Opinion
20 Civ. 8725 (PMH)(JCM)
03-14-2024
MARCUS BLACK, Petitioner, v. J. JOHNSON, ACTING SUPERINTENDENT, GREEN HAVEN CORRECTIONAL FACILITY, Respondent.
REPORT AND RECOMMENDATION
HONORABLE PHILIP M. HALPERN, UNITED STATES DISTRICT JUDGE
On October 10, 2020,Marcus Black (“Petitioner”), proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (“Petition”). (Docket No. 1). The District Attorney of Dutchess County, on behalf of J. Johnson, the Acting Superintendent of Green Haven Correctional Facility, (“Respondent” or the “State”), opposed the Petition on January 13, 2021. (Docket Nos. 9, 10). Petitioner filed a reply on December 17, 2023. (Docket No. 31). For the reasons set forth below, I respectfully recommend denying the Petition.
A pro se prisoner's papers are deemed filed at the time he or she delivers them to prison authorities for forwarding to the court clerk. See Houston v. Lack, 487 U.S. 266, 276 (1988); Walker v. Jastremski, 430 F.3d 560 (2d Cir. 2005) (analyzing the “Houston prison mailbox rule”). Petitioner certified that his Petition was delivered to the prison authorities for mailing on October 10, 2020. (Docket No. 1 at 15). Consequently, and because the timeliness of the Petition is not challenged, the Court adopts Petitioner's date for this filing and all other filings discussed herein.
I. BACKGROUND
A. The Crimes
Petitioner's conviction stems from incidents that occurred on December 11, 2014, and May 6, 2015.(See Trial Tr.at 30-31). On the night of December 11, 2014, Christian Pulst III (“Christian”) heard a loud bang in his living room, which he attributed to his father (“Mr. Pulst”). (Id. at 189). In the morning, Mr. Pulst discovered that his back door was kicked in and his Daisy BB gun was missing. (See id. at 191-200). The police responded to the scene of the crime but did not collect evidence due to a miscommunication. (Id. at 209-12).
The Court construes the evidence presented at trial in the light most favorable to the state. See, e.g., Murden v. Artuz, 497 F.3d 178, 184 (2d Cir. 2007).
“Trial Tr.” refers to the transcript of Petitioner's trial, held from December 6 through December 9, 2016. (Docket Nos. 9-17, 9-18, 9-19).
Separately, on the evening of May 6, 2015, Jeffrey Begor (“Mr. Begor”) returned home from working late and discovered that his porch door had been kicked in, and he had been robbed. (Id. at 42-43). The burglars stole a framed display of Confederate money, a $500 Confederate bond, and a bag containing numerous watches, including a Mickey Mouse watch. (Id. at 43-62). The police responded to the scene, interviewed Mr. Begor, photographed the kicked-in door, and took inventory of the missing items. (Id. at 110-11).
Earlier on May 6, video surveillance caught Petitioner and an accomplice, Shawn Williams (“Williams”), entering Deetor's Trading store where they tried to sell a bag of watches and Confederate money to the store manager, Michael Kuletsky (“Kuletsky”). (Id. at 77-78, 295). Kuletsky could not tell “if [they were] real or fake,” so he did not buy them. (Id. at 81). Petitioner then handed him “a Mickey Mouse watch,” which Kuletsky thought was “a little suspicious,” so he asked Petitioner for identification. (Id. at 82-83). Petitioner left without presenting any identification. (Id. at 84). However, Petitioner returned shortly thereafter with a woman, Elisa Torres (“Torres”), who handed Kuletsky identification. (Id. at 86-87). The identification was of an individual named “Alyssa Feldmann.” (Id.). Kuletsky looked at the identification, and said “what am I, an idiot? This ain't you. I know this girl. This ain't you,” and told them to leave. (Id. at 87). Thirty minutes later, Williams and Torres sold a bag of watches, a gold men's ring and a gold cross to Arlington Exchange, another store on the same street as Deetor's Trading. (Id. at 137-43). Unlike at Deetor's Trading, Torres was able to use Alyssa Feldmann's identification to complete the transaction. (Id.).
Realizing that the two burglaries may have been committed by the same perpetrators, Detective Adam Harris, sometime between May 6 and May 15, 2015, told Arlington Exchange to be on the lookout “for some American paper currency [from the] 1800s ....” (Id. at 144). On May 15, 2015, Williams sold “[s]ix Confederate notes, [and] one Confederate [bond] for $500,” to Arlington Exchange. (Id. at 146-47). Detective Harris arrested Williams outside the store and secured the Confederate money. (Id. at 154-55). Mr. Begor confirmed that the money was the same money stolen from his home. (Id. at 300). Detective Harris then interviewed Williams, who told him that Petitioner accompanied him to Deetor's Trading to try and sell the stolen goods. (Id. at 298).
On May 28, 2015, the police executed a search warrant on Petitioner's residence, took him into custody, and read him his Miranda rights. (Id. at 301-04, 318-19). The police recovered and inspected Petitioner's cellphone, which revealed a picture of the framed Confederate money captured at 10:59 a.m. on May 6, 2015. (Id. at 122-30). While at the residence, the police interviewed Torres, who lived with Petitioner. (Id. at 232, 305-06). She confessed to having Alyssa Feldmann's license and a frame that held Confederate money. (Id. at 306-09). In response to a question about whether there were firearms in the home, she told the police there was a BB gun that she and Petitioner stole from a house in LaGrange, New York. (Id. at 307-08). At this time, the police did not realize Torres was referring to the Pulst burglary. (Id. at 307, 338).
