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Blond v. Graham

United States District Court, N.D. New York

June 6, 2014

MARK W. BLOND, Jr., Petitioner,
HAROLD GRAHAM, Superintendent, Auburn Correctional Facility, Respondent.


JAMES K. SINGLETON, Jr., Senior District Judge.

Mark W. Blond, Jr., a state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Blond is in the custody of the New York State Department of Corrections and Community Supervision and is incarcerated at the Auburn Correctional Facility. Respondent has answered, and Blond has replied.


The Appellate Division summarized the facts of the case as follows:

[Blond] was indicted on 10 counts stemming from his sexual abuse and rape of a 15-year-old victim, his attempted assault with a brick on his wife [Kasha Hudson], who was the victim's aunt, and property damage he caused to his wife's vehicle when he repeatedly drove his own vehicle into it. When he was arrested and taken into custody, he also caused property damage to a police vehicle by shattering its window in a violent rage. Following a jury trial, [Blond] was convicted of rape in the first degree, rape in the third degree, criminal sexual act in the third degree, sexual abuse in the third degree, attempted assault in the second degree, endangering the welfare of a child, criminal mischief in the third degree and criminal mischief in the fourth degree. [The New York] Supreme Court... sentenced [Blond] to an aggregate prison term of 22 2\3 years followed by 20 years of postrelease supervision.

People v. Blond, 946 N.Y.S.2d 663, 665 (N.Y.App.Div. 2012).

Blond filed a pro se motion to vacate the judgment and set aside the sentence pursuant to New York Criminal Procedure Law ("CPL") §§ 440.10 and 440.30. Blond raised a litany of ineffective assistance of counsel claims, including allegations that counsel: 1) failed to move for a mistrial after defense witness Jean Blond was arrested outside the courtroom following her testimony; 2) failed to move for a mistrial based on "threatening gestures" made by Rene Minus to members of the jury; 3) failed to prepare for trial; 4) failed to call several lay witnesses; 5) failed to secure Blond's right to testify before the grand jury; 6) failed to request an adjournment during the Huntley hearing[1] to review 911 calls and police recordings; 7) failed to allow Blond to testify at the Huntley hearing; 8) failed to move for a change of venue; 9) failed to advise Blond of a favorable plea deal; 10) unconstitutionally excused all females from the jury pool; 11) waived Blond's right to be present at "crucial stages of trial, " including conferences and sidebars; 12) failed to challenge the racial composition of the jury; 13) failed to object to the badgering of Blond on cross-examination; 14) failed to suppress physical evidence taken from Blond's home as well as Blond's DNA sample; 15) failed to obtain Blond's work and school records as well as records of Hudson's whereabouts to disprove that the prior bad acts ever occurred; 16) failed to object to the introduction of an email from Blond; 17) failed to object to the admittance of a tampered audio/video recording; 18) failed to interview and investigate the People's DNA testing experts prior to trial; 19) failed to inquire into lab protocols for DNA testing; 20) failed to call expert witnesses; 21) failed to investigate Blond's claim that around the time of the alleged crimes, his wife was giving him Zoloft which had not been prescribed to him; 22) failed to make post-trial motions; 23) failed to competently argue for a minimum sentence; 24) failed to object to or request a hearing on the fines imposed on Blond; 25) failed to object to the late disclosure of DNA evidence; 26) failed to reveal that certain witnesses had prior convictions or any pending criminal actions; 27) failed to show any interest in explaining his right to a speedy trial to him; 28) failed to argue to sever the indictment; 29) failed to obtain police records of an incident in which Blond's wife allegedly battered him; 30) failed to select and impanel an impartial jury; 31) failed to object to his wife testifying on the ground of marital privilege; 32) failed to properly argue to set aside the sentence; 33) had only 6 months' experience in handling sex crimes cases; 34) failed to move for a mistrial on various occasions; 35) failed to timely move to suppress his statement to police before the grand jury indicted him; and 36) threatened Blond that if he did not take the plea deal he could face 25 years' imprisonment.

