Opinion
9:21-cv-00708-BKS-TWD
11-03-2023
WIGBERTO OSORIO, Petitioner, v. SUPT. JOHNSON, Respondent.
WIGBERTO OSORIO, Petitioner, pro se LETITIA JAMES Attorney General for the State of New York Attorney for Respondent PRISCILLA I. STEWARD, ESQ. Assistant Attorney General
WIGBERTO OSORIO, Petitioner, pro se
LETITIA JAMES Attorney General for the State of New York Attorney for Respondent
PRISCILLA I. STEWARD, ESQ. Assistant Attorney General
REPORT-RECOMMENDATION AND ORDER
THERESE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
This matter has been referred for a report and recommendation by the Hon. Brenda K.
Sannes, Chief United States District Judge, pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c). Petitioner Wigberto Osorio (“Petitioner”), a New York State prisoner appearing pro se, seeks federal habeas corpus relief pursuant to 28 U.S.C. § 2254. (Dkt. No. 1.) He is currently incarcerated at Green Haven Correctional Facility. Id. at 1. In 2017, following a trial by jury, Petitioner was convicted in Onondaga County Court of murder in the second degree, assault in the first degree, attempted kidnapping in the second degree, gang assault in the first degree, and criminal possession of a weapon in the third degree. State Court Record (“SR”) 12. He was sentenced, as a second felony offender, to an aggregate prison term of 25 years to life. Id. The Appellate Division, Fourth Department, affirmed the conviction on January 31, 2020, and the Court of Appeals denied leave to appeal on April 27, 2020. SR 605-06, 619. This action followed. (Dkt. No. 1.)
The State Court record can be found at Dkt. Nos. 11 and 11-1.
Petitioner contends he is entitled to federal habeas relief because (1) he was denied the effective assistance of trial counsel; (2) he was denied the effective assistance of appellate counsel; (3) he is actually innocent of the crimes of which he was convicted; and (4) the indictment was defective because of the false testimony of two prosecution witnesses at the Grand Jury. (Dkt. No. 1 at 6, 8, 9.) Respondent, through the State of New York, filed an answer to the petition, together with the pertinent state court records and a memorandum of law. (Dkt. Nos. 10, 11.) Respondent contends Petitioner's claim the Grand Jury proceedings were defective is meritless and not cognizable; his actual innocence claim is meritless and not cognizable; and his ineffective assistance of counsel claims are meritless and unexhausted. (Dkt. No. 10-1 at 1526.) Petitioner then filed a traverse. (Dkt. No. 13.)
For the reasons that follow, the Court recommends the petition be denied and dismissed, and that no certificate of appealability be issued.
II. BACKGROUND
On August 1, 2014, at around 6:15 PM, brothers Juan Martinez and Edward Loraino were shot in the City of Syracuse, killing Martinez and severely injuring Loraino. (Dkt. No. 11-3 at 186-88.) On August 3, 2014, at 12:16 AM, Syracuse Police were dispatched to a shooting at 825 South Wilbur Street. (Dkt. No. 11-2 at 603-04.) When they arrived, the victim, Juan Fuentes Diaz was unconscious and not breathing. Id. at 604-07. Diaz later died. Id. at 618.
According to the trial testimony of the sole accomplice, Cesar Sanchez, Diaz was killed in retaliation for Martinez's death. Id. at 644-45. On the night of August 2, 2014, Jose Cruz-Rivera, Petitioner, Marcus Carrasquillo, and Ricky Santa drove around in a minivan looking for Diaz because they believed he was responsible for killing Sanchez, who was the brother of Cruz-Rivera's girlfriend. Id. at 639-45; (Dkt. No. 11-3 at 186). At around midnight, Petitioner's group found Diaz talking with Cesar Sanchez on the street. (Dkt. No. 11-2 at 639-40, 743, 769.) Petitioner, Carrasquillo, and Santa exited the van and beat Diaz with baseball bats. Id. at 640, 644-45.) Cruz-Rivera then ordered Sanchez to put Diaz in the van. Id. at 646-47. When Sanchez was unable to do so, Cruz-Rivera pulled out a handgun and shot Diaz multiple times, killing him. Id. at 647-50.
A. Pre-Trial Proceedings
An Onondaga County grand jury charged Petitioner with murder in the second degree, attempted kidnapping in the second degree, gang assault in the first degree, two counts of assault in the first degree, gang assault in the second degree, two counts of assault in the second degree, and criminal possession of a weapon in the third degree. SR 16-18. Prior to trial, Petitioner moved to dismiss the indictment on the grounds that the evidence was legally insufficient to support the indictment and that the proceeding was defective. SR 22. In a written decision issued on August 11, 2016, the court denied the motion. SR 22-23.