The police also interrogated Petitioner. During the interrogation, Petitioner gave them “information that was all new” to them about an unrelated burglary. (Id. at 335-36). After the interview, Petitioner rode with the police to the site of this unrelated burglary. (Id. at 334-38). Petitioner directed their attention to the Pulst residence. (Id. at 338). Police later realized that the burglary Torres told them about was the Pulst burglary that was committed on December 11, 2014. (Id. at 274-79).
On May 31, 2016, based on the evidence from the Pulst and Begor burglary investigations, Petitioner was indicted in the Supreme Court of the State of New York, Dutchess County, for Fourth Degree Criminal Possession of Stolen Property and Second Degree Burglary. (Docket No. 9-2).
B. The Pre-Trial Motion, Trial and Sentence
Prior to trial, Petitioner moved to suppress the statements he made to the police on May 28, 2015. (Docket No. 9-9). The State opposed the motion, (Docket No. 9-10), and the court held a pre-trial hearing on the matter, (see Pre-Trial Hr'g Tr.). At the hearing, Detective Harris testified that he arrested Petitioner on May 28, 2015, at 1:15 a.m. for his involvement in the Begor burglary. (Id. at 35-41, 88-89). Detective Harris explained that he took Petitioner into custody, and “read [his] Miranda card . . . [to] administer[] the Miranda warnings to [Petitioner].” (Id.).
“Pre-Trial Hr'g Tr.” refers to the transcript of Petitioner's combined Dunaway, Huntley and Wade hearing, held on October 20 and October 21, 2016. (Docket No. 9-12). In New York, “[t]he purpose of a Wade hearing is to determine before trial whether pre-trial identification procedures have been so improperly suggestive as to taint an in-court identification.” Andrews v. LeClaire, 709 F.Supp.2d 269, 278 (S.D.N.Y. 2010) (citing United States v. Wade, 388 U.S. 218 (1967)). A Huntley hearing is held pursuant to People v. Huntley, 15 N.Y.2d 72 (N.Y. 1965), to determine the admissibility of statements made at the time of arrest. See Haywood v. Portuando, 288 F.Supp.2d 446, 450 (S.D.N.Y. 2003). And in a Dunaway hearing, a trial court considers whether “intervening events broke the connection between [a] petitioner's illegal detention and his confession.” Dunaway v. N.Y., 442 U.S. 200, 219 (1979).
After arresting Petitioner, Detective Harris brought him to police headquarters and left him in a holding cell while the police executed a search warrant on his residence. (Id. at 42-43, 79). Two hours later, Detective Harris resumed interrogating Petitioner, but he did not issue a second Miranda warning. (Id. at 80). Petitioner testified that he was “willing to” talk since he was assisting police with an unrelated caseand was not “being arrested.” (Id. at 95, 110). Petitioner “was aware of the stolen property, [took] responsibility for [it], but [denied] involve[ment] in any burglaries whatsoever.” (Id. at 42). At no time during the questioning did Petitioner invoke his right to counsel. (Id. at 40-42).
Petitioner was referencing his role “assisting [an assistant district attorney] . . . on matters not involved with this case.” (Id. at 95, 111-12).
Detective Harris attempted to record the interview, but Petitioner felt “[un]comfortable” and did not want his interview publicized, so they moved to a different room. (Id. at 81, 94-96). In the second room, without Petitioner's knowledge or consent, Detective Harris hid a “recording device” to capture audio of the interview, which was played at the hearing. (Id. at 80-83).
During the interview, Detective Harris lied to Petitioner, saying Kuletsky was his cousin, that he had video footage of Petitioner at the Begor residence, and Petitioner could help himself since his accomplices were already in custody. (Trial Tr. at 334, 365). Petitioner also made “several admissions regarding [the Begor] burglary....” (Pre-Trial Hr'g Tr. at 67-68).
Based on this testimony, the court denied Petitioner's motion to suppress. (Docket No. 915 at 3). The court held that Petitioner's statements were made “voluntarily,” that he was “properly advised of his Miranda rights, that he understood those rights, and that he knowingly and intelligently waived [those] rights before giving his statements to the detectives.” (Id.).
The case proceeded to trial, which began on December 6, 2016. For the Pulst burglary, Torres testified that she told “[Petitioner] that [Mr. Pulst] is almost completely deaf and he lives . . . on a private, dark, [sic] road, and that it would probably be an easy thing to do.” (Trial Tr. at 238-39). Torres testified that she drove Petitioner, Williams, and another man to the Pulst house, and saw that they brought back “two BB guns and a long gun.” (Id. at 239-46). Police further testified that Petitioner told them about the burglary, and readily identified the Pulst residence. (Id. at 338). For the Begor burglary, police testified that video cameras placed Petitioner in Deetor's Trading attempting to sell goods stolen from Mr. Begor, (id. at 298), and Kuletsky corroborated that testimony, explaining that Petitioner tried to sell Mr. Begor's items to him at the store, (id. at 80-84). In addition, through photographs recovered from Petitioner's cellphone, physical evidence found in Petitioner's home, and testimony from Mr. Begor, the prosecution established that the items Petitioner attempted to sell at Deetor's Trading were the same items stolen from Mr. Begor's home the night of the burglary. (Id. at 415-19).
When the prosecution rested, Petitioner made a generalized motion to dismiss the charges because the prosecution “ha[d] failed to establish a legally sufficient case for each and every element of the charges contained therein.” (Id. at 374-75). The prosecution opposed the motion, and the court denied it. (Id. at 375-77). Petitioner did not call any witnesses in his defense, (see id. at 378), and the jury convicted Petitioner of Second Degree Burglary and Fourth Degree Criminal Possession of Stolen Property, (id. at 473-74).
