Opinion
20 Civ. 10622 (KMK) (PED)
12-23-2022
DRAYVON CARMICHAEL, Petitioner, v. ANTHONY J. ANNUCCI, Acting Commissioner, New York Department of Corrections and Community Supervision,[1]
REPORT AND RECOMMENDATION
PAUL E. DAVISON, U.S.M.J.
TO THE HONORABLE KENNETH M. KARAS, United States District Judge:
I. INTRODUCTION
On March 6, 2017, a Dutchess County jury convicted petitioner Drayvon Carmichael (“petitioner” or "defendant”) of first degree identity theft (“count one”) (N, Y. Penal Law § 190.80 (1)) and two counts of second degree criminal possession of a forged instrument (“count two” and “count three”) (N.Y. Penal Law § 170.25). He was sentenced on April 7, 2017 (as a second felony offender) to prison terms of three and one-half to seven years (on count one), three to six years (on count two, to run concurrent with the identity theft sentence) and two to four years (on count three, to run consecutive to count two).
Presently before this Court is petitioner's pro se Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. This petition is before me pursuant to an Order of Reference dated February 4, 2021 (Dkt. #5). For the reasons set forth below, I respectfully recommend that Your- Honor deny the petition in its entirety.
Although petitioner has been released from incarceration, “a petition for habeas corpus relief does not necessarily become moot when the petitioner is released from prison. Rather, the matter will remain a live case or controversy if there remains ‘some concrete and continuing . injury' or ‘collateral consequence' resulting from the conviction.” Byng v. Annucci, No. 18 Civ. 0994, 2021 WL 1565189, at *3 (N.D.N.Y. Apr. 21, 2021) (quoting Spencer v. Kemna, 523 U.S. 1, 7 (1998)). In other words, “[a] habeas petition is generally not moot so long as the petitioner continues to be held in the custody that he alleges is unlawful. See Dhinsa v. Krueger, 917 F.3d 70, 77 n.5 (2d Cir. 2019). That is so whether the petitioner is experiencing direct physical . custody (e g incarceration), or is subject to restraints on his liberty, such as parole.” Janahevski v. Exec. Dir., Rochester Psychiatric Ctr., 955 F.3d 314, 319 (2d Cir. 2020). Here, petitioner is presently subject to parole supervision. See https://publicapps.doccs.ny.gov/ParoleeLookup/Default7idx=0. Accordingly, the instant habeas Petition is not moot. Copies of all unpublished cases available only in electronic form cited herein have been mailed to petitioner. See Lebron v. Sanders, 557 F.3d 76, 78 (2d Cir. 2009).
The information in this section is drawn from the instant petition (Dkt. //I), respondent's Affidavit in Answer to a Petition for a Writ of Flabeas Corpus (Dkt. #7), respondent's Memorandum of Law (Dkt. #8), respondent's Exhibits (Dkt. #7-1 through #7-22) and petitioner's Traverse (Dkt. #10).
A. The Prosecution's Case at Trial
1. Testimony of Kevin Lonce (Dkt. #7-14)
At all relevant times, Kevin Lonce was the finance manager at Healey Chevolet in Poughkeepsie, New York (“Healey Brothers”). T. 347, A buyer wishing to obtain financing for the purchase of vehicle needed to fill out a credit application, bill of sale and a contract. Id. A buyer applying for financing could either be approved, declined or told they needed a co-signer. T. 349. An additional credit application was required for a co-signor/co-buyer. T. 347-38. These forms are normally completed at the dealership. T. 348. Credit applications are filled out by the sales people, who take information (date of birth, social security number, employment information and address) from the customer(s) and enter the information into the computer system. Id. The buyer signs the credit application; the co-buyer signs their own credit application and initials on the top of the buyer's application. T. 349. A bill of sale is printed out at the time of contracting, and is signed by the buyer, co-buyer and a Healey Brothers manager oi employee. Id. Thus, when finalizing a sale, the buyer and co-buyer must be present. T. 355.
Numbers preceded by “T.” refer to pages from the trial transcript.
Mr. Lonce worked with petitioner for about three months (April 2016 to July 2016), when petitioner was a salesperson for Healey Brothers. T. 350, 354. In early June 2016, petitioner approached management and indicated he wanted to buy a $70,000 2016 Tahoe. T. 351. If a salesperson told a manager they wanted to buy and finance a vehicle, the manager would tell the salesperson to load their credit information into the system. T. 350-51. Petitioner loaded his credit application into the computer system and Mr. Lonce forwarded it to the bank. Id. The bank determined petitioner needed a co-buyer; petitioner told Mr. Lonce he could get his girlfriend's mother, Cindy Godfrey, as a co-buyer. T. 352. Petitioner filled out credit applications for Ms. Godfrey (as the buyer) and himself (as co-buyer). T. 353. Ms. Godfrey's credit application included her social security number, date of birth, employment information, address and phone number. T. 389. The home and phone numbers on Ms. Godfrey's credit application were the same: 845-745-3767. T. 438. Both petitioner's and Ms. Godfrey's credit applications listed the same home address: 3 Hasbrouck Avenue, Highland, New York. T. 419. Ms. Godfrey was designated the primary applicant (the buyer) because her credit was stronger. T, 353. A copy of Ms. Godfrey's driver's license was faxed to Healey Brothers. T. 352. Mr. Lonce did not see it come into the fax. T. 391. Petitioner told Mr. Lonce that Ms. Godfrey was on petitioner's cell phone, and handed the phone to Mr. Lonce. T. 352. The person on the phone portrayed herself as Cindy Godfrey; she and Mr. Lonce spoke about purchasing or leasing the vehicle, and what the payments would be. T. 352-53. Based upon the driver's license and the phone conversation, Mr. Lonce processed the credit application for “Cindy Godfrey.” T. 392.
Petitioner started the file concerning this purchase, and kept the file on his desk. T. 439. A copy of Ms. Godfrey's driver's license was in the file. Id.
