Opinion
20-CV-3869 (LGS) (RWL)
07-02-2021
ALI CISSE, Petitioner, v. LETITIA JAMES, Respondent.
REPORT AND RECOMMENDATION TO HON. LORNA G. SCHOFIELD: HABEAS CORPUS
ROBERT W. LEHRBURGER, UNITED STATES MAGISTRATE JUDGE
Ali Cisse, proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction by a jury of robbery and related offenses in the Supreme Court of the State of New York, New York County. Cisse argues that his petition should be granted because (1) the evidence seized from him should have been suppressed under the Fourth Amendment as the fruit of an unlawful arrest; (2) recordings of his phone conversations from Rikers Island were inadmissible at trial because they violated state and federal wiretapping statutes; (3) the identification of Cisse in a mixed visual-and-voice lineup was unduly suggestive and should have been suppressed; and (4) the trial court unduly interfered with jury deliberations by soliciting a partial verdict. For the reasons that follow, I recommend that Cisse's petition be DENIED.
Background
A. The Crime
At approximately 4:00 a.m. on December 1, 2012, Julia Burke, Harvey Robinson, Jason Everett, and Christina Ali left a nightclub in Manhattan. As they walked east on 28th Street, they were approached by two men. (Burke: Tr. 68-69, 73-74, 97, 106, 111, 117, 120-21; 1 Robinson: Tr. 163-65, 183; Everett: Tr. 200, 215, 219, 222.) One of the men, wearing a white bubble coat with “USA” emblazoned on the back, tapped Robinson in the chest with a black gun and asked him, “[y]ou good, you good, you good?” (Robinson: Tr. 165-67, 183; Everett: Tr. 200, 217-18, 222.) The other man approached Robinson and tried to pull a silver chain off his neck. Robinson attempted to grab it back and the chain broke into two pieces. (Burke: Tr. 74, 76-77, 83, 124; Robinson: Tr. 167-68, 184-87; Everett: Tr. 202, 219-20.)
“Tr.” means the transcript of Cisse's jury trial in New York State Supreme Court as submitted by Respondent (Dkt. 15 at 350-594).
Meanwhile, the man in the bubble coat approached Everett and demanded his chain. Everett refused and the man pulled the gun from his pocket, aimed at the ground, and fired several rounds, causing the group to scatter. (Burke: Tr. 74-77, 118-23, 269; Everett: Tr. 202-04, 221-24; Robinson: Tr. 168-70.) Burke ran to Seventh Avenue, turning back more than once to look at the shooter, who was a few feet behind her. The avenue was well lit, and Burke stated that she had a good view of the man's face. Burke stopped and the man walked past her and out of sight. (Burke: Tr. 77-80, 122-27, 139, 274-75.)
Burke called 911, after which she and the rest of the group met in front of the club. Ali had blood streaming down her leg from an abrasion to the upper thigh and was brought to the hospital. (Burke: Tr. 80-84, 270-71; Robinson: Tr. 170-71, 193-94; Everett: Tr. 204-05.) The other victims went to the 10th Precinct with detectives. (Burke: Tr. 142-46; Everett: Tr. 227-28.) There, Burke described the shooter's white “USA” coat. (Burke: Tr. 142-46.) 2
B. The Arrest
On December 5, 2012, Officers Paul Pastorini, Frank Soler, and Stephen Krosky were driving in a marked police car down Lexington Avenue approaching 116th Street. Officer Pastorini observed Cisse, the Petitioner in this case, wearing a white bubble coat with “USA” printed on the back, walking with three other men. After the group observed the approaching police car, they stopped talking, and Cisse slowed to walk in the middle of the group, toward a wall. (Pastorini: Tr. 234-36.)
When the group reached Lexington Avenue, Cisse turned and began walking south while the rest of the group continued walking on 116th Street. Suspicious of Cisse's behavior, Officer Pastorini got out of the vehicle and asked Cisse to stop. Cisse was “obviously nervous” and looked down to the left side of his chest, where Officer Pastorini observed an “L-shaped bulge.” (Pastorini: 7/8/13 Tr. 12-16, 37-39.) Pastorini frisked Cisse and recovered a silver, unloaded, operable .380 caliber pistol from Cisse's inner coat pocket. The serial number on the gun had been defaced. (Pastorini: Tr. 236-40, 245-46; Soler: Tr. 249; Duryea: Tr. 376, 384-92.) The state conceded that it was a different gun than the one used during the robbery. (Tr. 39.)
“7/8/13 Tr.” means the transcript of the first day of Cisse's suppression hearing (Dkt. 15 at 1-58).
Cisse was arrested and taken first to the 25th Precinct and thereafter to the 10th Precinct. At the 10th Precinct, Detective Frank Geosits recovered and photographed Cisse's white “USA” coat. (Pastorini: Tr. 243-44; Geosits: Tr. 341-45.) Detective Geosits read Cisse his Miranda rights, and Cisse made a statement. Cisse stated that he was at the same club as the victims, but was unable to get in. He also stated that his gun went 3 off accidentally as he was going down the street, though he refused to reveal the current location of the firearm. (8/5/13 Tr. 7-15; SR. 90.)
“8/5/13 Tr.” means the transcript of the second day of Cisse's suppression hearing where Detective Frank Geosits was the only witness (Dkt. 15 at 59-139). “SR.” means the State Court Record as submitted by Respondents on August 19, 2020, which includes source documents such as police reports, photographs, and state court filings (Dkts. 14, 14-1).
The detectives recovered multiple MetroCards from Cisse's pants pocket. (Pastorini: 7/8/13 Tr. 18, 45-47.) One of these cards had been used at 4:24 a.m. on December 1, 2012, at the 34th Street Pennsylvania Station subway stop. (Tr. 53, 62-64, 395-97.) That was shortly after the crime took place. Surveillance footage from the 34th Street station at that time showed two men, one in a white bubble coat with “USA” printed on the back, entering the subway station. The other man appeared to be holding a silver chain. (Tr. 40-41, 96, 255-56.)
The only description of the video in the record comes from the State's opening argument. However, the video was played at trial, and Petitioner has never objected to the State's characterization.
C. The Police Lineup
Following his arrest, police placed Cisse in a lineup alongside five fillers. (8/5/13 Tr. 15, 17-23, 35-38, 42, 44, 60-61.) All of the participants wore identical shirts and were seated to mask height differences. (8/5/13 Tr. 22-23, 35-38.) Cisse weighed 175 pounds, and the other participants weighed 125, 175, 180, 185, and 210 pounds, respectively. (8/5/13 Tr. 36-37.) Cisse was 17 years old, and the other participants were 18, 21, 22, 29, and 33 years old, respectively. (8/5/13 Tr. 37-38.)
Two witnesses of the crime viewed the lineup separately. (8/5/13 Tr. 19-21.) Neither witness had contact with the participants prior to the lineup. (8/5/13 Tr. 21.) After 4 each witness had completed viewing the lineup, Detective Geosits asked each of them three questions: whether they recognized anyone from the lineup, who they recognized; and from where. (8/5/13 Tr. 28-29, 31, 57-59, 62.)
