Opinion
6:17-CV-06332 EAW
2020-12-21
Sean BARILL, Petitioner, v. Dale ARTUS, Superintendent, Respondent.
Sean Barill, Attica, NY, pro se. David Anthony Heraty, Erie County District Attorney's Office, Buffalo, NY, for Respondent.
Sean Barill, Attica, NY, pro se.
David Anthony Heraty, Erie County District Attorney's Office, Buffalo, NY, for Respondent.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
INTRODUCTION
Pro se Petitioner Sean Barill ("Petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the basis that he is being unconstitutionally detained in the custody of respondent Dale Artus, Superintendent ("Respondent"). Petitioner is incarcerated pursuant to a judgment entered against him on August 15, 2012, in New York State Supreme Court, Erie County (the "trial court"), for murder in the second degree. (Dkt. 1 at 1). Petitioner was sentenced to a term of imprisonment of 25 years to life. (Id. ).
Petitioner contends he is being held unlawfully for the following reasons: (1) the prosecution's proof was insufficient to disprove his justification defense; (2) the integrity of the grand jury was impaired due to the failure to charge justification and his counsel was ineffective; (3) Petitioner was deprived of a fair trial due to prosecutorial misconduct; (4) the trial court failed to give an intoxication charge; (5) the trial court failed to give a missing witness charge; (6) the trial court failed to rule on defense counsel's motion to suppress statements as fruit of an unlawful seizure; and (7) his sentence was harsh and excessive and must be modified in the interest of justice. (Dkt. 1 at 7-10). For the reasons discussed below, the Court finds that Petitioner has not shown he is entitled to federal habeas relief, and therefore his Petition is denied.
BACKGROUND
I. Underlying Crime and Pretrial Proceedings
On June 27, 2011, the victim, Freddy Patrick, was found deceased in Petitioner's apartment, which Petitioner shared with his girlfriend. (Trial T., pp. 267-68). Mr. Patrick's body, which had 41 knife wounds, was found by Lisa Genua, the mother of Petitioner's girlfriend. (Id. ). Petitioner was identified as the perpetrator. He was charged by a grand jury with one count of murder in the second degree and entered a plea of not guilty. (Arraignment T., pp. 2-3).
Prior to trial, Petitioner moved to suppress statements he made to the police. (Jan. 24, 2012 Decision and Order, p. 2). Following a Huntley hearing (see Huntley Hearing, pp. 1-66), the trial court denied Petitioner's motion to suppress. (Jan. 24, 2012 Decision and Order, p. 5).
II. Trial and Sentencing
Trial commenced on June 25, 2012. The government called several witnesses, including Lisa Genua, the mother of Petitioner's girlfriend, Julie Genua. (Id. at 411). On September 27, 2011, Ms. Genua went to visit Julie at her apartment, which Julie shared with Petitioner. (Id. at 415-17). Ms. Genua found a note on a chair inside an open window, written in her daughter's handwriting, that said "He broke into our home. My boyfriend killed him. We were scared so we left. We were scared." (Id. at 418-19). Ms. Genua was able to access the apartment, where she found Mr. Patrick's body and notified a police officer. (Id. at 422-26).
Petitioner's mother, Debra Ashwas, also testified at trial. (Id. at 502). Ms. Ashwas testified that Petitioner and his girlfriend arrived at her home at 5:00 a.m. on June 27, 2011. (Id. at 505). Ms. Ashwas testified that they appeared "panic stricken" and Petitioner told her that he had killed a man in his apartment. (Id. at 505-06). Ms. Ashwas testified that she recalled her son telling her that "the guy rubbed up against him," which she "took ... as maybe sexual molestation," but that she may have misinterpreted or misconstrued what Petitioner told her. (Id. at 506-07). Petitioner told her that the man he killed was "a total stranger" he met out front, and he had invited the man inside to drink beers. (Id. at 511). Petitioner told Ms. Ashwas that he had stabbed the victim in the stomach and in the neck, and that the victim had died in the kitchen. (Id. at 511-12). Ms. Ashwas told Petitioner that he should call the police. (Id. at 511). Petitioner and Julie were at Ms. Ashwas's home for between 45 to 90 minutes, during which time Julie told Petitioner to wash his hair and that she was going to cut it. (Id. at 508, 510).
The Associate Chief Medical Examiner, Dr. Jonrika Malone, also testified at trial. (Id. at 703). Dr. Malone testified that she conducted Mr. Patrick's autopsy. (Id. at 713). Mr. Patrick had several sharp force injuries to his head, neck, chest, and upper extremities. (Id. at 716). He had 33 stab wounds, and eight cutting wounds, for 41 knife wounds total. (Id. ). Dr. Malone identified two cutting wounds on Mr. Patrick's left hand, which were "suggestive of defensive-type injuries." (Id. at 736). Mr. Patrick's blood alcohol level, which indicated that he had drinking prior to his death, was .25 percent. (Id. at 738).
Detective Patrick Judge testified at the trial. (Id. at 764). Detective Judge responded to Petitioner's apartment at approximately 2:35 p.m. on June 27, 2011. (Id. at 766). He learned the location of Petitioner and his girlfriend from Lisa Genua, who had received a call from Julie. (Id. at 769). Detective Judge was able to trace the number to a residence in Gowanda, New York, where he found Petitioner and his girlfriend. (Id. at 769-71). Petitioner immediately told Detective Judge, "it was self-defense." (Id. at 771). Petitioner was transported to the Buffalo Police headquarters. (Id. at 772-73). Petitioner gave a statement, claiming that Mr. Patrick was the initial aggressor and he had acted in self-defense. (Id. at 779-84). Detective Judge also testified that Petitioner's injuries included two small scratches to the right side of his back, some scratches on his right wrist and hand, and some small slice marks on his fingers, which are commonly caused when a person's hand slips off the knife when stabbing someone. (Id. at 791-93).