On June 23, 2016, Mr. Lonce met with petitioner to sign the paperwork and finalize the sale. T. 353-54. The new vehicle was registered in petitioner's name pursuant to a form he had signed, T.354. Petitioner insured the vehicle. T. 355. Ms. Godfrey, the buyer, was not present at the dealership; petitioner was on his cell phone speaking to someone whom Mr. Lonce thought was Ms. Godfrey. Id. Petitioner initially said Ms. Godfrey was in meetings; later, around five p.m. petitioner said Ms. Godfrey was stuck in traffic. Id. Ms. Lonce did not speak to the person on the phone with petitioner. Id. Petitioner was calling the person “Cyn” and begging for her to come in. T. 355-56. By the end of the day, Ms. Godfrey had not appeared at Healey Brothers. T. 356. Healey Brothers representatives are allowed to witness signatures off-premises. Id. Petitioner asked if he could take the paperwork home and have it signed. Id. Mr. Lonce agreed, but asked petitioner to videotape, with his cell phone, Ms. Godfrey signing the paperwork. Id. Mr. Lonce signed the forms. T. 357. Petitioner signed his own name on the forms in Mr. Lonce's presence, and took the forms with him when he left that night. T. 356.
Petitioner did not return the forms to Mr. Lonce, nor did he show Mr. Lonce any video of anyone signing the forms. T. 357. Mr. Lonce did not see petitioner or anyone else return the forms to the dealership. Id. Mr. Lonce learned they had been returned when he got an alert from the bank (Mid-Hudson Valley Federal Credit Union (“MHVFCU”)), about eight days later, showing that the loan was being processed. T. 357-58. Petitioner was driving the 2016 Tahoe to and from work. T. 3 5 8.
Mr. Lonce signed the bill of sale and witnessed petitioner sign the form. T. 379-80. “Cindy Godfrey” also signed the bill of sale as “buyer,” but Mr. Lonce did not witness that signature. T. 380. Mr. Lonce witnessed petitioner signing the installment contract as co-buyer”; the installment contract was also signed by “Cindy Godfrey” as “buyer,' but Mr. Lonce did not witness that signature. T. 380-82. Mr. Lonce witnessed petitioner signing his credit application as co-buyer. T. 382-83. The credit application for the buyer was signed and initialed by “Cindy Godfrey” as applicant, but Mr. Lonce did not witness either. T. 383-84. Mr. Lonce witnessed petitioner initialing the buyer's credit application as co-applicant. T. 383. Mr. Lonce also watched petitioner sign a reference sheet for the bank; petitioner listed “Nick Hill” as his nearest relative and designated him “brother.” T. 441-43. Nick Hill is not petitioner's brother; he was a salesperson at Healey Brothers. T. 441,443. Mr. Hill and petitioner were close friends. T. 445.
On July 18, 2016, Mr. Lonce received a call from MHVFCU and learned that Cindy Godfrey was saying she did not sign the paperwork. T. 358. Mr. Lonce informed his boss, Mr. Birmingham, and together (on speakerphone) they called petitioner's cell phone. T. 358-59. Petitioner said Ms. Godfrey “wants off of the automobile loan” because petitioner and his girlfriend (Ms. Godfrey's daughter) were behind on their mortgage and utility payments. T. 359. Petitioner said he watched Ms. Godfrey sign the forms and offered to show, as proof, text messages between Ms. Godfrey and her daughter. T. 359-60. Two days later, Mr. Lonce asked petitioner to send those text messages. T. 363. Petitioner responded via text:
Man, I just had it out with Cindy, spoke to the cops. This shit is about us having $100,000 in cars and her daughter spending money. She doesn't even want us to find I copy signer. She doesn't want us to have the truck. She's a racist. And, bro, I don't want the truck. This shit is wack. I'm trying to find a copy signer and end this shit. I can pay for the truck. She signed and said cool. And because the heat bill is 1300 and her daughter hasn't paid the mortgage m months, come to find out, I'm in the middle of this bullshit.T. 366. Mr. Lonce never received a letter from Ms. Godfrey, by fax or otherwise, indicating that petitioner and her daughter paid Ms. Godfrey rent for living in a house she owned. T. 391.
2. Testimony of Cindy Godfrey (Dkt, 117-14)
At the time of trial, Cindy Godfrey had lived at 20 Nytko Drive in Pomona, New York for seven years. T. 462. In June-July 2016, her cell phone number was 845-399-6877. Id. At all relevant times, Ms. Godfrey owned the house at 3 Hasbrouck Avenue in Highland, New York but had never lived there. Id., Erica Grater is Ms. Godfrey's daughter. T. 462-63. Petitioner is Ms. Grater's boyfriend. T. 463. In the spring and summer of 2016, petitioner lived at 3 Hasbrouck Avenue with Ms. Grater and her three children. T. 463-64. During that time, they were responsible for paying rent ($1150/month) and all utilities, with payments to be made directly to Ms. Godfrey. T. 464. Petitioner and Ms. Grater did not pay the rent on time or in full during the spring and summer of 2016. Id. Ms. Godfrey constantly spoke to her daughter about the rent; Ms. Grater would pay small amounts (“$100 occasionally”) but never paid in full. Id., Ms. Grater once paid a portion of the rent with a check written from petitioner's bank account. T. 464-65.
Prior to June 23, 2016, Ms. Godfrey had never spoken to petitioner on the phone and had met him only once, sometime in May 2016, when Ms. Godfrey went to 3 Hasbrouck Avenue to pick up one of her granddaughters. T. 465-66. On that occasion in May, Ms. Grater introduced Ms. Godfrey to petitioner; they spoke for a minute or two about petitioner s job in the car business. T. 466.
Prior to June 23, 2016, Ms. Godfrey had never given her daughter permission to sign her name or to use her credit. Id. Ms. Grater had used Ms. Godfrey's credit without permission in the past. Id. The first time, when Ms. Grater was eighteen, she took Ms. Godfrey's credit card and rented a hotel room for her birthday party. Id. The second time, Ms. Grater took Ms. Godfrey's credit card number and charged about $10,000 worth of merchandise. T. 466-67.