Prior to Petitioner's sentencing, pursuant to N.Y. Penal Law § 70.08 and New York Criminal Procedure Law (“C.P.L.”) § 400.16, the State filed a Persistent Violent Felony Offender Statement for Petitioner's Second Degree Burglary conviction. (Docket No. 9-20). The court conducted a pre-sentence hearing, at which time the Division of Criminal Justice Services and the Department of Corrections and Community Supervision testified. (See Docket No. 9-23). The court held that Petitioner was a persistent violent felony offender, (id. at 48-49), which resulted in a sentencing range of between sixteen and twenty-five years to life, see N.Y. Penal Law §§ 60.05(6), 70.08(2)-(3)(b). On March 30, 2017, the court sentenced Petitioner to an indeterminate term of twenty-five years to life for Second Degree Burglary to run consecutively to his indeterminate term of two to four years for Fourth Degree Criminal Possession of Stolen Property. (Sentencing Tr. at 13-14).
“Sentencing Tr.” refers to Petitioner's sentencing on March 30, 2017. (Docket No. 9-27).
C. Direct Appeal
On June 1, 2018, Petitioner appealed his conviction to the Supreme Court of the State of New York, Appellate Division, Second Judicial Department (“Second Department”). (Docket No. 9-28). Petitioner argued that (1) his sentence was excessive; (2) there was insufficient evidence to support his burglary conviction; and (3) his statements should be suppressed as they were (i) coerced, (ii) made after the police should have known Petitioner was represented by counsel, and (iii) made without Petitioner's knowledge of his Miranda rights. (Id. at 4-5). Petitioner further maintained that if the court suppressed his statements, then there would be “no independent basis on which to convict [Petitioner] of burglary.” (Id. at 5). The State opposed the appeal, (Docket No. 9-29), and the Second Department upheld Petitioner's conviction on May 8, 2019, People v. Black, 100 N.Y.S.3d 77 (2d Dep't 2019). The Second Department ruled that Petitioner did not preserve his legal sufficiency claim for appeal, and upheld the trial court's denial of his motion to suppress. Id. at 79. However, the court reduced Petitioner's burglary sentence to twenty years to life, to run concurrently with his criminal possession of stolen property sentence. Id. at 78.
On May 16, 2019, Petitioner filed for leave to appeal the Second Department's decision to the New York Court of Appeals (“Court of Appeals”), (Docket No. 9-33), which was denied on July 17, 2019, People v. Black, 106 N.Y.S.3d 662 (N.Y. 2019).
D. Federal Habeas Corpus Proceedings
On October 10, 2020, Petitioner filed the instant Petition for a writ of habeas corpus. (Docket No. 1 at 15). On July 14, 2023, Petitioner moved for a stay and abeyance so that he could pursue a C.P.L. § 440.10 motion, (Docket Nos. 16-17), but he then withdrew it, requesting instead to amend his Petition and for an extension of time to reply to Respondent's opposition to his Petition, (Docket Nos. 19-20). The Court denied Petitioner's motion to amend because the claim he sought to add was already included in the Petition, but granted the requested extension. Black v. Johnson, No. 20 Civ. 8725 (PMH)(JCM), 2023 WL 6318304, at *2-3 (S.D.N.Y. Sept. 28, 2023).
The Petition includes the same three grounds for relief as in his direct appeal: (1) his statements to the police on May 28, 2015, should be suppressed; (2) his sentence is excessive; and (3) there is insufficient evidence to support his burglary conviction. (Docket No. 1 at 5, 1617). In response, the Respondent argues: (1) the trial court did not err in denying Petitioner's motion to suppress; (2) his sentence does not violate the Eighth Amendment; (3) Petitioner's insufficient evidence claim cannot be reviewed; and, in any event, (4) there was sufficient evidence to support Petitioner's burglary conviction. (See Docket No. 10 at 2-3).
II. APPLICABLE LAW
“The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996” (“AEDPA”). Harrington v. Richter, 562 U.S. 86, 97 (2011). “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.” Visich v. Walsh, No. 10 Civ. 4160 (ER) (PED), 2013 WL 3388953, at *9 (S.D.N.Y. July 3, 2013). The procedural and substantive standards are summarized below.
If Petitioner does not have access to cases cited herein that are available only by electronic database, then he may request copies from Respondent's counsel. See Local Civ. R. 7.2 (“Upon request, counsel shall provide the pro se litigant with copies of such unpublished cases and other authorities as are cited in a decision of the Court and were not previously cited by any party.”).
A. Exhaustion as a Procedural Bar
A habeas petition may not be granted unless the petitioner has exhausted his claims in state court. See 28 U.S.C. § 2254(b). As the statute prescribes:
(b)(1) 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 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 State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant. ...
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.28 U.S.C. § 2254(b)-(c).
Exhaustion requires a prisoner to have “fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts.” Turner v. Artuz, 262 F.3d 118, 123 (2d Cir. 2001) (internal quotations omitted). If a petitioner “cites to specific provisions of the U.S. Constitution in his state court brief, the petitioner has fairly presented his constitutional claim to the state court.” Davis v. Strack, 270 F.3d 111, 122 (2d Cir. 2001); see also Reid v. Senkowski, 961 F.2d 374, 376 (2d Cir. 1992) (even “a minimal reference to the Fourteenth Amendment” presents a federal constitutional claim to the state courts). A petitioner may fairly present his claim even without citing to the U.S. Constitution, by, inter alia: “(a) [relying] on pertinent federal cases employing constitutional analysis, (b) [relying] on state cases employing constitutional analysis in like fact situations, (c) [asserting] . . . [a] claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) [alleging] . . . a pattern of facts that is well within the mainstream of constitutional litigation.” Daye v. Attorney Gen. of State of N.Y., 696 F.2d 186, 194 (2d Cir. 1982). Fair presentation includes petitioning for discretionary review in the state's highest appellate court. See O'Sullivan v. Boerckel, 526 U.S. 838, 839-40 (1999) (“[A] state prisoner must present his claims to a state supreme court in a petition for discretionary review in order to satisfy the exhaustion requirement”).
