Waters v. Lilley

Full title: KEITH WATERS, Petitioner, v. LYNN LILLEY, Superintendent, Respondent.

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

Date published: Apr 14, 2023

17-CV-8258 (GHW) (RWL) (S.D.N.Y. Apr. 14, 2023)

Opinion

17-CV-8258 (GHW) (RWL)

04-14-2023

KEITH WATERS, Petitioner, v. LYNN LILLEY, Superintendent, Respondent.

ROBERT W. LEHRBURGER, United States Magistrate Judge.

REPORT & RECOMMENDATION TO HON. GREGORY H. WOODS: PETITION FOR HABEAS CORPUS

ROBERT W. LEHRBURGER, United States Magistrate Judge.

Keith Waters (“Waters”), proceeding pro se, brings a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2554, challenging his conviction by a jury of two counts of criminal sale of a controlled substance in the first degree in the Supreme Court of the State of New York, New York County. Waters argues that his petition should be granted because (1) the trial court violated his right to a public trial under the Sixth Amendment by closing the courtroom to the public during the testimony of an undercover officer; (2) admission of hearsay evidence deprived him of his right to confrontation under the federal and New York State constitutions; (3) he is actually innocent based on newly discovered evidence; and (4) the verdict was based on legally insufficient evidence. For the reasons that follow, I recommend that Waters' petition be DENIED and the petition dismissed.

Background

A. Crimes And Arrest

In January 2007, the New York City Police Department's Street Narcotics Enforcement Unit began an investigation into narcotics sales in and around the Martin Luther King Houses (the “King Houses”), a housing project in Manhattan. (Tr. 87-88.¹) On October 3, 2007, Undercover Officer No. 0059 (the “Officer”) was operating at the King Houses. (Tr. 87-88, 91.) After a failed attempt to meet and make a purchase from one target of the operation, the Officer was introduced to Michael Spears (“Spears”). (Tr. 91-93.) The Officer spoke with Spears while wearing a hidden recording device. (Tr. 9394, 194.)

1 “Tr.” refers to the transcript of the trial at which Waters was convicted, which can be found at Dkts. 27-2 and 27-3.

The Officer later testified that Spears “mentioned a Keith ... would be able to hook me up if his man could hook him up ... I asked him how much he could handle. He basically told me . he could handle whatever I needed and he just had to contact his man Keith.” (Tr. 93.) The Officer quoted Spears as saying “Yo, I talk to my man, I talked to Keith. Spoke to Keith. He said . he's your man? We got to look at that shit.” (Tr. 313; see also 317.) Spears gave the Officer the number 646-672-0077 (the “0077 phone”) so he could later contact Spears. (Tr. 100-01.)

On November 8, 2007, the Officer called Spears to arrange a transaction (the “November transaction”). (Tr. 111, 558.) They met up, and Spears made two calls to 646-932-9129 (“the 9129 phone”).² (Tr. 558-59.) After making the calls, Spears notified the Officer that he had to go get the drugs. (Tr. 239-43.) The Officer watched as Spears walked towards a vehicle parked on the street and got into the car, sitting in the front passenger seat. (Tr. 112, 231, 238-43.) The Officer observed the silhouette of a person in the driver's seat, with whom Spears briefly interacted, but could not see the driver clearly enough to describe him in his report. (Tr. 112, 229-31.) The Officer also wrote down the car's license plate number - CRJ6169. (Tr. 113-14.) Upon further investigation, police determined that the license plate was issued to a black 2006 Range Rover with the registered owner listed as “Keith Waters” at the address 1220 Shakespeare Avenue, apartment 5-CSO, The Bronx, New York, 10452. (Tr. 37-41.)

2 At trial, the 9129 phone is referred to as the “HTC Dash” phone.

After sitting in the black Range Rover for a short time, Spears got out and walked back to the Officer. (Tr. 112, 231-32.) Spears handed the Officer a bag of what appeared to be cocaine marked with the number 20, and the Officer paid Spears. (Tr. 112-13, 232.) Spears then reentered the Range Rover, and the vehicle drove away. (Tr. 114-15, 233.) A laboratory analysis by a chemist employed by the New York City Police Department determined that the bag contained more than half an ounce of cocaine. (Tr. 330.)

On December 6, 2007, the Officer called Spears at the 0077 phone to arrange another transaction (the “December transaction”). (Tr. 127-28.) Once together, Spears and the Officer walked over to a four-door sedan Spears claimed was his. (Tr. 128, 271.) The two men sat in the car waiting on what Spears called “his men.” (Tr. 129.)

A bit later, Spears stepped out of the car to make calls to the 9129 phone, and upon returning inside the vehicle, said that someone would be there “soon.” (Tr. 13-31, 197, 561-62, 567-68.) Moments later, the same Range Rover the Officer had seen at the November transaction arrived. (Tr. 131, 197, 272, 318.) As the Range Rover pulled in front of the sedan in which the Officer and Spears were seated, the driver turned and looked over his shoulder in their direction. (Tr. 131, 197, 265-66.) The Officer saw the driver's face, later identifying the driver as Waters at trial. (Tr. 131-32, 253, 255, 257, 274, 312, 318.)

The Officer handed Spears money, after which Spears exited the sedan and entered the front passenger seat of the black Ranger Rover. (Tr. 132, 197, 273.) The Officer saw the driver “look down, shake his head [as if to say yes]” and then witnessed the two individuals “shifting [their] bodies.” (Tr. 131-33.) Spears got out of the Range Rover, rejoined the Officer, and the Range Rover drove away. (Tr. 131-33.) The license plate number noted by the officer was CRJ6169, confirming the Range Rover was the same vehicle from the November transaction. (Tr. 131.) Spears then handed the Officer a plastic bag marked “70” that contained almost two and a half ounces of cocaine. (Tr. 133, 333-34, 340.) In his report of the December transaction, the Officer estimated the Range Rover driver's height as 5'7” to 5'9” and his weight as 156 pounds. (Tr. 135-37.)

On February 20, 2008, the Officer called the 0077 phone but did not reach Spears. (Tr. 145.) Spears returned the call on a different number, 646-438-1318 (the “1318 phone”), and arranged with the Officer to meet for another transaction (the “February Transaction”). (Tr. 145-46, 148.) Spears explained, however, that “his man wouldn't be able to bring the coke to him that day ... So, [they] had to go to The Bronx to get it.” (Tr. 148, 309.) The two men took a taxicab to 1228 Shakespeare Avenue. (Tr. 148-49.) Upon arrival, the Officer handed Spears money, and Spears walked down the block into the building located at 1220 Shakespeare Avenue, the same address listed for “Keith Waters” on the Range Rover's registration. (Tr. 149-50.) Spears emerged minutes later from the building with a bag containing, as before, almost two and a half ounces of cocaine and gave it to the Officer. (Tr. 150, 336-337, 339-340.)

On June 3, 2008, police arrested both Spears and Waters. (Tr. 16.) Before the arrest, the Officer observed the two men together on the corner of 115^th Street “in the vicinity of the Range Rover.” (Tr. 207.) Waters was apprehended while driving away in the black Range Rover, and the Officer confirmed Waters as the drug seller, other than Spears, in the prior transactions. (Tr. 204-08, 369.) The police searched the Range Rover, where they found the 9129 phone and the 1318 phone. (Tr. 371-72, 378, 45256.)

B. Pre-Trial And Trial Proceedings

Waters and Spears were charged with two counts of criminal sale of a controlled substance in the first degree and one count of criminal sale of a controlled substance in the second degree. On October 21 2009, Waters and Spears were tried jointly before a jury, with presiding Justice Arlene Goldberg (the “Trial Judge”).³ The jury rendered its verdict on October 28, 2009, convicting both Waters and Spears on the two counts of first-degree drug sale and acquitting them of the second-degree sale count. (Tr. 673-81.) On January 4, 2010, Waters received a sentence of two concurrent sixteen-year prison terms and five years of supervised release.⁴ (Tr. ECF 706.) Waters was released on parole in October 2019 and remains under supervised release.⁵

3 Justice Goldberg conducted each of the pre-trial, trial, and § 440.10 hearings discussed herein.

4 Spears was sentenced to two concurrent 18-year prison terms. On appeal, the Appellate Division First Department affirmed his judgment unanimously, and leave to appeal further was subsequently denied. People v. Spears, 94 A.D.3d 498. 498-499, 941 N.Y.S.2d 500, 500-501 (1st Dep't 2012); People v. Spears, 19 N.Y.3d 1001, 1001, 975 N.Y.S.2d 477, 477 (2012).

5 See Dkt. 20 (Notice of Change of Address, dated Oct. 31, 2019); Dkt. 21 (Judge Debra Freeman finding that this case is not moot because Waters still meets the “in custody” requirement for habeas relief). See Jones v. Cunningham. 371 U.S. 236, 83 S.Ct. 373 (1963).

1. Pre-Trial Motion To Sever

On October 19, 2009, the Trial Judge conducted a Sandoval hearing to consider the admissibility of prior criminal acts.⁶ (Pre-Trial Tr. 19-34.⁷) Before the start of those proceedings, Waters submitted a motion to sever his trial from Spears'. (Pre-Trial Tr. 7.) Waters pointed to various recorded statements made by Spears implicating Waters and argued that severance was necessary so that he could call Spears to the stand and exonerate himself. (Pre-Trial Tr. 8-9; Severance Motion 18-20.⁸) The trial nevertheless proceeded against both Spears and Water jointly, effectively denying the severance motion, and Waters was unable to cross-examine Spears at trial.