At all relevant times, Ms. Godfrey worked for the bricklayers union in Newburgh, at yearly salary of about $40,000. T. 467. Ms. Grater worked there part-time during the spring and summer of 2016. Id. Before June 2016, petitioner would drive Ms. Grater to her job in a white Impala; in June 2016, Ms. Grater drove herself to and from work in the white Impala. T. 467-68. Ms. Godfrey never saw Ms. Grater driving a Chevy Tahoe. T. 468. Prior to June 23, 2016, Ms. Grater told Ms. Godfrey that petitioner was trying to refinance the Chevy Impala and needed a letter stating that he paid rent. T. 476. Ms. Godfrey typed the requested letter; her daughter said it either had to be notarized or, to prove she wrote the letter, Ms. Godfrey could fax it with a copy of her driver's license. Id. Ms. Godfrey faxed the letter and a copy of her driver's license to a fax number provided by her daughter. T. 476-77, 496-98.
Prior to July 16, 2016, Ms. Godfrey had never been to Healey Brothers, nor had she spoken on Ilie phone to anyone from Healey Brothers. T. 476-77. Prior to July 16, 2016, she had never met, nor heard of, Kevin Lonce or Bill Birmingham. T. 468-69. Ms. Godfrey knew (from her daughter) that petitioner worked at Healey Brothers. T. 472. On July 16, 2016, upon returning from vacation, Ms. Godfrey opened her mail and found a coupon booklet for loan payments from MHVFCU addressed to her and petitioner. T. 469. Ms. Godfrey had no idea what the loan was for; she had not purchased a vehicle or agreed to co-sign a loan for a vehicle. Id. At that time, Ms. Godfrey was driving a 2010 Subaru with about 120,000 miles on it. Id. According to the coupon book, the amount due each month was $960.26. T. 472 (People's Exhibit 11, in Evidence). Ms. Godfrey immediately called her daughter, who said the loan was for a car. T. 472, 475. The next day, Sunday July 17'h, petitioner called Ms. Godfrey and told her he was coming over to see her and talk about “this situation.” T. 473-74. That was the first time petitioner had ever called Ms. Godfrey, T. 474. Ms. Godfrey told petitioner “absolutely not, do not come down to my house . . . there was nothing to talk about” and said she was “going to the bank on Monday and straightening this out.” Id.
Ms. Godfrey went to MHVFCU the next day, on Monday July 18“'. Id Ms. Godfrey had accounts with that bank, and they knew her address. Id. Ms. Godfrey told a bank employee that she had received a coupon book for a loan in her name, but she had not signed for the loan. T. 475. The employee pulled up the loan on the computer and told Ms. Godfrey the loan was for a Chevy Tahoe processed through Healey Brothers and that she would have to go back to Healey and discuss the matter with them. Id. The bank called Healey Brothers on behalf of Ms. Godfrey. Id.
The next day, on Tuesday July 19th, Ms. Godfrey went to Healey Brothers and spoke with Kevin Lonce. T. 475-76. Ms. Godfrey told him: she had nothing to do with the loan; she had never been in Healey Brothers; she never signed any paper; and had never given anyone permission to get a loan in her name. T. 476. Ms. Godfrey was shown the loan documents, including the credit application in her name, the loan contract, the bill of sale and the copy of her driver's license. T. 476-77, 479-81. The credit application in her name contained her social security number and birth date, but the address listed (3 Hasbrouck Avenue) had never been her address and the home/work telephone number listed (845-745-3767) was her daughter's cell phone. T. 482-83. Additionally, the credit application listed an inflated yearly salary of $95,000. T. 483.
The next morning, July 20th, Ms. Godfrey went to the Town of Poughkeepsie Police Department and reported the incident to Officer Lindsay Marinelli. T. 478. Ms. Godfrey left the police station and drove to 3 Hasbrouck Avenue to talk to her daughter. Id. Petitioner and Ms. Grater were home when Ms. Godfrey arrived; Ms. Godfrey asked them why they did what they did, and why they thought they could take her credit, buy a car, put the car in petitioner's name and put the loan in her name. T. 478-79. Petitioner replied that Ms. Grater told him Ms. Godfrey would co-sign the loan for him so he brought the paperwork home and, when he came home later that day, everything was signed so he assumed Ms. Godfrey had stopped by and signed it. T. 479. Ms. Godfrey said she did not (and would not) co-sign the loan because that would negatively impact her ability to buy herself a car. Id. Petitioner replied that he did not know what the problem was because he was going to make the loan payments, and told Ms. Godfrey her “credit was so good [she] could buy ten cars. Id.
Ms. Godfrey did not give her daughter or petitioner permission to apply for credit at Healey Brothers using Ms. Godfrey's name. T. 477. She did not give her daughter or petitioner permission to sign her name on a credit application or sales contract. Id. At trial, Ms. Godfrey was shown the bill of sale, the loan contract and the credit application in her name; she testified that she did not sign or initial any of those documents. T. 481-82. She also testified that she never told petitioner she no longer wanted to be on the loan, because “[she] never! wanted to be on the loan at all.” T. 483.