Petitioner testified at the trial. He testified that he was in his apartment listening to music and drinking alcohol during the evening on June 26, 2011. (Id. at 867). Petitioner eventually decided to go outside his apartment building on Delaware Avenue to look for a cigarette. (Id. at 868). He saw Mr. Patrick, who he did not know, and asked him for a cigarette. (Id. ). The two men began talking, and Petitioner eventually asked Mr. Patrick to come up to his apartment building, where they drank beer and listened to music on the couch in the living room. (Id. at 868-72). The two men decided to walk to a Sunoco station to get more beer. (Id. at 873-74). Petitioner testified that when they returned to his apartment, Mr. Patrick was repeating that his name was "Freddie" and he was "a good guy," and that Mr. Patrick was "hitting [him] in [the] leg." (Id. at 876-77). Petitioner testified that it was getting late and he told Mr. Patrick that he needed to leave because his girlfriend Julie would be home soon, but Mr. Patrick did not want to leave. (Id. at 878). Mr. Patrick asked Petitioner for another beer. (Id. ). Petitioner testified he was hoping Mr. Patrick would get another beer from the kitchen and leave, but Mr. Patrick returned to the living room holding a knife. (Id. at 878-79). Petitioner testified that he jumped up, and the men began to struggle. (Id. at 880). Mr. Patrick dropped the knife in the struggle, and Petitioner grabbed it. (Id. ). Petitioner testified that he stabbed Mr. Patrick because he feared for his life, and then pushed him onto the couch. (Id. at 881-82). Petitioner then dropped the knife, but grabbed another, smaller knife from a table in the living room. (Id. at 882). Petitioner testified that he went into his kitchen, and Mr. Patrick followed him. (Id. at 882-83). The men brawled in the kitchen, and Petitioner stabbed Mr. Patrick again, but testified that he could not remember how many times he stabbed him. (Id. at 883-85). Petitioner testified that after the fight, he was in complete shock and could not stop crying. (Id. at 887). He wiped the knives down. (Id. at 888). Julie came home about "15, 20 minutes" following the incident. (Id. ). She told Petitioner to take a shower because he was covered in blood and they left the apartment. (Id. at 891). Petitioner testified that he did not call the police because he was scared and in shock. (Id. ).
The jury returned a guilty verdict. (Id. at 1085). On August 15, 2012, Petitioner was sentenced to an indeterminate term of imprisonment of 25 years to life. (Sentencing T., p. 8).
III. Direct Appeal
Petitioner appealed from the judgment, arguing: (1) the prosecution's proof was insufficient as a matter of law to disprove appellant's justification defense, and the verdict was against the weight of the evidence; (2) the integrity of the grand jury was impaired by the failure to charge justification, and appellant was denied effective assistance of counsel; (3) misconduct by the prosecutor deprived him of a fair trial; (4) the trial court failed to instruct the jury with respect to intoxication; (5) the trial court denied the request for a missing witness charge; (6) the trial court failed to rule on defense counsel's motion to suppress his statements as fruit of an unlawful seizure; and (7) his sentence was inordinately harsh and excessive, and must be modified in the interest of justice. (See Exhibit B, Brief for Appellant, pp. 5-53). On August 8, 2014, Petitioner's conviction was unanimously affirmed by the Appellate Division, Fourth Department. People v. Barill , 120 A.D.3d 951, 991 N.Y.S.2d 214 (4th Dep't 2014). The New York Court of Appeals denied leave to appeal on November 12, 2014. People v. Barill , 24 N.Y.3d 1042, 998 N.Y.S.2d 312, 23 N.E.3d 155 (2014). On October 5, 2015, the United States Supreme Court denied Petitioner's petition for a writ of certiorari. Barill v. New York , 577 U.S. 865, 136 S. Ct. 158, 193 L.Ed.2d 117 (2015).
IV. Petitioner's Motion for a Writ of Error Coram Nobis
On May 5, 2016, Petitioner, proceeding pro se , filed a motion for a writ of error coram nobis, alleging ineffective assistance of appellate counsel. (See Exhibit G). His motion was denied by the Appellate Division, Fourth Department, on July 1, 2016. People v. Barill , 141 A.D.3d 1124, 33 N.Y.S.3d 809 (4th Dep't 2016). Petitioner did not seek leave to appeal to the New York Court of Appeals.
V. State Court Motion to Vacate
On August 17, 2016, Petitioner, proceeding pro se , filed a motion pursuant to NY CPL § 440.10, to vacate his conviction, arguing: (1) the Court lacked jurisdiction because the indictment was defective and the integrity of the grand jury was impaired, due to the failure to charge justification; (2) the evidence was legally insufficient to disprove Petitioner's justification defense; (3) the trial court failed to instruct the jury on intoxication; (4) he was denied his right to a fair trial because the prosecutor commented on his right to remain silent; and (5) his trial counsel was ineffective. (See Exhibit E, p. vii). On January 30, 2017, the trial court denied Petitioner's motion. (See Exhibit E, January 30, 2017 Memorandum and Order). On May 18, 2017, Petitioner's application for leave to appeal pursuant to CPL § 460.15 was denied by the Fourth Department. (See Exhibit F).
VI. Habeas Petition
Petitioner, proceeding pro se , filed a Writ of Habeas Corpus on May 26, 2017, alleging that he is being held in violation of his constitutional rights. (Dkt. 1). Petitioner raises seven grounds for relief, including: (1) the prosecution's proof was insufficient to disprove his justification defense; (2) the grand jury's integrity was impaired due to the failure to charge justification and his attorney was ineffective; (3) Petitioner was deprived of a fair trial, due to prosecutorial misconduct; (4) the trial court failed to give an intoxication charge; (5) the trial court failed to give a missing witness charge; (6) the trial court failed to rule on defense counsel's motion to suppress statements as fruit of an unlawful seizure; and (7) his sentence was harsh and excessive and must be modified in the interest of justice. (Dkt. 1 at 7-10). On June 26, 2017, the Court directed Respondent to file an answer and memorandum of law within 90 days. (Dkt. 2). On September 22, 2017, Respondent answered the Petition and filed a memorandum of law. (Dkt. 3 & Dkt. 4).
DISCUSSION
I. Legal Standard
"Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d)(1), a federal court may not grant a state prisoner's habeas application unless the relevant state-court decision was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." Knowles v. Mirzayance , 556 U.S. 111, 121, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009) (quotation omitted). "The question is ‘not whether the state court was incorrect or erroneous in rejecting petitioner's claim, but whether it was objectively unreasonable in doing so.’ " Edwards v. Superintendent, Southport C.F. , 991 F. Supp. 2d 348, 367 (E.D.N.Y. 2013) (quoting Ryan v. Miller , 303 F.3d 231, 245 (2d Cir. 2002) ). "The petition may be granted only if ‘there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents.’ " Id. (alteration in original) (quoting Harrington v. Richter , 562 U.S. 86, 102, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) ).
II. The Justification Defense and Grand Jury Minutes
Petitioner's first two arguments concern his justification defense. (See Dkt. 1 at 7-9). Specifically, Petitioner argues that the prosecution's proof was insufficient as a matter of law to disprove his justification defense. (Id. at 7). Petitioner also contends that the integrity of the grand jury was impaired by the failure to charge justification. (Id. at 9).
Petitioner's claim that the prosecution failed to disprove his justification defense was raised on direct appeal and rejected on the merits by the Appellate Division, which found:
Contrary to defendant's further contention, viewing the evidence in light of the elements of the crime as charged to the jury ... we conclude that the verdict is not against the weight of the evidence. Specifically, we conclude that the jury "did not fail to give the evidence the weight it should be accorded in rejecting defendant's justification defense" and thus that the verdict is not against the weight of the evidence in that respect. We note that defendant inflicted 41 knife wounds on the victim, there was little sign of a struggle although the victim's blood was found throughout defendant's apartment, and defendant had only small cuts on his fingers that were consistent with his hand slipping on a knife blade as he stabbed the victim, as well as a few scratches on his back. Furthermore, defendant took preliminary steps to conceal the crime by gathering some
of the weapons and the clothing he wore during the incident, and bundling those items in a rug. Defendant also wiped the victim's blood off some of the knives, took a shower, changed his clothes and fled the scene, and he then took another shower and had his girlfriend cut his hair. Contrary to defendant's contention that the jury should have credited his testimony that his actions were justified, " ‘[r]esolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury, which saw and heard the witnesses’ ".