However, “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 quotations omitted). In such cases, although the claim is technically unexhausted, the district court may deem the claim to be exhausted but procedurally barred from habeas review. See id. at 140 (“[A] claim is procedurally defaulted for the purposes of federal habeas review where ‘the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.'”) (quoting Coleman v. Thompson, 501 U.S. 722, 735 (1991)).
Under New York law, defendants are permitted only one direct appeal. See Dasney v. People of the State of New York, No. 15-cv-5734 (RJS), 2017 WL 253488, at *5 (S.D.N.Y. Jan. 19, 2017) (citing N.Y. Ct. App. R. § 500.20); see also Roa v. Portuondo, 548 F.Supp.2d 56, 78 (S.D.N.Y. 2008) (“Any attempt to raise these claims at this stage as part of a direct appeal would be rejected because a criminal defendant is entitled to only one direct appeal and one application for leave to appeal to the Court of Appeals.”). Petitioners must raise record-based claims by direct appeal rather than by a collateral motion in state court. See, e.g., O'Kane v. Kirkpatrick, No. 09 Civ. 05167 (HB)(THK), 2011 WL 3809945, at *7 (S.D.N.Y. Feb. 15, 2011) (“[A]ll claims that are record-based must be raised in a direct appeal. . . . It is only when a defendant's claim hinges upon facts outside the trial record, that he may collaterally attack his conviction by bringing a claim under CPL § 440.10.”), report and recommendation adopted, 2011 WL 3918158 (S.D.N.Y. Aug. 25, 2011); Lowman v. New York, No. 09-CV-0058T (MAT), 2011 WL 90996, at *9 (W.D.N.Y. Jan. 11, 2011) (“Collateral review of this claim-by way of another CPL § 440 motion-is also barred because the claim is a matter of record that could have been raised on direct appeal, but unjustifiably was not.”) (citing N.Y. C.P.L. § 440.10(2)(c)).
This rule states, in relevant part, that a letter application for leave to appeal “shall indicate . . . (2) that no application for the same relief has been addressed to a justice of the Appellate Division, as only one application is available.” N.Y. Ct. App. R. 500.20(a) (emphasis added).
N.Y. C.P.L. § 440.10(2)(c) states, in relevant part, that a court must deny a § 440.10 motion to vacate judgment when “[a]lthough sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him. . . .”
To avoid the procedural default of an unexhausted claim, a petitioner may show “cause for the default and prejudice, or that failure to consider the claim will result in miscarriage of justice, i.e., the petitioner is actually innocent.” Sweet v. Bennett, 353 F.3d 135, 141 (2d Cir. 2003).
B. Adequate and Independent State Grounds as a Procedural Bar
“It is well established that federal courts will not review questions of federal law presented in a habeas petition when the state court's decision rests upon a state-law ground that ‘is independent of the federal question and adequate to support the judgment.'” Cone v. Bell, 556 U.S. 449, 465 (2009) (quoting Coleman, 501 U.S. at 729). This preclusion applies even if the state court alternatively rules on the merits of the federal claim, so long as there is an adequate and independent state ground that would bar the claim in state court. See, e.g., Harris v. Reed, 489 U.S. 255, 264 n.10 (1989); accord Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999).
“A state court decision will be ‘independent' when it ‘fairly appears' to rest primarily on state law.” Taylor v. Connelly, 18 F.Supp.3d 242, 253 (E.D.N.Y. 2014) (quoting Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir. 2006)). Typically, a ground is adequate “only if it is based on a rule that is ‘firmly established and regularly followed' by the state in question.” Garcia, 188 F.3d at 77 (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)); see also Cotto v. Herbert, 331 F.3d 217, 239 (2d Cir. 2003). A decision that a state procedural rule is inadequate should not be made “lightly or without clear support in state law.” Garcia, 188 F.3d at 77 (internal quotations omitted). However, “there are ‘exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question.'” Cotto, 331 F.3d at 240 (quoting Lee v. Kemna, 534 U.S. 362, 376 (2002)). In determining whether a case is “exceptional” in that the state ground should be held inadequate, the Second Circuit uses the following factors as “guideposts”:
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had substantially complied with the rule given the realities of trial, and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.Id. (internal quotations omitted).
To avoid a procedural default based on independent and adequate state grounds, a petitioner must “show ‘cause' for the default and ‘prejudice attributable thereto,' . . . or demonstrate that failure to consider the federal claim will result in a ‘fundamental miscarriage of justice.'” Harris, 489 U.S. at 262 (quoting Murray v. Carrier, 477 U.S. 478, 485, 495 (1986)).
C. AEDPA Standard of Review
When a federal court reaches the merits of a habeas petition, AEDPA prescribes a “highly deferential” standard for reviewing state court rulings. Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997); see also Fischer v. Smith, 780 F.3d 556, 561 (2d Cir. 2015). An application for a writ of habeas corpus:
shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d)(1)-(2).
