Opinion
17 Civ. 6736 (AT) (GWG)
09-14-2018
JAQUAN LAYNE, Petitioner, v. MICHAEL CAPRA, Superintendent, Respondent.
REPORT AND RECOMMENDATION
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
Petitioner Jaquan Layne, currently incarcerated at the Sing Sing Correctional Facility, New York, brings this petition for a writ of habeas corpus under 28 U.S.C. § 2254. On October 20, 2011, Layne was convicted of two counts of conspiracy to possess or distribute narcotics under N.Y. Penal Law §§ 105.17 and 105.15, and two counts of conspiracy to possess weapons unlawfully under N.Y. Penal Law §§ 105.13 and 105.10(1). Layne, who is proceeding pro se, contends that: (1) his convictions were based on legally insufficient evidence; (2) the trial court improperly admitted into evidence out of court statements of his co-conspirators; (3) he was denied his right to be present at trial when he was not produced for a portion of voir dire; and (4) the trial court erred in not instructing the jury on "multiple conspiracies." Layne has also moved this Court to stay and hold in abeyance his petition pending his exhaustion in state court of a new claim. For the following reasons, Layne's petition and motion for a stay should be denied.
Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, filed Sept. 5, 2017 (Docket # 2) ("Pet."); Memorandum of Law in Opposition to Petition for a Writ of Habeas Corpus, filed Dec. 22, 2017 (Docket # 13) ("Resp't Mem."); Answer, filed Dec. 22, 2017 (Docket # 14); State Court Record, filed Dec. 22, 2017 (annexed as Exs. 1-5 to Answer) ("SR"); Transcripts of State Court Proceedings, filed Dec. 22, 2017 (annexed as Exs. 6-22 to Answer) ("Tr."); Jury Trial Verdict, filed Dec. 22, 2017 (annexed as part of Ex. 22 to Answer) ("V."); Transcript of Jaquan Layne Sentencing, filed Dec. 22, 2017 (annexed as part of Ex. 23 to Answer) ("S."); Traverse, filed Feb. 13, 2018 (Docket # 20) ("Pet'r Mem.").
See Letter from Jaquan Layne, dated Feb. 27, 2018 (Docket # 21) ("Stay Letter"); Letter from Margaret A. Cieprisz, dated Mar. 9, 2018 (Docket # 23) ("Stay Opp'n Mem."); Reply to Respondent's Opposition for a Stay, dated Mar. 21, 2018 (Docket # 25) ("Stay Mem."); Letter from Margaret A. Cieprisz, dated Apr. 5, 2018 (Docket # 26) ("Resp't Stay Reply"); Letter from Jaquan Layne, dated Apr. 11, 2018 (Docket # 27) ("Pet. Sur-Reply").
I. BACKGROUND
A. State Court Proceedings
1. Indictment
In February 2011, a New York County grand jury issued a fourteen-count indictment against Layne and thirteen co-conspirators. See Indictment, dated Feb. 14, 2011 (SR 50-101). It contained four conspiracy charges against Layne: (1) conspiracy in the first degree in violation of N.Y. Penal Law § 105.17; (2) conspiracy in the second degree in violation of N.Y. Penal Law § 105.15; (3) conspiracy in the third degree in violation of N.Y. Penal Law § 105.13; and (4) conspiracy in the fourth degree in violation of N.Y. Penal Law § 105.10(1).
The first conspiracy charge alleged that from approximately June 2008 through February 2011 Layne participated in a scheme to sell and possess crack cocaine. Indictment (SR 50-52). It charged that Layne was over 18 during the time of the conspiracies and that at least one of his co-conspirators was under 16 years of age when he or she entered the conspiracy. Id. (SR 50-51). The indictment alleged 129 overt acts in furtherance of the conspiracy. See id. (SR 54-92). Layne was alleged to have directed the conspiracy largely from the Rikers Island Jail Complex ("Rikers"). See id. The members of this conspiracy were alleged to be part of a gang known as "The 137th Street Crew" (the "Crew"), which distributed crack cocaine in the vicinity of West 137th Street between Lenox and Seventh Avenues in Manhattan where they "had residential, family or social ties." Id. (SR 51).
The second conspiracy charge alleged Layne engaged in the same conduct as in the first count but without regard to the participants' ages. Id. (SR 93).
The third conspiracy charge alleged that the Crew conspired to possess weapons unlawfully. Id. (SR 94). Specifically, the Crew was alleged to have used firearms to protect their territory from intrusion and themselves from attack by other gangs, to enforce discipline within the Crew, and to discourage Crew members and others from providing information to law enforcement. See id. (SR 52-53, 94). The third count charged that Layne was over 18 during the time of the conspiracy and that at least one of his co-conspirators was under 16 years of age when he or she entered the conspiracy. Id. (SR 94).
The fourth conspiracy charge alleged Layne engaged in the same conduct as in the third count but without regard to the participants' ages. Id. (SR 95).
Finally, Layne was also charged with two counts of criminal possession of a weapon in the second degree in violation of N.Y. Penal Law § 265.03(1)(b) (with intent to use unlawfully), and 265.03(3) (outside residence or place of business) based on co-conspirator Afrika Owes's carrying a gun at Layne's direction in 2009. See Indictment (SR 50, 96).
2. Trial
Starting on September 13, 2011, Layne was tried before a jury in New York County along with four of his co-conspirators — Jeffrey Brown, Jonathan Hernandez, Jahlyl Layne (his younger brother), and Habiyb Mohammed. (See 9/13 Tr. 1). He was represented at trial by Franklin Rothman. (Id.). We summarize next the relevant testimony.
The other defendants pled guilty before trial. See Resp't Mem. at 5 n.2.
New York City Police Officer Hameed Armani, who from 2006 to 2010 patrolled the area where the Crew operated, testified that the block on which the Crew principally operated was "pretty violent." (Armani: 9/20 Tr. 126, 128, 133-34). As a result, Officer Armani stated that he would visit the area between 15 and 20 times a day. (Armani: 9/20 Tr. 134-35, 164, 169). He frequently observed Layne's two younger brothers — both co-conspirators — and sometimes Layne himself, milling around on the block, often standing in a group of people outside the entrance to one particular building. (Armani: 9/20 Tr. 144-46, 150, 164-65). When Officer Armani would approach the group in his vehicle, he would hear members of the group whistle and then would watch the group disperse. (Armani: 9/20 Tr. 150-51). On one of these occasions, October 30, 2009, Officer Armani detained one of Layne's younger brothers, Jahlyl, and following a search uncovered "nine small bags of . . . crack cocaine." (Armani: 9/20 Tr. 154, 157-58; Tumbrink: 9/22 Tr. 522-33); Stipulation (SR 114-15).
Various other individuals alleged to be part of the four charged conspiracies had been arrested for narcotics and firearm offenses before the Indictment was filed charging the conspiracies. On July 26, 2008, Dashawn Davis was found in possession of 19 plastic bags containing crack cocaine on Seventh Avenue near West 147th Street. (Padin: 9/20 Tr. 204-17, 229). On July 19, 2009, Brandon Santiago was arrested for possession of a loaded .25 caliber handgun on West 139th Street. (Gregorio: 9/20 Tr. 75-104; Sepulveda: 9/20 Tr. 105-24; Polosin: 9/26 Tr. 708-23). On July 5, 2010, Jonathan Hernandez pulled a nine millimeter pistol on a crowd celebrating the Fourth of July at the corner of Lenox Avenue and West 137th Street, shooting at least 10 times at the crowd in full view of two police officers. (Krutys: 9/22 Tr. 400-38; Hennessy: 9/20 Tr. 238-95; Williams: 9/20 Tr. 296-367). While Hernandez was caught at the time, the gun was not retrieved until a month later when Tyrone Gibbs was arrested in possession of it after shooting nine times into a crowd on West 135th Street. (Krutys: 9/22 Tr. 400-38; J. Hernandez: 9/22 Tr. 439-73; Fitzgerald: 9/22 Tr. 545-75; Torres: 9/26 Tr. 652-87; Nowak: 9/27 Tr. 870-96). A prosecution expert witness, Detective Alfred Hernandez, testified at trial that narcotics dealers frequently rely on guns to protect their territory, drugs, and cash proceeds. (See A. Hernandez: 9/28 Tr. 982-83, 1023-24, 1030-31).
