation of the Bruton rule. (Id. ). Pursuant to an Order of the Court (Dkt. 2), Respondent filed his opposition to the petition on February 9, 2018 (Dkt. 4; Dkt. 5). Petitioner filed a reply on August 16, 2018. (Dkt. 12). Thereafter, on November 4, 2019, Petitioner filed a motion to stay (Dkt. 14), which the Court denied on November 30, 2020 (Dkt. 18).
DISCUSSION
I. Legal Standard
"Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d)(1), a federal court may not grant a state prisoner's habeas application unless the relevant state-court decision was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." Knowles v. Mirzayance , 556 U.S. 111, 121, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009) (quotation omitted). "The question is ‘not whether the state court was incorrect or erroneous in rejecting petitioner's claim, but whether it was objectively unreasonable in doing so.’ " Edwards v. Superintendent, Southport C.F. , 991 F. Supp. 2d 348, 367 (E.D.N.Y. 2013) (quoting Ryan v. Miller , 303 F.3d 231, 245 (2d Cir. 2002) ). "The petition may be granted only if ‘there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents.’ " Id. (alteration in original) (quoting Harrington v. Richter , 562 U.S. 86, 102, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) ).
II. Confrontation Clause/Bruton Claim
Petitioner argues that the trial court erred in admitting the statements by Austin, his non-testifying co-defendant, which incriminated Petitioner in wrongful conduct in violation of Bruton v. United States , 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and that the statements were not redacted to remove his name. (Dkt. 1 at 8-9). In response, Respondent contends that Petitioner waived his Bruton claim and, given the overwhelming evidence of his guilt, any Bruton error was harmless. (Dkt. 5 at 14-17).
Petitioner raised this claim on appeal before the Fourth Department, which denied the claim:
Before trial, the other individuals charged in the indictment successfully moved to sever their trials. Defense counsel, however, opted against moving for severance for "strategic" reasons, even after being made aware of potential Bruton issues. At trial, the codefendant's statements implicating defendant in the two incidents for which he was charged were admitted in evidence, without objection. Defendant now contends that the admission of those statements was erroneous.
While we agree with defendant that the admission of those statements violated Bruton and that Supreme Court's curative instruction did not alleviate the prejudice, we consider defense counsel's strategic decisions to proceed with a joint trial and to consent to the admission of the codefendant's statements to constitute a waiver of any Bruton violation. Indeed, when the codefendant's statements were offered in evidence, defense counsel specifically stated that he had "[n]o objection" to their admission in evidence.
149 A.D.3d at 1498, 53 N.Y.S.3d 748 (internal citations omitted).
"In Bruton , the Supreme Court held that a non-testifying co-defendant's statement that incriminates a defendant is so prejudicial that the jury is unlikely to ignore them even when instructed to do so by the trial judge." Stone v. Griffin , No. 17-CV-8741 (VEC), 2021 WL 396699, at *3 (S.D.N.Y. Feb. 4, 2021) ; see also United States v. Wimbley , 18 F. App'x 24, 27 (2d Cir. 2001) (explaining that in Bruton , "the Supreme Court held that the introduction of a co-defendant's guilty plea that facially incriminated the defendant violated the Sixth Amendment right to cross-examination of witnesses. The Court explicitly recognized that, in such circumstances, limiting instructions to the jury cannot counteract the prejudicial effects of the evidence."). The Court has reviewed the transcript of the trial proceedings and agrees with the Fourth Department's assessment that the admission of the statements made by Austin plainly implicated Bruton .
