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Brewster v. People

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK


January 21, 2010

HEWLETT BREWSTER PETITIONER,
v.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT.

The opinion of the court was delivered by: Joseph F. Bianco, District Judge

MEMORANDUM AND ORDER

Brewster claims his constitutional rights were violated because (1) the trial court Hewlett Brewster (hereinafter "petitioner" improperly instructed the jury regarding or "Brewster") petitions this court for a writ of circumstantial evidence; (2) he was coerced by habeas corpus, pursuant to 28 U.S.C. § 2254, the police into giving consent to blood and challenging his conviction in Suffolk County saliva samples; (3) the evidence was Court (the "trial court") on two counts of third insufficient to convict him; and (4) degree burglary.*fn1 schizophrenia and an "anti-social disorder" rendered him incapable of consenting to give blood and saliva samples.

I. BACKGROUND

2. The Marchon Eyewear Burglary and Investigation

The Court has adduced the following facts from the instant petition and underlying record. On July 13, 2002, an alarm company called Constantino Pontecorvo, a supervisor at

A. Factual History

Marchon Eyewear, an eye-wear distributor, and told him that a burglary had occurred at

1. The Kinemotive Corporation Burglary and Marchon's Melville, New York office. (Id. Investigation 226:11-227:8.) Pontecorvo went to the office and found that a window had been broken.

Kinemotive Corporation is a Farmingdale, (Id. 227:12-227:15.) He then proceeded New York company that manufactures parts for inside the office and discovered that a laptop commercial aircraft, missiles, and rockets. (Tr. computer was missing. (Id. 227:20-227:23; 171:9-171:12.) On the morning of October 7, 230:24-231:12.) Suffolk County Police, 2000, a Kinemotive vice president, Kenneth including Detective Patricia Priestly, Moll, arrived at the Company's office and responded to the scene. (Id. 255:16-255:20.) found two broken windows. (See id. 172:4- Priestly went inside the building and observed, 174:8.) Moll later determined that three among other things, broken glass and a blood-computers and one monitor were missing from like substance on top of a computer printer. the office. (Id. 175:6-175:18.) The police were (Id. 256:9-256:17.). Douglas Bose, an officer called. (Id. 176:15-176:19.) with the Suffolk County Police Crime Scene Unit, also responded and met with Detective Suffolk County detectives soon arrived and Priestly. (Id. 268:1-268:6.) Bose took a swab began an investigation. While examining the of the substance on top of the printer, sealed it scene, Detective John McLeer found blood-like in a bag, and forwarded it to the Suffolk stains on eight stones below the broken County Crime lab for testing. (Id. 269:11-windows. (Id. 177:6-177:12.) McLeer 269:18; 271:7-272:25.). Joseph Galdi, a photographed the stones and placed them in a scientist with the Suffolk County Crime Lab, paper bag. (Id. 201:11-202:1.) The stones tested the stain from the printer and confirmed were later sent to the Suffolk County Crime that it was human blood. (Id. 289:11-290:2.) Lab where it was confirmed that the substance Helen Lee Wyss, another scientist with the on two of the stones was human blood. (See id. lab, performed a DNA analysis on this blood, 210:14-211:9.) Suffolk County Police later and the results of the analysis were entered obtained a DNA profile of the blood stain from into the DNA computer database. (Id. 291:14-Fairfax Identity Labs, a private laboratory. (Id. 20; 311:1-312:4) 291:21-292:5; 292:14-292:23.) This DNA profile was then put into a DNA computer 3. Additional DNA Analyses database ("the DNA database"). (Id. 293:14-16.) About a month after the Marchon Eyewear Burglary, on August 11, 2002, Detective Thomas Keteltas of the Nassau County Police obtained a blood sample from petitioner. (Id. 281:16-282:8.)*fn2 This blood sample was the DNA on the buccal swab from petitioner, submitted to the Nassau County Medical the DNA from the Kinemotive scene, and the Examiner for DNA testing. (Id. 282:9-15.) It DNA from the Marchon Eyewear scene. (See can be inferred from the record that this DNA id. 313:25-314:9.) She concluded that analysis was also entered into the DNA petitioner's DNA matched the DNA from the database. (See id. 293:22-294:16.) Kinemotive and Marchon Eyewear scenes.