The central evidence supporting the conspiracy charges was recordings of telephone calls petitioner Layne and others made from Rikers to co-conspirators between October 2009 and November 2010 (the "Rikers Phone Calls"). See generally Transcripts of Recorded Calls (SR 152-321). In these calls, Layne and his co-conspirators discussed selling crack cocaine and marijuana on West 137th Street, where to locate repeat customers, purchasing large quantities of drugs, placing money into Layne's prisoner commissary account, and the acquisition and use of firearms. See id. Some telephone calls were played at trial. (See Bennett: 9/27 Tr. 806). We examine these conversations in more depth in Section III.A below.
On February 15, 2011, the police executed search warrants at Layne's residence and the residences of Layne's various co-conspirators, including Afrika Owes, Jeffrey Brown, Jonathan Hernandez, and Brandon Santiago. At Owes's residence, the police seized a cellphone and two laptop computers on which the police found photographs of Owes kissing Layne in September 2009; a photograph of Owes holding a significant amount of cash in August 2010; and three photographs from August, October, and November 2010, showing hundreds of dollars in cash spread out like a fan. (Tobon: 10/3 Tr. 1107-28; Brooks: 10/3 Tr. 1128-41; Ho: 10/3 Tr. 1229-59). At Brown's residence, the police discovered marijuana, but did not find any guns, cocaine, or supplies for the sale of drugs. (MacKenzie: 10/5 Tr. 1369-74, 1450). At Layne's residence, the police discovered plastic bags of the type used to bag crack cocaine, what appeared to be a memorial to slain members of the Crew, and seven cell phones. (Id. 1421-23, 1449-59). At Hernandez's and Santiago's residences, the police seized small amounts of crack cocaine and plastic bags of the type used to bag crack cocaine. (Id. 1426-30).
On October 20, 2011, the jury convicted Layne of first and second degree conspiracy to distribute and possess narcotics, and third and fourth degree conspiracy to possess weapons. (V. 49-50). The jury acquitted him of the gun possession counts. (Id.). A month later, Layne was sentenced, as a second felony offender, to an aggregate indeterminate prison term of 20 years to life. (S. 18).
3. State Court Direct Appeal
Layne was represented on his state court direct appeal by Marianne Karas. Pet. at 14; Brief for Defendant-Appellant, dated Oct. 2015 (annexed at SR 322-418) ("Layne State Ct. App. Brief"). He also filed a pro se appellate brief. See Supplemental Brief for Defendant/Appellant Pro-Se, dated Mar. 27, 2014 (annexed at SR 420-49) ("Pro Se App. Brief"). In his counseled brief, Layne raised the following five issues: (1) that the trial court improperly refused to charge the jury with a multiple conspiracies instruction because there was a reasonable view of the evidence that multiple conspiracies existed instead of the single, integrated conspiracy charged in the indictment, Layne State Ct. App. Brief at 22-37; (2) that the trial court improperly admitted the Rikers Phone Calls because a prima facie case of conspiracy had not been established, id. at 37-53; (3) that Layne's convictions were against the weight of the evidence because the evidence did not establish that he participated in the conspiracies charged in the indictment nor did it show his specific intent to possess or sell the requisite weight of narcotics, id. at 53-67; (4) that the trial court violated his right to be present by conducting an entire morning of voir dire in his absence from the courtroom, id. at 67-77, and violated New York Criminal Procedure Law § 310.10 by permitting a court officer to deliver "end-of-day" jury instructions, id. at 77; and (5) that Layne's sentence was harsh and excessive, id. at 77-86. Layne's pro se supplemental brief argued the same points concerning the Rikers Phone Calls and the sufficiency of the evidence, and added claims that the charged overt acts were "legally insufficient to constitute . . . overt act[s]" and that he was deprived of the effective assistance of counsel. See Pro Se App. Brief.
On September 1, 2016, the Appellate Division, First Department, affirmed Layne's conviction in a consolidated decision with his co-defendants Brown and Mohammed. See People v. Brown, 142 A.D.3d 769 (1st Dep't 2016). As to the legal sufficiency of the verdict, the Appellate Division reasoned that "[e]xtensive recorded telephone conversations, and other evidence, established . . . Layne's participation in a central conspiracy," and "[r]eferences in these conversations supported reasonable inferences that . . . Layne intended to possess or sell cocaine in quantities that met the statutory threshold for a class A felony." Id. at 770. It found Layne's "remaining arguments regarding the sufficiency and weight of the evidence . . . without merit." Id. On the issue of admitting the Rikers Phone Calls into evidence as co-conspirator statements, the Appellate Division found that the trial court properly admitted them, relying on its prior decision in co-conspirator Jahlyl Layne's appeal. Id. (citing People v. Layne, 124 A.D.3d 466 (1st Dep't 2015)). In that decision, the Appellate Division had reasoned that the prosecution had "established a prima facie case of conspiracy based upon [Jahlyl Layne's] own statements and other evidence, without resort to the declarations [of co-conspirators] sought to be introduced." Layne, 124 A.D.3d at 466. As for the jury instructions, the Appellate Division found that the trial court "properly denied" Layne's request to charge separate conspiracies, reasoning that "[t]here was no reasonable view of the evidence that there was any conspiracy narrower in scope than the single conspiracy charged in the indictment." Brown, 142 A.D.3d at 771. It also concluded that Layne's right to be present was not infringed by his absence at "a preliminary screening of prospective jurors," and that the trial court did not commit a "mode of proceedings error" when "it delegated to a court officer the ministerial function of giving the jury the 'usual' separation instructions at the end of the fourth day of deliberations." Id. Last, it "perceive[d] no basis for reducing Layne's sentence." Id.
Layne sought leave to appeal from the New York Court of Appeals seeking to raise all the arguments made in his appellate court brief. See Request for Leave, dated Sept. 14, 2016 (annexed at SR 517-25). On December 19, 2016, Judge Jenny Rivera of the New York Court of Appeals denied Layne's request for leave. People v. Layne, 28 N.Y.3d 1125 (2016). He did not petition the Supreme Court for a writ of certiorari. See Pet. at 4.
B. The Instant Petition
On August 30, 2017, Layne filed a pro se habeas petition with this Court. See Pet. at 16. In it, he raises four grounds of relief, which are nearly identical to those raised in his state court direct appeal. He argues (1) that the evidence was legally insufficient for conviction; (2) that the trial court erred when it admitted his co-conspirator's statements; (3) that his right to be present at his trial was infringed by his absence for a portion of the jury voir dire; and (4) that the trial court erred when it refused the defense's request for a jury charge on multiple conspiracies. Id. at 6, 8-9, 11. On December 22, 2017, the respondent answered the petition and filed a brief in opposition to the petition. See Resp't Mem.; Answer. Layne replied in a brief dated February 8, 2018. See Pet'r Mem.
On March 1, 2018, Layne requested that the Court hold his petition in abeyance. He claimed that he had recently discovered that his trial counsel failed to properly object to the admission of evidence and that he was then "in the process of preparing a state post-conviction motion . . . in that the conviction was obtained in violation of a right of the defendant." Stay Letter. Respondent opposed the stay, arguing that Layne's petition does not contain the claim referenced in the Stay Motion, and in any event, Layne had not made the requisite showing of good cause or meritoriousness. Stay Opp'n Mem. By letter filed March 28, 2018, Layne further explained his request, stating that his request related to the method by which the prosecution had obtained the recordings of his phone calls at Rikers and to his trial counsel's failure to investigate those circumstances or object to the foundation laid for admission of the tapes at trial. Stay Mem. at 1-2. He also attached a copy of his state court motion, filed pursuant to section 440.10 of New York's Criminal Procedure Law. See Memorandum of Law in Support of Motion to Vacate the Judgment Pursuant to CPL § 440.10, dated Mar. 21, 2018 (attached to Stay Mem.) ("Section 440.10 Motion"). In the letter reply, he disclaimed any intent to move to amend his petition, suggesting that he would do so only after he had exhausted the claim in state court. Stay Mem. at 2. On April 5, 2018, the respondent filed another opposition to Layne's motion for a stay, see Resp't Stay Reply, to which Layne replied by a letter dated April 11, 2018, see Pet. Sur-Reply.
II. LAW GOVERNING PETITIONS BROUGHT UNDER 28 U.S.C. § 2254
A petition for a writ of habeas corpus may not be granted with respect to any claim that has been "adjudicated on the merits" in state court unless the state court's adjudication:
(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.28 U.S.C. § 2254(d).
