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Cumberland v. Graham

United States District Court, S.D. New York

May 23, 2014

HAROLD D. GRAHAM, Respondent.


LORETTA A. PRESKA District Judge.

On December 8, 2008, pro se petitioner Robert Cumberland ("Cumberland" or "Petitioner") filed an Amended Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, seeking relief from his 2004 New York state court criminal conviction. (See Amended Petition, dated October 27, 2008 ("Amended Petition" or "Am. Pet.") [dkt. no. 25].) On August 5, 2013, Magistrate Judge Debra Freeman issued a Report and Recommendation (the "Report" [dkt. no. 26]), which recommended that the Petition be denied. Petitioner submitted objections to Judge Freeman's Report and Recommendation on December 2, 2013 [dkt. no. 33]. For the reasons stated below, the Report and Recommendation is ADOPTED, and the Amended Petition is DENIED.


A. Procedural History

1. Criminal Trial[1] and Sentencing

Petitioner was tried for violently raping three women-referred to as "M.G.", "H.C.S.", and "P.E." in the Report- between 1997 and 2002.[2] On March 31, 2004, a jury convicted Petitioner of two counts of first-degree rape, three counts of first-degree sodomy, three counts of second-degree kidnapping, three counts of first-degree sexual abuse, two counts of third-degree robbery, and one count of second-degree assault. (See Report, at 1 n.1, 12-13.) Petitioner was subsequently sentenced to "eight indeterminate 25-year prison terms for the rape, sodomy, and kidnapping counts, three indeterminate seven-year prison terms for the sexual abuse charges, and two indeterminate prison terms of from two and one-third to seven years for [the] robbery charges." (Id. at 13 (citation and internal quotation marks omitted).) The sentencing court imposed the sentences consecutively, with the exception of the sentences for the kidnapping convictions, which were imposed concurrently, resulting in a total sentence of from 175 and two-thirds to 185 years. (Id.)[3]

2. First Section 440.10 Motion to Vacate Judgment

On April 16, 2005, Petitioner moved to vacate his guilty verdict pursuant to New York Criminal Procedure Law section 440.10. (Id. at 14; see also Gill Decl. Ex. A.) In the motion, Petitioner alleged violations of his Fourth, Sixth, and Fourteenth Amendment rights. (See Report, at 14.) The trial court summarily denied the motion on July 19, 2005, "[f]inding that the grounds for each portion of the motion were included in the trial record, " and thus should be raised on direct appeal. (Id. at 14; see also Gill Decl. Ex. C.) Petitioner's request for leave to appeal this decision was denied on November 10, 2005. (See Report, at 14.)

3. Direct Appeal

On direct appeal[4] to the Appellate Division, First Department, Petitioner argued: "(1) that the trial court conducted the criminal proceedings in a biased manner, denigrating defense counsel in front of the jury and holding the two sides to different standards, and that this treatment violated Petitioner's right to due process; (2) that the trial court erred in admitting [a] knife because no foundation had been laid, and erred in permitting the prosecutor to ask questions about the knife that incorporated hearsay and matters not in evidence; and (3) that Petitioner's kidnapping convictions should be dismissed under the merger doctrine." (Id. at 14-15 (citations omitted); see also Gill Decl. Ex. F.) On February 26, 2006, Petitioner filed a pro se supplemental appellate brief on direct appeal, which argued many of the same points he had raised in his earlier section 440.10 motion. (See Report, at 15; Gill Decl. Ex. G.)

On October 19, 2006, the Appellate Division overturned Petitioner's kidnapping convictions, finding that "all three kidnapping charges merged with the underlying crimes." People v. Cumberland , 33 A.D.3d 483, 484 (1st Dep't 2006). The Appellate Division affirmed Petitioner's conviction in all other respects because "[t]he [trial] court's conduct did not deprive [Petitioner] of a fair trial" and "the [prosecution's evidentiary] error d[id] not warrant reversal in view of the court's instructions and the overwhelming evidence of [Petitioner's] guilt." (Id.) The Appellate Division rejected the claims raised in Petitioner's pro se supplemental brief as "unpreserved" and noted that if it "were we to review these claims, we would reject them." (Id.)

