Opinion
20-CV-5067 (MKV) (BCM)
10-01-2023
JOVANNY PAULINO, Petitioner, v. MARK MILLER, Superintendent, Green Haven Correctional Facility, Respondent.
REPORT AND RECOMMENDATION TO THE HON. MARY KAY VYSKOCIL
BARBARA MOSES, United States Magistrate Judge.
Petitioner Jovanny Paulino, proceeding pro se, seeks a writ of habeas corpus pursuant to 22 U.S.C. § 2254. Paulino is serving an indeterminate term of 25 years to life after being convicted by a jury of murder in the second degree in violation of N.Y. Penal Law (PL) § 125.25[1]. See Pet. (Dkt. 1) at 2. He now claims that both his trial counsel and his appellate counsel were constitutionally ineffective. For the reasons that follow, the petition should be denied.
The current Superintendent of the Green Haven Correctional Facility, where petitioner is serving his sentence, is Mark Miller. Pursuant to Fed.R.Civ.P. 25(a), Miller is substituted as the respondent in this action.
I.BACKGROUND
A. Factual Background
On January 11, 2014, petitioner, then 25 years old, was working at a Fairway Market warehouse in Manhattan. See Tr. at 42:5, 63:22, 119:5. Petitioner's job was to pack dried fruits and nuts for sale in Fairway Market stores. He and other packers worked side-by-side at tables to weigh and label packages of fruits and nuts, which they then loaded into boxes for shipment. Id. at 42:8, 46:23-47:17, 49:6-19. Petitioner and the other employees in the dried fruits and nuts department shared a workspace with the employees in the cheese department, who cut cheese using knives. See Id. at 42:15-25; 309:12-21. Cheese workers stored their knives in a rack by the sink at their workstation. Id. at 42:19-20, 309:20-23. The cheese knives were described by one witness as "twelve inch kitchen knives," id. at 42:25, and by another as "about seven or eight inches, all different sizes, small, medium, and large." Id. at 310:9-11. Employees in the dried fruits and nuts department used box cutters, but did not use the cheese knives. Id. at 59:14, 66:1-3.
"Tr." refers to the transcript of petitioner's trial. (Dkt. 19.) "V.D. Tr." refers to the voir dire transcript, which includes the argument on defendant's limine motions, and is continuously paginated across two docket entries. (Dkts. 17, 18.) "Sent. Tr." refers to the transcript of petitioner's sentencing hearing. (Dkt. 19.)
Two different witnesses testified that they saw a cheese knife at petitioner's workstation. Kevin McCray, who worked in the dried fruits and nut department, noticed the knife there a "couple of weeks prior" to January 11, 2014. Tr. 58-59:25. Anthony Acosta, who worked in the cheese department, noticed it "sometime during the day" on January 11, 2014, or "within a few days before that." Id. at 316:12-24. Acosta noticed the knife because "really, it's not supposed to be there, it should be in the rack." Id. at 317:8-9.
January 11 was a Saturday, which was normally McCray's day off, but he was working that day to earn overtime pay. See Tr. at 43:1-7. McCray had previously called a union representative to register a complaint that overtime hours were being distributed unevenly by his manager. McCray's manager was Juan Pablo Paulino, petitioner's uncle. See Id. at 43:15-44:16, 313:1. The union representative had forwarded the complaint to Juan Pablo Paulino (anonymously, according to McCray's understanding). Id. at 44:2. Petitioner, however, suspected a different co-worker, Pedro Payero-Valerio, of "calling the office complaining about hours," and in the early afternoon, as other co-workers listened, he began arguing with Payero-Valerio, "calling him a snitch" and telling him that he would "fuck him up," that he was going to "wait for him outside," and - at one point, according to McCray and Acosta - that he would "kill him." Id. at 53:14-18, 317:15. Payero-Valerio responded calmly, saying, "you are not going to kill nobody." Id. at 53:25-54:1. However, Payero-Valerio switched workstations with McCray, placing him farther away from petitioner. Id. at 52:9-12. The argument subsided after approximately 15 minutes. Id. at 54:8-10.
At 1:25 p.m. - shortly after the argument - petitioner and Payero-Valerio, along with other co-workers, took their lunch break. See Tr. at 54:22. Petitioner left first, telling Payero-Valerio that he would be waiting for him outside, and walked out with "a scarf wrapped up in his hand." Id. at 55:5-56:18. Security camera footage shows that petitioner walked across the street to his car, a gray Infiniti, then returned and stood outside the warehouse door until Payero-Valerio came out, at 1:29 p.m., with two other co-workers, Jose and Manuel Prado. See Id. at 161:12-162:1, 212:8-17, 222:18-223:2. Petitioner said to Payero-Valerio, "we are going to take care of this," id. at 154:11-12, at which point "they faced each other, they argued, and they started to hit each other." Id. at 154:7-8; id. at 155:6. The Prado brothers attempted to break up the fight, see Id. at 155:8, 165:4, 198:2, 213:4-7, but petitioner disregarded their efforts and "freed himself," Payero-Valerio removed his jacket, and the two combatants "went back to fight." Id. at 155:11-13, 186:4-11, 198:5, 213:24-214:16.
Both of the Prado brothers observed petitioner's fist strike Payero-Valerio in the lower left abdomen, after which Payero-Valerio immediately grabbed his stomach, staggered for several steps, and collapsed on the ground. See Tr. at 155:14-156:3, 165:5, 215:12-14, 217:10-14. Quickly after striking Payer-Valerio in the abdomen, petitioner ran across the street to his car, got in, and drove away. See Id. at 156:13-57:18, 216:1-217:2, 354:11-23.
Freddy Potter, a cheese department worker, came out of the warehouse just in time to see Payero-Valerio "fall" and petitioner run across the street to his car. Tr. at 347:17-22. Potter lifted up Payero-Valerio's shirt, which was ripped, and "saw the hole" in his abdomen. Id. at 347:25-349:4. There "wasn't a lot of blood," but it was "a big hole, like something went inside, I don't know exactly what." Id. at 350:1-7. Moments later, Acosta came out of the warehouse to see petitioner "running towards his car" and Payero-Valerio "on the floor," wounded. Id. at 319:20-320:10, 16-17, 321:8-12. Acosta held Payer-Valerio's hand and "told him to fight," but he could not respond. Id. at 320:11. Payero-Valerio vomited "a pink fluid" and struggled to breathe. Id. at 320:12-20. Potter called 911. Tr. at 350:12-18.
None of the eyewitnesses to the fight or its aftermath saw a weapon in either combatant's hands, see Tr. at 157:21-25, 217:19-20, or on the ground after petitioner fled. See id. at 166:13-17, 218:14-19, 320:25-321:7, 350:19-351:2.
When police officers and paramedics arrived, they found Payero-Valerio lying face up on the sidewalk, unresponsive, with a stab wound in the lower left abdomen. Tr. at 119:24-120:11. The hole was "three to four inches long" with "[e]ither stomach fat or an internal organ . . . protruding out of the wound." Id. at 120:13-15. Paramedics detected no pulse or eye movement and observed the victim take an agonal breath, which is "pretty much when your body is shutting down." Id. at 410:1-13. Paramedics, including an advanced life support unit, performed CPR, intubation, and "drilling" - the insertion of an IV into a bone - which was necessary because Payero-Valerio's veins were sunken as his body diverted blood from his extremities to his vital organs. Id. at 410:22-413:11. However, he never regained consciousness. Id. at 413:19-21. Payero-Valerio was transported to St. Luke's hospital, where he was pronounced dead. See Id. at 413:24-14:24.