Julia Burke viewed the lineup first and, after initially narrowing down the participants to Cisse and one of the fillers, asked if the participants could speak. (8/5/13 Tr. 50.) Cisse and the filler were asked to say, “[a]re you good homie.” (8/5/13 Tr. 50-52.) Burke then identified Cisse as the gunman from the robbery. (8/5/13 Tr. 50-58.) No recording was made of Cisse and the fillers speaking. (8/5/13 Tr. 51.) The second witness, a bouncer at the club the victims left before the robbery, identified a filler as the perpetrator without asking for spoken confirmation. (8/5/13 Tr. 62.)
D. The Rikers Recordings
Following the identification procedure, Cisse was incarcerated at Rikers Island. Upon arrival, Cisse was informed in his welcome booklet that all calls from the jail were randomly monitored and recorded. From December 7, 2012, to February 19, 2013, Cisse made numerous calls using his unique booking case and pin number on the Rikers Island phone system. (McLean: Tr. 285-86, 290, 295-97.) Each time an incarcerated person at Rikers made a call, the person would hear a pre-recorded message stating that the call may be recorded. (McLean: Tr. 285-306.) There was also a sign placed on the wall next to the telephone bank stating in black all-capital letters: “Inmate telephone conversations are subject to electronic monitoring and/or recording in accordance with department policy. An inmate's use of institutional telephones constitutes consent to this monitoring and/or recording.” (McLean: Tr. 290; SR. 1181.) 5
In recorded phone calls that Cisse made from Rikers, he stated that he “bought that coat, ” referring to the white “USA” coat worn during the robbery. (SR. 386-87, 392.) Cisse also referred to instructions he had given to dispose of “Shalom, ” and asked where it was. The other individual on the line responded that it was “gone.” (SR. 388-91.) At trial, Gang Unit Detective Julio LaSalle testified that the words “Shalom” and “the hammer” mean firearms. (LaSalle: Tr. 313.) Cisse further suggested in the calls that the police had him on camera, but that, “I'm walking away. They don't even got my face on that, they just got my back, like the back of the jacket, they just got the USA shit.” (Tr. 390-93.)
E. New York State Supreme Court
1. The Suppression Hearing
Prior to trial, Cisse moved to suppress physical evidence recovered during his arrest, identification evidence derived from the police lineup, and his statement to the police. (See SR. 364-65.) On March 13, 2013, the Honorable Richard D. Carruthers ordered, inter alia, a combined Huntley/Wade/Dunaway hearing. (SR. 363.) Judicial Hearing Officer Herbert J. Adlerberg (the “JHO”) was assigned to the suppression hearing, and Justice Carruthers provided the ruling. The parties appeared before the 6 JHO for the hearing on July 8, 2013, and August 5, 2013. (7/8/13 Tr. 1-58; 8/5/13 Tr. 1-81.)
Dunaway hearings are held to determine whether evidence has been gathered through custodial questioning based on less than probable cause pursuant to Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248 (1979). Huntley hearings are held to determine whether statements made to public officials, such as police, should be suppressed when a defendant claims the statements were involuntary or coerced. People v. Huntley, 15 N.Y.2d 72, 78, 255 N.Y.S.2d 838, 843-44 (1965). Wade hearings are held to determine whether out-of-court, police arranged identification procedures should be suppressed as illegal or suggestive pursuant to United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926 (1967).
The JHO found that there was probable cause to arrest Cisse and that Cisse's coat was admissible as a result. The JHO found credible the two police officers the People presented as witnesses and made factual findings consistent with their testimony. (8/5/13 Tr. 72.) The JHO further found that Cisse's behavior gave Officer Pastorini a “particularly credible reason to make a common law inquiry.” (8/5/13 Tr. 73, 78-79.) Specifically, the JHO found that Officer Pastorini possessed a reasonable suspicion that Cisse was armed after observing the L-shaped object in his coat. The JHO found that Officer Pastorini had appropriately performed a protective frisk and had probable cause to arrest Cisse after the discovery of the firearm. (8/5/13 Tr. 79.) The white bubble coat was, therefore, the fruit of a lawful arrest and admissible at trial. (8/5/13 Tr. 79.)
The JHO concluded that the lineup identification evidence was admissible: the police followed proper protocol, did not suggest to either witness who to select, and did nothing to cause Cisse to stand out for identification. (8/5/13 Tr. 80-81.) All participants were seated, which masked any height differences, and they wore loose-fitting clothing, which masked any weight differences. (8/5/13 Tr. 80-81.) Finally, the JHO found that Cisse's statement to police was voluntarily made. (8/5/13 Tr. 75-76, 79-80.)
On September 4, 2013, Justice Carruthers adopted the JHO's factual findings and legal conclusions without further discussion and denied Cisse's motion to suppress evidence. (Supp. Ruling Tr. 1-2; SR. 361-62.) 7
“Supp. Ruling Tr.” means the transcript of proceedings held before Justice Carruthers on September 4, 2013 (Dkt. 15 at 140-42).
2. The Trial
On April 30, 2014, Cisse proceeded to a jury trial before the Honorable A. Kirke Bartley. At trial, the People called a number of witnesses, including three of the victims: Julia Burke, Harvey Robinson, and Jason Everett. Everett identified Cisse as the robber. (Everett: Tr. 201.) Burke, who had previously identified Cisse during the police lineup, was asked if she saw the robber in the courtroom the day she testified and said, “I don't remember.” (Burke: Tr. 80.)
The People also called Officers Paul Pastorini and Frank Soler, Detectives Geraldo Rivera and Frank Geosits, and numerous police specialists; and played for the jury the recordings of Cisse's phone calls from Rikers and also two videos - one of the incident itself and one from the 34th Street subway station shortly after the robbery was committed - showing Cisse in the white jacket. (E.g., Tr. 93-95 (video of incident), 256 (video from subway station), 296 (phone recordings).)
The defense called no witnesses.
On May 8, 2014, the court issued its final charge, and the jury began its deliberations. Throughout the day, the court received and addressed several notes. At 5:20 p.m., Justice Bartley told the parties that he intended to end deliberations for the day but, given the “tenor of the notes, ” believed the jury was going down the counts one-by-one and had almost finished. The court noted that the jury's last note had specifically addressed count eleven, and the last remaining count, count twelve, “was virtually conceded by the defense.” (Tr. 573-74.) The court expressed its belief that the jury was “close to reaching a verdict.” (Tr. 576.) Justice Bartley then indicated to the parties that 8 he intended to bring the jury out and ask them to indicate “whether they have reached a verdict as to any count.” (Tr. 584.)
Defense counsel objected to making an inquiry of the jury, stating that there was no “indication that they're close to reaching a verdict” other than the fact “that they're just going through the charges in the order of the indictment apparently.” (Tr. 574, 576.) The prosecutor also asked the court to “not solicit a partial verdict” given defense counsel's objections. The court directed that the jury be brought into the courtroom and instructed the jurors as follows:
[F]irstly, I should like to inquire of you, not by way of oral response but by way of note, if you have reached a verdict or verdicts with respect to any of the counts. So, I'm going to ask that you go back into the deliberating room and send me a note indicating whether in fact you have reached a verdict on any count or not.