3. Testimony of Lindsay Marinelli (Dkt. #7-14)
At all relevant times, Lindsay Marinelli was a Town of Poughkeepsie police officer. T. 502-03. On July 20, 2016, at approximately 9:40 a.m., Officer Marinelli spoke with a complainant named Cindy Godfrey. T. 504. After speaking with Ms. Godfrey, Officer Marinelli called petitioner on his cell phone. Id. Petitioner answered and identified himself. T. 505. Officer Marinelli told petitioner she was calling him because she received a complaint; petitioner said he knew why Officer Marinelli was calling and wanted to resolve the situation. Id. Officer Marinelli asked petitioner to explain the situation; petitioner provided the following explanation to Officer Marinelli: petitioner was employed by Healey Brothers and wanted to buy a new vehicle; he asked the financial manager, Kevin Lonce, if he could get a car loan through the dealership; Mr. Lonce told him he would have to get a co-signer for a car loan; he went home and spoke to his girlfriend, Erica Grater, who said she would ask her mother, Cindy Godfrey, if she would co-sign a loan for a new vehicle; “[a]fter speaking with each other, [petitioner and Ms. Grater] determined, after speaking with Cindy Godfrey as well,” that Ms. Godfrey agreed to cosign the loan; Ms. Grater provided Ms. Godfrey's financial information to petitioner, who brought it to Mr. Lonce to evaluate; Mr. Lonce determined that petitioner could get the car loan if Ms. Godfrey co-signed; Mr. Lonce told petitioner he had spoken on the phone with Ms. Godfrey, who had okayed the loan; petitioner told Mr. Lonce to draw up the documents for the new car loan/purchase; petitioner signed the loan and “was made aware that Cindy Godfrey came into the Healey dealership and signed the loan as well”; petitioner got the new vehicle and, when he saw the loan statement, he noticed that Ms. Godfrey was listed as the buyer and he was listed as cosigner, which was incorrect and he had no idea how that happened; a short time after he noticed the loan was wrong, petitioner got a call from Ms. Godfrey who said she no longer wanted to be on the loan; petitioner immediately called Healey to resolve the issue, and asked whether Ms. Godfrey's name could come off the loan; petitioner was told the only way to get Ms. Godfrey's name removed was if petitioner voluntarily “repossessed” the car back to Healey Brothers and found a new co-signer for the loan; petitioner was happy to do that if that would resolve the whole situation and wanted to take care of it as soon as possible. T. 505-07. That was the extent of Officer Marinelli's conversation with petitioner. T. 507-08.
Petitioner told Officer Marinelli he thought Ms. Godfrey no longer wanted to be on the loan because she discovered that the mortgage on 3 Hasbrouck Avenue was not getting paid. . 507.
Officer Marinelli spoke with Mr. Lonce; neither he, nor anyone but petitioner, represented to Officer Marinelli that Ms. Godfrey had come to the dealership and executed documents. T. 511-12. Between July 20, 2016 and August 8, 2016, Officer Marinelli called petitioner and Erica Grater almost every day but the calls went to voicemail. T. 512-15. Officei Marinelli left messages but never got a return phone call. T. 514-15. On August 8, 2016, Officer Marinelli turned the matter over to the Detective Division. T. 512-13,515.
4. Testimony of Matthew Daddona (Dkt. #7-14)
At all relevant times, Matthew Daddona was a Detective with the Town of Poughkeepsie Police Department. T. 517. Detective Daddona was assigned the identity theft case referred by Officer Marinelli; Detective Daddona spoke to Officer Marinelli, Kevin Lonce and Cindy Godfrey. T. 518-19. On August 24, 2016, Detective Dadonna went to Barton Burke Chevrolet in Newburgh, based upon information that petitioner (who was the suspect in the investigation) was working there. T. 519. Petitioner was there; Detective Dadonna placed him in custody and brought him back to the police station. Id. The Chevy Tahoe, which was in petitioner's possession, was towed and impounded at the station. Id. The next day, August 25, 2016, Detective Dadonna spoke to Erica Grater. T. 521. After their conversation, Ms. Grater provided her cell phone to Detective Dadonna because she wanted him to look at text messages between herself and petitioner. T. 521, 575-76. Ms. Grater was arrested that day. T. 521. Her cell phone was secured and logged into evidence; the texts were downloaded onto a thumbdrive. T. 521-22.
5. Text Messages Between Petitioner and Ms. Grater (Dkt. #7-14, #7-15)
• June 16 (T. 544-46)
#1018 from petitioner: “we may need some money down”
#1021 to petitioner: “how much down”
#1022 from petitioner: “yup, like 2,000"
#1023 from petitioner: “tell mom she has to come through for us”
#1032 from petitioner: “please. Tell her please.”
#1033 to petitioner: “I'm begging her right now, lol”
#1042 from petitioner: “that would pass for no money down? So eight [sic] now I'm begging for 2,000. Should I start begging for her to cosign
#1044 from petitioner: whichever one, if she cosigns, we would be set. Crack for one.”
* June 17 (T. 547-48)
#1130 to petitioner: “060549797 10/13/58 Cindy Godfrey, use our address, run it, and see what her credit score is”
#1131 from petitioner: “what's the name of your job again, how long has she been there, and how much does she make before taxes”
#1132 to petitioner: “800. Bricklayer and Allied Craftworkers, Local 5, ten years
#1133 to petitioner: “make sure u r on it with her babe”
* June 25 (T. 548-49)
#1377 from petitioner: “babe, we can find someone who looks like mom!”
#1378 from petitioner: “that picture is not bad” (referring to license picture of Cindy Godfrey)
#1379 from petitioner: “you can't see it”
#1380 from petitioner: “they will not see that signature. The only one that counts is the ID”
#1388 from petitioner: “if you want to come here and I'll show you where to sign
• July 16 (T. 552-53)
#1866 from petitioner: “Damn . . . .”
#1867 to petitioner: “she's on fire”
#1868 to petitioner: “we have to talk to her because she said she s going to the bank Monday”
#1869 to petitioner; “why would they send it there”
#1870 from petitioner: “not sure”
6. Testimony of William Birmingham (Dkt. #7-15)
At all relevant times, William Birmingham was the general manager at Healey Brothers.T. 594. On July 18, 2016, Mr. Birmingham had a conversation with Mr. Lonce about petitioner s purchase of a vehicle for himself while he was employed at Healey Brothers. T. 595-96. As a result of that conversation, Mr. Birmingham, in the presence of Mr. Lonce, called petitioner on speakerphone. T. 596. Mr. Birmingham asked petitioner how the paperwork in his deal was signed; petitioner was adamant that Ms. Godfrey signed all the paperwork in his presence, at a table in the house. T. 597.