An autopsy later showed that Payero-Valerio died as a result of a stab wound to the torso that punctured the aorta, which is "a very large artery that comes off the heart," causing him to hemorrhage approximately half of his blood supply into the abdomen. See Id. at 242:17-20, 245:5-9, 253:18-21; 254:19-20. The depth of the stab wound was approximately six to six and a half inches. Id. at 246:8-10.
Detective Wilder Sanchez of the New York Police Department's 30th Precinct Detective Squad arrived at the scene at around 1:50 p.m. See Tr. at 378:20-24, 393:5-24. He and other police officers interviewed witnesses, who described petitioner's car and provided his home address. See Id. at 379:3-80:11. When officers interviewed McCray, he stated that he had observed a cheese knife at petitioner's workstation, but when he and the officers reached petitioner's workstation, "there was nothing there." Id. at 61:20-62:3.
Detective Sanchez went to petitioner's apartment, where he observed "clothes all over the place" and "a small table with a small metal safe open with personal papers inside," including a passport and a birth certificate - but not petitioner's passport. Id. at 381:2-82:2. Telephone records, introduced at trial, showed that petitioner called his wife several times immediately after the stabbing, beginning at 1:34 p.m., and that she then placed a seven-minute call to JetBlue Airlines. See Tr. at 28:7-15, 406:6-21, 489:17-23. However, around 9:00 p.m. that same evening, petitioner "turned himself in with a lawyer" at the 30th Precinct. Id. at 393:23-94:10. The murder weapon was never found.
On January 27, 2014, a grand jury indicted petitioner and charged him with one count of murder in the second degree. See Answer and Appendix (App.) (Dkt. 15) Ex. H, at ECF p. 11.
B. Limine Motions
Jury selection was scheduled to commence on July 5, 2016, in New York Supreme Court, New York County, before Robert Mandelbaum, J.S.C. See V.D. Tr. at 1. Before that, petitioner's trial counsel, Paul Feinman, made five motions in limine, two of them successful.
First, counsel secured a ruling preventing the People from eliciting testimony from McCray that petitioner was "always yelling," or any other testimony that could show a "propensity to anger" or "a predisposition of [petitioner] arguably to act in a manner charged in this case." V.D. Tr. at 3:10-5:13.
Second, counsel obtained a ruling prohibiting the People from eliciting any testimony as to "the reason the deceased gave for why he wanted the work station moved" on January 11, 2014. V.D. Tr. at 13:16.
C. Trial
The case was tried to a jury on July 6, 7, 8, 11, and 12, 2016. The People called twelve witnesses, including petitioner's co-workers, police officers, a paramedic, a representative of T-Mobile, and medical examiner Dr. Corinne Ambrosi, who testified as to the autopsy results and confirmed that the cause of Payero-Valerio's death was the deep stab wound to his torso, which punctured his aorta. Tr. at 254:12-20. Asked what type of instrument would cause such an injury, Dr. Ambrosi, replied, "A knife." Id. at 253:22-24. Shown a photograph of a Fairways cheese knife, Dr. Ambrosi testified that Payero-Valerio's injuries were consistent with a knife of that shape. Id. at 254:5-11.
Petitioner's counsel made no opening statement and called no witnesses. When cross-examining the prosecution's witnesses, counsel focused on the question of intent, eliciting testimony from several of petitioner's co-workers that they did not hear petitioner threaten Payero-Valerio, although they were in the same room when those threats were allegedly made. See Tr. at 174:15-75:7, 185:1-16, 288:14-89:3, 303:1-05:1. When cross-examining McCray (who testified on direct that he heard petitioner threaten to "kill" Payero-Valerio, id. at 53:25), counsel questioned him about his phone call to the union representative, and used that incident to suggest that McCray resented petitioner - for getting more overtime opportunities than McCray did - and therefore may have exaggerated or even fabricated his testimony, including about the threats and about having seen a knife at petitioner's work station. See Id. at 93:9-94:13, 99:5-104:20. Counsel also elicited from McCray that box cutters were accessible at the workstations and that Payero-Valerio had been using them on January 11, 2014, thereby suggesting that Paulino might have reasonably feared that Payero-Valerio was armed. See Tr. at 70:11-74:24. When cross-examining Dr. Ambrosi, counsel elicited testimony that the lower left abdomen, where petitioner stabbed Payero-Valerio, contains "mostly intestines," and that "it's possible for a sharp object to go into the left lower quadrant and not hit the aorta," which is "at least six to six-and-a-half inches" from the surface of the skin. Id. at 255:16-56:2.
At the conclusion of the People's case, attorney Feinman moved to dismiss all charges on the ground that "the People's evidence failed to prove each and every element of the charges in question beyond a reasonable doubt." Tr. at 418:8. The court summarily denied the motion. Id. at 418:15.
Defense counsel then requested that the court give the jury a justification (self-defense) instruction, see Tr. at 421:23-31:20, 435:7-36:25, but Justice Mandelbaum declined, stating that "no reasonable view of the evidence . . . would support the contention that the deceased was the initial aggressor in terms of the use of deadly physical force" or that petitioner "had a reasonable basis for believing that he was in imminent danger of deadly physical force being used against him," even if petitioner subjectively believed he was in danger because "he had seen the box cutter there or because he knew that box cutters exist at the work site." Id. at 438:4-39:20. However, Justice Mandelbaum granted counsel's request that he charge the jury on the lesser included offense of manslaughter in the first degree, in violation of PL § 125.20[1]. See Id. at 441:24.
In his summation, attorney Feinman conceded that petitioner struck Payero-Valerio with a sharp instrument, and that Payero-Valerio died as a result, see Tr. at 452:6-14, but asked the jury to focus on "the key point in this case," namely, "whether when Mr. Paulino used that sharp instrument, he used it with intent to take a life or whether he used it with intent to cause serious physical injury," id. at 454:1-4, in which case petitioner would be guilty of manslaughter rather than murder. With respect to "the strongest evidence presented against Mr. Paulino" - the death threat that petitioner allegedly made before taking his lunch break - counsel noted that only two witnesses said they heard that threat, while four others, who were in the same room, said they did not. Id. at 454:25-58:22. Petitioner's attorney then sought to undermine the credibility of the two witnesses who reported hearing the death threat - McCray and Acosta - describing their criminal records, inconsistencies in their testimony, and McCray's potential bias against petitioner because "he was upset enough about not getting the extra work hours enough to file a complaint with his union," and "the person denying his work hours was [Paulino's] uncle." Id. at 459:21-62:18. Counsel further argued the nature of the assault - a single thrust in an area of the body that, according to the medical examiner, was not necessarily particularly vulnerable - bolstered the conclusion that petitioner did not intend to kill Payero-Valerio, but only to injure him. See Id. at 464:7-66:19.
On July 12, 2016, after deliberating for approximately one hour, the jury convicted petitioner of murder in the second degree. See Tr. at 527:13-28:8. On July 20, 2016, attorney Feinman submitted a sentencing memorandum seeking the minimum sentence allowed by law for second-degree murder, which was 15 years to life. App. Ex. P, at 6. On August 5, 2016, Justice Mandelbaum sentenced petitioner to 25 years to life. See Sent. Tr. at 23:21-22.
