Opinion
9:18-CV-01204 (GTS/TWD)
02-17-2022
LEWIS SWIFT, Petitioner, v. SUPERINTENDENT, Respondent.
LEWIS SWIFT Petitioner, pro se HON. LETITIA JAMES PAUL B. LYONS, ESQ. Attorney General of the State of New York Assistant Attorney General Counsel for Respondent
LEWIS SWIFT Petitioner, pro se
HON. LETITIA JAMES PAUL B. LYONS, ESQ. Attorney General of the State of New York Assistant Attorney General Counsel for Respondent
REPORT-RECOMMENDATION AND ORDER
Therese Wiley Dancks United States Magistrate Judge
I.INTRODUCTION
This matter has been referred for a Report-Recommendation by the Hon. Glenn T. Suddaby, Chief United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Lewis Swift (“Swift” or “Petitioner”), proceeding pro se, challenges his New York State convictions under 28 U.S.C. § 2254. (Dkt. No. 1, Petition (“Pet.”).) Respondent opposed the petition. (Dkt. No. 13, Answer; Dkt. No. 14, Memorandum of Law (“R. Mem.”); Dkt. No. 15, State Court Record.) Petitioner filed a reply. (Dkt. No. 18, Traverse.) For the following reasons, the Court recommends denying the petition, and declining to issue a Certificate of Appealability.
To maintain consistency, the Court adopts Respondent's convention for citing to the record. To that end, the prefix “SR” refers to the State Court Record, found at Dkt. No. 15-1, followed by the page numbering provided by Respondent. Citations to the trial testimony refer to the witness' surname name and the original page number of the transcript found at Dkt. No. 15-2 though Dkt. No. 15-9, except that Diamante Swift, Petitioner's son, is referred to as “Diamante”. Other citations to the trial simply employ the prefix “T.”. The prefix “S.” refers to the sentencing minutes, found at Dkt. No. 15-10. Citations to the Pet., R. Mem., and Traverse refer to the pagination generated by the CM/ECF, the Court's electronic filing system.
II. BACKGROUND
A. Indictment
On September 19, 2013, Swift, along with codefendant Gregory Ware (“Ware”), a/k/a “Country”, was charged in a two count indictment with first degree manslaughter and third degree criminal possession of a weapon. (SR 11.) Count 1 alleged that Swift and Ware, while acting in concert with each other and an unidentified third person, caused the death of Carnell Marshall (“Marshall”) by repeatedly striking Marshall, “causing him to suffer severe head trauma, multiple facial fractures, and a lacerated left eye, and left him, while in this vulnerable condition, outdoors, exposed to the elements, allowing him to suffer environmental hypothermia, thereby causing his death.” Id. Count 2 alleged that Swift and Ware, while acting in concert with each other and an unidentified third person, “possessed a dangerous or deadly instrument with the intent to use the same unlawfully against another.” Id.
B. Ware's Conviction
Prior to Swift's trial, Ware was convicted, upon his guilty plea, of manslaughter in the first degree. People v. Ware, 159 A.D.3d 1401 (4th Dep't), lv. denied, 31 N.Y.3d 1122 (2018). Ware was sentenced to twenty five years' imprisonment followed by five years of post-release supervision. (T. 40; see S. 7-11.)
C. Trial
Swift proceeded to a jury trial on January 12, 2015, in Onondaga County, during which nineteen witnesses testified for the prosecution. Petitioner presented no evidence at trial. (T. 951-52.)
Ware did not testify at Swift's trial.
The evidence at trial established that on April 9, 2012, Swift and Marshall, a long-time acquaintance from the same Syracuse neighborhood, had a minor verbal altercation in the checkout line of a supermarket in Syracuse. (Diamante: 391-92, 420-21; Hardnett: 471-72.) The People introduced security footage from the supermarket's cameras, which was played for the jury. (T. 445.) After the argument, Marshall and Swift had a friendly conversation in the parking lot and “exchanged phone numbers.” (Diamante: 422-23.)
Swift was shopping at the supermarket with his girlfriend, sister, and teenage son, Diamante; Marshall was shopping with his niece, Stacey Hardnett (“Hardnett”), and her two cousins. (Diamante: 391-92, 420-21; Hardnett: 440, 471-72.)
Three days later, on April 12, 2012, Marshall called Swift, asking, “Hey, are we okay?” (Diamante: 423-24.) Swift responded, “Yeah, right, no problems.” (Diamante: 424-25.) Swift also asked Marshall to pick him up so that they could “chill” together. (SR 315-16.) Marshall asked Hardnett if she wanted to “hang out” with him and Swift but she declined. (Hardnett: 446-49.) Later, at around 9:30 p.m., while out with a friend, Hardnett saw Swift, Ware, and another man known as “Rat” together. (Hardnett: 449-50.)
Between 10:30 p.m. and 11:00 p.m., Marshall's girlfriend heard him talking on the phone and thereafter someone picked up Marshall from their house in Syracuse. (Scanes: 766-67, 769.) Marshall was wearing a red zip-up hooded sweatshirt, jeans, a white T-shirt, Timberland boots, and a square earring that consisted of nine diamonds. (Scanes: 767-69.) He had a red “doo-rag” in his pocket. (Scanes: 767.) The police recovered evidence of multiple telephone calls between Swift and Marshall that night, from 10:29 p.m. through 11:41 p.m. (T. 1018-19.)
On the evening of April 12, 2012, Marshall arrived at Swift's house. (Diamante: 396-98, 427-28.) Swift, Diamante, Ware, Rat, and Marshall were drinking and socializing at Swift's house together. (Diamante: 392, 394-97, 400-01, 425-26.)
At approximately 11:15 p.m., Marshall called Hardnett and told her that “if anything happened to him, ” he was with Swift. (Hardnett: 450-51, 454-55.) At 11:49 p.m., Hardnett received a text message from Marshall stating, “Yo I think those nigga set me up, but its Sammy brother lou.” (SR 161; Hardnett: 451-55; Glauberman: 756-58.) Hardnett replied, “So go home.” (SR 161; Hardnett: 454.) Hardnett subsequently sent Marshall text messages and called him numerous times, but he did not respond. (Hardnett: 454-55.)
Hardnett testified that she understood that Marshall was again referring to Swift. (Hardnett: 454-55.) Sammy Swift is Petitioner's brother. (Diamante: 394, SR 160.)
At some point, Marshall “kind of left” Swift's house, but then returned. (Diamante: 397-98.) Diamante, who was in the kitchen, overheard Rat tell Swift, “He's back.” (Diamante: 397-98, 425, 428.) Swift responded, “Hit him, that's orders.” (Diamante: 402, 436.) “Right after” Diamante heard “mad tumbling” in the living room. (Diamante: 402-03, 427.) Diamante walked into the living room and saw Ware and Rat attacking and kicking Marshall, who was on the floor. (Diamante: 402-03, 427-29, SR 318.) Ware grabbed a board and hit Marshall with it. (Diamante: 403.) This assault continued for “a couple of minutes” until Swift ordered Ware and Rat, “get him out of the house.” (Diamante: 404-05.) Diamante watched as Rat dragged Marshall out of the house by the hood of his red sweatshirt. (Diamante: 404-05.) Marshall and Rat continued to assault Marshall. (SR 318-19.) “The whole while, ” Swift and Diamante watched the assault from Swift's front porch. (SR 319.) “After about 6 or 7 minutes of watching this beating take place, ” Rat and Ware “dump[ed]” Marshall behind the Cole Muffler, across the street from Swift's house. (SR 319, Diamante: 407.) Diamante saw Rat and Ware come back into the house. (Diamante: 407-08, 433.) Swift walked away while Rat and Ware “cleaned up where the struggle was.” (Diamante: 433-34.)
Diamante could hear Marshall screaming “over and over” from outside. (Diamante: 408-409.) A woman later came over to the house, and Diamante “guessed” that Swift had sex with her. (Diamante: 408.) Swift said, “good night” to Diamante and went to bed, as Swift had “had to[o] much to drink.” (SR 319.) Swift woke up around 3 a.m. or 4 a.m., and heard Marshall “still screaming for help outside, ” but he went back to sleep. (SR 319-20.)
