Opinion
22 Civ. 701 (VB)(PED)
03-27-2023
Edgar Wilson, Petitioner, v. Warden, Sullivan Correctional Facility, Respondent.
REPORT AND RECOMMENDATION
HONORABLE VINCENT BRICCETTI, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Edgar Wilson (“Petitioner”), through counsel, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his conviction and sentence from a jury trial in County Court, Orange County. [Dkt. 5.] On May 4, 2015, Petitioner was found guilty of assault in the first degree, grand larceny in the fourth degree, and related lesser charges. He received sentences amounting in the aggregate to 20 to 22 years imprisonment. Petitioner is currently serving his sentence in Sullivan Correctional Facility located in Sullivan County, New York. The Petition comes before me pursuant to an Order of Reference entered on February 9, 2022. [Dkt. 6.] For the reasons set forth below, I respectfully recommend that Your Honor DENY the Petition.
II. BACKGROUND
The information in this section is taken from the Petition [Dkt. 5], Respondent's Answer with attached exhibits [Dkts. 12, 13], and Petitioner's traverse [Dkt. 16.].
1. The Crime
On October 9, 2014, Devon Simmons was released from Otisville Correctional Facility. When he was released, Mr. Simmons had in his possession a temporary New York state identification card, a birth certificate, a social security card, school books, and a check in the amount of $1,254.63 from his commissary account. He was picked up from the prison by Petitioner. Petitioner told Mr. Simmons that family members of Mr. Simmons requested that he pick Mr. Simmons up when he was released. Mr. Simmons got into the car with Petitioner. After driving for a short while, Petitioner said he was lost and pulled the car over, and Mr. Simmons got out to relieve himself. When Mr. Simmons got out of the car, Jerome Mack jumped out of the vehicle's trunk. Mr. Mack had a gun and ultimately shot Mr. Simmons three times. Mr. Simmons fled the scene and was able to reach the Otisville train station where he received help and was ultimately transported to Westchester Medical Center for medical assistance. Mr. Simmons was later questioned by police. During his conversation with law enforcement, he identified the shooter and described the vehicle.
Jerome Mack, Petitioner's co-defendant at trial, filed a habeas petition which is presently sub judice before Judge Karas. Mack v. Collado, 21 Civ. 8541 (KMK)(PED). My Report recommending denial of that petition appears at Dkt. 32.
Officers later traced the car to one that Petitioner had rented from a Thrifty Dollar Rental Car location at 148 West 83rd Street, New York, NY. Petitioner's license information was then provided to the police. Officers apprehended Petitioner outside the address on his license. After taking Petitioner into custody, Petitioner was searched. The search revealed a birth certificate, a social security card, and a check made out to Devon Simmons in the amount of $ 1,254.63.
2. Suppression Hearing
Prior to trial, on December 19, 2014, Petitioner's counsel submitted an omnibus motion, seeking in part to suppress a photo identification made by Mr. Simmons. [Dkt. 13-1 at 76-86.] On February 6, 2015, the court granted Petitioner's motion to the extent that Petitioner sought a hearing to determine the admissibility of the identification evidence. [Dkt. 13-2 at 7-8.] Mr. Simmons and the officer who administered one of the photo identifications both testified at the hearing. [See Dkts. 13-24, 13-25.] After the hearing, the court issued a decision and concluded that there “was nothing suggestive in the instructions, presentation and/or make-up of the Photo Array shown to Devon Simmons on October 13th, 2014.” [Dkt. 13-4 at 7.] The court further concluded that even assuming “arguendo, that the procedure relating to the viewing of the Photo Array was suggestive, the Court finds that Devon Simmons's viewing of [Petitioner] at the time of the incident, in a well-lit place from three feet away for over five minutes provided him with an independent basis to make an in-court identification of [Petitioner].” [Id.] The court, accordingly, denied Petitioner's motion to suppress. [Id.]
3. The Trial and Sentencing
The trial for Petitioner and his co-defendant, Mr. Mack, began with jury selection on April 15, 2015. [Dkt. 13-27 at 34.] At one point during the trial, counsel for Petitioner's codefendant made an ex parte motion to disqualify the prosecutor, Michael Milza, on the grounds that Mr. Milza violated the advocate witness rule and the unsworn witness rule. [Dkt. 13-41 at 4.] Specifically, Petitioner's co-defendant's counsel argued that it was unclear where the check made out to Mr. Simmons was recovered from. [Id.] An affidavit from an investigator indicated that the check to Mr. Simmons was found in the bag of a friend of the co-defendant, but Mr. Milza later submitted a letter stating that the check had been recovered from Petitioner's person. [Id. at 4-5.] However, counsel noted, Mr. Milza had submitted a CD containing discovery that seemed to show that the check was recovered from the car. [Id. at 5-6.] Based on this discrepancy, Petitioner's co-defendant's counsel argued that he would like to call Mr. Milza as a witness in order to ascertain where the check was recovered from, but that such testimony would run afoul of the advocate witness rule. [Id. at 7-8.] In the alternative, if Mr. Milza was allowed to continue, counsel argued that he would become an unsworn witness. [Id. at 8-9.] Petitioner's counsel joined in the motion. [Id. at 9.] The court ultimately denied the motion. [Id. at 56-57.] The court determined that Mr. Milza did not have any direct knowledge of where the evidence was found, and therefore would not be a witness. [Id. at 56.] The court further determined that the unsworn witness rule prevented Mr. Milza from injecting his own credibility and was not at issue here. [Id.] Petitioner's counsel joined in objecting to the court's ruling. [Id. at 60.]