However, it is also well-settled that defense counsel, as part of trial tactics or defense strategy, may waive the defendant's right to confront a witness. See United States v. Plitman , 194 F.3d 59, 64 (2d Cir. 1999) ("We therefore join the majority of circuit courts of appeals and hold that defense counsel may waive a defendant's Sixth Amendment right to confrontation where the decision is one of trial tactics or strategy that might be considered sound."); Martin v. Perez , No. 13 CV 2413 (VB), 2016 WL 5720820, at *3 (S.D.N.Y. Oct. 3, 2016) (rejecting petitioner's confrontation clause challenge because "trial counsel waived the right to object on Confrontation Clause grounds when she elicited Officer Young's testimony for the strategic purpose noted above."). As explained by the Second Circuit Court of Appeals in Grayton v. Ercole , where the defendant waived his right to be present at a state-court Geraci hearing:
"What suffices for waiver depends on the nature of the right at issue.... For certain fundamental rights, the defendant must personally make an informed waiver. For other rights, however, waiver may be effected by action of counsel." Decisions pertaining to the conduct of the trial belong to the attorney, as do those that "concern strategic and tactical matters." We have specifically included waiver of Confrontation Clause rights in such a category, holding that "defense counsel may waive a defendant's Sixth Amendment right to confrontation where the decision is one of trial tactics or strategy that might be considered sound." Though direct waiver is preferable, our cases have also "explicitly repudiated a rule ... that would require a defendant's personal statement in court to bring about a constitutionally valid waiver of his right to be present." This body of law establishes that the right to be present may be, in some circumstances, waived by counsel, and we decline appellant's invitation to revisit it.
691 F.3d 165, 174-75 (2d Cir. 2012) (internal citations omitted); see also Clark v. Stinson , 214 F.3d 315, 324 (2d Cir. 2000) (discussing Supreme Court's decision in New York v. Hill , where the Court noted differences between "certain fundamental rights," which require a defendant's personal waiver, versus other "decisions pertaining to the conduct of the trial," which the attorney may make and to which the defendant is deemed bound, and noting that "[a]s examples of the former, the Court cited the right to representation by counsel and the right to plead not guilty; for the latter, the Court cited decisions by counsel concerning what arguments to pursue, what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence.").
Here, the record establishes that Petitioner waived any Sixth Amendment Bruton challenge. Specifically, the record reflects that the parties and the trial court engaged in multiple discussions both prior to and during trial confirming that Petitioner's decision to proceed with a joint trial and to consent to the admission of Austin's statements were strategic decisions. For example, at the January 13, 2014 conference, both the prosecution and the trial court specifically inquired as to the "Bruton issue":
MR. PARISI: The last thing is with respect to Mr. D'Amico’s client, Maurice Howie. It's my understanding that there was a Bruton issue. Now that we know the statements are coming in at trial, Sean Austin's statements, which do implicate Maurice Howie. As I understand it, Mr. D'Amico is not seeking severance as it is a strategic trial decision that he is doing that. It's part of his strategy for the trial. I just wanted to place that on the record.
THE COURT: And I understand Mr. D'Amico has mentioned that before. Mr. D'Amico, anything you want to say about that?
MR. D'AMICO: That's true, Judge, that's strategic and that's why I'm not seeking severance.
(January 13, 2014 Hearing Transcript, p.7). Likewise, at the time the government offered Austin's statements which implicated Petitioner at trial, defense counsel confirmed that he had "no objection." (Trial T., p. 1543).
In light of these clear statements regarding Petitioner's strategy at trial, he cannot now claim that the admission of Austin's statements violated his confrontation clause rights. See United States v. Quinones , 511 F.3d 289, 321 (2d Cir. 2007) (explaining that where "where [an] appeal attempts ‘to evade the consequences of an unsuccessful tactical decision ... we have no difficulty concluding that [appellant] has waived review’ of [the] claim") (quoting United States v. Coonan, 938 F.2d 1553, 1561 (2d Cir. 1991) ). As noted by Respondent, part of defense counsel's strategy in not objecting to admitting Austin's statements included to provide a distinction from Petitioner's own written statement, to introduce the "Dev" character as a possible actor other than himself, and to distract the jury away from other incriminating evidence at trial, including Petitioner's DNA found inside the victim's taxi cab, the victim's blood on Petitioner's jeans, and surveillance videos confirming eyewitness accounts placing Petitioner at the crime scenes.