The next day, Ware showed Swift and Diamante a video from his cellphone depicting Ware and Rat “beating and to[rtu]ring” Marshall, spitting and urinating on him, and burning him all over with a cigarette. (SR 320.) Marshall appeared to Swift to be asleep in the video. (SR 320.) A little later, Rat walked over from the vacant lot to Swift's house carrying “a bloody board.” (SR 321.) Rat told Swift that he thought Marshall was dead, pointing to Marshall's body in the lot. Swift told Rat to “get the fuck away from my house.” Swift then called Ware and told him that Marshall was dead. (SR 321.)
That same day, on April 13, 2012, Diamante found Marshall's cellphone in Swift's house. (Diamante: 409-10, 434.) Diamante opened the cellphone and saw Marshall's text message to Hardnett stating that “he thought he had got set up.” (Diamante: 410, 434.) When “[t]hey started cleaning up”, Rat took Marshall's cellphone and a beer bottle and put it in the trash can behind Swift's house. (Diamante: 434-35.)
On April 14, 2012, at approximately 10:26 a.m., Syracuse police responded to a dead-on-arrival dispatch to the Cole Muffler located at 2527 South Salina Street on the corner of McAllister Avenue. (Greco: 361-63; Whitehead: 385-86; McGinn: 497.) A partially clothed black male, later identified as Marshall, was found in the vacant lot of 107 McAllister Avenue, located behind the Cole Muffler and across the street from Swift's house. (Greco: 364-67; McGinn: 498-500, 515.) Marshall was wearing only a blood-soaked and dirty T-shirt and one sock. (Greco: 367; McGinn: 516, 522, 560-62, 567, 574.) He had “severe trauma” to his face, with dried blood seeping from his nostrils, mouth, and swollen-shut eyes. (Greco: 368.) He was pronounced dead at 10:29 a.m. (Whitehead: 386-87; Knight: 910, 921.)
Based on Marshall's body temperature, rigor mortis, and lividity, as well as the outside temperatures, Dr. Knight determined that Marshall had been dead for at least 12 hours and up to 36 hours from the time he was pronounced dead. (Knight: 921-25.) Dr. Knight testified that, “[i]f Marshall was exposed to a windchill of 37 degrees Fahrenheit, he was certainly inappropriately dressed for that with only a T-shirt on and would have been subject to hypothermia.” (Knight: 924.) Specifically, Dr. Knight opined, to a reasonable degree of medical certainty, that Marshall died as a result of “environmental hypothermia, or cold exposure, ” and that “the blunt force injuries of his head, his alcohol intoxication and asthma were contributory conditions to his death.” (Knight: 935.)
When asked to estimate “the length of time of exposure to the cold that would have caused this environmental hypothermia, ” Dr. Knight opined that, although “[i]t's difficult to say in a given individual how long it would take to kill them from hypothermia given individual variations, ” her “best estimate would be that [Marshall] was likely exposed for a few hours.” (Knight: 937.) Dr. Knight testified that Marshall “[c]ertainly . . . could have survived” had Marshall received medical assistance. (Knight: 937-38.)
Diamante testified that on the morning of April 14, 2012, he saw the police across the street at Cole Muffler. (Diamante: 411.) When Diamante told his father, Swift replied, “There is no blood on me or anything” that the police can find. (Diamante: 411.) Swift told Diamante to tell the police that Marshall came to the house to apologize. (Diamante: 412.)
The police noticed Swift watching them from the doorway of his house. (Greco: 369-70.) Detective Rood spoke with Swift during a neighborhood canvas, but Swift stated that he had no information. (Rood: 779-81.)
That same morning, Detective McGinn commenced a crime scene investigation. (McGinn: 493-511.) McGinn noticed bloodstains on the front porch of Swift's house and in the walkway and roadway in front of the house. These bloodstains consisted of “drag patterns, swipe patterns, drip patterns.” (McGinn: 512, 516, 518-19, 523-24.) The drag or swipe patterns in the roadway and on the curb were consistent with a body being dragged from the house and across the street towards the vacant lot. McGinn also found drag patterns along with blood stains in the dirt of the vacant lot. (McGinn: 516-20.) Marshall's t-shirt was dirty and blood-soaked, and dirt and scratches were on his legs, all consistent with being beaten and dragged across the ground. (McGinn: 522-23.) A “red doo-rag” and red sweatshirt - both blood-soaked - were found near the body. (McGinn: 523, 560-61, 571, 575.)
McGinn also found partial footwear patterns in the dirt of the vacant lot. (McGinn: 520-21.) Blood splatter was found on the rear wall of Cole Muffler, relatively close to Marshall's body. (McGinn: 522.) Police also recovered a large rock covered with what was determined to be Marshall's blood. (McGinn: 520, 524, 570; Cowen: 700-02.)
Later that day, Detective Rood returned to Swift's house and was invited in to talk. (Rood: 781-82.) Both Petitioner and Diamante agreed to be interviewed at the police station. (Diamante: 412-15; Rood: 782-83.) At the Criminal Investigation Division, Detective MacBlane interviewed Diamante, while Detective Rood separately interviewed Petitioner. (Rood: 782-83; MacBlane: 828.) Petitioner ultimately provided a written statement, which was received into evidence and which Detective Rood read into the record. (Rood: 792-97; SR 159-60.)
Swift told the police that at around 11:30 p.m. on April 12, 2012, Marshall had called him, saying “‘I need to holla at u.'” (SR 160; Rood: 797.) A short while later, Marshall showed up at Swift's door but only spoke to Diamante. (Rood: 797.) Diamante later told Swift that Marshall had said that “he wanted to apologize” about the supermarket incident, and that Marshall then left the house. (SR 160; Rood: 788-89.) Swift told the police that Marshall had never been in his house and that the police were welcome to search it, but that they “won't find anything.” (Rood: 797.) Petitioner also stated that Marshall was better friends with his brother, Sammy Swift. (SR 160.)
Diamante also gave the police a written statement on April 14, 2012. (Diamante: 414-15.) At trial, Diamante admitted that he had not told the police the “whole truth” because he “didn't want anybody to get in trouble.” (Diamante: 415.)
During their interviews, Petitioner and Diamante voluntarily surrendered the sneakers they were wearing. (Diamante: 412; Rood: 798-99, 811.) Diamante was wearing size 10-1/2 Adidas (Exhibit 10) and Swift was wearing size 10 Nikes (Exhibit 9). (Diamante: 412-13; McGinn: 613-15; Rood: 799.) The tread pattern on the bottom of Diamante's Adidas sneakers was consistent with partial patterns found in the vacant lot, though it was impossible to say whether there was an exact match. (McGinn: 612-14.) There was no match with Petitioner's Nikes sneakers. (McGinn: 615.)
Small bloodstains were found on the bottom of both Swift's and Diamante's sneakers. (McGinn: 616-22, 655.) A forensic scientist tested the bloodstains on Diamante's sneakers and determined that Marshall and Swift were the two highest DNA contributors. (Cowen: 674-77.) Swift's sneakers also tested positive for blood, but only Swift's DNA was found. (Cowen: 672-74.)
On April 20, 2012, eight days after the assault, the police executed a search warrant for Swift's apartment. (McGinn: 530, 598, 602; Rood: 810-11.) They recovered Marshall's broken cellphone (Exhibit 13) in a trash container behind the house. (Hardnett: 476-78; McGinn: 530-32, 536; Scanes: 771-72.) The police also recovered a beer can from Petitioner's trash (Exhibit 14), which had a mixture of DNA from both Marshall and Swift. (McGinn: 531, 576; Cowen: 677-82; Perlin: 746-48.)
On April 24, 2012, Swift was hiding from the police at a friend's house. He fled into the attic when police arrived to arrest him, asking his friend's girlfriend to tell the police that he was not there. (DeClerck: 901-04; Jasniewski: 905-06.) Swift was arrested without further incident.
In May of 2012, John Bondi and Swift were incarcerated in the same Mental Health Ward at the Onondaga County Justice Center. (Bondi: 863-65, 868, 875; Egan: 891-93, 897-99.) Bondi was being held on drug-related charges, among other things, and he was in the mental health “pod” because he suffered from posttraumatic stress disorder from his military service. (Bondi: 864-66, 875, 886.)