In a letter dated October 13, 2016, the prosecutor notified the defense and the court that she had met with Leslie Osorio, who testified before the grand jury and was scheduled to testify at trial. SR 93-94. Osorio admitted she had lied to avoid testifying. SR 93. Specifically, Osorio stated she had lied both in her statement to the police and in her grand jury testimony about Petitioner and Sanchez coming to her house after the murder with blood on their clothes, and Cruz-Rivera coming to her house with a gun. Id. Osorio stated her boyfriend, Ricardo Colberg, had coerced her into giving the false statements because he thought it would benefit him in an unrelated pending criminal case. Id. Osorio maintained, however, the other aspects of her statements and grand jury testimony were truthful, including that before the murder, Diaz had come to her house and soon thereafter Petitioner and Cruz-Rivera stopped by looking for Diaz. Id. Based on Osorio's disclosure, Petitioner renewed his motion to dismiss the indictment. SR 98-103. Petitioner argued Osorio's perjured testimony rendered the grand jury proceeding defective and, without her testimony, Sanchez's accomplice testimony was uncorroborated. Id.
The Court heard Petitioner's argument on the motion on October 17, 2016. (Dkt. No. 112 at 132-64.) The People argued dismissal was unwarranted because the People did not knowingly use perjured testimony, the People immediately advised defense counsel of the perjury, and even without that testimony, the evidence was legally sufficient to support each count of the indictment, and Sanchez's testimony was sufficiently corroborated. Id. at 141-46. Attorneys for Petitioner and Cruz-Rivera both argued that if Osorio had offered perjured testimony, then Sanchez also gave perjured testimony in providing the same account of having gone to Osorio's house after the murder with Petitioner, wearing bloody clothes. Id. at 150-58. However, the prosecutor claimed Sanchez denied lying to the grand jury when confronted with Osorio's recantation. Id. at 147.
The Court denied Petitioner's motion to dismiss the indictment, finding that the prosecution did not intentionally use perjured testimony, the remaining testimony provided legally sufficient evidence to support the crimes charged, and the integrity of the proceedings was not compromised. Id. at 160-61.
On April 22, 2017, two days before trial was set to begin, the prosecutor informed the defense and the Court she had met with Sanchez and again confronted him about Osorio's recantation of her grand jury testimony. SR 127. Sanchez admitted his grand jury testimony about going to Osorio's house with Petitioner after the murder with blood on their clothes was false. Id. He also claimed Colberg had told him to give this false information because Colberg believed it would help him in an unrelated criminal matter. Id. However, Sanchez claimed that the remainder of his testimony had been truthful. Id.
Based on Sanchez's disclosure, Petitioner renewed his motion to dismiss the indictment. SR 121-28. On April 24, 2017, the Court denied the renewed motion on the same grounds on which the initial motion was rejected: the People did not knowingly or negligently present perjured testimony to the grand jury, the remainder of the evidence was legally sufficient to support the charges, and the proceeding was not rendered defective. (Dkt. No. 11-2 at 193-94, 201.)
B. Jury Trial
Petitioner's jury trial commenced on April 24, 2017, in Onondaga County Supreme Court. (Dkt. No. 11-2 at 177.) The People called Joshua Emmons, Donna Silkworth, Det. Steven Kilburn, Cesar Sanchez, and Leslie Osorio.
Joshua Emmons and Donna Silkworth lived in the area where Diaz was killed and witnessed portions of Diaz's murder from their homes. At around midnight, on August 3, 2014, Emmons was watching television when he “heard a lot of commotion outside” which he described as “[a] guy yelling” what sounded like “[n]o, please.” (Dkt. No. 11-2 at 776.) He looked out his window onto South Wilbur Avenue and saw “a guy hitting another guy with a baseball bat.” Id. at 777. The attacker, whose back was facing Emmons, wore all black with a hood over his head and was hitting the victim on his head, legs, and arms. Id. at 779.
Soon thereafter, another person, also dressed in black with his hood over his head, went to the back of a minivan, grabbed another baseball bat, and started hitting the victim. Id. at 780. Emmons could not see his face. Id. at 781. The attackers then tried to get the victim into a minivan by dragging him by his shirt and arms. Id. at 782. When that effort failed, another man who “looked like he got tired of it” pulled a gun from his waist area and shot the victim. Id. at 782, 785.
Additionally, Emmons saw one person sitting in the driver's seat of the van and another person sitting on its hood. Id. at 783. Emmons did not see a third person with a baseball bat. Id. at 802.
After seeing the shooter fire two or three shots, Emmons backed away from the window. Id. at 786. He then heard an additional six or seven shots. Id. at 786-87. Soon thereafter, he heard tires screeching and, when he looked out the window again, he saw the minivan driving toward Seymour Avenue. Id. at 787. The victim lay motionless on the sidewalk. Id. at 788.
Donna Silkworth lived near the corner of Amy Street and Seymour Avenue. Id. at 863. On August 3, 2014, Silkworth was sitting on her back porch when she saw three men walk past her house. Id. at 863, 865-66. They were “all pulling shirts down over their faces” and went into a backyard on Seymour Avenue. Id. at 864-66, 868. The men appeared to have weapons, at least one of which looked like a baseball bat and one that looked like a gun. Id. at 868-69. Silkworth then saw a white van with sliding doors pull up to the corner of Seymour Avenue and Amy Street, opposite her house. Id. at 869-70. Three or four men jumped out of the van. Id. at 871. Silkworth briefly lost sight of them but saw them return to the minivan and drive through Sakran Plaza. Id. at 872. The van then drove onto Amy Street before turning onto Wilbur Avenue. Id. at 873. Silkworth again lost sight of the van and, shortly afterward, heard multiple gunshots coming from the direction of Wilbur Avenue. Id. at 874. She went to the end of her driveway and saw the white van “heading up toward Burnet Park on Wilbur.” Id.