People v. Barill , 120 A.D.3d at 951-52, 991 N.Y.S.2d 214 (internal citations omitted).
"The standard for assessing the sufficiency of the evidence to support a guilty verdict is well settled, and it is the same under both Federal and New York state law: The reviewing court is limited to asking whether ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ " Klosin v. Conway , 501 F. Supp. 2d 429, 440 (W.D.N.Y. 2007) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ). " ‘This standard applies with equal force to the sufficiency of proof as to a defense, such as justification ... which the prosecution is required to disprove beyond a reasonable doubt.’ " Ortiz v. United States , No. 18-CV-4407(JS), 2019 WL 3997379, at *7 (E.D.N.Y. Aug. 23, 2019) (quoting Ledesma v. Cunningham , No. 03-CV-6322, 2004 WL 1775677, at *11 (S.D.N.Y. Aug. 10, 2004) ). A petitioner "bears a very heavy burden in convincing a federal habeas court to grant a petition on the grounds of insufficiency of the evidence." Fama v. Comm'r of Corr. Servs. , 235 F.3d 804, 811 (2d Cir. 2000).
Under New York law, "[a] person may not use deadly physical force upon another person ... unless: (a) The actor reasonably believes that such other person is using or about to use deadly physical force." See N.Y. Penal Law § 35.15(2)(a) ; see also Spells v. Lee , No. 11-CV-1680(KAM), 2016 WL 1337283, at *7 (E.D.N.Y. Apr. 4, 2016) ("Justification ... is not a defense to the use of deadly physical force unless the actor reasonably believed that another person was about to use deadly physical force against him and the actor was unable to retreat safely."). Viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the prosecution disproved Petitioner's justification defense. For example, the prosecution offered evidence from the medical examiner that Mr. Patrick had "defensive-type" wounds and was intoxicated at the time of his death. Further, Mr. Patrick had 41 knife wounds, while Petitioner had only a few scratches. There was also evidence that Petitioner took steps to cover up the crime, including that he took a shower, cleaned the knives, and fled the scene. See Spells , 2016 WL 1337283, at *8 (holding that a jury could reasonably have found that the prosecution disproved the petitioner's justification defense, where there was testimony that the victim was found face down, the victim was shot twice in the back, and a doctor testified that shots to the victim's face and through his spine would have incapacitated him instantly). In other words, although Petitioner testified that he stabbed Mr. Patrick because he believed Mr. Patrick was going to kill him and he feared for his life, the prosecution presented sufficient evidence to disprove Petitioner's testimony, and the jury apparently found Petitioner's testimony not credible. The Court agrees with the Appellate Division that the jury is in the best position to make determinations regarding witness credibility and the weight afforded to certain evidence. See Silva v. Keyser , 271 F. Supp. 3d 527, 540 (S.D.N.Y. 2017) (explaining that a habeas court "is not free to make credibility judgments about the testimony presented at the petitioner's trial," and a conviction "may be based upon circumstantial evidence and inferences based upon the evidence, and the jury is exclusively responsible for determining a witness’ credibility.") (internal quotations and citation omitted), appeal dismissed , No. 17-3324, 2018 WL 1831778 (2d Cir. Mar. 26, 2018). Accordingly, Petitioner is not entitled to habeas relief on this ground.
Petitioner also challenges the integrity of the grand jury proceedings based on the lack of a justification instruction. Petitioner raised this claim on direct appeal; the Appellate Division rejected Petitioner's argument, explaining:
Defendant's contentions with respect to the integrity of the grand jury proceedings are "not reviewable on appeal because the grand jury minutes are not included in the record on appeal" ( People v. Dilbert , 1 A.D.3d 967, 967-968 [2003], lv denied 1 N.Y.3d 626 [ 777 N.Y.S.2d 25, 808 N.E.2d 1284] [2004] ; see generally People v. Hawkins , 113 A.D.3d 1123, 1125 [2014], lv denied 22 N.Y.3d 1156 [984 N.Y.S.2d 640, 7 N.E.3d 1128] [2014] ; People v. Lane , 47 A.D.3d 1125, 1127 n 3 [2008], lv denied 10 N.Y.3d 866 [860 N.Y.S.2d 492, 890 N.E.2d 255] [2008] ; People v. Brooks , 163 A.D.2d 864, 865 [1990], lv denied 76 N.Y.2d 984 [563 N.Y.S.2d 772, 565 N.E.2d 521] [1990] ).
People v. Barill , 120 A.D.3d at 952, 991 N.Y.S.2d 214.
Petitioner's claim regarding the grand jury proceedings is not cognizable on federal habeas review. See Mesko v. Lilley , No. 9:18-CV-872(GTS), 2019 WL 6493976, at *14 (N.D.N.Y. Dec. 3, 2019) ("Claims of deficiencies in the state grand jury proceedings are not cognizable in a federal habeas corpus proceeding."); see also Harris v. Yelich , No. 16-cv-00264, 2017 WL 168005, at *2 (W.D.N.Y. Jan. 17, 2017) ("the alleged deficiencies in the state grand jury proceedings are not cognizable in petitioner's federal habeas corpus proceeding."). Further, any error during the grand jury proceedings was rendered harmless when Petitioner was convicted following a jury trial, where the jury was instructed on the defense of justification (see Trial T., pp. 1056-60). See Occhione v. Capra , 113 F. Supp. 3d 611, 631 (E.D.N.Y. 2015) ("Any grand jury deficiencies are rendered harmless by a petit jury conviction assessing petitioner's guilt under a heightened standard of proof."). Accordingly, Petitioner is not entitled to federal habeas relief on this ground.
III. Prosecutorial Misconduct
Petitioner's next argument is that misconduct by the prosecutor deprived him of a fair trial. (Dkt. 1 at 9). Petitioner does not identify any specific instance of misconduct in his habeas petition; however, his attorney objected to conduct by the prosecutor during the trial. For example, during his opening statement, the prosecutor referred to Petitioner's actions on June 27 2011, stating "[d]uring those early morning hours for reasons known only to him with only the walls and the floors and the couch as witnesses --" (Trial T., p. 270). Defense counsel objected to this statement on the basis that the prosecutor's comments challenged Petitioner's right to remain silent, insinuated that Petitioner was the only one who could explain what occurred between him and the victim, and improperly shifted the burden of proof to Petitioner. (Id. at 270, 333-35). Further, during his cross-examination of Petitioner, the prosecutor, in order to demonstrate that Petitioner was an interested witness, asked Petitioner if he knew he would be sentenced to prison time if the jury did not believe his story and he was convicted. (Id. at 955-56). Defense counsel objected on the basis that it was inappropriate for the prosecutor to allude to sentencing because it put pressure on the jury. (Id. at 956-57, 961-64). The Court denied defense counsel's motions for a mistrial based on these comments. (Id. at 335, 963).