Swift and Bondi had been childhood friends growing up in the same Syracuse neighborhood. (Bondi: 863-64, 868.) Upon meeting up at the jail, the two men were reacquainted. Swift then described the events that led to his arrest and incarceration. (Bondi: 868-69, 880.) Swift told Bondi that a fight had started “downstairs” in his house. Swift and two other men assaulted the victim and then dragged the victim to a vacant lot across the street. Swift stated that he personally “caved [the victim's] face in with a rock, ” and that the group “beat him senseless” and “left him there.” (Bondi: 868-69.)
Swift also sent three letters dated May 12, 15, and 24, 2012, addressed to “Detective, ” stating that he had information about the case and wished to meet with detectives. (SR 315-24; MacBlane: 829-31, 839-40; Mull: 857-59.) The three letters were received into evidence and read aloud to the jury. (MacBlane: 829-40.)
In his third letter, dated May 24, 2012, Swift described the April 12, 2012, assault in some detail, but claimed that he was merely present, and that Ware and Rat were solely to blame for Marshall's death. (MacBlane: 829-40.)
D. Verdict and Sentencing
On January 21, 2012, the jury found Swift guilty on both counts -manslaughter in the first degree and criminal possession of a weapon in the third degree. (T. 1098, 1144-45.) On February 11, 2015, the trial court sentenced Swift, as a second felony offender, to a determinate term of 25 years in prison and 5 years of post-release supervision for manslaughter and a concurrent indeterminate term of 3½ to 7 years for criminal possession of a weapon. (See S.9-11; SR9-10, 335.)
E. Direct Appeal
Through counsel, Swift appealed his conviction arguing: (1) the trial court erred by admitting evidence of the hearsay statements made by the victim; (2) the People failed to establish the victim's death from hypothermia was reasonably foreseeable; (3) the verdict was legally insufficient and against the weight of the evidence; and (4) the sentence was harsh and excessive. (SR 349-86.) The Appellate Division of the New York Supreme Court unanimously affirmed the judgment of conviction in a reasoned opinion issued on April 27, 2018. People v. Swift, 160 A.D.3d 1341 (4th Dep't 2018). Swift filed a counseled application for leave to appeal to the New York Court of Appeals, which was summarily denied on June 26, 2018. People v. Swift, 31 N.Y.3d 1122 (2018).
F. Habeas Petition
On October 10, 2018, Petitioner filed a petition for a writ of habeas corpus with this Court. Petitioner challenges his state court convictions raising the identical grounds he asserted in his state court appeal. (Pet. at ¶¶ 9, 22 (referring the Court to the attached appellate brief (Dkt. No. 1-1) to reiterate the arguments advanced during his state court appeal).)
III. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, ” § 2254(d)(2). A state court decision is contrary to federal law if the state court applies a rule that contradicts controlling Supreme Court authority or “if the state court confronts a set of facts that are materially indistinguishable from a decision” of the Supreme Court, but nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).
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 that “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 th[e 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).
To the extent that the petition raises issues of the proper application of state law, they are beyond the purview of this Court. See Swarthout v. Cooke, 131 S.Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was correctly applied). It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (a federal habeas court cannot reexamine a state court's interpretation and application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002).
Federal habeas courts must presume that the state courts' factual findings are correct unless a petitioner rebuts that presumption with “clear and convincing evidence.” Schriro v. Landrigan, 550 U.S. 465, 473-74 (quoting 28 U.S.C. § 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) (internal quotation marks omitted). 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).
IV. DISCUSSION
A. Weight of the Evidence and Legal Sufficiency
Petitioner claims his conviction was: (1) against the weight of the evidence; and (2) based on legally insufficient evidence. (Pet. at ¶ 22, SR 372-83.) Respondent argues the weight of the evidence claim is not cognizable and the legal sufficiency claim is partially procedurally barred and entirely meritless. (R. Mem. at 27-63.) The Court agrees with Respondent.
1.Petitioner's weight of the evidence claim is not cognizable.
“It is well-settled that claims attacking a verdict as against the weight of the evidence are not cognizable in a federal habeas proceeding.” Kimbrough v. Bradt, 949 F.Supp.2d 341, 360 (N.D.N.Y. 2013); see McKinnon v. Superintendent, Great Meadow Corr. Facility, 422 Fed.Appx. 69, 75 (2d Cir. 2011) (“[T]he argument that the verdict is against the weight of the evidence states a claim under state law, which is not cognizable on habeas corpus.”) (collecting cases). Thus, because Petitioner's weight of the evidence argument is not cognizable, the Court recommends denying the petition on this ground.
2.Petitioner's legal sufficiency claim is partially procedurally barred and entirely meritless.
Incorporating his direct appeal argument, Petitioner claims the evidence was legally insufficient to support his convictions because the People failed to establish: (1) that he acted with the requisite intent to cause serious physical injury to another person; (2) that the victim's death from hypothermia was reasonably foreseeable; and (3) that there was evidence he possessed a weapon. (Pet. at ¶ 22; SR 372-83.) In rejecting this claim, the Appellate Division recited the arguments advanced by Swift, i.e., intent, foreseeability, and possession, and concluded he
failed to preserve the majority of those contentions for our review inasmuch as his general motion for a trial order of dismissal was not “specifically directed” at those alleged shortcomings in the evidence. In any event, viewing the evidence in the light most favorable to the People with respect to defendant's preserved and unpreserved contentions, we conclude that the evidence is legally sufficient to support the conviction.Swift, 160 A.D.3d 1342 (internal citations omitted).
Although the Appellate Division did not expressly state which of the arguments were unpreserved, the Court agrees with Respondent that the Appellate Division deemed the foreseeability argument to be unpreserved, given that in his counseled brief Swift “conceded” that it was unpreserved and argued the Appellate Division should address the foreseeability portion of the insufficiency claim “in the interest of justice” or with respect to the weight of the evidence. (SR 374-75; see R. Rem. at 43-46.) Further, a searching review of the record reveals no other “unpreserved” arguments with respect to the sufficiency of the conviction, i.e., intent, foreseeability, or possession. See Sanchez-Reyes v. Strack, No. 94-CV-1317 (RSP/DNH), 1995 WL 759029, at *1 (N.D.N.Y. Dec. 15, 1995) (“Even in light of any ambiguity in the [Appellate Division's] written opinion, [the Court] can presume that the [decision] was based on independent and adequate state procedural grounds where the issue was not raised in the trial court and the procedural bar was argued by the state on appeal.”) (citing Quirama v. Michele, 983 F.2d 12, 14 (2d Cir. 1993)).
On direct appeal, the People agreed with Swift that the foreseeability claim was unpreserved. (SR 406.)
a. Petitioner's foreseeability argument is procedurally barred.
Federal habeas review of a state court decision is prohibited if the state court rested its judgment on adequate and independent state grounds. Harris v. Reed, 489 U.S. 255, 261-62 (1989); Cotto v. Herbert, 331 F.3d 217, 239-40 (2d Cir. 2003). “[T]his rule applies whether the state law ground is substantive or procedural.” Coleman v. Thompson, 501 U.S. 722, 729 (1991). If the state court “explicitly invokes a state procedural bar rule as a separate basis for decision, ” a federal court is precluded from considering the merits of federal claims in a habeas petition. Harris, 489 U.S. at 264 n. 10; see Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000) (In order for federal review to be barred, “[t]he state court must actually have relied on the procedural bar as an independent basis for its disposition of the case.”) (quoting Harris, 489 U.S. at 261-62).
“In New York State, a defendant may not raise, for the first time on appeal, arguments concerning the legal sufficiency of the prosecution's evidence that were not raised with specificity in the trial court.” King v. Artus, 259 Fed.Appx. 346, 347 (2d Cir. 2008) (citing CPL § 470.05(2)); People v. Gray, 86 N.Y.2d 10, 19 (1995) (“even where a motion to dismiss for insufficient evidence was made, the preservation requirement compels that the argument be ‘specifically directed' at the alleged error”); see also Garvey v. Duncan, 485 F.3d 709, 714-15 (2d Cir. 2007); see, e.g., People v. Pratcher, 34 A.D.3d 1522, 1524 (4th Dep't 2015) (“Although defendant moved for a trial order of dismissal, he did not contend in that motion that the victim's death was not the foreseeable result of the injuries the victim sustained during the commission of the crimes, and thus failed to preserve his legal sufficiency contention for our review.”).