And, also, being mindful of the fact that it's getting later in the evening, I certainly don't want to rush anybody. But if you think that it would be of value to continue deliberations for a certain period of time, finite period of time, then of course I'll accommodate you with respect to that. If you don't think that that's of value, then of course we'll come back out, we will discuss scheduling.
But again, I want to emphasize, I'm not - I don't want to rush anyone whatsoever. I just want to get a sense of where you think you are so I can be guided accordingly.
So, if you'll return back in and let me know, I would appreciate it. Thank you.(Tr. 585-86.)
At 5:50 p.m., the jury sent the court another note, stating that the jury had reached a verdict on all twelve counts. (Tr. 586-87; SR. 64.) The jury was brought into the court room and convicted Cisse of two counts of first-degree robbery, one count of second- 9 degree robbery, two counts of attempted first-degree robbery, one count of attempted second-degree robbery, two counts of second-degree criminal possession of a weapon, one count of first-degree reckless endangerment, and one count of third-degree criminal possession of a weapon. He was acquitted of one count of attempted second-degree robbery and one count of second-degree assault. (Tr. 587-89.) The court then polled each member of the jury, and each affirmed the verdict. (Tr. 587-93.)
F. The Direct Appeal
Cisse appealed to the New York State Supreme Court, Appellate Division, First Department (the “Appellate Division”). There, Cisse filed a counseled brief arguing, inter alia, that (1) physical evidence recovered from Cisse during his arrest should have been suppressed as the fruits of an unlawful seizure; (2) the trial court improperly interfered with jury deliberations by soliciting a partial verdict; (3) recordings of Cisse's phone conversations from jail were inadmissible because they violated state and federal wiretapping statutes and constitutional principles; and (4) Burke's voice identification of Cisse should have been suppressed on the ground that it was unduly suggestive and trial counsel's failure to assert the argument constituted ineffective assistance. (Pet. App. Brief at 2-3, 65.) The Appellate Division unanimously affirmed the judgment of conviction. People v. Cisse, 149 A.D.3d 435, 53 N.Y.S.3d 614 (1st Dep't 2017).
“Pet. App. Brief” means Cisse's Appellate Division brief as contained in the State Record at SR. 117-203 (Dkt. 14).
The Appellate Division held that Cisse's motion to suppress physical evidence acquired during his arrest was properly denied. Id. at 435-36, 53 N.Y.S.3d at 615-16. The court found that the police officer conducted only a “level one request for information” 10 by telling Cisse to “hold up for a second” and to “turn around, ” while standing about ten or fifteen feet from him. Id., 53 N.Y.S.3d at 615-16. The court concluded that the request for information was “supported by an objective, credible reason, not necessarily indicative of criminality, ” and was based on Cisse's “suspicious behavior when he appeared to notice the marked police car.” Id. at 435, 53 N.Y.S.3d at 616 (internal quotation marks).
The Appellate Division concluded, too, that the trial court properly exercised its discretion in asking the jury whether it had reached a partial verdict, because the trial court “specifically urged the jury not to rush, and there is no indication that the jurors felt compelled to reach a verdict against their will.” Id. at 436, 53 N.Y.S.3d at 616 (internal quotation marks and citation omitted). Additionally, the court found that the jury reaching a full verdict shortly after Justice Bartley's comments did not by itself establish that the trial court's inquiry was coercive. Id.
The Appellate Division also held that the admission of the Rikers Island telephone call records did not violate federal or state wiretapping laws, nor any state or federal constitutional rights. Id., 53 N.Y.S.3d at 616-17.
Finally, the Appellate Division found that Cisse's challenge to Burke's voice identification procedure was both unpreserved for appeal, as defense counsel never moved to suppress that evidence, and meritless. The court rejected the related claim that trial counsel was ineffective for failing to preserve the claim. Id. at 437, 53 N.Y.S.3d at 617.
G. The Court Of Appeals
On April 24, 2017, Cisse applied for leave to appeal to the New York Court of Appeals. (SR. 335-36.) The Court of Appeals granted that application on August 23, 2017. (SR. 342.) 11 Cisse filed a counseled brief and appendix, arguing that: (1) physical evidence recovered from him should have been suppressed as the fruits of an unlawful seizure; (2) recordings of his telephone conversations from Rikers Island were inadmissible; and (3) the trial court improperly interfered with the jury's deliberations by soliciting a partial jury verdict. (SR. 1184-265.) Cisse did not assert a claim challenging the admissibility of Burke's identification evidence. The People filed an opposing brief and Cisse filed a reply. (SR. 1266-26, 1327-62.)
The Court of Appeals unanimously affirmed the decision of the Appellate Division. People v. Cisse, 32 N.Y.3d 1198, 96 N.Y.S.3d 165 (2019). The Court found that Cisse had “impliedly consented” to the monitoring of his Rikers Island phone calls and thus neither the recordings of the calls nor their admission violated state or federal wiretapping statutes. Id., 96 N.Y.S.3d at 166. The Court further found that Cisse's claim that the recording policy violated due process by denying defendants a right to participate in pretrial preparation was “unpreserved.” Id., 96 N.Y.S.3d at 166.
The Court also found that the Appellate Division had adequately considered the suppression hearing record to determine that the police had lawfully engaged in a level-one encounter with Cisse. Id., 96 N.Y.S.3d at 166. The Court found all of Cisse's “other arguments” “unpersuasive.” Id., 96 N.Y.S.3d at 166.
Cisse filed a petition for a writ of certiorari from the United States Supreme Court, which denied the petition on October 7, 2019. Cisse v. New York, __ U.S. __, 140 S.Ct. 83 (2019). 12
H. Subsequent Procedural History
Cisse filed this Petition for a writ of habeas corpus on May 19, 2020. (Dkt. 1.) The case was referred to the undersigned for a Report and Recommendation the next day. (Dkt. 2.) On August 19, 2020, Respondent filed her opposition, the State Court Record (“SR”), and the trial court transcripts. (Dkts. 12-15.) Petitioner had until 30 days after he was served with Respondent's opposition to file a reply. (Dkt. 3.) No reply has been filed.
Standard Of Review
Petitions for writs of habeas corpus are governed by the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Congress enacted AEDPA to limit “the power of federal courts to grant writs of habeas corpus to state prisoners.” Williams v. Taylor, 529 U.S. 362, 399, 120 S.Ct. 1495, 1516 (2000) (O'Connor, J., concurring). Under AEDPA, a district court may consider a state prisoner's application for a writ of habeas corpus “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).
Under AEDPA, a state prisoner's 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” either:
(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). 13
“Deciding whether a state court's decision ‘involved' an unreasonable application of federal law or ‘was based on' an unreasonable determination of fact requires the federal habeas court to ‘train its attention on the particular reasons - both legal and factual - why state courts rejected a state prisoner's federal claims,' and to give appropriate deference to that decision.” Wilson v. Sellers, __ U.S. __,, 138 S.Ct. 1188, 1191-92 (2018) (first quoting Hittson v. Chatman, 576 U.S. 1028, 1028, 135 S.Ct. 2126, 2126 (2015) (Ginsburg, J., concurring in denial of certiorari); then citing Harrington v. Richter, 562 U.S. 86, 101-02, 131 S.Ct. 770 (2011)). A state court decision is “contrary to” clearly established precedent when the state court applies a rule that is “diametrically different, opposite in character, or mutually opposed” to the governing law set forth in Supreme Court cases. Williams, 529 U.S. at 405, 120 S.Ct. 1519 (2000) (internal quotations marks omitted).