Courts have interpreted the phrase “adjudicated on the merits” in AEDPA as meaning that a state court “(1) dispose[d] of the claim on the merits, and (2) reduce[d] its disposition to judgment.” Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001) (internal quotations omitted). Courts examine the “last reasoned decision” by the state courts in determining whether a federal claim was adjudicated on the merits. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (“Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.”).
If a state court adjudicates a federal claim on the merits, the Court must apply AEDPA deference to that state court ruling. 28 U.S.C. § 2254(d)(1)-(2). In the context of AEDPA deference, the phrase “clearly established Federal law” means “the holdings, as opposed to the dicta, of [the Supreme Court of the United States'] decisions as of the time of the relevant statecourt decision.” Williams v. Taylor, 529 U.S. 362, 365 (2000). “A state court decision is contrary to such clearly established federal law if it ‘applies a rule that contradicts the governing law set forth in the Supreme Court's cases' or ‘if the state court confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from its precedent.'” Lewis v. Conn. Comm'r of Corr., 790 F.3d 109, 121 (2d Cir. 2015) (quoting Boyette v. Lefevre, 246 F.3d 76, 90 (2d Cir. 2001)). A state court decision involves an “unreasonable application” of Supreme Court precedent if: (1) “the state court identifies the correct governing legal rule from [Supreme Court] cases but unreasonably applies it to the facts of the particular state prisoner's case,” or (2) “the state court 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.” Williams, 529 U.S. at 407.
If, by contrast, a state court does not adjudicate a federal claim on the merits, “AEDPA deference is not required . . . [and] conclusions of law and mixed findings of fact and conclusions of law are reviewed de novo.” DeBerry v. Portuondo, 403 F.3d 57, 66-67 (2d Cir. 2005).
For a federal court to find a state court's application of Supreme Court precedent unreasonable, the state court's decision must have been more than “incorrect or erroneous” -- it must have been “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003). In other words, “[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of [the state court's] decision.” Richter, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 665 (2004)). However, “the trial court's decision need not teeter on ‘judicial incompetence' to warrant relief under § 2254(d).” Alvarez v. Ercole, 763 F.3d 223, 229 (2d Cir. 2014) (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)). If a state court decision does not contain reasons for the dismissal of a defendant's federal claim, the Court must “consider ‘what arguments or theories . . . could have supported[] the state court's decision,' and may grant habeas only if ‘fairminded jurists could [not] disagree that those arguments or theories are inconsistent with the holding in a prior decision of' the Supreme Court.” Lynch v. Superintendent Dolce, 789 F.3d 303, 311 (2d Cir. 2015) (alterations in original) (quoting Richter, 562 U.S. at 102).
When reviewing an application for a writ of habeas corpus, “a determination of a factual issue made by a State court shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). The petitioner has the burden of rebutting the state court's factual holding by “clear and convincing evidence.” Id.; see also Chapman v. Vanzandt, No. 96 CIV. 6940 (JGK), 1997 WL 375668, at *4 (S.D.N.Y. July 8, 1997).
III. DISCUSSION
A. The Motion to Suppress Petitioner's Statements
Petitioner claims that the trial court erred when it denied his motion to suppress his custodial statements made on May 28, 2015. (Docket No. 1 at 5, 16-17). Specifically, Petitioner claims that the police: (1) improperly questioned him at police headquarters without giving him a Miranda warning; (2) coerced Petitioner into making the statements at issue by lying to him; and (3) violated Petitioner's Sixth Amendment right to counsel because they should have known he was represented by counsel in another matter. (See Docket No. 9-28 at 67-74).
i. Miranda Warning
Petitioner contends that Detective Harris did not provide a sufficient Miranda warning because he administered it “orally at 1:30 AM,” shined a flashlight on Petitioner, and gave the warning “right after [Petitioner] was woken up by a police search warrant wh[ile] he was still half asleep ....” (Id. at 73). In addition, Petitioner argues that Detective Harris did not readminister the warning when he returned from a two-hour break during his interrogation. (Id. at 8, 73). Respondent counters that Detective Harris read the warning directly from his Miranda card and was not required to readminister the warning after a brief pause in the interrogation. (Docket No. 10 at 49-51).
First, the Second Department reviewed this claim on the merits and affirmed the trial court's denial of Petitioner's motion to suppress his statements to law enforcement. Black, 100 N.Y.S.3d at 79-80. The court held that “where, as here, a person in police custody was issued Miranda warnings and waived those rights voluntarily and intelligently, it is not necessary to repeat the warnings prior to subsequent questioning within a reasonable time thereafter, so long as the custody has remained continuous.” Id. at 79. Therefore, this ruling is entitled to AEDPA deference and the Court may not issue a writ unless, “there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [Supreme] Court's precedents.” Richter, 562 U.S. at 102. In other words, the Court must be “highly deferential” to the state court's determination. See Lindh, 521 U.S. at 333 n.7; see also 28 U.S.C. § 2254(d)(1)-(2).
Second, under Supreme Court precedent, “coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment.” Colorado v. Connelly, 479 U.S. 157, 167 (1986). Therefore, in determining whether a statement was coerced, courts consider “whether, based on the totality of circumstances, the government agents' conduct was such as to overbear [a defendant's] will to resist and bring about confessions not freely self-determined.” United States v. Ortiz, 943 F.Supp.2d 447, 456 (S.D.N.Y. 2013) (internal quotation marks and citation omitted). “Factors relevant to this determination include ‘the type and length of questioning, the defendant's physical and mental capabilities, and the government's method of interrogation,'” id. (quoting United States v. Okwumabua, 828 F.2d 950, 953 (2d Cir. 1987)), as well as Petitioner's “prior experience with the legal process, and familiarity with the Miranda warnings,” Miller v. Fenton, 474 U.S. 104, 117 (1985). “[S]tate-court findings on such matters are conclusive on the habeas court if fairly supported in the record and if the other circumstances enumerated in § 2254(d) are inapplicable.” Id. However, the “ultimate question” of whether, under the totality of circumstances, a challenged confession was “obtained in a manner compatible with the requirements of the Constitution is a matter for independent federal determination.” Id. at 112.