B. Defendant's Motion to Dismiss (Dkt. #7-15)
At the close of the prosecution's case, defense counsel moved to dismiss the indictment on the ground that the prosecution failed to establish a prima facie case of either identity theft or possession of a forged instrument. T. 610-12. With respect to the charge of identity theft, defense counsel argued that the prosecution failed to “prove beyond a reasonable doubt that the defendant represented himself as the individual whose identity is alleged to have been in question.” T. 610-11. With respect to the criminal possession charges, defense counsel argued “that there has been no evidence produced by the People whatsoever” that the defendant possessed instruments which he knew were, in fact, forged. T. 611-12. The prosecution opposed; the trial court denied defense counsel's motion. T. 612-15.
C. Direct Appeal
Petitioner, by and through counsel, timely appealed his conviction to the Appellate Division, Second Department on the following grounds:
1. The verdict was against the weight of the evidence, and the evidence was insufficient to establish beyond a reasonable doubt that petitioner was guilty of either identity theft or possession of a forged instrument;
2. The trial court's Sandoval ruling was an improvident exercise of discretion;
3. In response to a juror's request to take notes, the trial court incorrectly replied that note-taking was impermissible under New York law;
4, Although petitioner was charged with, and convicted of, first degree identity theft, the trial court illegally imposed a sentence for second degree identity theft,
5. The trial court abused its sentencing discretion when it imposed a consecutive sentence; and
6. Petitioner's sentence was unduly harsh and excessive.Dkt. #7-17, at 12-52 By Decision and Order dated April 17, 2019, the Second Department affirmed petitioner's conviction and sentence. People v. Carmichael, 171 A.D.3d 1084, 99 N.Y.S.3d 340 (2d Dep't 2019). Petitioner, by and through counsel, timely submitted an application for leave to appeal to the New York Court of Appeals, wherein he sought review of all of the claims raised in his appellate brief. Dkt. #7-20. The Court of Appeals denied petitioner leave to appeal on October 29, 2019. People v. Carmichael, 34 N.Y.3d 979, 137 N.E.3d 21 (Table), 113 N.Y.S.3d 651 (2019).
People v. Sandoval, 34 N.Y.2d 371 (1974).
Citations to page numbers following “Dkt. #___” reflect ECF pagination.
D. The Instant Petition
On or about December 15, 2020, petitioner timely filed the instant Petition for a Writ of Habeas Corpus. Dkt. #1. Based upon a review of the Petition and accompanying Memorandum, petitioner seeks habeas relief on the following grounds: (1) petitioner was denied due process because the evidence was insufficient to support his conviction for identity theft and criminal possession of a forged instrument; (2) petitioner was denied a fair trial because the trial court mistakenly believed it could not, as a matter of law, allow the jury to take notes; and (3) the County Court abused its sentencing discretion when it imposed a consecutive sentence. Id. at 37, 19-32.
III. STANDARD OF REVIEW
“Habeas review is an extraordinary remedy.” Bousley v. United States, 523 U.S. 614, 621 (1998) (citing Reed v. Farley, 512 U.S. 339, 354 (1994)). “[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991). See 28 U.S.C. § 2254(a). “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).
When reviewing petitions filed subsequent to the AEDPA‘s effective date, a federal court may not grant habeas reliefunless the petitioner establishes that the state court's decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “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), (d)(2). The AEDPA deferential standard of review will be triggered if the petitioner's claim “was adjudicated on the merits in State court proceedings.” 28 U.S.C. § 2254(d); see Bell v. Miller, 500 F.3d 149,154-55 (2d Cir. 2007). “A state court adjudicates a state prisoner's federal claim on the merits when it (1) disposes of the claim on the merits, and (2) reduces its disposition to judgment.” Jimenez v. Walker, 458 F.3d 130, 140 (2d Cir. 2006) (quoting Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001)).
A state court's decision is “contrary to” clearly established Federal law if (1) the state court applies a rule that contradicts the governing law set forth [by the Supreme Court of the United States]” or (2) “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 [Supreme Court] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). “Clearly established Federal law for purposes of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of [Supreme Court] decisions. And an ‘unreasonable application of those holdings must be objectively unreasonable, not merely wrong; even ‘clear error' will not suffice.” White v. Woodall, 134 S.Ct. 1697,1702 (2014) (internal quotation marks and citations omitted). “The critical point is that relief is available under § 2254(d)(1)'s unreasonable application clause if, and only if, it is so obvious that a clearly established rule applies to a given set of facts that there could be no ‘fairminded disagreement' on the question.” Id. at 1706-07 (quoting Harrington, 131 S.Ct. at 786-87) (“As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.).
Finally, under the AEDPA, the factual findings of state courts are presumed to be correct. See 28 U.S.C. §2254(e)(1); see also Nelson v. Walker, 121 F.3d 828, 833 (2d Cir. 1997). The petitioner must rebut this presumption by “clear and convincing evidence. 28 U.S.C. §2254(e)(1). “A state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Cardoza v. Rock, 731 F.3d 169, 178 (2d Cir. 2013) (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)).
