Triplett v. Reardon

Full title: OMAR (NAFTALI) TRIPLETT, Petitioner, v. P. REARDON, Respondent.

Court: United States District Court, S.D. New York

Date published: Mar 31, 2023

Civil Action 20 Civ. 1064 (RA) (SLC) (S.D.N.Y. Mar. 31, 2023)

Opinion

Civil Action 20 Civ. 1064 (RA) (SLC)

03-31-2023

OMAR (NAFTALI) TRIPLETT, Petitioner, v. P. REARDON, Respondent.

SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE

THE HONORABLE RONNIE ABRAMS, UNITED STATES DISTRICT JUDGE:

REPORT AND RECOMMENDATION

SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE

I. INTRODUCTION

On February 7, 2020, Omar Triplett (“Triplett”) filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 (“Section 2254”), challenging his 2001 robbery convictions, for which he was sentenced to a total of 115 years in prison. (ECF No. 1 (the “First Petition”)). Among the six claims that Triplett included in the First Petition were a Fourth Amendment claim and a challenge to the length of his sentence. (Id. at 5-14). In a supplemental petition filed on January 11, 2023, Triplett asserted seven additional claims, including ineffective assistance of trial counsel, newly discovered evidence, and actual innocence. (ECF No. 70-1 (the “Second Petition”, with the First Petition, the “Petitions”)). Respondent P. Reardon (“Respondent”),¹opposed the Petitions on the grounds that they are untimely and fail to state a claim for relief under Section 2254. (ECF Nos. 34; 34-1; 72 (collectively, the “Opposition”)). For the reasons set forth below, I respectfully recommend that the Petitions be DENIED.

1 Respondent is represented by Letitia James, Attorney General of the State of New York. (ECF Nos. 24; 34 ¶ 5).

II. BACKGROUND

A. Factual Background ²

2 As discussed below (see §§ II.B.2, IV.B.2.b, IV.B.3, infra), Respondent has been unable to locate the complete transcripts of Triplett's trials. (See ECF Nos. 34 ¶ 9; 58 at 3). In summarizing the events leading to Triplett's criminal charges, the Court properly relies on the narratives from the parties' submissions on direct appeal (which cite the trial transcripts and are largely consistent) and Respondent's submission in this action. (See ECF No. 35 at 38-42 (factual summary by Triplett's trial attorney in support of pretrial motions); id. at 129-57 (factual summary in Triplett's direct appeal brief)). See Martin v. Lee, No. 10 Civ. 5411 (LAP) (JCF), 2017 WL 2672641, at *1 n.2 (S.D.N.Y. June 20, 2017), adopted by, 2018 WL 3597507 (S.D.N.Y. July 26, 2018); Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts, Rule 5 (“If a transcript cannot be obtained, the respondent may submit a narrative summary of the evidence.”). All citations are to ECF page numbers unless otherwise indicated.

1. Triplett's Background

Triplett was born in Manhattan in 1978, and was raised by his parents in a mosque until he was six, at which time he moved with his mother and sister to Atlanta. (ECF No. 35 at 158). After several years of homelessness, his father moved to Newark, New Jersey, and in 1992, Triplett joined him there. (Id. at 158, 182, 188). Triplett was expelled from high school, was placed in a youth facility, and worked as a messenger before spending the rest of his life “on the streets.” (Id. at 158, 182). Triplett's criminal history reflects charges from 1994 through 1999 in Manhattan, Newark, Atlanta, and Toronto, the robbery charges arising from incidents in Manhattan in January 2000, and second-degree murder and fourth-degree criminal possession of a weapon charges for a stabbing in Brooklyn on January 16, 2000. (Id. at 158-59, 183, 188, 260).

Mental health records attached to the Petition indicate that, as a student, Triplett had an IQ score of 89 and was classified with a learning disability. (ECF No. 1 at 25). While incarcerated, Triplett was admitted for inpatient mental health treatment at the Central New York Psychiatric Center (“CNYPC”) on four occasions between May 2005 and June 2014. (Id. at 25-27).

A May 2005 mental health evaluation recorded that Triplett admitted to being “a very violent person” and displayed “odd thinking [that] seem[ed to be] an artifact of his personality and psychopathy, rather than any true psychotic process.” (Id. at 26). In a discharge summary from his 2007 inpatient treatment, which followed an altercation with a corrections officer, it was noted that “there appeared to be little benefit from antipsychotic medications . . . and [his] sporadic compliance did little to alter his mental status.” (Id. at 25). His inpatient admission in 2008 resulted from his “making threats of self harm[.]” (Id.) Following his admission to inpatient treatment in 2014, he was “uncooperative, hostile, paranoid, and very violent[.]” (Id. at 27).

2. The Robberies

Triplett's challenged convictions stem from a series of robberies and attempted robberies in Manhattan in early January 2000. (See ECF No. 1 at 40-41). On the morning of January 11, 2000, Triplett approached Luis Ramos (“Ramos”), a UPS delivery worker, on East 59th Street in Manhattan, pointed a knife at Ramos' stomach, and demanded money. (ECF No. 35 at 150, 204-05). After Ramos gave Triplett approximately $80.00, Triplett put the knife to Ramos' neck and demanded “the rest of” his money, insisting that “UPS guys have thousands” of dollars. (Id. at 150, 205). Ramos explained that he did not have any additional money, and as Triplett began to walk away, he turned to ask Ramos where he was from. (Id.) When Ramos responded that he was from the Bronx, Triplett returned the cash, stating that he did not rob people from the Bronx. (Id.)

A few minutes later, Dr. Renee Rodriguez-Sains (“Dr. Rodriguez-Sains”) observed Triplett walking back and forth near a UPS truck on East 59th Street, and crossed the street to avoid Triplett. (ECF No. 35 at 151, 206). As Dr. Rodriguez-Sains reached the curb, Triplett grabbed him, spun him around, put a knife to his chest, and said, “Give me your money or I'll kill you[.]” (Id.) Seeing Triplett's agitation, Dr. Rodriguez-Sains told him to “take it easy” and surrendered his wallet, which contained $110.00. (Id. at 151, 206-07). Triplett demanded Dr. Rodriguez-Sains' Armani scarf, which Triplett put around his own neck, and then thrust the knife inside Dr. Rodriguez-Sains' suit jacket, cutting the pocket and demanding more money. (Id. at 151, 207). Dr. Rodriguez-Sains told Triplett, “Relax, I'll give you anything you want[,]” and began to remove his Rolex watch. (Id.) As he did so, Triplett cut Dr. Rodriguez-Sains' wrist with the tip of the knife, leaving a scar. (Id.) Triplett took the Rolex and fled. (Id.)

A waitress in a nearby restaurant observed Triplett rob Dr. Rodriguez-Sains, and called 911. (ECF No. 35 at 151, 208). Two other witnesses to the robbery followed Triplett toward Madison Avenue and described the robbery to a New York City Police Department (“NYPD”) officer, who made a call on her radio and began to follow Triplett. (Id. at 151-52, 208-09). At the corner of Madison and East 55th Street, Triplett knocked Mark Jacoby (“Jacoby”) to the ground, put a knife to his face, and demanded his money and watch. (Id. at 152, 209-10). At that moment, the officer who had been following Triplett yelled, “Police, freeze[,]” causing Triplett to flee before he could anything from Jacoby. (Id. at 152, 210).

NYPD officers and civilians pursued Triplett as he entered a bank building on East 53rd Street and boarded an elevator. (ECF No. 35 at 152). A bank employee boarded the elevator in which Triplett was riding, but exited before her destination floor because he was acting strangely. (Id. at 152, 211-12). On the 19th floor, Triplett banged on the door of an office, and an employee admitted him. (Id. at 152). Triplett asked the employee how to access the roof, and after the employee told him there was no roof access, Triplett told him to “shut the fuck up” and walked to the back of the office. (Id.)

Moments later, the office manager of a law firm on the 18th floor of 515 Madison Avenue, which was next to the bank building, was taking a break on the rooftop terrace when a knife fell near her. (ECF No. 35 at 152-53, 213-14). She looked up to see Triplett hanging from the roof of the bank building above her, then letting go and falling onto an air conditioning unit ten feet from where she was standing. (Id. at 153, 214). Triplett jumped up, grabbed the knife, and chased her into the building, where she locked herself in an office and alerted her co-workers that a man with a knife was trying to enter. (Id.) The office manager and several of her coworkers barricaded themselves in an office to hide from Triplett. (Id. at 153, 215). Carrying the knife, Triplett boarded the elevator, in which a deli employee wearing an apron and cap was riding. (Id. at 153). Triplett demanded that the deli employee give him the apron and cap, put them on, exited the elevator, and walked out of 515 Madison. (Id. at 153-54, 215). Dr. Rodriguez-Sains, whom police had brought to the bank building, saw Triplett leaving 515 Madison, dressed differently than at the time of the robbery, but dismissed the observation as impossible and mentioned it to the police only sometime later. (Id. at 154, 216).

On January 16, 2000, Canadian Customs agents stopped Triplett as he attempted to cross the border from Buffalo, New York into Fort Erie, Canada on a bus. (ECF No. 35 at 38, 154, 217). The bus was stopped at the border as part of a routine inspection in which all passengers were required to show citizenship identification. (Id. at 217). Triplett was found with, inter alia, two knives-one of which he had used during the January 11, 2000 robberies-a sword, a Pennsylvania state identification card in the name of Umar Ahmed (the “PA ID Card”), a United States passport in the name of Naftali Triplett, and a spiral notebook (the “Notebook”). (Id. at 38, 96-101, 217-19). After Canadian Customs agents declined to admit Triplett into Canada for lack of valid identification, they turned Triplett and his possessions over to United States Customs Agents. (Id. at 155, 218-20). United States Customs agent Craig Healy (“Healy”) found among Triplett's possessions a New York State identification card in the name of Naftali Triplett and showing a different birthday than the PA ID Card (the “NY ID Card”). (Id. at 155). In the Notebook, Healy saw handwritten statements about plans to rob people, obtain a new identity, kill police officers, and travel to Sudan or Germany, statements that Triplett claimed were “entertainment” and “fantasy[.]” (Id. at 156, 221-22). One statement in the Notebook dated January 13, 2000 read: “I have just escaped a band of P.O. in New York. They really thought they had me, they were wrong, I jumped four stories to my freedom.” (ECF No. 35 at 222). Other statements expressed disdain for Americans and Jewish people. (ECF No. 35 at 221-22). After reading these entries, Healy called the NYPD to relay the Notebook entries, some of which he faxed. (ECF No. 35 at 223).

The Customs agents left Triplett unhandcuffed in a “holding cell” or “detention room.” (ECF No. 35 at 156, 221). A few minutes later, one of the agents noticed the ceiling tiles moving, and entered the detention room to find Triplett missing and the ceiling tiles removed. (Id. at 156, 224). After the agents spread out around the office and began poking the ceiling, Triplett fell from the ceiling and began to run. (Id. at 156). The agents subdued him, and a pat-down revealed $800.00. (Id.) After being held for about five hours, Triplett asked to see his lawyer, but was told by a Customs agent that he was being “detained” for a border search and was not under arrest. (Id. at 38). Triplett asked two more times to speak with his lawyer, whose name he provided, but admitted to a Customs agent that the PA ID Card “was fake but that his passport was real.” (Id. at 39, 105).

NYPD Detectives Rivera, Jenna, and Sullivan traveled to Buffalo, placed Triplett under arrest, and took custody of his belongings, which included over $800.00, Dr. Rodriguez-Sains' Armani scarf, and the knives and sword. (ECF No. 35 at 224-25). That night, Dr. Rodriguez-Sains, and separately, an employee of the law firm, identified Triplett in photo arrays. (Id. at 225). After about 21 hours in custody, Triplett gave an audio-taped statement to Detective Rivera (the “Statement”), in advance of which he “had been advised of his Miranda rights . . . .” (Id. at 40). In the Statement, Triplett admitted to: (i) stabbing a man three times in Brooklyn with a hunting knife; (ii) attacking two girls near Madison Square Garden and stealing $200.00 from them; (iii) stealing a cellular phone and camera from a woman near Canal Street; (iv) separately robbing “three white businessmen” in a 25 minute period and then fleeing the police; (v) attempting to rob an older man; (vi) stealing money from a UPS worker and then returning the money to the worker; (vii) having items and money that belonged to the robbery victims. (Id. at 40-41). On January 17, 2000, Triplett was transported back to New York, where he was detained at the 77th Precinct in Brooklyn. (Id. at 225). The NYPD placed Triplett in a lineup, in which Dr. Rodriguez-Sains, and later, the law firm employee, identified him. (Id. at 41, 224-25).

On January 20, 2000, while being fingerprinted by an NYPD detective, Triplett called NYPD cops “stupid,” stated that “they never would have gotten him[,]” and boasted that he had “walked right past those cops in the lobby” of 515 Madison. (ECF No. 35 at 156, 226). On January 27, 2000, Triplett was placed in another lineup, in which Jacoby identified him as the assailant. (Id. at 226-27). Following this lineup, Triplett tried to flee, grabbing a detective's gun holster as NYPD officers subdued him. (Id. at 157, 227). On February 24, 2000, Triplett was placed in in a lineup in which three eyewitnesses identified him. (Id. at 41, 227).

B. Procedural Background

1. State Court Proceedings

a. The Indictments

The District Attorney for New York County (the “Manhattan DA”) led the prosecution of Triplett for the January 2000 robberies, for which he was charged in four indictments. (ECF No. 35 at 17-19, 25-27, 31-33, 90-91). Indictment No. 288-00 charged Triplett with three counts of robbery in the first degree under New York Penal Law § 160.15(3) ³for two robberies on January 10, 2000 and a robbery on January 11, 2000. (Id. at 17-19 (the “288 Indictment”)). Indictment No. 488-00 charged Triplett with three counts of robbery in the first degree for the three knife-point robberies on January 3, 2000, and one count of attempted first degree robbery under New York Penal Law §§ 110⁴ and 160.15(3) for the attempted knife-point robbery on January 11, 2000. (Id. at 25-27 (the “488 Indictment”)). Indictment No. 1418-00 charged Triplett with three counts of first degree robbery for the knife-point robberies on January 3, 8, and 11, 2000. (Id. at 31-33 (the “1418 Indictment”)). Indictment 6337-00 charged Triplett for another incident that occurred on January 10, 2000. (Id. at 91 (the “6337 Indictment”), with the 288, 488, and 1418 Indictments, the “Indictments”)). Triplett was arraigned on the 288 Indictment on February 7, 2000, the 488 and 1418 Indictments on March 15, 2000, and the 6337 Indictment on October 4, 2000. (Id. at 13, 21, 28, 42, 91). Assistant District Attorney Daniel Bayles (the “ADA”) from the Manhattan DA's office led the prosecution at trial, and Arnold P. Keith, Jr., Esq. (“Keith”), represented Triplett during his pretrial and trial proceedings. (Id. at 15-16, 23-24, 36).