6 See People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849 (N.Y. 1974).

7 “Pre-Trial Tr.” refers to the transcript of the Sandoval Hearing, Voir Dire proceedings, and discussion of other trial related issues held on October 19, 2009, which can be found at Dkt. 27-1 beginning on ECF 39.

8 “Severance Motion” refers to the Notice Of Motion and Affirmation submitted by Amelio P. Marino on behalf of Waters to sever the trial, attached as Exhibit E to the Government's Answer to Waters' Complaint, which can be found at Dkt. 17-3, ECF 18-20.

2. Hinton Hearing

The Government made an application to close the courtroom during the testimony of the Officer, and on October 21, 2009, the Trial Judge conducted an evidentiary hearing pursuant to People v. Hinton, 31 N.Y.2d 71, 334 N.Y.S.2d 885 (1972). Citing to both state and federal public trial precedent, Waters asked the court to “strike a compromise” to complete closure and allow Gwendolyn Robinson (“Robinson”), “a close friend ... of both defendants,” to view the Officer's testimony at trial. (Hinton Tr. ECF 326-28.⁹) The court granted the Government's application to close the courtroom during the testimony of the Officer and denied Waters' application to admit Robinson as an exception. (Hinton Tr. ECF 329-30, 332.)

9 “Hinton Tr.” refers to the transcript of the Hinton Hearing held on October 21, 2009, which can be found at Dkt. 27-1, ECF 306-335.

3. Trial Testimony About Height And Weight

At trial, testimony confirmed that the Officer's estimate of Waters' height and weight - recorded in his December buy report based on having seen Waters seated in the driver's seat of the black Ranger Rover - was inaccurate. (Tr. 136-37; 33-34, 212.) In his buy report, the Officer described the height of Waters as 5'7” to 5'9”. (Tr. 135-37.) At trial, however, it was revealed to the Officer that Waters stood 6'5”. (Tr. 211-12.) Similarly, the Officer's December buy report estimated the driver's weight as 156 pounds, but documents at trial indicated that Waters weighed 220 pounds. (Tr. 136-137, 212, 264.) The Officer nonetheless identified Waters in the courtroom at trial. (Tr. 131-32.)

4. Admission Of Statements About “Keith”

As noted above, on October 3, 2007, Spears used the name “Keith” several times in a recorded conversation with the Officer, including saying, “Yo, I talk to my man, I talked to Keith. Spoke to Keith. He said ... he's your man? We got to look at that shit.” (Tr. 9394, 194, 313, 317.)

Prior to the Sandoval hearing, the Government and Waters discussed the issue of the admissibility of the recording and general use of the name “Keith” at trial. (Pre-Trial Tr. 7-9.) The Trial Judge considered the issue after voir dire was completed, at which point she expressed concern that Waters could not confront Spears and precluded referencing “Keith” at trial absent the Government later convincing the court that it should be permitted. (Pre-Trial Tr. 257, 261-66.) The Trial Judge also directed the Government to submit both redacted and unredacted versions of the recording. (Pre-Trial Tr. 266-67.)

On the first day of trial, the Officer referred to “Keith” during his testimony about the October 3, 2007 conversation with Spears. (Tr. 93.) Waters' counsel moved for a mistrial. (Tr. 96.) The Trial Judge denied the application and instructed the jury not to consider the part of the Officer's testimony referencing “Keith,” but noted that the decision was “subject to revisiting.” (Tr. 98-99.) The following day, the Trial Judge did revisit the issue and found that the Government had established a prima facie case that Waters and Spears “were co-conspirators for the sale of narcotics” and therefore would both allow the jury to hear the unredacted recording, and also withdraw any limitation placed on the Officer's reference to “Keith” from the prior day's testimony. (Tr. 172.)

C. Direct Appeals

On direct appeal to the Appellate Division, First Department, Waters raised four grounds to reverse his conviction: (1) the verdict was based on legally insufficient evidence and was against the weight of the evidence; (2) the conversation recorded by the Officer did not fall within the exception to the hearsay rule and that admission of the statement referencing “Keith” violated Waters' Confrontation Clause rights under the New York State constitution; (3) closure of the courtroom during the Officer's testimony violated Waters' state and federal constitutional right to a public trial; and (4) the sentence was excessive.

The Appellate Division unanimously affirmed the trial court, rejecting each ground. People v. Waters, 147 A.D.3d 552, 552-53, 46 N.Y.S.3d 792, 792-93 (1^st Dep't 2017). First, the Court determined that the verdict was based on legally sufficient evidence and not against the weight of the evidence, and that there was “no basis for disturbing the jury's ... evaluation of any discrepancies between [the Officer's] description of [Waters] and his actual appearance.” Id. at 552, 46 N.Y.S.3d at 792. Second, the Court found that the Confrontation Clause claim was meritless and unpreserved, and that the Government had established a prima facie showing of a conspiracy, thereby rendering admissible references to “Keith.” Id. at 553, 46 N.Y.S.3d at 792. Third, the Court concluded that Waters did not preserve his public trial claim because he brought a generalized public trial claim on appeal while only objecting to the “exclusion of a particular spectator” at trial. Lastly, the Court “perceive[d] no basis for reducing the sentence.” Id.

Waters applied for leave to appeal to the New York Court of Appeals, which was denied on June 12, 2017. People v. Waters, 29 N.Y.3d 1088, 1088, 64 N.Y.S.3d 178, 178 (N.Y. 2017).

D. § 440.10 Post-Conviction Motion

Waters submitted a motion to vacate the trial court's judgment on February 14, 2012, based on newly discovered evidence. (Ex. D at 40.¹⁰) On December 10, 2012, the Trial Judge held a hearing pursuant to N.Y. Criminal Procedure Law § 440.10(1)(g). The newly discovered evidence presented at the hearing included two affidavits, one from Spears and another from a man named Andre Edmonds (“Edmonds”). At the time of the hearing, Edmonds was, like Spears and Waters, incarcerated at Downstate Correctional Facility. (440.10 Tr. 72.¹¹)

10 “Ex. D” refers to Petitioner's Collateral Motion and supporting documents which are attached to the Government's Answer to the Petition as Exhibit D and can be found at Dkt. 17-2, ECF 39-67.

11 “440.10 Tr.” refers to the § 440.10 hearing transcript attached to the Government's Answer to the Petition as Exhibit G, which can be found at Dkt. 17-4.

Spears claimed that he never called Waters for the purposes of procuring narcotics, never received any narcotics from Waters, and had intended to bring these facts to light at trial but did not because his attorney advised Spears that appearing as a witness would be detrimental to his own case. (Spears Aff. at ECF 61; 440.10 Tr. 1316.¹²) For his part, Edmonds recounted a conversation he had with Spears over a game of chess. (440.10 Tr. 72-73; Edmonds Aff. at ECF 63.¹³) According to Edmonds, Spears told him that Waters was innocent and had nothing to do with the drug transactions. (440.10 Tr. 72-73; Edmonds Aff. at ECF 63.)

12 “Spears Aff.” refers to the affidavit given by Spears in support of Waters as part of Waters' § 440.10 Collateral Motion, which can be found attached to the Government's Answer to the Petition at Dkt. 17-2, ECF 61-62.

13 “Edmonds Aff.” refers to the affidavit given by Edmonds in support of Waters as part of Waters' § 440.10 Collateral Motion, which can be found attached to the Government's Answer to the Petition at Dkt. 17-2. ECF 63.

The Trial Judge denied the motion to vacate the judgment “in all respects.” (440.10 Tr. 122-23.) On June 12, 2013, the Appellate Division, First Department found that “there is no question of law or fact presented which ought to be reviewed by the Appellate Division” and denied permission to appeal. (Habeas Pet. at ECF 27.¹⁴)

14 “Habeas Pet.” refers to Waters' petition for a writ of habeas corpus; the denial of leave to appeal by the Appellate Division, First Department, is attached to the petition and can be found at Dkt. 1, ECF 26.

E. The Petition

On October 23, 2017, Waters filed his Petition for a writ of habeas corpus, arguing that relief is warranted because (1) the trial court violated his right to a public trial under the Sixth Amendment by closing the courtroom to the public during the Officer's testimony; (2) erroneous admission of hearsay evidence deprived him of his Confrontation Clause right under the federal and New York State constitutions; (3) he is actually innocent based on newly discovered evidence; and (4) the verdict was based on legally insufficient evidence. (Habeas Pet. at ECF 5-10.) The Government answered the Petition on March 19, 2018. (Dkts. 17-18.) Waters did not file a reply. On September 15, 2022, the case was assigned to me for report and recommendation. (See Sept. 15, 2022 Notice of Reassignment).

Standard Of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) limits a federal court's ability to provide habeas corpus relief. 28 U.S.C. § 2254(a). Under AEDPA, a state prisoner's application for a writ of habeas corpus shall not be granted unless the court's decision:

(1) 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) 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). In making that determination, a federal court must afford deference to the state court:

Deciding whether a state court's decision ‘involved' an unreasonable application of federal law or ‘was based on' an unreasonable determination of fact requires the federal habeas court to ‘train its attention on the particular reasons -both legal and factual - why state courts rejected a state prisoner's federal claims' and to give appropriate deference to that decision.