The trial concluded and the jury rendered a verdict on May 4, 2015 that found Petitioner guilty of assault in the first degree, conspiracy in the fourth degree, grand larceny in the fourth degree, and criminal possession of stolen property in the fourth degree. [Dkt. 13-50 at 26-35.] On June 1, 2015, Petitioner was sentenced to eighteen years imprisonment followed by five years post-release supervision for assault in the first degree, an indeterminate term of two to four years imprisonment for conspiracy in the fourth degree, an indeterminate term of two to four years imprisonment for grand larceny in the fourth degree, and an indeterminate term of two to four years imprisonment for criminal possession of stolen property. [Dkt. 13-51 at 15-18.] Petitioner's sentence for the assault and conspiracy charges were set to run concurrent to one another, and the grand larceny and criminal possession charges were also set to run concurrent to one another. [Id. at 17.] However, the grand larceny and criminal possession charges were set to run consecutively to the assault and conspiracy charges. [Id.]
B. Procedural History
1. The Direct Appeal
On June 5, 2017, Petitioner, through counsel, appealed his conviction. [Dkt. 13-4 at 88.] Petitioner raised four arguments in his appeal. Petitioner specifically argued that: (1) the verdict was based upon legally insufficient evidence, was not proven beyond a reasonable doubt, and was against the weight of the evidence; (2) Petitioner was denied a fair trial based on the prosecutor's inflammatory summation comments; (3) Petitioner did not receive effective assistance of counsel; and (4) Petitioner's sentence was excessive. [Id. at 51-87.] With respect to Petitioner's allegation that he received ineffective assistance of counsel, his counsel specifically argued that his counsel: (1) only discussed the case with him twice; (2) failed to investigate by not obtaining a visitor log from when Mr. Simmons was in the hospital, failed to subpoena toll booth records, and failed to seek an independent forensic opinion of the GPS information; (3) failed to impeach one of the witnesses regarding their inconsistent testimony; and (4) failed to object when the prosecutor misrepresented the evidence. [Id. at 76-81.] The state submitted its opposition on February 5, 2018. [Dkt. 13-5 at 81.] On September 19, 2017, the Appellate Division, Second Department granted Petitioner's request to file a pro se supplemental brief. [Id. at 84.] Petitioner filed his pro se supplemental brief through papers dated February 21, 2019. [Dkt. 13-11 at 80.] Petitioner raised three arguments in his supplemental brief. First, he argued that the evidence seized from his person should have been suppressed because the police lacked probable cause to search, seize or arrest him. [Id. at 4357.] Second, Petitioner argued that the suppression court should have suppressed Mr. Simmons's photo array identification of him because Mr. Simmons had viewed a newspaper article with Petitioner's mugshot and a report on the crime. [Id. at 58-71.] Finally, Petitioner argued that the trial court committed reversible error when it failed to disqualify the prosecutor pursuant to the advocate witness rule or the unsworn witness rule. [Id. at 71-80.] The state submitted its response to Petitioner's supplemental brief on April 10, 2019. [Dkt. 13-12 at 41.]
By decision dated May 27, 2020, the Appellate Division affirmed the judgment against Petitioner. See People v. Wilson, 122 N.Y.S.3d 546 (App. Div. 2020). The Appellate Division found that Petitioner's arguments concerning the legal sufficiency of the evidence and the improper remarks by the prosecution were unpreserved for appellate review. Id. at 546-47. The Appellate Division further held that Petitioner's contention that he was deprived of ineffective assistance of counsel was a mixed claim because it was based on matters both in and outside the record. Id. at 547. Accordingly, the Appellate Division noted that Petitioner needed to file a CPL § 440.10 motion to have the claim reviewed in its entirety. Id. The Appellate Division next determined that consecutive sentences were permissible and that the sentence imposed was not excessive. Id. Finally, the Appellate Division held that Petitioner's “remaining contentions, raised in his pro se supplemental brief, are without merit.” Id.