On March 10, 2015, Det. Kilburn interviewed Petitioner in connection with Diaz's death. (Dkt. No. 11-3 at 251.) Petitioner denied any involvement with Diaz's murder. Id. at 251-54. Petitioner claimed because he had a curfew, he could not have been around when Diaz was killed. Id. at 256. He further denied being close with Martinez, although he admitted that he went to the hospital when Martinez died. Id. at 253-54. Petitioner acknowledged he and a few other people had gotten shirts made with Martinez's picture on them and he was present at a gathering commemorating Martinez's life. Id. at 254. Petitioner knew Martinez was close with Cruz-Rivera and suggested it was possible Diaz had set up Martinez to be killed. Id. at 256-57.
Both Sanchez and Osorio testified about lying to law enforcement officers and to the grand jury. (Dkt. No. 11-2 at 670-71; Dkt. No. 11-3 at 17.) They admitted they falsely stated that after Diaz's death, Sanchez and Petitioner stopped by Osorio's house with blood on their clothes. (Dkt. No. 11-2 at 670-71; Dkt. No. 11-3 at 17.) Sanchez also falsely told the grand jury he saw Petitioner leave Osorio's house wearing a change of clothes. (Dkt. No. 11-2 at 670-71; Dkt. No. 11-3 at 17.) At trial, Sanchez admitted he did not go to Osorio's house after the murder, and he did not see Petitioner after he left the scene in the minivan. (Dkt. No. 11-2 at 670, 680-82.)
Both Sanchez and Osorio testified the false accounts were furnished by Osorio's boyfriend, Ricardo Colberg. Sanchez encountered Colberg when he was in jail on unrelated charges. (Dkt. No. 11-2 at 670-73.) Osorio testified Colberg had coerced her into giving the false account by threatening her. (Dkt. No. 11-3 at 17-19.) She also believed that providing the false information would help Colberg get out of jail following his arrest on unrelated drug and weapon charges. Id. at 21-22.
C. Petitioner's Case
Petitioner called his father, Wigberto Osorio, Sr., and his brother, Christian Osorio, as witnesses. Wigberto Sr. testified on August 2, 2014, he was having a “family reunion” on the porch of his home at 211 Putnam Street because one of his neighbors had been killed. (Dkt. No. 11-3 at 326, 330-31.) Petitioner arrived at about 10 PM. Id. at 326, 329-31. Wigberto Sr. stated he and Petitioner entered the house at about 10:30 PM. Id. at 332-33. Petitioner then went to his bedroom while Wigberto Sr. remained awake in the living room until about 1 AM. Id. at 333.
Christian testified Petitioner and Wigberto Sr. were still out on the porch when he entered the house and went to his bedroom at around 10:30 PM. Id. at 348-51. Christian heard Petitioner go into his bedroom and fell asleep at about 11 PM. Id. at 354. Christian testified Petitioner was home at 8 AM when he woke up. Id. at 357.
D. Verdict and Sentence
As set forth above, Petitioner was convicted of murder in the second degree, attempted kidnapping in the second degree, gang assault in the first degree, assault in the first degree, and criminal possession of a weapon in the third degree. (Dkt. No. 11-3 at 566-68.)
On June 22, 2017, Petitioner was sentenced, as a second felony offender, to concurrent prison terms of 25 years to life for the murder conviction, 15 years, plus 5 years of post-release supervision for the attempted kidnapping conviction; 25 years, plus 5 years of post-release supervision for the assault and gang assault convictions; and 3% to 7 years for the weapon conviction. (Dkt. No. 11-3 at 576-77.)
E. Direct Appeal
Petitioner filed a counseled brief in the Appellate Division, Fourth Department, arguing, inter alia, that (1) Sanchez's accomplice testimony establishing Petitioner's participation in the murder was not corroborated by other evidence and (2) the integrity of the grand jury proceedings was impaired by the false testimony of two prosecution witnesses. SR 424-518. The People filed an opposing brief, and Petitioner filed a reply brief. SR 519-82, 583-602.
The Appellate Division unanimously affirmed the judgment on January 31, 2002. SR 605-06. The Court rejected Petitioner's claim that the accomplice testimony was insufficiently corroborated. Id. The Court found Petitioner's statements to the police demonstrated his motive to harm the victim, and that Petitioner, Cruz-Rivera, and another participant in the crime were close friends. Id. Other testimony established Petitioner, Cruz-Rivera, and two other participants were seen together just hours before the murder and Petitioner was holding a baseball bat and asking where Diaz was. Id. Further, “forensic evidence substantiated much of [Sanchez's] testimony, and testimony of eyewitnesses at and near the scene of the crime harmonized with [Sanchez's] testimony.” Id. The Court thus concluded “the corroborative evidence tends to connect [Petitioner] with the commission of the crime in such a way as may reasonably satisfy the jury that the accomplice is telling the truth.” Id. (internal quotation marks and citations omitted).