D. Petitioner's Direct Appeal
Petitioner timely appealed to the Appellate Division, First Department, represented by attorney Robert S. Dean of the Center for Appellate Litigation. Petitioner raised three points on appeal. First, he argued that the evidence of intent was legally insufficient for a second-degree murder conviction or, in the alternative, that the jury's verdict was against the weight of the evidence. See App. Ex. A (App. Br.) (Dkt. 15-1) at 15. He supported this argument with many of the same points that attorney Feinman made in his summation, including that petitioner stabbed the victim only once, "in the heat of a fist fight," and in an area of the body "containing mostly intestines," id., and that the testimony regarding petitioner's threat to kill the decedent was "unreliable." Id. at 20. Appellate counsel acknowledged, however, that trial counsel failed to preserve the issue of the sufficiency of the evidence regarding intent. Id. at 25-26. Consequently, petitioner asked the Appellate Division either to consider "the sufficiency of the People's evidence in the interest of justice" or, in the alternative, to reverse petitioner's conviction "because his counsel was ineffective for failing to preserve the sufficiency of the People's evidence regarding Mr. Paulino's intent," thus denying petitioner his constitutional right to the effective assistance of counsel. Id.
"[A] state prisoner who alleges that the evidence in support of his state conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt has stated a federal constitutional claim," which is cognizable on habeas review if properly exhausted. Jackson v. Virginia, 443 U.S. 307, 321 (1979). However, a claim that the verdict was "against the weight of the evidence" presents only a question of state law, arising under New York Criminal Procedure Law (CPL) § 470.15[5], for which habeas review is not available. See, e.g., Ex parte Craig, 282 F. 138, 148 (2d Cir. 1922) ("a writ of habeas corpus cannot be used to review the weight of evidence"), aff'd, 263 U.S. 255 (1923); Garrett v. Perlman, 438 F.Supp.2d 467, 470 (S.D.N.Y. 2006) ("Unlike a sufficiency of the evidence claim, which is based upon federal due process principles, a weight of the evidence claim is 'an error of state law, for which habeas review is not available.'") (quoting Douglas v. Portuondo, 232 F.Supp.2d 106, 116 (S.D.N.Y. 2002)).
Second, petitioner argued that evidence about the presence of knives in the warehouse - including the testimony concerning a knife at petitioner's workstation - "should not have been admitted at trial," because "[o]nly blind conjecture linked the evidence concerning the knives kept in the warehouse to Mr. Paulino or to the alleged crime." App. Br. at 27-28. Here, too, appellate counsel argued that "[i]f the Court finds that this issue was unpreserved, then it should reach it in the interest of justice," or, alternatively, "find that counsel was ineffective for failing to specifically object to the People's irrelevant evidence." Id. at 30.
Third, petitioner argued that his sentence was excessive because he was a hardworking family man with no criminal history. App. Br. at 33.
On May 9, 2019, the First Department unanimously affirmed petitioner's conviction and sentence. People v. Paulino, 97 N.Y.S.3d 863, 172 A.D.3d 488 (1st Dep't 2019). The court held that petitioner's legal insufficiency claim was unpreserved, and declined to review it in the interest of justice, but, "as an alternative holding," rejected the legal insufficiency claim "on the merits." 97 N.Y.S.3d at 863, 172 A.D.3d at 489. The court also found that the verdict was not against the weight of the evidence, explaining that "[t]he totality of defendant's conduct supports the inference that, at least at the moment he stabbed the victim in the abdomen, he did so with homicidal intent." Id. Next, the court held that petitioner "failed to preserve his challenges to evidence that he had access at his workplace to knives of the type that could have been used in the homicide," and again declined to review those challenged "in this interest of justice," but, "[a]s an alternative holding," concluded that "the court's evidentiary rulings were correct." Id. The appellate court then "considered and rejected defendant's ineffective assistance of counsel claims relating to the lack of preservation." Id. Finally, the court "perceive[d] no basis for a reduction of sentence." Id.
On May 13, 2019, petitioner sought leave to appeal to the New York Court of Appeals, requesting that it "review all of the issues in defendant-appellant's briefs, including all of the State and Federal Constitutional issues that he presented to the Appellate Division." See App. Ex. E. On July 8, 2019, the Court of Appeals denied leave. People v. Paulino, 106 N.Y.S.3d 682, 130 N.E.3d 1292 (N.Y. 2019) (Table).
E. Petitioner's Collateral Attacks on the Judgment
In pro se papers dated October 29, 2018, petitioner moved the trial court to vacate the judgment against him, pursuant to CPL § 440.10, on the grounds that his indictment did not bear "[t]he signature of the foreman or acting foreman of the grand jury," rendering it jurisdictionally defective. App. Ex. H (Dkt. 15-8), at 2-3. Petitioner also contended that his trial counsel's "unjustifiabl[e]" failure "to discern this substantive constitutional claim from the record . . . effectively deprived defendant of his Sixth Amendment right to the effective assistance of counsel." Id. at 3. On January 10, 2019, Justice Mandelbaum denied the motion, characterizing the signature claim as "baseless" and ruling that it "must be raised on direct appeal, since sufficient facts appear on the record to permit review." App. Ex. I (Dkt. 15-9).
In pro se papers dated June 9, 2020 (after he had exhausted his direct appeal), petitioner moved again to vacate the judgment pursuant to CPL § 440.10, this time on the basis that he received ineffective assistance of counsel at trial because "counsel filed an ill prepared motion to lodge a meritorious sufficiency challenge," and "did not argue his client's obvious defective CPL 730 evaluation for reason that defendant's mental status at time of crime and/or at trial may be insufficient, by law, to stand trial." App. Ex. J (Dkt. 15-10), at 4. CPL Art. 730 governs the psychiatric examination of a defendant to determine whether he is "incapacitated," CPL § 730.30[1], in which case he must be committed to a psychiatric hospital or other institution for "care and treatment." CPL § 730.40[1]. Petitioner argued that his trial counsel's failure to preserve an objection to the sufficiency of the evidence, coupled with his failure to argue petitioner's incapacitation, deprived him of the effective assistance of counsel. Id. at 5. In his supporting affidavit, petitioner claimed to have "an obvious mental disability" that "may not be masked" by his "non-English speaking capability," such that he "may not have been legally, reasonably fit to stand trial[.]" Id. at 6. However, plaintiff did not explain the nature of his mental disability. Nor did he provide any facts suggesting that attorney Feinman knew or should have known that his client had a mental disability.
On August 12, 2020, Justice Mandelbaum denied the motion in reliance on CPL § 440.10[3][c], ruling that petitioner "was in a position adequately to raise each of the grounds and issues underlying his present claims" in his first CPL § 440.10 motion. App. Ex. K (Dkt. 15-11), at ECF p. 4.
In pro se papers dated August 24, 2020, petitioner moved for leave to appeal Justice Mandelbaum's second CPL § 440.10 denial to the Appellate Division. See App. Ex. L (Dkt. 15-12). On July 12, 2021, a single justice of the Appellate Division, First Department denied the application, ruling that there was "no question of law or fact presented" that could provide grounds for appeal. (Dkt. 23 at ECF p. 3.) Because "no application for leave to appeal pursuant to CPL 460.20 will lie from an order of a single Justice of the Appellate Division denying leave to appeal to that Court pursuant to CPL 460.15," People v. Frazier, 24 N.Y.3d 1200, 27 N.E.3d 852 (2015) (summary order), no further appellate relief was available to petitioner with respect to his second CPL § 440.10 motion.