For a claim to be "adjudicated on the merits" within the meaning of section 2254(d), it must "finally resolv[e] the parties' claims, with res judicata effect," and it must be "based on the substance of the claim advanced, rather than on a procedural, or other, ground." Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001) (citations omitted). As long as "there is nothing in its decision to indicate that the claims were decided on anything but substantive grounds," a claim will be considered "adjudicated on the merits" even if the state court fails to mention the federal claim and cites no relevant federal case law. Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001); accord Harrington v. Richter, 562 U.S. 86, 99 (2011) ("When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary."); see also Harrington, 562 U.S. at 98 (section 2254(d) deference applies even "[w]here a state court's decision is unaccompanied by an explanation"). Moreover, a state court's "determination of a factual issue" is "presumed to be correct," and that presumption may be rebutted only "by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
A state court decision is "contrary to" clearly established federal law only "if the state court applies a rule that contradicts the governing law set forth" in Supreme Court precedent 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 different result. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Habeas relief is available under the "unreasonable application" clause only "if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. A federal court may not grant relief "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. Rather, the state court's application must have been unreasonable — a standard that is met only "where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with" Supreme Court precedent. Harrington, 562 U.S. at 102; accord id. ("[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable."). In other words, to demonstrate an "unreasonable" application of Supreme Court law, the habeas petitioner "must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 103; see also Woods v. Donald, 135 S. Ct. 1372, 1378 (2015) (an "extreme malfunction" by the state court in applying Supreme Court precedent is "required for federal habeas relief") (citation and internal quotation marks omitted).
The "determination of whether a court has unreasonably applied a legal standard depends in large measure on the specificity of the standard in question." Brisco v. Ercole, 565 F.3d 80, 89 (2d Cir. 2009). "The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations" inasmuch as the application of a general standard to a specific case "can demand a substantial element of judgment." Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). Thus, "where the precise contours of a right remain unclear, state courts enjoy broad discretion in their adjudication of a prisoner's claims." Woods, 135 S. Ct. at 1377 (alterations and citation omitted); accord Brisco, 565 F.3d at 90 (a court applying a "fact-dependent standard . . . to the facts of a specific case is . . . entitled to significant 'leeway' when [a habeas court] review[s] its decision for reasonableness") (quoting Yarborough, 541 U.S. at 664).
Only holdings of the Supreme Court are considered for purposes of determining "[c]learly established federal law." Rodriguez v. Miller, 537 F.3d 102, 106 (2d Cir. 2008) (internal quotation marks omitted) (citing Williams, 529 U.S. at 412). Thus, "[n]o principle of constitutional law grounded solely in the holdings of the various courts of appeals or even in the dicta of the Supreme Court can provide the basis for habeas relief." Id. at 106-07. Where there is "[n]o holding" from the Supreme Court on the question presented, Carey v. Musladin, 549 U.S. 70, 77 (2006), or where Supreme Court cases "give no clear answer" to the question presented in the petition, Wright v. Van Patten, 552 U.S. 120, 126 (2008) (per curiam), a state court's decision can be neither contrary to nor an unreasonable application of clearly established federal law, see Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) ("[I]t is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by this Court.") (citations and internal quotation marks omitted).
III. DISCUSSION OF CLAIMS IN PETITION
The respondent objects that some of Layne's claims are unexhausted or procedurally barred. See generally Resp't Mem. at 28-80. We reach the merits of Layne's claims nonetheless. 28 U.S.C. § 2254(b)(2) specifically permits denial of a habeas corpus petition on the merits notwithstanding a failure to exhaust. Case law recognizes that a court need not address a procedural bar if the petition would have to be denied on the merits. See Greiner v. Wells, 417 F.3d 305, 317 n.14 (2d Cir. 2005) ("By reaching the merits of the ineffective assistance claim, we need not determine whether the claim is procedurally barred.") (internal quotation marks omitted) (quoting Mills v. Scully, 826 F.2d 1192, 1197 n.1 (2d Cir. 1987)); accord Encarnacion-Cross v. McAuliffe, 2018 WL 1913835, at *5 (S.D.N.Y. Apr. 23, 2018); Horton v. Ercole, 557 F. Supp. 2d 308, 316 n.5 (N.D.N.Y. 2008). In this case, the petition is most easily disposed of on the merits. Accordingly, we do not address respondent's arguments regarding exhaustion or procedural bars.
We next discuss each of Layne's claims.
A. Legal Sufficiency Claims
Layne contends the evidence presented at trial was insufficient to support his convictions for conspiracy and that the Appellate Division unreasonably concluded otherwise. Pet. at 6; Pet'r Mem. at 2. He specifically claims (1) that the evidence was insufficient to establish him as (a) "the person that took part in this alleged conspiracy," (b) "the person at the alleged drug-selling location," or (c) "the person who[se] voice is on the recorded phone calls [from Rikers"] (collectively, Layne's "identification claims"); (2) that the evidence was insufficient to prove his specific intent to possess the requisite quantity of cocaine; and (3) that the evidence was insufficient to show that he was a member of the conspiracies. Pet. at 6.
We first review in more detail the facts that supported his conviction before turning to Layne's claims.
1. Facts Supporting Layne's Conviction
At trial, the prosecution's case against Layne largely turned on its presentation to the jury of the recordings of his and others' phone calls from Rikers. It was stipulated that Layne was incarcerated at Rikers between December 2007 through May 2008, August 2008 through February 2009, and October 2009 through the trial. Stipulation (SR 117); (10/6 Tr. 1494). The prosecution called investigator Paula Dawson of the New York City Department of Correction ("DOC"), who testified that since December 2008, the DOC has been recording every inmate phone call. (Dawson: 9/27 Tr. 738-39). The phone calls are catalogued and monitored by reference to an inmate's unique 10-digit book and case number — required to make any call from Rikers — as well as the time and date of the call. (Id. 736-37, 744). Pursuant to this system, records of all of Layne's calls from Rikers during the relevant time period were marked with his unique book and case number and the date and time of the call. (See id. 744, 749-53). Detective Alfred Hernandez, a qualified expert in "street-level drug activity [and] language," explained the meaning of various slang phrases used in the Rikers Phone Calls and the customs of the drug trade. (See A. Hernandez: 9/28 Tr. 1001-02).
In the Rikers Phone Calls, Layne and his co-conspirators discuss at length their business of selling drugs. See Transcripts of Recorded Calls (SR 152-321). For instance, in a call on December 2, 2009, co-conspirator Jeffrey Brown, who was staying at Layne's apartment at the time, told Layne that he and Malik Layne (one of Layne's younger brothers) were "on thirty-sev," and that Malik had "the scud," or marijuana, and that Brown had "the yaks," or crack cocaine. (SR 166-76; see also A. Hernandez: 9/28 Tr. 1026-27 (explaining meaning of scud and yaks)). Layne responded, "[h]uggin the block yeah" (SR 167), which meant being on the block selling drugs (A. Hernandez: 9/28 Tr. 1035). Layne then asked whether the money was "flowin" to which Brown answered that it was, but that his biggest "bust" yet was a "seventy dollar sale yesterday." (SR 167-68). Layne told Brown to "[j]ust wait just watch. It's going to really come in." (Id.). He told him "[h]ug the block on the first" of the month, "go outside . . . just sit in front of the stoop in the morning and they come see you boom boom boom[, c]ause that's the morning, that's their first high." (Id.). According to Detective Hernandez, "[t]he first of the month and the first couple days of the month . . . are the days that you would primarily want to make sure that your product is available for your clientele," because low-income clients will have just received their public assistance payments. (A. Hernandez: 9/28 Tr. 1016).
On several occasions, Layne referred his co-conspirators to prospective purchasers of drugs. For instance, in that same conversation, Layne asked to speak to Malik Layne (his brother), who said that the group had just visited "China" and that China spent "good money with us." (SR 169). Layne agreed that China was a good buyer and asked to speak to Brown again. (SR 169-70). Layne said that "China gunna be callin cause China getting her money this month. She's getting her lawsuit money this month. . . . She get hundreds, she get thousands of dollars, so y'all run down on that and make sure you all get that right." (SR 170-71).
Layne advised Brown to "[g]o to Gloria," another potential customer in the same building as "China," and to "say you Jay Man," Layne's nickname. (Id.). Layne also told Brown to visit "Brooklyn," another potential customer, and to "[s]ay Jay say yo he locked up you takin over now. She got money too. She only bring money like around two, three, in the morning." (SR 171 (emphasis added)). He then admits on the same call that he received money from Malik, makes a request for sweat pants (SR 172-74), and warns Habiyb Mohammed and the others not to "make my house hot . . . [c]ause remember, my name, that's my house" (SR 175).