People v. Osorio, 179 A.D.3d 1512 (4th Dep't 2020).
The Court also rejected Petitioner's grand jury claim, just as it had in Cruz-Rivera's appeal, because “‘inasmuch as the prosecutor did not knowingly offer perjured testimony and there was sufficient evidence before the grand jury to support the charges without considering the perjured testimony, dismissal of the indictment was not required.'” Id. (quoting People v. Cruz-Rivera, 174 A.D.3d 1512, 1513 (4th Dep't 2019)).
Petitioner filed a counseled application for leave to appeal to the New York Court of Appeals, asking the Court to review his claims that Sanchez's accomplice testimony was not sufficiently corroborated and that the integrity of the grand jury proceedings was impaired. SR 607-13. The People filed a letter opposing the application. SR 614-18. On April 27, 2020, the Court of Appeals denied leave to appeal. SR 619.
People v. Osorio, 35 N.Y.3d 972 (2020).
F. Coram Nobis Motion
Petitioner brought a pro se coram nobis motion alleging he was denied the effective assistance of appellate counsel because counsel failed to assert claims that: (1) trial counsel was ineffective for overlooking “numerous issues of violated law related to the prosecution[']s key witnesses[] recanting their factual events that pointed to [Petitioner's] participation and guilt in this assault and murder of the crime victim”; (2) false testimony provided at the grand jury proceeding prejudiced Petitioner; (3) the witnesses were incredible and testified falsely; and (4) Petitioner is actually innocent. SR 620-636. The People filed an affirmation opposing the motion. SR 828-35. The Appellate Division summarily denied the motion on April 30, 2021. SR 838. Petitioner did not seek leave to appeal the denial of the motion.
III. PETITION
In his petition for writ of habeas corpus, filed on May 20, 2021, Petitioner argues he is entitled to habeas relief because: (1) he was denied effective assistance of trial counsel; (2) he was denied effective assistance of appellate counsel; (3) he is actually innocent of the crimes of which he was convicted; and (4) the indictment was defective due to the false testimony of two prosecution witnesses at the grand jury proceedings. (Dkt. No. 1 at 6, 8, 9.)
IV. ANALYSIS
A. Standard of Review
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal court may grant habeas corpus relief with respect to a claim adjudicated on the merits in state court only if, based upon the record before the state court, 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), (2); Cullen v. Pinholster, 563 U.S. 170, 180-81, 185 (2011); Premo v. Moore, 562 U.S. 115, 120-21 (2011); Schriro v. Landrigan, 550 U.S. 465, 473 (2007). This standard is “highly deferential” and “demands that state-court decisions be given the benefit of the doubt.” Felkner v. Jackson, 562 U.S. 594, 598 (2011) (per curiam) (quoting Renico v. Lett, 559 U.S. 766, 773 (2010) (internal quotation marks omitted)).
The Supreme Court has repeatedly explained “a federal habeas court may overturn a state court's application of federal law only if it is so erroneous that ‘there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents.'” Nevada v. Jackson, 569 U.S. 505, 508-09 (2013) (per curiam) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011)); see Metrish v. Lancaster, 569 U.S. 351, 358 (2013) (explaining that success in a habeas case premised on § 2254(d)(1) requires the petitioner to “show that the challenged state-court ruling rested on ‘an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'”) (quoting Richter, 562 U.S. at 103).
Additionally, AEDPA foreclosed “‘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 (2012) (per curiam) (quoting Renico, 559 U.S. at 779). 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. Wood v. Allen, 558 U.S. 290, 301 (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, 550 U.S. at 473.
Federal habeas courts must presume the state courts' factual findings are correct unless a petitioner rebuts that presumption with “‘clear and convincing evidence.'” Id. at 473-74 (quoting § 2254(e)(1)). “A state court decision is based on a clearly erroneous factual determination if the state court failed to weigh all of the relevant evidence before making its factual findings.” Lewis v. Conn. Comm'r of Corr., 790 F.3d 109, 121 (2d Cir. 2015). Finally, “[w]hen a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits.” Johnson v. Williams, 568 U.S. 289, 301 (2013).
B. Defective Indictment
Petitioner claims “JURISDICTION HAS BEEN LOST PURSUANT TO INDICTMENT AND GRAND JURY DEFECTIVENESS, PERJURY AND RECANTATION EVIDENCE PRESENTED AT THE GRAND JURY.” (Dkt. No. 1 at 9.) Construed liberally, Petitioner claims the indictment should be dismissed as defective because the integrity of the grand jury proceedings was impaired due to Osorio's and Sanchez's partially false grand jury testimony. (See generally Dkt. No. 1 at 85-105.) Respondent counters this claim is not cognizable and is meritless. (Dkt. No. 10-1 at 15-18.) The Court agrees with Respondent.
Unless otherwise indicated, excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected.