(Id. 321:5-10.)

In February 2003, Mr. Galdi, the crime lab scientist, became aware that petitioner's DNA B. Procedural History matched the DNA recovered from the Kinemotive and Marchon Eyewear scenes. 1. State Court Trial (Id.) Subsequently, in December 2003, Dennis Harrington, a Detective Investigator with the On April 14, 2003, petitioner was indicted Suffolk County District Attorney's Office, took on two counts of Burglary in the Third Degree a swab from the inside of petitioner's mouth to pursuant to New York Penal Law § 140.20. collect tissue for an analysis of petitioner's Trial began on November 22, 2004. (See DNA. (See id. 302:13-303:21.) The procedure generally Tr:1:1-150:6.) The prosecution that Investigator Harrington performed is called presented evidence from Kenneth Moll a "buccal swab." (See id.) The swab was sent regarding what he saw when he arrived at to the Suffolk County crime lab for analysis. Kinemotive Corporation on October 7, 2000 (Id. 303:22-303-25.) and from Detective McLeer and a forensic scientist from the Suffolk County Crime Lab At the crime lab, Ms. Wyss, who had regarding the evidence recovered from the previously performed a DNA analysis on the scene. Constantino Pontecorvo testified blood recovered from Marchon Eyewear, regarding what he saw at Marchon Eyewear performed a DNA analysis on the tissue taken on July 13, 2002, and another Marchon from petitioner via the buccal swab. (Id. employee testified about the missing laptop. 312:18-313:12.) Additionally, Ms. Wyss also Detective Priestly, Officer Bose, and Mr. performed her own DNA analysis of the blood Galdi testified about the physical evidence recovered from the Kinemotive burglary. (Id. recovered from Marchon. Additionally, 312:5-17.) As noted above, an outside lab had Detective Keteltas and Investigator Harrington previously performed a DNA analysis on a testified regarding the samples taken from portion of this blood. Ms. Wyss then compared petitioner that were used in the DNA analyses.

Mr. Galdi also testified about initially learning whereabouts on the dates that the burglaries because of the "overwhelming presence of law occurred, nor could he explain how his blood enforcement officials from [Nassau and ended up at both crime scenes. (Id. 335:7- Suffolk] counties" and because he was being 337:15.) interrogated at the time; (3) the evidence at trial did not establish his guilt beyond a After hearing the evidence, the jury found reasonable doubt, and the trial court's verdict the petitioner guilty of both third degree was against the "weight of the evidence"; and burglary counts on December 2, 2004. He was (4) that petitioner was incapable of giving his sentenced as a predicate felony offender to consent to the previously mentioned blood and consecutive terms of incarceration from three saliva samples because he suffers from to six years on the first count and from three schizophrenia and an "anti-social disorder." and one-half to seven years on the second The Suffolk County District Attorney count. submitted an opposition on December 31, 2008. Petitioner did not submit a formal reply 2. Direct Appeal but did submit a letter in October 2009 asking about the status of his case and a letter on

II. STANDARD OF REVIEW

Petitioner appealed his conviction to the December 21, 2009 citing a recent Supreme Appellate Division, Second Department. He Court case. See infra note 3. The Court has argued that: (1) given that only circumstantial fully considered all the submissions of the evidence was introduced against him at trial, parties. the trial court gave the jury an improper instruction; (2) the evidence at trial was insufficient to convict him, and the verdict was against the weight of the evidence; and (3) the To determine whether petitioner is entitled imposed sentence was harsh and excessive. In to a writ of habeas corpus, a federal court a decision and order dated February 13, 2008, must apply the standard of review set forth in the Second Department affirmed petitioner's 28 U.S.C. § 2254, as amended by the conviction. See People v. Brewster, 849 Antiterrorism and Effective Death Penalty Act N.Y.S.2d 902 (App. Div. 2008). On May 8, ("AEDPA"), which provides, in relevant part: 2008, the Court of Appeals denied petitioner leave to appeal. See People v. Brewster, 890 d) An application for a writ of N.E.2d 249 (N.Y. 2008) (table opinion). habeas corpus on behalf of a person in custody pursuant to