He further said that he would bring them a prospective buyer — "my man that come for twelve and twenty-four." (SR 172). According to Detective Hernandez, "in organizations that sell cocaine and crack, [a customer] can request ten and ten; ten grams of crack, ten grams of coke." (A. Hernandez: 9/28 Tr. 1033). Detective Hernandez also testified that crack cocaine is sold according to a metric weight system in amounts ranging from "grain quantities," or less than a gram, to a gram, an ounce or a kilogram. (Id. 1004). The jury could reasonably have inferred from this call and Hernandez's testimony that the prospective buyer would purchase approximately 36 grams of cocaine.
In other calls, the jury listened to co-conspirators discuss wholesale quantity purchases of drugs. For example, on February 20, 2010, co-conspirator Dashawn Davis tells co-conspirator Louis Williams to write down a phone number because the person at that number "got something" for Williams — "[a] whole brick and like 40 dollars." (SR 228-29). Detective Hernandez testified that a kilogram of cocaine is "sold in brick form," though he acknowledged that marijuana is also sold in brick form even if marijuana is "sold in pounds." (A. Hernandez: 9/28 Tr. 1005, 1071). After Williams took down the number, given to him by a third unidentified caller, Davis also told Williams that he had some "chicken" for him (SR 229), which Detective Hernandez explained meant "money" (A. Hernandez: 9/28 Tr. 1087). Davis said he would give Williams "[l]ike $40 dollars and . . . a whole ounce." (SR 229-30).
In the phone calls, Layne repeatedly complained to co-conspirators that they were not putting enough money into his prisoner commissary account. For example, on December 5, 2009, Layne called his girlfriend, Afrika Owes, to complain that his associates were "out there selling all these fucking drugs," but were "sending [him] no paper." (SR 180-81). He contended that his associates were being selfish — taking over his and his incarcerated brother Jahlyl's "job," which involved "huggin the block" and "[h]ustling rock" — but not holding up their end of the bargain. (Id.). This frustrated Layne because when he "was selling wild drugs," in contrast, "[he] was . . . the reason Jeff [Brown] was getting commissary. Jeff used to call me every week. . . . I'm like fuck it give him a little 50, 60 dollars. Every week." In other calls with associates, Layne and his brother Jahlyl repeated this theme. (See SR 161, 163, 168, 183-84, 202-03, 249).
The phone calls also showed that Layne and his co-conspirators possessed weapons to protect themselves from other gangs. In one call, on December 19, 2009, Layne warned Afrika Owes to stay away from the sister of their friend "Mike," because the sister had gang ties and would get Owes in trouble. (SR 192-94). Owes confessed to Layne that she and two others were "toting them things," i.e., carrying guns. (Id.). Layne protested, "[t]hat's not even your life," to which Owes responded that it had been "[w]hen I was with you." (Id.). She recalled that she used to carry "that big old nine" for him. (Id.). Detective Hernandez testified that "a nine" refers to a nine millimeter firearm. (A. Hernandez: 9/28 Tr. 1025). Layne warned Owes to be careful and advised her to take "head shots only," if things ever "get crazy." (SR 193-94). Layne also told her to give his brother Malik Layne all three "straps," or guns (see A. Hernandez: 9/28 Tr. 1095-96), that Owes and her friends planned to carry that night (SR 193-94). Eight months later, on November 29, 2010, Malik told Layne that Malik and Brown had been "jumped" by members of a rival gang carrying metal pipes two days earlier. (SR 309-12). Malik said he had called Dashawn Davis and asked him to "bring the 4/5" (id.), a reference to a .45 caliber pistol (A. Hernandez: 9/28 Tr. 1025). Davis had run over with the pistol and was able to fire five or six rounds. (SR 311-12). Malik told Layne that he was "getting a toy" in a couple of days, and Layne agreed that "[Malik] got to." (SR 318). Layne and Malik then discussed where Malik might get a gun. (Id.). Layne recommended that Malik ask for "one of [Davis's] . . . [because Davis] got two." (Id.).
In the telephone calls, Layne took responsibility for his control over the group. In a March 21, 2010 phone call with Afrika Owes, Owes told Layne that Dashawn Davis had been telling her that Layne had "control" over her. (SR 245-47). Layne responded that "[he] got control over [Davis] too, he better chill out." (Id.). Owes said that Layne "got everybody in control," to which Layne replied, "Yeah." (Id.).
2. Law Governing Claims of Insufficient Evidence
When a court reviews a legal sufficiency claim like Layne's, it must evaluate the trial evidence "in the light most favorable to the prosecution" and uphold the conviction so long as "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original) (citation omitted). Legal sufficiency "claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference." Coleman v. Johnson, 566 U.S. 650, 651 (2012); accord Parker v. Matthews, 567 U.S. 37, 43 (2012). "First, on direct appeal, 'it is the responsibility of the jury — not the court — to decide what conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury.'" Coleman, 566 U.S. at 651 (quoting Cavazos v. Smith, 565 U.S. 1, 2 (2011)). "[S]econd, on habeas review, a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was 'objectively unreasonable.'" Id. (quoting Cavazos, 565 U.S. at 2) (some internal quotation marks omitted). Thus, a petition will be denied if it "possible" that a fairminded jurist could agree with the state court's decision. Richter, 562 U.S. at 102.
"[F]ederal courts must look to state law for 'the substantive elements of the criminal offense'" when evaluating legal sufficiency claims. Coleman, 566 U.S. at 655 (quoting Jackson, 443 U.S. at 324 n.16). However, "the minimum amount of evidence that the Due Process Clause requires to prove the offense is purely a matter of federal law." Id. And federal law "leaves juries broad discretion in deciding what inferences to draw from the evidence presented at trial, requiring only that jurors 'draw reasonable inferences from basic facts to ultimate facts.'" Id. (quoting Jackson, 443 U.S. at 319).
3. Elements of a Conspiracy Claim Under New York Law
Layne was convicted of first-, second-, third-, and fourth-degree conspiracy.
The first two conspiracy convictions concerned the same underlying conduct — the sale of narcotics. Under New York law, "[a] person is guilty of conspiracy in the first degree when, with intent that conduct constituting a class A felony be performed, he, being over eighteen years of age, agrees with one or more persons under sixteen years of age to engage in or cause the performance of such conduct." N.Y. Penal Law § 105.17. The elements of second degree conspiracy are the same, except second degree conspiracy does not have an age component. N.Y. Penal Law § 105.15. The class A felony alleged in the indictment was that Layne had intended to sell and possess a controlled substance in the second degree. Indictment (SR 50-51). "A person is guilty of criminal sale of a controlled substance in the second degree when he knowingly and unlawfully sells . . . one or more preparations, compounds, mixtures or substances containing a narcotic drug and the preparations, compounds, mixtures or substances are of an aggregate weight of one-half ounce or more." N.Y. Penal Law § 220.41(1). Cocaine and crack cocaine are controlled substances and narcotic drugs under New York law. See N.Y. Penal Law § 220.00(5), (7); N.Y. Pub. Health Law § 3306 (Schedule II).
The last two conspiracy convictions concerned the unlawful possession of firearms. Under New York law, "[a] person is guilty of conspiracy in the third degree when, with intent that conduct constituting a class B or a class C felony be performed, he, being over eighteen years of age, agrees with one or more persons under sixteen years of age to engage in or cause the performance of such conduct." N.Y. Penal Law § 105.13. The elements of fourth degree conspiracy are the same but without any age component. N.Y. Penal Law § 105.10(1). The indictment alleged the class C felony of second degree criminal possession of a weapon. Indictment (SR 94, 95). A person is guilty of this charge when he possesses a loaded, operable firearm "with intent to use the same unlawfully against another" or when he "possesses any loaded [operable] firearm" outside of his home or business. N.Y. Penal Law § 265.03.
To prove any conspiracy at New York law, the government must also prove that one member of the conspiracy performed at least one "overt act" in furtherance of the conspiratorial goal. N.Y. Penal Law § 105.20.
4. Analysis of Legal Sufficiency Claims
(a) Identification Issue
First, viewing the evidence in the light most favorable to the prosecution, we reject petitioner's three identification claims. To start with, there was ample evidence from which a rational juror could infer that it was Layne's voice on the phone. For one, the other participants, as well as Layne himself, repeatedly refer to the caller by Layne's nickname, "Jay." (See SR 170-74, 181, 188, 218, 220, 239-40, 246, 262, 311-13, 316, 318). Additionally, it was stipulated that Layne was in Rikers at the time of the calls. Finally, a witness testified that each recording was stamped with Layne's unique book and case number, as well as the date and time of the call. This was sufficient for the jury to conclude that it was Layne's voice on the call. See, e.g., People v. Kindred, 60 A.D.3d 1240, 1242 (3d Dep't 2009) (phone calls from jail where defendant identified himself with defendant's first name, the calls all originated in same "tier" of the jail facility where defendant was housed, even when he moved, sufficient to establish "that defendant made the threatening calls or that they were made at his behest").