In the first instance, to the extent Petitioner is challenging the propriety of the grand jury proceedings, including the prosecutor obtaining and proceeding on a “defective indictment,” such claim fails. There is no federal constitutional right to a grand jury proceeding. See Alexander v. Louisiana, 405 U.S. 625, 633 (1972); LanFranco v. Murray, 313 F.3d 112, 118 (2d Cir. 2002). In New York, a grand jury indictment arises from the “State Constitution and other state laws . . . and federal habeas relief may not be granted for violations of state law.” Robinson v. LaClair, No. 09-CV-3501, 2011 WL 115490, at *8 (E.D.N.Y. Jan. 13, 2011). Therefore, “[c]laims of deficiencies in state grand jury proceedings are not cognizable in a habeas corpus proceeding in federal court.” Davis v. Mantello, 42 Fed.Appx. 488, 490-91 (2d Cir. 2002) (summary order), cert. denied sub nom Davis v. Filion, 538 U.S. 986 (2003); see also Van Stuyvesant v. Conway, No. 03 Civ. 3856, 2007 WL 2584775, at *25 (S.D.N.Y. Sept. 7, 2007) (claim that false testimony was presented before the grand jury is not cognizable on habeas review) (citing Lopez v. Riley, 865 F.2d 30, 32-33 (2d Cir. 1989)); Mayes v. Donnelly, No. 03-CV-417, 2009 WL 2601106, at *9 (W.D.N.Y. Aug. 21, 2009) (“To the extent that Mayes is attempting to assert a claim that Anderson perjured himself when he testified before the grand jury, habeas relief is not warranted because the claim is not cognizable in this federal habeas proceeding[.]”).
Further, following a guilty verdict rendered by a petit jury, alleged deficiencies in a state grand jury proceeding are not cognizable on habeas review. See Lopez, 865 F.2d at 31; Dunn v. Sears, 561 F.Supp.2d 444, 453 (S.D.N.Y. 2008). Thus, after a conviction, habeas relief is unavailable for claims of prosecutorial misconduct in the grand jury. See Campbell v. Poole, 555 F.Supp.2d 345, 367-68 (W.D.N.Y. 2008); Evans v. Poole, No. 05 Civ. 5951, 2005 WL 2847769, at *1 (S.D.N.Y. Oct. 31, 2005).
Even if this claim was cognizable, it is ultimately meritless. Petitioner had previously argued “Sanchez's and Osorio's conspiracy to falsely implicate [Petitioner] to ensure his indictment [along with] their false Grand Jury testimony is the ‘fraudulent conduct' undermining the integrity of the” Grand Jury proceedings-warranting dismissal of the indictment. (Dkt. No. 11-1 at 240-41.)
A grand jury proceeding is defective, and warrants dismissal of the indictment, “where the ‘proceeding fails to conform to the requirements of CPL article 190 to such degree that the integrity thereof is impaired and prejudice to the defendant may result.'” People v. Sealy, 181 A.D.3d 893, 894 (2d Dep't 2020), lv denied, 35 N.Y.3d 1070 (2020) (internal brackets and ellipses omitted) (quoting People v. Huston, 88 N.Y.2d 400, 409 (1996)); see also People v. Moffitt, 20 A.D.3d 687, 688 (3d Dep't 2005). “Dismissal of an indictment under CPL 210.35 (5) must meet a high test and is limited to instances of prosecutorial misconduct, fraudulent conduct[,] or errors which potentially prejudice the ultimate decision reached by the grand jury.” People v Elioff, 110 A.D.3d 1477, 1477 (4th Dep't 2013), lv denied, 22 N.Y.3d 1040 (2013) (internal quotation marks, brackets, and citations omitted). “While the defendant need not demonstrate actual prejudice before an indictment is considered defective, but rather, must merely show the ‘possibility' of prejudice from the conduct of the prosecutor . . . this possibility of prejudice must follow from some identifiable misconduct on the part of the prosecutor such as would have impaired the integrity of the Grand Jury process.” People v. Johnson, 282 A.D.2d 309, 310 (1st Dep't 2001), lv denied, 96 N.Y.2d 903 (2001) (emphasis added) (internal citation omitted).
“As the Court of Appeals has stated, ‘not every improper comment, elicitation of inadmissible testimony, impermissible question or mere mistake renders an indictment defective. Typically, the submission of some inadmissible evidence will be deemed fatal only when the remaining evidence is insufficient to sustain the indictment.'” Elioff, 110 A.D.3d at 1477-78 (quoting Huston, 88 N.Y.2d at 409); see also People v Miller, 110 A.D.3d 1150, 1151 (3d Dep't 2013).
Here, although Osorio and Sanchez later admitted to lying during their Grand Jury testimony, the trial court found the People did not knowingly or negligently present perjured testimony to the Grand Jury. (Dkt. No. 11-2 at 193-94.) Moreover, the Fourth Department found “inasmuch as the prosecutor did not knowingly offer perjured testimony and there was sufficient evidence before the grand jury to support the charges without considering the perjured testimony, dismissal of the indictment was not required.” SR 606 (internal quotation marks and citation omitted). Therefore, the Court recommends denying relief on this ground.
C. Actual Innocence
Petitioner contends he is entitled to habeas relief because he is actually innocent of all the crimes of which he was convicted. (Dkt. No. 1 at 8.) Specifically, Petitioner argues
THERE EXIST MERITORIOUS CONSTITUTIONAL VIOLATIONS, ENOUGH TO ESTABLI SH A PRIMA FACIE
SHOWING THAT A MISCARRIAGE OE JUSTICE HAS TAKEN PLACE ....