Under this standard, Petitioner's statements in this case were voluntary. Detective Harris testified that he “read [his] Miranda card . . . [to] administer[] the Miranda warnings to [Petitioner],” and that he left Petitioner in a holding cell for two hours while he executed a search warrant on Petitioner's home. (See Pre-Trial Hr'g Tr. at 35-41, 75-80, 88-89). When Detective Harris returned, he continued interrogating Petitioner on the same offense, at which point Petitioner offered information on a different crime he committed. (See id.). Where, as here, an interrogation was briefly paused and the suspect was held in continuous custody, police officers are not required to administer a second Miranda warning. See, e.g., Wilkins v. Ercole, No. 08 Civ. 2882 (SAS), 2012 WL 8525915, at *7 (S.D.N.Y. Nov. 5, 2012) (holding a confession given “eight hours after [a suspect] was [initially] read the Miranda warnings” was valid since “he remained in continuous custody and the focus on the investigation continued to be” the same crime). Given the relatively short pause, the continuous nature of Petitioner's custody, and the fact that the interrogation was on the same offense, Detective Harris was not required to readminister a Miranda warning to Petitioner.
ii. Petitioner's Custodial Statements
Next, Petitioner argues that his statements were coerced because Detective Harris falsely told him that there was video evidence of Petitioner burglarizing the Begor house, that Kuletsky was related to Detective Harris, and that Petitioner's accomplices were already incarcerated. (Docket No. 9-28 at 67-71). Respondent counters that the trial court's denial of this claim was not contrary to, nor an unreasonable application of, clearly established federal law, (Docket No. 10 at 52-58), and that, in any event, the statements were voluntary, (Id. at 54-58).
As an initial matter, it is well-established that “mild deceit does not amount to a due process violation,” and police may exaggerate or make false statements to suspects to “attempt to gain leverage over” them. United States v. Guzman, 11 F.Supp.2d 292, 299 (S.D.N.Y.) (citing Frazier v. Cupp, 394 U.S. 731, 738-39 (1969) (finding that a suspect gave a voluntary confession despite the police officer's misrepresentation that his co-suspect confessed)), aff'd, 152 F.3d 921 (2d Cir. 1998). Here, Detective Harris' false statements-that Petitioner was caught on camera, his accomplices were arrested, and Detective Harris was related to Kuletsky-were insufficient to overbear Petitioner's will to offer a voluntary statement. See, e.g., Walker v. Goord, 427 F.Supp.2d 272, 277 (W.D.N.Y. 2006) (holding that a suspect made a rational choice to confess despite the “investigator's falsehood regarding the victim's alleged dying declaration” which implicated him); United States v. Guarmo, 819 F.2d 28, 31 (2d Cir. 1987) (“[A] confession is not involuntary merely because the suspect was promised leniency if he cooperated with law enforcement officials.”).
In fact, Petitioner admits that he spoke with Detective Harris because he did not believe he was being arrested and had “no problem” helping him, since he “was already” assisting the police in an unrelated investigation. (Pre-Trial Hr'g Tr. at 95). Thus, while Detective Harris lied to Petitioner, his actions did not render Petitioner's statements involuntary such that habeas relief is warranted. McNeal v. Rdo, No. 88 CIV. 3435 (MGC), 1988 WL 108440, at *4 (S.D.N.Y. Oct. 6, 1988) (“[A] falsehood by a police officer, although deplorable, does not necessarily induce an involuntary confession.”), aff'd 888 F.2d 126 (2d Cir. 1989), cert. denied, 493 U.S. 1030 (1990).
iii. Petitioner's Right to Counsel
Petitioner further claims that Detective Harris violated his Sixth Amendment right to counsel because he knew, or should have known, that he was represented by counsel in an unrelated matter and could not be questioned outside of the presence of that attorney. (Docket No. 9-28 at 71-73). In response, Respondent contends that: (1) Petitioner did not suffer a Sixth Amendment violation because he was not questioned on the offense for which he was represented by counsel; and (2) the Second Department determined that Petitioner's state law right to counsel did not attach, and that ruling is unreviewable in a habeas proceeding. (Docket No. 10 at 58-61).
First, Petitioner did not suffer a federal constitutional violation. “The Sixth Amendment . . . is offense specific. It cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced, that is, ‘at or after the initiation of adversary judicial criminal proceedings-whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.'” McNeil v. Wisconsin, 501 U.S. 171, 175 (1991) (quoting U.S. v. Gouveia, 467 U.S. 180, 188 (1984)). Even if a person's Sixth Amendment right to counsel attaches for one offense, the police may interrogate a person on an unrelated offense. See id. at 177-78. Here, Petitioner was represented by counsel in an unrelated matter, but the police were not questioning him about that matter when he made the statements used in this case. (See generally Docket No. 9-28 at 91-115); (see also Pre-Trial Hr'g Tr. at 42). Moreover, Petitioner was not formally charged for crimes stemming from these burglaries when the police were questioning him, and “the right to counsel under the Sixth Amendment does not attach until formal criminal proceedings are initiated.” Smith v. Ortiz, No. 01 Civ. 5848 (DAB), 2006 WL 1458404, at *6 (S.D.N.Y. May 25, 2006) (citing McNeil, 501 U.S. at 175). Thus, Petitioner did not suffer a Sixth Amendment violation.