In addition, Blond argued that: 1) his right to equal protection was violated because the county and state caps money it provides for the defense of the criminally accused; 2) the trial court failed to question the potential jurors about their attitudes "towards sex crimes and/or crimes against teens and/or crimes against multi-gender's [sic] and/or crimes against multiraces"; 3) the trial court failed to inquire as to Blond's competency; 4) the jury instructions were unconstitutional; 5) the People withheld and/or delayed production of evidence; 6) the bailiff committed misconduct by "grabbing his gun" in front of the jury when Blond walked by him; 7) the "conflict defender" yelled "Give him 100 years" and many county workers were present during trial, which had "a great impact [on] the trial and the conviction"; 8) the trial judge was biased; 9) his right to due process was violated at sentencing because the court imposed a stricter sentence without offering any justification for doing so; 10) a restitution hearing should have been held on fees imposed on Blond as part of his sentence; 11) he was not fully allowed to address the sentencing court; 12) his sentence was an abuse of discretion and a violation of the right to due process, equal protection, and the right against cruel and unusual punishment; 13) the prosecution implied while cross-examining Blond that if he was telling the truth then the People's witnesses were lying; 14) the state failed to preserve DNA samples for testing at the time the crime was committed; 15) the People failed to turn over various documents; 16) the prosecution played to the fears and sympathies of the jury; 17) the police interfered with his right to access to counsel; 18) he was prejudiced by the presence of a juror who was sleeping; 19) hearsay evidence was impermissibly admitted into evidence at trial; 20) exculpatory evidence was not admitted at trial; 21) the court should perform a polygraph on both himself and the witness; 22) public defenders are not invested in the cases they are working on and are just out to make money; 23) the grand jury proceedings were defective and prejudicial; 24) the prosecution committed misconduct by leading the victim in her testimony; 25) the prosecution denied him the opportunity of confronting several witnesses; 26) the prosecution failed to prove that he was guilty of attempted assault in the second degree; 27) during the grand jury proceedings, Blond's wife testified as to a "domestic violence situation of a family court nature" which prejudiced him, and otherwise testified to information protected by marital privilege; 28) the prosecution over-charged Blond with duplicitous charges; 29) the prosecution purposely suppressed his interrogation; 30) the prosecution vindictively "up[ped] the anti [sic] of crimes charged, to gain a tactical advantage at [the] bargaining stage"; 31) although our legal system is "accusatory" in nature, the grand jury process is unconstitutionally an "inquisitory" system; 32) the police used force upon his arrest rendering his statements to police involuntary; 33) the victim did not resist his advances and there was doubt as to whether he used force or threats against her; 34) the jury should have been sequestered; and 35) the sentence was excessive and cruel and unusual.

The trial court denied the motion, concluding that Blond's ineffective assistance of counsel claims were "conclusory and... not supported by any other affidavit or evidence." The court further denied Blond's claims of jury improprieties, that his sentence was cruel and unusual, and that he was unlawfully searched and seized on the ground that they should be brought on direct appeal pursuant to CPL § 440.10(2)(c). The court did not otherwise address Bond's numerous claims.

Blond sought leave to appeal the denial of his motion to vacate the judgment and to consolidate that appeal with his direct appeal. The Appellate Division granted that motion.

Blond then moved pro se to set aside his sentence on the ground that it was "Constitutionally harsh, excessive and greatly disproportioned [sic] to any of the pre-trial and trial plea bargains, " and that counsel was ineffective. The trial court denied the motion on the ground that he had already raised the same claims in his motion to set aside the verdict.

Through counsel, Blond directly appealed, arguing that: 1) a new trial was required based on the court's failure to conduct an inquiry of a sleeping juror; 2) trial counsel was ineffective for failing to move to dismiss the indictment and properly advise Blond of the maximum sentence for first-degree rape; 3) the admission of Molineux/Ventimiglia [2] evidence deprived Blond of a fair trial; 4) the court erred in denying Blond's request to offer the testimony of three social workers to impeach the victim's credibility; 5) the jury charge was insufficient; and 6) his sentence was harsh and excessive. Blond filed a supplemental pro se brief in which he additionally argued that: 1) trial counsel was ineffective for a) failing to advise him of a favorable plea, b) failing to investigate and prepare for trial, and c) failing to object to the indictment as duplicitous; 2) counts 1 through 4 and 8 were based on duplicitous acts; 3) prosecutorial misconduct denied him his right to a fair trial; and 4) the evidence was legally insufficient to support his conviction and the verdict was against the weight of the evidence. The Appellate Division unanimously affirmed Blond's judgment of conviction in a reasoned opinion.