3. The Instant Petition the judgment of a State court shall not be granted with

On October 29, 2008, petitioner filed a pro respect to any claim that was se petition in this court for a writ of habeas adjudicated on the merits in corpus, pursuant to 28 U.S.C. § 2254. State court proceedings unless Petitioner claims (1) that the trial court the adjudication of the claim -- improperly instructed the jury when it failed to apply the moral certainty/circumstantial (1) resulted in a decision that evidence standard; (2) that he was coerced into was contrary to, or involved an consenting to give blood and saliva samples unreasonable application of, clearly established Federal law, 529 U.S. at 411). The Second Circuit added as determined by the Supreme that, while "[s]ome increment of incorrectness Court of the United States; or beyond error is required . . . the increment need not be great; otherwise, habeas relief (2) resulted in a decision that would be limited to state court decisions so far was based on an unreasonable off the mark as to suggest judicial determination of the facts in incompetence." Id. at 93 (quoting Francis S. light of the evidence presented v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)). in the State court proceeding. Finally, "if the federal claim was not adjudicated on the merits, 'AEDPA deference 28 U.S.C. § 2554. "Clearly established Federal is not required, and conclusions of law and law" is comprised of "the holdings, as opposed mixed findings of fact and conclusions of law to the dicta, of [the Supreme] Court's decisions are reviewed de novo.'" Dolphy v. Mantello, as of the time of the relevant state-court 552 F.3d 236, 238 (2d Cir. 2009) (quoting decision." Green v. Travis, 414 F.3d 288, 296 Spears v. Greiner, 459 F.3d 200, 203 (2d Cir. (2d Cir. 2005) (quoting Williams v. Taylor, 529 2006)).

U.S. 362, 412 (2000)).

III. DISCUSSION

A decision is "contrary to" clearly established federal law, as determined by the A. Procedural Issues Supreme Court, "if the state court arrives at a conclusion opposite to that reached by [the 1. Exhaustion Supreme Court] on a question of law or if the state court decides a case differently than [the As a threshold matter, a district court Supreme Court] has on a set of materially shall not review a habeas petition unless "the indistinguishable facts." Williams,529 U.S. at applicant has exhausted the remedies available 413. A decision is an "unreasonable in the courts of the state." 28 U.S.C. § application" of clearly established federal law 2254(b)(1)(A). Although a state prisoner need if a state court "identifies the correct governing not petition for certiorari to the United States legal principle from [the Supreme Court's] Supreme Court to exhaust his claims, see decisions but unreasonably applies that Lawrence v. Florida, 549 U.S. 327, 333 principle to the facts of [a] prisoner's case." (2007), petitioner must fairly present his Id. federal constitutional claims to the highest state court having jurisdiction over them. See AEDPA establishes a deferential standard Daye v. Attorney Gen. of N.Y.,696 F.2d 186, of review: "a federal habeas court may not 191 (2d Cir. 1982) (en banc). Exhaustion of issue the writ simply because that court state remedies requires that a petitioner "fairly concludes in its independent judgment that the presen[t] federal claims to the state courts in relevant state-court decision applied clearly order to give the State the opportunity to pass established federal law erroneously or upon and correct alleged violations of its incorrectly. Rather, that application must also prisoners' federal rights." Duncan v. Henry, be unreasonable." Gilchrist v. O'Keefe, 260 513 U.S. 364, 365 (1995) (quoting Picard v. F.3d 87, 93 (2d Cir. 2001) (quoting Williams, Connor, 404 U.S. 270, 275 (1971) (quotation marks omitted) (alteration in original)). in the New York State courts. The Second Department held the issue was "unpreserved 2. State Procedural Requirements for appellate review." People v. Brewster, 849 N.Y.S.2d 902, 902 (App. Div. 2008).