On June 15, 2020, Petitioner, moving pro se, requested leave to appeal the Appellate Division's decision to the Court of Appeals. [Dkt. 13-14 at 16.] Petitioner specifically requested review of the arguments that he raised in his supplemental brief and supporting papers. [Id.] Later, through papers dated September 24, 2020, Petitioner submitted a supplemental letter to his leave application. [Id. at 23.] Petitioner's supplemental letter again focused on the issues that Petitioner raised in his supplemental brief. [Id. at 23-46.] The state submitted its opposition on October 2, 2020. [Dkt. 13-15 at 81.] On October 29, 2020, the Court of Appeals summarily denied Petitioner's request for leave to appeal. People v. Wilson, 158 N.E.3d 521 (Table) (N.Y. 2020).
2. Petitioner's CPL § 440.10 Motion
Through papers dated December 10, 2018, Petitioner filed a motion to vacate the judgment pursuant to CPL § 440.10. [Dkt. 13-6 at 5.] Petitioner's arguments raised in his § 440.10 amount to a challenge regarding the effectiveness of his counsel. First he argued that his counsel failed to investigate eyewitness reports in connection with his case. [Dkt. 13-6 at 2329.] Petitioner next argued that his counsel failed to consult an expert or confront or crossexamine Mr. Simmons regarding his memory lapse as a result of the trauma he endured, and whether he was under the influence or “pumped with a slew of pain medications that left him in a sedated and paralytic state.” [Id. at 29-39.] The state submitted its opposition on January 9, 2019. [See Dkt.13-10 at 79.] Petitioner submitted a reply through papers dated February 11, 2019. [Id. at 101.]
On March 11, 2019, the County Court for the County of Orange denied Petitioner's CPL § 440.10 motion. [Dkt. 13-11 at 5.] The County Court found that the Petitioner's allegations that the identification was untrustworthy due to drug use was “unsupported by any medical expert” and was “entirely speculative.” [Id. at 3.] The County Court further found that given that Petitioner raised arguments that were based on facts in the record, Petitioner had failed to perfect his appeal. [Id. at 4-5.] The County Court found that for arguments that were based on facts outside of the record, Petitioner had “unjustifiably failed to adduce such matter prior to sentence.” [Id. at 5.] Finally, the County Court determined that Petitioner had received meaningful representation from his counsel. [Id.]
Petitioner requested leave to appeal the County Court's decision to the Appellate Division through papers dated September 16, 2019. [Dkt. 13-12 at 52.] The state submitted its opposition to Petitioner's request on October 18, 2019. [Dkt. 13-13 at 64.] Through papers dated December 2, 2019, Petitioner submitted a reply to the state's opposition. [Dkt. 13-14 at 12.] On December 23, 2019, the Appellate Division summarily denied Petitioner's request. [Id. at 13.]
3. The Instant Petition
The instant Petition was properly filed before this Court on February 3, 2022. [Dkt. 5.] The Respondent filed a response in opposition to the Petition on June 10, 2022. [Dkt. 12.] On July 11, 2022, Petitioner filed a traverse in reply to Respondent's answer. [Dkt. 16.]
III. APPLICABLE LAW
“Habeas review is an extraordinary remedy.” Bousley v. United States, 523 U.S. 614, 621 (1998) (citing Reed v. Farley, 512 U.S. 339, 354 (1994)). Before a federal district court may review the merits of a state criminal judgment in a habeas corpus action, the court must first determine whether the petitioner has complied with the procedural requirements set forth in 28 U.S.C. §§ 2244 and 2254. If there has been procedural compliance with these statutes, the court must then determine the appropriate standard of review applicable to the petitioner's claim(s) in accordance with § 2254 (d). The procedural and substantive standards applicable to habeas review, which were substantially modified by the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), are summarized below.
A. Exhaustion Requirement
A federal court may not grant habeas relief unless the petitioner has first exhausted his claims in state court. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); see 28 U.S.C. § 2254(b)(1) (“[a]n 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 unless it appears that - (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant”); id. § 2254(c) (the petitioner “shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented”). The exhaustion requirement promotes interests in comity and federalism by demanding that state courts have the first opportunity to decide a petitioner's claims. Rose v. Lundy, 455 U.S. 509, 518-19 (1982).