Blond initially filed a pro se application for leave to appeal to the Court of Appeals. Blond argued that: 1) the trial court failed to conduct a proper inquiry of a sleeping juror as required by state law; 2) counsel was ineffective for failing to a) secure his right to testify before the grand jury and move to dismiss the indictment, b) properly advise him of a plea bargain and his sentencing exposure, c) move to dismiss counts 1 through 4 as duplicitous, d) investigate and prepare for trial, and e) compel the court to review the grand jury minutes and move to dismiss or reduce the charges; 3) the court abused its discretion in admitting the Molineux/Ventimiglia evidence; 4) the court erred in precluding him from presenting the testimony of three social workers; 5) the jury charge failed to relate the facts to the application of law; 6) the prosecutor committed misconduct; 7) the evidence was legally insufficient to support conviction on counts 1-4 and 6; and 8) the trial court should have dismissed counts 1-4 as duplicitous. Blond then filed a counseled leave application, in which he argued that: 1) the trial court's Molineux/Ventimiglia ruling was an abuse of discretion; 2) the trial court erred in excluding the testimony of three social workers to impeach the credibility of the victim's complaints of sexual abuse; and 3) his sentence was an abuse of discretion given the discrepancy between the pre-trial plea offer and the aggregate sentence imposed after trial. Blond subsequently filed a letter motion stating that counsel had failed to ask the Court of Appeals to "to review all issues raised in the Appellate Division." The Court of Appeals summarily denied leave to appeal. Blond filed his Petition for Writ of Habeas Corpus with this Court on October 22, 2012.


Blond raises the following claims in his pro se Petition before this Court: 1) trial counsel was ineffective for failing to: a) properly advise him of a favorable plea offer, b) advise him of his maximum sentencing exposure, c) secure his right to testify before the grand jury, d) object to the duplicitous nature of counts 1 through 4 of the indictment, e) investigate and prepare for trial, and f) move to inspect the grand jury minutes and dismiss the indictment; 2) he was deprived of a fair trial because a juror was sleeping during trial and the court failed to conduct a proper inquiry of that juror; 3) counts 1 through 4 of the indictment were duplicitous; 4) the court erroneously admitted Molineux/Ventimiglia evidence and failed to give a limiting instruction; 5) the prosecutor committed misconduct; 6) the court improperly denied his request to present testimony of three social workers who would undermine the victim's credibility; 7) the evidence was legally insufficient to support his conviction; and 8) the trial court vindictively sentenced him for exercising his right to trial.


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). Where there is no reasoned decision of the state court addressing the ground or grounds raised on the merits and no independent state grounds exist for not addressing those grounds, this Court must decide the issues de novo on the record before it. See Dolphy v. Mantello, 552 F.3d 236, 239-40 (2d Cir. 2009) (citing Spears v. Greiner, 459 F.3d 200, 203 (2d Cir. 2006)); cf. Wiggins v. Smith, 539 U.S. 510, 530-31 (2003) (applying a de novo standard to a federal claim not reached by the state court). In so doing, the Court presumes that the state court decided the claim on the merits and the decision rested on federal grounds. See Harris v. Reed, 489 U.S. 255, 263 (1989); Coleman v. Thompson, 501 U.S. 722, 740 (1991); see also Jimenez v. Walker, 458 F.3d 130, 140 (2d Cir. 2006) (explaining the Harris-Coleman interplay); Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 810-11 (2d Cir. 2000) (same). This Court gives the presumed decision of the state court the same AEDPA deference that it would give a reasoned decision of the state court. Harrington v. Richter, 131 S.Ct. 770, 784-85 (2011) (rejecting the argument that a summary disposition was not entitled to § 2254(d) deference); Jimenez, 458 F.3d at 145-46.


A. Exhaustion

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). Blond failed to raise his vindictive sentence claim in either his pro se or counseled petitions for review to the New York Court of Appeals, and it is accordingly unexhausted. See ECF 32-20; 32-19. Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991).

Respondent also correctly points out that Blond has only partially exhausted other claims because he presented those claims on direct appeal only on state-law grounds. Exhaustion of state remedies requires the petitioner 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. 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. 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). Blond raised the claims that the court should have conducted an inquiry with respect to a sleeping juror, that counts 1 through 4 of the indictment were duplicitous, and that the court abused its discretion in admitting the Molineux/Ventimiglia evidence, solely on state grounds and they are accordingly also unexhausted.

Because Blond's unexhausted claims are based on the record, they could have been raised in his direct appeal but were not; consequently, Blond 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, Blond 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, 933 F.2d at 120-21.

"[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. Because Blond 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).

Despite Blond's failure to exhaust a number 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 will not dismiss the unexhausted claims solely on exhaustion grounds and instead reach the merits of the claims as discussed below.