As to Layne's claim that there was insufficient evidence to show that he was "the person that took part in this alleged conspiracy," Pet. at 6, Layne's own statements provided sufficient evidence from which a rational juror could infer that he participated in the alleged conspiracy. During one call, he stated he "was selling wild drugs" and that he "was out there huggin the block and . . . [h]ustling rock." (SR 181). He referred customers to his co-conspirators such as "my man that come for twelve and twenty-four" (SR 172), and "Brooklyn" who should be told that "Jay . . . [was] locked up you taking over now" (SR 171). Furthermore, he spoke on the phone with most of the other co-conspirators about the business of selling drugs. See Transcripts of Recorded Calls (SR 153-321). From this evidence, a juror could rationally have inferred that he participated in the alleged conspiracy. Under New York law, "[p]roof of a defendant's knowledge of the identities and specific acts of all his co-conspirators is not necessary where the circumstantial evidence establishes the defendant's knowledge that he is part of a criminal venture which extends beyond his individual participation." People v. Ackies, 79 A.D.3d 1050, 1056 (2d Dep't 2010). Here, Layne's admissions in the phone calls establish such knowledge. Id.
Layne's third identification claim — that there is no evidence he was "the person at the alleged drug-selling location," Pet. at 6 — is irrelevant to his convictions for conspiracy to distribute and possess narcotics because it is not an element of the conspiracy charges. See N.Y. Penal Law §§ 105.15, 105.17; see also Finley v. Graham, 2014 WL 10965412, at *14 (S.D.N.Y. Aug. 26, 2014) (reasonable jury could conclude defendant guilty of conspiracy based on accomplice testimony that defendant participated in "the planning and preparations" for the predicate offense, but not the actual offense itself).
In any event, from his admissions on the phone calls that he was "huggin the block" and selling drugs (see SR 180-81), and references to his apartment as a home base for the Crew (see SR 175), the jury had sufficient information to conclude that he had personally sold drugs on West 137th Street during the course of the conspiracy.
(b) Specific Intent as to Quantity
It was established through the phone calls that Layne and his co-conspirators were in the business of selling crack cocaine. When Owes asks Layne what he will do when he is released from jail, he says "I ain't doing a damn thing but selling crack." (See, e.g., SR 209). In another call, Layne offered to connect Brown with a purchaser of "twelve and twenty-four." (SR 172). Detective Hernandez had explained to the jury that this language described how the customer wanted his cocaine packaged, i.e., 12 grams of crack cocaine and 24 grams of cocaine. (A. Hernandez: 9/28 Tr. 1033). It was thus objectively reasonable for the jury to find that Layne possessed the specific intent to sell at least the statutory requirement of one-half ounce of crack cocaine, which is about 14 grams. (See A. Hernandez: 9/28 Tr. 1019). Layne argues that the trial court erred in relying on reference to "a brick" in denying the defense's motion for a directed verdict on this issue. See Pet'r Mem. at 4. But even without relying on that phone call, a jury had sufficient evidence of Layne's specific intent. See, e.g., People v. Banchs, 268 A.D.2d 262, 262 (1st Dep't 2000) (weight sufficiently shown where "[t]here was ample evidence warranting a reasonable inference that the combined weight of the recovered and non-recovered drugs far exceeded the statutory threshold."); see also Calderon v. Perez, 2011 WL 293709, at *28 (S.D.N.Y. Jan. 28, 2011) (weight proven even though sale not observed based on "intercepted calls setting up the sale, the agreed-upon . . . purchase price, the [money] recovered from [defendant] after meeting [co-conspirator] and the usual price of a half kilogram of heroin.").
(c) Agreement to Participate
The phone calls provided sufficient evidence from which a rational juror could infer that Layne agreed to participate in the conspiracy alleged. For example, in one call Layne refers to his having sold drugs with his co-conspirators and to giving them the proceeds: "we [referring to Layne and his brother Jahlyl] was selling wild drugs. Now they out there doing it and I was the . . . reason Jeff was getting commissary. Jeff used to call me every week. . . . I'm like fuck it give him a little 50, 60 dollars. Every week." (SR 181). From that call, a rational juror could infer that Layne sold drugs in cooperation with his brother and Jeffrey Brown, and that now Brown and others were selling drugs but failing to give Layne his share of the proceeds. Layne also repeatedly referred to "thirty-sev" in calls to his co-conspirators. In a December 2009 call, for example, co-conspirator Jeffrey Brown tells Layne that he is "on thirty-sev" [137th Street] with "the yaks man." (SR 167). Layne then responds, "Hugging the block, yeah," acknowledging that Brown was selling drugs on the block. (Id.). Later in the same conversation, Layne gives Brown advice on when to sell drugs, recommending that Brown sell "[e]specially on the first . . . in the morning." (SR 168). Similarly, in a February 2010 call, Layne asks an unidentified caller about how things "lookin" on "thirty-sev," and was frustrated upon learning that there still was "[n]o chicken" out on the block and that "nobody" was out there. (SR 237). Layne agreed that he had control over one of his co-conspirators, Dashawn Davis, and "everybody" else. (SR 246-47).
These statements easily allowed a jury to find that Layne agreed to participate in the conspiracy to sell drugs on West 137th Street, where the Crew operated. See People v. Clark, 90 A.D.3d 1576, 1577 (4th Dep't 2011) (affirming conviction for fourth-degree conspiracy even though "there was no direct proof of defendant's presence when the agreement was reached" because circumstantial evidence "permitted jury to infer that he participated"); Ackies, 79 A.D.3d at 1056 ("The illicit agreement to cause the commission of the object crime may be inferred from the circumstantial evidence"); see also People v. Rodriguez, 274 A.D.2d 826, 827 (3d Dep't 2000) (upholding conspiracy verdict based in part on circumstantial evidence).
Layne argues that the calls do not show his agreement to join the central conspiracy charged because the calls are "too unspecified" to prove his intent to join in the conspiracy. Pet'r Mem. at 5-6. To the extent Layne is arguing that his intent to join required a specific admission, it is rejected. Under New York law, an agreement to join a conspiracy may be inferred from circumstantial evidence. See Clark, 90 A.D.3d at 1577; Ackies, 79 A.D.3d at 1056. Such an inference may be derived from intercepted conversations containing slang phrases which an expert helped translate. See, e.g., People v. Riggins, 28 A.D.3d 934, 935 (3d Dep't 2006) (upholding conviction for conspiracy based in part on "dozens of recorded phone conversations intercepted pursuant to an authorized wiretap" and rejecting claim that calls were "too 'cryptic'" for the jury to understand given testimony of an expert witness); People v. Contreras, 28 A.D.3d 392, 392 (1st Dep't 2006) (upholding conviction for conspiracy based on "ample evidence, in the form of very extensive monitored telecommunications during which defendant's voice was identified, establishing his participation in large-scale narcotics trafficking," which calls were "properly" translated by "an expert in the meaning of coded communications used by narcotics traffickers"). Here, a reasonable jury could conclude that Layne had agreed with others to sell drugs.
B. Admission of Co-conspirator Statements
Layne claims the trial court should not have admitted his co-conspirators' statements at his trial because the prosecution had not established a prima facie case of conspiracy. Pet. at 8. Generally, "it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). A state trial court's evidentiary determinations do not implicate federal constitutional questions, unless an adverse ruling so infected the trial as to "deprive[] [the defendant] of a fundamentally fair trial." Zarvela v. Artuz, 364 F.3d 415, 418 (2d Cir. 2004) (alterations and brackets in original omitted); accord Dowling v. United States, 493 U.S. 342, 352 (1990); Vega v. Walsh, 669 F.3d 123, 126 (2d Cir. 2012); Taylor v. Curry, 708 F.2d 886, 890-91 (2d Cir. 1983). "[T]he Supreme Court has 'defined very narrowly'" the guarantee of "fundamental fairness." Evans v. Fischer, 712 F.3d 125, 133 (2d Cir. 2013) (quoting Dowling, 493 U.S. at 352). To show that an evidentiary ruling violated due process, a court must first determine that the evidentiary ruling was erroneous under state law, because "the proper application of a presumptively constitutional state evidentiary rule could not be unconstitutional." DeJesus v. Superintendent of Attica Corr. Facility, 2017 WL 6398338, at *27 (S.D.N.Y. Dec. 13, 2017) (citing cases); see also Zarvela, 364 F.3d at 418 (first assessing whether state court erred under New York law in excluding testimony). If the ruling was erroneous, then a petitioner must show that the error violated due process. See Roasario v. Kuhlman, 839 F.2d 918, 925 (2d Cir. 1988). With erroneously admitted testimony, a court asks "whether 'the erroneously admitted evidence, viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it.'" Smith v. Greiner, 117 F. App'x 779, 781 (2d Cir. 2004) (summary order) (quoting Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985)); accord Vega v. Portuondo, 120 F. App'x 380, 382 (2d Cir. 2005) (summary order). Even when a district court answers this second question in the affirmative, under 28 U.S.C. § 2254(d) it may only grant habeas relief if it finds that the state court decision was "objectively unreasonable." Jones v. Stinson, 229 F.3d 112, 119, 120-21 (2d Cir. 2000).
