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Carlton Tillery v. John B. Lempke

November 29, 2011


The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge


Currently before the Court, in this habeas proceeding filed by Carlton Tillery ("Petitioner") against John B. Lempke ("Respondent") pursuant to 28 U.S.C. § 2254, is Petitioner's Petition. (Dkt. No. 1 [hereinafter "Petition"].) For the reasons set forth below, the Petition is denied and dismissed in its entirety.


A. Summary of Petition

Petitioner filed his Petition on October 29, 2010. Generally, Petitioner challenges his conviction, in Albany County Court on March 27, 2008 (following a jury trial), of one count of criminal possession of a weapon in the second degree, for which he was sentenced to a determinate term of nine years imprisonment. (Petition at ¶¶ 1-7.) In support of his request for federal habeas intervention, Petitioner asserts several claims. (See generally Petition.) More specifically, he claims that (1) his conviction was based upon legally insufficient evidence (id., Ground A),*fn1 (2) recent Supreme Court precedent renders his conviction unconstitutional (id., Ground B), (3) the imposed sentence amounts to a violation of the Eighth Amendment's ban on cruel and unusual punishment (id., Ground C), (4) he was deprived of his right to a fair trial by prosecutorial misconduct (id., Ground D), (5) his trial counsel rendered ineffective assistance by failing to object to the prosecution's "egregious summation" (id., Ground E), and (6) his statements to the police were admitted against him at trial in violation of his Fourth and Sixth Amendment rights. (id., Grounds F, G.)

B. State Court Proceedings

On September 12, 2007, an Albany County Grand Jury returned an Indictment against Petitioner. (Dkt. No. 9-1 at 42 [hereinafter "Indictment"].) In that Indictment, Petitioner was charged with second degree criminal possession of a weapon, in violation of § 265.03(3) of the New York Penal Law (hereinafter "Penal Law.") (Indictment, Count One.)

Petitioner was tried on the foregoing charge before a jury in Albany County Court. County Court Judge Stephen W. Herrick presided over the trial. At the conclusion of the trial, Petitioner was found guilty of the charge. The New York State Supreme Court, Appellate Division, Third Department summarized the burden of proof on the District Attorney at the trial, together with the evidence presented by the prosecutor in support of the weapons possession charge, as follows:

The People were required to prove that [Petitioner] possessed a loaded firearm in a place that was not his home or business (see Penal Law § 265.03 [3] ). A "firearm" includes "a shotgun having one or more barrels less than eighteen inches in length" (Penal Law § 265.00[3]), and the term "loaded firearm" includes "any firearm which is possessed by one who, at the same time, possesses a quantity of ammunition which may be used to discharge such firearm" (Penal Law § 265.00[15] ). There was evidence at trial that the shotgun barrel had been sawed off to less than 18 inches, the gun was operable, the ammunition in [Petitioner's] pocket could be used in that weapon and the police saw [Petitioner] possessing the toy alligator in which the weapon had been placed. Viewed most favorably to the People, the evidence is legally sufficient since there was a valid line of reasoning and permissible inferences for a rational person to arrive at the conclusion reached by the jury.

New York v. Tillery, 60 A.D.3d 1203, 1205-06 (N.Y. App. Div., 3d Dept. 2009), leave denied, New York v. Tillery, 12 N.Y.3d 860 (N.Y. 2009).

On March 5, 2007, Petitioner was sentenced to the nine year prison term referenced above. (Dkt. No. 10, Attach. 2 at 178-205 [Transcript of Sentencing of Carlton Tillery (3/5/07)]) at 25.) Petitioner's conviction and sentence were unanimously affirmed by the Third Department in its decision quoted above. See Tillery, 60 A.D.3d at 1203-06.

C. Proceedings in this Court

Petitioner commenced this action by filing a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this District on October 28, 2010. (Petition.) On March 18, 2011, the Office of the Attorney General of the State of New York, acting on Respondent's behalf, filed an answer in opposition to the Petition, together with various state court records relating to his conviction. (Dkt. Nos. 7-10.) In opposing the Petition, Respondent argues that Petitioner's claims must be denied because they were either denied by the state courts on procedural grounds or are substantively without merit. (Dkt. No. 8, Respondent's Memorandum of Law in Opposition to Petition [hereinafter "Resp. Mem."]) On April 25, 2011, Petitioner filed a Traverse in further support of his habeas application. (Dkt. No. 12 [hereinafter "Traverse"].) This matter is currently before this Court for disposition.