Like the failure to exhaust a claim, a The court went on to state that, "in any event habeas petitioner's failure to satisfy the state's . . . we find that [the evidence] was legally procedural requirements deprives the state sufficient to establish [petitioner's] guilt of courts of an opportunity to address the federal burglary in the third degree beyond a constitutional or statutory issues in a reasonable doubt." Id. petitioner's claim. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). Once it is determined When a state court relies on an that a claim is procedurally barred under state independent and adequate state law ground rules, a federal court may still review such a -such as, in this case, failure to preserve the claim on its merits if the petitioner can issue for appeal-federal habeas review is demonstrate both cause for the default and foreclosed. Glenn v. Bartlett, 98 F.3d 721, prejudice resulting therefrom, or if he can 724 (2d Cir. 1996) (finding that failure to demonstrate that the failure to consider the preserve issue for appeal was adequate and claim will result in a miscarriage of justice. independent state law ground precluding Coleman, 501 U.S. at 750 (citations omitted). federal habeas review). This is true even A miscarriage of justice is demonstrated in assuming the state court rules in the extraordinary cases, such as where a alternative on the merits of petitioner's constitutional violation results in the conviction claims. See id. at 724-25; see also Green v. of an individual who is actually innocent. Travis, 414 F.3d 288, 294 (2d Cir. 2005) Murray v. Carrier, 477 U.S. 478, 496 (1986). ("[E]ven when a state court says that a claim is 'not preserved for appellate review' but then

3. Application rules 'in any event' on the merits, such a claim is procedurally defaulted."). Therefore,

In this case, petitioner raised grounds one petitioner's claim regarding the sufficiency and three-respectively, his claims regarding and weight of the evidence is procedurally the trial court's jury instruction and the defaulted. sufficiency and weight of the evidence-on direct appeal. Petitioner unsuccessfully raised Additionally, petitioner has not raised these claims in his appeal to the Second grounds two and four-his claims regarding Department, and the New York Court of his consent to the taking of DNA samples-in Appeals denied petitioner leave to appeal these state court. Nonetheless, this Court will deem issues. As such, petitioner has adequately these claims exhausted because, at this point, exhausted his state remedies with respect to petitioner cannot obtain state court review of grounds one and three. these claims. See Van Stuyvesant v. Conway, No. 03 Civ. 3856 (LAK), 2007 WL 2584775,

However, ground three, regarding the at *14 (S.D.N.Y. Sept. 7, 2007) ("Where sufficiency and weight of the evidence, is federal habeas claims are unexhausted, but the procedurally barred from habeas review. petitioner no longer has any available avenue Petitioner presented this claim on direct appeal to pursue those claims in state court, this Court will 'deem' the claims exhausted."). shown either cause and prejudice or a Petitioner could have raised these fundamental miscarriage of justice. claims-which relate to events occurring before his trial-on direct appeal, but he did B. Merits not. He cannot now take a second direct appeal nor can he now raise these claims on state Although grounds two, three, and four are collateral review because state collateral review procedurally barred from review, this Court, is generally available only for claims that could in an abundance of caution, has analyzed the not have been raised on direct appeal. See merits of all of petitioner's habeas claims and Jimenez v. Walker, 458 F.3d 130, 149 (2d Cir. concludes, for the reasons discussed below, 2006) (deeming petitioner's claim that New that all of the claims in the petition are York state trial was fundamentally unfair without merit.*fn3 exhausted but procedurally defaulted because petitioner had "already taken his one direct appeal, and this claim is procedurally barred

1. Ground One-Circumstantial Evidence

Jury the entire trial that the resulting conviction Instruction violat[ed] due process,' not merely [that] 'the instruction is undesirable, erroneous, or even

Petitioner argues that he is entitled to universally condemned.'" Id. at 1201 habeas relief because the state trial judge gave (quoting Henderson v. Kibbe, 431 U.S. 145, erroneous jury instructions. Specifically, 154 (1977)); see also Middleton, 541 U.S. at petitioner cites a portion of the jury instructions 437 (explaining that "not every ambiguity, in which the trial judge said: "Now turning to inconsistency, or deficiency in a jury the evidence in this case. There are two types instruction rises to the level of a due process of evidence. Namely, direct and circumstantial violation"). evidence." (Tr. 368:24-25.) Petitioner argues that this instruction was improper because the In this case, the Court finds that the trial only evidence against him was circumstantial court's instructions on circumstantial evidence evidence. Additionally, petitioner argues that were not erroneous and certainly did not the judge failed to give the "moral certainty" constitute a due process violation. First, the instruction that New York law requires when Court notes that-contrary to petitioner's the prosecution presents only circumstantial contentions-the trial court did not imply that evidence against a criminal defendant. there was direct evidence against petitioner.