IV. DISCUSSION
A, Insufficient Evidence
Petitioner seeks habeas relief on the ground that his conviction was not supported by legally sufficient evidence. An insufficient evidence claim is cognizable on habeas corpus review as a violation of due process. Jackson v. Virginia, 443 U.S. 307, 321 (1979). A defendant challenging the sufficiency of the evidence bears a heavy burden.” United States v. Kozeny, 667 F.3d 122, 139 (2d Cir. 2011). “A court may enter a judgment of acquittal only if the evidence that the defendant committed the crime alleged is nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable doubt.” United States v. Atilla, 966 F.3d 118, 128 (2d Cir. 2020) (quotation marks and citation omitted). Conversely, “[t]he evidence is sufficient to support a conviction whenever, ‘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.' ” Parker v. Matthews, 567 U.S. 37, 43 (2012) (quoting Jackson, 443 U.S. at 319) (emphasis in original). Further, a federal habeas court may not overturn a state court decision rejecting a sufficiency challenge “unless the decision was objectively unreasonable.” Id. (quotation marks and citation omitted). In other words, “where the state courts have denied a claim of insufficient evidence on the merits, we may not grant the writ unless we conclude that no reasonable court could have held that any reasonable [factfinder] could have read the evidence to establish petitioner's guilt beyond a reasonable doubt. ” Garbutt v. Conway, 668 F.3d 79, 81-82 (2d Cir. 2012). Finally, under the AEDPA standard, “federal courts must look to state law for the substantive elements of the criminal offense, but the minimum amount of evidence that the Due Process Clause requires to prove the offense is purely a matter of federal law.” Coleman v. Johnson, 566 U.S. 650, 655 (2012) (internal citation and quotation marks omitted).
A New York state court decision rejecting a sufficiency challenge could not be “contrary to” clearly established Supreme Court precedent because New York's “legally sufficient evidence” standard “is identical to the federal constitutional due process right discussed in Jackson''" Nelson v. Lilley, No. 21 Civ. 6470, 2022 WL 2872648, at *4 n.2 (W.D.N.Y. July 21, 2022) (citing People v. Contes, 60 N.Y.2d 620, 621 (1983)).
1, First degree identity theft
Petitioner argues that the evidence was insufficient to support his conviction for identity theft because the prosecution failed to prove that he knowingly and intentionally defrauded Ms. Godfrey. Dkt. #1, at 3-4. Petitioner presented this argument to the Second Department on direct appeal; the Second Department denied the claim on its merits:
Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 N.Y.2d 620 [1983]), we find that the evidence was legally sufficient to establish the defendant's guilt of identity theft in the first degree beyond a reasonable doubt (see People v Roberts, 31 N.Y.3d 406, 417-425 [2018]; People v Yuson, 133 A.D.3d 1221, 1221-1222 [2015]).People v. Carmichael, 171 A.D.3d at 1085. The Second Department's decision represents the last-reasoned state court decision to address this claim. Accordingly, on habeas review, I must determine whether the Appellate Division's decision was objectively unreasonable. See Parker, 567 U.S. at 43.
Under New York law:
A person is guilty of identity theft in the first degree when he or she knowingly and with intent to defraud assumes the identity of another person by presenting himself or herself as that other person, or by acting as that other person or by using personal identifying information of that other person, and thereby: 1. obtains goods, money, property or services or uses credit in the name of such other person in an aggregate amount that exceeds two thousand dollars; ....N.Y. Penal Law § 190.80 (McKinney) (emphasis added). “Personal identifying information” includes “a person's name, address, telephone number, date of birth, driver's license number, social security number, place of employment,.. . signature or copy of a signature, ... or any other name, number, code or information that may be used alone or in conjunction with other such information to assume the identity of another person.” Id. § 190.77(1). The New York Court of Appeals has clarified the prosecution's burden:
To establish identity theft in the first or second degree, the People must establish as the mens rea that the defendant knowingly and actually intended to defraud by the actus reus of assuming the identity of another. The statute expressly limits the manner by which a defendant assumes the identity of another to three types of conduct: by presenting oneself as that other person, acting as that other person, or using that other person's personal identifying information.. . . [T]he requirement that a defendant assumes the identity of another is not a separate element of the crime. Rather, it simply summarizes and introduces the three categories of conduct through which an identity may be assumed. In other words, the “assumes the identity of another” language is the operational text that sets forth the actus reus of identity theft, while the three types of acts listed are the legislatively-recognized methods by which a defendant satisfies that element. The statute is based on the legislative determination that each listed act is a separate method by which a defendant assumes another's identity, as made clear by the strategic placement of the word “by” to separate the three listed acts from the element which they define: a defendant assumes the identity of another person “by presenting ... as that other person, or by acting as that other person or by using personal identifying information of that other person” (Penal Law §§ 190.79, 190.80 [emphasis added]). The statute is unambiguous as to the proper scope of the actus reus.People v. Roberts, 31 N.Y.3d 406, 419, 104N.E.3d701, 709-10, 71 N.Y.S.2d 597, 605-06 (2018).
Petitioner argues that the prosecution failed to establish intent because the evidence clearly shows that he was misled by Ms. Grater into believing that Ms. Godfrey had agreed to provide her personal information and co-sign the loan. See Dkt. #1, at 4, 19-21. “A federal habeas corpus court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” Lopez v. Capra, No. 18 Civ. 4392, 2022 WL 16856434, at *7 (S.D.N.Y. Nov. 10, 2022) (quotation marks and citations omitted). Here, viewing the evidence summarized above in the light most favorable to the prosecution, a reasonable jury could find, beyond a reasonable doubt, that petitioner-acting in concert with Ms. Grater-knowingly and actually intended to defraud Healey Brothers and Cindy Godfrey by using Ms. Godfrey's personal identifying information, without her authorization, to obtain a loan for a $70,000 vehicle. The Appellate Division's decision was, therefore, not an unreasonable application of clearly established Supreme Court precedent. Accordingly, I conclude and respectfully recommend that petitioner is not entitled to habeas relief on the ground that the evidence was insufficient to support his identity theft conviction.
2. Second degree criminal possession of a forged instrument.
Petitioner also argues that the evidence was insufficient to support his conviction for criminal possession of a forged instrument. Dkt. #1, at 3-4, 21-23. Petitioner presented this argument to the Second Department on direct appeal. See Dkt. #7-17, at 12-15. However, the Second Department clearly overlooked this claim; its decision omits any discussion (or acknowledgment) of petitioner's insufficient evidence claim pertaining to his conviction for criminal possession of a forged instrument. See People v. Carmichael, 171 A.D.3d 1084. Because I conclude that the state court obviously and inadvertently overlooked this claim, I will review the claim de novo. See Johnson v. Williams, 568 U.S. 289, 303 (2013). Nonetheless, under a de novo standard of review, I conclude that petitioner's claim is meritless.
