MACEO D. JOHNSON, Petitioner,
BRUCE YELICH, Superintendent, BareHill Correctional Facility,  Respondent.
JAMES K. SINGLETON, Jr., District Judge.
Maceo Johnson, a New York state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Johnson is currently in the custody of the New York State Department of Corrections and Community Supervision and is incarcerated at the Bare Hill Correctional Facility. Respondent has answered, and Johnson has not replied.
I. BACKGROUND/PRIOR PROCEEDINGS
On October 1, 2009, a grand jury charged Johnson with Criminal Possession of a Weapon in the Second Degree, three counts of Criminal Possession of a Weapon in the Third Degree, Criminal Contempt in the Second Degree, and Falsely Reporting an Incident in the Third Degree. On direct appeal, the Appellate Division of the New York Supreme Court summarized the facts and allegations underlying Johnson's indictment:
After a brief standoff with law enforcement officers, [Johnson] was taken into custody on September 17, 2009 for charges stemming from a domestic dispute with his girlfriend. A temporary order of protection was issued directing him to stay away from and not communicate with his girlfriend [Shawn Euber], as well as to surrender all his guns by 3:00 pm the next day. Shortly after being released, [Johnson] violated the order of protection by sending a text message to his girlfriend, which resulted in his arrest on September 18, 2009. A consented search of his home following his arrest failed to produce any guns and, although he initially claimed that his guns must have been stolen, he eventually acknowledged that he had moved them to the apartment of a friend, Willie Taylor.
Taylor consented to a search of his apartment where police found, among other things, an AR-15 semiautomatic rifle together with loaded clips of ammunition for the rifle. The rifle allegedly had a detachable magazine as well as various modifications, including a pistol grip, 7.5-inch barrel, collapsible stock, flash suppressor and bayonet mount ( see Penal Law § 265.00, ). [Johnson] admitted that the weapons found in Taylor's apartment belonged to him.
The same day that Johnson was charged, the prosecution filed notice pursuant to New York Criminal Procedure Law ("CPL") § 710.30 that it intended to offer at trial statements Johnson made during his arrest.
On December 16, 2009, the Washington County Court held a Huntley hearing to determine the admissibility of the statements. Following the hearing, the court denied Johnson's motion to suppress the statements, concluding that the prosecution established beyond a reasonable doubt that Johnson was advised of his Miranda rights and that his statements were given voluntarily.
On February 25, 2010, Johnson proceeded to jury trial. At trial, Shawn Euber, Willie Taylor, and five members of the state police testified on behalf of the prosecution. Johnson presented no witnesses on his behalf.
At the conclusion of trial, the jury convicted Johnson of Criminal Possession of a Weapon in the Second Degree; two counts of Criminal Possession of a Weapon in the Third Degree; and Criminal Contempt in the Second Degree. On April 1, 2010, the court sentenced Johnson to a determinate term of six years of imprisonment plus five years of supervised release for the second-degree criminal possession of a weapon conviction; another determinate term of six years and three years of supervised release for the third-degree criminal possession of a weapon conviction; an indeterminate term of two to six years for the other third-degree criminal possession of a weapon conviction; and a one-year definite jail sentence for the criminal contempt conviction. All of the sentences were to run concurrently.
On April 1, 2010, Johnson, proceeding pro se, moved to set aside the judgment and sentence pursuant to CPL §§ 440.10 and 440.20. Johnson claimed that: 1) the prosecution and court knowingly introduced false material evidence; 2) the evidence used against him was procured in violation of his constitutional rights; and 3) the judgment was obtained in contravention of his constitutional rights. The county court denied his motion on the ground that it was procedurally barred under CPL § 440.10(2)(b), which requires a court to deny a motion to vacate a judgment when sufficient facts appear on the record to permit the claims to have been raised on direct appeal. The court also denied the motion to vacate the sentence, finding that the sentence imposed was proper. Johnson did not appeal the denial.
On April 5, 2010, Johnson, represented by counsel, appealed his conviction. He argued that there was insufficient evidence to support his second-degree criminal possession of a weapon convictions and that the prosecution's failure to fulfill their discovery obligations by disclosing their records showing the assault rifle's operability warranted reversal of the criminal possession of a weapon count. The Appellate Division of the Supreme Court denied the appeal, rejecting Johnson's contentions that the jury's verdict was not supported by legally sufficient evidence or against the weight of the evidence and concluding that any delay in the prosecution's disclosure of information of the operability of the rifle did not prejudice Johnson because the county court offered him an opportunity for similar testing. People v. Johnson, 920 N.Y.S.2d 809 (N.Y.App.Div. 2011). Johnson subsequently sought leave to appeal the denial to the Court of Appeals. The Court of Appeals summarily denied leave on August 5, 2011. People v. Johnson, 917 N.Y.3d 818 (N.Y. 2011).