A. Claim Barred by Independent-and-Adequate-State-Ground Doctrine

In his second ground for relief, Petitioner claims that his conviction is "null and void" in light of recent Supreme Court precedent that addresses the scope of the Second Amendment to the United States Constitution. (Petition, Ground B; Memorandum of Law in Support of Petition [Dkt. No. 1, Attach. 1 (hereinafter "Supporting Mem.")] at 1-10; Traverse at 5-7.) More specifically, he claims that the weapons possession statute of which he was found guilty of violating "is unconstitutional both on its face and as applied" to Petitioner. (Petition at ¶ 13.)

Respondent argues that Petitioner has procedurally defaulted on this claim because the County Court found that Petitioner had improperly failed to raise such claim in his direct appeal. (Resp. Mem. at 29-33.)

It is "well established that federal courts will not review questions of federal law presented in a habeas petition when the state court's decision rests upon a state-law ground that 'is independent of the federal question and adequate to support the judgment.'" Cone v. Bell, 129 S. Ct. 1769, 1780 (2009) (quoting Coleman v. Thompson, 501 U.S. 722, 720 [1991]).

In addressing Petitioner's claim that his conviction violated the Second Amendment's pronouncement regarding the right of United States citizens to keep and bear arms, the County Court cited New York's Criminal Procedure Law [hereinafter "NY CPL"], § 440.10[2][c]*fn2 and concluded that Petitioner had "failed to demonstrate justification for failing to raise the issue[] on appeal and may not use the present motion as a substitute for a direct appeal." (Dkt. No. 9, Attach. 12 [Decision and Order of Judge Herrick (7/31/09)] at 3.) The denial of a claim in light of § 440.10(2)(c) is a procedural denial of such a claim. See Artuz v. Bennett, 531 U.S. 4, 10-11 (2000); Ramirez, 280 F.3d at 89; Kent v. Smith, 05-CV-9785, 2007 WL 2907350, at *8 (N.D.N.Y. Oct. 4, 2007) (Kahn, J.); Veras v. Strack, 98-CV-7610, 2000 WL 8249, at *1 (S.D.N.Y. Jan. 4, 2000) (holding that the denial of a claim under NY CPL § 440.10[2][c] is an adequate and independent state procedural ground barring federal habeas review of such a claim) (citing Dorsey v. Irvin, 56 F.3d 425 [2d Cir. 1995]). Therefore, the County Court clearly denied Petitioner's constitutional claim on procedural grounds.

However, to constitute an "adequate and independent" state ground sufficient to preclude federal habeas review of a claim, the federal court must also find that the state procedural rule is "firmly established and regularly followed" by the state courts, and that application of the rule would not be "exorbitant." Clark v. Perez, 510 F.3d 382, 391 (2d Cir. 2008); Murden v. Artuz, 497 F.3d 178, 192 (2d Cir. 2007); Garvey v. Duncan, 485 F.3d 709, 713-14 (2d Cir. 2007). The procedural denial of claims under NY CPL § 440.10(2)(c) is both firmly established and regularly followed in New York State courts. See Louis v. Fischer, 04-CV-2887, 2007 WL 4198255, at *20-21 (E.D.N.Y. June 25, 2007); Smith v. Artus, 03-CV-6982, 2004 WL 789769, at *16 (S.D.N.Y. Apr. 14, 2004) ("[F]ailure to comply with CPL § 440.10(2)(c) creates a procedural bar to federal habeas review" that is "both an 'independent' and an "adequate" state ground for its decision."). Furthermore, nothing before this Court suggests that the facts or circumstances related to this action presents an exceptional case such that this Court's application of the above-described procedural bar as to these claims would be exorbitant or otherwise inappropriate.*fn3 See Clark, 510 F.3d at 391; Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (discussing "guideposts" federal courts should consider in ascertaining whether application of the procedural bar is appropriate); see, e.g., Robinson v. Perlman, 02-CV-8709, 2005 WL 6274288, at *6-7 (S.D.N.Y. Apr. 20, 2005) (application of adequate and independent state procedural doctrine not "exorbitant" where party failed to preserve claim for appellate review); Smith, 2004 WL 789769, at *16 ("[F]ederal habeas courts have routinely held that the failure to comply with CPL § 440.10[2][c] creates a procedural bar to federal habeas review.").*fn4 Petitioner has therefore procedurally defaulted on his second ground for relief.