To exhaust a federal claim, the petitioner must have “fairly present[ed] his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim,” and thus “giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotation marks and citations omitted). “Because nonconstitutional claims are not cognizable in federal habeas corpus proceedings, a habeas petition must put state courts on notice that they are to decide federal constitutional claims.” Petrucelli v. Coombe, 735 F.2d 684, 687 (2d Cir. 1984) (citing Smith v. Phillips, 455 U.S. 209, 221 (1982)). Such notice requires that the petitioner “apprise the highest state court of both the factual and legal premises of the federal claims ultimately asserted in the habeas petition.” Galdamez v. Keane, 394 F.3d 68, 73 (2d Cir. 2005) (internal citation omitted). A claim may be “fairly presented” to the state courts therefore, even if the petitioner has not cited “chapter and verse of the Constitution,” in one of several ways:
(a) [R]eliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.Daye v. Att'y Gen. of N.Y., 696 F.2d 186, 194 (2d Cir. 1982). A habeas petitioner who fails to meet a state's requirements to exhaust a claim will be barred from asserting that claim in federal court. Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
However, “[f]or exhaustion purposes, a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred.” Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (internal quotation omitted). “In such a case, a petitioner no longer has ‘remedies available in the courts of the State' within the meaning of 28 U.S.C. § 2254(b).” Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991). Such a procedurally barred claim may be deemed exhausted by a federal habeas court. See, e.g., Reyes, 118 F.3d at 139. However, absent a showing of either “cause for the procedural default and prejudice attributable thereto,” Harris v. Reed, 489 U.S. 255, 262 (1989), or “actual innocence,” Schlup v. Delo, 513 U.S. 298 (1995), the petitioner's claim will remain unreviewable by a federal court.
Finally, notwithstanding the procedure described above, a federal court may yet exercise its discretion to review and deny a mixed petition containing both exhausted and unexhausted claims, if those unexhausted claims are “plainly meritless.” Rhines v. Weber, 544 U.S. 269, 277 (2005); see 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”); Padilla v. Keane, 331 F.Supp.2d 209, 216 (S.D.N.Y. 2004) (interests in judicial economy warrant the dismissal of meritless, unexhausted claims).
B. Procedural Default
Even where an exhausted and timely habeas claim is raised, comity and federalism demand that a federal court abstain from its review when the last-reasoned state court opinion to address the claim relied upon “an adequate and independent finding of a procedural default” to deny it. Harris, 489 U.S. at 262; see also Coleman v. Thompson, 501 U.S. 722, 730 (1991); Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 126 (2d Cir. 1995). A state court decision will be “independent” when it “‘fairly appears” to rest primarily on state law. Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir. 2006) (citing Coleman, 501 U.S. at 740). A decision will be “adequate” if it is “‘firmly established and regularly followed' by the state in question.” Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999) (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)).
The Supreme Court has held that a federal court may review a claim that is procedurally barred if the petitioner can show a “miscarriage of justice,” which occurs where a petitioner is “actually innocent of the crime for which he has been convicted.” Cotto v. Herbert, 331 F.3d 217, 239 n.10 (2d Cir. 2002); see Coleman, 501 U.S. at 729.
C. AEDPA Standard of Review
Before a federal court can determine whether a petitioner is entitled to federal habeas relief, the court must determine the proper standard of review under AEDPA for each of the petitioner's claims. 28 U.S.C. § 2254(d)(1)-(2). This statute “modifie[d] the role of federal habeas corpus courts in reviewing petitions filed by state prisoners,” and imposed a more exacting standard of review. Williams v. Taylor, 529 U.S. 362, 402 (2000). For petitions filed after AEDPA became effective, federal courts must apply the following standard to cases in which the state court adjudicated on the merits of the claim:
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.§ 2254(d)(1)-(2). The deferential AEDPA standard of review will be triggered when the state court has both adjudicated the federal claim “on the merits,” and reduced its disposition to judgment. Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001).
Under the first prong, a state court decision is contrary to federal law only if it “arrives at a conclusion opposite to that reached by the [the Supreme Court] on a question of law or if [it] decides a case differently than [the Supreme Court] on a set of materially indistinguishable facts.” Williams, 529 U.S. at 413. A decision involves an “unreasonable application” of Supreme Court precedent if the state court “identifies the correct governing legal rule from the Supreme Court cases but unreasonably applies it to the facts of the particular state prisoner's case,” or if it “either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Id. at 407.
Under the second prong of AEDPA, the factual findings of state courts are presumed to be correct. 28 U.S.C. § 2254(e)(1); see Nelson v. Walker, 121 F.3d 828, 833 (2d Cir. 1997). The petitioner must rebut this presumption by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
IV. ANALYSIS
Petitioner raises five grounds for habeas relief in his Petition. First, he argues that the evidence presented at trial was legally insufficient to support his conviction. He next argues that the prosecutor made improper statements during his summation. Petitioner's third argument is that his sentence is excessive. For his fourth ground, Petitioner argues that he received ineffective assistance of counsel. Finally, Petitioner argues that he was denied a fair trial because the prosecutor violated the advocate-witness rule and the unsworn witness rule.