On June 9, 2011, Johnson, proceeding pro se, moved again to vacate the judgment and set aside his sentence pursuant to CPL §§ 440.10 and 440.20. Johnson claimed that he had newly discovered evidence that, had it been discovered at trial, could have favorably impacted the jury's verdict. That evidence consisted of a certificate of disposition stating that the Saratoga County Court had dismissed and sealed the charges against him stemming from his September 17, 2009, confrontation with Euber. He also contended that the police violated his constitutional rights by trespassing on his property and arresting him without a warrant. Johnson further claimed that the sentence against him was invalid because the charges that "started the chain of events" leading to his conviction had been dismissed. The Washington County Court denied the motion, explaining that the Saratoga County protection order was valid at the time of Johnson's arrest and that the later dismissal of charges had no bearing on his contempt and weapons convictions. Johnson sought leave to appeal the denial in the Appellate Division, which the appellate court summarily denied.
On August 23, 2011, Johnson filed a third pro se motion to vacate the judgment and set aside the sentence. Johnson argued in this motion that the prosecution failed to turn over Rosario  material in the form of an exculpatory statement of a gun dealer who sold the illegal weapon to Euber rather than Johnson. The county court denied the motion based on a lack of factual allegations and noted that Johnson could have raised this claim in his earlier CPL § 440 motions. Johnson sought leave to appeal the denial in the Appellate Division, which was summarily denied on November 22, 2011.
Johnson timely filed a petition for a writ of habeas corpus to this Court on October 4, 2011.
II. GROUNDS RAISED
In his pro se Petition, Johnson raises 28 grounds, including allegations that: 1) his conviction was obtained by "fruit of the poisonous tree" because it relied on charges that were eventually dismissed; 2) the police trespassed on his property without obtaining an arrest or search warrant; 3) his statement to police was taken in violation of his Fifth Amendment right against self-incrimination; 4) the prosecution violated Rosario by failing to turn over the statement of Euber's sister; 5) the prosecution violated Rosario by failing to turn over the statement of Euber's sister; 6) the prosecution violated Rosario by failing to turn over the statement of a gun dealer; 7) trial counsel provided ineffective assistance; 8) appellate counsel provided ineffective assistance; 9) the conviction was obtained by an illegal order of protection; 10) the trial court misused its authority; 11) he was denied the right to attend and present evidence to the grand jury; 12) the prosecution failed to respond to Johnson's bill of particular and discovery demand; 13) the trial court failed to impose sanctions for the prosecution's failure to respond; 14) the complaint against Johnson relating to the domestic dispute was false; 15) the prosecution failed to present any witness as to Johnson's intent; 16) the prosecution failed to prove that the weapon was operable; 17) Euber, and not Johnson, purchased "the weapon"; 18) the verdict was inconsistent because he was acquitted of one of the weapon charges; 19) the Appellate Division's decision on direct appeal was erroneous; 20) his conviction was obtained in violation of his state constitutional rights; 21) his conviction was obtained in violation of his federal constitutional rights; 22) the jail law library was inadequate to prepare for trial; 23) trial counsel provided ineffective assistance; 24) his conviction was obtained by Brady  and Rosario violations; 25) his conviction was obtained by Brady and Rosario violations; 26) the prosecution presented perjured testimony; 27) his conviction was obtained by violations of state and federal law; and 28) his conviction was affirmed based on a false domestic report and a police stand-off that never occurred.
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).
To the extent that the petition raises issues of the proper application of state law, they are beyond the purview of this Court in a federal habeas proceeding. 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, e.g., 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).
In applying these standards on habeas review, this Court reviews the "last reasoned decision" by the state court. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991); Jones v. Stinson, 229 F.3d 112, 118 (2d Cir. 2000). Under the AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
Johnson has not replied to Respondent's answer. The relevant statute provides that "[t]he allegations of a return to the writ of habeas corpus or of an answer to an order to show cause in a habeas corpus proceeding, if not traversed, shall be accepted as true except to the extent that the judge finds from the evidence that they are not true." 28 U.S.C. § 2248; see also Carlson v. Landon, 342 U.S. 524, 530 (1952). Where, as here, there is no traverse filed and no evidence offered to contradict the allegations of the return, the court must accept those allegations as true. United States ex rel. Catalano v. Shaughnessy, 197 F.2d 65, 66-67 (2d Cir. 1952) (per curiam).
Respondent correctly contends that most of Johnson's claims are unexhausted. This Court may not consider claims that have not been fairly presented to the state courts. 28 U.S.C. § 2254(b)(1); see Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing cases). To be deemed exhausted, a claim must have been presented to the highest state court that may consider the issue presented. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). In New York, to invoke one complete round of the State's established appellate process, a criminal defendant must first appeal his or her conviction to the Appellate Division and then seek further review by applying to the Court of Appeals for leave to appeal. Galdamez v. Keane, 394 F.3d 68, 74 (2d Cir. 2005).
Johnson did not raise the vast majority of his claims to the state courts in either his direct appeal of his conviction or in any of the three §§ 440.10 and 440.20 motions, including claims 3, 6-8, 10-13, 18-22, and 24-26. Accordingly, Johnson has failed to exhaust these claims.