Under New York law, "[a] declaration by a co-conspirator during the course and in furtherance of the conspiracy is admissible against another co-conspirator as an exception to the hearsay rule." People v. Bac Tran, 80 N.Y.2d 170, 179 (1992); accord People v. Salko, 47 N.Y.2d 230, 237 (1979). A predicate for the admission of such statements, however, is the existence of "independent prima facie evidence of a conspiracy" based on facts other than the co-conspirators' statements. Bac Tran, 80 N.Y.2d at 173; accord People v. Wolf, 98 N.Y.2d 105, 118 (2002). "While this 'determination . . . must be made without recourse to the [co-conspirator statements] sought to be introduced' . . . , the testimony of other witnesses or participants may establish a prima facie case . . . ." Wolf, 98 N.Y.2d at 118 (quoting Bac Tran, 80 N.Y.2d at 179) (citations omitted).
Here, the Appellate Division upheld the admission of Layne's co-conspirators' statements on the basis of Layne's own admissions on the phone calls — admissible under state rules of evidence as admissions of a party, see People v. Caban, 5 N.Y.3d 143, 150 (2005); People v. Alwadish, 67 N.Y.2d 973, 974 (1986) — along with other evidence. See Brown, 142 A.D.3d at 770 (citing Layne, 124 A.D.3d at 466). Layne's statements on the phone calls — referring to dealing drugs "on the block," to dealing drugs with his brother, and to possessing drugs in his apartment with his two brothers — showed the existence of a conspiracy. See, e.g., Alwadish, 67 N.Y.2d at 974 ("Through the introduction of the defendant's statements to the undercover officer, the People presented a prima facie case that defendant arranged a meeting between the officer and a dealer in illegal licenses . . . ."); accord Salko, 47 N.Y.2d at 241 (relying in part on defendant's admissions connecting himself to co-conspirator). Thus, any statements of co-conspirators could also be admitted against Layne.
Layne tries to minimize the import of his admissions in these calls, arguing that they do not evidence a conspiracy to sell the requisite amount of drugs, Pet'r Mem. at 12-13, but, as we have already addressed, see Section III.A.4(b) above, Layne specifically refers to a prospective customer who would "come for twelve and twenty-four." (SR 172). In addition, other circumstantial evidence, including the identity of the callers on the Rikers Phone Calls; the photos discovered on Owes's laptops and cell phone showing hundreds of dollars of cash spread out on a bed in a fan-like pattern; the plastic bags, memorial, and cell phones seized at Layne's apartment; the evidence that his co-defendants had possessed drugs by virtue of the seizure of drug-related evidence upon their arrests, further showed that Layne was part of a group that was actively selling narcotics during the time of the conspiracy.
Layne suggests that the trial judge improperly relied on the "the guilty pleas of nine defendants." Pet. at 8; Pet'r Mem. at 8, 9. The trial court's alleged reliance, however, is irrelevant to our analysis of whether the evidence was legally admissible.
In sum, we conclude that the prosecution met its burden of showing a prima facie case of conspiracy. The trial court thus properly admitted the co-conspirators' statements against him and did not violate New York law. Accordingly, Layne was not denied his right to due process and a fair trial through the admission of the tape recordings.
To the extent that Layne also challenges the admission of his co-conspirators' statements on confrontation clause grounds, see Pet. at 8; Resp't Mem. at 56-57, his claim fails because the confrontation clause only applies to "testimonial" statements, Crawford v. Washington, 541 U.S. 36, 53-54 (2004), and "[i]n general, statements of co-conspirators in furtherance of a conspiracy are non-testimonial," United States v. Logan, 419 F.3d 172, 178 (2d Cir. 2005) (citing Crawford, 541 U.S. at 56). The rare exception to this general rule is where a co-conspirator statement made in furtherance of a conspiracy also happens to be accusatory in nature, such as statements elicited by a police officer. See Logan, 419 F.3d at 178-79 (finding statements made to police officer were both testimonial and made in furtherance of conspiracy). Here, because the statements at issue were all made to co-conspirators and are not accusatory in nature, the confrontation clause does not apply.
C. Right to Be Present Claim
Layne claims his due process rights were violated when a portion of "voir dire" was conducted in his absence. Pet. at 9; Pet'r Mem. at 14.
1. Facts Regarding Layne's Presence During Voir Dire
Upon the consent of all parties, including Layne, jury selection at Layne's trial occurred in two phases. First, the court inquired into any scheduling issues or financial issues, and dismissed those with such issues; second, the trial court conducted the regular jury proceedings. (See 9/13 Tr. 5). The trial court proposed this method to expedite the selection of a jury, but also because the expected trial length of five to six weeks would generate many scheduling and financial issues which, from its perspective, would be easier to separately address. (Id. 3-6). During the first phase, the trial court warned the attorneys that it would be "just screening. You are not going to be talking to people," i.e., interviewing them as to any biases or their awareness of the case. (Id. 5). The trial court predicted this first phase would take between two to two and a half days, after which the remaining "pool of willing applicants" would submit a questionnaire and "jury selection" would begin. (Id. 7-8). The defense lawyers consented to this procedure because it would not "force anyone" to be a juror. (Id. 6). Layne's lawyer stated that Layne had agreed that Layne would "remain seated at the defense table while I approach the bench." (Id. 37).
On September 13, 2011, the first day of Layne's trial, the trial court screened one panel of potential jurors according to its proposed plan. (Id. 24-119). It appears Layne was present in court throughout the first day. The trial judge first asked in open court which members of the panel believed they could sit for a two-month-long trial without facing undue scheduling or financial burdens. (Id. 29-33). Then the judge took into the jury room behind the bench those panel members who had volunteered concerns about their ability to serve in order to inquire, in the presence of the attorneys, about those concerns. (Id. 39-119). Petitioner and his co-defendants were not present for these behind-the-bench inquiries. (Id.). On the second day of trial, the trial court followed the same procedure. (9/14 Tr. 122-236). This aspect of the jury selection is not at issue here.
On the morning of the third day, September 15, 2011, only three of five defendants were produced by the DOC. (See 9/15 Tr. 240-41). According to the trial judge, this occurred because "[t]here was a major search of the facility; occasioned by what, I don't know, but it [was] not individualized as to either of the absent defendants." (Id.). The two absent defendants were not identified. (Id.). The judge asked counsel whether the three who were present should nonetheless be brought out to court, but Layne's counsel and counsel for defendant Jonathan Hernandez objected. (Id.). The Court ruled that none of the defendants would be brought out "until we get all five of them," noting that "realistically, I don't need the defendants in the courtroom until 2 o'clock" when he expected the second phase of jury selection would begin. (Id.). Layne's counsel did not object to proceeding with the first phase of the jury screening process without Layne's presence. (Id.).
The morning's proceedings otherwise went forward in much the same way as the other two days. (9/15 Tr. 242-311). In open court, the trial court asked anyone who knew they could sit for trial to return to the courtroom at 2:15 for jury selection. (Id. 249-50). The trial court also excused in open court those jurors with clear impediments to service: anyone with child care responsibilities, anyone who would need to take vacation time or would not be paid for the length of their jury service, jurors with language difficulties, and a doctor. (Id. 250-65). The remaining panel members who had raised questions about their ability to serve were brought into the jury room behind the bench and questioned — in the presence of counsel — about their concerns. (Id. 265-311). Most of the panel members raised scheduling, health, or financial concerns. (Id.). Two, however, raised issues of bias. The first claimed that two of his relatives had been "unjustly convicted" following two separate jury trials and that as a result he "ha[d] no faith in the judicial system." (Id. 267-68). Defense counsel and the prosecution each asked one question to the juror, and then he was excused. (Id.). Another juror raised a similar issue, explaining that his brother had pled guilty to a crime he had not committed. (Id. 276-77). He was excused without questioning from counsel. (Id.).