A. The Claims Asserted In Grounds 1-3 Are Deemed Exhausted and Procedurally Barred
As noted above, a petitioner must exhaust a claim in state court before presenting it in federal court for habeas review. See 28 U.S.C. § 2254(b)(1). “The exhaustion requirement imposed by 28 U.S.C. § 2254(b)(1) means generally that before seeking a writ of habeas corpus in federal court, a state prisoner must first have presented his claim to the highest court of the state.” Morgan v. Bennett, 204 F.3d 360, 369 (2d Cir. 2000). In New York, that means raising an issue in a leave application to the New York Court of Appeals. See id.
Here, Petitioner indeed raised the arguments now asserted in the first three grounds of his Petition in his counseled brief to the Appellate Division. The counseled brief included the arguments that there was legally insufficient evidence to support the conviction, the prosecutor made improper statements during summation, and Petitioner's sentence was excessive. [Dkt. 134 at 51-87.] However, Petitioner did not raise the arguments asserted in the counseled brief in his leave application to the Court of Appeals. Instead, Petitioner focused on the arguments that he raised in his supplemental pro se brief, which did not include the three arguments for which he now seeks habeas review. [Dkt. 13-14 at 16-17.] Petitioner also submitted a supplement to his leave application. However, this supplement again only focused on the arguments he raised in his pro se supplemental brief. [Id. at 23-46.] The supplement goes so far as to acknowledge that Petitioner's counsel submitted a “Main Brief” on direct appeal, but fails to assert any of the arguments from that brief. [Id. at 43.] Because Petitioner did not argue any of the arguments from his counseled brief, the arguments from that brief were not presented to the Court of Appeals. Cf. Morgan, 204 F.3d at 369-70 (finding that a petitioner had exhausted arguments raised in both the counseled brief and the pro se supplemental brief because the leave application alerted the Court of Appeals to both). Thus, we must “assume that the Court of Appeals would construe [Petitioner's] leave application as abandoning claims that [he] had pressed to the Appellate Division below where those claims [are] not presented to the New York high court for review.” Smith v. Duncan, 411 F.3d 340, 345 (2d Cir. 2005) (internal quotation marks omitted). Accordingly, the arguments raised by Petitioner in his first three grounds are unexhausted.
Petitioner has no further recourse in state court. Under New York law, Petitioner cannot again seek leave to appeal those claims in the Court of Appeals because he has already made the one request for leave to appeal to which he is entitled. See N.Y. Ct. R. § 500.20(a)(2). Petitioner is also precluded from raising the claim in a collateral proceeding because these claims were previously presented to the Appellate Division, but then abandoned before the Court of Appeals. See N.Y. Crim. Proc. Law § 440.10(2)(a). Accordingly, Petitioner's arguments are unexhausted, but deemed exhausted because he “no longer has remedies available in the courts of the State” for these claims. Grey, 933 F.2d at 120. Petitioner may overcome this procedural bar if he can show actual innocence or cause for the procedural default and resulting prejudice. See Schlup, 513 U.S. at 315; Harris, 489 U.S. at 262. However, Petitioner makes no such showing here. Accordingly, I conclude, and I respectfully recommend Your Honor conclude, that this Court cannot review the claims Petitioner asserts in his first three grounds.
B. Ground 4 Is Unexhausted and Without Merit
Petitioner's fourth ground centers on his claim for ineffective assistance of counsel. Petitioner argues that he received ineffective assistance of counsel because trial counsel visited with Petitioner only twice before the trial; failed to investigate by refusing to obtain Mr. Simmons's hospital logs and a toll video; failed to object when the prosecutor misrepresented forensic evidence; and failed to establish through testimony provided by Trooper Kallenberg that the person he stopped was not wearing a pink shirt. [Dkt. 5-1 at 14-15.] As was the case with Petitioner's first three grounds, this claim is also unexhausted.
Petitioner also argues that he received ineffective assistance of counsel because his trial counsel's closing statements placed him at the scene. [Dkt. 5-1 at 14.] This is the first time Petitioner has raised this claim as he did not include it in either his counseled brief or in his pro se brief on direct appeal. [See Dkt. 13-4 at 51-87; Dkt. 13-11 at 43-80.] Accordingly, Petitioner has failed to exhaust this claim. This claim is also deemed exhausted because it concerns a records-based claim that Petitioner failed to present in his appeal. See N.Y. Crim. Proc. Law § 440.10(2)(c). As noted above, Petitioner has failed to allege, much less argue, that he is actually innocent or cause and prejudice for the procedural default. Therefore, the Court cannot address this claim on habeas review.