Respondent also correctly asserts that, because Barnes presented claims 4 and 16 to the state courts solely on the basis of state law, he has not properly exhausted his state-court remedies as to those claims. Exhaustion of state remedies requires the petition to fairly present federal claims to the state courts in order to give the state the opportunity to pass upon and correct alleged violations of its prisoners' federal rights. Duncan v. Henry, 513 U.S. 364, 365 (1995). A petitioner must alert the state courts to the fact that he is asserting a federal claim in order to fairly present the legal basis of the claim. Id. at 365-66. An issue is exhausted when the substance of the federal claim is clearly raised and decided in the state court proceedings, irrespective of the label used. Jackson v. Edwards, 404 F.3d 612, 619 (2d Cir. 2005). Claims 5 and 16 are therefore also unexhausted.
With the exception of the ineffective assistance of counsel claims (claims 7-8), his unexhausted claims are procedurally barred. Because Johnson's claims are based on the record, they could have been raised in his direct appeal but were not; consequently, Johnson cannot bring a motion to vacate as to these claims. CPL § 440.10(2)(c) ("[T]he court must deny a motion to vacate a judgment when[, ] [a]lthough sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal...."). Moreover, Johnson cannot now raise these claims on direct appeal because he has already filed the direct appeal and leave application to which he is entitled. See Grey v. Hoke, 933 F.2d 117, 120-21 (2d Cir. 1991).
"[W]hen a petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred, ' the federal habeas court should consider the claim to be procedurally defaulted." Clark v. Perez, 510 F.3d 382, 390 (2d Cir. 2008) (citation omitted); see also Grey, 933 F.2d at 121. A habeas petitioner may only avoid dismissal of his procedurally defaulted claims if he can demonstrate "cause for the default and prejudice from the asserted error, " House v. Bell, 547 U.S. 518, 536 (2006), or a "fundamental miscarriage of justice, " Murray v. Carrier, 477 U.S. 478, 495-96 (1986), superceded by statute on other grounds, United States v. Gonzalez-Largo, No. 07-cv-0014, 2012 WL 3245522, at *2 (D. Nev. Aug. 7, 2012). A miscarriage of justice is satisfied by a showing of actual innocence. See Schlup v. Delo, 513 U.S. 298, 326-27 (1995). Johnson does not claim that cause exists for his procedural default, nor does he assert actual innocence. Because Johnson may not now return to state court to exhaust these claims, the claims may be deemed exhausted but procedurally defaulted from habeas review. See Ramirez v. Att'y Gen., 280 F.3d 87, 94 (2d Cir. 2001).
Johnson's unexhausted claims that trial and appellate counsel were ineffective are not barred, however, because there is no time limit or number bar in filing writ of error coram nobis applications. See Smith v. Duncan, 411 F.3d 340, 347 n.6 (2d Cir. 2005); Turner v. Sabourin, 217 F.R.D. 136, 147 (E.D.N.Y. 2003). Johnson may therefore still exhaust these claims in state court. This Court could stay the petition and allow Johnson to return to state court to satisfy the exhaustion requirement as to the remaining claim. See Zarvela v. Artuz, 254 F.3d 374, 380-83 (2d Cir. 2001). However, Johnson has not requested that this Court stay and hold his petition in abeyance. Moreover, the Supreme Court has held that it is an abuse of discretion to stay a mixed petition pending exhaustion where: 1) the petitioner has not shown good cause for failing to exhaust all available state court remedies; and 2) the unexhausted claim is "plainly meritless." Rhines v. Weber, 544 U.S. 269, 277 (2005). In his Petition, Johnson provides no reason why he did not seek relief on these claims through a coram nobis application to the state court.
Despite Johnson's failure to exhaust the vast majority of his claims, this Court nonetheless may deny his claims on the merits and with prejudice. See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State."). This is particularly true where the grounds raised are meritless. See Rhines, 544 U.S. at 277. Accordingly, this Court declines to dismiss these claims solely on exhaustion grounds and will instead reach the merits of the claims as discussed below.
1. Claims Challenging Procurement of Evidence (claims 1, 2, 3, 9, 14, 19)
Johnson brings a number of claims challenging his conviction based on the methods in which law enforcement obtained the evidence against him.
A. Claims 1, 9, 14, 19. Dismissal of domestic violence complaint
Johnson first asserts a number of claims grounded on the same premise: that his conviction should be reversed because the complaint and protection order resulting from the September 17, 2009, incident, which "started the chain of events" leading to his arrest the following day, were eventually dismissed. In claim 1, Johnson alleges that his conviction was obtained by "Fruit From the Poisonous Tree." In claim 9, Johnson asserts that the conviction was obtained by an "illegal order of protection" resulting from the incident. In claim 14, Johnson contends that the complaint filed in connection with the incident was "false... and never proven to be true, " and he argues in claim 19 that ...