Wilson v. Sellers, __U.S.__, 138 S.Ct. 1188, 1191-92 (2018) (citations omitted) (quoting Hittson v. Chatman, 576 U.S. 1028, 1028, 135 S.Ct 2126, 2126 (2015) (Ginsburg, J., concurring in denial of certiorari)).

A state court decision is “contrary to” clearly established precedent when the state court applies a rule that is “diametrically different, opposite in character, or mutually opposed” to the governing law set forth in Supreme Court cases. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 1519 (2000) (internal quotations marks omitted) (quoting Contrary, Webster's Third New International Dictionary (1976)). Alternatively, a “court may grant relief under the ‘unreasonable application' clause if the state court correctly identifies the governing legal principle ... but unreasonably applies it to the facts of the particular case.” Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 1850 (2002) (citing Williams, 529 U.S. at 407-08, 120 S.Ct. 1520-21). This inquiry focuses not on whether the state court's application of clearly established federal law was merely incorrect or erroneous but on whether it was objectively unreasonable. See id. “Under § 2254(d), a habeas court must determine what arguments or theories supported, or . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Harrington v. Richter, 562 U.S. 86, 102, 131 S.Ct. 770, 786 (2011).

AEDPA forecloses “‘using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.'” Parker v. Matthews, 567 U.S. 37, 38, 132 S.Ct. 2148, 2149 (2012) (per curiam) (quoting Renico v. Lett, 559 U.S. 766, 779, 130 S.Ct. 1855, 1966 (2010)). Accordingly, “[a] state court's findings are not unreasonable under § 2254(d)(2) simply because a federal habeas court reviewing the claim in the first instance would have reached a different conclusion.” Pine v. Superintendent, Green Haven Correctional Facility, 103 F.Supp.3d 263, 275 (N.D.N.Y. 2015) (citing Wood v. Allen, 558 U.S. 290, 301, 130 S.Ct. 841, 849 (2010)). “The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable - a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 1939 (2007).

Even if a trial-court error meets the standards required by AEDPA, habeas relief is not warranted unless the violation “‘had substantial and injurious effect or influence in determining the jury's verdict.'” Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 1722 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253 (1946)); see also Fry v. Pliler, 551 U.S. 112, 121, 127 S.Ct. 2321, 2327 (2007) (confirming continued applicability of Brecht under AEDPA); Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994) (“Habeas relief is not appropriate when there is merely a ‘reasonable possibility' that trial error contributed to the verdict.”) (quoting Brecht, 507 U.S. at 637, 113 S.Ct. at 1721)); Butler v. Graham, No. 07-CV-6586, 2008 WL 2388740, *6 (S.D.N.Y. June 12, 2008) (recognizing and applying the “substantial and injurious effect” standard and citing Brecht and Fry).

The petitioner “bears the burden of proving by a preponderance of the evidence that his constitutional rights have been violated.” Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997). The petitioner also bears “the burden of rebutting the presumption of correctness” of state court fact determinations “by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Where a petitioner proceeds pro se (i.e., without legal representation), the Court must construe his submissions liberally and interpret them “to raise the strongest arguments that they suggest.” Kirkland v. Cablevision Systems, 760 F.3d 223, 224 (2d Cir. 2014) (per curiam) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). This does not, however, excuse a petitioner “from compliance with relevant rules of procedural and substantive law.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (internal quotation marks and citation omitted).

Where a state appellate court summarily affirms a decision by the lower court, the federal habeas court “‘look[s] through' the unexplained decision to the last related statecourt decision that does provide a relevant rationale” and “then presume[s] that the unexplained decision adopted the same reasoning.” Wilson, __U.S. at__, 138 S.Ct. at 1192. That presumption may be rebutted “by showing that the unexplained affirmance relied or most likely did rely on different grounds than the lower state court's decision, such as alternative grounds for affirmance that were briefed or argued to the state supreme court or obvious in the record it reviewed.” Id., __U.S. at__, 138 S.Ct. at 1192.

I. Public Trial Claim

Waters argues that his Sixth Amendment right to a public trial was violated when the trial court closed the courtroom during the Officer's testimony. Although the claim is not barred from consideration, as the Government contends, it nonetheless fails on the merits.

A. The Public Trial Claim Is Not Procedurally Defaulted

“[A] procedural default occurs if the state court's rejection of a federal claim rests on a state law ground - such as the operation of a state procedural rule,” so long as application of the state rule is both “independent” and “adequate.” Jackson v. Conway, 763 F.3d 155, 133 (2d Cir. 2014); Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 2553 (1991). A procedural default bars consideration of a federal claim on habeas review when the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar. Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 1043-44 (1989).

A decision is independent when it is not “interwoven with federal law” but instead “fairly appear[s] to rest primarily on state procedural law.” Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir. 2006). A decision is adequate when the state procedural rule it relies upon is “‘firmly established and regularly followed.'” Walker v. Martin, 562 U.S. 307, 316, 131 S.Ct. 1120,1127 (2011) (quoting Beard v. Kindler, 588 U.S. 53, 60-61, 130 S.Ct. 612, 617-618 (2009)). The Second Circuit has routinely found that failure to preserve an issue for appeal is an adequate and independent state law ground sufficient to bar habeas review. See Downs v. Lape, 657 F.3d 97, 103-04 (2d Cir. 2011) (collecting cases).

New York Criminal Procedure Law § 470.05 requires “‘that any matter which a party wishes the appellate court to decide to have been brought to the attention of the trial court at a time and in a way that gave the latter the opportunity to remedy the problem and thereby avert reversible error.'” Richardson v. Greene, 497 F.3d 212, 218 (2d Cir. 2007) (quoting Garcia v. Lewis, 188 F.3d 71, 78 (1999) in turn quoting People v. Luperon, 85 N.Y.2d 71, 78, 623 N.Y.S.2d 735, 738-93 (1995)); see also People v. Jones, 81, A.D.2d 22, 41, 440 N.Y.S.2d 248, 261. (2d Dep't 1981).

At the Hinton hearing, Waters opposed the prosecution's motion to close the courtroom for the Officer's testimony by requesting as a compromise that only Robinson, as opposed to the general public, be allowed in the courtroom. (Hinton Tr. ECF 327-28.) In arguing for that compromise, Waters' defense counsel cited law addressing closure of the courtroom more broadly. Invoking Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210 (1984), defense counsel stated that “closure ... requires more than conclusory assertions that an undercover officer fears for his life or safety” and that “ongoing undercover work in the Borough of New York City is inadequate to justify closure.” (Hinton Tr. ECF 32728.) The Trial Judge also made a broad determination, holding “that the People have made a sufficient showing to justify closure of the courtroom.” (Hinton Tr. ECF 329-30.)

On appeal, Waters argued that closure of the courtroom violated his right to a public trial generally and that the Trial Judge erred in placing the burden on Waters to establish a reasonable alternative to closure; i.e., allowing Robinson into the courtroom during the Officer's testimony. (Ex. A at 21-22, 54-55, 59.¹⁵) Yet the Appellate Division found that Waters “did not preserve his present claim that the exclusion of the general public (as opposed to the exclusion of a particular spectator not at issue on appeal) from the courtroom during the undercover's testimony was unwarranted.” Waters, 147 A.D.3d at 53, 46 N.Y.S.3d at 792-93. The Appellate Division distinguished between Waters' specific request to allow Robinson to view the Officer's testimony as an alternative to closure and Waters' general claim on appeal that closing the courtroom violated Mr. Waters' rights as a matter of federal constitutional law. Id. The Government urges the Court to accept the Appellate Division's decision and decide that habeas review of Waters' public trial claim is precluded on independent and adequate state law grounds via application of New York's contemporaneous objection requirement.

15 Ex. A” refers to Petitioner's Appellate Division Brief on State-Court Direct Appeal, attached to the Government's Answer to the Petition as Exhibit A, which can be found at Dkt. 17-1 at ECF 5-81.

On habeas review, federal courts “defer[] to findings of procedural default [by state appellate courts] as long as they are supported by a ‘fair or substantial basis' in state law.” Garcia, 188 F.3d at 78 (quoting Arce v. Smith, 889 F.2d 1271, 1273 (2d Cir.1989).) “There are exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question.” Lee v. Kemna, 534 U.S. 362, 376, 122 S.Ct. 877, 885 (2002). “[T]he question is whether application of the procedural rule is firmly established and regularly followed in the specific circumstances presented in the case, an inquiry that includes an evaluation of the asserted state interest in applying the procedural rule in such circumstances.” Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (internal quotation marks omitted). “The Second Circuit has set forth the following ‘guideposts' for making this determination: (1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had ‘substantially complied' with the rule given ‘the realities of trial,' and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.” Hoyt v. Lewin, 444 F.Supp.2d 258, 269 (S.D.N.Y. 2006) (citing Cotto, 331 F.3d at 217).

Here, the Court finds that the Appellate Division erred in holding that Waters did not preserve his general public trial claim. New York Criminal Procedure Law § 470. 05 provides that an objection at trial is sufficient to preserve an issue for appeal if “if in re[s]ponse to a protest by a party, the court expressly decided the question raised on appeal.” N.Y. Crim. Proc. Law § 470.05(2). By finding that no exception should be made to allow Robinson in the courtroom during the Officer's testimony, the Trial Judge necessarily determined that closure to the general public in its entirety was warranted and rejected Waters' objection to closure of the courtroom to everyone, including Robinson. In fact, the Trial Judge first concluded that “given all of [the testimony of the Officer about his work and safety concerns], I believe that the People have made a sufficient showing to justify closure of the courtroom ...To do otherwise would seriously compromise his ability to function as an undercover and also safety concerns. Now, the People having met that, the burden shifts to the Defense to establish . an exception,” which Waters failed to do as to Robinson. (Hinton Tr. ECF 330.)