The Second Circuit has held that CPL § 470.05(2) is “firmly established and regularly followed, ” and “New York courts consistently interpret [CPL] § 470.05(2) to require that a defendant specify the grounds of alleged error in sufficient detail so that the trial court may have a fair opportunity to rectify any error.” Garvey, 485 F.3d at 715-16; see Meja v. Artus, No. 12 Civ. 2241, 2016 WL 1305162, at *10-11 (E.D.N.Y. Mar. 31, 2016).
At trial, Swift's counsel moved for a trial order of dismissal upon completion of the People's proof on the ground that the People had not made out a prima facie case with respect to the counts in the indictment. (T. 948-49, 954-55.) However, with respect to Count 1, first degree manslaughter, trial counsel only argued the People failed to prove Swift's intent to cause any serious physical injury. (T. 948-49, 954-55.) The record is void of any discussion that the victim's death from hypothermia was not the foreseeable result of the injuries the victim sustained during the assault. (T. 948; see also T. 954-55.) Thus, the Court agrees with Respondent that the objection was “too general” to preserve Petitioner's foreseeability argument for appellate review and, therefore, is procedurally barred.
Where, as in this case, the state court denies the claim on the merits using the phrase “in any event” its “primary reliance on this state procedural law constitutes an independent ground for its decision.” See Serrano v. Kirkpatrick, No. 11 Civ. 2825, 2013 WL 3226849, at *11 (S.D.N.Y. June 25, 2013); Fama, 235 F.3d at 810 & n.4 (noting that when a state court opines that a claim is “not preserved for appellate review” and then rules “in any event” that the claim also fails on the merits, the claim rests on independent state law rule which precludes federal habeas review); Harris, 489 U.S. at 264 n.10 (finding that a state court decision relying on a procedural rule to dismiss a claim, but that, in the alternative, also proceeds to dismiss the claim on the merits, relies on the independent state law ground for dismissal); Fore v. Ercole, 594 F.Supp.2d 281, 289 (E.D.N.Y. 2009) (citations omitted).
A procedural default will “bar federal habeas review of the federal claim, unless the . . . petitioner can show ‘cause' for the default and ‘prejudice attributable thereto, '” or demonstrate that “failure to consider the federal claim will result in a ‘fundamental miscarriage of justice.'” Coleman, 501 U.S. at 749-50 (citations omitted). Because Petitioner has not alleged, much less established, “cause” for his default, this Court need not address the issue of prejudice. See Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 127 (2d Cir. 1995); Burkett v. Artus, No. 9:14-CV-0110 (BKS), 2016 WL 6659492, at *6 (N.D.N.Y. Nov. 10, 2016) (“If a petitioner fails to establish cause, a court need not decide whether he suffered actual prejudice, because federal habeas relief is generally unavailable as to procedurally defaulted claims unless both cause and prejudice are demonstrated.”). Nor has Petitioner alleged a fundamental miscarriage of justice, such as evidence that he was actually innocent of the crime. See Schlup v. Delo, 513 U.S. 298, 325 (1995).
Nevertheless, there is also no evidence of prejudice, because, as discussed herein, Petitioner's substantive foreseeability claim is meritless.
Therefore, Petitioner's foreseeability claim is procedurally barred from federal habeas review. As such, the Court recommends the petition be denied on this ground. In any event, assuming arguendo that this claim is reviewable, it is substantively without merit, as set forth below.
b. Petitioner's legal sufficiency claim is entirely meritless.
The law governing habeas relief from a state conviction based on insufficiency of evidence is well established. A petitioner “bears a very heavy burden” when challenging the legal sufficiency of the evidence in a state criminal conviction. Einaugler v. Supreme Court of the State of N.Y., 109 F.3d 836, 840 (2d Cir. 1997). “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original)). “[T]he findings of the state court are presumptively correct and entitled to a high degree of deference as that court was in the best position to view the credibility of the witnesses and all of the facts as they were adduced at trial.” Santos v. Zon, 206 F.Supp.2d 585, 589 (S.D.N.Y. 2002) (citations and alterations omitted).
Even when “faced with a record of historical facts that supports conflicting inferences [the court] must presume-even if it does not affirmatively appear in the record-that the trier of fact resolves any such conflicts in favor of the prosecution, and must defer to that resolution.” Wheel v. Robinson, 34 F.3d 60, 66 (2d Cir. 1994) (quoting Jackson, 443 U.S. at 326) (internal quotation marks omitted).
A petitioner cannot prevail on a claim of legally insufficient evidence unless he can show that, viewing the evidence in the light most favorable to the prosecution, “‘no rational trier of fact could have found proof of guilt beyond a reasonable doubt.'” Flowers v. Fisher, 296 Fed.Appx. 208, 210 (2d Cir. 2008) (quoting Jackson, 433 U.S. at 324); accord Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir. 2002) (“[W]e review the evidence in the light most favorable to the State and the applicant is entitled to habeas corpus relief only if no rational trier of fact could find proof of guilt beyond a reasonable doubt based on the evidence adduced at trial.”). Thus, a conviction stands if “a reasonable mind ‘might fairly conclude guilt beyond a reasonable doubt.'” United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993) (quoting United States v. Mariani, 725 F.2d 862, 865 (2d Cir. 1984)); Loving v. People of State of New York, No. 04-CV-1284, 2007 WL 1825401, at *7 (E.D.N.Y. June 21, 2007) (“Ultimately, so long as the evidence at trial establishes ‘any valid line of reasoning and permissible inferences [that] could lead a rational person' to convict, then the conviction will survive sufficiency review.”).
When considering the sufficiency of the evidence of a state conviction, “[a] federal court must look to state law to determine the elements of the crime.” Quartararo v. Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999). Here, the Court agrees with Respondent that the jury had more than sufficient evidence to convict Petitioner of both manslaughter and possession of a weapon, and it is at least “possible” that a fairminded jurist could agree with the Appellate Division's decision denying Petitioner's legal sufficiency claim. (See R. Mem. at 30-43, 46-63.)
i. Manslaughter
In New York, a person commits first degree manslaughter when “[w]ith intent to cause serious physical injury to another person, he causes the death of such person or of a third person.” N.Y. Penal Law § 125.20(1). New York law provides that “‘[s]erious physical injury' means physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.” N.Y. Penal Law § 10.00(10). “A person need not directly cause the death of another to be criminally liable for first-degree manslaughter.” Martinez v. Breslin, No. 07 CIV. 8671, 2009 WL 2244633, at *5 (S.D.N.Y. July 28, 2009). Under New York law, a person may be criminally liable for the conduct of another:
When one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct.N.Y. Penal Law § 20.00. A person whose criminal liability is premised upon the conduct of another person may be held liable even though the other person is not criminally liable for the offense, or is not prosecuted for or convicted of the offense. N.Y. Penal Law § 20.05(1) & (2); see, e.g., People ex rel. Guido v. Calkins, 9 N.Y.2d 77 (1961) (holding that one who “aids and abets” in committing a crime can be prosecuted even if principal has been acquitted).
Here, Petitioner claims that his conviction is not supported by legally sufficient evidence because he lacked the requisite intent to be convicted of first degree manslaughter. (Pet at ¶ 22, SR 372-82.) However, viewing the evidence in the light most favorable to the prosecution and drawing all permissible inferences in its favor, a rational fact finder could have found-and did find-that Petitioner acted with an intention to cause serious physical injury upon Marshall.
To the extent Petitioner attacks the value of the evidence against him, this Court is precluded from either re-weighing the evidence or assessing the credibility of witnesses. See Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996) (dismissing habeas claim because “assessments of the weight of the evidence or the credibility of witnesses are for the jury and not grounds for reversal on appeal” and deferring to the jury's assessments of the particular weight to be accorded to the evidence and the credibility of witnesses).