In the meantime, on November 10, 2020, petitioner filed a pro se petition for a writ of error coram nobis, see App. Ex. N (Coram Nobis Pet.) (Dkt. 15-14), alleging that he received constitutionally defective representation on his direct appeal, because attorney Dean's brief "was devoid of appealable issues" and "overlook[ed] issues that would be viewed as meritorious." Coram Nobis Pet. at 1-2. Specifically, petitioner asserted that his appellate counsel "failed to persuasively argue defense attorney performance was constitutionally inadequate," id. at 3, failed to raise the issue of "defendant's disabilities or inability to meaningfully participate in his own defense at trial," id. at 4, and failed to challenge the fairness of his trial on the ground that the proceedings "for a 'non-English speaking' defendant" violated his 14th Amendment due process rights. Id. at 5.
In New York, a coram nobis petition, addressed to the Appellate Division, is "the appropriate remedy for ineffective assistance of appellate counsel." Sweet v. Bennett, 353 F.3d 135, 142 (2d Cir. 2003).
On January 26, 2021, the Appellate Division, First Department summarily denied the coram nobis petition. (Dkt. 21 at ECF p. 3.) Paulino applied for leave to appeal to the Court of Appeals, but on April 26, 2021, the Court of Appeals denied the application. People v. Paulino, 36 N.Y.3d 1123, 169 N.E.3d 579 (2021) (summary order).
F. The Habeas Petition
In his pro se petition for a writ of habeas corpus, dated June 12 and filed June 30, 2020, petitioner lists four overlapping grounds for relief: First, he contends that he received ineffective assistance of counsel at trial because his trial counsel failed to investigate and prepare a motion challenging the sufficiency of the evidence, which would have preserved his "constitutional claims." Pet. at 4-5. Second, he asserts that he received ineffective assistance of counsel on appeal because his appellate counsel submitted a brief that omitted "appealable state and federal claims that were/are available through required investigation, research, and compliance with Strickland standards." Id. at 5. Third, petitioner repeats (without further elaboration) that he was deprived of competent counsel at trial and on appeal. Id. at 6. Fourth and finally, petitioner contends that his appellate attorney raised "unpreserved" grounds on direct appeal "that were without constitutional authority," requiring "further development to cure a meaningless appeal brief." Id.
Although his specific complaints about his appellate counsel are somewhat difficult to parse, petitioner appears to fault attorney Dean for raising unpreserved and/or state law claims on direct appeal, as opposed to claims that would be cognizable in a later federal habeas action. See Pet. at 6 (appellate counsel raised "'unpreserved' grounds for direct appeal that were without constitutional authority"); id. at 9 (appellate counsel "abandon[ed]" Paulino's "right to an effective and meaningful direct appeal to the federal district court"); id. at 13 (appellate counsel based the direct appeal on "'unpreserved' grounds," and submitted a brief that "on its face, would 'not' be cognizable for habeas relief"); id. at 16 (appellate counsel "raised 'unappealable' grounds on direct appeal, resulting in the forfeit of his client's meaningful appeal"). Petitioner also criticizes attorney Dean for "failing to argue defense attorney's inadequacy." Id. at 8; see also id. at 17 (appellate counsel "noticed and then discarded" this issue for "weaker and unpreserved claims"). Construed liberally, the petition can also be read to claim either that trial counsel was ineffective because he should have sought a CPL Art. 730 hearing for petitioner or that appellate counsel should have argued that trial counsel was ineffective because he failed to seek a CPL Art. 730 competency hearing for petitioner. See id. 8 (petitioner "was tried and convicted without 'legal' competency hearing"); id. at 11 (asserting that appellate counsel should have included "defendant's alleged, questionable mental capacity, at the time of commission of crime, and the trial and appeal proceedings"); id. at 17 (among the issues that appellate counsel failed to "perfect" was trial counsel's "'unprofessional error' in failing to prepare motion or evaluate defendant-client's mental status to stand trial").
In his opposition brief, respondent argues that (as of the date of the opposition) petitioner had not yet exhausted two of his claims: (i) the claim that his appellate attorney was ineffective, raised in his coram nobis petition; and (ii) the claim that his trial counsel was ineffective because he "failed to raise arguments concerning petitioner's competence," articulated for the first time in petitioner's second CPL § 440.10 motion. See Resp. Opp. (Dkt. 16) at 20-21.
As discussed in Part II.B, infra, the former claim is now exhausted, while the latter claim (to the extent petitioner intends to raise it in this Court) is now procedurally barred.
Turning to the merits of the ineffective assistance claims, respondent contends that petitioner received "excellent representation," both at trial and on appeal. Resp. Opp. at 28. "Faced with undeniable proof that petitioner fatally stabbed Pedro Payero-Valerio," respondent states, attorney Feinman "implemented a two-pronged strategy." Id.
First, counsel attempted to establish that there was a reasonable basis to conclude that petitioner's use of deadly physical force had been justified in his own defense. Alternatively, counsel challenged the proof that petitioner had intended to kill Payero-Valerio in an effort to establish that petitioner was guilty of no more than the lesser offense of first-degree manslaughter.Id. Feinman implemented this strategy through his limine motions, his cross-examination of the People's witnesses, his (unsuccessful) request for a justification instruction, his (successful) request for a lesser included offense instruction, and his closing argument. Id. at 29-31. "All told," respondent states, "it is clear that trial counsel made a spirited defense in the face of overwhelming evidence." Id. at 31.
Respondent concedes that Paulino's trial counsel "made only a general motion for a trial order of dismissal that was not specific enough to preserve a question of law for appellate review," id. at 33, but argues that this was not a lapse, but rather a judgment that counsel needed "to maintain his credibility in front of the court and jury." Id. Rather than arguing, vainly, "that no rational person could conclude that petitioner had intended to kill Payero-Valerio," counsel "cannily saved for closing arguments his contentions concerning the credibility of testimony about petitioner's threats and the proper inferences to be drawn from the proof." Id. at 34.
Petitioner's complaints about his appellate counsel "fall even wider of the mark," according to respondent, because attorney Dean did not in fact raise any "unappealable" issues. Resp. Opp. at 34. Respondent notes that the Appellate Division possesses "expansive power" to reach even unpreserved issues "in the interest of justice," see People v. Ventura, 17 N.Y.3d 675, 681, 958 N.E.2d 884, 887 (2011), and is also authorized to "review the weight of the evidence" - which it did in this case - regardless of whether the legal sufficiency argument was formally preserved. Resp. Opp. at 34-35. Therefore, respondent concludes, both arguments - although ultimately unsuccessful - were worth making on appeal, as was the parallel argument that trial counsel was ineffective because he failed to preserve the legal sufficiency claim. Id. at 35-36.
Lastly, respondent argues that neither petitioner's trial counsel nor his appellate counsel were ineffective for failing to raise the issue of his mental competency, because nothing in the record supports his late-breaking claim that he had "an obvious mental disability," App. Ex. J, at 6, that rendered him either unable, on January 11, 2014, to appreciate the "nature and consequences" of his conduct or that "such conduct was wrong[,]" see PL § 40.15; or unable, at the time of trial, "to understand the proceedings against him or to assist in his own defense," see CPL § 730.10[1]. Resp. Opp. at 40. To the contrary: respondent points out that at the time of the homicide, Paulino was married and gainfully employed, with no criminal history and - according to his sentencing memorandum, see App. Ex. P, ¶¶ 11, 26 - no history of mental illness. Resp. Opp. at 40-41.