3 This statute provides that “[a] person is guilty of robbery in the first degree when he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime: . . . 3. [u]ses or threatens the immediate use of a dangerous instrument[.]” N.Y. Crim. P. L. § 160.15(3).

4 This statute provides that “[a] person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime.” N.Y. Crim. P. L. § 110.00.

b. The First Trial

i. Pretrial Proceedings

On September 25, 2000, Triplett, through Keith, gave notice of his intention to offer psychiatric evidence from Dr. Bruce H. David, who opined that Triplett suffered “from a psychotic illness which interferes with his thinking” that was likely to be chronic. (ECF No. 35 at 71, 177-85). In his report, Dr. David noted that Triplett “admitted to committing a series of robberies during December[] 1999 and January[] 2000” and “felt justified taking from others because he did not have any property of his own [after] a police officer confiscated the kitchen knives he had been attempting to sell in Penn Station.” (Id. at 183). Although Dr. David ventured a “likely” diagnosis of “Schizophrenia, Paranoid type[,]” he concluded that “a defense of not responsible due to mental disease or defect [was] not available to him.” (Id. at 185). Triplett also proffered the opinion of Barry Rosenfeld, Ph.D., a clinical psychologist, that Triplett suffered from a chronic psychotic mental disorder requiring antipsychotic medications, and from paranoid psychosis. (Id. at 71-72, 192-93). The trial court denied Triplett's application to introduce the opinions of Dr. David and Dr. Rosenberg. (Id. at 75, 239). Triplett renewed the application just before trial, proffering a 1991 report of a psychoeducational evaluation, but the trial court again denied the request. (Id. at 74-84, 142, 239 at n.27).

Keith made several other pretrial motions on Triplett's behalf, including motions to suppress the Statement, the physical evidence recovered from Triplett at the Canadian border, and the identifications, and a motion in limine. (ECF No. 35 at 34-53, 85-94). The trial court conducted a combined Mapp⁵/Huntley⁶/Wade⁷/Dunaway⁸hearing over eight days in December 2000 and January 2001, at the conclusion of which the trial court declined to suppress any of the challenged evidence. (Id. at 7, 203-04 (the “Hearing”)).

5 “‘[A] Mapp hearing is used to determine whether physical evidence sought to be used against a criminal defendant was obtained illegally by law enforcement officers and is thus inadmissible at the criminal defendant's trial.'” Burkett v. Sup't, No. 13 Civ. 2627 (CS)(JCM), 2016 WL 5956049, at *3 n.12 (S.D.N.Y. Apr. 29, 2016) (“Burkett I”) (quoting Berry v. Hulihan, No. 08 Civ. 6557 (LBS), 2009 WL 233981, at *7 (S.D.N.Y. Jan. 28, 2009)), adopted by, 2016 WL 5921085 (S.D.N.Y. Oct. 11, 2016) (“Burkett II”).

6 A Huntley hearing is a pre-trial proceeding to determine the admissibility of a confession or admission.'” Burkett I, 2016 WL 5956049, at *3 n.13 (quoting Acosta v. Artuz, 575 F.3d 177, 187 n.3 (2d Cir. 2009)).

7 “‘The purpose of a Wade hearing is to determine [before] the trial whether pretrial identification procedures have been so improperly suggestive as to taint an in-court identification.'” Burkett I, 2016 WL 5956049, at *3 n.11 (quoting Lynn v. Bliden, 443 F.3d 238, 248 (2d Cir. 2006), as amended (May 19, 2006)).

8 “‘[A] Dunaway hearing is used to determine whether a statement or other intangible evidence obtained from a person arrested without probable cause should be suppressed at a subsequent trial.'” Burkett I, 2016 WL 5956049, at *3 n.10 (quoting Berry, 2009 WL 233981, at *7).

ii. Trial and Sentencing

After the trial court ordered that the trial would cover charges arising from the incidents on January 11, 2000, the ADA produced a “reorganized indictment” consisting of two counts of first degree robbery for the incidents involving Ramos and Dr. Rodriguez-Sains, and one count of first degree attempted robbery for the incident involving Jacoby. (ECF No. 35 at 91, 203 n.1). Trial began on January 25, 2001, continued on February 1, 5, 6, 8, and 9, 2001, and concluded on February 13, 2001. (Id. at 7, 15-16, 23-24, 30).

On the second day of trial, the trial court alerted the parties that Juror 5 had stated that he “was receiving pressure from his employer because he was a ‘probationary employee,' and ‘they don't like the fact that this is such a long case.'” (ECF No. 35 at 143). After Keith suggested that the trial court inquire of Juror 5's “ability to concentrate and analyze and digest the evidence[,]” the following colloquy occurred:

THE COURT: I wanted to speak to you about your employer giving you difficulties here. Unfortunately, the situation I have here is that, as I told you during my opening remarks, sometimes people don't focus too well. Once you are picked you are stuck with us. We are working short weeks here, unfortunately, which is why this case is going to be taking so much more than two weeks. So, if your employer is not happy with the fact that you are coming into work two days a week, on President's week, we have like three days off that you can work. Then I will, in fact, communicate with your employer. I need you here to keep your oath, which is to decide this case, because it is a very important one to everybody concerned. Okay?

JUROR No. 5: All right.

THE COURT: So we will play it, at this point, by ear and see if your employer starts to push you so hard that you are distraught we will get back to you. But I can't make any promises here. You know, it's kind of like being drafted. Nobody likes it. And I'm sorry that I didn't know beforehand that you were on probationary status. I don't want to torture people here, but we all have a job and a task to do here.

(Id. at 144-45, 250). Following the lunch recess later the same day, Juror 5 asked to speak to the trial court again:

JUROR [NO. 5]: After - During my lunch, I called in to talk to the job the way I usually do. And apparently the first day we had off when I had to go in, I had a lot of stuff to catch up to. I work for a small company, only fifty people in the company itself. And I have a project that I'm on now. Problem is it's already six months behind. And my boss, people above that I report to, I'm already stressed over, and we're this close to losing our client. We lose a client, we lose a lot of money. I'm new here. I don't know how it is with you guys, but I'm working for a private sector [sic] and I don't want to be, you know, I've got a good record and I don't want to tarnish it. You can tell me you can call my job and let me know. But I have to work and report to them. And they're putting me under a lot of pressure. They think I'm here milking. And I'm doing my duty. And this is the first time I served. And I don't know how it works. And I honestly answered all the questions when you guys were taking me as part of the jury because I wanted to be honest. But I'm going to be honest now. My mind is half here and half on the job worrying about what's going on and what's going to happen to me afterwards. And I don't

think I'm going to do a good justice [sic] if I'm not fully listening to all the facts in the case. I'm just being honest.

(Id. at 145-46, 251). The ADA questioned Juror 5, and after Juror 5 left the courtroom, Keith argued that Juror 5 should be discharged. (Id. at 146-48). The trial court declined to do so and directed Juror 5 to continue serving but promised to call his employer the next day. (Id. at 148-50, 253).

The prosecution's case consisted of 30 witnesses: (i) two Canadian customs agents; (ii) a U.S. Customs special agent; (iii) two United States Customs inspectors; (iv) the operator of the bus on which Triplett traveled to Buffalo; (v) NYPD Detectives Jay Denna, Greg Modica, and Kevin Flanagan; (vi) Dr. Rodriguez-Sains; (vii) Ramos; (viii) Jacoby; (ix) an NYPD video technician; (x) NYPD Officers Cacamo, Panagi, Frierson, Ricciardi, and Collins; and (xi) twelve other individual witnesses. (ECF No. 35 at 15-16). At the close of the prosecution's case, Keith moved for a mistrial on, among other grounds, Juror 5's inability to focus, which the trial court denied. (Id. at 150, 254).

The only witness Triplett called was NYPD Detective Patricia Kelli,⁹ who had interviewed Jacoby and written in her report that Jacoby had been unable to identify his assailant “at that time” because the knife was near his eyes. (ECF No. 35 at 16, 157, 228).

9 Elsewhere in the record, spelled “Kelly.” (ECF No. 35 at 16, 157).

The jury found Triplett guilty of two counts of first-degree robbery for the incidents involving Ramos and Dr. Rodriguez-Sains, and one count of attempted first degree robbery for the incident involving Jacoby. (ECF No. 35 at 157). At the sentencing proceeding on March 14, 2001, Keith moved to set aside the verdict on the ground that the trial court had deprived Triplett of the right to present a defense by precluding him from introducing psychiatric evidence. (Id. at 159; 36 at 2). The trial court denied the motion, and after Triplett made an outburst during the proceeding and said he did not “have time for this nonsense,” removed him from the courtroom. (ECF Nos. 35 at 159, 261; 36 at 4). The trial court found that the opinions of Dr. David and Dr. Rosenberg showed that Triplettunderstood “the nature and quality of his actions[,]” but found that there was no evidence he “was unable to form an intent to rob or did not form an intent to rob[,]” even if he “justifie[d] that behavior, delusion[al]ly or otherwise[.]” (ECF No. 35 at 159). The trial court concluded that it had an “obligat[ion] to protect the community by isolating Mr. Triplett for as long as possible[,]” and sentenced him to 25 years' imprisonment on each first degree robbery count, and 15 years on the first degree attempted robbery count, for a total of 65 years' imprisonment (the “First Judgment”). (Id. at 10-11, 160, 261; see ECF No. 36-1 at 3-5).

iii. Direct Appeal

On March 19, 2001, Triplett filed a notice of appeal from the First Judgment. (ECF No. 35 at 9). Triplett, represented by the Center for Appellate Litigation, argued that the trial court erred in: (i) failing to dismiss Juror 5 in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, the New York State Constitution, and New York Criminal Procedure Law § 270.35; (ii) denying the request to present the affirmative defense of mental disease or defect, in violation of the Fifth and Fourteenth Amendments, the New York State Constitution, and New York Penal Law §§ 40.15, 60.55, and 250.10; and (iii) imposing consecutive, rather than concurrent, sentences. (Id. at 129-70). The record before the First Department on the direct appeal included transcripts of the Hearing, voir dire, trial, and sentencing, as well as copies of Triplett's pretrial motions, and the opinions of Dr. David and Dr. Rosenberg. (Id. at 7).

In a decision dated May 15, 2003, the First Department affirmed the First Judgment. People v. Triplett, 305 A.D.2d 230 (1st Dep't 2003) (“Triplett I”).¹⁰ (See ECF No. 35 at 264-65). The court found that the trial court properly exercised its discretion in denying Triplett's request to remove Juror 5 because “[t]he record establish[ed] that the juror was not so preoccupied with” his employer's displeasure and the length of jury service “as to render him grossly unqualified to serve.” Triplett I, 305 A.D.2d at 231 (citing People v. Buford, 69 N.Y.2d 290 (1987)). The First Department held that the trial court properly excluded evidence of Triplett's mental illness, which was “irrelevant to any psychiatric defense recognized by New York law[.]” Id. (citing N.Y. Crim. P. L § 250.10(1); N.Y. Penal L. § 40.15; People v. Almonor, 93 N.Y.2d 571 (1999)). In the alternative, the court noted that such evidence “would not have established any recognizable defense[,]” but “actually negated a defense of lack of criminal responsibility by reason of mental disease or defense, or a defense of lack of intent to commit robbery.” Id. The court also noted that Triplett's assertion that the exclusion of the mental capacity evidence violated “his constitutional right to present a defense, such claim is unpreserved and without merit.” Id. Finally, the First Department found “no basis for reducing [his] sentence.” Id.

10 All internal citations and quotation marks are omitted from case citations unless otherwise indicated.

On May 21, 2003, Triplett's appellate counsel applied for leave to appeal to the New York Court of Appeals, raising two arguments: (i) the trial court's refusal to discharge Juror 5; and (ii) the exclusion of Triplett's proffered evidence of mental disease or defect. (ECF No. 35 at 266-67 (the “Application”)). At Triplett's request, his Application was withdrawn on July 11, 2003. People v. Triplett, 100 N.Y.2d 588 (2003) (“Triplett II”). (See ECF No. 35 at 268).

c. The Second Trial

The second trial covered two additional counts of first-degree robbery for incidents that occurred on January 10, 2000. (ECF Nos. 34-1 at 8-9; 35 at 203 n.1).¹¹At approximately 6:30 a.m. that day, Triplett, wielding a large hunting knife, robbed Joseph Carrozzo of $180.00 and a watch near 28th Street and Lexington Avenue. (ECF No. 34-1 at 8). About 30 minutes later, near 31st Street and Second Avenue, Triplett asked Dr. Joseph Wagner for the time, then displayed the hunting knife and stole his cash. (Id. at 8). The jury convicted Triplett of two counts of first-degree robbery, and on August 8, 2001, the trial court sentenced him to two consecutive determinate 25-year prison terms, to run consecutively to the terms in the First Judgment. (Id. at 9 (the “Second Judgment”)).