The AEDPA prohibits federal courts from granting relief to an applicant who has not “exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). To exhaust a federal claim, the petitioner must have “fairly present[ed] his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim,” and thus “giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotation marks and citations omitted). The AEDPA also authorizes federal courts to deny habeas petitions on their merits, “regardless of whether the applicant exhausted his state court remedies.” Abuzaid v. Mattox, 726 F.3d 311, 321-22 (2d Cir. 2013) (citing 28 U.S.C. § 2254(b)(2)). The AEDPA “does not articulate a standard for denying a . petition pursuant to Section 2254(b)(2), and neither the Supreme Court nor the Second Circuit has established one.” Nickels v. Conway, No. 10 Civ. 0413, 2015 WL 4478970, at *18 (W.D.N.Y. July 22, 2015), certificate of appealability denied (Dec. 29, 2015). “Courts can, however, deny writs of habeas corpus under § 2254 by engaging in de novo review when it is unclear whether AEDPA deference applies, because a habeas petitioner will not be entitled to a writ of habeas corpus if his or her claim is rejected on de novo review, see § 2254(a).” Berghms v. Thompkins, 560 U.S. 370, 390 (2010). Thus, whether exhausted or unexhausted, petitioner's claim is meritless under a de novo standard of review.
Under New York law, “[a] person is guilty of criminal possession of a forged instrument in the second degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses any forged instrument of a kind specified in section 170.10.” N.Y. Penal Law § 170.25 (McKinney). Pursuant to § 170.10, such forged instruments include contracts and commercial instruments. Id. § 170.10(1). “Forged instrument is defined as “a written instrument which has been falsely made, completed or altered.” Id. § 170.00(7). “A person ‘falsely completes' a written instrument when, by adding, inserting or changing matter, he transforms an incomplete written instrument into a complete one, without the authority of anyone entitled to grant it, so that such complete instrument appears or purports to be in all respects an authentic creation of or fully authorized by its ostensible maker or drawer. Id. § 170.00(5).
Here, petitioner was convicted to two counts of second degree criminal possession of a forged instrument: one count involving the sales contract and the other involving the credit application in Cindy Godfrey's name. Viewing the evidence summarized above in the light most favorable to the prosecution, a reasonable jury could find, beyond a reasonable doubt, that petitioner, without Ms. Godfrey's authority and for the purpose of securing a car loan from Healey Brothers: (1) falsified Ms. Godfrey's work and home telephone numbers, address and salary on the credit application in her name; and (2) knew that Cindy Godfrey's signature had been forged on the credit application in her name and on the sales contract. Thus, based upon the evidence, a reasonable jury could conclude beyond a reasonable doubt that petitioner possessed two forged instruments (the sales contract and the credit application in Cindy Godfrey's name), knowing they were forged and with intent to defraud. Accordingly, the evidence was sufficient to support petitioner's conviction on both counts of second degree criminal possession of a forged instrument.
B. Trial Court's Refusal to Allow Jurors to Take
As his second ground for habeas relief, petitioner contends that he was denied a fail trial because the trial court incorrectly refused to allow jurors to take notes. Dkt. #1, at 5, 25-28. Petitioner presented this claim to the Second Department on direct appeal; the Second Department rejected the claim on procedural grounds and, alternatively, on its merits. People v. Carmichael, 171 A.D.3d at 1086 (“The defendant's remaining contention is unpreserved for appellate review and, in any event, without merit.”).
Federal habeas corpus review of a state court's denial of a state prisoner's federal constitutional claim is barred if the state court's decision rests on an independent and adequate state procedural ground, unless the petitioner can demonstrate cause for the procedural default and actual prejudice resulting from the alleged constitutional violation, or that he is actually innocent. See Bousley, 523 U.S. at 622; Coleman v. Thompson, 501 U.S. 722, 750 (1991). See also Lee v. Kemna, 534 U.S. 362, 375 (2002); Dunham v. Travis, 313 F.3d 724, 729 (2d Cir. 2002). A procedural ground is “independent” if “the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar.” See Harris v. Reed, 489 U.S. 255, 263 (1989) (internal quotation marks and citation omitted). A procedural bar is “adequate” if it is “based on a rule that is firmly established and regularly followed by the state in question.” Monroe v. Kuhlman, 433 F.3d 236, 241 (2d Cir. 2006) (internal quotation and citation omitted).
In certain limited circumstances, however, “even firmly established and regulaily followed state rules will not foreclose review of a federal claim if the application of the rule in a particular case is 'exorbitant.' ” See Garvey v. Duncan, 485 F.3d 709, 713-14 (2d Cir. 2007) (citing Lee, 534 U.S. at 376). To this end, the Second Circuit has set forth the following “guideposts” for evaluating the adequacy of the state procedural bar in the context of the specific circumstances presented in the case, an inquiry that includes an evaluation of the asserted state interest in applying the procedural rule in such circumstances”:
(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.Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (quoting Lee, 534 U.S. at 381-85).
New York's contemporaneous objection rule (codified at section 470.05(2) of New York's Criminal Procedure Law) “provides that, with a few exceptions not applicable here, New York appellate courts will review only those errors of law that are presented at a time and in a manner that reasonably prompted a judge to correct them during criminal proceedings.” Downs v. Lape, 657 F.3d 97, 103 (2d Cir. 2011). Here, prior to opening statements, a juror asked if they could take notes; the trial judge denied the request. T. 331-32. Neither counsel objected. The issue arose again during deliberations via a jury note (“we know no notes during the trial, but are we able to take notes now?”). T. 722. The trial court asked for counsel's position regarding juror note-taking during readbacks. T. 723. The prosecutor stated: “Well, I would say that if we agreed that during testimony we were going to rely on what is in the record, we should continue to do that, no notes from what Barbara reads back from the record.” Id. Defense counsel stated: “I would agree, Judge.” Id. Accordingly, both counsel agreed that the trial court would instruct the jury that they could “make all the notes they want in the jury room to help them make then-decision, but they may not take notes during the readbacks.” Id.