“[A] person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct.” N.Y. Penal Law § 15.05(1). There is a presumptive inference that a person intends that which is the natural and probable consequences of his acts. People v. Getch, 50 N.Y.2d 456, 465 (1980); People v. Meacham, 84 A.D.3d 1713, 1714 (4th Dep't 2011). The requisite intent may be inferred from the circumstances, including the actions of the accused, and may be proven by direct or circumstantial evidence. Stone v. Stinson, 121 F.Supp.2d 226, 247 (W.D.N.Y. 2000); People v. Price, 35 A.D.3d 1230, 1231 (4th Dep't 2006), lv. denied 834 N.Y.S.2d 516 (2007). The issue of intent is “one of fact for the jury.” People v. Cabey, 85 N.Y.2d 417, 421-22 (1995).
In this case, the evidence at trial demonstrated Swift intended to cause serious physical injury to Marshall when he (1) personally assaulted Marshall and/or (2) ordered Ware and Rat to assault Marshall.
First, the People offered testimony that Swift admitted that he personally “caved [the victim's] face in with a rock, ” and that Swift and two other men, “beat him senseless” and “left him there.” (Bondi: 868-69.) Courts have consistently held that “‘the testimony of a single, uncorroborated eyewitness is generally sufficient to support a conviction.'” United States v. Frampton, 382 F.3d 213, 222 (2d Cir. 2004) (quoting United States v. Danzey, 594 F.2d 905, 916 (2d Cir. 1979)). Here, the record established that Bondi received no benefit from the prosecution for testifying. (Bondi: 870-72, 881, 883, 887-89.) Moreover, Bondi's testimony was corroborated by the medical examiner's testimony that some of Marshall's injuries were consistent with being struck by a rock (Knight: 929); the discovery of the large rock with Marshall's blood on it (McGinn: 520, 524; Cowen: 700-02); and the discovery of Petitioner's and Marshall's blood on Diamante's sneaker (Cowen: 674-77).
The medical examiner testified that Marshall sustained “a severe beating, ” consisting of multiple blunt force trauma strikes, particularly to the head. (Knight: 918-19.) The medical examiner testified Marshall's jaw was fractured in two places - the result of very substantial force. (Knight: 914, 918-19, 930, 934-35.) His face and scalp sustained multiple cuts, scrapes, and bruises that were caused by blunt force trauma, either by fists or other objects. (Knight: 913-14, 916, 926-30.) Marshall's right eye was swollen virtually shut and lacerated. (Knight: 913, 926-27.) His left eyeball suffered blunt force trauma so severe that it was “ruptured, ” or “caved in.” (Knight: 926-27, 929.) Marshall's brain was “mildly swollen overall, ” with hemorrhages and bruising. (Knight: 916.) He had “a small area of a remote stroke or remote injury on the right frontal lobe” of the brain. (Knight: 917.)
Marshall also sustained numerous internal injuries, such as bruising, hemorrhaging and a broken rib. (Knight: 916-17, 919.) His left testicle suffered blunt force trauma. (Knight: 919-20.) He had cuts, scrapes, burn marks, bruises, and swelling all over his body, including his back, arms, hands, and legs. (Knight: 914-15.) The scrapes on his arms and legs were consistent with being dragged along the ground without wearing pants. (Knight: 915, 919, 931-33.)
Second, the jury could have reasonably concluded that, by personally assaulting Marshall, i.e., “caving in” Marshall's face with a rock, and “beating him senseless” and by “le[aving] him there”, Swift intended to cause a serious physical injury. A jury may infer that a defendant intended the natural and probable consequences of his actions. See Getch, 50 N.Y.2d at 465. “A person's intent may be inferred from his acts and conduct.” Id.; see, e.g., People v. Aveille, 148 A.D.2d 461, 461-62 (2d Dep't 1989) (evidence showing that during an argument, the defendant threw a stone, approximately eight inches in length, at victim, was sufficient to show that he had the intent to cause serious physical injury).
A rock has been held to be a “dangerous instrument, ” which is statutorily defined as “readily capable of causing death or other serious physical injury.” Gonzales-Martinez v. Kirkpatrick, 16-CV-5119, 2017 WL 3891649, at *13 (E.D.N.Y. Sept. 6, 2017) (quoting N.Y. Penal Law § 10.00(13)).
Further, that the attack was on Marshall's “head, a vital part of the body, provided further support for the conclusion that [Swift] intended to injure [Marshall] seriously.” People v. Steinberg, 170 A.D.2d 50, 69 (1st Dep't 1991), aff'd, 79 N.Y.2d 673 (1992); accord People v. Aveille, 148 A.D.2d at 461-62.
Additionally, there was more than sufficient evidence that Petitioner commanded Ware and Rat to assault Marshall, thus establishing Petitioner's intent to seriously injure Marshall. See N.Y. Penal Law §20.00. Petitioner was convicted of being an accessory to manslaughter. (SR 11; T. 1075-76, 1081.) Under the accessory statute “there is no distinction between liability as a principal and criminal culpability as an accessory.” People v. Rivera, 84 N.Y.2d 766, 770 (1995) (citations and internal quotation marks omitted). “[D]irect proof of an express agreement or statement” between principal and accessory is not required. Rather “[t]he intent to commit a crime may be implied by the act itself, or it may be established by the defendant's conduct and the surrounding circumstances.” Martinez, 2009 WL 2244633, at *6 (citations and internal quotation marks omitted) (finding that although the evidence at trial showed that a codefendant administered the blows that directly caused victim's death, a reasonable jury could have reasonably concluded that defendant was an active and willing participant from start to finish).
As discussed above, Diamante testified that he overheard Swift tell Rat, “Hit him, that's orders.” (Diamante: 436-37.) “Right after” Petitioner's order, Ware and Rat assaulted Marshall in the living room, kicking Marshall and beating him with a board. (Diamante: 402-03, 428-29; see also SR 318.) This assault continued for “a couple of minutes” until Swift ordered Ware and Rat, “get him out of the house.” (Diamante: 404-05.) Additionally, the medical examiner testified that some of Marshall's injuries, “particularly the puncture-like lacerations on the face that had a square shape, would have been created by a square-pattern object.” (Knight: 914, 918, 929.) Based on the bloodstain evidence, the detective concluded that there were four distinct areas where a beating occurred. (McGinn: 523-25, 652-54.) The assault began on the front porch of Swift's house, as evidenced by blood droplets on the floor of the porch, the stairs, and the sidewalk in front. The assault then continued into the roadway in front of the house, where Marshall had to have been in a “downward position, ” based on the “low angle of impact” of the blood on the roadway. His body was then dragged across the street into the vacant lot where another beating occurred (and where the large rock was found). Finally, Marshall was dragged to the rear of the vacant lot, against the wall of the Cole Muffler, where his body was found and where bloodstains indicated another beating took place. (McGinn: 523-25, 652-54.)
The detective also observed, inside Swift's house, a broken wallboard, and Swift's bloodstains. Further, there was evidence that the scene had been cleaned up. Accordingly, the detective could not rule out that the assault began inside the house. (McGinn: 602-05, 636-38, 651-55, 657-58.)
Here, drawing all inferences in the People's favor, the jury could have reasonably concluded that Petitioner, acting in concert with Ware and Rat, was at all times in charge - “that's orders” - and that Ware and Rat did precisely as Swift directed. Specifically, when Swift commanded that Marshall be “hit, ” they responded by assaulting him with kicks and a board, and when Swift directed that they take Marshall “out of the house, ” they continued the assault outside and dragged him to the vacant lot as Petitioner watched. (Diamante: 402-05, 428-29, 436-37; see also SR 318.) Given that Swift ordered the assault and then watched, and did not stop the beating, the jury could have reasonably concluded that Ware and Rat followed Swift's orders. See, e.g., People v. Vaughn, 36 A.D.3d 434, 435 (1st Dep't 2007) (finding a defendant liable for his subordinates' assault of a victim where, as here, the defendant “gave his subordinates an instruction that was open-ended with respect to how the victim was to be assaulted, and remained throughout the assault”); see In re Tatiana N., 73 A.D.3d 186, 190-91 (1st Dep't 2010) (“[T]he necessary knowledge and intent [to prove accessorial liability] need not be admitted directly or verbally acknowledged. They may be established through the actions of the accused, based on the entire series of events.”).