11 The remaining counts in the Indictments were dismissed. (ECF No. 35 at 203 n.1).

Triplett appealed the Second Judgment, but on June 23, 2003, Triplett's appellate counsel submitted a letter to the First Department stating that Triplett “has now asked [] to withdraw his appeal” and enclosing a stipulation, which Triplett had signed. (ECF No. 35 at 4-5 (the “Stipulation”)). On July 24, 2003, the First Department entered an order that deemed the Stipulation a motion to withdraw the appeal, granted the motion, and “deemed” the appeal withdrawn. (Id. at 6). See People v. Triplett, 307 A.D.2d 781 (1st Dep't 2003) (“Triplett III”).¹²

12 On April 16, 2002, Triplett was convicted, after a jury trial in Brooklyn, of second-degree murder and sentenced to 25 years to life in prison, a sentence that is to run consecutively to the First and Second Judgments. (ECF No. 35 at 261 n.32 (the “Brooklyn Conviction”)).

d. Triplett's Sentences

On June 12, 2012, the New York State Department of Corrections and Community Supervision submitted a letter to the trial court advising that New York law required her to “impose a separate period of post-release supervision ([‘PRS']) for each and every count for which a determinate sentence of imprisonment is imposed[,]” but that the First Judgment did not impose the required period of PRS, such that re-sentencing was required. (ECF No. 35-1 at 16 (emphasis removed)). Noting that the prosecution had not sought any correction to Triplett's sentences, the trial court took no action, and explained that “the determinate sentence, without a period of post-release supervision, will stand as the sentence in this matter.” (Id. at 18 (the “2012 Order”)).

e. 440 Motions

In March or April 2009, Triplett filed a motion to set aside his sentence pursuant to New York Criminal Procedure Law § 440.20 (the “First 440 Motion”), arguing that he lacked the mental capacity to understand or participate in the proceedings, and was erroneously sentenced to consecutive prison terms.¹³(ECF Nos. 34-1 at 10-11; 35-1 at 2).¹⁴ On June 26, 2009, the trial court denied the First 440 Motion on the ground that Triplett's arguments had been previously determined on the merits on his direct appeal. (ECF No. 35-1 at 2 (citing N.Y. Crim. P. L. § 440.10(2)(a)).¹⁵ In November 2009, the First Department denied Triplett's request for leave to appeal from the denial of the First 440 Motion. (Id. at 4-9, 15).

13 This statute permits a defendant to move to “set aside [his] sentence upon the ground that it was unauthorized, illegally imposed, or otherwise invalid as a matter of law.” N.Y. Crim. P. L. § 440.20(1).

14 The record does not contain a copy of the First 440 Motion.

15 Although Triplett cited § 440.20, the trial court interpreted his motion to arise under New York Criminal Procedure Law § 440.10 (ECF No. 35-1 at 38), which provides an exclusive list of the grounds on which a conviction may be vacated after entry of judgment. N.Y. Crim. P. L. § 440.10(1).

On May 8, 2017, Triplett filed another motion under § 440.20, arguing that: (i) his sentence was excessive; (ii) his Fourth Amendment rights had been violated; (iii) his youth and mental handicap were mitigating circumstances warranting a reduced sentence; (iv) he should be deported; (v) the Brooklyn District Attorney used illegal tactics to fabricate evidence; (vi) his shackling during trial violated Due Process. (ECF No. 35-1 at 21-29 (the “Second 440 Motion”, with the First 440 Motion, the “440 Motions”)). The Manhattan DA opposed the Second 440 Motion, arguing that the First Department had previously rejected Triplett's challenge to his sentence on direct appeal, that § 440.20 did not provide a mechanism to challenge his underlying convictions, and that he failed to provide any legal basis other than his own statements to support his claims. (Id. at 31-37). On September 7, 2017, the Honorable Anthony Ferrara denied the Second 440 Motion,¹⁶citing the arguments raised in the Manhattan DA's opposition, as well as §§ 440.10(2)(a) and (d)¹⁷and § 440.30(4)(a).¹⁸ (Id. at 38). On December 4, 2017, the First Department denied Triplett's application for leave to appeal Justice Ferrara's denial of the Second 440 Motion. (Id. at 39-47). On April 12, 2019, the Court of Appeals denied Triplett's application for leave to appeal, on June 7, 2019, denied his subsequent motion for reconsideration. (ECF Nos. 34-1 at 11; 35-1 at 48).

16 Justice Ferrara deemed Triplett's Second 440 Motion to arise under § 440.10. (ECF No. 35-1 at 38).

17 Section 440.10(2)(a) requires denial of a § 440.10 motion where “[t]he ground or issue raised upon the motion was previously determined on the merits upon an appeal from the judgment[,]” and § 440.10(2)(d) requires denial where “[t]he ground or issue raised relates solely to the validity of the sentence and not to the validity of the conviction.” N.Y. Crim. P. L. §§ 440.10(2)(a), (d).

18 Section 440.30(4)(a) permits a court to deny a § 440.10 motion where “[t]he moving papers do not allege any ground constituting legal basis for the motion[.]” N.Y. Crim. P. L. § 440.30(4)(a).

2. Federal Habeas Corpus Petition

On February 7, 2020, Triplett filed the First Petition, challenging his robbery convictions on six grounds: (1) that evidence was collected in violation of the Fourth Amendment (the “Fourth Amendment Claim”); (2) that his sentence was excessive (the “Excessive Sentence Claim”); (3) that the trial court erred in excluding evidence of his mental incapacity (the “Mental Capacity Claim”); (4) that he is an illegal immigrant who should be deported (the “Immigration Claim”); (5) that he was improperly shackled during trial (the “Shackling Claim”); and (6) that he is entitled to a hearing with respect to post-release supervision (the “Supervision Claim”). (ECF No. 1 at 3-14). Triplett also requested that the Court appoint counsel. (ECF No. 2).

On March 23, 2020, following an initial review of the First Petition, the Honorable Colleen McMahon observed that his “challenges appear to be time-barred[,]” having been filed “more than 15 years after the applicable limitations periods to seek [Section] 2254 habeas corpus relief had expired.” Triplett v. Reardon, No. 20 Civ. 1064, 2020 WL 8970599, at *1-2 (S.D.N.Y. Mar. 23, 2020) (“Triplett IV”). Judge McMahon thus ordered Triplett to “show cause why the Court should not deny his [Section] 2254 petition - in which he challenges two state-court judgments of conviction - as time-barred.” Id. at *1. Specifically, Triplett was instructed “to allege any facts showing that he has been pursuing his rights diligently and that some extraordinary circumstances prevented him from timely submitting his [P]etition.” Id. (citing Holland v. Florida, 500 U.S. 631, 649 (2010)). After two extensions (ECF Nos. 10, 12), on August 6, 2020, Triplett filed a response in which he explained that:

• “around July - Aug. 2003” due to “the chaos that this country was inflicting on [his] fellow Muslims in Iraq, [he] felt hopeless & depressed” and requested that the appeal of the Second Judgment be withdrawn;

• “around 2005” he “had a mental/psychological Breakdown” and was frequently placed on suicide watch;

• in December 2006 he “was viciously assaulted by” corrections officers at Clinton Correctional Facility “and all of [his] personal property & legal works & papers [were] destroyed”;¹⁹

• in 2007, he “was detained in Central NY Psychiatric Center for 2 months [] as the after effect of being viciously assaulted”;

• he filed the First 440 Motion in “April May 2009” but withdrew his appeal of the denial of that motion after he was told that his biological daughter was not, in fact, his daughter;

• in March 2014, he “had a complete mental breakdown” after being assaulted by corrections officers at Five Points Correctional Facility;

• in June 2014, he was transferred to CNYPC;²⁰

• in September 2014, he was forced to take psychotropic medications for 15 months, rendering him “incapacitated & incapable of intellectually or rationally functioning] for [] 2 % years”; and

• in 2017, he became “capable of filing the initial steps to this post conviction appeal[.]”

(ECF No. 13 at 4-5 (the “OTSC Response”)). Triplett also asserted that it would be a miscarriage of justice to deny consideration of his First Petition, that newly discovered evidence invalidated his conviction, that his appellate counsel was ineffective, and that he was entitled to equitable tolling. (Id. at 9-18).

19 Triplett brought an action pursuant to 42 U.S.C. § 1983 (“§ 1983”) arising out of this incident. See Triplett v. Reardon, No. 09 Civ. 1396 (NAM) (GHL), 2012 WL 913711 (N.D.N.Y. Feb. 9, 2012) (recommending denial of defendants' motion for summary judgment), adopted by, 2012 WL 913043 (N.D.N.Y. Mar. 16, 2013).

20 Triplett filed another § 1983 action arising out of his treatment at CNYPC. See Triplett v. Asch, No. 17 Civ. 656 (MAD) (TWD), 2020 WL 5238802 (N.D.N.Y. June 2, 2020) (recommending that defendants' motion for partial summary judgment be granted in part and denied in part), adopted by, 2020 WL 3424496 (N.D.N.Y. June 23, 2020).

On September 18, 2020, the Honorable Ronnie Abrams, to whom this action had been reassigned (see ECF min. entry Sept. 14, 2020), ordered Respondent to respond to the First Petition and the OTSC Response. (ECF No. 19). On December 8, 2020, Triplett filed a letter in which he stated his intent to file a habeas corpus petition in the Eastern District of New York, but that his attorney's “procrastination” was the reason for his delay in doing so. (ECF No. 31 at 1 (the “December 8 Letter”)). Triplett added that any attorney the Court might appoint to represent him was “a fraud” who would “help conspire[] to keep” him in prison. (Id.)

On January 27, 2021, Respondent filed an answer and memorandum of law in opposition to the First Petition. (ECF Nos. 34; 34-1). Respondent stated:

Although [R]espondent obtained a copy of the transcript of the sentencing proceeding related to [Triplett's] March 14, 2001 conviction, [R]espondent has been unable to obtain any other transcripts related to that conviction or to [his] August 8, 2001 conviction. Respondent has unsuccessfully attempted to obtain the transcripts from the New York County District Attorney's Office, the Center for Appellate Litigation, which represented [Triplett] on appeal, the Appellate Division, First Department, and the New York County Supreme Court Library.

(ECF No. 34 at 3-4 ¶ 9). On March 25, 2021, the Court denied without prejudice Triplett's request for the appointment of counsel, finding that he had “not demonstrated that his position is ‘one of substance' that merits pro bono counsel.” (ECF No. 39). On April 28, 2021, Triplett filed a reply in further support of the First Petition. (ECF No. 40 (the “Reply”)).

On November 9, 2021, Triplett filed a letter in which he challenged Respondent's inability to locate his trial transcripts and stated that he intended to request leave to amend the First Petition, which the Court deemed as a supplement to his Petition. (ECF Nos. 47 (the “First Supplement”); 48). The Court subsequently granted Triplett's request for leave to supplement the First Petition. (ECF Nos. 51; 52). On April 8, 2022, Triplett filed another supplement in which he raised arguments that his trial counsel was ineffective in failing to negotiate a more favorable plea, the trial court was biased against him, evidence was gathered in violation of the Fourth Amendment, and his sentences should have been concurrent rather than consecutive. (ECF No. 56 (the “Second Supplement”)). A few days later, Triplett filed a motion for “a completely new trial, reconstruction hearing, outside investigation, reversal, time served[,] or bail” based on Respondent's inability to locate the trial transcripts. (ECF No. 55 at 2 (the “Discovery Motions”)). Respondent opposed the Discovery Motions. (ECF No. 58). The Court deferred judgment on the Discovery Motions, indicating that it would consider his requested relief in issuing this Report and Recommendation. (ECF No. 62). Triplett filed letters objecting to the Court's approach to the Discovery Motions, threatening a hunger strike, seeking leave to serve deposition subpoenas on the trial court and Respondent's counsel, and renewing his request for appointment of counsel. (ECF Nos. 63; 64). Construing Triplett's letters as a motion for reconsideration, the Court denied his requested relief. See Triplett v. Reardon, No. 20 Civ. 1064 (RA) (SLC), 2022 WL 16857351 (S.D.N.Y. Oct. 27, 2022) (“Triplett V”). (ECF No. 65).

On November 16, 2022, the Court granted Triplett's request to file a further supplement to the First Petition. (ECF No. 67; see also ECF No. 69). On January 11, 2023, Triplett filed the Second Petition and a supporting memorandum of law (the “Memo”)). (ECF Nos. 70; 70-1; 702). In the Second Petition, Triplett asserts the following claims: (1) violation of the Court Reporters Act (the “Transcript Claim”); (2) ineffective assistance of his trial counsel with respect to plea negotiations (the “Ineffective Assistance Claim”); (3) actual innocence (the “Actual Innocence Claim”); (4) newly discovered evidence (the “New Evidence Claim”); (5) that Juror 5 should have been excluded (the “Juror 5 Claim”); (6) judicial and prosecutorial bias (the “Bias Claim”); and (7) Batson²¹violations (the “Batson Claim”). (ECF No. 70-1). On January 20, 2023, at the Court's request, Respondent filed a letter in response to the Second Petition. (ECF No. 72). Judge Abrams has referred the Petitions for this Report and Recommendation. (ECF No 32).

21 In Batson v. Kentucky, the United States Supreme Court held that a prosecutor's exercise of peremptory challenges based on race violated the Equal Protection Clause of the Fourteenth Amendment. 476 U.S. 79 (1986).

III. LEGAL STANDARDS

A. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides that:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). “A claim is ‘adjudicated on the merits' if the state court ruled on the substance of the claim rather than on a procedural ground.” Jordan v. Lamanna, 33 F.4th 144, 150 (2d Cir. 2022) (quoting Sellan v. Kuhlman, 261 F.3d 303, 309 (2d Cir. 2001)). Thus, a state court's ruling on the merits of a constitutional claim, rather than a procedural ground, constitutes adjudication on the merits for purposes of AEDPA. See Zarvela v. Artuz, 364 F.3d 415, 417 (2d Cir. 2004) (applying AEDPA review to appellate court's ruling that petitioner's unpreserved claim was “in any event, without merit”); Brown v. Artuz, 283 F.3d 492, 498 (2d Cir. 2002) (same).

“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.'” Brown, 283 F.3d at 500 (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). “A decision is an ‘unreasonable application' of clearly established [federal] law if a state court ‘identifies the correct governing legal principle from [the Supreme Court's] decision but unreasonably applies that principle to the facts of [a] prisoner's case.'” Id. at 501 (quoting Taylor, 529 U.S. at 413). In this context, unreasonableness is an objective standard. See Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000) (quoting Taylor, 529 U.S. at 409).