Respondent further notes that lack of English language skills "is not the type of competency addressed by CPL article 730," Resp. Opp. at 43, and in any event that Paulino's lack of English fluency did not in fact prevent him from assisting in his defense, as he had the benefit of Spanish interpreters throughout the trial, and the transcript reveals numerous "instances of petitioner conferring with counsel" and participating in the trial with the assistance of those interpreters. Id.; see, e.g., Tr. at 88:4, 116:20, 231:8, 270:10, 339:18, 345:15, 416:16.
In reply, petitioner states - much more clearly than in his original petition - that his trial counsel was ineffective for failing to "request his client be afforded a competency examination," and that appellate counsel was similarly ineffective for failing to "raise this issue on direct appeal." Pet. Reply (Dkt. 20) at 4. Once again, however, petitioner fails to explain the nature of his alleged mental disability or provide any hint as to why either of his attorneys - or the trial judge - should have suspected that he was unfit to stand trial.
II. DISCUSSION
A. Timeliness
Under 28 U.S.C. § 2244, as amended by the Antiterrorism and Effective Death Penalty Act (AEDPA), a petitioner must file his habeas petition within one year of the date his conviction becomes "final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). Petitioner Paulino met that deadline. The New York Court of Appeals denied his request for leave to appeal from the First Department's affirmance of his conviction on July 8, 2019. People v. Paulino, 106 N.Y.S.3d 682, 130 N.E.3d 1292. The conviction became final 90 days later, on October 7, 2019, when Paulino's time to file a petition for certiorari to the United States Supreme Court expired. See Williams v. Artuz, 237 F.3d 147, 150-51 (2d Cir. 2001). Paulino timely filed his habeas corpus petition on June 20, 2020, less than one year later.
B. Exhaustion
Exhaustion of state remedies is a condition precedent to federal habeas relief. 28 U.S.C. § 2254(b)(1)(A). A petitioner satisfies the exhaustion requirement by fairly presenting each of his claims to the highest state court available to him before presenting them to the federal court. Baldwin v. Reese, 541 U.S. 27, 29 (2004). To fairly present a claim, a petitioner must identify both the facts that entitle him to relief, Picard v. Connor, 404 U.S. 270, 276-77 (1971), and the federal constitutional basis for the claim, Duncan v. Henry, 513 U.S. 364, 365-66 (1995), thereby giving the state courts "a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
If a petitioner has failed to exhaust his claims in state court, but no longer has a procedural mechanism to do so, his claims are deemed exhausted but "procedurally defaulted" (or "procedurally barred"), precluding federal habeas review. Coleman v. Thompson, 501 U.S. 722, 728, 744 (1991). As the Supreme Court explained in Coleman, "a habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance." Id. at 731-32; accord Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014) ("[I]f the state prisoner fails to exhaust his state remedies in a manner in which, were he to return to the state courts with his unexhausted claim, those courts would find the claim barred by the application of a state procedural rule, 'we must deem the claim procedurally defaulted.'") (quoting Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001)) (internal quotation marks omitted).
A procedurally defaulted claim must be dismissed with prejudice, unless the petitioner can demonstrate "cause and prejudice," that is, "cause" for his failure to raise the claim in compliance with state law, coupled with "prejudice" as a result of the alleged constitutional violation, or, in the alternative, a "fundamental miscarriage of justice," that is, that petitioner is actually innocent of the crime for which he was convicted. Coleman, 501 U.S. at 747-48. To establish "cause" for a procedural default, the petitioner must show that "some objective factor, external to [his] defense, interfered with his ability to comply with the state's procedural rule." Gutierrez v. Smith, 702 F.3d 103, 111 (2d Cir. 2012). To establish a "fundamental miscarriage of justice," the petitioner must present "new reliable evidence" of innocence that was "not presented at trial." Schlup v. Delo, 513 U.S. 298, 324 (1995)). Moreover, the evidence must be compelling: "prisoners asserting innocence as a gateway to defaulted claims must establish that, in light of [that] new evidence, 'it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'" House v. Bell, 547 U.S. 518, 536-37 (2006) (quoting Schlup, 513 U.S. at 327).
In this case, most of petitioner's ineffective assistance claims have been exhausted. In his coram nobis petition, which he pursued to the highest state court available to him, he argued that his appellate counsel was constitutionally ineffective (because, among other things, he argued the wrong issues on direct appeal, failed adequately to argue that trial counsel's provided ineffective assistance, and failed to raise, on appeal, defendant's "disabilities"). And in his direct appeal, which he pursued to the highest state court available to him, he argued that his trial counsel was constitutionally ineffective (because, among other things, he failed to preserve the issue of the sufficiency of the People's evidence regarding intent).
Both the Appellate Division and Court of Appeals denied petitioner's coram nobis petition summarily, but "summary dispositions rank as adjudications 'on the merits' for AEDPA purposes unless the petitioner provides 'reason to think some other explanation for the state court's decision is more likely.'" Chrysler v. Guiney, 806 F.3d 104, 117 (2d Cir. 2015) (quoting Harrington v. Richter, 562 U.S. 86, 99-100 (2011)). In this case, there is nothing in either decision to indicate that the claims were decided on anything but substantive grounds, and petitioner has not suggested otherwise. Therefore, all of petitioner's claims concerning the ineffectiveness of his appellate counsel "have been 'adjudicated on the merits' by a state court." Aparicio, 269 F.3d at 94.
However, petitioner did not claim that his trial counsel was ineffective for failing to request a CPL Art. 730 hearing (or otherwise argue that his client was incompetent) until he filed his second CPL § 440.10 motion. Moreover, Justice Mandelbaum denied that second CPL § 440.10 motion on state law procedural grounds, independent of any constitutional question, ruling that petitioner should have raised "each of the grounds and issues underlying his present claims" in his first CPL § 440.10 motion. App. Ex. K, at ECF p. 4; see also CPL § 440.10[3][c] ("the court may deny a motion to vacate a judgment when . . . [u]pon a previous motion made pursuant to this section, the defendant was in a position adequately to raise the ground or issue underlying the present motion but did not do so"). Petitioner has made no effort to demonstrate "cause" for his procedural default, and likewise makes no claim of actual innocence. Consequently, insofar as petitioner's ineffective assistance claim in this Court is premised on his trial counsel's failure to move for a CPL Art. 730 hearing or otherwise raise petitioner's competency, that claim is procedurally barred, precluding federal habeas review. See Clark v. Perez, 510 F.3d 382, 390 (2d Cir. 2008) ("ordinarily, a federal court may not reach the merits if the state court's rejection of a federal claim 'rests on a state law ground that is independent of the federal question and adequate to support the judgment'") (quoting Coleman, 501 U.S. at 729); Pagan v. Lavalley, 2017 WL 1331294, at *11 (S.D.N.Y. Jan. 18, 2017) (ineffective assistance of counsel claim was procedurally barred when it was first asserted in a CPL § 440.10 motion that the state court denied on the "independent and adequate state law ground" that it should have been raised on direct appeal), report and recommendation adopted, 2017 WL 1378255 (S.D.N.Y. Apr. 11, 2017), and report and recommendation adopted, 2018 WL 3585274 (S.D.N.Y. July 26, 2018).