The trial court denied the People's motion to be permitted to elicit evidence regarding Swift's affiliation with the Crips gang to explain why Ware and Rat followed Swift's orders. (SR 135-37; T.5-21.)
In sum, drawing all inferences in the People's favor, the jury could have reasonably concluded that Swift personally assaulted Marshall and/or ordered Ware and Rat to assault Marshall, intending to cause him serious physical injury. The jury's decision should not be second-guessed, given the doubly deferential standard of review under Jackson and the AEDPA. See Johnson, 566 U.S. at 651.
Turning to Petitioner's foreseeability argument, to convict Petitioner of first degree manslaughter, the People were required to prove that Swift's conduct was “a sufficiently direct cause” of Marshall's death. People v. DaCosta, 6 N.Y.3d 181, 184 (2006). “Sufficiently direct causation is established by proof of the following: (1) that defendant's actions were an actual contributory cause of [the] death, in the sense that they forged a link in the chain of causes which actually brought about the death; and (2) that the fatal result was reasonably foreseeable.” People v. Davis, 28 N.Y.3d 294, 300 (2016) (citations and internal quotation marks omitted); accord Matter of Anthony M., 63 N.Y.2d 270, 280 (1984).
In his counseled brief on direct appeal, Swift did not contest this prong of causation. Nevertheless, drawing every inference in the People's favor, a rational jury could have concluded that Petitioner's conduct was an actual contributory cause of Marshall's death. Here, the jury could have reasonably determined that Petitioner oversaw the assault, given that he: initially ordered and personally took part in the assault; later ordered that the assault be moved out of the house; and admitted watching the assault for several minutes without attempting to stop it. See People v. Vaughn, 36 A.D.3d at 435 (finding defendant liable where he “gave his subordinates an instruction that was open-ended with respect to how the victim was to be assaulted, and remained throughout the assault” without attempting to stop it). Moreover, given that Petitioner stood by and watched, without interfering, as Ware and Rat subsequently “dumped” and abandoned Marshall in the vacant lot (see SR 319; Diamante: 407), the jury could have reasonably concluded that Petitioner directed that action as well. See Vaughn, 36 A.D.3d at 435. Further, Petitioner did nothing thereafter to come to Marshall's aid as he lay screaming for help. (SR 319-20.) Lastly, Dr. Knight opined to a reasonable degree of medical certainty that Marshall died as a result of “environmental hypothermia, or cold exposure, ” and that “the blunt force injuries of his head, his alcohol intoxication and asthma were contributory conditions to his death.” (Knight: 935.) Dr. Knight also testified that Marshall “[c]ertainly . . . could have survived” had he received medical assistance. (Knight: 937-38.) Accordingly, the evidence established that Petitioner “set[] in motion the events which ultimately result[ed] in the victim's death.” People v. Matos, 83 N.Y.2d 509, 512 (1994). In sum, there was more than sufficient evidence to conclude that Petitioner's conduct - in beating Marshall, abandoning him in the vacant lot in a helpless condition and in the cold, and doing nothing thereafter to assist him as he lay there for hours - was an actual contributory cause of Marshall's death.
With respect to foreseeability of the death, the People must prove “that the ultimate harm is something which should have been foreseen as being reasonably related to the acts of the accused.” Davis 28 N.Y.3d at 301 (citing People v Kibbe, 35 N.Y.2d 407, 412 (1974)). A victim's death is reasonably foreseeable if it “'should have been foreseen as being reasonably related to the acts of the accused.'” Id. (quoting People v. Kibbe, 35 N.Y.2d at 412). However, “[f]oreseeability does not mean that the result must be the most likely event.” People v. Hernandez, 82 N.Y.2d 309, 319 (1993); accord Matos, 83 N.Y.2d at 512.
For example, in People v. Davis, the Court of Appeals found “there was legally sufficient evidence to support the jury's findings that defendant's assault of the victim during a home invasion was an actual contributory cause of the victim's death and that the victim's death, induced by the stress of the violent event, was a reasonably foreseeable result of defendant's conduct.” 28 N.Y.3d at 296-97. There, the defendant violently attacked the victim, in his home, breaking his jaw and leaving him on the floor in a blood-spattered room where he was found dead. From all of the evidence and the circumstances surrounding this violent encounter, the proof was sufficient to permit the jury to conclude that the victim's heart failure, induced by the extreme stress and trauma of such a violent assault, was a directly foreseeable consequence of defendant's conduct.” Id. at 298-99 (citing Matos, 83 N.Y.2d at 511-512).
Moreover, in its analysis of the weight of the evidence, the Appellate Division rejected Swift's claim that Marshall's “death from hypothermia was not a reasonably foreseeable result of the beating that he received.” Swift, 160 A.D.3d 1342. As summarized by the Appellate Division:
With respect to an allegedly intervening cause of death, it is only where the death is solely attributable to the secondary agency, and not at all induced by the primary one, that its intervention constitutes a defense. Here, the victim's injuries left him unable to see because both of his eyes were swollen shut and one was ruptured, he was confused and likely concussed due to head trauma, and he sustained several broken facial and skull bones. The jury could have concluded that defendant ordered the codefendants to attack the victim, that he took part in the ensuing assault, and that he and the codefendants removed most of the victim's clothing and left him outside while the wind chill was below 40 degrees. Thus, defendant may not avoid responsibility by arguing that other causes contributed since his acts [and those of the codefendants that he requested] were also factors in the victim's demise.Id. (internal quotation marks and citations omitted, brackets in original). That decision was neither contrary to, nor an unreasonable application of, Jackson.
Here, Dr. Knight testified that hypothermia was the cause of death, and that, given Marshall's debilitated condition, he likely died within “a few hours.” (Knight: 935-37.) Drawing all inferences in the People's favor, the jury could have reasonably concluded that, by severely beating Marshall and abandoning him outside, nearly naked, in a helpless condition and in near-freezing temperatures, Swift placed Marshall at risk of death. See, e.g., People v. Kibbe, 35 N.Y.2d at 410-13 (holding defendants were liable for “directly foreseeable consequences of their own actions” where they robbed the victim and threw him out of a car onto the shoulder of a rural highway, leaving him alone at night in near-zero degree weather with limited visibility conditions, without his glasses, and with his pants down, shoeless and his shirt rolled up around his chest, where the victim was struck and killed by a truck).
In sum, the record does not compel the conclusion that no rational trier of fact could have found proof that Swift was guilty of first degree manslaughter especially considering the double deference owed under Jackson and the AEDPA. Swift therefore cannot prevail on his insufficiency of the evidence claim either. As such, the Court recommends denying the petition on this ground.
ii. Criminal Possession of a Weapon
In New York, a person commits third degree criminal possession of a weapon when he “commits the crime of criminal possession of a weapon in the fourth degree as defined in subdivision one, two, three or five of section 265.01, and has been previously convicted of any crime.” N.Y. Penal Law § 265.02(1). In turn, a person commits criminal possession of a weapon in the fourth degree when he possesses “any . . . dangerous or deadly instrument or weapon with intent to use the same unlawfully against another.” N.Y. Penal Law § 265.01(2). Because Swift admitted that he had been previously convicted of a crime (T. 30-34, 336-38), the trial court charged that Swift could be found guilty of criminal possession of a weapon if, personally or acting in concert with others, he knowingly possessed a dangerous instrument and did so with the intent to use it unlawfully against another. (T. 1089-90; S.C. 11.). A “dangerous instrument” means “any instrument . . . which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury.” N.Y. Penal Law § 10.00(13).
The Appellate Division rejected Swift's claim that, “because there [was] no evidence that he possessed a weapon, ” the evidence was legally insufficient to support the conviction on the weapon charge. Swift, 160 A.D.3d at 1342. That decision was neither contrary to, nor an unreasonable application of, Jackson.
In this case, the People presented more than sufficient evidence to establish the elements of possession of a weapon. As discussed above, Bondi testified that Swift personally “caved [the victim's] face in with a rock” (Bondi: 868-69), and Bondi's testimony was corroborated both by the medical examiner's testimony that some of Marshall's injuries were consistent with being struck by a rock (Knight: 929), and by the recovery of a rock that was covered with Marshall's blood (Cowen: 700-02). See Gonzales-Martinez, 2017 WL 3891649, at *13 (finding a rock considered a dangerous instrument under N.Y. Penal Law § 265.01(2).) Although Diamante testified only Ware and Rat beat Marshall with a board, any discrepancies between Bondi's and Diamante's testimonies are presumed to be decided by the jury in favor of the prosecution, to which this Court gives great deference.