The Second Circuit recently reiterated the Supreme Court's instruction to district courts that “[a] writ cannot be granted ‘simply because . . . the relevant state-court decision applied clearly established federal law erroneously or incorrectly.'” Jordan, 33 F.4th at 150 (quoting Taylor, 529 U.S. at 411). “Rather, whether a decision is ‘contrary to' or an ‘unreasonable application of' clearly established federal law is a ‘substantially higher threshold' than mere incorrectness.” Id. (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)). Under AEDPA's “highly deferential” standard of review, Davis v. Ayala, 576 U.S. 257, 269 (2015), “an incorrect application of federal law is not necessarily an unreasonable one.” Adams v. Keyser, No. 16 Civ. 129 (GBD) (AJP), 2018 WL 2089337, at *2 (S.D.N.Y. May 3, 2018) (citing Grayton v. Ercole, 691 F.3d 165, 174 (2d Cir. 2012)). Rather, a district court should grant a writ as an unreasonable application of clearly established Supreme Court precedent only if “the state court's ruling on the claim . . . was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). “In other words, the existence of ‘reasonable arguments on both sides' is ‘all [the state] needs to prevail in [an] AEDPA case.'” Jordan, 33 F.4th at 151 (quoting White v. Woodall, 572 U.S. 415, 427 (2014)); see Fulton v. Sup't, No. 20 Civ. 21 (GBD) (SLC), 2020 WL 3250594, at *3 (S.D.N.Y. June 16, 2020) (“The question under the AEDPA ‘is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable, which is a substantially higher threshold.'”) (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)); Adams, 2018 WL 2089337, at *2 (“If ‘fairminded jurists could disagree on the correctness of the state court's decision[,]' the state court's determination is not objectively unreasonable.”) (quoting Harrington, 562 U.S. at 101). Under the AEDPA, the factual findings of state courts are presumed to be correct. See 28 U.S.C. § 2254(e)(1); see also Nelson v. Walker, 121 F.3d 828, 833-34 (2d Cir. 1997). To overcome this presumption, a petitioner must present “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

Finally, Because Triplett is appearing pro se, the Court liberally construes his submissions and interprets them to raise the strongest arguments they suggest. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (stating that pro se papers “must be held to less stringent standards than formal pleadings drafted by lawyers”); Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam) (collecting cases).

B. Statute of Limitations

A prisoner seeking relief under Section 2254 must generally file a petition within one year from, as is relevant here, “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review[,]” or “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” See 28 U.S.C. § 2244(d)(1)(A), (D). This provision also specifies that “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2); see Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (“Section 2244(d)(2)'s tolling provision excludes time during which properly filed state relief applications are pending but does not reset the date from which the one-year statute of limitations begins to run.”). A “[p]ostconviction motion[] filed after the limitation period has expired, however, do[es] not start that period anew.” Triplett IV, 2020 WL 8970599, at *2 (explaining that “§ 2244(d)(2) tolling applies only if a petitioner's postconviction motion was pending within the one-year limitation period[]”).

Under § 2244(d)(1)(A), a New York State court judgment of conviction becomes final 90 days after the New York Court of Appeals' ruling on an application for leave to review if the petitioner does not file a writ of certiorari to the United States Supreme Court, see McKinney v. Artuz, 326 F.3d 87, 96 (2d Cir. 2003), or, if the application is withdrawn, the date of the withdrawal. See Letlow v. Sabourin, No. 01 Civ. 0103 (LBS), 2003 WL 21919430, at *2 (E.D.N.Y. Apr. 14, 2003). For a petition to be timely under § 2244(d)(1)(D), a petitioner “must show that the factual predicates for [his] claims could not have been discovered through the exercise of due diligence before” one year prior to the filing of the petition. Rivas v. Fischer, 687 F.3d 514, 534 (2d Cir. 2012). “The determination of the date on which the factual predicate for a habeas claim is first discoverable is a ‘fact-specific' inquiry which requires a district court to analyze the factual bases of each claim and to determine when the facts underlying the claim were known, or with due diligence could have been discovered.” Id. The Second Circuit has interpreted the “factual predicate” to “consist[] only of the ‘vital facts' underlying the claim[,]” i.e., “those without which the claim would necessarily be dismissed[.]” Id. New information “that merely supports or strengthens a claim that could have been properly stated without the discovery [] is not a ‘factual predicate' for purposes of triggering the statute of limitations under § 2244(d)(1)(D).” Id. at 535. Of course, “[conclusions drawn from preexisting facts, even if the conclusions are themselves new, are not factual predicates for a claim.” Id.

Finally, “actual innocence, if proved, serves as a gateway through which a petitioner may pass” if the statute of limitations would otherwise be an “impediment” to the petition. McQuiggin v. Perkins, 569 U.S. 383, 386 (2013); see United States v. Clark, 571 Fed.Appx. 67, 68 (2d Cir. 2014) (explaining that “credible and compelling claims of actual innocence may be considered even through an otherwise untimely petition”) (citing McQuiggin, 569 U.S. at 386-87). To establish actual innocence, a petitioner must first “adduce ‘new reliable evidence- whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.'” Hyman v. Brown, 927 F.3d 639, 656 (2d Cir. 2019) (quoting Schlup v. Delo, 513 U.S. 298, 324 (1995)). Second, “the evidence must be compelling[,]” i.e., it must be “‘evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.'” Id. at 657 (quoting Schlup, 513 U.S. at 316).

C. Exhaustion

AEDPA prevents a federal court from considering a petition for a writ of habeas corpus by a prisoner in state custody unless the petitioner has exhausted all state remedies. See 28 U.S.C. § 2254(b)(1)(A); see also Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014). To satisfy the exhaustion requirement, the petitioner must have “fairly presented” his claims in federal constitutional terms to the state courts, thereby affording those courts the opportunity to correct the alleged violations of federal rights. Picard v. Connor, 404 U.S. 270, 275 (1971). “To satisfy [Section] 2254's exhaustion requirement, a petitioner must present the substance of ‘the same federal constitutional claim[s] that he now urges upon the federal courts[.]"” Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir. 2001) (quoting Turner v. Artuz, 262 F.3d 118, 123 (2d Cir. 2001)). The exhaustion requirement is fulfilled once the federal claims have been presented to “the highest court of the state.” Galdamez v. Keane, 394 F.3d 68, 73 (2d Cir. 2005).

In New York, a “defendant must first appeal . . . to the Appellate Division, and then must seek further review . . . by applying to the Court of Appeals for a certificate granting leave to appeal.” Galdamez, 394 F.3d at 74. “New York procedural rules bar its state courts from hearing either claims that could have been raised on direct appeal but were not, or claims that were initially raised on direct appeal but were not presented to the Court of Appeals.” Sparks v. Burge, No. 06 Civ. 6965 (KMK) (PED), 2012 WL 4479250, at *4 (S.D.N.Y. Sept. 28, 2012); see N.Y. Crim. P. L. § 440.10(2)(c). In addition, “when a petitioner fails to present a claim to each level of the state courts but is thereupon foreclosed from doing so by state procedural rule, the petitioner's claim is ‘deemed exhausted' for purposes of federal habeas review.” Priester v. Senkowski, No. 01 Civ. 3441 (LMM) (GWG), 2002 WL 1448303, at *3 (S.D.N.Y. July 3, 2002) (quoting Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997)). In that event, however, “the procedural bar that gives rise to exhaustion provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents habeas review of the defaulted claim[.]” Gray v. Netherland, 518 U.S. 152, 162 (1996). (See § III.D, infra).

For claims involving matters “not reflected in, or fully explained by, the record,” People v. Moreno-Grantini, 167 A.D.3d 471, 472 (1st Dep't 2018) (“Moreno-Gratini I”), “a petitioner must assert the claim in a [Section] 440.10 motion[,]” and “[i]f that motion is denied, he must then seek leave to appeal to the Appellate Division in order to exhaust his state court remedies.” Moreno-Gratini v. Sticht, No. 19 Civ. 5964 (GHW) (SN), 2022 WL 1425712, at *7 (S.D.N.Y. Apr. 18, 2022) (“Moreno-Gratini II”),²² adopted by, 2022 WL 1423298 (S.D.N.Y. May 5, 2022); see N.Y. Crim. Proc. L. § 450.90; see also Cosey v. Lilley, 460 F.Supp.3d 346, 370 (S.D.N.Y. 2020) (noting that no further appellate review is available after Appellate Division denies leave to appeal denial of a Section 440.10 motion).

22 While the spelling of the defendant's name differs in the state and federal court proceedings, Moreno-Gratini I and Moreno-Gratini II arise out of the same conviction involving the same person. Compare Moreno-Gratini I, 167 A.D.3d at 471 (referring to Sept. 6, 2017 conviction) with Moreno-Gratini II, 2022 WL 1425712, at *4 (same). The Court employs the spelling used by the federal court.

Where a claim is either unexhausted or “deemed” unexhausted, the Court may proceed to consider the merits of the claim “if the petitioner demonstrates either cause for the default and actual prejudice from the alleged violation of federal law[,] or that the failure to consider the claims will ‘result in a fundamental miscarriage of justice.'” Acosta v. Giambruno, 326 F.Supp.2d 513, 520 (S.D.N.Y. 2004) (quoting Coleman v. Thompson, 501 U.S. 722, 750 (1991)); see Priester, 2002 WL 1448303, at *3-5 (finding that where petitioner withdrew direct appeal, his claims were deemed exhausted but procedurally defaulted and not subject to habeas corpus review). In this context, “cause” means “‘some objective factor external to the defense [that] impeded counsel's efforts' to raise the claim in state court.” Acosta, 326 F.Supp.2d at 520 (quoting McCleskey v. Zant, 499 U.S. 467, 493 (1991)). “Actual prejudice” requires the petitioner to show “‘actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'” Id. (quoting United States v. Frady, 456 U.S. 152, 170 (1982)). “A miscarriage of justice occurs ‘in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent[.]"' Id. (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)). “To establish actual innocence, petitioner must demonstrate that in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him.” Dixon v. Miller, 293 F.3d 74, 81 (2d Cir. 2002); see Bousley v. United States, 523 U.S. 614, 623-24 (1998) (“‘Actual innocence' means factual innocence, not mere legal insufficiency”).

D. Adequate and Independent State Grounds

“A federal habeas court will not review a claim rejected by a state court ‘if the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment.'” Walker v. Martin, 562 U.S. 307, 315 (2011) (quoting Beard v. Kindler, 558 U.S. 53, 55 (2009)); see Rizzo v. Capra, No. 18 Civ. 1185 (GBD) (KNF), 2019 WL 2511349, at *2 (S.D.N.Y. June 18, 2019) (“It is well established that federal habeas courts may not review a claim rejected by a state court ‘if the decision of [the state] court rests on a state law ground that is independent of the federal question and thought adequate to support the judgment.'”) (quoting Coleman, 501 U.S. at 729). “The state-law ground may be substantive or procedural.” Moreno-Gratini II, 2022 WL 1425712, at *5; see Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir. 2006) (“When the state court's decision rests on an independent procedural bar . . . a federal court must still determine whether that state procedural ground is adequate to support the judgment.”); see Rizzo, 2019 WL 2511349, at *2 (“The independent and adequate state ground doctrine applies whether the state-law ground is ‘a substantive rule dispositive of the case, or a procedural barrier to adjudication of the claim on the merits.'”) (quoting Walker, 562 U.S. at 315). “Even where the state court has ruled on the merits of a federal claim ‘in the alternative,' federal habeas review is foreclosed where the state court has also expressly relied on the petitioner's procedural default.” Murden v. Artuz, 497 F.3d 178, 191 (2d Cir. 2007) (quoting Green v. Travis, 414 F.3d 288, 294 (2d Cir. 2005)); Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) (explaining that “federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim”).

Only if the state court's decision rests on an “independent procedural bar” that is “‘adequate to support the judgment'” will federal habeas review be barred. Murden, 497 F.3d at 191-92 (quoting Jimenez, 458 F.3d at 138). “A state procedural bar is ‘adequate' if it ‘is firmly established and regularly followed by the state in question' in the ‘specific circumstances presented in a case.'” Moreno-Gratini II, 2022 WL 1425712, at *6 (quoting Monroe v. Kuhlman, 433 F.3d 236, 241 (2d Cir. 2006)); see Rizzo, 2019 WL 2511349, at *2 (“‘To be considered an independent and adequate state ground, the state law must be firmly established and regularly followed in the specific circumstances presented in the case.'”) (quoting Williams v. Artus, 691 F.Supp.2d 515, 524 (S.D.N.Y. 2010)). The exceptions to this rule are where the petitioner establishes either “‘cause for the default and prejudice'” or that he is “‘actually innocent' of the crime for which he was convicted.” Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011) (quoting Aparicio, 269 F.3d at 90).

In addition, there exist “exceptional cases in which [the] exorbitant application of a generally sound rule renders the state ground inadequate” to preclude federal habeas corpus review. Lee v. Kemna, 534 U.S. 362, 376 (2002); see Cotto v. Herbert, 331 F.3d 217, 239-40 (2d Cir. 2003) (assessing whether petition fell within “‘the small category of cases in which [the] asserted state grounds are inadequate to block adjudication of the federal claim' or ‘in which the exorbitant application of a generally sound rule renders the state ground inadequate' to bar consideration of the federal constitutional claim”) (quoting Lee, 534 U.S. at 376). To determine whether the procedural bar is an “adequate” independent state ground to bars review, courts analyze: “(1) whether the trial court actually relied on the alleged procedural violation, and ‘whether perfect compliance with the state rule would have changed the trial court's decision'; (2) whether compliance with the rule was required by the governing caselaw under the ‘specific circumstances presented'; and (3) ‘whether petitioner had substantially complied with the rule given the realities of trial, and therefore, whether demanding perfect compliance with the rule would serve a legitimate government interest.'” Chodakowski v. Annucci, No. 19 Civ. 248 (LTS) (KBP), 2020 WL 9065795, at *6 (S.D.N.Y. Apr. 28, 2020) (quoting Cotto, 331 F.3d at 240).

IV. DISCUSSION

A. Timeliness

As Judge McMahon previously explained, the First Judgment “became final, at the latest, on or about October 9, 2003 - 90 days after the New York Court of Appeals granted [Triplett's] application to withdraw [the Application][,]” and therefore, he “had, at the latest, until about October 9, 2004 to file a timely [Section] 2254 petition to challenge” the First Judgment. Triplett IV, 2020 WL 8970599, at *2.²³Similarly, the Second Judgment “became final, at the latest, on or about August 23, 2003 - 30 days after the date that the [First Department] deemed [his] appeal withdrawn[,]” such that he “had, at the latest, until about August 23, 2004 to file a timely [Section] 2254 petition to challenge” the Second Judgment. Id. Triplett, however, “did not place his [First] [P]etition into his prison's mail system for its delivery to this Court until January 30, 2020 (ECF [No.] 1 at 15), more than 15 years after the applicable limitation periods to seek [Section] 2254 habeas corpus relief had expired.” Id. Finally, Judge McMahon found that, because Triplett did not file the First 440 Motion “until April or May 2009, years after the applicable limitation periods to seek [Section] 2254 habeas corpus relief had expired[,] [ . . . ] the pendency of the [] [M]otions did not toll the limitation periods under § 2244(d)(2).” Id.