Petitioner's arguments for his ineffective assistance of counsel claim were raised in the counseled brief for his direct appeal. [Dkt. 13-4 at 76-81.] Petitioner did not assert any of these arguments in his leave application to the Court of Appeals. Notably, Petitioner did assert an ineffective assistance of counsel claim in his leave application and its supplement. However, as both the leave application and the supplement make abundantly clear, Petitioner only sought review of the ineffective assistance of counsel claim raised in his supplemental pro se brief, which relates to his counsel's alleged deficient performance during the suppression hearing. [Dkt. 13-14 at 16-17, 23-46.] Therefore, Petitioner's leave application only alerted the Court of Appeals to his ineffective assistance of counsel claim as it was raised in his supplemental brief, and thus failed to “fairly apprise” the Court of Appeals of Petitioner's other ineffective assistance of counsel claims. See Jordan v. Lefevre, 206 F.3d 196, 198-99 (2d Cir. 2000) (finding that a leave application that focused solely on one argument failed to fairly apprise the Court of Appeals of any other arguments and thus failed to exhaust those other arguments). Accordingly, the ineffective assistance of counsel claims Petitioner advances for habeas review are unexhausted.
Petitioner has no further state-court remedies for these record-based claims, including his argument that his counsel failed to object when the prosecutor misrepresented forensic evidence and his argument that his counsel failed to establish through the testimony of Trooper Kallenberg that he had not seen Petitioner in a pink shirt. Because these arguments are based on matters within the record, Petitioner no longer has any remedies available in state court. See N.Y. Crim. Proc. Law § 440.10(2)(a); see also N.Y. Ct. Rules § 500.20(a)(2). Accordingly, Petitioner's arguments are unexhausted, but deemed exhausted because he “no longer has remedies available in the courts of the State” for these claims. Grey, 933 F.2d at 120. Petitioner makes no showing of actual innocence or cause for the procedural default and resulting prejudice, and therefore he cannot overcome this procedural bar. See Schlup, 513 U.S. at 315; Harris, 489 U.S. at 262. Thus, the Court will not review these claims.
Although Petitioner's remaining ineffective assistance claims are unexhausted, Petitioner does have further recourse in state court for these claims because they are based on evidence outside of the record. See Alston v. Griffin, 2014 WL 6663458, at *13 (S.D.N.Y. Oct. 16, 2014) (“To properly exhaust an ineffective assistance of trial counsel claim that relies on evidence outside the pretrial and trial record . . . the petitioner must raise it as part of a motion to vacate judgment under CPL § 440.10 and then seek leave to appeal to the Appellate Division.”). Nevertheless, under the AEDPA, a district court is permitted to deny a habeas petition on the merits even if the petitioner has failed to exhaust his remedies in state court. See 28 U.S.C. § 2254(b)(2); Jones v. Keane, 329 F.3d 290, 294 n. 6 (2d Cir. 2003), cert. denied, 540 U.S. 1046 (2003). Here, because the record is sufficient to address Petitioner's remaining ineffective assistance of counsel arguments, I recommend that they be denied as plainly meritless.
In order for Petitioner to prevail on an ineffective assistance of counsel claim, Petitioner must show: (1) his counsel's performance “fell below an objective standard of reasonableness,” and (2) that there is a “reasonable probability” that, but for counsel's error, “the result of the proceeding would have been different.” Strickland, 466 U.S. at 688, 691, 694. In considering whether counsel's performance was deficient under Strickland's first prong, decisions by trial counsel that “fall squarely within the ambit of trial strategy, . . . if reasonably made,” cannot give rise to a claim of ineffectiveness. United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987). Strickland's second prong focuses on prejudice to the petitioner. A habeas petitioner must demonstrate “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “To establish a Strickland claim, the likelihood of a different result in the absence of the alleged deficiencies in representation must be substantial, not just conceivable.” Waiters v. Lee, 857 F.3d 466, 469 (2d Cir. 2017) (internal quotation marks omitted). A habeas petitioner must establish both prongs of Strickland. See Greiner, 417 F.3d at 319. Thus, “there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697. “The Strickland standard is rigorous, and the great majority of habeas petitions that allege constitutionally ineffective counsel founder on that standard.” Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir.2001). AEDPA review is also “‘doubly deferential' in order to afford ‘both the state court and the defense attorney the benefit of the doubt.'” Woods v. Donald, 575 U.S. 312, 316-17 (2015) (quoting Burt v. Titlow, 571 U.S. 12, 15 (2013)) (internal quotations omitted). Petitioner fails to meet this high standard.
Petitioner first argues that he received ineffective assistance of counsel because his counsel only visited him twice. Petitioner does not explain how counsel's infrequent visits indicate that counsel's performance fell below the objective standard of reasonableness. Petitioner also fails to “explain why more frequent visits were required, or how his defense would have been different with additional communication.” Mulosmanaj v. Mazzuca, 2007 WL 2728739, at *3 (S.D.N.Y. Sept. 18, 2007). Petitioner cannot satisfy the high Strickland standard with such “conclusory allegations.” United States v. Ramirez, 2022 WL 2703596, at *14 (S.D.N.Y. July 11, 2022). Accordingly, this claim is without merit.