Additionally, a “court may grant relief under the unreasonable application clause if the state court correctly identifies the governing legal principle … but unreasonably applies it to the facts of the particular case.” Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 1850 (2002) (internal quotation marks and citation omitted). This inquiry focuses not on whether the state court's application of clearly established federal law was merely incorrect or erroneous but on whether it was objectively unreasonable. See id., 122 S.Ct. at 1850. “Under § 2254(d), a habeas court must determine what arguments or theories supported or… could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Harrington v. Richter, 562 U.S. 86, 102, 131 S.Ct. 770, 786 (2011). 14
AEDPA forecloses “‘using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.'” Parker v. Matthews, 567 U.S. 37, 38, 132 S.Ct. 2148, 2149 (2012) (per curiam)) (quoting Renico v. Lett, 559 U.S. 766, 779, 130 S.Ct. 1855, 1866 (2010)). “A state court's findings are not unreasonable under § 2254(d)(2) simply because a federal habeas court reviewing the claim in the first instance would have reached a different conclusion.” Pine v. Superintendent, Green Haven Correctional Facility, 103 F.Supp.3d 263, 275 (N.D.N.Y. 2015) (citing Wood v. Allen, 558 U.S. 290, 301, 130 S.Ct. 841, 849 (2010)). “The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable - a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 1939 (2007).
Even if a trial-court error meets the standards required by AEDPA, habeas relief is not warranted unless the violation “‘had substantial and injurious effect or influence in determining the jury's verdict.'” Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1722 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253 (1946)); see also Fry v. Pliler, 551 U.S. 112, 121, 127 S.Ct. 2321, 2328 (2007) (confirming continued applicability of Brecht under AEDPA); Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994); Butler v. Graham, No. 07-CV-6586, 2008 WL 2388740, at *6 (S.D.N.Y. June 12, 2008) (recognizing and applying the “substantial and injurious effect” standard).
A petitioner “bears the burden of proving by a preponderance of the evidence that his constitutional rights have been violated.” Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997). A petitioner also bears “the burden of rebutting the presumption of correctness” of state court fact determinations “by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). 15 Where a petitioner proceeds pro se (i.e., without legal representation), the Court must construe his or her submissions liberally and interpret them “to raise the strongest arguments that they suggest.” Kirkland v. Cablevision Systems, 760 F.3d 223, 224-25 (2d Cir. 2014) (internal quotation marks omitted). This does not, however, excuse a petitioner “from compliance with relevant rules of procedural and substantive law.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (internal quotation marks omitted).
AEDPA imposes a number of threshold requirements on habeas petitioners, including that petitioners first properly exhaust their claims in state court. 28 U.S.C. § 2254(b)(1)(A); see also O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 1731 (1999); Galdamez v. Keane, 394 F.3d 68, 72 (2d Cir. 2005). The exhaustion inquiry involves two related questions. “First, a federal court must examine whether applicable state court remedies remain available to the petitioner.” Galdamez, 394 F.3d at 73. A petitioner need not have invoked every possible avenue of state court review, but instead must “‘give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.'” Id. (emphasis in original) (quoting O'Sullivan, 526 U.S. at 845, 119 S.Ct. at 1732). A “complete round” requires presenting the federal claim to the highest court of the state, in this case the New York Court of Appeals. Id. at 73-74.
When state court remedies are no longer available, the claim is “technically exhausted.” Id. at 74; Woodford v. Ngo, 548 U.S. 81, 92-93, 126 S.Ct. 2378, 2387 (2006) (“In habeas, state-court remedies are described as having been ‘exhausted' when they are no longer available, regardless of the reason for their unavailability.”); Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991). In the alternative, if a petition contains any unexhausted 16 claims, “it must be dismissed to enable petitioner to exhaust his unexhausted claims or to file a subsequent petition dropping them.” Grey, 933 F.2d at 120 (citing Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198 (1982)).
“Second, and often of central concern in habeas proceedings, the federal court must assess whether the petitioner ‘ properly exhausted those [state] remedies, i.e., whether [petitioner] has fairly presented his [or her] claims to the state courts,' such that the state court had a fair opportunity to act.” Galdamez, 394 F.3d at 73 (alteration and emphasis in original) (internal citation omitted) (quoting O'Sullivan, 526 U.S. at 848, 119 S.Ct. at 1734). Substantively, the petitioner must have “‘fairly presented'” his claim to state courts by apprising them of “‘both the factual and the legal premises of the claim [the petitioner] asserts in federal court.'” Jones, 126 F.3d at 413 (alteration in original) (quoting Daye v. Attorney General of State of New York, 696 F.2d 186, 191 (2d Cir. 1982) (en banc)).
This second inquiry “embodies the concept of procedural default.” Galdamez, 394 F.3d at 73. Under that doctrine, a petitioner cannot claim to have met the exhaustion requirement “by dint of no longer possessing the right under the law of the State to raise, by any available procedure, the question presented, if at some point the petitioner had that right but failed to exercise it.” Id. at 74 (internal quotation marks and citation omitted) (citing O'Sullivan, 526 U.S. at 848, 119 S.Ct. at 1734). In such a case, the claim is procedurally defaulted, and review of the merits by a federal habeas court is unavailable. See, e.g., Woodford, 548 U.S. at 92-93, 126 S.Ct. at 2387 (finding that if a petitioner's case is exhausted because of a failure to comply with the deadline for appeal, the claim is procedurally defaulted and unreviewable). When a petitioner fails to fairly present a 17 claim to the state courts, the procedural default doctrine bars merits review in federal habeas proceedings “absent a showing of cause for the procedural default and prejudice resulting therefrom, ” Grey, 933 F.2d at 121, or a “fundamental miscarriage of justice, ” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565 (1979).
Discussion
A. Cisse's Fourth Amendment Claim Is Barred
Cisse claims that physical evidence recovered through his December 5, 2012 arrest should have been suppressed under the Fourth Amendment as the fruits of an unlawful search and seizure. (Petition (“Pet.”), Dkt. 1, at 6.) However, federal habeas review of Fourth Amendment search-and-seizure claims is only available when a petitioner can demonstrate that the state courts did not allow for a fair and full litigation of those claims. Stone v. Powell, 428 U.S. 465, 494, 93 S.Ct. 3037, 3052 (1976). Cisse cannot make that showing. His Fourth Amendment claim thus is barred from review by this Court.
In Stone, the Supreme Court held that, “where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, ” federal habeas corpus relief will not lie for claims that illegally obtained evidence is admitted at trial. Id. at 482, 93 S.Ct. at 3046. As such, the availability of federal habeas review for search-and-seizure claims by federal courts is severely limited.