Second, while New York State law exceeds the protections offered to defendants during custodial interrogations under the Sixth Amendment, see Wallace v. McCarthy, 19 Civ. 1083 (VB)(LMS), 2020 WL 6572555, at *7 (S.D.N.Y. July 30, 2020), the State's misapplication of its own laws does not provide a basis for federal habeas relief, see Ross v. Miller, No. 14-CV-3098 (RA)(JLC), 2016 WL 1376611, at *16 (S.D.N.Y. Apr. 7, 2016) (“[T]o the extent that a state-law claim is broader than the analogous federal right, the state-law claim is not cognizable on federal habeas review.”) (citation and internal quotation omitted). Thus, to the extent Petitioner is arguing that his constitutional rights were violated because the trial court and Second Department violated New York State law, which holds that the right to counsel is not offense specific, unlike under federal law, that claim is not cognizable on federal habeas review. See, e.g., Wallace, 2020 WL 6572555, at *7 (holding that while “New York's right to counsel provides more protection to a criminal defendant than the Sixth Amendment . . . the state-law claim is not cognizable on federal habeas review”). As a result, Petitioner has not articulated a proper claim for habeas relief.
Accordingly, I conclude and respectfully recommend denying Petitioner's claim that the trial court erred when it denied Petitioner's motion to suppress his custodial statements.
B. Excessive Sentence
Petitioner contends that his modified sentence of twenty years to life for his burglary conviction was excessive. (Docket No. 9-28 at 74-76). In response, the State argues that because Petitioner's modified sentence was within the statutorily prescribed range, it did not violate the Eighth Amendment. (Docket No. 10 at 61-65).
“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.” Cruz v. Griffin, 16 Civ. 8998 (CS)(JCM), 2019 WL 6220806, at *19 (S.D.N.Y. Oct. 24, 2019). “If the sentence is within the statutory limits, a petitioner must show that the trial court's sentencing decision was wholly devoid of discretion or amounted to an arbitrary or capricious abuse of discretion that deprived him of his liberty.” Id. (quoting Jones v. Hollins, 884 F.Supp. 758, 761-62 (W.D.N.Y. Apr. 11, 1995) (internal quotations omitted)). Here, Petitioner was found guilty of Second Degree Burglary, and the State moved to classify Petitioner as a persistent violent felony offender under N.Y. Penal Law § 70.08. (Docket No. 9-20). The sentencing court held a hearing on February 17, 2017, during which it heard testimony from the Division of Criminal Justice Services and the Department of Corrections and Community Supervision. (Docket No. 9-23). The court held that Petitioner is a persistent violent felony offender because he committed two qualifying felonies under N.Y. Penal Law § 70.04(1)(b)(i), and, less than ten years later, exclusive of time served in prison, was convicted of Second Degree Burglary, Id. § 70.04(1)(b)(iv)-(v). (Docket No. 9-24). Given the fact that he is a persistent violent felony offender, Petitioner's burglary conviction-a Class C felony-triggered a possible sentence between sixteen and twenty-five years to life. See N.Y. Penal Law § 70.08(3)(b).
The Second Department reduced Petitioner's burglary sentence to twenty years to life, to run concurrently with his sentence for criminal possession of stolen property. See Black, 100 N.Y.S.3d at 78. This sentence is below the maximum sentence Petitioner could receive for this offense. “[W]here, as here, the sentence is within the range prescribed by state law,” an allegation that a trial judge abused his sentencing discretion is not a federal claim cognizable on habeas review. White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992). Moreover, the sentence represented an appropriate use of discretion, and it was not arbitrary or capricious. See Cruz, 2019 WL 6220806 at *19 (holding that a sentence “within the statutorily-accepted sentencing range . . . represented an appropriate exercise of the court's discretion”). Thus, Petitioner's excessive sentence claim is not cognizable on federal habeas review.
Accordingly, I respectfully recommend denying Petitioner's excessive sentence claim.
C. Sufficiency of the Evidence
Petitioner also contends that his “burglary charge should be dismissed” because there was insufficient “proof that [Petitioner] intended to commit [the Pulst burglary] given his reluctance to enter the home,” thus this count should have been reduced to the lesser-included offense of trespassing. (Docket No. 28 at 76-77). Respondent argues that the Second Department's denial of this claim was unpreserved for review since it was based on independent and adequate state procedural law, which forecloses habeas review by this Court, (Docket No. 10 at 65-69), but even if it was preserved, it is meritless, (Id. at 70-73).
At the outset, the Second Department's denial of Petitioner's sufficiency of the evidence claim on procedural grounds is a ruling based on independent and adequate state law, which forecloses federal habeas relief. “[A] state court procedural default will bar habeas review when the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar . . . even where the state court has also ruled in the alternative on the merits of the federal claim.” Green v. Travis, 414 F.3d 288, 294 (2d Cir. 2005) (internal quotations omitted); see also Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 810 n.4 (2d Cir. 2000) (“We note that we have held that where a state court says that a claim is ‘not preserved for appellate review' and then ruled ‘in any event' on the merits, such a claim is not preserved.”) (quoting Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996)).