On direct appeal, although the Second Department rejected petitioner's claim that he was denied a fair trial on its merits, it also explicitly invoked an “independent” state procedural ground (New York's contemporaneous objection rule) as a basis for its decision. Where a state court has expressly relied on a procedural default, federal habeas review is foreclosed even if the state court also addressed the merits of the federal claim. See Green v. Travis, 414 F.3d 288, 294 (2d Cir. 2005) (federal habeas review barred where state court held claim “not preserved for appellate review” but then ruled on the merits of the claim “in any event”). See also Murden v. Artuz, 497 F.3d 178, 191 (2d Cir. 2007).
The Second Circuit has consistently recognized New York's contemporaneous objection rule as an independent and adequate state procedural rule barring habeas review. See, e.g, Whitley v. Ercole, 642 F.3d 278, 292 (2d Cir. 2011); Downs, 657 F.3d at 104; Garvey, 485 F.3d at 720; Garcia v. Lewis, 188 F.3d 71,79 (2d Cir. 1999) (federal courts “have observed and deferred to New York's consistent application of its contemporaneous objection rules”). Further, the Appellate Division's application of CPL 470.05(2) in this case was not exorbitant. As to the first Cotto consideration, it is “meaningless to ask whether the alleged procedural violation was actually relied on in the trial court the violation only first occurred when defendant raised an argument on appeal that he had not raised earlier.” See Garvey, 485 F.3d at 719. Indeed, perfect compliance with CPL 470.05 would have given the trial court an opportunity to address head-on the issues petitioner now raises. The second Cotto consideration clearly weighs against petitioner because, as discussed above, New York case law requires compliance with the contemporaneous objection rule under the specific circumstances presented here. The third Cotto consideration similarly disfavors petitioner because, just as in Garvey, petitioner did not simply violate the “formal requirements” of CPL 470.05(2), but rather “the very essence” of the rule. See Garvey. 485 F.3d at 720. Moreover, petitioner's compliance would have served a legitimate purpose in that “ [a]t a bare minimum, the trial court could have developed a factual record supporting its decision[s] that could then properly be reviewed on appeal.” See Whitley, 642 F.3d at 290.
Because there is an adequate and independent finding by the Appellate Division that petitioner procedurally defaulted on the denial of a fair trial claim he now asserts as grounds for habeas relief, petitioner must demonstrate in his habeas petition either “cause for the procedural default and prejudice attributable thereto,” Harris v. Reed, 489 U.S. 255, 262 (1989), or actual innocence,” Schlup v. Delo, 513 U.S. 298 (1995). Petitioner, however, has made no attempt to show cause or prejudice, and there is no indication that this Court s failure to address the merits of the unpreserved claim would result in a fundamental miscarriage of justice. Accordingly, I conclude and respectfully recommend that petitioner's procedural default bars federal habeas review of his denial of a fair trial claim.
Dismissal of a claim for habeas relief on the ground of procedural default amounts to a disposition of the habeas claim on the merits.” See Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011).
C. Consecutive Sentence
Finally, petitioner argues that the trial court illegally imposed a consecutive sentence. “There is no constitutionally cognizable right to concurrent, rather than consecutive, sentences. Cobb v. Lee, No. 14 Civ. 2442, 2022 WL 900570, at *9 (E.D.N.Y. Mai'. 28, 2022) (quoting United Slates v. McLean, 287 F.3d 127, 136 (2d Cir. 2002) (citation omitted). “Whether a sentence should run concurrently or consecutively is purely an issue of state law and is not cognizable on federal habeas review.” Id. (quoting Johnson v. New York, 851 F.Supp.2d 713, 722 (S.D.N.Y. 2012). Petitioner fully litigated this issue on direct appeal in the state courts; the state courts squarely rejected his sentencing claim. See People v. Carmichael, 171 AD.3d at 1084 (“The defendant's contention that the County Court imposed illegal consecutive sentences is without merit.”); People v. Carmichael, 34 N.Y.3d at 979 (denying leave to appeal). “It is not within the mission of a federal habeas court to second guess the resolution of state-law issues by state courts.” Battles v. LaValley, No. 14 Civ. 1399, 2018 WL 4558435, at *6 (E.D.N.Y. Sept. 21, 2018) (citing Mannix v. Phillips, 619 F.3d 187, 199 (2d Cir. 2010)). Accordingly, I conclude and respectfully recommend that petitioner's sentencing claim is non-cognizable on habeas review and should be dismissed.
IV. CONCLUSION
For the reasons set forth above, I conclude - and respectfully recommend that Your Honor should conclude - that the instant petition for a writ of habeas corpus should be denied in its entirety. 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); Slackv. McDaniel, 529 U.S. 473, 483-84 (2000).
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1)(c), Rule 72(b) of the Federal Rules of Civil Procedure and Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts, the parties shall have fourteen (14) days from service of this Report and Recommendation to serve and file written objections. If copies of this Report and Recommendation are served upon the parties by mail, the parties shall have an additional three (3) days, or a total of seventeen (17) days, from service of this Report and Recommendation to serve and file written objections. Fed.R.Civ.P. 6(d). See also Fed.R.Civ.P. 6(a). Such objections, if any, along with any responses to the objections, shall be filed with the Clerk of the Court with extra copies delivered to the chambers of the Hon. Kenneth M. Karas, at the Hon. Charles L. Brieant, Jr. Federal Building and United States Courthouse, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered. See Caidor v. Onondaga County, 517 F.3d 601, 604 (2d Cir. 2008).
Requests for extensions of time to file objections must be made to Judge Karas.
Chambers mailed a copy of this Report and Recommendation to:
Drayvon Carmichael 557 Broadway #37C Ulster Park, NY 12487