Additionally, the jury could have reasonably found Petitioner liable for possession of the weapon under a theory of constructive possession, see N.Y. Penal Law § 10.00(8), as Petitioner “exercised dominion and control over the persons who possessed” the board and the rock. Vaughn, 36 A.D.3d at 435 (citing People v. Carvajal, 6 N.Y.3d 305, 314 (2005); People v. Manini, 79 N.Y.2d 561, 572-75 (1992)). Moreover, the jury could have rationally concluded that Petitioner possessed a weapon - including a rock and a board - through his control over his accomplices, on an acting-in-concert theory. See, e.g., People v. Johnson, 94 A.D.3d 1408, 1409 (4th Dep't 2012).
Thus, the Court finds that, viewing the evidence presented at trial most favorably to the prosecution, there was sufficient evidence for a rational trier of fact to convict Petitioner of third degree possession of a weapon. Accordingly, the Court also recommends denying habeas relief on this ground.
B. Admission of Hearsay Statements
Petitioner claims, as he did on direct appeal, the trial court erred in admitting hearsay evidence consisting of certain text messages and a phone conversation between Marshall and Hardnett. (Pet. at ¶ 22; SR 362-72.) Generally, Respondent argues that the decision to admit the statements concerned a state evidentiary issue and is not subject to federal habeas review. (R. Mem. at 63-64.) Respondent further contends that even if the Court liberally construed the petition to assert a federal constitutional claim - such as for a violation of the Fourteenth Amendment Due Process Clause - that claim should be denied as unexhausted and procedurally defaulted because it was raised in state court in solely state law terms. Id. at 64-67. Finally, Respondent maintains that even if the Court were to very liberally construe Petitioner's claim to assert a violation of federal due process, and even if the Court were to find that the claim was properly exhausted, the claim should be denied as meritless because, as the Appellate Division held, any error in admitting the evidence was “harmless.” Id. at 67-71. In his reply, Petitioner asserts this claim invokes violations of his constitutional rights under the Sixth and Fourteenth Amendments and, therefore, is cognizable. (Traverse at 2-8.) He further contends he exhausted this claim and habeas relief is warranted on the merits. Id.
Before trial, the People moved for permission to offer evidence of the telephone conversation and text messages between Marshall and Hardnett on the evening of April 12, 2012, asserting various hearsay exceptions. (SR 137-41; T. 21-24.) Swift's trial counsel opposed, arguing that the evidence was “clearly hearsay.” (T. 24-26.) The trial court admitted the evidence, adopting the various hearsay exceptions asserted by the prosecution “in toto”. (T. 25-28.)
The Appellate Division considered and rejected this claim on direct appeal as follows:
The witness testified that the victim had called and texted her, indicating in each communication that he thought defendant had set him up, and to look to defendant if anything happened to the victim. Contrary to the People's contention, we conclude that defendant preserved his contention for our review, and we agree with defendant that the text messages and testimony in question constituted hearsay. Nevertheless, even assuming, arguendo, that the court erred in admitting the communications in evidence under the present sense impression and excited utterance exceptions to the hearsay rule, we conclude that any such error is harmless.Swift, 160 A.D.3d 1342 (internal citations omitted).
“Evidentiary questions are generally matters of state law and raise no federal constitutional issue for habeas review.” Sudler v. Griffin, No. 9:12-CV-0367 (NAM/ATB), 2013 WL 4519768, at *3 (N.D.N.Y. Aug. 26, 2013); accord Estelle v. McGuire, 502 U.S. at 67-68 (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.”).
Here, even assuming, without deciding, that Petitioner's hearsay claim is cognizable and exhausted, the Court agrees with Respondent that it fails on the merits.
1.Petitioner's hearsay claim is meritless.
“Federal courts may issue a writ of habeas corpus based upon a state evidentiary error only if the petitioner demonstrates that the alleged error violated an identifiable constitutional right, and that the error was so extremely unfair that its admission violates fundamental conceptions of justice.” Buchanan v. Chappius, No. 9:15-CV-0407 (LEK), 2016 WL 1049006, at *4 (N.D.N.Y. Mar. 11, 2016) (citations and internal quotation marks omitted); accord Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (“The introduction of improper evidence against a defendant does not amount to a violation of due process unless the evidence ‘is so extremely unfair that its admission violates fundamental conceptions of justice.'”). That is a “heavy burden, for ‘generally, rulings by state trial courts on evidentiary issues, even if erroneous, do not rise to the level of a constitutional violation.”' Bonet v. McGinnis, 98 Civ. 6529, 2001 WL 849454, at *2 (S.D.N.Y. July 27, 2001).
“For the erroneous admission of other unfairly prejudicial evidence to amount to a denial of due process, the item must have been sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it.” Id. (citations and internal quotation marks omitted); accord Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985); Smith v. Grenier, 117 Fed.Appx. 779, 781 (2d Cir. 2004).
Accordingly, for Petitioner to succeed with his federal habeas corpus petition asserting state evidentiary errors, he must establish that (1) the trial court's evidentiary rulings were erroneous as a matter of state law, (2) the admitted evidence deprived him of a fundamentally fair trial, and (3) under the AEDPA, the state court's ruling 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. See, e.g., Sorrentino v. LaValley, No. 12-CV-7668, 2016 WL 11482062, at *16 (S.D.N.Y. Feb. 3, 2016) (“erroneously admitted hearsay statements cannot provide a basis for federal habeas relief unless the evidentiary error so undermined the fairness of the trial as to violate the petitioner's constitutional right to due process.”).
On the record presented, Petitioner cannot meet that standard because even if the trial court's admission of the challenged statements constituted evidentiary error, the court's ruling cannot be said to have deprived Petitioner of a fundamentally fair trial. See Vega v. Portuondo, 120 Fed.Appx. 380, 382 (2d Cir. 2005) (“Even assuming, for the sake of argument, that petitioner is correct to assert that admission of [the evidence] was erroneous as a matter of [state] law, this alone would not suffice to merit federal habeas relief . . . . ‘The introduction of unfairly prejudicial evidence against a defendant in a criminal trial . . . does not amount to a violation of due process unless the evidence is so extremely unfair that its admission violates fundamental conceptions of justice.”') (citations omitted).
Here, although the Appellate Division “agreed” the statements at issue were hearsay and assumed, arguendo, the trial court erred in admitting the communications in evidence under the present sense impression and excited utterance exceptions to the hearsay rule, the state court determined “any such error is harmless.” Swift, 160 A.D.3d 1342. Petitioner fares no better on habeas review.
Where, as in this case, “a state court makes a harmless error determination on direct appeal, ” the Court “owe[s] the harmlessness determination itself deference under the [AEDPA].” Orlando v. Nassau Cty. Dist. Attorney's Off., 915 F.3d 113, 127 (2d Cir. 2019). A hearsay “[e]rror is harmless if it is highly probable that it did not contribute to the verdict.” United States v. Gomez, 617 F.3d 88, 95 (2d Cir. 2010) (quoting United States v. Kaiser, 609 F.3d 556, 573 (2d Cir. 2010)); see 3A Charles A. Wright, Federal Practice & Procedure § 854, at 311 (2d ed. 1982) (“Error in the admission of evidence is harmless if the facts shown by that evidence are already before the jury through other properly-admitted evidence.”). In determining whether an alleged error is harmless, a court considers, among other factors, “the importance of the wrongly admitted testimony” and “whether such evidence was cumulative of other properly admitted evidence.” United States v. Kaplan, 490 F.3d 110, 123 (2d Cir. 2007); see, e.g., Morman v. Superintendent, Mid-State Corr. Facility, No. 9:18-CV-01338 (MAD/DJS), 2021 WL 5139718, at *7 (N.D.N.Y. Nov. 4, 2021) (concluding the testimony offered, while improper, was harmless because of the overwhelming evidence presented at trial); Anderson v. Martuscello, No. 17-CV-9638, 2021 WL 4429333, at *10 (S.D.N.Y. Sept. 27, 2021) (finding the petitioner not entitled to habeas relief on his hearsay claim where petitioner failed to demonstrate that the county court's alleged error in admitting the police dispatcher's statement deprived him of a fundamentally fair trial).