Petitioner next argues that his counsel failed to investigate by refusing to obtain Mr. Simmons's hospital logs to show visits from law enforcement and failing to secure a “toll video” depicting Petitioner's vehicle. A failure by trial counsel to investigate a defendant's case may indeed serve as the basis for an ineffective assistance of counsel claim. See Strickland, 466 U.S. at 690. “[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Id. at 691. When a petitioner claims ineffective assistance of counsel due to failure to investigate, counsel's decision “must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.” Id. “Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and even strategic choices made after less than complete investigation do not amount to ineffective assistance-so long as the known facts made it reasonable to believe that further investigation was unnecessary.” Henry v. Poole, 409 F.3d 48, 63 (2d Cir. 2005) (internal quotation marks, citation, and alteration omitted).
With respect to the hospital logs, Petitioner specifically argues that the hospital logs would have shown visits from law enforcement. Petitioner does not explain the specific significance of the visits from law enforcement to Mr. Simmons while he was in the hospital, but his reply seems to suggest that the hospital logs would have shown that Mr. Simmons “did not identify Petitioner [in] the photo array conducted on the day of the shooting[.]” [See Dkt. 5-1 at 14; see also Dkt. 16 at 20.] At the suppression hearing, Mr. Simmons testified that police officers brought in photos for him to identify the perpetrators of the crime on the first day he was in the hospital, October 9, 2014. [Dkt. 13-24 at 23.] He stated that the officers brought him photos of the driver and the shooter on the first day he was in the hospital. [Id.] He further testified that later, on October 11th, he saw a newspaper article that included a photo of Petitioner. [Id. at 20.] He testified that on October 13th, police officers again came to the hospital and provided him with a photo array of six individuals. [Id. at 21.] From that photo array, Mr. Simmons identified Petitioner as the driver. Later in the hearing, the state called the investigator who showed Mr. Simmons photographs on October 9th. [Dkt. 13-25 at 3.] The investigator testified that on October 9th, while Mr. Simmons was in the hospital, he showed him photographs of his known enemies, Petitioner's co-defendant and another individual. [Id. at 34.] He stated that Mr. Simmons identified Petitioner's co-defendant as the shooter and stated that the other individual was not the driver. [Id. at 4.]
The investigator's testimony established that the photos shown to Mr. Simmons on October 9th did not include a photograph of Petitioner. Accordingly, Petitioner's trial counsel did not act unreasonable in failing to obtain the hospital logs, as such information would have been duplicative of the investigator's testimony. See Brown v. Rabideau, 559 F.Supp.2d 278, 287 (W.D.N.Y. Mar. 31, 2008) (finding that an attorney did not need to submit a report that was duplicative of testimony into evidence). Further, the logs would only have shown when the investigators went to see Mr. Simmons and would not have conveyed information regarding the substance of those meetings. The logs would, therefore, not refute the testimony of Mr. Simmons or the investigator, as they would only show that law enforcement officers visited Mr. Simmons on October 9th and October 13th. Petitioner thus fails to satisfy Strickland's first prong as he has failed to show that his trial counsel acted unreasonably in not investigating the hospital logs. Petitioner also fails to satisfy Strickland's second prong because the hospital logs would have no bearing on the outcome of the proceeding. The County Court specifically noted that even if the photo array presented to Mr. Simmons was unduly suggestive, Mr. Simmons could still provide an in-court identification of Petitioner because he had an independent basis for that identification. [Dkt. 13-4 at 7.] Accordingly, Petitioner's argument that his counsel should have investigated the hospital logs is without merit.
Petitioner next argues that his counsel should have investigated the toll video, because it would have shown Petitioner with a female passenger, as opposed to Petitioner's co-defendant. However, Petitioner's trial counsel was not ineffective for failing to investigate possible toll videos, because Petitioner has not provided any evidence that such videos exist. See Jackson v. Artus, 2008 WL 4386826, at *18 (S.D.N.Y. Sept. 22, 2008). Therefore, it was not unreasonable for Petitioner's counsel not to investigate videos that may or may not exist. Further, Petitioner asserts, but offers no evidence, that the videos would have shown that the passenger was not his co-defendant but instead a woman. “Absent such evidence, Petitioner's claim that his trial counsel could have obtained videotapes that would have exonerated him is purely speculative and cannot sustain a claim of ineffective assistance of counsel.” Jackson, 2008 WL 4386826, at *18 (citing Eisemann v. Herbert, 401 F.3d 102, 108 (2d Cir. 2005)). Accordingly, Petitioner cannot sustain either prong of a Strickland analysis and his argument is without merit. I therefore conclude, and respectfully recommend Your Honor conclude, that Petitioner's remaining ineffective assistance of counsel arguments are meritless.