23 Because Triplett withdrew his Application, he “foreclosed the possibility” of review by the United States Supreme Court, such that he would not even be entitled to the additional 90 days that Judge McMahon generously afforded him. See Hanks v. Ekpe, No. 04 Civ. 6215L, 2007 WL 3077030, at *3 (W.D.N.Y. Oct. 19, 2007); 28 U.S.C. § 1257(a) (“Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari . . . .”).

Because Triplett failed to file the First Petition within the one-year statute of limitations, the question for the Court is whether his delay is excusable. The Court interprets Triplett to be arguing that the Court should consider the Petitions, regardless of when they were filed, because he is actually innocent and because he is entitled to equitable tolling. (See ECF No. 13 at 9 (“It goes against the law of nature to imprison someone for the rest of his life for taking” less than $2,000.00.”); id. at 18 (“[M]y case warrants equitable tolling [because] of wide constitutional violation[s] inflicted upon me[.]”)). For the reasons set forth below, the Court finds that neither of these arguments excuse his untimely filing of the First Petition. See Peguero v. Smith, No. 14 Civ. 6128 (RA), 2018 WL 816836, at *3-4 (S.D.N.Y. Feb. 9, 2018) (assessing whether petitioner established actual innocence or extraordinary circumstances and reasonable diligence to excuse untimely petition).

First, in the habeas corpus context, “actual innocence means factual innocence, not mere legal insufficiency.” Peguero, 2018 WL 816836, at *3 (quoting Bousley, 523 U.S. at 623). In support of his Actual Innocence Claim, Triplett asserts that: (i) “the juries did not convict” him, but rather the trials were “either a mistrial or deadlocked”; (ii) the Customs agents “planted false evidence against [him] with the collaboration of detectives from Brooklyn”; and (iii) “the corruptions” of former Brooklyn District Attorney Charles Hynes “is well known.” (ECF Nos. 70-1 at 9-10; 70-2 at 29; see ECF No. 13 at 11 (“[T]he evidence that the Manhattan Robbery Precinct used against me was follow-up from what Brooklyn homicide detectives illegally fabricated [and] confiscated from [him] [] while [he] was in Buffalo[.]”)). Apart from these assertions, however, Triplett offers no evidence, let alone reliable, “credible,” and “compelling” evidence of his innocence, Hyman, 927 F.3d at 656-57, sufficient to “meet the high standard of making it more likely than not that no reasonable juror would convict . . . or that unquestionably establishes innocence as a factual matter[.]” Peguero, 2018 WL at 816836, at *3 (finding that “affidavits were merely arguable evidence” that did not establish actual innocence to excuse untimely petition). Indeed, the Manhattan DA, not the Brooklyn District Attorney, prosecuted the charges through the First and Second Trials. (ECF No. 35 at 17-19, 25-27, 31-33, 90-91). Even if Triplett had substantiated his assertions, however, “that would do little to undermine the undisputed evidence that” he robbed five people at knife-point, and attempted to rob a sixth, and that he was therefore guilty of the robbery and attempted robbery charges of which he was convicted. Id. Furthermore, Triplett's admissions that he engaged in conduct for which he was charged and convicted negate his Actual Innocence Claim. For example, Triplett states in the OTSC Response that “no one was injured [and] one of the robbery victims”- Ramos-“was actually given his whole property back[.]” (ECF No. 13 at 14; see also id. at 9 (arguing that “[i]t goes against the law of nature to imprison someone for the rest of his life for taking aggrav[a]ted $1,500 - $1,900[.]”); ECF No. 56 at 2 (arguing that plea offer was excessive “in light of the small amount that was taken[,] that no one was injured[,]” and [two] robberies wasn't [sic] even a complete robbery.”)). Accordingly, the Court finds that Triplett “has not met the actual-innocence standard that would excuse [the] untimely” filing of his First Petition. Peguero, 2018 WL at 816836, at *3.

Second, the Court finds that Triplett has not established that he is entitled to tolling- either statutory or equitable-of the statute of limitations. As Judge McMahon explained, Triplett “did not file his earliest § 440 motions until April or May 2009, years after the applicable limitation periods to seek [Section] 2254 habeas corpus relief had expired[,]” such that “the pendency of the [] [M]otions did not toll the limitations periods under § 2244(d)(2).” Triplett IV, 2020 WL 8970599, at *2. Unable to benefit from statutory tolling, to benefit from equitable tolling, Triplett must establish “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented untimely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010). As the Second Circuit has explained, “the proper inquiry is not how unusual the circumstance alleged to warrant tolling is among the universe of prisoners, but rather how severe an obstacle it is for the prisoner endeavoring to comply with AEDPA's limitations period.” Diaz v. Kelly, 515 F.3d 149, 153-54 (2d Cir. 2008). “To show that extraordinary circumstances ‘prevented' him from filing on time,” Triplett was required to “‘demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing, a demonstration that cannot be made if [he], acting with reasonable diligence, could have filed on time notwithstanding the extraordinary circumstances.” Hizbullahankamon v. Walker, 255 F.3d 65, 75 (2d Cir. 2001) (quoting Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000)). Thus, if Triplett did “not exercise[] reasonable diligence in attempting to file after the extraordinary circumstances began, the link of causation between the extraordinary circumstances and the failure to file is broken, and the extraordinary circumstances therefore did not prevent filing.” Valverde, 224 F.3d at 134.

Triplett has failed to establish that extraordinary circumstances existed between August and October 2003-when the Second and First Judgments, respectively, became final-and August and October 2004, when the one-year statute of limitations periods expired, that prevented him from filing a timely petition under Section 2254. See Triplett IV, 2020 WL 8970599, at *2 (calculating dates when one-year limitations period expired). The December 8 Letter claiming that his retained attorney failed to file a timely petition in the Eastern District of New York challenging his murder conviction does not address his failure to file a timely petition in this Court challenging his robbery convictions. (ECF No. 31 at 1). His conclusory references to mental incapacity are similarly “insufficient to meet his burden.” Rhodes v. Senkowski, 82 F.Supp.2d 160, 172 (S.D.N.Y. 2000) (collecting cases rejecting as insufficient to toll statute of limitations conclusory assertions of mental illness). Even if inpatient mental health treatment constituted an extraordinary circumstance that prevented Triplett from timely filing a petition, the earliest documented occasion of such treatment was in May 2005, more than six months after the statute of limitations expired as to the First Judgment, and more than nine months after the statute of limitations expired as to the Second Judgment. See Triplett IV, 2020 WL 8970599, at *2. There are no medical records or any other medical evidence for the year before the expiration of the statute of limitations, let alone evidence showing that he had a mental condition or underwent inpatient treatment that “prevented him from filing his habeas petition” on a timely basis. Rhodes v. Sheahan, No. 13 Civ. 0057 (FJS) (TWD), 2016 WL 890081, at *8-9 (N.D.N.Y. Jan. 12, 2006), adopted by, 2016 WL 894095 (N.D.N.Y. Mar. 8, 2016) (holding that petitioner's physical and medical conditions did not warrant equitable tolling of the statute of limitations); see Nash v. McGinnis, No. 04 Civ. 9496 (KMK), 2005 WL 1719871, at *3 (S.D.N.Y. July 22, 2005) (rejecting argument that petitioner's treatment for clinical mental disorders was sufficient to warrant equitable tolling). Furthermore, “whatever ailments [Triplett] may have, he twice was able to submit a reasonably coherent and comprehensive Petition in this case.” Id.

Because Triplett filed his First Petition well over one year after the First and Second Judgments became final, and because he neither meets any of AEDPA's exceptions to the statute of limitations period, qualifies for equitable tolling, nor establishes an actual innocence claim, the Court respectfully recommends that Triplett's Petitions be DENIED as time-barred.²⁴

24 Given that the 2012 Order did not alter Triplett's sentence, the Court does not construe it to be a “resentencing” under People v. Sparber, 10 N.Y.3d 457, 470-71 (2008), as might constitute an “amended judgment” re-starting AEDPA's one-year statute of limitations. See Smalls v. Lee, No. 12 Civ. 2083 (KMK) (LMS), 2016 WL 5339501, at *9 (S.D.N.Y. May 24, 2016) (declining to deem Sparber resentencing as an amended judgment for AEDPA statute of limitations purposes), adopted by, 2016 WL 5334986 (S.D.N.Y. Sept. 21, 2016); see also Gumbs v. Cunningham, No. 13 Civ. 5292 (RJD), 2017 WL 151596, at *4 (E.D.N.Y. Jan. 13, 2017) (noting that Second Circuit has not addressed whether a Sparber resentencing is “substantive” such that it results in a “new judgment” for purposes of second or successive petition analysis); Mercado v. Lempke, No. 11 Civ. 6529 (SAS), 2015 WL 3879636, at *4 n.39 (S.D.N.Y. June 16, 2015) (noting, in a case where petitioner was resentenced to add terms of post-release supervision to his sentence, that if the issue were presented de novo, the court would find that a Sparber resentencing did not qualify as a new judgment); but see Fields v. Lee, No. 12 Civ. 4878 (CS) (JCM), 2016 WL 889788, at *7 (S.D.N.Y. Jan. 28, 2016) (finding that resentencing proceeding in which post-release supervision was imposed was a “new judgment” such that “the AEDPA limitations period did not begin to run until this new judgment was final”), adopted by, 2016 WL 879319 (S.D.N.Y. Mar. 7, 2016). Even if the 2012 Order were deemed a new judgment, however, Triplett did not file any appeal from the 2012 Order, nor did he file the First Petition within a year of the 2012 Order. Therefore, the 2012 Order does not alter the Court's conclusion as to the untimeliness of the Petition.

B. Analysis of Triplett's Claims

Even if Triplett's claims in the Petitions were timely, the Court recommends in the alternative that the Petitions be denied because his claims are either unexhausted, procedurally-barred, non-cognizable, or otherwise do not provide a basis for habeas corpus review. See McNeil v. Capra, No. 13 Civ. 3048 (RA), 2019 WL 1897750, at *2 (S.D.N.Y. Apr. 29, 2019) (finding that, even if petitioner's claims were timely, they were “either non-cognizable or procedurally barred on habeas review”).

1. Exhaustion

a. Claims Raised on Direct Appeal

On his direct appeal of the First Judgment, Triplett raised the Juror 5 and Mental Capacity Claims. (ECF No. 35 at 160-69). The First Department rejected these arguments on the merits, Triplett I, 305 A.D.2d at 231, and although Triplett initially sought leave to appeal to the Court of Appeals with respect Juror 5 and Mental Capacity Claims, he voluntarily withdrew his Application before the Court of Appeals ruled. (ECF No. 35 at 266-68). See Triplett II, 100 N.Y.2d at 588. By omitting the Excessive Sentence Claim from the Application, Triplett abandoned that claim, which is therefore procedurally defaulted. See Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991).²⁵

25 In addition, Triplett only challenged his sentence on New York, not federal constitutional, law grounds. (ECF No. 35 at 169-70 (arguing that Triplett's sentences should be modified to run concurrently to enable him to be “release[d] to mental health authorities some time before the end of his life.”)). Triplett's failure to fairly present to the New York courts his Excessive Sentence Claim as a federal constitutional claim provides an additional reason why the Excessive Sentence Claim is unexhausted. See Picard, 404 U.S. at 275 (explaining that exhaustion requires a petitioner to “fairly present” his federal constitutional claim to state courts); Aparicio, 269 F.3d at 89 (explaining that “substance of ‘the same federal constitutional claim'” must have been presented to state courts).

And, by “withdrawing his state appeal,” Triplett “failed to exhaust his state remedies” as to the Juror 5 and Mental Capacity Claims. Ellman v. Davis, 42 F.3d 144, 148 (2d Cir. 1994); see Galdamez, 394 F.3d at 74 (explaining “one complete round” of New York's appellate review process requires direct appeal to Appellate Division and application to Court of Appeals for certificate granting leave to appeal); Collins v. Artus, No. 08 Civ. 1936 (PKC) (JCF), 2009 WL 2633636, at *9 (S.D.N.Y. Aug. 26, 2009) (finding claim that “petitioner explicitly withdrew” from consideration by Court of Appeals was unexhausted); N.Y. Crim. P. L. §§ 460.10, 460.20; see also Perez v. Perrott, No. 04 Civ. 327, 2008 WL 2323360, at *5 (N.D.N.Y. June 2, 2008) (finding that petitioner had not exhausted his claims where “Court of Appeals did not consider any substantive arguments” he made). Furthermore, because New York law limits Triplett to a single direct appeal of his convictions, he can no longer raise either of these claims in the New York State courts. See Aparicio, 269 F.3d at 91 (noting that criminal defendant in New York is “entitled to one (and only one) appeal to the Appellate Division”); Priester, 2002 WL 1448303, at *4 (finding that “[b]ecause the New York State courts will not now hear” claims that petitioner raised on direct appeal but withdrew, or failed to raise on direct review, those claims were procedurally defaulted).

Accordingly, Triplett's “failure to pursue an appeal in the state courts results in a procedural bar to federal habeas relief unless [Triplett] can show both cause for failing to bring the claim and actual prejudice from the failure to consider his federal claims.” Ellman, 42 F.3d at 148. As to the first element, Triplett's “decision to withdraw [the Application] simply does not constitute cause for failure to bring the claim[.]” Id.; see Priester, 2002 WL 1448303, at *5 (finding that petitioner's voluntary withdrawal of direct appeal was not “cause” to excuse procedural default). Nor has he shown any other “external” factor “that cannot be fairly attributed to him.” Coleman, 501 U.S. at 753. Triplett has not claimed, let alone established, that anyone misled or coerced him into withdrawing his Application, and does not dispute that the Application was “withdrawn at [his] request[.]” (ECF No. 35 at 268). Furthermore, as the Court has noted, his filings in this action “suggest[] that he has sufficient intelligence to have entered into the voluntary withdrawal of his own appeal.” Priester, 2002 WL 1448303, at *5. As to the second element, for the reasons set forth below, the defaulted claims lack merit, such that Triplett cannot establish prejudice. (See § IV.B.2, infra). Finally, as the Court has explained, Triplett has failed to demonstrate his actual innocence as would render the failure to consider his defaulted claims a fundamental miscarriage of justice. (See § IV.B.2.c, infra).