In his brief on the direct appeal, Petitioner conceded that although "the prosecutor's misconduct was not necessarily pervasive," it was focused on his self-defense testimony, which was critical to the outcome of the case. (Exhibit B, Brief for Appellant, p. 36). The Appellate Division rejected Petitioner's claim of prosecutorial misconduct:
We reject defendant's further contention that he was deprived of a fair trial by prosecutorial misconduct. Defendant contends, inter alia, that the prosecutor impermissibly cross-examined him regarding his interest in the outcome of the trial. It is well settled, however, that a defendant is an interested witness as a matter of law ... and the prosecutor's cross-examination merely established that fact.
People v. Barill , 120 A.D.3d at 952, 991 N.Y.S.2d 214 (internal citations omitted).
"The appropriate standard of review for a claim of prosecutorial misconduct on a writ of habeas corpus is the narrow one of due process, and not the broad exercise of supervisory power." Bossett v. Walker , 41 F.3d 825, 829 (2d Cir. 1994) (internal quotation marks and citation omitted). "To prevail on such a claim, a state habeas corpus petitioner must show that the prosecutor's conduct ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ " Moore v. Conway , 476 F. App'x 928, 930 (2d Cir. 2012) (quoting Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) ). "A finding that the comments were ‘undesirable or even universally condemned’ is not enough." Parks v. Sheahan , 104 F. Supp. 3d 271, 289 (E.D.N.Y. 2015) (quoting Darden , 477 U.S. at 181, 106 S.Ct. 2464 ). "The court considers the record as a whole when making this determination, ‘because even a prosecutor's inappropriate or erroneous comments or conduct may not be sufficient to undermine the fairness of the proceedings when viewed in context.’ " Mesko , 2019 WL 6493976, at *9 (quoting Jackson v. Conway , 763 F.3d 115, 146 (2d Cir. 2014) ).
Here, Petitioner has fallen short of making the requisite showing. Even if Petitioner was able to show that the comments by the prosecutor amounted to misconduct, the Court has considered the record as a whole and finds that the comments did not infect the trial with unfairness such that Petitioner was denied due process of law. See Moody v. Comm'r of Corr. , No. 3:11cv1109(JBA), 2014 WL 1690386, at *8 (D. Conn. Apr. 29, 2014) (federal habeas relief not warranted where prosecutor's misconduct in asking petitioner if witnesses were lying, which related to the credibility of petitioner's self-defense claim, was not central to the issue because it was limited to two questions, and explaining that "[i]n analyzing this claim the state court properly considered the misconduct in the context of the entire trial by evaluating the pervasiveness of the misconduct, the strength of the state's case and the curative measures utilized to cure the misconduct.").
The Appellate Division's conclusion, i.e. , that Petitioner was an interested witness and it was not inappropriate for the prosecutor to establish that fact during cross-examination, was not unreasonable. The jury was entitled to consider Petitioner's interest in the outcome of the case. To that end, the trial court gave the following instruction:
You may consider whether a witness has any interest in the outcome of the case or instead whether a witness has no such interest. A defendant who testifies is a person who has an interest in the outcome of the case. You are not required to reject the testimony of an interested witness or to accept the testimony of a witness who has no interest in the outcome of the case. You may, however, consider whether an interest in the outcome or the lack of such interest affected the truthfulness of the witness's testimony.
(Trial T., p. 1048) (emphasis added). The prosecutor's alluding to Petitioner's facing prison time if convicted of murder in the second degree did not violate Petitioner's constitutional right to a fair trial. Further, even if the prosecutor's comments were improper, the trial court issued a jury instruction explaining that the jury should not consider possible punishment when determining Petitioner's guilt:
In determining the question of guilt you must not consider the punishment which may be given to a defendant if convicted. The matter of punishment upon conviction rests with the court. It would be the Court's responsibility and not yours. Do not allow possible punishment in any way to affect your deliberations and decisions with respect to the question of guilty or lack of guilt of the defendant.
(Trial T., p. 1039). The jury presumably followed the instructions given to them by the trial court. See Parker v. Smith , 858 F. Supp. 2d 229, 240 (N.D.N.Y. May 1, 2012) ("Jurors are presumed to be impartial, and to follow the trial court's instructions."); see also Licausi v. Griffin , 460 F.Supp.3d 242, 265 (E.D.N.Y. 2020) ("Petitioner also fails to show that the testimony deprived him of a fundamentally fair trial. A jury is presumed ‘to follow an instruction to disregard inadmissible evidence inadvertently presented to it, unless there is an ‘overwhelming probability’ that the jury will be unable to follow the court's instructions....’ ") (citation omitted).
Finally, the prosecutor's comment in his opening statement that only Petitioner knew why he murdered Mr. Patrick does not rise to the level of prosecutorial misconduct such that Petitioner was deprived of a fair trial. Even if the jurors interpreted the prosecutor's statement to mean that Petitioner was required to disprove his guilt, the trial court instructed the jurors – both in the opening and closing instructions – that Petitioner was presumed innocent, he had no burden to prove his innocence, and the prosecution was required to prove its case beyond a reasonable doubt. (Trial T., pp. 263, 1043-44). Petitioner testified at the trial, and the jury was able to consider his explanation as to why he stabbed Mr. Patrick. The prosecutor's remarks did not result in a denial of due process, and therefore Petitioner is not entitled to habeas relief on this ground.
IV. Intoxication Charge and Missing Witness Charge
Petitioner's next two arguments concern jury instructions he contends should have been given by the trial court to the jury. Specifically, Petitioner contends that the trial court erred by failing to instruct the jury on intoxication and failed to provide a missing witness charge. (Dkt. 1 at 9-10). During the charge conference, defense counsel requested a jury instruction on intoxication, as well as a missing witness charge as to Petitioner's girlfriend. (Trial T., pp. 965, 967). The trial court denied both requests. (Id. at 973-74).
"Where an error in a jury instruction is alleged, ‘it must be established not merely that the instruction is undesirable, erroneous, or even "universally condemned," but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment.’ The question is not whether the trial court gave a faulty instruction, but rather ‘whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.’ " Davis v. Strack , 270 F.3d 111, 123 (2d Cir. 2001) (quoting Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973) ). A court determining whether the failure to give a jury instruction warrants federal habeas relief must "answer[ ] three questions in the petitioner's favor:
First, was the [jury] charge required as a matter of New York state law? Second, if so, did the failure to give the requested charge violate the standard set out in Cupp. Third, if so, was the state court's failure of such a nature that it is remediable by habeas corpus, given the limitations prescribed by 28 U.S.C. § 2254 ?"