Read in full, the relevant section of the jury

As noted above, petitioner raised this claim instructions reads: on direct appeal. The Second Department held that "the trial court's circumstantial evidence Now turning to the evidence in this charge adequately conveyed to the jury the case. There are two types of evidence. principle that it must appear that the inference Namely direct evidence and of guilt was the only one that could fairly and circumstantial evidence. In this case, reasonably be drawn, and the evidence had to the People contend that there is exclude beyond a reasonable doubt every circumstantial evidence of the hypothesis of innocence." See Brewster, 849 defendant's guilt.

N.Y.S.2d at 902. Because the state court decided the claim on the merits, the deferential (Tr. 368:23-369:3.) (emphasis added). AEDPA standard of review applies.

Thus, the trial court explicitly stated that

Jury instructions violate due process if they the prosecution was relying on circumstantial "fail[ ] to give effect to [the] requirement" that evidence. In any event, the rest of the trial the prosecution must prove every element of a court's circumstantial evidence instruction charged offense beyond a reasonable doubt. clearly communicated the requirement of See Middleton v. McNeil, 541 U.S. 433, 437 proof beyond a reasonable doubt. The court (2004) (per curiam). However, "a state stated that "[a] person's guilt of a charged prisoner making a claim of improper jury crime may be proven by circumstantial instructions faces a substantial burden." evidence if that evidence, while not directly Delvalle v. Armstrong, 306 F.3d 1197, 1200 establishing guilt, gives rise to an inference of (2d Cir. 2002). The petitioner must establish guilt beyond a reasonable doubt." (Tr. that "'the ailing instruction by itself so infected 369:16-369:20.) The court further instructed the jury that: burden. In fact, the Supreme Court of the United States has suggested that trial courts

Any facts upon which an inference of not use the phrase "moral certainty." See guilt can be drawn must be proven Victor v. Nebraska, 511 U.S. 1, 16 (1994) beyond a reasonable doubt. After you (noting that the Court did "not condone use of have determined what facts, if any, the phrase" because "the common meaning of have been proven beyond a reasonable the phrase" has changed over time); see also doubt[,] then you must decide what Corines v. Warden, Otisville Federal Corr. inferences, if any, can be drawn from Inst., No. 05-CV-2056 (NGG), 2008 WL those facts. Before you may draw an 4862732, at *13-15 (E.D.N.Y. June 10, 2008) inference of guilt, however, that (rejecting claim in habeas petition regarding inference must be the only one that can failure to include "moral certainty" language fairly and reasonably be drawn from the in reasonable doubt instruction); Francesehi v. facts, it must be consistent with the Walsh, No. 02-CV-2779 (JG), 2004 WL proven facts, it must flow naturally, 1166650, at *9 (E.D.N.Y. May 24, 2004) reasonably, logically from them. (rejecting habeas claim regarding failure to Again, it must appear that the inference include a "moral certainty" instruction in of guilt is the only one that can fairly cases involving wholly circumstantial and reasonably be drawn from the facts, evidence). Therefore, the Court finds that the and that the evidence excludes beyond state courts' resolution of this claim regarding a reasonable doubt every reasonable the jury instructions was not contrary to, nor hypothesis of innocence. an unreasonable application of, clearly established federal law. See 28 U.S.C. § If there is a reasonable hypothesis from 2254(d). the proven facts consistent with the defendant's innocence, then you must 2. Ground Three-Sufficiency of Evidence find the defendant not guilty.