Even if Petitioner had not waived his right to confront Austin regarding his statements, Respondent has pointed to evidence in the record supporting his argument any Bruton error was harmless. (See Dkt. 5 at 15-17). "It is well-established that Bruton violations are subject to harmless error analysis." Reid v. Martuscello , No. 12-CV-3371 (RRM), 2020 WL 3618737, at *8 (E.D.N.Y. July 2, 2020) (internal quotations and citation omitted); see also Fuller v. Gorczyk , 273 F.3d 212, 220 (2d Cir. 2001) ("[o]nce a court determines that a defendant's Confrontation Clause rights have been violated, the court must then determine whether that error was harmless"). As explained above, at trial the prosecution offered evidence that Petitioner's DNA was found inside the victim's taxi cab, the victim's blood was found on Petitioner's jeans, and Petitioner was identified leaving 312 Perry Street with Austin by multiple eyewitnesses using footage from surveillance photographs and videos. See Bowen v. Phillips , 572 F. Supp. 2d 412, 422 (S.D.N.Y. 2008) (holding that alleged Bruton violation had no "substantial and injurious effect" on the jury's verdict and therefore constituted harmless error, where "[t]he People offered the testimony of twenty witnesses, at least three of whom were eyewitnesses to the shooting, including one who testified that he saw [petitioner] receive a pistol from another individual, fire the pistol at the victims, and run away from the scene with a pistol in his hand"); see also Russ v. Greene , No. 04-CV-6079 (VEB), 2009 WL 2958007, at *8 (W.D.N.Y. Sept. 11, 2009) ("Federal courts have found Confrontation Clause violations to be harmless error ‘when the evidence against the petitioner at trial was substantial and/or the improperly admitted testimony was cumulative of other admissible evidence.’ " (citation omitted)). In other words, even discounting Austin's statements implicating Petitioner, there was sufficient evidence offered at trial supporting the jury's guilty verdicts against Petitioner.
In his reply papers, Petitioner argues that the statements made by Austin were the "strongest" evidence against him, because the statements were the only evidence that went to his intent, and that the DNA evidence, video footage, and witness testimony did not "identif[y] the shooter." (See Dkt. 12 at 9). There are two problems with Petitioner's argument in this regard. First, Petitioner ignores the fact that a jury may convict an individual based solely on circumstantial evidence, and direct evidence that he had the intent to rob and murder the victim is not required. See United States v. Heras , 609 F.3d 101, 106 (2d Cir. 2010) ("The law has long recognized that criminal intent may be proved by circumstantial evidence alone."). Second, Petitioner's argument that the statements by Austin were the "strongest" evidence against him, and that a "juror tends to believe someone who was a participant in the crime," is an assumption regarding the jury's deliberations regarding his participation in the crimes charged and, in this instance, cannot serve as a basis for federal habeas relief. For all of these reasons, Petitioner is not entitled to federal habeas relief on this ground.
III. Severity of the Sentence
Petitioner further argues that his sentence is "unduly harsh and severe" and that it was imposed in violation of the Eighth Amendment. (Dkt. 1 at 7). He raised a similar claim before the Fourth Department, which rejected Petitioner's claim:
[W]e are not persuaded that we should exercise our authority to modify the sentence as a matter of discretion in the interest of justice. As the dissent acknowledges, defendant committed heinous crimes, one of which resulted in an innocent man's death. According to the presentence report (PSR), moreover, defendant failed to appreciate the consequences of his conduct or to exhibit any remorse. Indeed, the PSR recounts that the officer who arrested defendant for the murder and related robbery counts stated that defendant was smiling and laughing both during questioning and while being arrested. In view of the severity of the crimes and defendant's callousness, we do not consider this to be an appropriate case in which to exercise our discretionary authority to reduce the sentence.
149 A.D.3d at 1500-01. Two justices dissented with respect to Petitioner's sentence, voting to run all of Petitioner's sentences concurrently resulting in an aggregate indeterminate sentence of 25 years to life, citing Petitioner's young age and the fact that he had no prior criminal record. Id. at 1501-02.