Therefore, Triplett's Juror 5, Excessive Sentence, and Mental Capacity Claims, are unexhausted, but procedurally defaulted, and therefore not subject to federal habeas corpus review. See Moreno-Gratini II, 2022 WL 1425712, at *7 (recommending denial of claim that was not exhausted in state court and therefore procedurally barred); Priester, 2002 WL 1448303, at *5 (denying claims that were deemed exhausted but procedurally defaulted). For the reasons set forth below, however, even if the Court were to consider the merits of these three claims, they fail to support relief. (See § IV.B.2, infra).

b. Claims Raised in 440 Motions

Triplett's 440 Motions raised four claims that he had not raised on direct appeal: (1) the Fourth Amendment Claim; (2) the Immigration Claim; (3) the New Evidence Claim; and (4) the Shackling Claim. (ECF Nos. 34-1 at 10-11; 35-1 at 2, 21-29).²⁶ The trial court denied both 440 Motions, (ECF Nos. 35-1 at 2, 38), and the First Department denied leave to appeal. (ECF Nos. 35-1 at 4-9, 15, 39-48). Accordingly, the Court deems these four claims exhausted for purposes of Section 2254. See Friedman v. Rehal, 618 F.3d 142, 152 (2d Cir. 2010) (noting that petitioner had exhausted state court remedies once Appellate Division denied leave to appeal denial of post-conviction motion); Cosey, 460 F.Supp.3d at 370 (noting that, if Appellate Division denies leave to appeal denial of post-conviction motion, no further appellate review is available under New York law); see also Moreno-Gratini II, 2022 WL 1425712, at *7 (noting that postconviction motions are exhausted following Appellate Division's denial of leave to appeal); N.Y. Crim. P. L. § 450.15 (providing that defendant may apply to Appellate Division for certificate granting leave to appeal denial of §§ 440.10 and 440.20 motions).²⁷For the reasons set forth below (see § IV.B.2, infra), however, none warrants federal habeas corpus relief under Section 2254(b)(1)(A).

26 In the 440 Motions, Triplett also raised the Excessive Sentence and Mental Capacity Claims that he had raised on direct appeal. (ECF Nos. 34-1 at 10-11; 35-1 at 21-29).

27 The Court of Appeals denied Triplett's application for leave to appeal the Second 440 Motion. (ECF No. 35-1 at 48). The Appellate Division, however, is the highest level of appellate review of § 440.10 and § 440.20 motions.

c. Claims Not Raised in State Court

In the First Petition, Triplett raises one new claim, the Supervision Claim (ECF No. 1 at 14), and in the Second Petition, five new claims: (1) the Transcript Claim; (2) the Ineffective Assistance Claim;²⁸ (3) the Actual Innocence Claim; (4) the Bias Claim; and (5) the Batson Claim. (ECF No. 701 at 6, 8, 15). Triplett acknowledges his failure to exhaust the Bias and Batson Claims, (ECF No. 701 at 15), but the Court's review of the record demonstrates, however, that he did not raise any of these six claims on direct appeal or in the 440Motions. (ECF Nos. 34-1 at 10-11; 35-1 at 21-29). Apart from the Transcript Claim, the other five claims could have been raised on direct appeal, such that Triplett is now precluded from raising them on a subsequent motion under New York Criminal Procedure Law § 440.10(2)(c).²⁹ See Priester, 2002 WL 1448303, at *4 (explaining that “any of [petitioner's] claims [that] could have been raised on direct review but were not [were] foreclosed [from habeas corpus review] by virtue of this New York State procedural rule”). Accordingly, the Supervision, Ineffective Assistance, Actual Innocence, Bias, and Batson Claims are unexhausted, procedurally barred, and not subject to federal habeas corpus review. Moreno-Gratini II, 2022 WL 1425712, at *7 (finding ineffective assistance claim unexhausted and procedurally barred from federal habeas corpus review).

28 Because the Ineffective Assistance Claim is based on Keith's alleged failure to negotiate a more favorable plea (ECF No. 70-1 at 8), and Triplett was represented by different counsel on appeal (ECF No. 35 at 129, 173), this claim is one that could have been raised on direct appeal and thus procedurally barred from review in a post-conviction motion. See Hudgins v. People of N.Y., No. 07 Civ. 1862 (JFB), 2009 WL 1703266, at *7 (E.D.N.Y. June 18, 2009) (where petitioner did not raise ineffective assistance claim on direct appeal, “was represented by new counsel on appeal, and the basis for the ineffective assistance claim [was] all evidence on the record,” holding that the trial court's denial of the claim as procedurally barred was “an ‘independent and adequate state ground'” procedurally barring federal habeas corpus review); People v. Orr, 240 A.D.3d 213, 214 (1st Dep't 1997) (affirming denial of post-conviction motion where ineffective assistance claim “raised no issue that could not be resolved on the trial record, which establishe[d] that defendant received meaningful representation”).

29 “[T]he court must deny a motion to vacate a judgment when: . . . sufficient facts appear on the record of the proceedings underlying the judgment [] permitted, on appeal from such judgment, adequate review of the ground or issue raised upon the motion, [but] no such appellate review or determination occurred owing to the defendant's unjustifiable . . . failure to raise such ground or issue upon an appeal ....”

As to the Transcript Claim, for the reasons set forth below, even if Triplett could have raised this novel claim based on a federal statute in a post-conviction motion in the New York State courts, see N.Y. Crim. P. L. §§ 440.10(1), 440.20(1)-(3), this claim fails to provide a basis for relief under Section 2254. (See § IV.B.2.b, infra).

2. Merits

As set forth above, most of Triplett's claims are unexhausted and procedurally barred from federal habeas corpus review. Even if the Court could reach the merits of his claims, however, Triplett has not established that he is entitled to federal habeas corpus relief under the demanding AEDPA standard of review. See Moreno-Gratini II, 2022 WL 1425712, at *7 (notwithstanding procedural default, rejecting petitioner's claims on the merits).

a. Exhausted Claims

For Triplett's claims that were “adjudicated on the merits” in the New York State courts- the Fourth Amendment, Immigration, Shackling, and New Evidence Claims-the Court assesses whether the New York courts' determinations were either “contrary to, or involved an unreasonable application of, clearly established Federal Law, as determined by the Supreme Court of the United States,” or “based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d)(1)-(2). (See § III.A, supra).

i. Fourth Amendment Claim

In the First Petition, Triplett argues that evidence “that was procured from [him] illegally by assistance of Brooklyn Homicide [d]etectives who [were] directly under [the] supervision of ex-Brooklyn D.A. Charles Hynes when [he] was picked up from Buffalo NY [and] transported (by flight) to New York City[,]” in violation of the Due Process Clause of the Fourth Amendment.

(ECF No. 1 at 5). The evidence that Triplett argues “was supposed to be suppressed” included “the journal, swords, knives, etc.” (ECF No. 56 at 3). Triplett did not raise this claim on direct appeal, but did raise it in the Second 440 Motion, which the trial court denied as lacking a legal basis, and the First Department affirmed. (ECF No. 35-1 at 23-29, 47). Respondent argues that Stone v. Powell, 428 U.S. 465 (1976), bars review of the Fourth Amendment Claim, which, in any event, “is too general and vague to state a basis for relief[.]” (ECF No. 34-1 at 18-21).

In Stone, the Supreme Court held that “where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” 428 U.S. at 481. Construing Stone, the Second Circuit “has made clear that a [F]ourth [A]mendment claim may not be considered by a federal habeas corpus court if the state has provided an opportunity to fully and fairly litigate it.” McPhail v. Warden, Attica Corr. Fac., 707 F.2d 67, 69 (2d Cir. 1983). The Second Circuit explained in Gates v. Henderson that “opportunity” means that the state must make available “a statutory mechanism” for suppression of evidence tainted by an unlawful search or seizure. 568 F.2d 830, 837 (2d Cir. 1977). Pursuant to this precedent, a court may review a Fourth Amendment claim in a habeas corpus petition “in only one of two instances: (a) if the state has provided no corrective procedures at all to redress the alleged [F]ourth [A]mendment violations; or (b) if the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process.” Capellan v. Riley, 975 F.2d 67, 80 (2d Cir. 1992) (citing Gates, 568 F.2d at 839); see Eldridge v. Sup't of Greenhaven Corr. Fac., No. 19 Civ. 7763 (ALC) (SLC), 2022 WL 18542149, at *8 (S.D.N.Y. Feb. 25, 2022) (discussing Stone and Second Circuit precedent), adopted by, 2023 WL 1438726 (S.D.N.Y. Feb. 1, 2023).

Neither of these circumstances exist here. The Second Circuit has held that New York's statutory mechanism for evaluating the lawfulness of a search and seizure, N.Y. Criminal Procedure Law § 710.10 et seq., “complie[s] with th[e] requirement” to have a corrective procedure to address Fourth Amendment violations. McPhail, 707 F.2d at 69; see Capellan, 975 F.2d at 70 n.1 (noting that “the ‘federal courts have approved New York's procedure for litigating Fourth Amendment claims, embodied in N.Y. Crim. Proc. L. § 710.10 et seq. [] as being facially adequate'”) (quoting Holmes v. Scully, 706 F.Supp. 195, 201 (E.D.N.Y. 1989)). Triplett availed himself of that procedure: among the pretrial motions Keith made on his behalf was a motion to suppress the physical evidence recovered at the Canadian border, and the trial court heard evidence and argument on that motion and other issues over the course of the eight-day Hearing but declined to suppress any of that evidence. (ECF No. 35 at 7, 34-53, 85-94, 203-04). The trial court also rejected Triplett's Fourth Amendment challenge in the Second 440 Motion, which the First Department then affirmed. (ECF No. 35-1 at 38, 47). Accordingly, no “unconscionable breakdown” occurred in the process as would violate Triplett's constitutional rights to warrant federal habeas corpus relief under AEDPA. Capellan, 975 F.2d at 71-72 (finding that petitioner's disagreement with Appellate Division's decision affirming denial of suppression motion did not warrant federal habeas corpus relief); Eldridge, 2022 WL 18542149, at *8 (recommending denial of Fourth Amendment claim where record reflected that petitioner raised Fourth Amendment challenge in trial court and before appellate court, which affirmed denial of suppression motion). Although the trial court's analysis of the Fourth Amendment issues is not present in the record, the Court observes that Triplett's experienced appellate counsel did not challenge the denial of the motion to suppress on direct appeal (see ECF No. 35 at 129-73), which, combined with the affirmed denial of the Second 440 Motion, supports the reasonable inference that the denial was neither contrary to nor an unreasonable application of clearly established Supreme Court precedent. Therefore, Triplett's Fourth Amendment Claim is without merit.

ii. Immigration Claim

In the First Petition, Triplett asserts:

I'm an illegal immigrant. I've migrated from somewhere in [the] Eastern Hemispher[e] [and] it's a conspiracy against me [and] my race (African American) by white Europeans so we get lost in [an] American melting pot so we don't know exactly where we came from [and] slowly annihilate us in western materialism [and] its culture and vices. By Mr. Trump['s] Executive Order #13769, I should be leaving America by his authorization ([and] consequently prison).

(ECF No. 1 at 10). Respondent argues that this claim should be denied for failure to “articulate[] a constitutional basis for granting such relief.” (ECF No. 34-1 at 24). Triplett raised the Immigration Claim in the Second 440 Motion, the denial of which the First Department affirmed. (ECF No. 35-1 at 21-22, 41, 42).

Triplett references Executive Order number 13769, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States,” which former President Donald J. Trump issued on January 27, 2017 (“EO-1”). See 82 Fed.Reg. 8977. EO-1, inter alia, “suspended entry into the United States of citizens or nationals of Syria, Iraq, Iran, Yemen, Somalia, Sudan, and Libya[,]” and “called for the Secretaries of State and Homeland Security and the Directors of National Intelligence and the FBI to ‘implement a program, as part of the adjudication process for immigration benefits, to identify individuals seeking to enter the United States on a fraudulent basis with the intent to cause harm, or who are at risk of causing harm subsequent to their admission.'” Wagafe v. Trump, No. 17 Civ. 0094 (RAJ), 2017 WL 2671254, at *2 (W.D. Wa. June 21, 2017) (quoting 82 Fed.Reg. at 8978). After the District Court for the Western District of Washington entered a temporary restraining order blocking the entry restrictions, and the Ninth Circuit denied the Government's request to stay that order, Washington v. Trump, 847 F.3d 1151 (2017) (per curiam), EO-1 was revoked and replaced with Executive Order number 13780 (“EO-2”). Trump v. Hawaii, 138 S.Ct. 2392, 2403 (2018) (citing 82 Fed.Reg. 13209 (2017)); see Brennan Ctr. for Justice at N.Y. Univ. Sch. of Law v. U.S. Dep't of State, No. 17 Civ. 7520 (PGG), 2019 WL 10984173, at *1 (S.D.N.Y. Mar. 29, 2019) (discussing EO-1 and EO-2).³⁰

30 EO-2 was also later revoked. See 86 Fed.Reg. 7005.

The Court finds that Triplett's Immigration Claim fails to state a cognizable basis for federal habeas corpus relief. As an initial matter, Triplett is a United States citizen present in the United States, such that EO-1, when it was in effect, was inapplicable to him. (See ECF No. 35 at 218 (noting that Triplett “said he was a United States citizen”); id. at 219 (noting that Triplett's possessions included a United States passport that “appeared genuine”)). Furthermore, having been revoked, EO-1 no longer has any force of law, and does not provide any basis for relief under Section 2254. See 28 U.S.C. § 2254(a) (relief available only where petitioner's custody is in violation of “the Constitution or laws or treaties of the United States”).³¹Finally, the Court's research has uncovered no “clearly established Federal law, as determined by the Supreme Court of the United States[,]” that is contrary to the state courts' decisions rejecting Triplett's Immigration Claim. See 28 U.S.C. § 2254(d)(1). Accordingly, Triplett's Immigration Claim does not provide a basis for federal habeas corpus relief.