By the end of the third morning, the trial judge considered the first phase of jury selection completed and advised counsel that the second phase — "the actual voir dire" — would begin that afternoon at 2:15. (Id. 311-13). The trial court explained, "At 2:15 I'm giving my introduction as if none of the last two and a half days have happened. It will be as if we are bringing people from a single jury room and I'm doing the beginning of jury selection." (Id.). All jurors who had not been excused were then called back to the courtroom for the beginning of the second phase of jury selection. (Id. 315). While the transcript does not indicate at what time Layne and the other defendants were brought back into the courtroom, Layne only challenges his absence during the "morning." See Pet. at 9; see also Pet'r Mem. at 14-15 (describing in "facts" section only the first phase of jury selection). Accordingly, we infer that Layne was present for the afternoon and the complete second phase of jury selection.
2. Right to Be Present
A criminal defendant has a right "to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings." Faretta v. California, 422 U.S. 806, 819 n.15 (1975). Such stages are referred to as "material stages" and they generally include the empaneling of the jury. Lewis v. United States, 146 U.S. 370, 373-76 (1892); accord Tankleff v. Senkowski, 135 F.3d 235, 246 (2d Cir. 1998). However, the right to be present applies "to the extent that a fair and just hearing would be thwarted by [the defendant's] absence, and to that extent only." Snyder v. Mass., 291 U.S. 97, 107-08 (1934). Put differently, a defendant has a constitutional right to be present at a portion of jury empanelment only "when [his or her] 'presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.'" Cohen v. Senkowski, 290 F.3d 485, 489 (2d Cir. 2002) (quoting Snyder, 291 U.S. at 105-06). Accordingly, while it is well-settled that a defendant "ha[s] a constitutional right to be present during [a] . . . substantive inquiry into juror qualification," Cohen, 290 F.3d at 490, because that stage "represents jurors' first introduction to the substantive factual and legal issues in a case," Gomez v. United States, 490 U.S. 858, 874 (1989), a defendant's rights are not violated through their absence during an "administrative empanelment process, . . . in which prospective jurors are permissibly questioned . . . on matters such as personal hardship in serving," Cohen, 290 F.3d at 490 (internal quotation marks omitted) (quoting Gomez, 490 U.S. at 874) (citing cases), because the defendant's presence does not relate to his "opportunity to defend against the charge," id. at 489 (quoting Snyder, 291 U.S. at 105-06); accord Fay v. People of State of New York, 332 U.S. 261, 271 (1947) ("we cannot find it constitutionally forbidden to set up administrative procedures in advance of trial to eliminate from the panel those who, in a large proportion of cases, would be rejected by the court after its time had been taken in examination to ascertain the disqualifications."); United States v. Greer, 285 F.3d 158, 167-68 (2d Cir. 2002); United States v. Williams, 927 F.2d 95, 96-97 (2d Cir. 1991). Thus, when evaluating a habeas petition based on a defendant's right to be present at a portion of jury questioning, a court must first determine whether the defendant was absent during a substantive portion of voir dire or rather during an "administrative empanelment process." Gomez, 490 U.S. at 874. Additionally, the right to be present is circumscribed by harmless error analysis. Rushen v. Spain, 464 U.S. 114, 117 n.2, 119-20 (1983).
A defendant may also waive his or her right to be present. See Taylor v. United States, 414 U.S. 17, 19-20 (1973). "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." New York v. Hill, 528 U.S. 110, 114 (2000) (citations omitted). A defendant's waiver of the right to be present falls into the latter category, as the Second Circuit has repeatedly found defense counsel may waive their client's appearance at trial. See Clark v. Stinson, 214 F.3d 315, 324-25 (2d Cir. 2000); Tankleff, 135 F.3d at 247 (finding waiver of right to be present at jury screening); Polizzi v. United States, 926 F.2d 1311, 1322-23 (2d Cir. 1991).
3. Analysis
The Appellate Division rejected Layne's claim that his right to be present was violated. This ruling was not an unreasonable application of clearly established Supreme Court law.
In this case, the express purpose of the first phase of the screening process was to "invite people to consider their schedules and their union's and their employer's ability and willingness to pay, and take those people who have the ability to and the willingness." (9/13 Tr. 5). The trial judge generally stuck to such inquiries, excusing during the first phase people with scheduling, health, or financial reasons from jury service. (9/15 Tr. 250-311). The trial court, however, also excused two jurors who said they had no faith in the criminal justice system. Layne claims that the excusal of all these jurors in his absence violated his constitutional right to be present. See Pet'r Mem. at 15-17.
The court's election to proceed in Layne's absence, even as to the two jurors excused for bias, did not represent a departure from clearly established Supreme Court law. As one case has noted, "it is not clearly established under federal law as determined by the Supreme Court that a defendant has a right to be present at sidebar voir dire" Walker v. Martuscello, 2016 WL 2732195, at *5 (S.D.N.Y. May 10, 2016) (citing cases). The defendant has pointed to no Supreme Court case suggesting there is such a right and we are aware of none. Moreover, Layne's counsel waived Layne's presence at the in camera questioning of potential jury members. (See 9/13 Tr. 37). And it is well-settled that counsel may waive the presence of defendant at sidebar questioning. See Tankleff, 135 F.3d at 247 (finding waiver of right to be present at jury screening); accord Mercardo v. Phillips, 2011 WL 1157617, at *8 (S.D.N.Y. Feb. 22, 2011); Grayton v. Ercole, 2009 WL 2876239, at *17 (E.D.N.Y. Sept. 8, 2009).
The one case Layne cites in support this claim, Lopez v. Warden, 1999 WL 511414 (S.D.N.Y. July 20, 1999), provides no support. Lopez rejected a petitioner's claim that "his constitutional rights were violated when he was excluded from sidebar discussions during jury voir dire before the start of his criminal trial," holding that "there is not now and never has been a right guaranteed in the federal Constitution that a defendant be present at sidebar voir dire." Id. at *1 (internal quotation marks omitted) (quoting Zaire v. Mitchell, 1996 WL 82391, at *3 (S.D.N.Y. Feb. 27, 1996)).
D. Jury Instruction Claim
Layne claims that his rights to a fair trial and to present a defense under the Due Process Clause of the Fourteenth Amendment were violated "when the trial court refused the defense request to instruct the jury of multiple conspiracies . . . pursuant to People v. Leisner." Pet. at 11. Layne argues that evidence existed of multiple conspiracies, contrary to the trial court's finding, and that it was error for the trial court to ground its conclusion otherwise in the plea of defendant Dashawn Davis to conspiracy. Id. The Appellate Division affirmed the trial court decision, finding that the trial court "properly denied" the jury instruction charge and that "[t]here was no reasonable view of the evidence that there was any conspiracy narrower in scope than the single conspiracy charged in the indictment such that the jury should have been instructed to acquit in the event that something other than a single integrated conspiracy was proven." Brown, 142 A.D.3d at 771.
1. Facts Relating to Jury Charge
Layne's counsel objected during a charging conference that, based upon the October 1, 2009 call between Layne and Dashawn Davis, the jurors could conclude that a small conspiracy to possess narcotics existed only between the two of them, separate from the charged conspiracies. (10/6 Tr. 1513, 1541-42). Layne's counsel argued that the jury instructions improperly made no reference to this small conspiracy and that they should have, given that the smaller conspiracy would involve no minors. (Id. 1513). The trial judge rejected the request, stating that "I don't think there is a reasonable view of the evidence in this case that would require me to charge a . . . conspiracy separate and apart from what we have here," reasoning that "in this case given the number of people and the close interaction with them removes any possibility that there is a separate conspiracy going on." (Id. 1542-43). The trial judge also noted that Dashawn Davis had already pled guilty to the central conspiracy charged in the indictment. (Id. 1543).
2. Governing Law On Jury Charges
The standard for establishing a due-process violation in a jury charge is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Waddington v. Sarausad, 555 U.S. 179, 191 (2009)); accord Estelle, 502 U.S. at 72. To obtain relief from an erroneous jury instruction, "it must be established not merely that the instruction is undesirable, erroneous, or even 'universally condemned,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment." Cupp v. Naughten, 414 U.S. 141, 146 (1973); accord Estelle, 502 U.S. at 72; Middleton v. McNeil, 541 U.S. 433, 437 (2004) ("[N]ot every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation."). Where a claim, like Layne's, is based on the failure to provide a requested instruction, the error claim is subject to an "especially heavy" burden, because "[a]n omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law." Henderson v. Kibbe, 431 U.S. 145, 155 (1977).