The Second Circuit has delineated a two-part test for determining whether a habeas petitioner may seek habeas review by a federal court under the Stone doctrine. Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992); see also Gates v. Henderson, 468 F.2d 830, 840 (2d Cir. 1977) (en banc). Under Capellan, a habeas petitioner has not had a 18 “full and fair” opportunity to litigate such claims, and a federal court may review them, “(a) if the state has provided no corrective procedures at all to redress the alleged fourth amendment violations; or (b) if the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process.” 975 F.2d at 70. A mere disagreement with a state court's decision does not justify the involvement of a federal court. Id. at 71.
As to the first part of the Capellan test, Cisse cannot establish that New York failed to provide him with corrective procedures to redress alleged Fourth Amendment violations. Indeed, “the federal courts have approved New York's procedure for litigating Fourth Amendment claims, ” which permits criminal defendants to move to suppress evidence before or during trial pursuant to N.Y. Crim. Proc. Law § 710.10 et seq. Capellan, 975 F.2d at 70 n.1 (internal quotation marks omitted); Gates, 568 F.2d at 837 & n.4. Given the availability of those procedures, Cisse's claim can only succeed if he can demonstrate that an unconscionable breakdown in those procedures occurred, effectively precluding him from using them.
Cisse cannot demonstrate any “unconscionable breakdown” in New York's corrective process. Capellan requires a habeas court to examine whether the state's corrective process was rendered “meaningless [because] the totality of state procedures allegedly did not provide rational conditions for inquiry into federal law questions.” 975 F.2d at 70 (internal quotation marks and ellipses omitted); accord, e.g., Green v. Lee, 14-CV-6344, 2016 WL 110524, at *7 (S.D.N.Y. Jan. 8, 2016) (“An unconscionable breakdown occurs when the state court fails to conduct a reasoned inquiry into the Petitioner's claim” (internal quotation marks omitted)), R. & R. adopted, 2016 WL 1275051 (S.D.N.Y. March 31, 2016). 19 There is no indication that such a breakdown occurred in this case.
Cisse was provided adequate opportunity to litigate his claim that the December 5, 2012 arrest was unlawful, and that resulting evidence should be suppressed. Prior to trial, Cisse sought, and the court granted, a suppression hearing on the evidence collected during arrest. (SR. 363.) At that hearing, Cisse's counsel was able to cross-examine the police officers who had participated in Cisse's arrest. (7/8/13 Tr. 19-47, 48-50, 54-56; 8/5/13 Tr. 35-62.) The JHO found that the police were justified in making a common-law inquiry of Cisse given his behavior. (8/5/13 Tr. 78.) Further, the JHO found probable cause when the officer saw the L-shaped bulge in Cisse's coat and discovered the gun via a protective frisk and, as such, his arrest was lawful. (8/5/13 Tr. 78-79.) Justice Caruthers adopted those findings. (Supp. Ruling Tr. 2; SR. 361-62.)
The State Record gives no indication that the suppression hearing was anything but a reasoned inquiry into Cisse's claims. See, e.g., Garcia v. Griffin, No. 16-CV-2584, 2018 WL 9801209, *13 (S.D.N.Y. May 8, 2018) (Fourth Amendment habeas claim not cognizable after petitioner's Fourth Amendment claim was addressed at a suppression hearing and summarily rejected by the Appellate Division), R. & R. adopted, 2019 WL 4917183 (S.D.N.Y. Oct. 4, 2019); Monroe v. Smith, No. 16-CV-2074, 2017 WL 933109, at *9 (S.D.N.Y. March 8, 2017) (Fourth Amendment claim not cognizable where state trial court fully considered claim), R. & R. adopted, 2017 WL 1740427 (S.D.N.Y. May 3, 2017); Haynes v. Ercole, No. 07-CV-3723, 2012 WL 1339434, at *4 (E.D.N.Y. April 17, 2012) (Fourth Amendment claim not cognizable where trial court conducted full suppression hearing). 20
Following trial, Cisse asserted his Fourth Amendment claim on direct appeal. (SR 142-55.) The Appellate Division considered Cisse's claim and rejected it on the merits. Cisse, 149 A.D.3d at 435-36, 53 N.Y.S.3d at 615-16. The Court of Appeals thereafter affirmed the decision of the Appellate Division. Cisse, 32 N.Y.3d at 1200, 96 N.Y.S.3d at 166. Again, the State Record gives no indication that an unconscionable breakdown of process occurred such that this Court could review Cisse's claim. As such, Cisse's Fourth Amendment claim is barred from habeas review.
B. Cisse's Claim That His Recorded Phone Conversations Were Inadmissible At Trial Affords No Basis For Habeas Relief
Cisse claims that both federal and state statutory prohibitions on wiretapping rendered the recordings of his Rikers Island phone conversations inadmissible. Specifically, Cisse alleges that notice is insufficient to imply consent to monitoring; that even if notice of monitoring is capable of implying consent, the State cannot demonstrate implied consent in this case; and, in the alternative, that the recording exceeded the scope of Cisse's limited consent when corrections officers sent the recordings to the district attorney's office. (Pet. at 8.) The Government argues that Cisse makes no federal constitutional claim, that Cisse's challenge under state law is not cognizable on federal habeas review, and that Cisse's federal wiretapping claims are meritless. (Resp. Mem. at 21.) The Government is correct on all points. 21
“Resp. Mem.” means the Government's memorandum in opposition to Cisse's habeas petition (Dkt. 13).
1. Cisse Makes No Federal Constitutional Claim
Cisse does not assert any federal constitutional claim about the introduction of his phone calls, instead relying solely on the federal and state wiretapping statutes. (Pet. at 8.) Even if he did, however, those claims would be procedurally barred.
Before the trial court, Cisse arguably claimed that the introduction of his recorded phone calls violated his Fifth Amendment due process rights and his Sixth Amendment right to counsel. (See, e.g., Tr. 21-32.) Before the Appellate Division, however, Cisse conceded that recent controlling precedent barred his Sixth Amendment claim, and thus advanced only a Fifth Amendment claim and a right to counsel claim under the New York State Constitution (as well as his statutory wiretapping claims and another state statutory claim). (SR 163-89.)
Before the Court of Appeals, Cisse also dropped his Fifth Amendment claim, and instead relied exclusively on the State Constitution for his due process and right to counsel claims (while still advancing his claims under the state and federal wiretapping statutes, as well as another state statute). (SR 1236-60.) As a result, Cisse's federal constitutional claims were not fairly presented to the state courts, are deemed unexhausted, were procedurally defaulted, and would be unreviewable by this Court even if submitted on the instant Petition. See 28 U.S.C. § 2254(b)(1)(A) (requiring exhaustion of state court remedies); Grey, 933 F.2d at 120-21 (where petitioner failed to present certain claims to the New York Court of Appeals, the claims were “deemed exhausted” - as state court remedies were no longer available - but were procedurally defaulted; 22 petitioner's forfeiture of his claims barred him from litigating those claims in federal habeas proceedings).