The determination by the Appellate Division is at odds with New York Criminal Procedure Law § 470.05(2) and the facts of the Hinton hearing, and thus does not procedurally bar Waters' public trial claim. See Hoyt, 444 F.Supp.2d at 269 (finding no procedural default, without analysis of the Cotto guidelines, where “the problem with the Appellate Division's ruling is not that it held [petitioner] to some overly rigorous application of a procedural rule. Rather, the problem is that the Appellate Division's invocation of the procedural bar relies on a factual determination that is completely unsupported by the trial record”).

Consideration of the Cotto guidelines further supports finding no procedural bar. First, it is clear from the Trial Judge's decision finding closure of the courtroom justified that, whether Waters' counsel insisted on a fully open courtroom or just the admission of Robinson, the decision to close the courtroom would be the same. As to state caselaw, the Government offers no state court decisions supporting its position that Waters' more narrow proposed compromise, followed by the Trial Judge's decision to close the courtroom to the public as a whole under Hinton, did not satisfy New York Criminal Procedure Law § 470.05(2) to preserve a general objection to the closure of the courtroom.¹⁶ Nor is the Court aware of any such decision; rather, New York courts routinely apply § 470.05(2) to hold the contemporaneous objection requirement met where the ruling court's decision on an objection encompasses the legal argument raised on appeal. See, e.g., People v. Finch, 23 N.Y.3d 408, 412, 991 N.Y.S.2d 552, 555 (2014) (where the “City Court ruled definitively on the legal argument that defendant ma[de] on this appeal,” the argument was preserved for appellate review); People v. Ayala, 142 A.D.2d 147, 157, 534 N.Y.S.2d 1005, 1011 (1988) (“Although this issue was not raised in the defendant's trial counsel's oral opposition to the People's application,” it was “preserved for appellate review as a matter of law” when it was “specifically addressed by the Trial Court”), aff'd, 75 N.Y.2d 422, 554 N.Y.S.2d 412 (1990); cf. People v. Jackson, 29 N.Y.3d 18, 23, 52 N.Y.S.3d 63 (2017) (“if defendant specifically objected to points raised in the proffer and the court ruled in the People's favor, on the precise grounds cited by the People ... defendant's argument might fit within the language of CPL 470.05(2)”).

16 The Government cites cases that a more general objection does not preserve a more specific objection for appeal in the context of legal sufficiency challenges. (Resp. Mem. at 41-42 (citing People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 175 (1995) and People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 395 (2008).)

Finally, even if it did not literally comply with New York's contemporaneous objection rule, Waters' request at the Hinton hearing to allow Robinson to remain in the courtroom substantially complied with the state contemporaneous objection rule. That is evident from Waters' opposition to the prosecution's motion to close the courtroom, arguments based on caselaw applicable to closure of the courtroom generally, and the Trial Court's ruling permitting closure altogether. Demanding anything further in these circumstances would advance no additional state interest. See Rios v. Lempke, No. 11-CV-00205F, 2014 WL 2168057, at *17 (W.D.N.Y. May 22, 2014) (“The fundamental rationale of N.Y.Crim. Proc. Law § 470.05(2) is to provide a trial court judge with the opportunity to rule on an issue of law before it can be raised on appeal” and where the trial court's rejection of petitioner's motion in limine “establishe[d] that the trial court was on notice about the legal issue in question .... no legitimate state governmental interest [was] served by requiring further compliance by the [p]etitioner”).

“[A]t a minimum, [Waters] ‘substantially, if imperfectly, made the basic showing' required under § 470.05(2), and his claim qualifies for federal adjudication.” Fong v. Poole, 522 F.Supp.2d 642, 655 (S.D.N.Y. 2007) (quoting Lee, 534 U.S. at 366, 122 S.Ct. at 880.) His public trial claim therefore is not procedurally barred.

B. The Public Trial Claim Has No Merit

Even though not procedurally defaulted, Waters' public trial claim is meritless. The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a . public trial,” and this principle is applicable to state prosecutions via the Fourteenth Amendment. U.S. Const. Amend VI; see Duncan v. Louisiana, 391 U.S 145, 148, 88 S.Ct. 1444, 1446-47 (1968). Although public trials are strongly favored, the right to a public trial is not absolute, and “may give way in certain cases to other rights and interests.” Waller 467 U.S. at 45, 104 S.Ct. at 2215. The “presumption of openness” can be overcome if the following conditions are met:

[(1)] the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced[; (2)] the closure must be no broader than necessary to protect that interest[; (3)] the trial court must consider reasonable alternatives to closing the proceeding[; and (4) the trial court] must make findings adequate to support the closure.

Id. at 48, 104 S.Ct at 2216. The main inquiry on habeas review is whether the application of Waller by the trial court was objectively unreasonable, not whether it was incorrect. Bell, 535 U.S. at 694, 122 S.Ct. at 1843 (citing Williams, 529 U.S. at 407-08, 122 S.Ct. at 1843); see Brown v. Artuz, 283 F.3d 492, 500 (2d Cir. 2002) (applying Waller under the deferential AEDPA standard of review). Each of the Waller conditions are met here; at the very least, the state court's determination cannot be viewed as contrary to, or an unreasonable application of, the Waller factors.

1. Factors 1 and 4: Interest Served By The Closure, And The Trial Court's Findings To Support The Closure

The state court's determination cannot be viewed as contrary to, or an unreasonable application of the first and fourth Waller prongs. Brown, 283 F.3d at 500; Waller at 48, 104 S.Ct at 2216. “The state interest in maintaining the continued effectiveness of an undercover officer is an extremely substantial interest.” Ayala v. Speckard, 131 F.3d 62, 72 (2d Cir. 1997). Here, the Officer and the Government established the existence of a serious risk to both the Officer's effectiveness and safety such that closure of the courtroom would prejudice the state's interest.

At the Hinton hearing, the Officer testified that, while his operations within the King Houses had concluded, he continued to engage in undercover narcotics work throughout Manhattan. (Hinton Tr. ECF 308-09.) Although reassigned to Manhattan South Narcotics, and no longer operating within the Manhattan North jurisdiction which encompasses the King Houses, Manhattan South and North are geographically adjacent. (Hinton Tr. ECF 309.) The boundaries of the drug operations in which the Officer took part are fluid and unpredictable, meaning that the Officer could move further north or south and into other boroughs over the course of an investigation. (Hinton Tr. ECF 31011.) See Nieblas v. Smith, 204 F.3d 29, 33 (2d Cir 1999) (finding evidence supported closure where the officer had been transferred to an adjacent precinct at the time of trial but still could have been assigned to undercover work in the vicinity where the defendant trafficked drugs); accord Mickens v. Larkin, No. 12-CV-7953, 2014 WL 414014, at *11-12 (S.D.N.Y. Feb. 4, 2014), R&R adopted 2014 WL 6632950 (S.D.N.Y. Nov. 24, 2014)(noting that the possibility that the officer would be working again in the area where the defendant had been arrested justified a closed courtroom).

Additionally, at the time of the hearing, the Officer still had pending cases stemming from the investigation of the King Houses; targets of that operation were still at large; and the Officer's testimony may have been required in related pending cases. (Hinton Tr. ECF 311.) See Bobb v. Senkowski, 196 F.3d 350, 354 (2d Cir. 1999) (finding that courtroom closure is appropriate even when an undercover officer has been transferred, or temporarily reassigned, to a different part of the city - especially when the officer has cases pending in the courthouse where the trial will occur). The Officer testified that appearing in open court would dramatically hinder his ability to operate as an undercover officer, and would threaten his safety, stating that he had been previously stabbed five years prior to the hearing and was continuously threatened, frisked, and searched in the line of duty. (Hinton Tr. ECF 311-15, 330.) Notably, the Officer stated that he had testified in a closed courtroom “[e]very time [he] was on trial as an undercover.” (Hinton Tr. ECF 313.)

Defense counsel argued that the Officer made only conclusory assertions about his safety concerns with his ongoing undercover work and thus insufficiently justified exclusion of Robinson. (Hinton Tr. ECF 328.) The Trial Judge found, however, that the evidence taken together - including the credibility of the Officer's testimony, the real threats to his safety and that of his family, and the pending cases and failure to arrest everyone from the King Houses investigation - were sufficient grounds to close the courtroom to the general public, as well as to exclude Robinson. (Hinton Tr. ECF 32930.)

2. Factors 2 and 3: Not Broader Than Necessary, And Alternative Measures

The state court did not fail in considering reasonable alternatives to full closure and addressing the overall scope of the closure. Importantly, Waters did not object to closure of the courtroom to the general public, but merely asked the court to “strike a compromise and permit [Robinson] to view the proceedings.” (Hinton Tr. ECF 326-27.) The court considered and rejected this alternative. See People v. O'Conner, 90 A.D.3d 431, 431-32, 933 N.Y.S.2d 858, 858 (1st Dep't 2011) (“[trial court] satisfied the Waller requirement of considering alternatives to full closure” when it “permitted defendant's family and certain other persons to attend” and “implicitly considered but rejected another alternative to closure proposed by defendant”); People v. Manning, 78 A.D.3d 585, 586, 916 N.Y.S.2d 183, 183 (1st Dep't 2010) (admitting family members, and consideration of others on an individual basis, “was adequate to satisfy the Waller requirement of considering alternatives to the exclusion of all spectators”).