Petitioner claims that the evidence

If the only reasonable inference you presented at trial did not establish "guilt find is that the defendant is guilty of a beyond a reasonable doubt, and the verdict charged crime, and that inference is was against the weight of the evidence." (Pet. established beyond a reasonable doubt, at 9.) "Weight of evidence" is the name of a then you must find the defendant guilty specific claim under New York state law and, of that crime. thus, is not cognizable on federal habeas review. See Correa v. Duncan, 172 F. Supp. (Tr. 371:11-372:12.) 2d 378, 381 (E.D.N.Y. 2001) ("A 'weight of the evidence' argument is a pure state law In sum, the trial court's jury instructions claim grounded in New York Criminal clearly told the jury that, although it could Procedure Law § 470.15(5), whereas a legal convict petitioner based on circumstantial sufficiency claim is based on federal due evidence, petitioner's guilt needed to be process principles."); see also Lewis v. Jeffers, established beyond a reasonable doubt. The 497 U.S. 764, 780 (1990) ("[F]ederal habeas trial court's failure to use the phrase "moral corpus relief does not lie for errors of state certainty" did not lessen the prosecution's law.").

However, the Court will construe the pro se 172, 179 (2d Cir. 2002) ("[W]e review the petition as asserting this ground as a evidence in the light most favorable to the sufficiency of evidence claim under the State and the applicant is entitled to habeas Fourteenth Amendment's Due Process Clause. corpus relief only if no rational trier of fact See Einaugler v. Supreme Court of the State of could find proof of guilt beyond a reasonable New York, 109 F.3d 836, 839 (2d Cir. 1997) doubt based on the evidence adduced at (stating that due process prohibits "conviction trial."). Even when "faced with a record of 'except upon proof beyond a reasonable doubt historical facts that supports conflicting of every fact necessary to constitute the crime inferences, [this Court] must presume-even with which [the defendant] is charged.'" if it does not affirmatively appear in the (quoting In re Winship, 397 U.S. 358, 364 record-that the trier of fact resolved any such (1970))). The law governing habeas relief from conflicts in favor of the prosecution, and must a state conviction based on insufficiency of defer to that resolution." Wheel v. Robinson, evidence is well established. A petitioner 34 F.3d 60, 66 (2d Cir. 1994). Thus, "[a] "bears a very heavy burden" when challenging habeas court will not grant relief on a the legal sufficiency of the evidence in a state sufficiency claim unless the record is 'so criminal conviction. Einaugler, 109 F.3d at totally devoid of evidentiary support that a due 840. As such, a "state criminal conviction will process issue is raised.'" Sanford v. Burge, be upheld if, 'after viewing the evidence in the 334 F. Supp. 2d 289, 303 (E.D.N.Y. 2004) light most favorable to the prosecution, any (quoting Bossett v. Walker, 41 F.3d 825, 830 rational trier of fact could have found the (2d Cir. 1994)). When considering the essential elements of the crime beyond a sufficiency of the evidence of a state reasonable doubt.'" Vassell v. McGinnis, No. conviction, "[a] federal court must look to 04 Civ. 0856 (JG), 2004 WL 3088666, at *5 state law to determine the elements of the (E.D.N.Y. Dec. 22, 2004) (quoting Jackson v. crime." Quartararo v. Hanslmaier, 186 F.3d Virginia, 443 U.S. 307, 319 (1979)); see also 91, 97 (2d Cir. 1999).