Moreover, the Court of Appeals found Cisse's state constitutional due process claim unpreserved. Cisse, 32 N.Y.3d at 1200, 96 N.Y.S.3d at 166. Federal habeas courts are precluded from reviewing the merits of a state court decision that relied on adequate and independent state law grounds. See Cone, 556 U.S. at 465 (“when a Petitioner fails to raise his federal claims in compliance with relevant state procedural rules, the state court's refusal to adjudicate the claim ordinarily qualifies as an independent and adequate state ground for denying federal review”).
2. Statutory Wiretapping Claims
While Cisse does not advance a federal constitutional claim before this Court, he does purport to advance claims under both federal and state wiretapping statutes. Those claims, however, also fail. First, Cisse's claims under state wiretapping law are not subject to habeas review. Issues of state law do not raise federal questions necessary for habeas review. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 480 (1991) (“we reemphasize that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions”); see also, e.g., Kirby v. Senkowski, 141 F.Supp.2d 383, 398 n.8 (S.D.N.Y. 2001) (claim involving a New York wiretapping statute “constitutes a state law claim that cannot be raised in a habeas petition”).
Second, Cisse's claim in connection with the federal wiretapping law fails on the merits. See Title III of the Omnibus Crime Control And Safe Streets Act, 18 U.S.C §§ 2510-22. To allege a cognizable federal habeas claim for the violation of a federal statute, a petitioner must establish that the “claimed error of law was a fundamental defect 23 which inherently result[ed] in a complete miscarriage of justice, ” and that the error “present(s) exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.” Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 2305 (1974) (internal quotation marks omitted); see also Reed v. Farley, 512 U.S. 339, 353-54 (1994). That standard has been applied to habeas review of Title III claims. See, e.g., Lord v. Lambert, 347 F.3d 1091, 1094 (9th Cir. 2003); Hussong v. Warden, Wisconsin State Reformatory, 623 F.2d 1185, 1190-91 (7th Cir. 1980); Gjelaj v. Ercole, No. 09-CV-3126, 2012 WL 4450983, at *15 (S.D.N.Y. Feb. 9, 2012), R. & R. adopted, 2012 WL 4435299 (S.D.N.Y. Sept. 26, 2012). Cisse comes nowhere close to satisfying the standard; he impliedly consented to the recordings and can therefore allege no violation, let alone a “complete miscarriage of justice.”
Cisse does not name Title III in his Petition, alleging only violation of “federal wiretapping statutes.” (Pet. at 8.) However, his counseled briefs to the Appellate Division and the Court of Appeals are argued under Title III. (SR. 167-68, 1238.)
The Government also argues that the restrictions imposed by Stone v. Powell on Fourth Amendment search-and-seizure claims apply with equal force to Title III wiretapping claims. (Resp. Mem. at 26.) The Second Circuit has not decided that question. See Cruz v. Alexander, 669 F.2d 872, 874 n. 2, 875-76 & n. 4 (2d Cir.1982), decision clarified, 708 F.2d 31, 34 (2d Cir.1983) (assuming that Title III claims are subject to habeas review because the district court reached the merits of the claim, but expressing “no view” as to the district court's preliminary holding that Stone does not extend to Title III claims); Lasso-Reina v. Haponick, No. 05-CV-8817, 2009 WL 3334843, at *16 n. 14 (S.D.N.Y. Oct. 14, 2009) (collecting cases). Because Cisse's Title III claim fails on the merits, this Court need not and does not address the issue.
a. Cisse Voluntarily Consented To Recording
Title III generally forbids the intentional interception of wire communications, including phone calls, without court-ordered authorization. 18 U.S.C. § 2515. This prohibition applies to the prison context. United States v. Amen, 831 F.2d 373, 378 (2d Cir. 1987) (“Title III clearly applies to prison monitoring”). But the statute provides a relevant exception: it is not unlawful for “a person acting under color of law to intercept a 24 wire, oral, or electronic communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.” 18 U.S.C. § 2511(2)(c). Consent under the statute may be either express or implied. United States v. Workman, 80 F.3d 688, 692-93 (2d Cir. 1996). Consent can be implied when the surrounding circumstances indicate that the defendant knowingly agreed to the surveillance. Amen, 831 F.2d at 378.
Courts in the Second Circuit have consistently found that, so long as a prisoner is given adequate notice that his telephone calls will be recorded, his use of prison telephones constitutes implied consent to recording. Workman, 80 F.3d at 693; United States v. Willoughby, 860 F.2d 15, 19-20 (2d Cir. 1988); Amen, 831 F.2d at 378-79; United States v. Simmons, No. 13-CR-6025, 2016 WL 285176, at *24 (W.D.N.Y. Jan. 22, 2016), R. & R. adopted, 2016 WL 1127802 (W.D.N.Y. March 23, 2016). For example, in Workman, the Second Circuit found implied consent where the prison both supplied the prisoner with a handbook notifying the prisoner of potential phone monitoring and placed a sign to that effect next to the phone bank. 80 F.3d at 693; see also Amen, 831 F.2d at 379 (finding implied consent when the prisoner received actual notification of phone monitoring via signs posted near the telephone bank, a prison handbook, and an orientation lecture).
The circumstances of Cisse's imprisonment establish that Cisse was aware that his calls would be monitored and that his usage of Rikers Island phones constituted consent to monitoring. As in Workman and Amen, Cisse received a manual that stated his calls would be recorded. (Tr. 290.) There also was a sign displayed on the same wall as the phone bank, stating in black all-capital letters: “Inmate telephone conversations 25 are subject to electronic monitoring and/or recording in accordance with department policy. An inmate's use of institutional telephones constitutes consent to this monitoring and/or recording.” (Tr. 290; SR. 1181.) Finally, Cisse had an additional form of notice beyond that in Amen and Workman: when a prisoner placed a phone call, an audio recording informed the prisoner that the call may be monitored. (Tr. 299.) As such, Cisse was aware of the potential for recording and impliedly consented to that recording.
Cisse was under no obligation to place the phone calls at issue nor to discuss aspects of his case during the calls. The Appellate Division arrived at this same conclusion. Cisse, 149 A.D.3d at 436, 53 N.Y.3d at 617 (finding that Cisse “chose to assume the risks involved in making unprotected case-related communications”). The trial court shared this view, finding that “voluntariness [was not] at issue given the context of the phone calls, ” and agreed with the People that there was “an abundance of evidence that adequate notice was given.” (Tr. 158.) Cisse's claim that he had no choice but to make the calls is unavailing. While the issue has yet to come up in the Second Circuit, other circuits have squarely rejected this argument. See United States v. Verdin-Garcia, 516 F.3d 884, 894 (10th Cir. 2008) (“A prisoner's voluntarily made choice - even a Hobson's choice - to use a telephone he knows may be monitored implies his consent to be monitored”); United States v. Horr, 963 F.2d 1124, 1126 (8th Cir. 1992) (rejecting defendant's claim that he had no choice concerning whether he wanted his calls monitored). Accordingly, Cisse provided consent to recording of his telephone calls.
b. Cisse's Consent Was Not Exceeded When The Recordings Were Disseminated To The District Attorney's Office
Cisse's claim in the alternative, that the scope of his consent did not include dissemination of the calls to the district attorney's office, is likewise meritless. Although 26 the Second Circuit has yet to squarely address the issue, the Fourth and Eighth Circuits have done so. In United States v. Hammond, the Fourth Circuit found that, where a prison legally records an incarcerated person's phone conversations, the prison is thereafter exempted from further restrictions under Title III and may share those recordings with law enforcement officials. 286 F.3d 189, 192-93 (4th Cir. 2002). Similarly, the Eighth Circuit found that once a prisoner consents to the recording of his conversations, there is no reasonable expectation of privacy and no reason not to believe that recorded evidence would be admissible, just like any other legally obtained evidence. United States v. Eggleston, 165 F.3d 624, 626 (8th Cir. 1999). An individual thus has no right to control the dissemination of recordings once consent is given for their initial creation. Having impliedly consented to the recording of his telephone calls, Cisse had no reasonable expectation of privacy in those calls, nor reason to believe that the evidence gained would be inadmissible.