THE PERTITIONER ASK THAT THIS COURT REVIEW THE ENTIRE TRIAL RECORD, STATEMENT'S, ARREST, DD'5'S, PERJURY/RECONTATION EVIDENCE, GRAND JURY PRESENTATION, FELONY COMPLAINT'S AND ALL ISSUES BROUGHT BY APPELLATE COUNSEL FOR ANY MERITABLE RELIEF, DE NOVO AND PURSUSANT TO A FUNDAMENTAL MISCARRIAGE OF JUSTICE STANDARD, WHICH HAS TAKEN PLACE.Id.
Respondent asserts a freestanding claim of actual innocence is not cognizable, and even if it were cognizable, it is meritless. (Dkt. No. 10-1 at 18-19.) The Court agrees the claim is not cognizable, and further finds that even if such a claim were cognizable, Petitioner's allegations do not show he is actually innocent.
Although the Supreme Court has determined a federal habeas petitioner may assert a “gateway claim” of actual innocence to overcome the procedural default of a constitutional claim or to equitably toll AEDPA's statute of limitations, it has not resolved whether a non-capital prisoner may be entitled to habeas relief based on a freestanding claim of actual innocence. McQuiggin v. Perkins, 569 U.S. 383, 385-87, 392 (2013).
Even if a freestanding actual innocence claim were cognizable in a 28 U.S.C. § 2254 proceeding brought by a non-capital prisoner, the Supreme Court has suggested the required showing would be even higher than the demanding standard in Schlup v. Delo, 513 U.S. 298 (1995), for gateway actual innocence claims. See House v. Bell, 547 U.S. 518, 555 (2006) (“The sequence of the [Supreme] Court's decisions in [Herrera v. Collins, 506 U.S. 390] and Schlup- first leaving unresolved the status of freestanding claims and then establishing the gateway standard-implies at the least that Herrera requires more convincing proof of innocence than Schlup.”).
To meet the Schlup gateway standard, an actual innocence claim must be “credible,” meaning the petitioner has supported it by “new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.” 513 U.S. at 324. The claim also must be “compelling,” which requires the petitioner to demonstrate that “more likely than not, in light of the new evidence, no reasonable juror would find him guilty beyond a reasonable doubt-or to remove the double negative, that more likely than not any reasonable juror would have reasonable doubt.” House, 547 U.S. at 538. “The fact that new evidence is credible does not necessarily make it compelling under the Schlup standard for actual innocence.” Hyman v. Brown, 927 F.3d 639, 662 (2d Cir. 2019) (citing Schlup, 927 F.3d 639).
Petitioner does not present any “new reliable evidence” and instead asks the Court to review the entire trial record, statements, arrest, perjury/recantation evidence, grand jury presentation, felony complaints, and all issues brought by Appellate Counsel to support his claim of actual innocence. (Dkt. No. 1 at 8.) However, such evidence cannot be considered “new” because the jury already heard and evaluated this evidence. See Rivas v. Fischer, 687 F.3d 514, 543 (2d Cir. 2012) (explaining “new” reliable evidence under Schlup is “evidence not heard by the jury”). Moreover, the jury is exclusively responsible for determining the credibility of the witnesses and resolving any inconsistencies in their testimony. See, e.g., Bossett v. Walker, 41 F.3d 825, 830 (2d Cir. 1994) (“[A] conviction may be based upon circumstantial evidence and inferences based upon the evidence, and the jury is exclusively responsible for determining a witness'[s] credibility”) (internal quotation marks and citation omitted). “[T]he fact that the jury may have chosen to credit less reliable aspects of the testimony of [Sanchez and Osorio], or to resolve inconsistencies in their testimony in favor of the prosecution, does not undermine the reliability of the jury's verdict.” Simmons v. McGinnis, No. 04 CIV. 6150 PACDF, 2006 WL 3746739, at *11 (S.D.N.Y. Dec. 19, 2006) (citing Bossett, 41 F.3d at 830). Moreover, even assuming “the alleged testimonial inconsistencies could be construed as a due process claim of legally insufficient evidence, that still would be inadequate.” Smith v. Noeth, No. 1:18-CV-00883 (JLS/MJR), 2023 WL 4936942, at *28 (W.D.N.Y. June 27, 2023), report and recommendation adopted, 2023 WL 4933981 (W.D.N.Y. Aug. 1, 2023). The Supreme Court has clearly stated actual innocence means “factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998). “Because Petitioner cannot meet the demanding Schlup standard for a gateway claim of actual innocence, he necessarily cannot meet the more demanding hypothetical standard that the Supreme Court has said a freestanding claim of actual innocence would entail.” Smith, 2023 WL 4936942, at *29. Therefore, the Court recommends denying relief on this ground.