On appeal, Waters argued that the court impermissibly placed the burden to propose and consider alternatives on him, when, according to New York law, that burden “falls squarely on the court itself.” (Ex. A at 60.) But the trial court's ruling that complete closure was necessary constituted an implicit rejection of all lesser alternatives. See People v. Echevarria, 21 N.Y.3d 1,21,966 N.Y.S.2d 747, 759 (2013) (holding that where there was a Hinton hearing and a particularized finding justifying closure, it is “fair to imply that the trial courts concluded that no lesser alternative would have adequately protected the officer's safety, and, therefore, the courts discharged their prong three duty to consider reasonable alternatives”); People v. Ramos. 90 N.Y.2d 490, 500, 662 N.Y.S.2d 739, 746 (N.Y. 1997) (holding the circumstances of a particular case can themselves imply that the trial court, in ordering the closure, determined that no lesser alternative would protect the articulated interest).

The trial court both explicitly considered the alternative of admitting Robinson and rejected it, and also implicitly considered the alternatives to closure by holding a Hinton hearing and assessing the testimony of the Officer and the arguments of Waters and the Government. Accordingly, the state court's decision to close the courtroom and exclude Robinson was not contrary to, or an unreasonable application of, Waller's second and third prongs. Brown, 284 F.3d at 500; Waller at 48, 104 S.Ct at 2216. In sum, Waters' public trial claim fails on the merits and should be dismissed.

II. Confrontation Clause And Hearsay Evidence Claim

Waters claims that he was deprived of his right to confrontation by the admission of hearsay statements referencing his name and implicating him in the crime. That claim is both procedurally barred and meritless. The Court begins its discussion, however, with a recap of the relevant facts specific to the confrontation issue.

A. The Statement And Rulings At Issue

Waters' counsel sought to sever his trial from Spears and preclude recordings and testimony about Spears' mentioning “Keith,” citing a “Bruton issue,” presumably referring to Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620 (1968).¹⁷ (Pre-Trial Tr. 7-9.) The trials were not severed, but after voir dire the Trial Judge first considered the admissibility of statements by Spears referring to “Keith.” The Trial Judge expressed concern about admitting the statements, asking the prosecution “how ... one defendant [can] implicate the other person [who] is acting in concert with him when he can't confront him.” (PreTrial Tr. 261.) She precluded the prosecution from introducing statements referencing “Keith” at trial absent the Government later convincing the court that its use should be permitted. (Pre-Trial 262-66.) Waters' counsel stated that he believed that the statement was inadmissible under Bruton but would provide other cases if he “f[ound] anything else.” (Pre-Trial Tr. 263.)

17 In Bruton, the Supreme Court held that “because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining petitioner's guilt, admission of [petitioner's co-defendant's] confession in this joint trial violated petitioner's right of cross-examination secured by the Confrontation Clause of the Sixth Amendment” to the United States constitution. Bruton, 391 U.S. at 126, 88 S.Ct. at 1622.

The next day, the Officer referred to “Keith” during his testimony about the October 3, 2007 conversation with Spears (Tr. 93.), after which Waters' counsel moved for a mistrial (though he did not object during the Officer's testimony). (Tr. 96.) The Trial Judge denied the application and instructed the jury not to consider the part of the Officer's testimony referencing “Keith” (Tr. 98-99), but acknowledged that the statements “may come in anyway” in light of additional authority submitted by the prosecution. (Tr. 97.) After reviewing the cases proffered by the prosecution, Waters' counsel argued only that the statements were inadmissible against Waters because there was insufficient evidence to establish that the defendants were co-conspirators. (Tr. 165-71.) The trial court concluded that “the People have made out a showing that they were co-conspirators for the sale of narcotics. So, I'm going to allow them to play the tape with [Waters'] name, and as to the testimony, I will withdraw any limitation on it.” (Tr. 172.)

On direct appeal, Waters argued that admission of the statements made by Spears on October 3, 2007, in which he referenced “Keith,” did not qualify for the co-conspirator exception to the hearsay rule, and that “the admission of Mr. Spears' statement violated Mr. Waters' rights under the Confrontation Clause of the New York State Constitution.” (Ex. A at 25-26, 39-40.) Waters did not contend that admission of the “Keith” testimony violated the United States constitution. The Appellate Division held that the state constitutional claim was unpreserved and “decline[d] to review it in the interest of justice” and as an alternative “reject[ed] it on the merits.” Waters, 147 A.D.3d at 553, 46 N.Y.S.3d at 792-93. In the instant action, Waters contends that admission of the references to “Keith” violate both the New York state and federal Confrontation Clauses. His claims, however, are procedurally barred or otherwise meritless.

B. The State Confrontation Clause Is Procedurally Defaulted And Not Cognizable On Habeas Review

Waters' state Confrontation Clause claim is procedurally defaulted, and unreviewable, both because it was not raised at trial, and because the claim concerns alleged violation of state, not federal, law.

Waters raised, at best, an objection under the federal Confrontation Clause by invoking Bruton; he did not raise at all an objection under the New York confrontation clause. On appeal, however, Waters specifically invoked the broader protections afforded by the New York Confrontation Clause, which he at no point raised at trial. (Ex. A at 3437.) Therefore, in contrast to his public trial claim, the Court finds that the Appellate Division's decision that Waters failed to preserve his objection under the New York constitution as required by New York Criminal Procedure Law § 470.05 is “supported by a fair or substantial basis in state law.” Garcia, 188 F.3d at 78 (internal quotation marks omitted). The Appellate Division's decision that Waters failed to preserve the issue for appeal is thus based on an adequate and independent state law ground sufficient to bar habeas review. See Downs, 657 F.3d at 103-04. Even if the state constitutional claim were not procedurally defaulted, however, it would not be reviewable because a federal court is limited on habeas review to deciding whether a conviction violated the federal constitution or its laws and treaties. Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct 475, 480 (1991).

C. The Federal Confrontation Clause Claim Is Deemed Exhausted And Procedurally Defaulted

Under the AEDPA, a federal court may not consider a petition for a writ of habeas corpus by a prisoner in state custody unless the petitioner has exhausted all state judicial remedies. 28 U.S.C. § 2254(b)(1)(A); see Jackson, 763 F.3d at 133. To satisfy the exhaustion requirement, the petitioner must have “fairly presented” his claims 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, 92 S.Ct. 506, 512 (1971). 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, 73-74 (2d Cir. 2005). (“one complete round” of New York's appellate review process involves appeal to Appellate Division and then application to Court of Appeals for certificate granting leave to appeal). A petitioner must present to the state courts both the factual and legal premises of the claim that he asserts in the habeas petition. Anderson v. Harless, 459 U.S. 4, 6-7, 103 S.Ct. 276, 277 (1982); Picard, 404 U.S. at 276, 92 S.Ct. at 512.

Notwithstanding the exhaustion requirement, the Court may “find that there is an ‘absence of available State corrective process' under § 2254(b)(1)(B)(i) if it is clear that the unexhausted claim is procedurally barred by state law and, as such, its presentation in the state forum would be futile.” Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001). In such a case, the habeas court “has the power to deem the claim exhausted.” Id. (citing Reyes v. Keane, 118 F.3d 136, 139 (2d Cir.1997). “This apparent salve, however, proves to be cold comfort to most petitioners because it has been held that when ‘the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred,' federal habeas courts also must deem the claims procedurally defaulted.” Id. (quoting Coleman, 501 U.S. at 735 n.1, 111 S.Ct. at 2257 n.1).

Although it would be based on the same factual premises as his New York State Confrontational Clause claim, Waters did not argue a violation of his federal Confrontation Clause right on direct appeal and therefore has not afforded the state courts a full opportunity to correct the alleged federal Confrontation Clause violations. (See Ex. A at 39.) To the contrary, on appeal, Waters distinguished the federal Confrontation Clause protections surrounding admission of hearsay statements from New York's, stating “our State Confrontation Clause offers more protection than the federal Confrontation Clause.” (Ex. A at 34-37.) Specifically, Waters discussed New York's protection against admission of non-testimonial hearsay statements of co-conspirators in contrast with the lack of protection for such statements under the federal constitution. (Ex. A at 34-35.) Waters' argument sought solely to establish that the statements fall within the broader protection of New York's constitution, never arguing that the federal constitution had been violated. (Ex. A at 34-37.)

Waters failed to “fairly present” the legal basis for his federal Confrontation Clause claim to the Appellate Division and the Court of Appeals, despite the factual basis for the claim being clear at the time of his appeal. He thus failed to exhaust his right to have New York courts consider the issue, and it is too late to remedy that failure. New York law precludes collateral review of a conviction where the ground for review could have been raised on appeal, N.Y. Crim. Pro. Law § 440.10(2)(c), and prohibits appellants from filing more than one petition to the New York Court of Appeals. N.Y. Ct. Rules § 500.20(a). Therefore, “[a]lthough [Waters] did not raise his federal claim in the Appellate Division, his claim is deemed exhausted and procedurally barred because he has no recourse in the state courts.” Mullings v. Laffin, No. 13-CV-139, 2014 WL 3897566, at *4 (E.D.N.Y. Aug. 8, 2014); see Reese v. Alexander, 37 Fed.Appx. 5, 8 (2d Cir. 2002) (considering claim not fairly presented to New York courts exhausted where “[petitioner] has already pursued the one direct appeal and application for leave to appeal to which he is entitled”); accord Jones v. Murphy, 694 F.3d 225, 248 (2d Cir. 2012) (claim not presented to state courts that would be waived under state law was deemed procedurally defaulted for habeas review); Smith v. Duncan, 411 F.3d 340, 348 (2d Cir. 2005) (same).