Federal courts may consider the merits of a procedurally defaulted claim only where the petitioner can establish both cause for the procedural default and resulting prejudice, or, alternatively, that a fundamental miscarriage of justice would occur absent federal court review of the claim. See Dixon v. Miller, 293 F.3d 74, 80-81 (2d Cir. 2002) (quoting Coleman, 501 U.S. at 750); see also St. Helen v. Senkowski, 374 F.3d 181, 184 (2d Cir. 2004) (holding that, "[i]n the case of procedural default . . . [federal courts] may reach the merits of the claim 'only if the defendant can first demonstrate either cause and actual prejudice, or that he is actually innocent' ") (quoting Bousley v. United States, 523 U.S. 614, 622 [1998]); Calderon v. Perez, 10-CV-2562, 2011 WL 293709, at *20 (S.D.N.Y. Jan. 28, 2011); Parker v. Phillips, 05-CV-1323, 2008 WL 4415255, at *3 (E.D.N.Y. Sept. 24, 2008) (holding that federal courts may consider procedurally barred claims only where the petitioner establishes either cause for his default and prejudice therefrom, or that he is actually innocent of the crimes of which he was convicted).

To establish legal "cause" that would enable this Court to consider his procedurally forfeited claim, Petitioner must show that some objective, external factor impeded his ability to preserve his constitutional claim for review by the County Court. See Coleman, 501 U.S. at 753; Restrepo v. Kelly, 178 F.3d 634, 638 (2d Cir. 1999); Pinero v. Greiner, 519 F. Supp. 2d 360, 383 (S.D.N.Y. 2007) (quoting Restrepo, 178 F.3d at 638). Examples of such external factors include "interference by officials," the ineffective assistance of counsel, or proof that "the factual or legal basis for a claim was not reasonably available" at the time of the petitioner's default. Murray v. Carrier, 477 U.S. 478, 488 (1986) (internal quotation marks omitted), accord, Ikker v. Taylor, 08-CV-3301, 2008 WL 5110866, at *4 (E.D.N.Y. Dec. 3, 2008).

Nowhere in this action does Petitioner argue, much less establish, that legal cause exists that excuses his procedural default described above. Specifically, although Petitioner asserts additional arguments in support of his constitutional claim in his Traverse (id. at 5-7), he never claimed in that submission that his failure to raise his constitutional challenge in the context of his direct appeal may be legally excused by this Court (id).

Because Petitioner has not established cause for his procedural default, the Court need not consider whether he has suffered the requisite prejudice. See Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir. 1985) (noting that federal habeas relief is unavailable under the limited exception permitting review of procedurally forfeited claims unless the petitioner demonstrates both cause and prejudice); Long v. Lord, 03-CV-0461, 2006 WL 1977435, at *6 (N.D.N.Y. Mar. 21, 2006) (McCurn, J.); D'Alessandro v. Fischer, 01-CV-2551, 2005 WL 3159674, at *9, n.10 (S.D.N.Y. Nov. 28, 2005) (stating that, "[a]s Petitioner has not shown cause for his default, this Court need not even reach the question of whether Petitioner can show prejudice") (citing Stepney, 760 F.2d at 45).

The Court's finding that Petitioner has failed to demonstrate cause for his procedurally defaulted claim does not necessarily preclude this Court from considering his second ground for relief. This is because, as noted above, a federal court may properly review procedurally defaulted claims if it is convinced that the failure to consider the defaulted claims would amount to a fundamental miscarriage of justice. See, e.g., Dixon, 293 F.3d at 80-81. However, the Second Circuit has noted that the fundamental miscarriage of justice exception is "extremely rare" and should be applied only in "the extraordinary cases." Schlup v. Delo, 513 U.S. 298, 321-22, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995). " '[A]ctual innocence' means factual innocence, not mere legal insufficiency." Bousley[], 523 U.S. [at] 623 . . . . "To establish actual innocence, [a] petitioner must demonstrate that, 'in light of all the evidence,' 'it is more likely than not that no reasonable juror would have convicted him.' " Id. (citing Schlup, 513 U.S. [at] 327-28) . . . .

Sweet v. Bennett, 353 F.3d 135, 142 (2d Cir. 2003); see also D'Alessandro, 2005 WL 3159674, at *8; Marengo v. Conway, 342 F. Supp.2d 222, 228 (S.D.N.Y. 2004).

The Court has carefully reviewed the state court record. For the reasons stated more fully below in addressing Petitioner's claim that the evidence adduced at trial was insufficient to support the jury's verdict, this Court endorses the Third Department's determination that the proof of Petitioner's guilt of the weapons possession charge was legally sufficient to support the jury's verdict. See Tillery, 60 A.D.3d 1205-06.

Because Petitioner cannot now seek safe harbor from the dismissal of his defaulted claim under this final exception permitting habeas review of his procedurally defaulted claims, the Court denies, as procedurally forfeited, his second ground for relief.*fn5

B. Remaining Claims

1. Standard of Review

The enactment of the Anti-Terrorism and Effective Death Penalty Act (hereinafter "AEDPA") brought about significant new limitations on the power of a federal court to grant habeas relief to a state prisoner under 28 U.S.C. ยง 2254. In discussing this deferential standard, the ...

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