As discussed, for Cisse to succeed on his claim on the merits, he must demonstrate not just a violation of Title III, but a “fundamental defect which inherently result[ed] in a complete miscarriage of justice.” Davis, 417 U.S. at 428 (internal quotation marks and citation omitted). Cisse cannot demonstrate any violation of Title III, let alone a “fundamental defect” given the extensive notice of call monitoring Rikers Island provided. His habeas claim based on Title III thus fails on the merits.
C. Cisse's Claim That The Police Lineup Was Unduly Suggestive Is Procedurally Defaulted And Barred From Habeas Review
Cisse claims that the identification evidence derived from the mixed-visual-and-voice lineup should have been suppressed as unduly suggestive. (Pet. at 11.) As the Government correctly argues, however, Cisse's claim is procedurally defaulted, and 27 merits review by a federal court is therefore unavailable. (Resp. Mem. at 33-34.) This Court cannot review Cisse's claim for two reasons. First, the claim is procedurally defaulted because Cisse failed to include that claim in his appeal to the Court of Appeals. Second, the claim is barred on adequate and independent state law grounds because the Appellate Division held that the claim was unpreserved for appeal.
1. Cisse's Lineup Claim Is Procedurally Defaulted Due To His Failure To Present The Claim To The New York Court of Appeals
Cisse failed to include his lineup claim in his appeal to the Court of Appeals. As such, his claim is technically exhausted, procedurally defaulted, and not properly before this Court.
Cisse's lineup claim is deemed exhausted. He has already completed a full round of appeals - he appealed first to the Appellate Division, Cisse, 149 A.D.3d 435, 53 N.Y.S.3d 614, and then to the Court of Appeals, Cisse, 32 N.Y.3d 1198, 96 N.Y.S.3d 165. He cannot again seek leave to appeal to the Court of Appeals because he has already made the one request for leave to appeal to which he is entitled. See N.Y. Court Rules § 500.10(a). Nor can Cisse avail himself of collateral review - collateral review by New York courts is not available for claims that have already been addressed on the merits in direct appeal. See N.Y. Crim. Proc. Law § 440.10(2)(a)-(c. Cisse's claim is therefore technically exhausted. See Woodford, 548 U.S. at 92-93, 126 S.Ct. at 2387; Galdamez, 394 F.3d at 74.
Cisse's claim is also procedurally defaulted, however, because he failed to bring his lineup claim before the New York Court of Appeals, thereby depriving that court of a fair opportunity to act on his claim. See Galdamez, 394 F.3d at 73-74 (to properly exhaust all state court remedies, petitioner must have raised the claim at every level of direct appeal). 28 Accordingly, his lineup claim cannot be reviewed by this Court. See Woodford, 548 U.S. at 92-93, 126 S.Ct. at 2387.
2. Cisse's Claim Is Barred On Adequate And Independent State Law Grounds
Cisse's lineup claim is also barred on adequate and independent state law grounds. That is because he did not make a contemporaneous objection to law enforcement's failure to record the voice lineup at trial as required by state procedural law. N.Y. Crim. Proc. Law § 470.05(2); see also People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 175 (1995); People v. Stanley, 85 A.D.3d 638, 638-39, 925 N.Y.S.2d 507, 508 (1st Dep't 2011) (finding a defendant's claim concerning a lineup unpreserved after the defendant failed to make a specific objection at trial). The Appellate Division found the claim “unpreserved” for this very reason, Cisse, 149 A.D.3d at 437, 53 N.Y.S.3d at 617, unambiguously resting its decision on a state law procedural bar.
Habeas courts are generally precluded from reviewing the decisions of state courts when those decisions rely on adequate and independent state law grounds. Coleman, 501 U.S. at 750, 111 S.Ct. at 2565; Messiah v. Duncan, 435 F.3d 186, 195 (2d Cir. 2006). A decision is independent when it is not “interwoven with federal law” but instead “appear[s] to rest primarily on state procedural law.” Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir. 2006). If a state court judgment is based on sufficient state law grounds, it is considered independent of federal law even where the court reaches the merits of a federal claim as an alternative holding. See Harris v. Reed, 489 U.S. 255, 264 n.10, 109 S.Ct. 1038, 1044 n.10 (1989) (requiring federal courts to respect “a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law”); see also Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999) (“There is no 29 question that the Appellate Division's explicit invocation of the procedural bar constitutes an ‘independent' state ground, even though the court spoke to the merits of [the petitioner's] claim in an alternative holding” (internal citation omitted)). A decision is adequate when the state procedural rule it relies upon is “firmly established and regularly followed.” Walker v. Martin, 562 U.S. 307, 316, 131 S.Ct. 1120, 1127 (2011) (internal quotation marks omitted); Bierenbaum v. Graham, 607 F.3d 36, 47 (2d Cir. 2010) (internal quotation marks omitted).
Adequate and independent state law grounds include state procedural rules. “[W]hen a Petitioner fails to raise his federal claims in compliance with relevant state procedural rules, the state court's refusal to adjudicate the claim ordinarily qualifies as an independent and adequate state ground for denying federal review.” Cone, 556 U.S. at 465, 129 S.Ct. at 1780. New York's contemporaneous objection requirement is such a procedural rule. The contemporaneous objection rule, as a matter of state procedural law, is clearly an independent state law ground. See Downs v. Lape, 657 F.3d 97, 102 (2d Cir. 2011); Jimenez, 458 F.3d at 138. Further, the rule is “firmly established and regularly followed, ” thereby satisfying the adequacy requirement. See Downs, 657 F.3d at 103-04 (collecting cases). Indeed, the Second Circuit has consistently found the contemporaneous objection rule to be an adequate and independent state law ground 30 sufficient to bar habeas review. Id. at 102, 104. As such, Cisse's claim barred on adequate and independent state law grounds and review by this Court is precluded.
Under New York's contemporaneous objection rule, a “specific objection” must be presented at trial to preserve the question for appeal. See Gray, 86 N.Y.2d at 19-22, 629 N.Y.S.2d at 175-77; N.Y. Crim. Pro. Law § 470.05(2) (for a question of law to be preserved, parties must present such protest at the time of relevant ruling). New York's rule requires “that any matter which a party wishes the appellate court to decide have been brought to the attention of the trial court at a time and in a way that gave the latter the opportunity to remedy the problem and thereby avert reversible error.” Richardson v. Greene, 497 F.3d 212, 218 (2d Cir. 2007) (internal quotation marks omitted).