D. Ineffective Assistance of Counsel
Petitioner claims he was denied effective assistance of trial and appellate counsel. (Dkt. No. 1 at 6.) Although he does not specify how his trial and appellate counsel were ineffective in his habeas petition, it appears he is basing the claims on the same grounds as his coram nobis motion. There, he argued appellate counsel was ineffective for failing to assert (1) trial counsel was ineffective for overlooking “numerous issues of violated law related to the prosecution[']s key witnesses, recanting their factual events that pointed to [Petitioner's] participation and guilt in this assault and murder of the crime victim”; (2) false testimony at the Grand Jury proceedings was prejudicial to Petitioner; (3) the witnesses were “incredible on its face” and gave false testimony; and (4) the “evidence is severely circumstantial and a claim of actual innocence should have been preserved and/or mentioned in the interest of justice.” SR 633-35.
Respondent argues Petitioner's ineffective assistance of trial and appellate counsel claims are both unexhausted and, ultimately, meritless. (Dkt. No. 10-1 at 19-26.) The Court agrees.
1. Exhaustion
A federal court may not grant the habeas petition of a state prisoner unless it appears “the applicant has exhausted the remedies available in the courts of the State;” or that “there is either an absence of available State corrective process;” or “circumstances exist that render such process ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1). To satisfy § 2254's exhaustion requirement, a petitioner must present the substance of “the same federal constitutional claim[s] that he now urges upon the federal courts,” to the highest court in the appropriate state. Turner v. Artuz, 262 F.3d 118, 123-24 (2d Cir. 2001); Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990).
As an initial matter, Petitioner's ineffective assistance of appellate counsel claim is barred because he failed to fully exhaust his remedies as to that claim. Although Petitioner timely filed a motion for a writ of error coram nobis with the Appellate Division, when the Appellate Division denied Petitioner's motion on April 30, 2021, Petitioner was required to further move for leave to appeal to the Court of Appeals in order to fully exhaust this claim. SR 838; see Diaz v. Graham, No. CV-07-5379 (SJF), 2011 WL 1303924, at *2 n.1 (E.D.N.Y. Mar. 31, 2011) (finding a habeas petitioner's claim for ineffective assistance of counsel remained unexhausted where the petitioner did not appeal to the Court of Appeals following the Appellate Division's denial of a writ of error coram nobis); see also Fulcher v. Graham, No. 14-CV-3910 (LDH), 2022 WL 523555, at *10 (E.D.N.Y. Feb. 22, 2022) (same).
Petitioner's ineffective assistance of trial counsel is also barred as unexhausted. Petitioner indirectly raised his ineffective assistance of trial counsel claim in state court through his coram nobis motion where he alleged appellate counsel had been ineffective for failing to raise the instances of alleged ineffectiveness by trial counsel. See Allen v. Artus, No. 6:17-CV-6074 CJS, 2020 WL 6785498, at *12 (W.D.N.Y. Nov. 18, 2020); SR 633-35.
Courts in this circuit have routinely held raising an ineffective assistance of appellate counsel claim in a coram nobis motion does not exhaust the underlying claims appellate counsel allegedly failed to raise. See Turner v. Artuz, 262 F.3d 118, 123 (2d Cir. 2001) (concluding the petitioner's underlying claim was not exhausted through his coram nobis petition alleging ineffective assistance of counsel for failing to raise said claim); Roberts v. Lamanna, No. 19 CV 880 (AMD)(LB), 2020 WL 5633871, at *6 (E.D.N.Y. Aug. 31, 2020) (“‘[C]ourts in this circuit have consistently recognized[ ] an ineffective assistance claim is an insufficient vehicle for exhausting the underlying allegations when those allegations are asserted for the first time as separate claims on habeas.'”) (alterations in original) (citation omitted), report and recommendation adopted, 2020 WL 5633078 (E.D.N.Y. Sept. 21, 2020); Zimmerman v. Burge, 492 F.Supp.2d 170, 189 (E.D.N.Y. 2007) (“a petition for a writ of error coram nobis does not exhaust the underlying claims advanced to support the claim of ineffective assistance of appellate counsel”); Miller v. Chapplus, No. 9:16-CV-512 (TJM/CFH), 2018 WL 2709228, at *9 (N.D.N.Y. Apr. 2, 2018), report and recommendation adopted, 2018 WL 2694425 (N.D.N.Y. June 5, 2018) (same). “In other words, no claim besides ineffective assistance of appellate counsel can be exhausted through an application for a writ of error coram nobis.” Allen, 2020 WL 6785498, at *12. Therefore, Petitioner's ineffective assistance of trial and appellate counsel claims remain unexhausted.
2. Merits
However, even if these claims were exhausted, they ultimately fail on the merits. To establish an ineffective assistance of counsel claim, the petitioner must show (1) counsel's performance was deficient and (2) the deficient performance prejudiced the petitioner. Strickland v. Washington, 466 U.S. 668, 687-90 (1984).
Under the first prong, “[j]udicial scrutiny of counsel's performance must be highly deferential . . . a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland, 466 U.S. at 689 (internal quotation marks and citations omitted). See Richter, 562 U.S. at 110 (“Strickland does not guarantee perfect representation, only a reasonably competent attorney”) (internal quotation marks and citation omitted).
Under the second prong, to establish prejudice,
[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. In making the determination whether the specified errors resulted in the required prejudice, a court should presume, absent challenge to the judgment on grounds of evidentiary insufficiency, that the judge or jury acted according to law.Strickland, 466 U.S. at 694. Here, the “likelihood of a different result must be substantial, not just conceivable.” Richter, 562 U.S. at 112.