D. No Exceptions Apply

The determination that the federal Confrontation Clause claim is procedurally defaulted, rather than unexhausted, is nonetheless “cold comfort” to Waters as there are no grounds here to excuse this procedural default. Aparicio, 269 F.3d at 90. A claim that is procedurally defaulted is not subject to review in federal court, unless a petitioner can show (1) cause for the default, and prejudice would result from the alleged violation of federal law, or (2) that a fundamental miscarriage of justice will occur if the claim is not considered. See Coleman, 501 U.S. at 749-50, 111 S.Ct. at 2564-65; see also Galdamez394 F.3d at 73-74. Neither exception applies here.

1. No Cause And Prejudice

Cause for a procedural default ordinarily turns on whether the petitioner can show that “some objective factor external to the defense impeded [petitioner's] efforts to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645 (1986); accord Coleman, 501 U.S. at 753, 111 S.Ct. at 2566. Common examples of cause include a showing that the factual or legal basis for a claim was not reasonably available at the time of the default or that “some interference by [state] officials” made compliance with the procedural mechanism impracticable. Carrier, 477 U.S. at 488, 106 S.Ct. at 2639. For a petitioner to demonstrate prejudice, he “must show more than that errors created a possibility of prejudice, but instead that they worked to his actual and substantial disadvantage.” Quail v. Farrell 550 F.Supp.2d 470, 474-75 (S.D.N.Y. 2008) (internal quotation marks and brackets omitted). Waters has not presented any evidence that any failure to object was impeded by some external cause.

2. No Fundamental Miscarriage Of Justice (Actual Innocence)

Even when a habeas claim is procedurally defaulted and there is no cause to excuse the default, a “gateway” to review in federal court can be opened if the petitioner can demonstrate that keeping the door shut would be a fundamental miscarriage of justice. See Hyman v. Brown, 927 F.3d. 639, 656 (2d Cir. 2019) (stating that the law recognizes that, “in a narrow class of cases, there remains the risk of a fundamental miscarriage of justice if the defaulted constitutional claim is not heard”) (internal quotation marks omitted). The “narrow class of ‘truly extraordinary' cases” in which a habeas court can review a procedurally defaulted claim “consists of those presenting credible and compelling claims of actual innocence.” Id.; accord. Carrier, 477 U.S. at 497, 106 S.Ct. at 2650 (“Respondent's petition for federal habeas review of his procedurally defaulted discovery claim must therefore be dismissed for failure to establish cause for the default, unless it is determined on remand that the victim's statements contain material that would establish respondent's actual innocence”). To open this gateway despite a procedural bar, a petitioner must advance both a legitimate constitutional claim and sufficient doubt of petitioner's guilt via a “credible” and “compelling” claim of actual innocence. Schlup v. Delo, 513 U.S. 298, 316, 115 S.Ct. 851, 861-62 (1995); accord Rivas v. Fischer, 687 F.3d 514, 540-41 (2d Cir. 2012).

For the claim to be credible, it must be supported by new and reliable evidence, trustworthy eyewitness accounts, or critical physical evidence that was not presented at trial. Rivas, 687 F.3d at 541 (citing Schlup, 513 U.S. at 316, 115 S.Ct. at 861-62). A claim is compelling if “through new [and] reliable evidence” the petitioner establishes “it is more likely than not . . . [that] no reasonable juror would find him guilty beyond a reasonable doubt - or, to remove the double negative, that more likely than not any reasonable juror would have reasonable doubt.” House v. Bell, 547 U.S. 518, 537-38, 126 S.Ct. 2064, 2077 (citing Schlup, 513 U.S. at 327, 115 S.Ct. at 867). This standard therefore requires reviewing courts, viewing the record as a whole, to “make a probabilistic determination about what reasonable, properly instructed jurors would do.” Rivas, 687 F.3d at 541 (citing House, 547 U.S. at 538, 126 S.Ct. at 2077).

Waters asserts in his Petition that he is actually innocent based on newly discovered evidence presented at his §440.10 hearing. But the testimony of Spears and Edmonds offered by Waters as newly discovered evidence does not meet the exacting credible-and-compelling standard. At first blush, Spears seems to establish a credible story. He recounted how, prior to trial, he told his attorney that he wanted to take the stand and establish Waters' innocence, but counsel advised him against doing so. (440.10 Tr. 14-15, 21.) But that story falls apart on even the scantest scrutiny. At trial, Waters and his defense counsel were seated at the same table as Spears, yet Spears never shared with Waters' counsel information about Waters' purported innocence. (440.10 Tr. 30.) Spears also never brought the information or his willingness to testify to the attention of the Trial Judge during the trial or afterward, despite purportedly knowing an innocent man would go to prison. (440.10 Tr. 30-31.) To the contrary, Spears waived his right to testify. (Tr. 502-03.)

And in direct contradiction to Spears' statements, his own attorney testified that the conversations in which Spears expressed his desire to testify and share information of Waters' innocence never happened. (440.10 Tr. 48.) Reviewing his files in which he had “meticulous notes” prior to the § 440.10 hearing, Spears' attorney shared that there was no indication in the file that Spears ever wanted to discuss Waters' innocence. (440.10 Tr. 48-49.) Spears' attorney testified “I would have certainly made a note about that and notified co-counsel ... because it is very important and significant to [Waters] who possibly might be innocent. I certainly would want his attorney to know of that possibility or help in such way.” (440.10 Tr. 48.) Construing Spears' affidavit and testimony in the best possible light for Waters to raise the strongest theory of credibility, the Trial Judge's finding that Spears' testimony “was just not credible” is no less apt. (440.10 Tr. 119-20.). The Trial Judge reasoned:

[A]s [the government] amply pointed out in its reply, in order for the jury to believe the evidence that Mr. Spears swears to in his affidavit, the jury would have to believe that Michael Spears was working with someone who he referred to as Keith but it was not the defendant, to sell the drugs. Michael Spears was working with someone who on several occasions happened to be driving a vehicle registered to the defendant, but it was not the defendant. And Michael Spears just happened to get the cocaine from the same address that the defendant provided when he registered his vehicle. And that during the drug transaction Michael Spears repeatedly used and called cell phones that were ultimately recovered from the defendant when he was arrested. And that the undercover was either lying or mistaken when he identified the defendant as being the person he saw give drugs to Spears in the Range Rover. And that Michael Spears is credible. His statements . . . of what occurred with Frank and Shawn and going into the building just does not stand credible in the face of the other evidence.

(440.10 Tr. 121-22). Giving due deference to the § 440.10 court,¹⁸ it is by no means more likely than not that no reasonable juror viewing the record in totality would lack reasonable doubt. House, 547 U.S. at 538, 126 S.Ct. 2077. Stated differently, Waters has not presented evidence anywhere near sufficient to show that there would be a fundamental miscarriage of justice if his public trial claim is not subject to habeas review.

18 “[I]n the context of a gateway claim of actual innocence under Schlup, a federal habeas court must presume that a state court's factual findings are correct . [and] where . the state court conducted an evidentiary hearing and explained its reasoning with some care, it should be particularly hard to establish clear and convincing evidence of error on the state court's part. This is especially true when the court resolved issues like witness credibility, which are factual determinations for purposes of Section 2254(e)(1).” Cosey v. Lilley, 62 F.4th 74, 82-83 (2d Cir. 2023) (internal quotation marks omitted).

E. The Federal Confrontation Clause Claim Is Meritless

Even if it were reviewable, Waters' claim under the federal Confrontation Clause is meritless. The Confrontation Clause of the Sixth Amendment guarantees a criminal defendant's right “to be confronted with the witnesses against him.” U.S. Const. amend. VI. The Fourteenth Amendment provides this right to defendants in state criminal proceedings. Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 1069 (1965). The Confrontation Clause, however, extends protection only to testimonial evidence, that is “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Washington v. Griffin, No. 17-CV-3849, 2019 WL 7598584, at *10 (S.D.N.Y. Dec. 23, 2019) (citing Crawford v. Washington, 541 U.S. 36, 52-53, 124 S.Ct. 1354, 1364-65 (2004)). “Examples of ‘testimonial' statements include ‘affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, ... depositions, ... confessions, ... [or other] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.'” Id. (citing Crawford, 541 U.S. at 52, 124 S.Ct. at 1364.) Statements made by co-conspirators are typically not considered testimonial evidence. Id.

Here, Spears made the statements at issue while discussing a potential sale of narcotics with the Officer, not in a setting that objectively suggests the statements were made for later use at trial. (Tr. 93, 313, 317.) See Bourjaily v. United States, 483 U.S. 171, 181-82, 107 S.Ct. 2775, 2782 (1987) (holding the admission of a declarant's recorded conversation with a confidential informant in which he implicated the defendant did not violate the federal Confrontation Clause); Washington, 2019 WL 7598584 at *10 (making statements to an undercover officer for the purpose of arranging an illegal sale of a firearm are not testimonial and thus admissible). As such, Spears' October 3, 2007 statements in which he referred to “Keith” in the context of facilitating a narcotics transaction were not testimonial, and admission at trial did not violate Waters' federal Confrontation Clause rights.