C. Ground 5 Is Deemed Exhausted and Procedurally Barred
For his final ground, Petitioner argues that he did not receive a fair trial because the prosecutor, Mr. Milza, violated the advocate witness rule and the unsworn witness rule. As was the case with Petitioner's arguments in grounds 1-3, this argument is unexhausted. Although Petitioner argued this ground in both his pro se supplemental brief to the Appellate Division, and his leave application to the New York Court of Appeals, he failed apprise these state courts as to any federal constitutional claim.
It is well-settled that a petitioner may fairly present a federal constitutional claim to state courts “without citing ‘book and verse on the federal constitution.'” See Daye, 696 F.2d at 192 (quoting Picard v. Connor, 404 U.S. 270, 278 (1971)). As noted above, there are numerous ways in which “a state defendant may fairly present to the state courts the constitutional nature of his claim.” Id. at 194; see supra Part III.A. Here, however, Petitioner failed to present his constitutional claim to the state courts in any discernable way.
In Petitioner's pro se supplemental brief, he argues that the trial court committed a reversible error in failing to disqualify Mr. Milza “pursuant to the advocate witness rule or the unsworn witness rule, in light of his involvement in the search warrant applications[.]” [Dkt. 1311 at 71.] In the section of his pro se brief addressing this argument, Petitioner did not cite to any federal cases or any component of the consititution, and he failed to articulate how the trial court's alleged error implicated any specific constitutional right. See Daye, 696 F.2d at 194.
Now, on habeas review, Petitioner claims that Mr. Milza's violation of the witness advocate rule and the unsworn witness rule deprived him of a fair trial, but he made no such allegation in his pro se brief on appeal. Further, even if Petitioner had made passing reference to his right to a fair trial, it would have been insufficient to alert the state court of his constitutional claim. See Clemmons v. Lee, 2021 WL 6750664, at *13 (S.D.N.Y. Oct. 28, 2021) (collecting cases). Petitioner's pro se brief did not rely on any federal caselaw in connection with this claim, as he cited only a single New York Court of Appeals case addressing the advocate-witness rule and the unsworn witness rule. See People v. Paperno, 54 N.E.2d 797 (N.Y. 1981). In Paperno, the Court of Appeals relied on New York's Code of Professional Responsibility and other state authorities addressing the unsworn witness rule. See id. at 800-01.
Accordingly, Petitioner's pro se brief on appeal did not satisfy any of the standards set forth in Daye to alert the state courts of the constitutional nature of his claims. See 696 F.2d at 192-94. Petitioner did not (a) “rel[y] on pertinent federal cases employing constitutional analysis;” (b) “rel[y] on state cases employing constitutional analysis in like fact situations;” (c) “assert[ ] . . . the claim in terms so particular as to call to mind a specific right protected by the Constitution;” or (d) “allege a pattern of facts that is well within the mainstream of constitutional litigation.” See id. at 194. Petitioner therefore failed to alert the Appellate Division to any constitutional claims that may have been embedded in his argument that the prosecutor violated the witness advocate rule and the unsworn witness rule.
Given that Petitioner failed to alert the Appellate Division to the constitutional nature of this claim, this claim is unexhausted. Further, because this claim is record-based, and Petitioner already presented its factual premises on direct appeal, he cannot raise this argument again in state court. See N.Y. Crim. Proc. Law § 440.10(2)(c). Therefore, Petitioner's argument that his right to a fair trial was violated because the prosecutor violated the witness advocate rule and the unsworn witness rule is deemed exhausted. See Grey, 933 F.2d at 120. Petitioner could overcome this procedural bar if he could show actual innocence or cause for the procedural default and resulting prejudice, but Petitioner fails to make any such showing here. See Schlup, 513 U.S. at 315; Harris, 489 U.S. at 262. Accordingly, I respectfully recommend Your Honor conclude that the Court cannot grant habeas relief on these grounds.
V. CONCLUSION
For the reasons set forth above, I respectfully recommend that Your Honor DENY the Petition for a Writ of Habeas Corpus. I recommend that no certificate of appealability be issued because reasonable jurists would not find it debatable that Petitioner has failed to demonstrate by a substantial showing that he was denied a constitutional right. See 28 U.S.C. 2253 (c); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, and Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts, the parties shall have fourteen (14) days from service of this Report and Recommendation to serve and file written objections. Such objections, if any, along with any responses to the objections, shall be filed with the Clerk of the Court with extra copies delivered to the chambers of the Honorable Vincent Briccetti, at the Honorable Charles L. Brieant Jr. Federal Building and United States Courthouse, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered. See Caidor v. Onondaga County, 517 F.3d 601, 604 (2d Cir. 2008).