3. Cisse Can Show No Justification For The Procedural Default And Bar
Notwithstanding Cisse's procedural default and state-law bar, the Court may hear the merits of Cisse's lineup claim upon a showing of “cause” and “prejudice, ” or a “fundamental miscarriage of justice.” Graves v. Cunningham, No. 09-CV-5837, 2010 WL 2942614, at *10 (S.D.N.Y. May 26, 2010) (quoting Fama v. Commissioner of Correctional Services, 235 F.3d 804, 809 (2d Cir. 2000)), R. & R. adopted, 2010 WL 2985473 (S.D.N.Y. May 26, 2010); see also Coleman, 501 U.S. at 750, 111 S.Ct. at 2565. Cisse fails to show either.
To show cause, Cisse must demonstrate “that some objective factor external to the defense impeded efforts to comply with the State's procedural rule.” Graves, 2010 WL 2942614 at *10 (internal quotation marks and ellipses omitted). Common examples include “(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.” Id. (citing Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. at 2646 (1986)).
Neither Cisse's Petition nor the State Record shows that any objective factor external to the defense impeded Cisse from raising his lineup claim before the Court of Appeals or complying with the State's contemporaneous objection rule. Moreover, as Cisse has failed to show cause, the Court need not determine whether Cisse has 31 established prejudice. See Id. at *13 (“Because Petitioner fails to show cause, the Court need not address his claim of prejudice”).
Cisse also fails to show that a refusal to hear the merits of his claim would result in a “fundamental miscarriage of justice.” Graves, 2010 WL 2942614, at *10 (internal quotation marks omitted). This exception to the cause requirement is “rare, ” and used only in an “extraordinary case.” Schlup v. Delo, 513 U.S. 298, 299, 115 S.Ct. 851, 853 (1995). To demonstrate a fundamental miscarriage of justice, a petitioner must put forward new evidence that would make it “‘more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt.'” Graves, 2010 WL 2942614, at *13 (quoting Schlup, 513 U.S. at 327, 115 S.Ct. at 867). Cisse has not come forward with any such new evidence.
In sum, because Cisse's lineup claim is procedurally defaulted and barred, and he fails to show cause and prejudice or a fundamental miscarriage of justice, review of the merits is precluded.
D. The Trial Court Did Not Violate Clearly Established Federal Law In Asking Whether The Jury Had Reached A Partial Verdict
Finally, Cisse claims that the trial judge improperly solicited a partial verdict from the jury, in violation of Cisse's Sixth and Fourteenth Amendment rights, when he inquired as to whether the jury had reached a verdict as to any count. (Pet. at 9.) The Government argues that there could be no violation of “clearly established federal law” as required under AEDPA, because the Supreme Court has yet to rule on the solicitation of partial jury verdicts. (Resp. Mem. at 32-33.) The Government is correct.
AEDPA permits review by a federal court in two situations: where a claim was “adjudicated on the merits” by a state court and the adjudication either (1) “resulted in a 32 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.” 28 U.S.C. § 2254(d). “Clearly established federal law” refers only to “the holdings, as opposed to the dicta, ” of the Supreme Court decisions extant at the time of the state court adjudication. Williams, 529 U.S. at 412, 120 S.Ct. at 1523. Where the Supreme Court has made no statement on a question of law, there can be no violation of “clearly established federal law.” Lopez v. Smith, 574 U.S. 1, 2, 5-7, 135 S.Ct. 1, 2, 3-4 (2014) (per curium); Lewis v. Marshall, 612 F.Supp.2d 185, 190 (N.D.N.Y. 2009) (“In the absence of a holding of the Supreme Court regarding the issue presented on habeas review, ‘it cannot be said that the state court unreasonably applied clearly established Federal law'”) (quoting Carey v. Musladin, 549 U.S. 70, 77, 127 S.Ct. 649, 654 (2006)).
The Supreme Court has yet to comment on the practice of soliciting a partial jury verdict. See, e.g., Adamson v. Griffin, No. 16-CV-0511, 2016 WL 6780011, at *5 (S.D.N.Y. Nov. 16, 2016) (“there is nothing … in U.S. Supreme Court case law that specifically suggests that … an inquiry regarding a partial verdict offends any fundamental principle of justice”); Vargas v. Hedgpeth, No. 09-CV-1697, 2010 WL 3521919, at *8, 11 (E.D. Cal. Sept. 8, 2010) (there is “no indication of any Supreme Court authority regarding partial verdicts in [the context of sua sponte invitations to deliver a partial verdict].”). Accordingly, there is no clearly established federal law governing the solicitation of partial verdicts, and thus no constitutional violation meriting habeas relief.
Separate from the distinction between a full and partial verdict, a trial judge's coercion of a jury into giving a verdict violates a criminal defendant's right to a fair trial 33 under the Sixth Amendment. Lowenfield v. Phelps, 484 U.S. 231 (1988); Smalls v. Batista, 191 F.3d 272, 280-83 (2d Cir. 1999). In addition, so-called Allen charges, intended to “blast loose” deadlocked juries, require special admonitions to each juror not to abandon any conscientiously held belief. United States v. McDonald, 759 F.3d 220, 224 (2d Cir. 2014).
The trial judge's solicitation of a partial verdict, however, was not an Allen charge. See McDonald, 759 F.3d at 224 (describing Allen charges). And there is simply nothing in the record to suggest that the trial court's solicitation of the partial verdict or other comments in this case coerced the jury into reaching a verdict. To the contrary, after instructing the jury to produce a note indicating whether it had reached a verdict on any count, the judge told the jurors that he “certainly [didn't] want to rush anybody, ” and that they could take more time that evening or come back to schedule further deliberation for the following days. (Tr. 585-86.) He then reiterated and emphasized, “I don't want to rush anyone whatsoever.” (Tr. 586.) See United States v. Barner, 561 Fed.Appx. 33, 36 (2d Cir. 2014) (trial court's instruction to deadlocked jury did not violate defendant's right where the court told the jurors to, inter alia, take all the time they felt was necessary); Campos v. Portuondo, 193 F.Supp.2d 735, 748 (S.D.N.Y. 2002), aff'd, 320 F.3d 185 (2d Cir. 2003) (due process not violated where judge did not insist on verdict, did not single out minority jurors, and there was no evidence of coercion).
Accordingly, Cisse's claim that the trial court violated his constitutional rights by asking the jury if they had reached a verdict on any counts fails on the merits. 34
Conclusion
For the foregoing reasons I recommend that Cisse's petition for habeas corpus be dismissed in its entirety.
Procedures For Filing Objections
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of Court, with extra copies delivered to the Chambers of the Honorable Lorna G. Schofield, United States Courthouse, 40 Foley Square, New York, New York 10007, and to the Chambers of the undersigned, United States Courthouse, 500 Pearl Street, New York, New York 10007. FAILURE TO FILE TIMELY OBJECTIONS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 35