Flowers v. Fisher, No. 06-5542-pr, 2008 U.S. App. LEXIS 22569, at *3 (2d Cir. Oct. 21, In this case, petitioner was convicted of 2008) (habeas petitioner cannot prevail on a two counts of third degree burglary. Under claim of legally insufficient evidence unless he the New York Penal Law, "a person is guilty can show that viewing the evidence in the light of burglary in the third degree when he most favorable to the prosecution, "no rational knowingly enters or remains unlawfully in a trier of fact could have found proof of guilt building with intent to commit a crime beyond a reasonable doubt" (quoting Jackson, therein." N.Y. Penal Law § 140.20. Here, 433 U.S. at 324)); Policano v. Herbert, 507 there was more than sufficient evidentiary F.3d 111, 115-16 (2d Cir. 2007) ("'[I]n a support for both of petitioner's convictions. challenge to a state criminal conviction brought With respect to the Kinemotive Corporation under 28 U.S.C. § 2254 . . . the applicant is burglary, the jury could reasonably infer, entitled to habeas corpus relief if it is found based on the testimony of Kenneth Moll, that that upon the record evidence adduced at the a person entered the building and stole three trial no rational trier of fact could have found computers and a computer monitor. Based on proof of guilt beyond a reasonable doubt.'" DNA evidence recovered from the scene and (quoting Jackson, 443 U.S. at 324)) (alteration analyzed at the Suffolk County Crime Lab, the in original); Ponnapula v. Spitzer, 297 F.3d jury also could reasonably infer that petitioner was the person who stole the equipment. DNA-indexing purposes constituted a search Similarly, with respect to the Marchon implicating the Fourth Amendment"); Mack v. Eyewear burglary, a jury could reasonably United States, 814 F.2d 120, 124-25 (2d Cir. infer, based on the testimony of two Marchon 1987) (rejecting argument that Fourth employees, that a person entered Marchon's Amendment was violated where defendant offices and stole a laptop computer. Again, the consented to the taking of urine sample). As jury could reasonably conclude, based on DNA a preliminary matter, petitioner does not evidence, that petitioner was the person who describe where or when he was forced to give stole the equipment. In short, petitioner's guilt blood or saliva samples. However, the was established by overwhelming evidence at Court's independent review of the record in trial. Thus, even assuming arguendo that this case reveals that Nassau County Police petitioner's sufficiency of evidence claim was took blood samples from petitioner on August not procedurally defaulted, a rational trier of 11, 2002 and submitted the sample to the fact could easily have found that the Nassau County Medical Examiner's Office for prosecution established beyond a reasonable DNA analysis, after which a DNA profile for doubt the elements necessary to petitioner's that blood sample was obtained.*fn4 (Tr. 282:6-convictions. Accordingly, petitioner's 15.)*fn5 Additionally, Suffolk County sufficiency claim has no merit.

3. Grounds Two and Four-Consent to Blood

Investigator Harrington took a "buccal breakdown in the underlying process.'" swab"- a sample of tissue from the inside of Mejias v. Allard, No. 03 Civ. 5195 (NGG) a person's cheek-from petitioner on (LB), 2006 WL 119033, at *20 (E.D.N.Y. Jan. December 3, 2003. (Tr. 302:16-302:18; 13, 2006) (quoting Capellan v. Riley, 975 F.2d 303:15-303:21.) It was this buccal swab 67, 70 (2d Cir. 1992)). Because New York sample that was sent to the Suffolk County State provides a facially adequate statutory Crime Lab, analyzed with the data from the mechanism for review of Fourth Amendment scene of the burglaries, and then introduced claims, petitioner must show that an into evidence while Investigator Harrington "unconscionable breakdown" occurred. See was testifying at petitioner's trial. (Tr. 303:22- Capellan, 975 F.2d at 70 n.1; Steinbergin v. 304:9; 312:22-313:12.) As set forth below, Barkley, No. 05 Civ. 6565 (JSR) (MHD), petitioner's claims regarding the blood and 2007 WL 1987953, at *4 (S.D.N.Y. Apr. 18, saliva samples have no merit. 2007); see also Garrett v. Smith, No 05-CV- 3374 (JFB), 2006 WL 2265094, at *8