As set forth above, Petitioner asserts his trial counsel was ineffective for overlooking “numerous issues of violated law related to the prosecution[']s key witnesses[] recanting their factual events that pointed to [Petitioner's] participation and guilt in this assault and murder of the crime victim.” SR 633-34. Despite Petitioner's claims, trial counsel twice moved to dismiss the indictment as defective due to Osorio's and Sanchez's false testimony at the Grand Jury proceedings. SR 98-103, 121-26. Further, trial counsel vigorously cross-examined Sanchez and Osorio at trial about their false testimony and argued at summation that the jury should not credit these witnesses' accounts. (Dkt. No. 11-2 at 700-04, 726-30, 757; Dkt. No. 11-3 at 50-54, 40810, 418-31.) Therefore, Petitioner's claim he was denied ineffective assistance of trial counsel is unavailing. See McKee v. United States, 167 F.3d 103, 106 (2d Cir. 1999) (“[a]ctions or omissions by counsel that ‘might be considered sound trial strategy' do not constitute ineffective assistance of counsel”) (quoting Strickland, 466 U.S. at 689).
As noted above, Petitioner also argues his appellate counsel was ineffective for failing to bring claims asserting (1) trial counsel was ineffective for overlooking “numerous issues of violated law related to the prosecution[']s key witnesses[] recanting their factual events that pointed to [Petitioner's] participation and guilt in this assault and murder of the crime victim”; (2) false testimony at the Grand Jury proceedings was prejudicial to Petitioner; (3) the witnesses were “incredible on its face” and gave false testimony; and (4) the “evidence is severely circumstantial and a claim of actual innocence should have been preserved and/or mentioned in the interest of justice.” SR 633-35.
“Although the Strickland test was formulated in the context of evaluating a claim of ineffective assistance of trial counsel, the same test is used with respect to appellate counsel.” Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (citing Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992), cert. denied, 508 U.S. 912 (1993)). Petitioner may establish ineffective assistance of appellate counsel by demonstrating counsel omitted “significant and obvious” arguments in favor of those that “were clearly and significantly weaker.” Id. at 533. Appellate counsel does not have a duty to advance every available non-frivolous argument, given that “[experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.” Jones v. Barnes, 463 U.S. 745, 751-52 (1983).
Petitioner's claims with regard to the ineffective assistance of appellate counsel are baseless. As to the first claim, trial counsel moved twice to dismiss the indictment based on Osorio's and Sanchez's false testimony, preserving the issue for appeal. SR 98-103, 121-28. Therefore, there was no basis for appellate counsel to assert trial counsel was ineffective on this issue.
As to Petitioner's second and third claims, appellate counsel did challenge the integrity of the Grand Jury proceedings based on Osorio's and Sanchez's false testimony. (Dkt. No. 1 at 85105.) Further, appellate counsel asserted Osorio and Sanchez were not credible when arguing the corroborative evidence did not connect Petitioner to the charged crimes or harmonize with Sanchez's accomplice testimony. (Dkt. No. 1 at 60-73.) As appellate counsel “made the very arguments that petitioner asserts should have been made on direct appeal, there is no basis to conclude that counsel was ineffective on this ground.” (Dkt. No. 10-1 at 26.)
Finally, Petitioner asserts appellate counsel should have argued he was actually innocent. Petitioner could move to vacate his judgment under N.Y. Crim. Proc. Law § 440.10(g) if
[n]ew evidence [had] been discovered since the entry of a judgment based upon a verdict of guilty after trial, which could not have been produced by the [Petitioner] at the trial even with due diligence on his part and which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the [Petitioner]; provided that a motion based upon such ground must be made with due diligence after the discovery of such alleged new evidence.
As such, it is not the proper basis of a direct appeal. Further, as discussed supra in Section IV.C, Plaintiff has not presented any new evidence which would support his claim of actual innocence.
Therefore, the Court recommends dismissing Plaintiff's ineffective assistance of counsel claims as unexhausted and meritless.
V. CERTIFICATE OF APPEALABILITY
28 U.S.C. § 2253(c)(1) provides that “[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from . . . the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court.” A court may only issue a certificate of appealability “if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2553(c)(2). Since Petitioner has failed to make such a showing with regard to any of his claims, the Court recommends that no certificate of appealability be issued. See Hohn v. United States, 524 U.S. 236, 239-40 (1998).
VI. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions, and the applicable law, and for the reasons stated herein, it is hereby
RECOMMENDED that Petitioner's pro se petition for a writ of habeas corpus (Dkt. No. 1) be DENIED and DISMISSED; and it is further
RECOMMENDED that no certificate of appealability be issued; and it is further
ORDERED that the Clerk of the Court shall file and serve a copy of this Report Recommendation and Order on the parties in accordance with the Local Rules, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72 & 6(a).Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report.5 Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72 & 6(a).
If you are proceeding pro se and are served with this Report-Recommendation & Order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Report-Recommendation & Order was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. 6(a)(1)(C).
IT IS SO ORDERED.