In this instance, Hardnett testified, in sum and substance, that Marshall told her in a phone call placed at 11:15 p.m. on April 12, 2012, that “if anything happened to him, ” he was with Swift. (Hardnett: 450-51, 454-55.) While this statement may have reflected Marshall “sens[ed] something was about to happen to him, ” (see T. 27) and that he was with Swift and Swift was to be blamed, the Court agrees with Respondent that the statement was not so material as to provide the basis for conviction or remove a reasonable doubt that would otherwise have existed. Arena v. Kaplan, 952 F.Supp.2d 468, 492-93 (E.D.N.Y. 2013). As Respondent points out, this evidence established that Swift and Marshall were together on the night of April 12, 2012, which was also established by other credible evidence, including Diamante's testimony, Petitioner's admissions to Bondi, and Petitioner's own letters and statements to the police. (See R. Mem. at 67-73.) Further, as to any “blame” to be placed on Swift if “anything happened” to Marshall, such evidence was established by Diamante's testimony and Petitioner's admission to Bondi.
Again, to the extent Petitioner attacks the value of the evidence against him, this Court is precluded from either re-weighing the evidence or assessing the credibility of witnesses. See Maldonado v. Scully, 86 F.3d at 35.
As to Marshall's text message to Hardnett, “Yo, I think those nigga set me up, but it's Sammy brother, Lou”, the Court agrees with Respondent that the somewhat cryptic text message was, at best, cumulative of other evidence including Sammy Swift is Petitioner's brother, Swift ordered Ware and Rat to assault Marshall (“Hit him, that's orders.”), Bondi's testimony that Swift admitted taking part in the assault (including hitting the victim with a rock); and Petitioner's letter to the police admitting that he watched the entire assault. Thus, even if the statements at issue were admitted in error, the statements neither provided the basis for Petitioner's conviction, nor did it remove reasonable doubt that would have existed in the absence of the statement. See Johnson, 955 F.2d at 181.
In sum, the Court agrees with Respondent that, even assuming arguendo that the state court erred in admitting the evidence regarding Marshall's phone call with and text message to Hardnett, such evidence added little to the People's case. See Brown v. Walker, 275 F.Supp.2d 343, 351 (E.D.N.Y. 2003) (“There is no reasonable probability that the result of petitioner's trial would have been different even if all of the contested hearsay testimony had been deemed inadmissible by the trial court upon an objection from defense counsel.”).
While Petitioner may disagree with the way in which the jury weighed the evidence or with the credibility assessments that the jury made, “assessments of the weight of the evidence or the credibility of witnesses are for the jury and not grounds for reversal on habeas appeal.” Garrett v. Perlman, 438 F.Supp.2d 467, 470 (S.D.N.Y. 2006) (alterations and citation omitted).
Accordingly, Petitioner has failed to establish that admission of this evidence was so “egregious” or fundamentally unfair as to violate due process. See Evans v. Fischer, 712 F.3d 125, 133 (2d Cir. 2013). Moreover, given the extremely broad deference due to state court decisions under the AEDPA, Petitioner has not established that there is “no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents” on due process. Richter, 562 U.S. at 102. Accordingly, the Court recommends denying the petition on this ground.
2.Petitioner's confrontation claim is meritless.
To the extent Petitioner contends that his right to confront the victim under the Sixth Amendment was violated by the introduction of the victim's statements through the trial testimony of Hardnett, the Court agrees with Respondent that the claim lacks merit. (Traverse at 2-8; R. Mem. at 65 n.17.)
As Respondent correctly observes, the record does not support the conclusion that the victim's statements to Hardnett regarding Petitioner (as testified to by Hardnett, who was subject to cross-examination) were testimonial in nature. (See R. Mem. at 65 n.17.) “It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.” Davis v. Washington, 547 U.S. 813, 821 (2006). Here, there is no indication that the declarant (i.e., the victim) had any reasonable expectation that his statements, made to Hardnett outside the context of any proceeding, investigation, or formal complaint, would be used in future judicial proceedings. See United States v. Saget, 377 F.3d 223, 228-230 (2d Cir. 2004); see generally Giles v. California, 554 U.S. 353, 376 (2008) (noting that “only testimonial statements are excluded by the Confrontation Clause[, and s]tatements to friends and neighbors about abuse and intimidation . . . would be excluded, if at all, by hearsay rules”). Thus, Petitioner is not entitled to habeas relief on this basis. Therefore, the Court also recommends denying the petition on this ground.
C. Harsh and Excessive Sentence
Finally, Petitioner challenges his sentence as overly harsh and excessive. (Pet. at 22; S.C. 383-85, 442.) Respondent argues Petitioner's sentencing claim is not cognizable. (R. Mem. at 71.) The Court agrees with Respondent.
On direct appeal, Swift argued his sentence was “harsh and excessive, ” and asked the Appellate Division to exercise its discretionary powers under CPL § 470.15 to reduce the sentence “in the interest of justice” because, inter alia, he received the exact same sentence as codefendant Ware, who “actually” “brutalized” the victim. (SR 383-85 (“To impose the exact same sentence on [Swift] who did little more than stand idly by (even if one credits the testimony that he told Ware and Rat to ‘hit him') is excessive[.]”).) The Appellate Division denied the claim, finding the sentence was “not unduly harsh or severe.” Swift, 160 A.D.3d at 1343.
The issue of whether a sentence is overly harsh or excessive is not a proper issue for review in the federal habeas context unless the sentence was outside of the permissible range provided for by state law. See White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (“No federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law.”); accord Maldonado v. Lee, No. 09-CV-5270, 2012 WL 3240710, at *3 (E.D.N.Y. July 31, 2012.) Here, Petitioner has never claimed that his sentence was outside the statutory range. Accordingly, his state-law sentencing claim is not cognizable in this Court. White, 969 F.2d at 1383; see also Alfini v. Lord, 245 F.Supp.2d 493, 502 (E.D.N.Y. 2003) (“It is well settled that an excessive sentence claim may not be raised as grounds for habeas corpus relief if the sentence is within the range prescribed by state law.”); McCalvin v. Senkowski, 160 F.Supp.2d 586, 589 (S.D.N.Y. 2001) (“Sentencing decisions are not cognizable on habeas corpus review unless the sentence imposed falls outside the range prescribed by state law.”).
As the People argued on direct appeal, “the sentencing court did not abuse its discretion when it imposed the legally permissible maximum sentence of 25 years in prison for manslaughter in the first degree[.]” (SR 413.) See, e.g., People v. Sullivan, 37 A.D.3d 974, 975 (3d Dep't 2007) (sentence of 25 years for first degree manslaughter found not harsh or excessive “in light of the brutal nature of the attack” and the defendant's failure to take responsibility or show remorse for his actions following his guilty plea), abrogated on other grounds by People v. Lewis, 48 A.D.3d 880, 851 N.Y.S.2d 295 (2008).
Therefore, the Court recommends denying the petition on this ground.
V. CERTIFICATE OF APPEALABILITY
“Unless 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.” 28 U.S.C. § 2253(c)(1); see also Fed. R. App. P. 22(b)(1). “A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Hohn v. United States, 524 U.S. 236, 240 (1998). Because Petitioner has not satisfied this standard, the Court recommends declining to issue a Certificate of Appealability in this matter.
VI. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions, and the applicable law, and for the reasons stated herein the Court hereby
RECOMMENDS that the petition for a writ of habeas corpus (Dkt. No. 1) be DENIED and DISMISSED; and the Court
RECOMMENDS that no Certificate of Appealability shall be issued with respect to any of Petitioner's claims; and the Court
ORDERS that the Clerk provide Petitioner with a copy of this Order and Report-Recommendation along with a copy 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 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 DAYS WILL PRECLUDE APPELLATE REVIEW . Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec 'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed.R.Civ.P. 72, 6(a).
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation 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.