Id. at 124. "As the Second Circuit has observed: ‘The Supreme Court has made it clear that errors in instructions to the jury rarely rise to a constitutional level.’ " Dunston v. Griffin , No. 16-cv-821(BMC), 2016 WL 1255727, at *11 (E.D.N.Y. Mar. 29, 2016) (quoting Victory v. Bombard , 570 F.2d 66, 69 n.3 (2d Cir. 1978) ).
A. The Missing Witness Charge
At the charge conference, defense counsel requested that the Court give a missing witness charge as to Petitioner's girlfriend, Julie Genua. (Trial T., p. 967). Defense counsel argued that the prosecution would likely ask the jury to consider Petitioner's flight following the murder, and Miss Geuna was an "integral part" of those events. (Id. at 967-68). The prosecution objected, arguing that the charge was improper because Ms. Genua was not present for the murder, and because the prosecution had already called witnesses relevant to Petitioner's flight and therefore Ms. Genua's testimony would be cumulative. (Id. ). The trial court explained that it agreed with the defense's position but denied the prosecution's request for a charge on consciousness of guilt, "thus negating defendant's request of a missing witness charge." (Id. at 973-74). The Appellate Division found that Petitioner failed to demonstrate that he was entitled to a missing witness charge:
The initial burden of establishing entitlement to the charge rests upon the party seeking the instruction. Here, in the absence of any evidence establishing that the witness was available to the People or would testify in their favor, "[d]efendant failed to meet his burden of establishing that he was entitled to a missing witness charge with respect to" his girlfriend.
People v. Barill , 120 A.D.3d at 953, 991 N.Y.S.2d 214 (internal citations omitted).
The Fourth Department's determination that Petitioner was not entitled to a missing witness charge was reasonable. Even if Petitioner's claim amounted to a violation of a constitutional right, see Henriquez v. Lee , No. 18-CV-7913(GHW)(KNF), 2019 WL 3306586, at *3 (S.D.N.Y. June 27, 2019) ("A missing-witness charge is not a federally protected right; rather, it creates a presumption that the missing witness's testimony would be unfavorable to the party who failed to produce the witness"), adopted , 2019 WL 3302609 (S.D.N.Y. July 23, 2019), he has failed to demonstrate he was entitled to such a charge. "Under New York law, to obtain a missing witness instruction, the party seeking the instruction must establish three preconditions. First, the uncalled witness must have knowledge material to the trial. Second, the uncalled witness must naturally be expected to provide noncumulative testimony favorable to the party who has not called him. This is often referred to as the ‘control’ element, which ‘requires a court to evaluate the relationship between the witness and the party to whom he is expected to be faithful.’ Third, the witness must be available to that party." Young v. Phillips , No. 05-cv-04466(NG)(JMA), 2015 WL 4635591, at *5 (E.D.N.Y. Aug. 3, 2015) (internal citations omitted). As explained by the Appellate Division, Petitioner failed to show that Ms. Genua would have provided testimony favorable to the prosecution or that she was available to the prosecution. To the extent Ms. Genua's testimony was relevant to Petitioner's flight, the trial court denied the prosecution's request for an instruction on consciousness of guilt, thereby diminishing the materiality of Ms. Genua's testimony. See Adamson v. Griffin , No. 16-CV-0511 (JPO), 2016 WL 6780011, at *6 (S.D.N.Y. Nov. 16, 2016) (petitioner not entitled to habeas relief based on trial court's failure to give a missing witness charge, as petitioner did not establish that the testimony would "have been anything but cumulative as to [petitioner's] assaultive behavior," the testimony would not have addressed a material aspect of the charge in the indictment, and "[t]he trial judge, better positioned than a reviewing court to assess the issue, was well within his discretion in deciding not to give a missing witness instruction.").
Even if the trial court was required to give the missing witness charge, the absence of the charge did not infect the entire trial. During closing arguments, defense counsel highlighted that Ms. Genua did not testify during the trial, so the jury was aware of the issue. (Trial T., p. 992 (regarding the issue of intent, "we haven't heard from Miss Genua."); see also Reyes v. Miller , No. CV-04-3653(DGT), 2005 WL 3576841, at *5 (E.D.N.Y. Dec. 29, 2005) (trial court's failure to instruct on a missing witness charge did not result in violation of due process; despite the fact that the defendant was not entitled to such an instruction, he was "allowed to emphasize the witness’ absence during his closing arguments," and "[w]ith this emphasis, there is no prejudice.")). Petitioner has failed to meet the standard articulated in Cupp . See Henderson v. Griffin , No. 9:16-cv-01181-JKS, 2018 WL 840064, at *9 (N.D.N.Y. Feb. 12, 2018) (habeas relief not warranted because petitioner "fail[ed] to show that the decision of the state courts was unreasonable or contrary to federal law," and "in light of the strong evidence against him and his own admissions, [petitioner] d[id] not establish that any error in failing to issue a missing witness instruction had a substantial and injurious effect on the jury's verdict."). Accordingly, Petitioner is not entitled to habeas relief on the basis that the trial court did not give a missing witness charge.
B. The Intoxication Charge
Defense counsel also asked that the Court instruct the jury on "Intoxication Penal Law 15.25." (Trial T., p. 965). The prosecution opposed the request, as there was no evidence that Petitioner was "drunk out of his mind." (Id. ). The Court denied the defense request for an intoxication instruction. (Id. at 974). The Appellate Court found that the trial court properly denied this charge:
Defendant failed to present evidence "tending to corroborate his claim of intoxication, such as the number of drinks, the period of time during which they
were consumed, the lapse of time between consumption and the event at issue, whether he consumed alcohol on an empty stomach, whether his drinks were high in alcoholic content, and the specific impact of the alcohol upon his behavior or mental state" ( People v. Gaines , 83 N.Y.2d 925, 927 [615 N.Y.S.2d 309, 638 N.E.2d 954] [1994] ). Consequently, although "there was evidence of defendant's alcohol ... consumption, there was no evidence that could raise a reasonable doubt as to whether his faculties were so impaired at the time of the crime that he could not have formed the requisite intent" ( People v. Malaussena , 44 A.D.3d 349, 349 [2007], affd 10 N.Y.3d 904 [861 N.Y.S.2d 609, 891 N.E.2d 725] [2008] ).
People v. Barill , 120 A.D.3d at 953, 991 N.Y.S.2d 214.