The statements also do not violate the federal Confrontation Clause because they are admissible under the co-conspirator exception to the hearsay rule. The rules against hearsay and the Confrontation Clause itself are “generally designed to protect similar values,” and thus, a statement that is admissible under a “firmly rooted” exception to the hearsay rule normally does not run afoul of the Confrontation Clause. Haywood v. Portuando, 288 F.Supp.2d 446, 469-70 (S.D.N.Y. 2003) (citing California v. Green, 399 U.S. 149, 155, 90 S.Ct. 1930, 1933 (1970); see also White v. Illinois, 502 U.S. 346, 356, 112 S.Ct. 736, 742-43 (1992)). Statements by co-conspirators are one of those “firmly rooted” exceptions. Haywood, 228 F.Supp.2d at 469-70; see Bourjaily v. United States, 483 U.S. at 183, 107 S.Ct. at 2783.

The Trial Judge applied New York's version of the co-conspirator exception, which “differs from its federal counterpart [only] inasmuch as the proponent of the statement in state court must demonstrate reliability in addition to the other foundational requirements” of the federal co-conspirator exception. Haywood, 288 F.Supp.2d at 470. “The determination that a statement uttered by an individual was made in furtherance of a conspiracy is a factual finding of a court,” Moore v. Herbert, No. 9:02-CV-0999, 2005 WL 3591815, at *9 (N.D.N.Y. Dec. 30, 2005) (collecting cases), but the legal question on habeas review “is whether the complained-of statements were admissible under the corresponding federal rule governing the admission of coconspirator statements.” Haywood, 288 F.Supp.2d at 470 (applying federal co-conspirator exception to admission of statement in New York court on habeas review); Glenn v. Bartlett, 98 F.3d 721, 728 (2d Cir. 1996) (same).

To admit a statement as a co-conspirator statement under the Federal Rule of Evidence 801(d)(2) - the federal counterpart to New York's co-conspirator exception -“the court must find that (1) there was a conspiracy, (2) its members included the declarant and the party against whom the statement is offered, and (3) the statement was made during the course of and in furtherance of the conspiracy.” Glenn, 98 F.3d at 728 (citing United States v. Rivera, 22 F.3d 430, 435-46 (2d Cir. 1994)). There must be independent, corroborating evidence of the defendant's participation in the conspiracy. United States v. Tellier, 83 F.3d 578, 580 (2d Cir. 1996). Even if the admission of the evidence was erroneous, such admission is harmless as a matter of law if there exists overwhelming evidence against the petitioner. United States v. Rodriguez, 370 F. App'x. 135, 136 (2d Cir. 2010) (summary order).

As to the first and second co-conspirator statement elements, which are the same under both the state and federal rules of evidence, the trial court determined that the prosecution had made a prima facie showing “that [Spears and Waters] were coconspirators for the sale of narcotics.” (Tr. 172.) Indeed, the evidence strongly suggests the two men acted in concert, as conspirators, to sell cocaine to the Officer. (Tr. 37-41, 43-44, 57, 150, 188, 336-37, 339-40, 371-72, 378, 452-56.) Not only is the court's holding reasonable, but it is also entitled to considerable deference under AEDPA. 28 U.S.C. § 2254(e)(1); see Schriro, 550 U.S. at 473-74, 127 S.Ct. at 1939-40 (under AEDPA, the trial court's determination on the initial questions of fact as to whether a conspiracy existed is presumed correct unless found to be unreasonable).

The third element of Rule 801(d)(2)'s co-conspirator exception is also met. A statement made during the course of or in furtherance of a conspiracy include those “designed to promote or facilitate the goals of that conspiracy [such as] . . . communicating with a person who is not a member of the conspiracy in a way that is designed to help the coconspirators achieve the conspiracy's goals.” Rivera, 22 F.3d at 436; see United States v. Gupta, 747 F.3d 111, 125 (2d Cir. 2014) (a statement need not be made to a member of the conspiracy to be admissible under Rule 801(d)(2)(E)) because “[s]tatements designed to induce the listener's assistance with respect to the conspiracy's goals satisfy the Rule's in-furtherance requirement”); United States v. Rahme, 813 F.2d 31, 35 (2d Cir. 1987) (coconspirator's statements may be found to be ‘in furtherance' of the conspiracy “if they prompt the listener to respond in a way that facilitates the carrying out of the criminal activity”). Spears, while negotiating a potential narcotics transaction with the Officer, invoked the name “Keith.” (Tr. 93.) Given the totality of evidence, the trial court's determination that Spears' statements about “Keith” were made during and in furtherance of a conspiracy with Waters was entirely reasonable.

To be sure, at trial the prosecution erroneously elicited the Officer's reference to “Keith” during his testimony despite the court having expressly precluded use at trial. (Tr. 93; Pre-Trial Tr. 257, 262-64, 266-67.) But the court rendered its pre-trial decision with the caveat that the issue could be revisited if the Government could convince the court of its admissibility. (Pre-Trial Tr. 263-64.) At trial, the prosecution presented applicable caselaw and overwhelming evidence of Waters and Spears acting as co-conspirators, and the court ultimately held that the government made a prima facie showing of conspiracy, making admission proper under the co-conspirator exception. (Tr. 172.) Accordingly, Waters' federal Confrontation Clause fails on the merits.

III. Actual Innocence Based On Newly Discovered Evidence

Separate from his gateway claim of actual innocence, Waters asserts a freestanding claim of actual innocence based on newly discovered evidence. That claim too is procedurally defaulted and meritless.

A. The Freestanding Actual Innocence Claim Is Purely A Matter Of State Law

As noted above, a federal court is limited to deciding whether a conviction violated the federal constitution or its laws and treaties when conducting habeas corpus review. Estelle, 502 U.S. at 68, 112 S.Ct. at 480. Waters' claim of innocence based on newly discovered evidence, however, was presented and decided as a matter of only New York State law. The claim thus is procedurally defaulted and based on independent and adequate state law grounds not reviewable in federal court.

During the § 440.10 proceedings, Waters invoked New York State jurisprudence, listing the six prongs from People v. Salemi “that must be sufficiently satisfied for vacatur of [judgment] on the grounds of newly discovered evidence.” People v. Salemi, 309 N.Y. 208, 216, 128 N.E. 377, 381 (N.Y. 1955); (Ex. D at ECF 48.) The Government's reply brief and affirmation, and Waters' reply to those submissions, similarly limited legal arguments to the newly discovered evidence provision under § 440.10 and related New York State case law. (Ex. E at 69-82, 12-17;¹⁹ Ex. F at 24-31.²⁰)

19 “Ex. E” refers to the Government's reply brief to Waters' 440.10 Motion, attached to the Government's Answer to the Petition as Exhibit E which can be found at Dkt. 17-2, ECF 68-92 and Dkt. 17-3, ECF 1-23.

20 “Ex. F” refers to Waters' reply brief to the Government's reply, attached to the Government's Answer to the Petition as Exhibit F, which can be found at Dkt. 17-3 at ECF 24-31.

Similarly, the Trial Judge neither cited nor invoked any federal law regarding freestanding innocence claims in denying Waters' motion to vacate the judgment. Cf. Jimenez v. Sanford, 560 F.Supp.3d 761, 771 (S.D.N.Y. 2021) (appeal pending) (explaining that “[t]hough the state court did not expressly say that it was analyzing Jimenez's [actual innocence] claim under federal law ... it relied on federal precedents”). Instead, the Trial Judge applied specific language from New York Criminal Procedure Law § 440.10(1)(g) and explicitly relied on the six Salemi factors. (440.10 Tr. 119-22.) The Trial Judge determined that the affidavits did not constitute new evidence; Waters and his counsel were not diligent; the evidence was not more favorable to Waters at trial; and Waters' affidavit was “just not credible.” (440.10 Tr. 119-122.)

In short, because Waters' actual innocence claim based on newly discovered evidence was presented and resolved as purely a matter of state law, it is not reviewable by this Court. Estelle, 502 U.S. at 67-68, 112 S.Ct. at 480

B. Even If Reviewable, The Freestanding Actual Innocence Claim Has No Merit

Waters' assertion of his actual innocence claim based on state, not federal, law grounds is understandable. The Supreme Court has only hypothesized the potential for claims of actual innocence based on new evidence in the absence of a federal constitutional violation during the state proceedings. See Schlup, 513 U.S. at 314, 115 S.Ct. at 860; Jimenez, 560 F.Supp.3d at 768-69 (citing House, 547 U.S. at 554-55, 126 S.Ct. at 2086-87).

In Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853 (1993), the Supreme Court, for the first time, “assumed for the sake of argument that ‘in a capital case a truly persuasive demonstration of “actual innocence” made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim'” absent other constitutional issues with the underlying criminal proceedings. Schlup, 513 U.S. at 314 n. 28, 115 S.Ct. at 860 n. 28 (quoting Herrera, 506 U.S. at 417, 113 S.Ct. at 869). In In re Davis, 557 U.S. 952, 130 S.Ct. 1 (2009), the Court transferred a habeas petition filed under its original jurisdiction to a district court to “receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes petitioner's innocence” under Herrera. 557 U.S. at 952, 130 S.Ct. at 1.²¹ To date, the Supreme Court has not found that any petitioner has proved a freestanding actual innocence claim.