C. Standard of Review - Generally
If a petitioner has properly exhausted his federal claims in state court, and if the last reasoned state court ruling decided his federal claims on the merits, those claims are reviewable in federal district court under AEDPA's deferential standard of review. That standard permits a district court to grant habeas relief only when the state court's opinion:
(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 by the State court proceedings.28 U.S.C. § 2254(d).
"Clearly established" federal law means "the holdings, as opposed to the dicta," of the decisions of the United States Supreme Court "as of the time of the relevant state-court decision," and does not include opinions of lower federal appellate courts. Green v. Travis, 414 F.3d 288, 296 (2d Cir. 2005) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)). A decision is "contrary to" clearly established federal law if the state court "arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13. A decision involves an "unreasonable application" of clearly established federal law 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 [a] prisoner's case." Id. at 413.
This standard is intentionally difficult to meet. It preserves for federal courts "authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme Court's] precedents," but "goes no further." Harrington v. Richter, 562 U.S. 86, 102 (2011). A federal court cannot grant habeas relief "simply because [the] court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001) (quoting Williams, 529 U.S. at 411). Similarly, an adjudication of a claim is not based on an unreasonable determination of facts "merely because the federal habeas court would have reached a different conclusion in the first instance." Wood v. Allen, 558 U.S. 290, 301 (2010) (citation omitted).
D. Standard of Review - Ineffective Assistance of Counsel
In order to state a claim for ineffective assistance of counsel, a petitioner must show (1) that counsel's performance "fell below an objective standard of reasonableness," and (2) that "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 686-87 (1984). In evaluating the first Strickland prong - the deficient performance requirement - judicial scrutiny is "highly deferential," id. at 689, and the petitioner must overcome the "presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Bell v. Cone, 535 U.S. 685, 698 (2002) (internal quotation marks and citation omitted), reh'g denied, 536 U.S. 976. "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). Although "the claims invoke critical constitutional principles and are to be taken very seriously, they are quite often the law's equivalent of 'buyer's remorse' or 'Monday morning quarterbacking' and can be quickly resolved. Decisions by criminal defense counsel are often choices among bad alternatives[.]" Yick Man Mui v. United States, 614 F.3d 50, 57 (2d Cir. 2010). Thus, "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.'" Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
To establish the second Strickland prong - the prejudice requirement - the petitioner must show a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "A reasonable probability means a '"substantial," not just "conceivable," likelihood of a different result.'" Shinn v. Kayer, 141 S.Ct. 517, 523 (2020) (quoting Cullen v. Pinholster, 563 U.S. 170, 189 (2011)). Courts in the Second Circuit generally "require some objective evidence other than defendant's assertions to establish prejudice." Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2008) (quoting United States v. Gordon, 156 F.3d 376, 380-81 (2d Cir. 1998) (per curiam)). The "benchmark" for an ineffective assistance claim is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial can no longer be relied upon as having produced a just result." Strickland, 466 U.S. at 686.
The petitioner bears the burden of establishing both prongs of the test: that his counsel was constitutionally deficient and that he was prejudiced thereby. United States v. Birkin, 366 F.3d 95, 100 (2d Cir. 2004) (citing Strickland, 466 U.S. at 687). Thus, the Court has made it clear that an ineffectiveness claim may be rejected for lack of prejudice alone, regardless of the quality of counsel's performance: "The 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." Strickland, 466 U.S. at 697 .
Where a petitioner's ineffective assistance claim has already been rejected by state courts on the merits, a federal habeas court, reviewing the question pursuant to § 2254(d) does not determine "whether counsel was actually ineffective but whether the state court 'applied Strickland to the facts of [the] case in an objectively unreasonable manner.'" Pagan, 2017 WL 1331294, at *11 (quoting Bell, 535 at 698-99); see also Aparicio, 269 F.3d 95 (habeas court's role is limited to ensuring that the Strickland standard "was not unreasonably applied by the Appellate Division"). Judicial review, in this context, is thus "doubly deferential," Pinholster, 563 U.S. at 190 (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)): the initial review of counsel's performance by the state court is deferential under the Strickland standard, and the federal habeas court reviews the state court's conclusion "through the deferential lens of § 2254(d)." Conway, 763 F.3d at 153 (quoting Pinholster, 563 U.S. at 190). Petitioner carries the burden of proof throughout. Pinholster, 563 U.S. at 181.
E. Analysis
All of petitioner's exhausted claims have been considered and rejected by the New York courts on the merits. The claim that petitioner's trial counsel was constitutionally ineffective because he failed to preserve the issue of the sufficiency of the People's evidence regarding intent was rejected by the Appellate Division, on direct appeal, on the merits. People v. Paulino, 172 A.D.3d at 489, 97 N.Y.S.3d at 864 ("We have considered and rejected defendant's ineffective assistance of counsel claims relating to the lack of preservation."). The claim that petitioner's appellate counsel was ineffective because he raised "unpreserved" issues on direct appeal instead of "appealable state and federal claims" that were "cognizable for habeas relief," Pet. at 5, 13; because he failed adequately to argue that trial counsel was ineffective, see id. at 8; and because he failed to raise the issue of petitioner's competency, see Pet. Reply at 4, were rejected by the Appellate Division, on his petition for a writ of coram nobis, on the merits. (Dkt. 21 at ECF p. 3.) Consequently, those decisions must be reviewed "under AEDPA's deferential standards." Aparicio, 269 F.3d at 94. Under those standards, the "pivotal question" for this Court is not "whether defense counsel's performance fell below Strickland's standard," but "whether the state court's application of the Strickland standard was unreasonable." Harrington, 562 U.S. at 101; see also Aparicio, 269 F.3d at 94 ("[A] federal habeas court is not empowered to grant the writ just because, in its independent judgment, it would have decided the federal law question differently. The state court's application must reflect some additional increment of incorrectness such that it may be said to be unreasonable.").
In this case, the state courts' rejection of petitioner's ineffective assistance claims was entirely reasonable.
1. Trial Counsel
Petitioner claims that his trial counsel's performance was constitutionally inadequate because - although attorney Feinman moved to dismiss all charges at the conclusion of the People's case, Tr. at 418:8 - his argument was not specific enough to preserve, for appellate review, the constitutional question whether the evidence was sufficient to support the intent element of the murder charge. Pet. at 4-5. Petitioner is correct that trial counsel failed to preserve the constitutional point. See People v. Paulino, 172 A.D.3d 488, 97 N.Y.S.3d 863 ("Defendant's legal insufficiency claim is unpreserved.") Even assuming, however, that this was an oversight - rather than a deliberate strategy choice designed to preserve counsel's "credibility in front of the court and jury," as respondent posits, see Resp. Opp. at 33 - the ineffective assistance claim fails both prongs of the Strickland test, because the motion that petitioner now faults his counsel for failing to make would have been meritless.