"Under New York law, [i]ntoxication is not a defense to a criminal charge but may be offered by a defendant whenever it is relevant to negate an element of the crime charged.... A criminal defendant is entitled to an intoxication charge if there is sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to the element of intent on that basis." McCray v. Conway , No. 10 Civ. 5138(RJS)(GWG), 2011 WL 291698, at *7 (S.D.N.Y. Jan. 31, 2011) (internal quotation marks and citations omitted) (alteration in original), adopted , 2014 WL 5035215 (S.D.N.Y. Sept. 30, 2014). The Court has reviewed the trial transcript and agrees with the Appellate Division that Petitioner did not present evidence supporting his entitlement to an intoxication charge. While Petitioner testified that he had been drinking during the evening of September 26, 2011, he did not present any evidence that his mental capacity was affected by the alcohol he consumed. Rather, Petitioner provided detailed testimony regarding how he met Mr. Patrick and of their activities that evening, including the music they listened to and their trip to Sunoco to purchase beer. See Albanese v. Capra , No. 13-CV-5152(CS)(JCM), 2017 WL 2954401, at *4 (S.D.N.Y. July 10, 2017) (petitioner not entitled to habeas relief based on trial court's failure to give intoxication charge; witness testimony that petitioner consumed beer and drugs prior to events in question and was possibly under the influence was "not enough to suggest an inability to form the intent to commit the charged crimes ... in light of the ample evidence of the purposefulness of Petitioner's actions on the night in question."); see also Sirico v. New York Att'y Gen. , No. 12-CV-0358(SJF), 2015 WL 3743126, at *6 (E.D.N.Y. June 15, 2015) (trial court not required to give intoxication charge where petitioner testified that he "drank approximately twenty (20) ounces of Southern Comfort between 11:30 a.m. and 5:30 p.m., in addition to taking a Xanax and that he was intoxicated at the time of the shooting," and "admitted that he was ‘pretty aggravated’ and acted ‘very stupidly,’ " because petitioner "never attributed his actions to being intoxicated; rather, he unequivocally attributed the discharge of the arrow to accident[.]"). Accordingly, Petitioner is not entitled to federal habeas relief on this ground.
V. Motion to Suppress Statements
Petitioner's next argument is that the trial court failed to rule on his motion to suppress statements as the fruit of an unlawful seizure. (Dkt. 1 at 10). Respondent contends that Petitioner abandoned his motion to suppress his statements to the police on the basis that he was unlawfully seized. (Dkt. 4 at 15).
Prior to trial, Petitioner filed an omnibus motion, seeking that his statements to law enforcement be suppressed on the basis that they were obtained:
(a) while the defendant was in custody and in response to interrogation by the police, prior to the defendant's being advised of his Constitutional rights as set forth in Miranda v. Arizona , [384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)] supra. ; (b) without a knowing and intelligent waiver of rights existing under Miranda by defendant, People v. Bryant , 59 N.Y.2d 786, [464 N.Y.S.2d 729, 451 N.E.2d 476] 1983 and/or [(c)] in violation of the defendant's right to counsel under the United States Constitution and New York State Constitution, and/or (d) subsequent to and as a result of illegal seizure of the defendant, see Dunaway v. New York , 442 U.S. 200, [99 S.Ct. 2248, 60 L.Ed.2d 824] 1980.
(Petitioner's Motion to Suppress Statements, p. 1). In the alternative, Petitioner requested a hearing to enable the trial court to make findings of fact relative to his motion. (Id. at 1-2). On January 4, 2012, the trial court held a Huntley hearing. (See Huntley Hearing T., p. 2 ("Today we're here for the purpose of a Huntley Hearing.")). Petitioner did not object to the scope of the hearing. (See id. at 3). Following the Huntley hearing, the Court, at an in-person conference, ruled that Petitioner knowingly and intelligently waived his right to remain silent, and his statements were made freely and voluntarily. See January 24, 2012 Decision, p. 5. When asked at the conference if he had "anything else," defense counsel replied, "[n]othing, Judge, thank you." Id. at 6. The case proceeded to trial and there was no further request by Petitioner relative to his motion to suppress statements.
A Huntley hearing is derived from People v. Huntley , 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965), and is a pre-trial hearing in a criminal action in New York State, conducted to determine the voluntariness of statements made by a defendant.
On appeal, Petitioner contended that he had also sought suppression of his statements on the basis that he was illegally seized and the trial court had not ruled on the motion. (Exhibit B, Brief for Appellant, p. 48). The Appellate Division rejected Plaintiff's argument, explaining:
Even assuming, arguendo, that defendant initially made a sufficient motion for a Dunaway hearing merely by mentioning the name of the case in his request for a Huntley hearing (cf. People v. Jones , 95 N.Y.2d 721, 725-729 [723 N.Y.S.2d 761, 746 N.E.2d 1053] [2001] ), we conclude that defendant abandoned that request because he "failed to seek a ruling on those parts of his omnibus motion concerning the alleged [ Dunaway ] violation ... or to object to the admission of his statements in evidence at trial ... on those grounds" ( People v. Nix , 78 A.D.3d 1698, 1699 [2010], lv denied 16 N.Y.3d 799 [919 N.Y.S.2d 515, 944 N.E.2d 1155] [2011], cert denied 565 U.S. [843], 132 S. Ct. 157 [2011] ; see People v. Wright , 107 A.D.3d 1398, 1400 [2013] ; People v. Smith , 13 A.D.3d 1121, 1122 [2004], lv denied 4 N.Y.3d 803 [795 N.Y.S.2d 178, 828 N.E.2d 94] [2005] ; see generally People v. Rodriguez , 50 N.Y.2d 553, 557 [429 N.Y.S.2d 631, 407 N.E.2d 475] [1980] ).
People v. Barill , 120 A.D.3d at 953, 991 N.Y.S.2d 214. The Court has reviewed the record and finds that the determination by the Appellate Division was reasonable. Petitioner did not explain in his motion to suppress why he believed his statements should be suppressed based on an illegal seizure, or why he was entitled to a Dunaway hearing. Further, defense counsel failed to pursue suppression on this basis following the Court's decision on the motion to suppress. Because Petitioner failed to adequately raise this argument before the trial court, he cannot now raise such a claim, which he failed to pursue at the trial level.
Further, the Appellate Division's rejection of Plaintiff's claim is based on an independent and adequate state law ground, and federal habeas review of Plaintiff's claim is therefore foreclosed. "New York's doctrine of abandonment constitutes a procedural bar to addressing petitioner's constitutional claim on federal habeas corpus review." Miller v. Warden of Sing Sing Corr. Facility , No. 13-CV-4576(BMC), 2018 WL 3518503, at *1-2 (E.D.N.Y. July 20, 2018) (where petitioner claimed that the trial court never resolved his pro se motion for appointment of new counsel, but after filing his motion, proceeded to trial with his original counsel, Appellate Division's holding that Petitioner had abandoned his Sixth Amendment claim "constitue[d] an independent and adequate state court ground that is firmly established and regularly followed."), aff'd , 803 F. App'x 493 (2d Cir. 2020) ; see also Davila v. Duncan , No. 00CIV.4916(GEL), 2001 WL 1029416, at *4 (S.D.N.Y. Sept. 6, 2001) (" ‘[F]ederal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim.’ ") (quoting Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) ). As explained in Miller :
A federal court should not address the merits of a petitioner's habeas claim if a state court has rejected the claim on "a state law ground that is independent of the federal question and adequate to support the judgment." When a state court rejects a petitioner's claim because he failed to comply with a state procedural rule, that procedural rule may constitute an adequate and independent state law ground for the state court's decision. State law procedural grounds are only adequate to support the judgment—and therefore foreclose federal review—if they are "firmly established and regularly followed" in the state.