31 Because EO-1 was inapplicable to Triplett and has been revoked, the Court presumes without deciding that a president's executive order is among the “laws . . . of the United States” within the meaning of Section 2254(a).

iii. Shackling Claim

Triplett alleges that he was “leg[] shackled throughout the trial and prejudiced” as a result. (ECF No. 1 at 12). Respondent does not specifically address the Shackling Claim. (ECF No. 34-1). Triplett argued in the Second 440 Motion that he “was leg shackled” during the Second Trial. (ECF No. 35-1 at 22). The trial court denied his claim for failure to raise it on direct appeal under N.Y. Crim. P. L. § 440.2(c), and the First Department affirmed. (ECF No. 35-1 at 38, 47).

“The law has long forbidden routine use of visible shackles during the guilt phase; it permits a State to shackle a criminal defendant only in the presence of a special need.” Deck v. Missouri, 544 U.S. 622, 626 (2005), abrogated on other grounds, Fry v. Pliler, 551 U.S. 112 (2007). “[T]he Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a trial court determination, in the exercise of its discretion, that they are justified by a state interest specific to a particular trial.” Deck, 544 U.S. at 629. Thus, “Deck and its progeny only prohibit the use of visible shackling.” Andrade v. Martuscello, No. 12 Civ. 6399 (RJS) (AJP), 2013 WL 2372270, at *19 (S.D.N.Y. June 3, 2013), adopted by, 2015 WL 4154108 (S.D.N.Y. Feb. 2, 2016).

Here, other than Triplett's unsubstantiated statements, there is no evidence that he was shackled at any point-let alone visibly shackled-during the Second Trial. See Miller-El v. Cockrell, 537 U.S. 322, 358 n.3 (2003) (noting that petitioner bears burden of proof in habeas corpus proceedings); accord Harris v. Kuhlmann, 346 F.3d 330, 354 (2d Cir. 2003); cf. Slater v. Conway, No. 11 Civ. 0047 (MAT), 2012 WL 777481, at *12 (W.D.N.Y. Mar. 7, 2012) (finding that, although transcripts contained no mention of stun belt, petitioner's submission of jail orders indicating that he wore stun belt on certain dates “provide[d] circumstantial proof that [he] was outfitted with a stun belt for his court appearances on those dates”). Thus, “it is unclear whether Deck's prohibition on use of visible restraints even controls here.” Andrade, 2013 WL 2372270, at *19; see DeLeon v. Strack, 234 F.3d 84, 88 (2d Cir. 2000) (““[E]ven if the state judge did not exercise independent judgment, it is not clear that such an independent exercise of discretion is even required when restraints will not be visible to a jury.”); Bruno v. Sup't, Five Pts. Corr. Fac., No. 12 Civ. 1728 (JKS), 2014 WL 12656909, at *15 (N.D.N.Y. Dec. 15, 2014) (finding that “Deck does not appear to apply here because the restraint imposed-a leg brace worn under his pants-was not visible to the jury”).

Assuming that Triplett was visibly shackled during the Second Trial, however, and that the shackling was not justified, the Court finds that any error was harmless. See Brecht v. Abrahamson, 507 U.S. 619, 637-68 (2007) (explaining that harmless error standard applies to alleged constitutional errors during trial). Triplett has not demonstrated that any leg shackles impinged on the jury's presumption of his innocence, interfered with his “ability to communicate with his lawyer and otherwise participate in his defense[,]” or “undermin[ed] the dignity, decorum, and objectivity of the court.” Slater, 2012 WL 777481, at *14. In addition, given the “overwhelming” evidence of his guilt, discussed at length above (see § IV.A, supra), even had a constitutional error occurred, it “would have been harmless.” Slater, 2012 WL 777481, at *14; see Bruno, 2014 WL 12656909, at *15 (holding that, “even if the jury did glimpse the leg brace . . . the record leaves no reasonable doubt that the restraint did not have a substantial or injurious effect or influence in determining the jury's verdict”); Andrade, 2013 WL 2372270, at *21 (holding that, even if shackling was unjustified, “any error was harmless in light of . . . the evidence of [petitioner's] guilt . . . ."); Williams v. Lemke, No. 11 Civ. 2504 (PGG) (JLC), 2012 WL 2086955, at *15 (S.D.N.Y. June 1, 2012) (holding that, even if shackling order was not justified under Deck, “the record leaves no reasonable doubt that it did not affect the jury's verdict[]"), adopted by, 2014 WL 5035219 (S.D.N.Y. Sept. 29, 2014); Rush v. Lemke, No. 09 Civ. 3464 (JFB), 2011 WL 477807, at *13 (E.D.N.Y. Feb. 2, 2011) (holding that, even if trial court erred in requiring petitioner to wear shackles not visible to the jury without determining they were necessary, “any errors were harmless because the evidence of petitioner's guilt is overwhelming and thus any allegedly prejudicial effect of the shackles would have been outweighed by the evidence of his guilt").

Accordingly, the Court finds that Triplett's Shackling Claim does not provide a basis for habeas corpus relief.

iv. New Evidence Claim

In support of his New Evidence Claim, Triplett alleges that: “around 2013-14 it was disclosed to the public that Ex-Brooklyn D.A. Charles Hynes utilize[d] his position to illegally secure some of his conviction[s][,]" and that “all [the] evidence that was procured from [Triplett] was initiated by Detectives under Charles Hynes." (ECF No. 70-1 at 11). Respondent acknowledges that Triplett raised this claim in the Second 440 Motion, but argues that “the claim is too vague and conclusory to state a basis for relief[.]" (ECF No. 34-1 at 21; see ECF No. 35-1 at 22 (“The Brooklyn[] District Attorney is using illegal tactics to fabricate evidence.")). The trial court rejected the New Evidence Claim based on Triplett's failure to “allege any ground constituting legal basis for the motion,” (ECF No. 35-1 at 38 (citing N.Y. Crim. P. L. § 440.30(4)(a)), and the First Department affirmed. (ECF No. 35-1 at 47).

Triplett offers no evidentiary support for this vague and conclusory claim, and the New Evidence Claim “may be summarily rejected on that basis alone.” Dory v. Comm'r of Corr., 865 F.2d 44, 45 (2d Cir. 1989) (explaining that summary dismissal of petitioner is justified where allegations are “vague, conclusory, or palpably incredible”). At best, the New Evidence Claim is a reframing of his Fourth Amendment Claim, which fails to state a basis for relief as set forth above. (See § IV.B.2.a.i, supra).

b. Unexhausted or Procedurally Barred Claims

None of Triplett's remaining claims warrant habeas relief.

As to the Transcript Claim, the statute he cites has no application in the New York State courts,³²and the record demonstrates that the transcripts of the trial court proceedings existed at the time of his direct appeal (see ECF No. 35 at 143-60, 204-28), which precludes a finding of “some modicum of evidence to support” any claim that “the missing portions of the transcript reflect reversible error.” Godfrey v. Irvin, 871 F.Supp. 577, 584 (W.D.N.Y. 1994); Santiago v. Coughlin, 107 F.3d 4, 5 (2d Cir. 1997) (explaining that petitioner “must show prejudice resulting from the missing or incomplete transcript”). The absence of a full set of trial transcripts has not impeded the Court's analysis of the Petitions, given the extensive quotations of the transcripts in Triplett's direct appeal brief, the presence of many of the trial exhibits, and the summary in Respondent's brief. See Parrilla v. Goord, No. 02 Civ. 5443 (WHP), 2005 WL 1422132, at *2 n.1 (S.D.N.Y. June 20, 2005) (explaining that, where state transcript was unavailable, court “may rely upon the summaries presented in the appellate briefs”). Finally, “there is no clearly established Supreme Court precedent holding that a federal habeas corpus petitioner's right to a complete appeal is violated solely because part of the trial transcript is lost and cannot be reconstructed.” Quinones v. N.Y.S. Div. of Parole, No. 07 Civ. 8633 (LBS), 2008 WL 2276540, at *5 (S.D.N.Y. June 2, 2008). Accordingly, the Transcript Claim does not satisfy the exacting AEDPA standard for relief.

32 See 28 U.S.C. § 753 (“Each district court of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands shall appoint one or more court reporters.”).

The Excessive Sentence Claim is also without merit. The Eighth Amendment states that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII. According to Supreme Court precedent, a punishment may be “cruel and unusual” if it is “disproportionate to the crime.” Graham v. Florida, 560 U.S. 48, 59 (2010); see United States v. Reingold, 731 F.3d 204, 211 (2d Cir. 2013) (explaining that “constitutional proportionality . . . ‘forbids only extreme sentences that are grossly disproportionate to the crime'”) (quoting Harmelin v. Michigan, 501 U.S. 957, 997 (1991)). “The factors to be considered in evaluating proportionality include the gravity of the offense, the harshness of the penalty, and the sentences imposed on other criminals for the same crime.” United States v. Gaggi, 811 F.2d 47, 63 (2d Cir. 1987) (citing Salem v. Helm, 463 U.S. 277, 292 (1983)). Accordingly, “it is rare that a sentence falling within a legislatively prescribed term of years will be deemed grossly disproportionate[,]” such that, “on only one occasion” has the Supreme Court “identified a term-of-years sentence as grossly disproportionate.” Reingold, 751 F.3d at 211-12; see Wynerman v. Colvin, No. 16 Civ. 2886 (RA) (HBP), 2017 WL 3524683, at *3-4 (S.D.N.Y. Aug. 15, 2017) (reviewing Supreme Court precedent “consistently reject[ing] proportionality challenges to prison sentences”). “The Supreme Court has warned that [a reviewing court] should not substitute [its] judgment for that of the sentencing court, but when applying the Eighth Amendment to decide only whether the sentence is within constitutional limits; a review that rarely requires extended analysis.” Gaggi, 811 F.2d at 63. Here, the First Department's holding that there was “no basis for reducing [Triplett's] sentence” is not contrary to the Supreme Court's clearly established precedent. Triplett I, 305 A.D.2d at 231. Under New York law, the maximum sentence for the first degree robbery counts was 25 years, and 15 years for the attempted robberies, see N.Y. Pen. L. §§ 70.00(2)(c), (d), with which both the First and Second Judgments were consistent. (ECF Nos. 34-1 at 9; 35 at 10-11, 160, 261; 36-1 at 3-5). Considering “the gravity” of Triplett's serial robberies, “the violent nature” of his random attacks on innocent, unsuspecting New Yorkers, “the danger” he presented to the community, and “the continued disrespect for the law” he exhibited by attempting to flee to Canada and escape from law enforcement custody on multiple occasions, the Court finds that these “are all strongly persuasive factors” justifying his sentence, which was “within statutory limits” and “not grossly disproportionate to the seriousness of the offense[s].” Gaggi, 811 F.2d at 63. Furthermore, New York law permitted the trial court to impose consecutive terms. See N.Y. Penal L. § 70.25.³³Accordingly, the First Department's rejection of Triplett's Excessive Sentence Claim is neither contrary to nor an unreasonable application of Supreme Court precedent, and Triplett “is not entitled to habeas relief.” Wynerman, 2017 WL 3524683, at *5; see White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (per curiam) (“No federal constitutional issue is presented where . . . the sentence is within the range prescribed by state law.”); Fashaw v. Griffin, No. 17 Civ. 7328 (KPF), 2020 WL 6482924, at *18 (S.D.N.Y. Nov. 4, 2020) (following White and holding that “no federal constitutional issue [was] presented” where petitioner's sentence was “within the range prescribed by state law”); Melendez v. LaValley, 942 F.Supp.2d 419, 424 (S.D.N.Y. 2013) (“It is well established that generally when a sentence falls within the range prescribed by state law, the length of the sentence may not be raised as a basis for federal habeas relief.”); Smith v. Keane, Nos. 98 Civ. 5615 (JBW) & 03 Misc. 66 (JBW), 2003 WL 21850566, at *6 (E.D.N.Y. July 30, 2003) (rejecting claim based on alleged severity of sentence where “decision to sentence petitioner to consecutive terms [was] permitted by New York Law”).³⁴

33 This statute provides that “when multiple sentences of imprisonment are imposed on a person at the same time . . . the sentence or sentences imposed by the court shall run either concurrently or consecutively with respect to each other . . . in such manner as the court directs at the time of sentence.” N.Y. Penal L. § 70.25(1).

34 Similarly, Triplett's Supervision Claim has no merit given that the trial court did not impose any term of supervised release. (ECF No. 35-1 at 18).

To succeed on the Juror 5 Claim-i.e., that he was denied his Sixth Amendment right to an impartial jury-Triplett needed to show that Juror 5 “failed to answer a material question on voir dire” and “that a correct response would have provided a valid basis for challenge for cause by showing that the correct response, if given, would have affected the juror's impartiality.” Green v. Vacco, 961 F.Supp. 46, 50 (S.D.N.Y. 1997) (citing McDonough Power Equip., Inc. v. Grenwood, 464 U.S. 548, 556 (1984)). “[W]hether a juror is unable to continue serving is trusted to the sound discretion of the trial court.” Davis v. Woods, No. 05 Civ. 3414 (ENV), 2010 WL 3747669, at *14 (E.D.N.Y. Sept. 17, 2010). Here, there are no facts “suggesting that bias [of Juror 5] should be conclusively presumed,” nor does the colloquy between the trial court and Juror 5 (see ECF No. 35 at 143-50), show that it was “more probable than not that” Juror 5 was biased against Triplett. Green, 961 F.Supp. at 50. Accordingly, Triplett has not shown that the First Department's finding-to which this Court must defer, see 28 U.S.C. § 2254(e)(1)-that Juror 5 “was not so preoccupied . . . as to render him grossly unqualified to serve”, Triplett I, 305 A.D.2d at 231, was an unreasonable determination of the facts, or that its holding was contrary to or an unreasonable application of clearly established Supreme Court precedent. See 28 U.S.C. § 2254(d)(1), (2).