On December 20, 2006, Petitioner submitted a letter pro se seeking leave to appeal to the New York Court of Appeals. (See Report, at 16; see also Gill Decl. Ex. K.) The Court of Appeals denied leave to appeal on February 1, 2007. See People v. Cumberland, 8 N.Y.3d 879 (2007).

4. Second Section 440.10 Motion to Vacate Judgment

On January 20, 2006, while Petitioner's direct appeal was still pending, Petitioner filed a second section 440.10 motion to overturn his conviction. (See Report, at 17; see also Gill Decl. Ex. N.) Petitioner alleged that he was deprived of his right to effective assistance of counsel during his trial. (See Report, at 17.) The trial court denied the second 440.10 motion on May 30, 2006, determining that Petitioner's trial counsel provided effective assistance of counsel under both state and federal standards. (Id.; see also Gill Decl. Ex. P.) The Appellate Division denied Petitioner's application for leave to appeal the denial of the second section 440.10 motion on August 2, 2006. (See Report, at 18.)

5. Petition for Writ of Error Coram Nobis

On July 28, 2007, Petitioner moved for a writ of error coram nobis, alleging ineffective assistance of counsel in connection with his direct appeal. (See id. at 17-18; see also Gill Decl. Ex. R.) The Appellate Division summarily denied Petitioner's coram nobis petition on December 20, 2007. (See Report, at 19.) The New York Court of Appeals denied Petitioner's application for leave to appeal on February 29, 2008. See People v. Cumberland, 10 N.Y.3d 763 (2008).

6. Petition for Writ of Habeas Corpus

On March 27, 2008, Petitioner filed an application for a federal writ of writ of habeas corpus. (See Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, dated Mar. 27, 2008 [dkt. no. 2] ("Petition").) With leave of the Court, Petitioner subsequently filed an amended petition. (See Am. Pet. [dkt. no. 25].) In his Amended Petition, Petitioner argues that his conviction should be vacated on the following grounds:

(1) the trial court conducted the state proceedings in a biased manner, thereby violating Petitioner's right to due process of law (see Am. Pet., App'x at 12-15);
(2) the prosecution engaged in misconduct, violating Petitioner's right to a fair trial, by (a) commenting on Petitioner's exercise of his constitutional right not to submit voluntarily to DNA testing (see id. at 16-17), and (b) introducing improper evidence at trial and asking improper questions about the evidence (see id. at 17-19);
(3) trial counsel was ineffective because he failed to [(a)] subpoena witnesses with knowledge relevant to the incident involving victim M.G., [(b)] cross-examine M.G. effectively, and [(c)] preserve the Fourth Amendment issue regarding Petitioner's alleged attempts to hide his DNA (see id. at 20-25);
(4) appellate counsel was ineffective for failing to raise, on appeal, a claim of ineffective assistance of trial counsel, and for failing to argue that Petitioner's convictions regarding the attack on victim H.C.S. were against the weight of the evidence (see id. at 25-27); and
(5) Petitioner's indictments for the attack on M.G. violated the New York statute of limitations, as well as the federal statute which, Petitioner claims, preempts the state limitations period (see id. at 27-30).

(Report, at 20.)

In her Report, Judge Freeman recommends that Petitioner's Amended Petition be dismissed in its entirety. (Id. at 55.) The Report also recommends that the Court decline to issue a certificate of appealability pursuant to 28 U.S.C § 2253(c)(1)(A) on the grounds that "Petitioner has not made a substantial showing of the denial of a constitutional right.'" (Id. (quoting 28 U.S.C. § 2253(c)(2)).)


A. Legal Standards

1. Standard of Review

In reviewing a magistrate judge's Report and Recommendation, the Court "must determine de novo any part of the... disposition that has been properly objected to. The [Court] may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed.R.Civ.P. 72(b)(3). Because Petitioner is proceeding pro se, the Court must broadly construe his claims and objections and interpret them "to raise the strongest arguments they suggest." Graham v. Henderson , 89 F.3d 75, 79 (2d Cir. 1996).

2. Federal Habeas Review

Federal courts may not consider any claim presented in a petition for a writ of habeas corpus unless the petitioner has exhausted all available state court remedies. See 28 U.S.C. § 2254(b)(1)(A). Once all state remedies have been exhausted, a federal court must review a petitioner's claims pursuant to the deferential standard of review set ...

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