2018 WL 3518503, at *1 (internal citations omitted). The procedural ground on which the Appellate Division dismissed Plaintiff's claim—i.e. , that Petitioner had abandoned his argument that his statements should be suppressed based on an unlawful seizure—is firmly established and regularly followed. To that end, "[n]umerous cases in the Appellate Divisions have specifically held that if a criminal defendant files a motion and then takes no action to pursue it, but instead goes forward with his trial, the motion is deemed abandoned." Id. at *2. See, e.g., People v. Smith , 13 A.D.3d 1121, 1122, 786 N.Y.S.2d 879 (4th Dep't 2004) ("Even assuming, arguendo, that defendant sought suppression of the weapon, we would nevertheless conclude that she abandoned her contention that the court erred in failing to conduct a hearing with respect to the weapon inasmuch as she did not obtain a ruling on her suppression motion, nor did she object when the weapon was admitted in evidence at trial."); see also People v. Smikle , 1 A.D.3d 883, 884, 767 N.Y.S.2d 727 (4th Dep't 2003) ("Defendant abandoned his motion to suppress the evidence seized from his apartment, however, and thus his contention is not properly before us[.]").
Despite Petitioner's abandonment of his claim, the Court may reach the merits if Petitioner "can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Scott v. Graham , No. 16-CV-2372(KPF)(JLC), 2017 WL 2820061, at *7 (S.D.N.Y. June 29, 2017) (internal quotation marks and citation omitted), adopted , 2018 WL 5257613 (S.D.N.Y. Oct. 22, 2018) ; see also Bossett , 41 F.3d at 829 ("Federal courts may address the merits of a claim that was procedurally defaulted in state court only upon a showing of cause for the default and prejudice to the petitioner."). "Cause may be demonstrated with ‘a showing that the factual or legal basis for a claim was not reasonably available to counsel, ... or that ‘some interference by state officials’ made compliance impracticable, ... [or that] the procedural default is the result of ineffective assistance of counsel.’ " Id. (quoting Murray v. Carrier , 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) ) (alterations in original). A "miscarriage of justice ... is demonstrated in extraordinary cases, such as where a constitutional violation results in the conviction of someone who is actually innocent." Miller , 2018 WL 3518503, at *2. Neither of these considerations apply in this case, and Petitioner has not shown that he was prejudiced by the trial court's failure to issue a ruling on his motion, nor can he show that it resulted in a miscarriage of justice. For all these reasons, Petitioner is not entitled to federal habeas relief on the basis that the trial court failed to rule on his motion to suppress.
VI. The Severity of Petitioner's Sentence
Petitioner further contends that his sentence was "inordinately harsh and excessive and must be modified in the interest of justice." (Dkt. 1 at 10). "Although ‘New York's Appellate Division has discretion to reduce a sentence in the interest of justice, a federal habeas court considering a state-court conviction has no such power, and a claim that a sentence should be reduced in the interest of justice does not allege a violation of a federally protected right.’ " Rodriguez v. Bell , No. 19-cv-3218 (KAM), 2020 WL 999870, at *4 (E.D.N.Y. Mar. 2, 2020) (quoting Baide-Ferrero v. Ercole , No. 06-CV-6961 (RJS), 2010 WL 1257615, at *4 (S.D.N.Y. Mar. 31, 2010) ). Accordingly, Petitioner is not entitled to federal habeas relief on this ground.
The Court may construe Petitioner's claim as alleging an Eighth Amendment violation. See, e.g., Rodriguez , 2020 WL 999870, at *4 ("The Court could liberally construe [the petitioner's] petition as alleging that the sentence imposed is ‘grossly disproportionate to the severity of the crime.’ "). "The Eighth Amendment forbids only extreme sentences that are grossly disproportionate to the crime.... As the Supreme Court has itself observed, outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare." United States v. Snype , 441 F.3d 119, 152 (2d Cir. 2006) (internal quotations and citations omitted).
"Where a petitioner's sentence falls within the range prescribed by state law, federal courts will recognize no federal constitutional issue.... This rule applies even if the sentence imposed constitutes the maximum term permissible under the statute." Willard v. New York , No. 08-CV-1525(JS), 2009 WL 4823365, at *5 (E.D.N.Y. Dec. 4, 2009) (internal citations omitted); see also Brito v. Keyser , No. 19 Civ. 4197 (VEC)(GWG), 2020 WL 236697, at *9 (S.D.N.Y. Jan. 15, 2020) ("While the Eighth Amendment prohibits the imposition of a sentence that is ‘grossly disproportionate to the severity of the crime,’ ... the Second Circuit has stated that ‘[n]o federal constitutional issue is presented where ... the sentence is within the range prescribed by state law.’ ") (internal citations omitted) (alteration in original), adopted , 2020 WL 995826 (S.D.N.Y. Mar. 2, 2020) ; Herrera v. Artuz , 171 F. Supp. 2d 146, 151 (S.D.N.Y. 2001) ("It is well settled that when a sentence is in accord with the range established by state statutory law there is no constitutional issue presented for habeas review."). Plaintiff does not contend that his sentence exceeds what is permitted by New York law. The trial court imposed a sentence of 25 years to life, which is within the range prescribed by New York law. See N.Y. Penal Law § 125.25 (murder in the second degree is a Class A-1 felony); id. at § 70.00(2)(a), (3)(a)(i) (maximum term of sentence for Class A felony is life imprisonment, and minimum period of imprisonment for Class A-1 felony is between 15 to 25 years); see also Alvarado Ajcúc v. New York , No. 18-CV-00183, 2019 WL 3409515, at *6 (E.D.N.Y. July 29, 2019) (holding that petitioner's excessive sentence claim did not present any grounds for federal habeas relief, where petitioner was sentenced to two indeterminate terms of 25 years to life, to be served concurrently, for his convictions on two counts of murder in the second degree).
Further, based on the evidence presented at trial relating to the conduct forming the basis of Petitioner's offense, the Court does not find that the trial court's sentencing decision was grossly disproportionate to the severity of the crime. In other words, this is not one of those "extraordinary circumstances" in which the trial court's sentencing decision "amounted to an improper, ‘arbitrary or capricious abuse of discretion’ that deprived the petitioner of his liberty." Herrera , 171 F. Supp. 2d at 151 (citations omitted). Plaintiff has failed to demonstrate that he is entitled to federal habeas relief on this ground.
VII. Ineffective Assistance of Counsel
Petitioner's second argument, i.e. , the integrity of the grand jury was compromised, also raises an issue relating to ineffective assistance of counsel. (See Dkt. 1 at 9 ("The integrity of the grand jury was impaired by the failure to charge justification in the grand jury, and Petitioner was denied his fundamental right to the effective assistance of counsel....")).