Triplett's Mental Capacity Claim challenges the trial court's exclusion of evidence of his mental illness (ECF No. 1 at 8), which the First Department affirmed on state-law grounds in the first instance. See Triplett I, 305 A.D.2d at 231 (“The trial court properly precluded defendant from introducing evidence of his mental illness, since the proffered evidence was irrelevant to any psychiatric defense recognized by New York law[.]”) (citing N.Y. Crim. P. L. § 250.10,³⁵N.Y. Pen. L. § 40.15, and Almonor, 93 N.Y.2d 571). As the Second Circuit has explained, however, “state trial court evidentiary rulings are not a basis for habeas relief.” Vega v. Walsh, 669 F.3d 123, 126 (2d Cir. 2012). Thus, a claim that “evidence was incorrectly admitted or excluded under state law” is not cognizable on federal habeas corpus review, which does not provide relief “‘for errors of state law.'” Hall v. Lee, No. 15 Civ. 2559 (LGS) (KNF), 2016 WL 4597624, at *3 (S.D.N.Y. Sept. 1, 2016) (quoting Estelle v. McGuire, 502 U.S. 62, 67 (1991)). Accordingly, the Mental Capacity Claim fails to provide a basis for relief. See Curran v. Keyser, No. 19 Civ. 4763 (CS) (PED), 2022 WL 17362190, at *9 (S.D.N.Y. Nov. 9, 2022) (holding that “state court's application of [] § 250.10's notice requirement was neither an unconstitutional restriction of Petitioner's Sixth Amendment right, nor contrary to Supreme Court law”); Washington v. Griffin, No. 17 Civ. 3849 (LGS) (SLC), 2019 WL 7598584, at *8 (S.D.N.Y. Dec. 23, 2019), adopted by, 2020 WL 264421 (S.D.N.Y. Jan 17, 2020) (holding that alleged state evidentiary error did not provide grounds for habeas corpus relief). To the extent Triplett presses the exclusion of the experts' opinions on constitutional grounds, the First Department deemed this claim unpreserved, which provides an adequate and independent state ground that precludes federal habeas corpus review. See Moreno-Gratini II, 2022 WL 1425712, at *6 (explaining that New York's contemporaneous objection rule provided an adequate and independent state ground that precluded review). For the reasons set forth above, Triplett has neither demonstrated good cause to excuse his failure to preserve his claims nor presented “new,” “credible,” and “compelling” evidence of his innocence. Hyman, 927 F.3d at 656-57. (See §§ IV.A, IV.B.2.b, supra). Ultimately, viewing the record as a whole, the Court finds that the introduction of the experts' opinions “would not have created a reasonable doubt in the jury's mind that did not otherwise exist, in light of the overwhelming evidence of his mental state and guilt.” Singh v. Greene, No. 10 Civ. 4444 (JFB), 2011 WL 2009309, at *21 (E.D.N.Y. May 20, 2011); see Curran, 2022 WL 17362190, at *9 (finding that Appellate Division's affirmance of trial court's exclusion of psychiatric evidence was “not an unreasonable interpretation of the facts”). Therefore, the First Department's decision affirming the exclusion of the evidence was neither contrary to or an unreasonable application of clearly established Supreme Court precedent or based on an unreasonable determination of the facts.

35 This rule requires a defendant seeking to proffer psychiatric evidence to proffer on the prosecutor and file with the court “a written notice of his intention to present psychiatric evidence . . . before trial and not more than thirty days after entry of the plea of not guilty to the indictment.” N.Y. Crim. P. L. § 250.10. Here, Keith served notice of the proffer long past the thirty-day deadline. (Compare ECF No. 35 at 71-73, 177-85 (proffer dated September 25, 2000) with ECF No. 35 at 13 (arraignment on 288 Indictment on February 7, 2000), id. at 21 (arraignment on 488 and 1418 Indictments on Mar. 15, 2000)). See Almonor v. Keane, 27 Fed.Appx. 10, 12 (2d Cir. 2001) (noting that “[a]bsent special circumstances, § 250.10's notice requirement has been upheld as a constitutional restriction on the right to present evidence”).

In support of his Ineffective Assistance Claim, Triplett asserts that “[a]lthough [he] was completely innocent, [he] wanted to cop-out to a more reasonable term in light of the toxic situation of the crime area in Manhattan,” and while the prosecution's plea offer was 45 years, he believed that, “at most,” he would have received “only 12-18 years[.]” (ECF No. 70-2 at 24). “The Sixth Amendment right to effective counsel extends to plea negotiations.” Beltran v. U.S., No. 12 Civ. 3657 (RJS), 2013 WL 5510774, at *5 (S.D.N.Y. Sept. 26, 2013); see United States v. Gordon, 156 F.3d 376, 379 (2d Cir. 1998). To succeed on a claim that counsel provided ineffective assistance in plea negotiations, “a defendant must show the outcome of the plea process would have been different with competent advice.” Lafler v. Cooper, 566 U.S. 156, 163 (2012).³⁶ “To justify an evidentiary hearing to determine whether counsel's ineffective assistance led a petitioner to reject a plea agreement, the petitioner must provide a credible sworn statement and ‘some objective evidence, such as a significant sentencing disparity, that he or she would have accepted the proposed plea offer if properly advised.'” Beltran, 2013 WL 5510774, at *5 (quoting Puglisi v. U.S., 586 F.3d 209, 215-16 (2d Cir. 2009)). Triplett has not provided “any sworn affidavits or other material that would demonstrate that [Keith] advised him not to take a plea agreement[,]” and “[h]is threadbare assertions in [the Second] [P]etition are his only support for this claim of ineffective assistance.” Id. at *5. The Court “need not,” however, “accept a petitioner's uncorroborated, self-serving testimony as true.” Id. Having failed to offer any credible evidence that any plea was offered, let alone “any objective evidence that he would have accepted a plea offer”-which seems doubtful given his repeated professions of innocence-the Court finds that Triplett “has failed to demonstrate that his counsel's representation in connection with plea bargaining fell below an objective standard of reasonableness, or that the result in this case would have been different but for counsel's conduct.” Id. at *5; see Ortiz v. Herbert, Nos. 02 Civ. 2073 (JBW) & 03 Misc. 066 (JBW), 2003 WL 22952843, at *8 (E.D.N.Y. Nov. 7, 2003) (rejecting claim of ineffective assistance of counsel in plea negotiations where petitioner admitted that “he refused to plead guilty to crimes he did not commit”).

36 The two-prong test Strickland v. Washington, requiring proof “that counsel's representation fell below and objective standard of reasonableness,” and “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different,” 466 U.S. 668, 688, 694 (1984), applies to claims of ineffective assistance resulting in the rejection of a plea offer, following which the defendant is convicted at trial. See Lafler, 566 U.S. at 163.

To support his Bias Claim, Triplett points to the trial courts' “overrul[ing] all objection[s]” that Keith made and “premeditat[ing] judgment against [him],” and claims that the prosecutors were “very rude [and] discourteous[.]” (ECF No. 70-2 at 38-39). Pursuant to clearly established Supreme Court precedent, however, “unfavorable rulings against a party cannot themselves form a ‘[v]alid basis for a bias or partiality motion.'” Powell v. Graham, No. 10 Civ. 1961 (JFB), 2013 WL 37565, at *11 (E.D.N.Y. Jan. 3, 2013) (quoting Liteky v. U.S., 510 U.S. 540, 555 (1994)). Triplett has not shown that the trial court relied on extraneous information in any rulings, nor do any of the trial court's rulings “raise even a suspicion of a ‘deep-seated and unequivocal antagonism that would render fair judgment impossible[.]"' LoCascio v. U.S., 473 F.3d 493, 496 (2d Cir. 2007) (quoting Liteky, 510 U.S. at 556). Triplett provides no detail about the prosecution's supposed discourtesies, but, in any event, even “discourteous” conduct by a prosecutor “falls far short of the misconduct necessary to support a claim seeking federal habeas intervention based upon alleged prosecutorial misconduct.” Campbell v. Greene, 440 F.Supp.2d 125, 155 (N.D.N.Y. 2006). Accordingly, Triplett “has failed to set forth a cognizable claim that he was denied his due process right to a fair trial” due to any conduct by the trial court or the prosecution. Garcia v. Noeth, No. 19 Civ. 6047 (CJS), 2023 WL 2082703, at *11 (W.D.N.Y. Feb. 17, 2023).

To support his Batson Claim, Triplett offers nothing more than his assertion that the prosecution-in which trial, he does not specify-“caused a juror (or 2) who was of a different sexuality . . . to be disallowed[.]” (ECF No. 70-2 at 41). His admission that he failed to raise his Batson Claim in the New York State courts is fatal, because “[t]he Supreme Court made clear that in order to claim the rights specified in Batson, the defendant must object in ‘timely' fashion.” McCrory v. Henderson, 82 F.3d 1243, 1247 (2d Cir. 1996) (quoting Batson, 476 U.S. at 99). Accordingly, Triplett forfeited any Batson Claim. See Garraway v. Phillips, 591 F.3d 72, 75-76 (2d Cir. 2010) (affirming denial of habeas corpus petition where petitioner forfeited Batson challenge by failing to object in trial court).

c. Actual Innocence Claim

To the extent that Triplett seeks to assert a separate Actual Innocence Claim, as the Second Circuit has explained, the Supreme Court “has never explicitly recognized the existence of a freestanding actual innocence claim.” Rivas, 687 F.3d at 540 & n.34; see Hyman, 927 F.3d at 655-56 (noting that an actual innocence claim “cannot itself afford [a petitioner] habeas relief from his state conviction. It can only open a gateway to federal review of an otherwise procedurally barred Sixth Amendment claim that, if itself successful, could afford him relief.”). The Court has previously determined that he has failed to meet the exacting standard for proving actual innocence for purposes of the statute of limitations analysis. (See § IV.A, supra). His guilt having been established by two juries, this Court “will not relitigate the question of guilt” simply because Triplett “protests his actual innocence.” Hyman, 927 F.3d at 656. Therefore, Triplett's profession of innocence, compared against the Court's review of the record and analysis of each of his claims against applicable precedent, fails to provide a basis for federal habeas corpus relief.

3. The Discovery Motions

Pointing to the lack of a complete set of trial minutes, Triplett seeks “a completely new trial, reconstruction hearing, outside investigation, reversal, time served or bail” due to Respondent's inability to locate the complete transcripts of the First and Second Trials. (ECF No. 55 at 2). Respondent opposes Triplett's Discovery Motions, noting that the clerk for New York County Supreme Court, where the First and Second Trials occurred, reported:

that the previous storage facility that held the court's records had a fire in 2015, and several files had been destroyed. In 2017, when the court's contract with that facility ended, the salvageable records were transferred to the new contracting facility [but] the new facility had never received any records from [Triplett's] cases.

(ECF No. 58 at 3). Respondent also points out that the facts concerning the charges against him “are not in dispute” and, in any event, his claims are untimely and lack merit. (Id.)

The Court's summary of the standard by which to analyze Triplett's Discovery Motions is set forth in Triplett V, and is incorporated by reference. See 2022 WL 16857351, at *1 (discussing the “good cause” standard); accord Naranjo v. U.S., No. 16 Civ. 7386 (JSR) (SLC), 2019 WL 4879297, at *1 (S.D.N.Y. Oct. 3, 2019). Only if a petitioner has made the showing required by 28 U.S.C. § 2254(e)(2) is a district court permitted to hold an evidentiary hearing,³⁷and even then, “the granting of a[n evidentiary] hearing is within the discretion of the federal district court.” Mercer v. Herbert, 133 F.Supp.2d 219, 232 (W.D.N.Y. 2001); accord Pagan v. Keane, 984 F.2d 61, 63 (2d Cir. 1993); see Shinn v. Ramirez, 142 S.Ct. 1718, 1728 (2022) (explaining that, “[i]n all but [] extraordinary cases,” AEDPA “bars evidentiary hearings in federal habeas proceedings initiated by state prisoners[]”). The New York State court's determinations are presumed to be correct, and the petitioner bears the burden “to establish, by clear and convincing evidence, that the factual determination is erroneous.” Mercer, 133 F.Supp.2d at 232; see 28 U.S.C. § 2254(e)(2) (“The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.”).

37 This provision states: “If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that- (a) the claim relies on-(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2) (emphasis added).

The Court finds that, as with his request to depose the Assistant Attorney General assigned to this action, Triplett V, 2022 WL 16857351, at *1, Triplett has failed to carry his “heavy burden” to establish a right to discovery or an evidentiary hearing. Renis v. Thomas, No. 02 Civ. 9256 (DAB) (RLE), 2003 WL 22358799, at *2 (S.D.N.Y. Oct. 16, 2003) (citing Bracey v. Gramley, 520 U.S. 899, 904 (1997)). Triplett does not contend that any of the required elements for an evidentiary hearing under Section 2254(e)(2) are met, nor can the Court discern any claim that requires further development in state court that could not have been discovered through the exercise of due diligence and “would be sufficient to establish by clear and convincing evidence[,] that but for the constitutional error,” no reasonable juror would have convicted Triplett of the robbery and attempted robbery charges. 28 U.S.C. § 2254(e)(2)(A)(ii); see id. § 2254(e)(2)(B). Nor do the Discovery Motions contain any “specific evidence that the requested discovery would support his habeas corpus petition[.]” Ruine v. Walsh, No. 00 Civ. 3798 (RWS), 2005 WL 1668855, at *6 (S.D.N.Y. July 14, 2005). His speculations in the Petitions that the trial minutes will support his varied allegations of error are the type of “[g]eneralized statements regarding the possibility of discoverable material” that are insufficient to justify discovery in a habeas corpus proceeding. Id.; accord Naranjo, 2019 WL 4879297, at *2. Furthermore, as noted above, the Rules that govern Section 2254 cases specifically contemplate the scenario that exists here-when a complete set of a petitioner's trial transcripts may not be available-and permit a district court to rely on “a narrative summary of the evidence.” See Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts. Finally, as indicated throughout this Report and Recommendation, the Court has thoroughly reviewed the record, which includes excerpts of the trial transcripts, trial exhibits, and pre-trial motions, construed Triplett's Petitions to raise his strongest arguments, and evaluated his claims notwithstanding the untimeliness of the Petitions or the conclusion that claims are unexhausted or procedurally barred. For all these reasons, I respectfully recommend that Triplett's Discovery Motions be DENIED.

V. CONCLUSION

For the reasons set forth above, I respectfully recommend that Triplett's Petitions and related Discovery Motions be DENIED. The Clerk of the Court is respectfully directed to mail a copy of this Report and Recommendation to Triplett at the address below.

SO ORDERED.

NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION

The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Abrams.

FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985). If Triplett does not have access to cases cited in this Report and Recommendation that are reported on Westlaw, he may request copies from Respondent's counsel. See Local Civ. R. 7.2.