Relying entirely on state law, the Second Department held that Petitioner's “contention regarding the legal sufficiency of the evidence supporting his conviction of burglary in the second degree [wa]s unpreserved for appellate review” because he only made a generalized motion to dismiss. Black, 100 N.Y.S.3d at 79 (citing C.P.L. § 470.05; People v. Gray, 629 N.Y.S.2d 173 (N.Y. 1995)). New York courts deem such general motions inadequate to preserve a claim of insufficient evidence. See Calderon v. Perez, No. 10 Civ. 2562 (GBD)(AJP), 2011 WL 293709, at *24 (S.D.N.Y. Jan. 28, 2011) (collecting cases), report and recommendation adopted, 2011 WL 1405029 (S.D.N.Y. Apr. 5, 2011). Therefore, the Second Department's denial of this claim is based on independent and adequate state procedural law and federal habeas relief is barred unless Petitioner can “demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law” or that failure to consider the claim will result in a “fundamental miscarriage of justice.” Coleman, 501 U.S. at 750; see also Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990); Garcia, 188 F.3d at 77 (“[E]xplicit invocation of the procedural bar constitutes an ‘independent' state ground, even though the court spoke to the merits of [Petitioner's] claim in an alternative holding.”) (citation omitted).
Petitioner has failed to establish either element to overcome the procedural bar to his sufficiency of the evidence claim. To show cause for failing to preserve a claim, Petitioner must show some “external impediment preventing counsel from constructing or raising the claim, such as (1) a showing that the defendant was represented by counsel who was constitutionally ineffective; (2) a showing that the factual or legal basis for a claim was not reasonably available at the time of the default; or (3) interference by state officials that made compliance with the procedural mechanism impracticable.” DeJesus v. Senkowski, No. 00 Civ. 7926 (RJH)(THK), 2006 WL 2707330, at *9 (S.D.N.Y. Sept. 20, 2006) (citations and internal quotations omitted). Since Petitioner has failed to show cause for his default, the Court need not analyze whether he would be prejudiced by the Court's refusal to consider the claim. Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 127 (2d Cir. 1995) (“Since [petitioner] has failed to show cause, there is no need to address the prejudice requirement, and federal habeas review . . . is unavailable.”); Frazier v. United States, 19-CV-8738 (CS), 17-CR-364-7 (CS), 2021 WL 111638, at *3 n.6 (S.D.N.Y. Jan. 12, 2021) (“As there is no showing of cause, I need not address prejudice.”). Similarly, Petitioner has failed to demonstrate actual innocence or that application of the procedural default would result in a fundamental miscarriage of justice. This is a “heavy burden” that only applies in “extraordinary” cases, Calderon, 2011 WL 293709, at *21, requiring Petitioner to show “that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence,” Murden v. Artuz, 497 F.3d 178, 194 (2d Cir. 2007) (internal quotations and citation omitted).
Notwithstanding the procedural default, Petitioner's claim also fails on the merits. On federal habeas review, “a petitioner who claims that the evidence was insufficient to sustain a conviction bears a very heavy burden.” Shamsuddin v. Smith, 578 F.Supp.3d 328, 338 (N.D.N.Y. 2022) (citation omitted). When considering this claim, “the relevant question is 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.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis added). A federal court may not overturn a state court decision that rejects a challenge to the “sufficiency of the evidence . . . simply because the federal court disagrees with the state court.” Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam) (highlighting “it is the responsibility of the jury-not the court-to decide what conclusions should be drawn from evidence admitted at trial.”). The federal court instead may overturn the state court only in the rare case that the state court decision was “objectively unreasonable.” Renico v. Lett, 559 U.S. 766, 773, (2010) (quotation omitted).
When considering a sufficiency of the evidence claim, a federal court must first determine the elements of the crime. See Nunez v. Conway, 923 F.Supp.2d 557, 564 (S.D.N.Y. 2013). To establish Second Degree Burglary in New York, the prosecution must prove that a person “knowingly enters . . . a building with intent to commit a crime therein, and . . . [t]he building is a dwelling.” N.Y. Penal Law § 140.25(1)-(2). Here, the prosecutor presented significant evidence that Petitioner burglarized the Pulst residence. Petitioner provided the police with directions to the house, which Petitioner readily found despite it being difficult to locate. (Trial Tr. at 334-38). At trial, Christian Pulst testified that he heard a loud “bang” at night, and woke up realizing his father's BB gun was missing. (Id. at 189-200). Torres, Petitioner's accomplice, testified that she told Petitioner that the Pulst residence would be an easy target, drove him and two others to the house, and saw that they retrieved a BB gun. (Id. at 238-46). While she did not witness him enter the house, she overheard the other men commenting that Petitioner was hesitant to enter Mr. Pulst's bedroom while they were all in the house. (See id.). Based on this evidence, the jury did not act unreasonably in concluding Petitioner was guilty of Second Degree Burglary. Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996) (noting that a habeas court reviewing a sufficiency of the evidence claim must defer to the jury's “assessments of the weight of the evidence [and] the credibility of witnesses”).
Accordingly, I conclude and respectfully recommend denying Petitioner's sufficiency of the evidence claim.
IV. CONCLUSION
For the foregoing reasons, I conclude and respectfully recommend that the Petition be denied. Further, 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, I recommend that no certificate of appealability be issued. See 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). The Clerk of Court is requested to mail a copy of this Report and Recommendation to the pro se Petitioner.
V. NOTICE
Pursuant to 28 U.S.C. § 636(b)(1)(C) 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 the receipt of this Report and Recommendation to serve and file written objections. If copies of this Report and Recommendation are served upon the parties by mail, the parties shall have seventeen (17) days from receipt of the same to file and serve written objections. See Fed.R.Civ.P. 6(d). Objections and responses to objections, if any, shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Philip M. Halpern at the United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Requests for extensions of time to file objections must be made to the Honorable Philip M. Halpern and not to the undersigned. Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be rendered. See 28 U.S.C. § 636(b)(1); Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008).