"The Sixth Amendment requires effective assistance of counsel at critical stages of a criminal proceeding." Lafler v. Cooper , 566 U.S. 156, 165, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). "Pursuant to the well-known two-part test of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a habeas petitioner alleging ineffective assistance of counsel ‘must demonstrate (1) that his counsel's performance fell below what could be expected of a reasonably competent practitioner; and (2) that he was prejudiced by that substandard performance.’ " Woodard v. Chappius , 631 F. App'x 65, 66 (2d Cir. 2016) (quoting Pearson v. Callahan , 555 U.S. 223, 241, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ). In attempting to satisfy Strickland's two-part test, a petitioner faces a "heavy burden." Eze v. Senkowski , 321 F.3d 110, 112 (2d Cir. 2003). As explained by the Second Circuit in Berry v. Ercole , 391 F. App'x 87 (2d Cir. 2010) :
"To satisfy the first prong—the performance prong—the record must demonstrate that ‘counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.’ " Wilson v. Mazzuca, 570 F.3d 490, 502 (2d Cir. 2009) (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052 ). As to the prejudice prong, "[t]he defendant must show that there is 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, 104 S.Ct. 2052. As a general matter, however, there is a "strong presumption" that the attorney in question provided, if not ideal representation, then at least competent assistance, which obligates the reviewing court to adopt a deferential posture.
Id. at 89.
Where a state court has rejected the ineffective assistance of counsel claim, a "doubly deferential standard of review that gives both the state court and the defense attorney the benefit of the doubt" applies on federal habeas review. Burt v. Titlow , 571 U.S. 12, 15, 134 S.Ct. 10, 187 L.Ed.2d 348 (2013). "[T]he burden to show that counsel's performance was deficient rests squarely on the defendant.... [T]he absence of evidence cannot overcome the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance." Id. at 22-23, 134 S.Ct. 10 (quotations and original alterations omitted). Here, the trial court rejected Petitioner's ineffective assistance of counsel claim, see Exhibit E (denying Petitioner's motion filed pursuant to CPL § 440.10, in which he argued defense counsel was ineffective) and the Appellate Court denied leave to appeal. Therefore, the "doubly deferential" standard of review applies.
Petitioner does not offer any specific explanation as to why he believes his trial counsel was ineffective. (See Dkt. 1 at 9). However, in his CPL § 440.10 motion, Petitioner argued that his attorney was ineffective for the following reasons: (1) he failed to preserve his legal sufficiency of the evidence claim by renewing his motion for a trial order of dismissal; (2) he failed to object to the prosecutor's summation on the ground that the prosecutor had expressed his personal belief with respect to the evidence; (3) he advised Petitioner to reject a plea offer to manslaughter in the first degree and go to trial; (4) he failed to challenge a juror who knew both the Petitioner's sister and the wife of a prosecution witness; (5) he failed to call a medical expert; and (6) he failed to challenge the integrity of the grand jury. (See Exhibit E).
The Court has reviewed the transcript of all the proceedings and concludes that Petitioner's claims do not satisfy the two-part Strickland test. Putting aside that Petitioner has failed to sufficiently articulate why his attorney's performance fell below what could be expected of a reasonably competent practitioner, he does not explain how the outcome of his case would have been different, had his attorney taken a majority of these actions. See King v. Greiner , 453 F. App'x 88, 90 (2d Cir. 2011) ("Without addressing whether counsel was deficient in failing to object to the prosecutor's second summation, we conclude that King cannot prevail on his ineffective assistance of counsel claim because he has not demonstrated a substantial likelihood that, but for counsel's allegedly deficient performance, the result of the proceeding would have been different."). For example, Petitioner does not identify any medical expert whose testimony would have changed the outcome of the case. Further, both the Appellate Division and this Court have addressed Petitioner's sufficiency of the evidence claim and considered alleged misconduct by the prosecutor. For the reasons explained above, the Court finds that trial counsel's performance did not fall below what could be expected of a reasonably competent practitioner by allegedly failing to take such actions.
The Court has reviewed the transcript of the jury selection and finds that defense counsel's performance was not deficient when he failed to challenge a juror who knew both Petitioner's sister and the wife of a prosecution witness. (See Trial T., pp. 13-16). The juror informed the Court that she lived in the same town as Petitioner's sister, did not know her personally, but "kn[ew] who she [was]." (Id. at 13). With regard to the police officer's wife, the juror said, "[a]gain, it's a small town, I know his wife." (Id. at 15). When asked by the Court if she could still be a juror in the case, "listen to the testimony carefully and not automatically give someone either credit or demerits just because of their uniform or because you know them," the juror confirmed that she could serve. (Id. ). Because there was no indication that the juror would have been influenced by the fact that she knew these individuals, defense counsel's decision not to challenge the ability to the juror to serve was not deficient.
Regarding Petitioner's allegation that his attorney advised him to reject a plea to manslaughter and go to trial, "[t]o demonstrate the requisite prejudice in the context of pre-trial plea discussions, a habeas petitioner must proffer a prima facie case that, ‘but for counsel's deficient performance, he would have pled guilty instead of going to trial.’ " Pierce v. United States , No. 5:12-CV-1777 (NAM), 2015 WL 13843362, at *4 (N.D.N.Y. Feb. 10, 2015) (quoting Raysor v. United States , 647 F.3d 491, 495 (2d Cir. 2011) ). Petitioner has failed to make this showing; for example, he does not allege that defense counsel misinformed him of the facts or law and that this misinformation caused him to reject the plea offer. Rather, the record demonstrates that Petitioner was aware of the plea offer to manslaughter in the first degree with a determinate sentence of 25 years. The plea offer was discussed on the record at the Huntley Hearing (see Huntley Hearing, p. 3 ("[Defense counsel] has informed me that his client is not interested in accepting any plea in this case and just for the record to be clear that once we start this that will not be offered again.")), and Petitioner did not object to counsel's representations regarding the plea offer. Prior to the commencement of jury selection, defense counsel again confirmed his client's position that he was not interested in a plea to manslaughter, and Petitioner did not object to this representation. (Trial T., p. 2).
The Court has considered Petitioner's remaining claims offered in support of his contention that he was deprived of effective assistance of trial counsel and finds them without merit. Petitioner was convicted of murder in the second degree following a trial at which he received effective representation from an experienced practitioner. Simply because Petitioner was convicted does not mean that trial counsel's representation was deficient. After considering both the effective representation received by Petitioner, coupled with the "doubly deferential" standard of review, the Court concludes that Petitioner is not entitled to federal habeas relief on this ground.
CONCLUSION
For the foregoing reasons, the Court denies the Petition for Writ of Habeas Corpus (Dkt. 1). The Clerk of Court is instructed to close this case. Further, because Petitioner has not made "a substantial showing of the denial of a constitutional right," see 28 U.S.C. § 2253(c)(2), the Court declines to issue a certificate of appealability.
SO ORDERED.