21 After transfer and hearing, the District Court held that Davis “failed to make a showing of actual innocence that would entitle him to habeas relief in federal court,” and noted that was so “whether it adopted [a] lower burden proposed by Mr. Davis, or even the lowest imaginable burden from Schlup, Mr. Davis's showing would have satisfied neither.” In re Davis, No. CV 409-130, 2010 WL 3385081, at *61 and n.107 (S.D. Ga. Aug. 24, 2010). The Supreme Court denied Davis' petition for certiorari. Davis v. Humphrey, 563 U.S. 901, 131 S.Ct. 1788 (2011).

See Michael L. Zuckerman, When A Prison Sentence Becomes Unconstitutional, 111 GEO. L.J. 281, 312-13 (2022) (explaining that “it is still doctrinally uncertain whether the Federal Due Process Clause would prohibit the execution of a factually innocent person” although “the Court has assumed so ‘for the sake of argument',” in Herrera, and has “come even closer to recognizing the right by referring to the question as one of sufficient proof rather than possibility” in House “and by requiring an evidentiary hearing as to innocence in a lower court” in Davis ”).

To the extent such a claim exists, the standard to prove it is demanding. Once a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears. Herrera, 506 U.S. at 399, 113 S.Ct. at 860. Thus, even new evidence that “cast[s] considerable doubt” on a defendant's guilt, such that no reasonable juror could find the defendant guilty beyond a reasonable doubt, is not enough. See House, 547 U.S. at 554-55, 126 S.Ct. at 2086-87 (declining to hold that even persuasive showing of actual innocence in a capital case warranted habeas relief absent some other constitutional violation). The Herrera court stated that “the threshold showing for such an assumed right [i.e., to habeas relief on a freestanding actual innocence claim] would necessarily be extraordinarily high” and would need to be “truly persuasive.” Herrera, 506 U.S. at 417, 113 S.Ct. at 869. This extraordinary affirmative showing of innocence would be a greater showing of innocence than that required in a gateway innocence claim, which itself requires a petitioner to establish that, “in light of new evidence, ‘it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'”²² House, 547 U.S. at 536-37, 126 S.Ct. at 2076-77 (quoting Schlup, 513 U.S. at 327, 115 S.Ct. at 867).

22 The House court further explained the relative burdens to demonstrate actual innocence as a gateway compared to actual innocence as a freestanding claim as follows, holding that petitioner met the gateway standard but not the freestanding standard:

We conclude here, much as in Herrera, that whatever burden a hypothetical freestanding innocence claim would require, this petitioner has not satisfied it. To be sure, House has cast considerable doubt on his guilt - doubt sufficient to satisfy Schlups gateway standard for obtaining federal review despite a state procedural default. In Herrera, however, the Court described the threshold for any hypothetical freestanding innocence claim as “extraordinarily high.” 506 U.S., at 417, 113 S.Ct. 853. The sequence of the Court's decisions in Herrera and Schlup - first leaving unresolved the status of freestanding claims and then establishing the gateway standard - implies at the least that Herrera requires more convincing proof of innocence than Schlup. It follows, given the closeness of the Schlup question here, that House's showing falls short of the threshold implied in Herrera.

House, 547 U.S. at 555, 126 S.Ct. at 2087.

The Supreme Court has not indicated whether the potential for a freestanding actual innocence claim extends to non-capital cases, such as the instant case. See Jimenez, 560 F.Supp.3d at 769 (citing Bryant v. Thomas, 725 Fed.Appx. 72, 73 (2d Cir. 2018)). Waters therefore cannot argue that the state court's decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d). Regardless, as explained above, Waters has not made a showing that raises sufficient doubt as required for a gateway claim. He therefore necessarily falls well short of the extraordinary showing required to assert a freestanding claim of actual innocence. Herrera, 506 U.S. at 399, 113 S.Ct. at 860. Waters' freestanding actual innocence claim is without merit.

IV. Legal Sufficiency Claim

On direct appeal, Waters attacked the legal sufficiency of the trial evidence, emphasizing the discrepancy between Waller's actual height and weight and the Officer's identification of the perpetrator as considerably shorter and lighter. (Ex. A at 49-58.) The Appellate Division rejected that argument and unanimously affirmed the conviction. Waters, 147 A.D.3d at 552-53, 46 N.Y.S.3d at 792-93. The argument fares no better now, particularly when viewed through the deferential lens of habeas review.

A “federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court may do so only if the state court decision was ‘objectively unreasonable.'” Coleman v. Johnson, 566 U.S. 650, 651, 132 S.Ct. 2060, 2062 (2012). A state court directly reviewing a jury verdict of guilty must “‘view[ ] the evidence in the light most favorable to the prosecution' and must not uphold a challenge to the sufficiency of the evidence if ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'” Santone v. Fischer, 689 F.3d 138, 148 (2d Cir. 2012) (original emphasis omitted) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781,2788-89 (1979)).

New York Penal Law § 220.43 states that “a person is guilty of a criminal sale of a controlled substance in the first degree when he knowingly and unlawfully sells: (1) one or more preparations, compounds, mixtures or substances containing a narcotic drug and . . . are of an aggregate weight of two ounces or more.” NY Penal Law § 220.43(1). The totality of the evidence linking Waters to the drug transactions is too strong for Waters to rebut solely based on height and weight discrepancies. At trial there was overwhelming evidence of Waters' culpability. (See Tr. 37-41, 57, 93, 112-14, 120, 131, 132, 149-50, 188, 230-32, 313, 317, 330, 371-72, 378, 452-56.)

Waters' brief on direct appeal called for the conviction to be reversed “[i]n light of the irreconcilable, dramatic difference in the undercover's contemporaneous impression recorded in the December 6 buy report and his after-the-fact identification, the evidence presented at trial was legally insufficient,” i.e. that the Officer described Waters as 5'7” -5'9” and 156 pounds while he was actually 6'5” and 220 pounds. (Ex. A at 45.) Waters argued that the evidence and testimony provided by the Officer should be deemed “incredible or unreliable as a matter of law” and that the conviction be vacated because "‘the jury is left without any basis, other than impermissible speculation, for its determination of guilt.'” (Id., citing People v. Calabria, 3 N.Y.3d 80, 82, N.Y.S.2d 321, 322 (2004) (quoting People v. Jackson, 65 N.Y.2d 265, 272, 491 N.Y.S.2d 138, 143 (1985).)

At trial, however, the Officer provided to the jury a perfectly reasonable explanation for the discrepancy. During the December transaction, the Officer observed the driver of the Range Rover only as the driver was seated and while the Officer was looking up at the driver from the smaller sedan in which the Officer sat. (Tr. 277, 318.) From the Officer's vantage point, looking up into the large vehicle, and making his best guess based on observing the driver in his seat, the driver seemed to be “an average sized person.” (Tr. 137, 277.) The Officer also testified that as seated in the courtroom at trial, Waters and Spears looked to be the same height - despite the fact that Waters was “much taller” than Spears - because of their different postures while sitting down. (Tr. 277, 306).

In any event, New York courts have routinely held that such discrepancies in physical description are not enough to reverse a finding of guilt. E.g., People v. Baker, 156 A.D.2d 287, 287, 548 N.Y.S.2d 671, 672 (1st Dep't 1989) (holding that the arresting officer's entry into his memo book that defendant was 5'7” when in fact he was 6'3”, was not sufficient to find that the jury crediting the identification was against the weight of the evidence); see also People v. Colon, 42 A.D.3d 549, 550, 840 N.Y.S.2d 110, 111 (2d Dep't 2007) (identifying defendant twice, “[t]he minor discrepancies between the witness's description of the defendant's height, weight, and clothing and his actual physical appearance did not render his testimony incredible as a matter of law”); People v. Caballero, 117 A.D.2d 496, 496, 575 N.Y.S.2d. 710, 711 (2d Dep't 1991) (“[e]qually without merit is the defendant's further contention that because of certain discrepancies between the description of the robber and the defendant's actual appearance, the prosecution's witness should not have been believed by the jury”); People v. Delfino, 150 A.D.2d 718, 718, 541 N.Y.S.2d 588, 589 (2d Dep't 1989) (finding it was legally sufficient to establish defendant's guilt beyond a reasonable doubt after observing the robber in the course of the robbery and making an unequivocal in-court identification of the defendant, and that the discrepancies between the description of robber and defendant's actual physical appearance did not render the witness unbelievable by the jury).

Based on the evidence and the law, a rational trier of fact could very well have found that Waters was the person that the Officer saw in the Range Rover and that the elements of New York Penal Law § 220.43 were met beyond a reasonable doubt. There is no basis to conclude that the trial court's upholding of the jury's verdict was unreasonable. As such, Waters' legal sufficiency claim is without merit.

Conclusion

For the foregoing reasons, I recommend that Waters' petition for habeas corpus be DENIED in its entirety.

Procedure For Filing Objections And Preserving Right To Appeal

Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Criminal Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendations. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the Chambers of Gregory H. Woods, 500 Pearl Street, New York, New York, 10007, and to Chambers of the undersigned, 500 Pearl Street, New York, New York 10007. FAILURE TO FILE TIMELY OBJECTIONS WILL RESULT IN WAIVER OF OBJECTIONS AND PRECLUDE APPELLATE REVIEW

Copies transmitted this date to all counsel of record. The Clerk's Office is directed to mail a copy of this report and recommendation to Petitioner and note service on the docket.