The Second Circuit has held that the three following questions must be answered in the affirmative prior to granting habeas relief for a failure to charge:
First, was the justification charge required as a matter of New York state law? Second, if so, did the failure to give the requested charge violate the standard set out in Cupp. Third, if so, was the state court's failure of such a nature that it is remediable by habeas corpus, given the limitations prescribed by 28 U.S.C. § 2254?Davis v. Strack, 270 F.3d 111, 124 (2d Cir. 2001); accord Jackson v. Edwards, 404 F.3d 612, 621 (2d Cir. 2005).
3. New York Law on Charging Separate Conspiracies
Under New York law, a trial court judge must instruct the jury on multiple conspiracies "whenever the possibility of more than one conspiracy is supported by a reasonable view of the evidence." People v. Leisner, 73 N.Y.2d 140, 150 (1989); see also United States v. Aracri, 968 F.2d 1512, 1520 (2d Cir. 1992) ("[A] multiple conspiracy charge is required whenever several conspiracies might be inferred from the evidence offered.") (citation and internal quotation marks omitted). The instruction should "describe explicitly the possibility of several conspiracies and instruct the jury that, in order to convict a given defendant, it must find that he was a member of the conspiracy charged in the indictment and not some other conspiracy." Aracri, 968 F.2d at 1520 (citation and internal quotation marks omitted); accord Leisner, 73 N.Y.2d at 150 ("Like the Federal courts," a multiple conspiracies charge "must be given explicitly recognizing the possibility of multiple conspiracies and directing an acquittal in the event that the jury concludes that something other than a single integrated conspiracy was proven."). Where the evidence does not show multiple conspiracies, a multiple conspiracies charge is not appropriate. See People v. Gutierrez, 130 A.D.3d 517, 518 (1st Dep't 2015).
Here, Layne's claim fails because the trial court correctly applied New York law in rejecting his request for a multiple conspiracies charge. While Layne's theory was that he was involved in a narrower conspiracy with Dashawn Davis, see Pet. at 11; Pet'r Mem. at 21-22, there was no reasonable view of the evidence that suggested this conspiracy differed from the one involving the drug-selling activities of Jeffrey Brown, Layne's two younger brothers, Afrika Owes, and the other co-conspirators. See supra Section III.A. That evidence included his own admissions in the Rikers Phone Calls and his numerous links to many members of the conspiracy, the admissions of his co-conspirators, and the evidence seized at Owes's residence and his residence. See Section III.B above.
In Leisner, a case charging landlords with a conspiracy to unlawfully force tenants out of their rent-controlled apartments, there was testimony tending to show that one defendant "had nothing to do with" and "did not participate in" a conspiracy to empty out a co-conspirator's buildings, and that the defendant "had no interest" in those buildings. 73 N.Y.2d at 150-51. Other testimony also showed that the co-conspirator had "no interest in" the defendant's buildings. Id. at 151. Thus, some evidence supported a theory that the defendant and co-conspirator agreed to narrower conspiracies concerning their respective buildings and interests, as opposed to the single, integrated conspiracy charged by the prosecution. Id. Here, Layne points to no testimony or other evidence tending to show, as in Leisner, that his involvement was limited to only a portion of the narcotics conspiracy and not the single, integrated conspiracy. See also Devison v. Cunningham, 2010 WL 5060789, at *21 (S.D.N.Y. Oct. 15, 2010) (no proof of multiple conspiracies); Martinez v. Miller, 2006 WL 3513646, at *8 (S.D.N.Y. Dec. 6, 2006) ("Given the extent to which the gang members' activities were intertwined, the trial court's denial of Petitioner's request for a multiple conspiracies charge cannot be deemed to have been an abuse of discretion."); accord Spigelman v. United States, 2012 WL 3594304, at *13-14 (S.D.N.Y. Aug. 21, 2012). Because there was no evidence of multiple conspiracies, the trial court did not err.
IV. MOTION FOR A STAY
Layne also moved this Court to stay his petition and hold it in abeyance pending his presentation of an additional claim to the state court. See Stay Letter; Stay Mem. That claim is contained in Layne's motion under N.Y. Crim. Proc. Law § 440.10 to vacate his conviction. See Section 440.10 Motion. In that motion, Layne claims ineffective assistance of counsel on the grounds that his trial counsel failed to investigate whether the prosecution followed New York City Department of Correction procedures in obtaining recordings of his phone calls made from Rikers Island, id. at 6, and that his trial counsel failed to object at trial to the foundation laid for the admission of the Rikers Phone Calls, id. at 11. His current habeas petition does not raise this claim.
District courts may stay a petition for habeas corpus when the petition presents a mix of exhausted and unexhausted claims and the petitioner seeks to present the unexhausted claims to a state court before returning to federal court for review of the perfected petition. Rhines v. Weber, 544 U.S. 269, 275-77 (2005). Layne, however, insists that he is not seeking to amend his petition Stay Mem. at 2, and thus Rhines provides no authority to stay the petition. Accordingly, the request for a stay must be denied for this reason alone.
Notably, if Layne moved to amend the petition to add the new claims, they would have to be dismissed as time-barred because their factual predicates do not relate to any claims in the existing petition and thus Layne would not be entitled to "relation back" under Fed. R. Civ. P. 15(c) for statute of limitations purposes. See Mayle v. Felix, 545 U.S. 644, 649-50, 657, 664 (2005). Because the filing of an amended petition would occur after the one-year limitations period in 28 U.S.C. § 2244(d)(1), the new claims would be time barred.
The respondent noted this point but did not address it on the merits because Layne insisted that he was not asking to amend his petition. Resp't Stay Reply at 2 n.1.
Even if we were somehow permitted to apply Rhines to Layne's petition, the request for a stay would have to be denied. Rhines allows a district court to grant a stay only in cases where the district court determines (1) "there was good cause for the petitioner's failure to exhaust his claims first in state court"; and (2) that the petitioner's proposed claim is not "plainly meritless." 544 U.S. at 277. Additionally, the petitioner must not have engaged in abusive or dilatory litigation tactics. Id. at 278. As the moving party, Layne has the burden of showing "good cause" for his failure to exhaust his claims first in state court. See Perkins v. LaValley, 2012 WL 1948773, at *1 (S.D.N.Y. May 30, 2012); accord Ortiz v. Attica Corr. Facility, 2017 WL 7736415, at *11 (S.D.N.Y. Nov. 21, 2017).
Here, Layne fails to show "good cause" for not having raised these claims before. Layne refers vaguely to not having received "documentation" regarding the telephone calls until after he had already submitted his petition. Stay Mem. at 1. But he gives no explanation of how he acted diligently to obtain this material in the more than six years since he was convicted. See, e.g., Bradley v. LaClair, 599 F. Supp. 2d 395, 407 (W.D.N.Y. 2009) (denying stay where document that served as factual predicate for new claim could have been discovered earlier "[w]ith due diligence"). His references to being unrepresented se do not satisfy the "good cause" requirement. See, e.g., Defreitas v. Kirkpatrick, 2017 WL 878445, at *2 (N.D.N.Y. Mar. 6, 2017) ("Petitioner's apparent arguments that he knew of the claims, but could not prove them, and his pro se status, are insufficient to establish good cause."). Because we cannot find "good cause" for failing to act earlier to add the new claim, he would not be entitled to a stay under Rhines.
Layne's motion for a stay should therefore be denied.
V. CONCLUSION
For the foregoing reasons, Layne's petition for a writ of habeas corpus (Docket # 2) and motion for a stay (Docket # 21) should be denied.
PROCEDURE FOR FILING OBJECTIONS TO THIS
REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed. R. Civ. P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court, with copies sent to the Hon. Analisa Torres at 500 Pearl Street, New York, New York 10007. Any request for an extension of time to file objections or responses must be directed to Judge Torres. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72; Fed. R. Civ. P. 6(a), 6(b), 6(d); Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010). Dated: September 14, 2018
New York, New York
/s/_________
GABRIEL W. GORENSTEIN
United States Magistrate Judge Copy sent to: Jaquan Layne
11-A-5702
Sing Sing Correctional Facility
354 Hunter Street
Ossining, NY 10562-5442 Counsel by ECF