Under New York law, in order to preserve a challenge to the legal sufficiency of a conviction, "a defendant must move for a trial order of dismissal, and the argument must be 'specifically directed' at the error being urged." People v. Hawkins, 11 N.Y.3d 484, 492, 900 N.E.2d 946 (2008) (quoting People v Gray, 86 N.Y.2d 10, 19, 652 N.E.2d 919, 921 (1995), and People v Hines, 97 N.Y.2d 56, 62, 762 N.E.2d 329, 333 (2001)). "[G]eneral motions simply do not create questions of law for this Court's review." Id.
To prevail on a legal sufficiency challenge under the Due Process clause, a defendant must show that, "after viewing the evidence in the light most favorable to the prosecution," no "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319; see also People v. Gordon, 23 N.Y.3d 643, 649, 16 N.E.3d 1178, 1183 (2014) ("in a sufficiency review, we 'marshal competent facts most favorable to the People and determine whether, as a matter of law, a jury could logically conclude that the People sustained its burden of proof'") (quoting People v. Danielson, 9 N.Y.3d 342, 349, 880 N.E.2d 1, 5 (2007)). Since the court facing a legal sufficiency challenge asks only "whether the record is 'so totally devoid of evidentiary support that a due process issue is raised,'" Vigilante v. Mantello, 101 F.3d 687 (2d Cir. 1996) (quoting Bossett v. Walker, 41 F.3d 825, 830 (2d Cir. 1994), the defendant raising such a challenge "bears a very heavy burden." Einaugler v. Supreme Court of the State of N.Y., 109 F.3d 836, 840 (2d Cir. 1997).
When viewed in the light "most favorable to the prosecution," Jackson, 443 U.S. at 319, the evidence adduced at petitioner's trial showed that he picked an argument with Payero-Valerio just before lunch, during which he called his co-worker a snitch and threatened to kill him. Petitioner then lay in wait for Payero-Valerio outside the door of the warehouse where both men worked, with a knife (likely taken from the warehouse) concealed on his person. When Payero-Valerio came out, unarmed, petitioner initiated what began as a fistfight, during which - within moments - he stabbed his victim with a blade long enough to penetrate his intestines and open his aorta. Paulino then fled the scene while his victim hemorrhaged and died on the sidewalk. On this record, Paulino could not hope to discharge his "heavy burden," Einaugler, 109 F.3d at 840, of showing that no "rational trier of fact," Jackson, 443 U.S. at 319, could conclude that he acted "[w]ith intent to cause the death of another person." PL § 125.25[1].
As to the first Strickland prong - deficient performance - it is well settled that "trial counsel cannot be ineffective in failing to make a meritless argument." Johnson v. Conway, 2011 WL 53165, at *5-6 (W.D.N.Y. Jan. 7, 2011) (concluding that trial counsel's "failure to properly preserve the issue of legal deficiency" was not "objectively unreasonable" where it was "unlikely that the motion would have been successful"); see also United States v. Kirsh, 54 F.3d 1062, 1071 (2d Cir. 1995) ("the failure to make a meritless argument does not rise to the level of ineffective assistance"); United States v. Shulaya, 2018 WL 9413324, at *2 (S.D.N.Y. May 1, 2018) ("it is not ineffective assistance of counsel when an attorney does not bring a motion that would be frivolous or otherwise meritless"); James v. Artus, 2005 WL 859245, at *16 (S.D.N.Y. Apr. 15, 2005) ("counsel cannot be ineffective for failing to raise a meritless claim"); Mance v. Miller, 2002 WL 377533, at *5 (S.D.N.Y. Mar. 8, 2002) (where a motion to dismiss would not have been successful, "counsel was not unprofessional in failing to make such a motion"). By the same token, petitioner cannot meet the second Strickland prong - prejudice - where, as here, the evidence was more than legally sufficient to support the verdict. See, e.g., People v. Nguyen, 90 A.D.3d 1330, 1333, 935 N.Y.S.2d 195, 199 (3d Dep't 2011) ("in view of the legally sufficient evidence adduced to establish the charged offenses, counsel's failure to make the motion [to dismiss] with specificity so as to preserve claims for appeal did not prejudice defendant").
In this case, moreover, the Appellate Division considered - and rejected - petitioner's claim that the verdict was "against the weight of the evidence," explaining that "[t]he totality of defendant's conduct supports the inference that, at least at the moment he stabbed the victim in the abdomen, he did so with homicidal intent." People v. Paulino, 172 A.D.3d at 489, 97 N.Y.S.3d at 864. Under New York law, a weight of the evidence review requires the appellate court first to determine whether a different verdict "would not have been unreasonable," and then, "[s]itting as the thirteenth juror," to weigh all of the evidence, including "conflicting testimony" and "any rational inferences that may be drawn from the evidence," to decide "which facts were proven at trial." People v. Danielson, 9 N.Y.3d at 349, 880 N.E.2d at 5; see also CPL § 470.15[5]. As the Court of Appeals explained in Danielson, the court performing a weight of the evidence review need not view the facts "in a light most favorable to the People," nor confine its inquiry to the question whether a "rational jury" could have found the defendant guilty, as required when considering whether the evidence is legally sufficient, from a constitutional standpoint, to support the verdict. Id.
Not only are the two tests different; the constitutional standard is more difficult for a challenger to meet. Thus, "to the extent the First Department decided that the verdict in [petitioner's] trial was not against the weight of the evidence, it necessarily decided there was sufficient evidence to support the verdict." Scott v. Graham, 2018 WL 5257613, at *21 (S.D.N.Y. Oct. 22, 2018) (collecting cases); see also Parker v. Ercole, 666 F.3d 830, 835 (2d Cir. 2012) (Appellate Division's review of weight claim "necessarily subsumed review of [petitioner's] sufficiency claim"); Santiago v. Miller, 2019 WL 4396810, at *11 (S.D.N.Y. Aug. 9, 2019) ("When the Appellate Division held that Santiago's robbery convictions were not against the weight of the evidence, it necessarily decided that there was sufficient evidence to support the verdict."), report and recommendation adopted, 2019 WL 4392515 (S.D.N.Y. Sept. 13, 2019).
Here, as in Parker, Scott and Santiago, the Appellate Department expressly determined that the verdict in petitioner's trial was not against the weight of the evidence, thereby necessarily also determining that there was constitutionally sufficient evidence to support that verdict. Had attorney Feinman made a more specific motion in the trial court, thus formally preserving the constitutional point for appeal, the result would have been exactly the same. Iin the language of Strickland, there is no "reasonable probability" that, but for counsel's claimed error, "the result of the proceeding would have been different." 466 U.S. at 694.
Since petitioner cannot show either that his trial counsel's performance was deficient or that "the deficient performance prejudiced the defense," Strickland, 466 U.S. at 687, his ineffective assistance claim premised on attorney Feinman's failure to preserve his insufficient evidence claim would fail even if § 2254(d) did not require this Court to defer to the judgment of the Appellate Division. Viewed through that deferential lens, only one result is possible here: the Appellate Division's rejection of "defendant's ineffective assistance of counsel claims relating to the lack of preservation," People v. Paulino, 172 A.D.3d at 489, 97 N.Y.S.3d at 863, was a reasonable application of Strickland, and cannot be disturbed.