As a threshold matter, Fourth Amendment (E.D.N.Y. Aug. 8, 2006). claims are generally not cognizable on federal habeas review. The Supreme Court has held The voluntariness of the blood and saliva that "where the State has provided an samples or, for that matter, the buccal swab, opportunity for full and fair litigation of a was not actually litigated in the Suffolk Fourth Amendment claim, a state prisoner may County trial court. However, it is clear that no not be granted federal habeas corpus relief on "unconscionable breakdown" took place. In the ground that evidence obtained in an Capellan, the Second Circuit gave a few unconstitutional search or seizure was examples of "the sort of disruption or introduced at his trial." Stone v. Powell, 428 obstruction of a state proceeding typifying an U.S. 465, 494 (1976); see also Wallace v. Kato, unconscionable breakdown." 975 F.2d at 70 549 U.S. 384, 395 n.5 (2007) ("Under Stone, (internal quotation marks omitted). The court Fourth Amendment violations are generally not suggested an unconscionable breakdown cognizable on federal habeas, but they are might occur if, for example, the trial court cognizable when the State has failed to provide "yield[ed] to mob intimidation of the jury" or the habeas petitioner 'an opportunity for full if "the process furnished was 'claimed to be and fair litigation of a Fourth Amendment meaningless [because] the totality of state claim'" (quoting Stone, 428 U.S. at 482)). In procedures allegedly did not provide rational the Second Circuit, a federal habeas court may conditions for inquiry into federal-law . . . only review a petitioner's Fourth Amendment questions.'" Id. (quoting Paul M. Bator, violation claim if "'(a) the state has provided Finality in Criminal Law and Federal Habeas no corrective procedures at all to redress the Corpus Review for State Prisoners, 76 Harv. alleged Fourth Amendment violations or (b) if L. Rev. 441, 456-57 (1963)). Clearly, nothing the state has provided a corrective mechanism, of the sort occurred in petitioner's trial. but the defendant was precluded from using Therefore, petitioner cannot obtain habeas that mechanism because of an unconscionable relief on these claims because, in addition to his procedural default discussed supra, he had a full and fair opportunity to litigate these discussed infra, such claims regarding the blood claims in the New York state court. and saliva sample lack merit.

Even if petitioner could assert these claims, establish coercion, neither does the fact that the Court finds them to be without merit. First, [the defendant] was handcuffed."); accord there is absolutely no evidence in the record United States v. Puglisi, 790 F.2d 240, 243 that the blood and saliva samples taken by the (2d Cir. 1986). In sum, petitioner has put Nassau County Police on August 11, 2002 forth no evidence that the blood or saliva violated the Fourth Amendment.*fn6 Second, samples taken from him in August 2002, or although there was brief background testimony the buccal swab sample taken in December regarding the DNA from the blood sample at 2003, violated his constitutional rights in any the Suffolk County trial that is the subject of way. Accordingly, there is no basis for habeas the instant petition (and the subsequent match relief on either ground two or ground four in the database), an independent DNA analysis because such claims have no merit. was performed comparing the DNA profile from the buccal swab taken from petitioner in In sum, having carefully analyzed all of December 2003 (not the blood or saliva petitioner's claims, the Court concludes that samples from 2002) and the DNA profile from the state court decisions on the issues raised the blood recovered at the scene of the two by petitioner were not contrary to, nor an burglaries. Thus, it was the DNA profile from unreasonable application of, clearly the buccal swab in December 2003, and not the established federal law, and all of the claims blood or saliva samples from August 2002, that lack merit and do not provide any ground for provided the basis for the expert testimony in habeas relief. Accordingly, the habeas this trial linking petitioner to the two petition must be denied. burglaries. However, petitioner does not challenge the taking of the buccal swab in December 2003 on Fourth Amendment grounds. Even construing petitioner's For the foregoing reasons, petitioner allegations regarding "blood and saliva has demonstrated no basis for relief under 28 samples" to assert a challenge to the later U.S.C. § 2254. Accordingly, the instant buccal swab taken by Investigator Harrington, habeas petition is denied. Because petitioner petitioner has pointed to no evidence that the has failed to make a substantial showing of a taking of the buccal swab was without his denial of a constitutional right, no certificate consent or otherwise violated his rights. The of appealability shall issue. See 28 U.S.C. § fact that petitioner was in custody at the time 2253(c)(2). The Clerk of the Court shall enter his consent was given is not enough to preclude judgment accordingly and close this case. a finding of voluntariness. See United States v. Ansaldi,372 F.3d 118, 129 (2d Cir. 2004) SO ORDERED. ("The fact that police drew their guns to effectuate the arrest does not necessarily * * * Petitioner is pro se. Attorney for respondent is Thomas J. Spota, Suffolk County District Attorney, 200 Center Drive, Riverhead, NY 11901, by Guy Arcidiacono and Karla Lato.

IV. CONCLUSION

JOSEPH F. BIANCO


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