"The Eighth Amendment forbids only extreme sentences that are grossly disproportionate to the crime.... As the Supreme Court has itself observed, outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare." United States v. Snype , 441 F.3d 119, 152 (2d Cir. 2006) (internal quotations and citations omitted). "Where a petitioner's sentence falls within the range prescribed by state law, federal courts will recognize no federal constitutional issue .... This rule applies even if the sentence imposed constitutes the maximum term permissible under the statute." Willard v. New York , No. 08-CV-1525(JS), 2009 WL 4823365, at *5 (E.D.N.Y. Dec. 4, 2009) (internal citations omitted); see also Brito v. Keyser , No. 19 Civ. 4197 (VEC)(GWG), 2020 WL 236697, at *9 (S.D.N.Y. Jan. 15, 2020) ("While the Eighth Amendment prohibits the imposition of a sentence that is ‘grossly disproportionate to the severity of the crime,’ ... the Second Circuit has stated that ‘[n]o federal constitutional issue is presented where ... the sentence is within the range prescribed by state law.’ ") (internal citations omitted) (alteration in original), adopted , 2020 WL 995826 (S.D.N.Y. Mar. 2, 2020) ; Herrera v. Artuz , 171 F. Supp. 2d 146, 151 (S.D.N.Y. 2001) ("It is well settled that when a sentence is in accord with the range established by state statutory law there is no constitutional issue presented for habeas review.").
Here, Plaintiff does not contend that his sentence exceeds what is permitted by New York law. Rather, for Petitioner's murder convictions, the trial court imposed concurrent sentences of 25 years to life, which are within the range prescribed by New York law. See N.Y. Penal Law § 125.25 (murder in the second degree is a Class A-1 felony); id. at § 70.00(2)(a), (3)(a)(i) (maximum term of sentence for Class A felony is life imprisonment, and minimum period of imprisonment for Class A-1 felony is between 15 to 25 years); see also Alvarado Ajcúc v. New York , No. 18-CV-00183, 2019 WL 3409515, at *6 (E.D.N.Y. July 29, 2019) (holding that petitioner's excessive sentence claim did not present any grounds for federal habeas relief, where petitioner was sentenced to two indeterminate terms of 25 years to life, to be served concurrently, for his convictions on two counts of murder in the second degree). Similarly, for the robbery convictions, the trial court imposed determinate sentences of ten years on the first robbery and seven years on the second robbery, both of which are well within the range permitted under New York law. See N.Y. Penal Law § 160.15 (robbery in the first degree is a Class B felony); id. at § 70.00(2)(b), (3)(b) (maximum sentence for class B felony shall not exceed 25 years, and with minimum term of imprisonment of at least one year). Petitioner's sentence on the robbery which occurred on February 9, 2013, was run consecutively to his sentences for the subsequent robbery and homicide occurring on March 6, 2013, which was also permissible under New York law. See N.Y. Penal Law § 70.25.
Further, based on the evidence presented at trial relating to the conduct forming the basis of Petitioner's offenses, the Court does not find that the trial court's sentencing decision was grossly disproportionate to the severity of the crimes, even considering Petitioner's age when he committed them. In other words, this is not one of those "extraordinary circumstances" in which the trial court's sentencing decision "amounted to an improper, ‘arbitrary or capricious abuse of discretion’ that deprived the petitioner of his liberty." Herrera , 171 F. Supp. 2d at 151 (citations omitted). Accordingly, Petitioner has failed to demonstrate that he is entitled to federal habeas relief on this ground.
IV. Ineffective Assistance of Counsel
Petitioner also contends that he was deprived of effective assistance of trial counsel. (Dkt. 1 at 5). Specifically, Petitioner contends that his trial counsel was ineffective because he "allowed [Petitioner] to be convicted of robbery and murder upon an alleged confession that was introduced through the hearsay statement of a non-testifying co-defendant," and because his attorney failed to move for a severance. (Id. ). Petitioner also claimed ineffective assistance of counsel on appeal, which the Fourth Department addressed as follows:
Near the end of trial on February 24, 2013, defense counsel moved for a severance on a different issue, relating to a ruling by the trial court that he could not cross-examine a testifying co-defendant relating to his relocation by the district attorney's office based on alleged threats he received from Austin's father, which counsel argued was relevant to his defense of Petitioner. (See Trial T., pp. 2257-67). The motion was denied. (Id. , p. 2267).