2.Appellate Counsel
Petitioner's ineffective assistance claims regarding his appellate representation fare no better. Although "Strickland's two-prong test applies equally to claims of ineffective assistance of appellate counsel on a defendant's first appeal as of right," Aparicio, 269 F.3d at 95, the standard is especially difficult to meet where, as here, the claim is that a lawyer made the wrong arguments to the Appellate Division. An appellate lawyer "has a wide degree of professional discretion to choose which issues to raise." Lynch v. Dolce, 789 F.3d 303, 319 (2d Cir. 2015) (citing Jones v. Barnes, 463 U.S. 745, 754 (1983)). In order to show deficient performance by his appellate counsel - Strickland's first prong - "petitioner must show that 'counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker.'" Santana v. Capra, 284 F.Supp.3d 525, 544 (S.D.N.Y. 2018) (quoting Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994)). Additionally, under Strickland's second prong, the petitioner must show a reasonable probability that, but for counsel's errors, "the outcome of the proceeding would have been different." Id.; accord Aparicio, 269 F.3d at 95.
Here, petitioner contends that attorney Dean should not have bothered to raise issues that were "unpreserved," or that arose under state law, because those claims would not be "cognizable for habeas relief." Pet. at 6, 9, 13, 16. In making this argument, however, petitioner appears to be confused about the purpose of a direct appeal, which is primarily to obtain the maximum relief on that appeal, and only secondarily to exhaust any viable federal constitutional issues for potential later use on habeas. It is often the case that the client's strongest appellate arguments happen to arise under state rather than federal law. In such cases, it would be a dereliction of duty for appellate counsel not to make those arguments simply because they lack constitutional underpinning. Here, for the reasons outlined above, petitioner had a better chance of succeeding on his state-law weight of the evidence argument than on any federal constitutional issue arising out of his trial. It was therefore entirely appropriate for attorney Dean to argue that the jury's verdict was against the weight of the evidence. See App. Br. at 16-26. Moreover, in New York, the Appellate Division has discretion to review even unpreserved claims (federal or state) "in the interest of justice." CPL § 470.15[6][a]. The fact that an argument is unpreserved, therefore, is not - standing alone - a reason for an appellate lawyer to refrain from pressing it on appeal. Nor does petitioner explain how, if at all, he was prejudiced by the inclusion of unpreserved and state law arguments in his appellate brief.
Next, petitioner contends that his appellate counsel failed to argue that his trial counsel was ineffective. See Pet. at 8, 16. But attorney Dean did raise that point, arguing that attorney Feinman was ineffective "for failing to preserve the sufficiency of the People's evidence regarding Mr. Paulino's intent," App. Br. at 25-26 - the precise claim that petitioner himself makes, pro se, on habeas - and for "failing to specifically object to the People's irrelevant evidence." Id. at 30.
"Where, as here, a petitioner has asserted that appellate counsel provided ineffective assistance by failing to raise as a ground for relief on appeal trial counsel's ineffective assistance, he or she must necessarily establish that trial counsel was ineffective." Finley v. Graham, 2016 WL 47333, at *13 (S.D.N.Y. Jan. 4, 2016); see also Rivera v. Duncan, 2001 WL 1580240, at *10 (S.D.N.Y. Dec. 11, 2001) ("where trial counsel was not ineffective, appellate counsel cannot be faulted for choosing not to argue on appeal the ineffective assistance of trial counsel"); Aparicio, 269 F.3d at 99 n.10 & 100 (finding "[p]etitioner's appellate counsel was not ineffective for failing to raise the meritless argument" that trial counsel was ineffective). In this case, for the reasons discussed above, petitioner's claim that his trial counsel rendered constitutionally ineffective assistance is meritless. Consequently, even if his appellate counsel failed entirely to raise that meritless claim in the Appellate Division, that could not be the basis of a new ineffective assistance claim. See Finley, 2016 WL 47333, at *13 ("[W]here the underlying ineffective assistance of trial counsel argument is lacking in merit, appellate counsel cannot be deemed to have acted objectively unreasonably or to have prejudiced the defendant by failing to raise it.").
Lastly, petitioner claims that his appellate counsel was ineffective for failing to raise the issue of his supposed lack of competency during trial. Pet. at 11, 17; Pet. Reply at 4. "Compelling an incompetent person to stand trial violates that individual's rights to assist in his defense, consult with counsel, and due process." Jackson v. Ercole, 2010 WL 8357326, at *7 (S.D.N.Y. Dec. 23, 2010), report and recommendation adopted, 2012 WL 292324 (S.D.N.Y. Jan. 30, 2012). In this case, however, there is not a smidgen of evidence in the trial record - or in petitioner's habeas papers - suggesting that he was mentally disabled in any way, much less that he was so incapacitated as to be unfit to stand trial. To the contrary: the trial record reflects numerous instances of petitioner conferring with his counsel during trial. See, e.g., Tr. at 88:4, 116:20, 231:8, 270:10, 339:18, 345:15, 416:16. And petitioner's sentencing memorandum, filed on July 26, 2016 (after a discussion between trial counsel and petitioner), states that he "has no history of physical or mental health illnesses," either when he resided in the Dominican Republic during the first 21 years of his life or since coming to the United States. (Dkt. 15 Ex. P at 3-4.)
I note as well that petitioner's appellate counsel was not at liberty to look outside of the trial record for purposes of his direct appeal. See Acevedo v. Capra, 2014 WL 1236763, at *1 (E.D.N.Y. Mar. 25, 2014) ("Under New York law, ineffective assistance of counsel claims . . . . based on matters that do not appear on the record cannot be raised on direct appeal and must be raised in collateral proceedings."); Read v. Thompson, 2015 WL 9701084, at *15 (S.D.N.Y. Oct. 15, 2015) (claims that are not record-based must be raised "as part of a motion to vacate judgment under CPL § 440.10"). The absence of any record support for a competency-based claim is thus fatal to petitioner's attempt to paint his appellate counsel as ineffective for failing to make such a claim on direct appeal. See Blanding v. Yelich, 2018 WL 4906252, at *5 (S.D.N.Y. Oct. 9, 2018) (rejecting claim of ineffective assistance of appellate counsel where "it was reasonable for appellate counsel to conclude that there was no evidence in the trial record that would support an argument that trial counsel was deficient for believing that Blanding was competent to plead guilty").
CPL Art. 730 prescribes various procedures for "a defendant who as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense." CPL § 730.10[1] (emphasis added). Art. 730 is not concerned with, and prescribes no remedies for, defendants with limited English skills. Regardless, in petitioner's case, Spanish interpreters were on hand throughout trial, see, e.g., Tr. at 31:1, 203:18, 274:12, 372:2, 446:3.
Once again, with respect to his appellate counsel, petitioner has failed to show either any deficiency in performance or any resulting prejudice. Consequently, when viewed "through the deferential lens of § 2254(d)," Conway, 763 F.3d at 153, there is no basis upon which this Court could disturb the decision of the Appellate Division denying his coram nobis petition.
III. CONCLUSION
For the foregoing reasons, I recommend, respectfully, that the petition be denied in its entirety. I further recommend that no certificate of appealability issue.
The Clerk of Court is respectfully directed to substitute "Mark Miller, Superintendent, Green Haven Correctional Facility," as the respondent in this action.
NOTICE OF PROCEDURE FOR FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have 14 days from this date to file written objections to this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). See also Fed. R. Civ. P. 6(a) and (d). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. Mary Kay Vyskocil, United States District Judge, at 500 Pearl Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Vyskocil. Failure to file timely objections will result in a waiver of such objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Frydman v. Experian Info. Sols., Inc., 743 Fed.Appx. 486, 487 (2d Cir. 2018) (summary order); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).