B. Ineffective Assistance of Counsel (Claim 1)

1. Strickland and New York standards on habeas review

To demonstrate ineffective assistance of counsel under Strickland v. Washington, a defendant must show both that his counsel's performance was deficient and that the deficient performance prejudiced his defense. 466 U.S. 668, 687 (1984). A deficient performance is one in which "counsel made errors so serious that counsel was not functioning as the counsel' guaranteed by the Sixth Amendment." Id. The Supreme Court has explained that, if there is a reasonable probability that the outcome might have been different as a result of a legal error, the defendant has established prejudice and is entitled to relief. Lafler v. Cooper, 132 S.Ct. 1376, 1385-86 (2012); Glover v. United States, 531 U.S. 198, 203-04 (2001); Williams, 529 U.S. at 393-95. Thus, Blond must show that his counsel's representation was not within the range of competence demanded of attorneys in criminal cases, and that there is a reasonable probability that, but for counsel's ineffectiveness, the result would have been different. See Hill v. Lockhart, 474 U.S. 52, 57 (1985). An ineffective assistance of counsel claim should be denied if the petitioner fails to make a sufficient showing under either of the Strickland prongs. See Strickland, 466 U.S. at 697 (courts may consider either prong of the test first and need not address both prongs if the defendant fails on one).

New York's test for ineffective assistance of counsel under the state constitution differs slightly from the federal Strickland standard. "The first prong of the New York test is the same as the federal test; a defendant must show that his attorney's performance fell below an objective standard of reasonableness." Rosario v. Ercole, 601 F.3d 118, 124 (2d Cir. 2010) (citing People v. Turner, 840 N.E.2d 123 (N.Y. 2005)). The difference is in the second prong. Under the New York test, the court need not find that counsel's inadequate efforts resulted in a reasonable probability that, but for counsel's error, the outcome would have been different. "Instead, the question is whether the attorney's conduct constituted egregious and prejudicial error such that defendant did not receive a fair trial.'" Id. at 124 (quoting People v. Benevento, 697 N.E.2d 584, 588 (N.Y. 1998)). "Thus, under New York law the focus of the inquiry is ultimately whether the error affected the fairness of the process as a whole.'" Id. (quoting Benevento, 697 N.E.2d at 588). "The efficacy of the attorney's efforts is assessed by looking at the totality of the circumstances and the law at the time of the case and asking whether there was meaningful representation.'" Id. (quoting People v. Baldi, 429 N.E.2d 400, 405 (N.Y. 1981)).

The New York Court of Appeals views the New York constitutional standard as being somewhat more favorable to defendants than the federal Strickland standard. Turner, 840 N.E.2d at 126. "To meet the New York standard, a defendant need not demonstrate that the outcome of the case would have been different but for counsel's errors; a defendant need only demonstrate that he was deprived of a fair trial overall." Rosario, 601 F.3d at 124 (citing People v. Caban, 833 N.E.2d 213, 222 (N.Y. 2005)). The Second Circuit has recognized that the New York "meaningful representation" standard is not contrary to the federal Strickland standard. Id. at 124, 126. The Second Circuit has likewise instructed that federal courts should, like the New York courts, view the New York standard as being more favorable or generous to defendants than the federal standard. Id. at 125.

2. Failure to properly advise of plea offer and maximum sentencing exposure (Claims 1(a) & (b))

At arraignment, the trial court informed Blond of his maximum sentencing exposure, stating that he could be subject to 25 years' imprisonment if found guilty of first-degree rape, a class B felony. The court also informed Blond of his maximum sentencing exposure on each of the remaining 9 charges.

Prior to trial, the court informed Blond in open court that the prosecution had made a plea offer of 3 ½ years' imprisonment and that the court would accept the offer if Blond agreed after conferring with defense counsel. The court further advised Blond that defense counsel had requested that the offer remain on the table until the following day prior to jury selection. After that, the prosecution would withdraw the offer.

Just prior to jury selection the following day, the court again stated that the prosecution had offered 3 ½ years' imprisonment followed by post-release supervision to be determined at the discretion of the court. Defense counsel advised the court that Blond did not want to avail himself of that offer. Defense counsel requested to make a record with respect to Blond's rejection of the offer, stating as follows:

[DEFENSE COUNSEL]: [W]ith regard to the offer, and that is that I have advised [Blond] that I believe he should take the offer, particularly in light of two B felony counts present in the indictment, which I believe there is a substantial likelihood of conviction on, and for each of which he could receive up to four years in prison. Obviously if the offer is 3 ½ it would be an advantageous plea-bargain offer or advantageous plea, at least in my estimation.
THE COURT: I assume you discussed with your client the full range of sentencing, if you will, that will be at the Court's discretion at the conclusion of the case in the event that he is found guilty?
[DEFENSE COUNSEL]: I have, your Honor.
THE COURT: I assume you've also discussed with him that based upon the various counts in this indictment, the factual recitations, if you will, under each of these counts that in the event that [Blond] is found guilty of each of these counts that the Court has the discretion to sentence [a] certain number of these consecutively?
[DEFENSE COUNSEL]: Yes, your Honor, we have discussed that.

According to Blond, after the victim testified against him, he was offered 7 years' imprisonment "and the offer never was tak[en] off the table." Blond nevertheless rejected that ...

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