We reject defendant's contention that he was denied effective assistance of counsel based on defense counsel's strategy in declining to move for severance before trial and in consenting to the admission of the codefendant's statements. It is well settled that "a reviewing court must avoid confusing ‘true ineffectiveness with mere losing tactics’ ". Indeed, it "is not for [the] court to second-guess whether a course chosen by defendant's counsel was the best trial strategy, or even a good one, so long as defendant was afforded meaningful representation". "To prevail on a claim of ineffective assistance of counsel, it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations" for defense counsel's allegedly deficient conduct. Here, defense counsel specifically stated on the record that he made a decision for strategic reasons, and we conclude that defendant has not established that counsel's strategy "was inconsistent with the actions of a reasonably competent attorney". Defendant raises one additional ground as a basis for his claim of ineffective assistance of counsel, i.e., the failure to object to a misstatement made by a prosecution witness. Viewing the evidence, the law and the circumstances of this case, in totality and as of the time of the representation, we conclude that defendant received meaningful representation.
149 A.D.3d at 1499-1500 (citations omitted).
"The Sixth Amendment requires effective assistance of counsel at critical stages of a criminal proceeding." Lafler v. Cooper , 566 U.S. 156, 165, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). "Pursuant to the well-known two-part test of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a habeas petitioner alleging ineffective assistance of counsel ‘must demonstrate (1) that his counsel's performance fell below what could be expected of a reasonably competent practitioner; and (2) that he was prejudiced by that substandard performance.’ " Woodard v. Chappius , 631 F. App'x 65, 66 (2d Cir. 2016) (quoting Pearson v. Callahan , 555 U.S. 223, 241, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ). In attempting to satisfy Strickland's two-part test, a petitioner faces a "heavy burden." Eze v. Senkowski , 321 F.3d 110, 112 (2d Cir. 2003). As explained by the Second Circuit in Berry v. Ercole , 391 F. App'x 87 (2d Cir. 2010) :
"To satisfy the first prong—the performance prong—the record must demonstrate that ‘counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.’ " Wilson v. Mazzuca, 570 F.3d 490, 502 (2d Cir. 2009) (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052 ). As to the prejudice prong, "[t]he defendant must show that there is 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, 104 S.Ct. 2052. As a general matter, however, there is a "strong presumption" that the attorney in question provided, if not ideal representation, then at
least competent assistance, which obligates the reviewing court to adopt a deferential posture.
Id. at 89. A court need not address both components of the Strickland inquiry if a petitioner makes an insufficient showing on one. See Garner v. Lee , 908 F.3d 845, 861 (2d Cir. 2018) ("[T]he object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." (citation omitted)), cert. denied , ––– U.S. ––––, 139 S. Ct. 1608, 203 L.Ed.2d 761 (2019).
Further, where a state court has rejected the ineffective assistance of counsel claim, a "doubly deferential standard of review that gives both the state court and the defense attorney the benefit of the doubt" applies on federal habeas review. Burt v. Titlow , 571 U.S. 12, 15, 134 S.Ct. 10, 187 L.Ed.2d 348 (2013). "[T]he burden to show that counsel's performance was deficient rests squarely on the defendant.... [T]he absence of evidence cannot overcome the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance." Id. at 22-23, 134 S.Ct. 10 (quotations and original alterations omitted). Here, the Fourth Department considered and rejected Petitioner's ineffective assistance of counsel claim, see 149 A.D.3d at 1499-1500, and therefore the "doubly deferential" standard of review applies.
In support of his argument that his attorney was ineffective, Petitioner offers only unsupported assertions questioning whether his attorney took certain actions for strategic reasons and that his attorney was "incompetent" because he advanced "a losing defense theory." (See, e.g. , Dkt. 12 at 4-5). Petitioner has failed to carry his burden to show that his trial counsel's performance was deficient. Regarding Petitioner's claims that his counsel was ineffective for failing to move for a severance and for waiving his Bruton claim, the Court has reviewed the transcripts of both the pre-trial and trial proceedings. The Court agrees with the Fourth Department that it is clear that trial counsel's actions were strategic decisions—indeed, the transcripts reflect that trial counsel clearly weighed whether to move for a severance, given the Bruton issue—and Petitioner has failed to articulate a valid reason to overcome the strong presumption that those decisions were sound trial strategy. See Strickland , 466 U.S. at 689, 104 S.Ct. 2052 ("[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." (internal quotations and citation omitted)); see also Santana v. Capra , 284 F. Supp. 3d 525, 540 (S.D.N.Y. 2018) (finding no ineffective assistance of trial counsel where petitioner failed to show that his counsel's strategy constituted deficient performance, and there was "no evidence that ... petitioner ever indicated any disagreement with trial counsel's strategy"); Wyatt v. Diguglielmo , No. 2:04-CV-148-WY, 2004 WL 2367835, at *10 (E.D. Pa. Oct. 20, 2004) (explaining that despite the fact that a Bruton violation did occur, "we cannot conclude that counsel's failure to object to the redaction or ... seek severance rose to the level of ineffective assistance of counsel," where "[p]etitioner neglected to demonstrate that there was no rational or strategic basis underlying his counsel's conscious decision to not request redaction or severance," and the court could not "say that counsel's omission so seriously undermined ... confidence in the outcome as to render the trial fundamentally unfair"), adopted , 2005 WL 1114350 (E.D. Pa. May 10, 2005).
Given the evidence linking Petitioner to the scene of the robberies and the homicide—including the DNA evidence and multiple witness statements placing him at the crime scenes—his attorney's theory that even if Petitioner was involved in either crime he did not share the same criminal intent as Austin, who was charged in all of the robberies and the murder, was reasonable, and Austin's presence at trial gave the jury an individual alternative to Petitioner on which to place the blame. (See, e.g. , Trial T., pp. 2467-68 (counsel arguing during summation that "we don't know who shot [the victim]. There's nothing in this case that would indicate that [Petitioner] shot and killed [the victim].... If you believe that it was [Petitioner] that got into the cab, the testimony was that he got in the ... driver's side," and the evidence indicated that the victim was shot by someone on the passenger side); id. , p. 2475 (during summation, arguing that "[t]here is absolutely no evidence that the two people [who] got in that cab shared the intent" for robbery or murder)). Accordingly, Petitioner has failed to demonstrate that his trial counsel made errors so serious that he failed to function as the "counsel" guaranteed by the Sixth Amendment.
Nor does Petitioner explain how the outcome of his case would have been different had his attorney moved for a severance or objected to the admission of Austin's statements. See King v. Greiner , 453 F. App'x 88, 90 (2d Cir. 2011) ("Without addressing whether counsel was deficient in failing to object to the prosecutor's second summation, we conclude that King cannot prevail on his ineffective assistance of counsel claim because he has not demonstrated a substantial likelihood that, but for counsel's allegedly deficient performance, the result of the proceeding would have been different."). As discussed at length above, the evidence against Petitioner did not consistent solely of the statements offered by Austin. Rather, both witness testimony and DNA evidence also linked Petitioner to the crimes for which the jury found him guilty, and Petitioner does not challenge the admission of that evidence.
In sum, the record as a whole demonstrates that Petitioner was convicted following a trial at which he received effective representation from an experienced practitioner. Simply because trial counsel's strategy was not successful and Petitioner was convicted does not mean that counsel's representation was deficient. See Strickland , 466 U.S. at 689, 104 S.Ct. 2052 ("It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable."). After considering both the representation received by Petitioner, coupled with the "doubly deferential" standard of review, the Court concludes that Petitioner is not entitled to federal habeas relief on this ground.
CONCLUSION
For the foregoing reasons, the Court denies the Petition for Writ of Habeas Corpus (Dkt. 1). The Clerk of Court is instructed to close this case. Further, because Petitioner has not made "a substantial showing of the denial of a constitutional right," see 28 U.S.C. § 2253(c)(2), the Court declines to issue a certificate of appealability.
SO ORDERED.