United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA, District Judge.
Proceeding pro se, Kumar Jones ("Petitioner") filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254, alleging that he is being held in Respondent's custody in violation of his federal constitutional rights. Petitioner is incarcerated pursuant to a judgment entered on March 11, 2009, in Ontario County Court (Reed, J.) of New York State Supreme Court, following a jury verdict convicting him of two counts of Assault in the First Degree (N.Y. Penal Law ("P.L.") § 120.10(1)).
II. Factual Background and Procedural History
The convictions here at issue stem from an incident in which Petitioner injected himself into a fist-fight between two groups of individuals and stabbed two of them, causing them serious injuries. Afterwards, Petitioner fled the area and eventually was arrested in Brooklyn. On his return to Ontario County, he was indicted on December 17, 2008, on two counts of first-degree assault. After discovery but prior to trial, the prosecutor extended an offer to Petitioner to plead guilty to the indictment with a sentence-promise of 6 years in state prison plus 5 years of post-release supervision. Petitioner rejected the plea offer.
Petitioner's jury trial commenced on March 9, 2009. The prosecution's proof revealed that the stabbings occurred on May 27, 2008, shortly before midnight, on Hallenbeck Avenue in the City of Geneva. Jeremiah Allen ("Allen") was at a party at his cousin's house when one of the other guests received a telephone call that "people were just talking junk." In response, Allen left the party and went to the courtyard at Chartres Homes, where he saw Petitioner and his godson, Terrell Crittleton ("Crittleton"). After words were exchanged back and forth between various individuals, Allen returned to his cousin's house.
Later on, when Allen later went to take out the trash, he encountered Crittleton and some other people outside his cousin's house. According to eyewitness Kyejuan Smallwood ("Smallwood"), Allen called Crittleton a "bitch." T.151. Crittleton then took two swings at Allen, and Allen struck Crittleton in the face with his open hand. As Crittleton continued to swing at him, Allen pushed Crittleton and struck him in the face, and Crittleton fell to the ground. Meanwhile various individuals, from two different cliques, started to fight. Petitioner approached Allen and stabbed him in the chest with a butterfly knife he had secreted in his clothing. When Allen raised his arm to ward off another blow, Petitioner stabbed him in the left wrist. Confused, Allen backed away from Petitioner.
After seeing his cousin, Allen, get stabbed, John Archibald ("Archibald") ran at Petitioner, punched him in the face, and grabbed Petitioner's arm in an attempt to wrestle the knife away from him. Petitioner then stabbed Archibald twice in the back. Petitioner then was seen discarding the knife and fleeing on foot.
An acquaintance of Allen's named Terrez drove Allen and Archibald to the hospital, where Allen's condition became critical, requiring resuscitation and thoracic surgery. Archibald's injuries were serious but not life-threatening. Both young men remained in the hospital for more than a week.
At trial, Petitioner took the stand and testified that he and Crittleton, whom he described as his son, were engulfed by a mob at the Chartres Homes courtyard. Petitioner and Crittleton were dragged to the ground and bombarded with blows. At some point, an unidentified individual intervened on their behalf and engaged in a knife fight with Petitioner's aggressors, allowing Petitioner and Crittleton to extricate themselves. Petitioner then grabbed Crittleton and returned home. Later that evening, Petitioner was visited by the man who had helped him during the fight. Petitioner testified that this man directed Petitioner not to reveal his identity. Petitioner testified that the man's name was "D'Real". Petitioner explained that after the incident, he went to New York City, leaving his family behind in Geneva.
The jury returned a verdict convicting Petitioner on both counts of the indictment. On March 11, 2009, he was sentenced to determinate 10-year terms on each conviction, to be served consecutively, plus 5 years of post-release supervision.
Represented by new counsel, Petitioner appealed to the Appellate Division, Fourth Department, of New York State Supreme Court. Petitioner also filed a pro se supplemental brief. On December 30, 2010, Petitioner's conviction was unanimously affirmed. People v. Jones, 79 A.D.3d 1773 (4th Dep't 2010), lv. denied, 16 N.Y.3d 832 (2011). Petitioner filed 4 collateral motions to vacate the judgment pursuant to New York Criminal Procedure Law ("C.P.L.") 440.10 in Ontario County Court ("the 440 Court"). The 440 Court denied all of the motions, and the Appellate Division denied each of Petitioner's leave applications. Petitioner also filed 2 applications for writs of error coram nobis, which were denied by the Appellate Division. The New York Court of Appeals denied each of his leave applications.
This timely habeas petition followed. Respondent answered the petition and filed a memorandum of law in opposition, asserting that Petitioner's claims, for the most part, were unexhausted and procedurally defaulted. Petitioner filed a reply. For the reasons set forth below, the request for a writ of habeas corpus is denied, and the petition is dismissed.
A. Defective Grand Jury Proceeding (Ground One)
Petitioner asserts entitlement to relief on the basis that the grand jurors were "mislead [sic] [by the prosecutor] to think [Petitioner's] identification was confirmatory." Petition ("Pet."), Ground One, ¶ 22(A), p. 12 of 17. However, it is well settled that claims of deficiencies in state grand jury proceedings are not cognizable on federal habeas review. See Lopez v. Riley, 865 F.2d at 32-33 (2d Cir. 1989) (relying on United States v. Mechanik, 475 U.S. 66, 70 (1986)). Here, a petit jury convicted Petitioner on all charges in the indictment. Thus, any error in the prosecutor's presentation of the case to the grand jury was rendered harmless by the petit jury's verdict, which found Petitioner's guilt beyond a reasonable doubt. See, e.g., Medina v. Herbert, 98 CIV. 1871(RWS), 1998 WL 799173, at *4 (S.D.N.Y. Nov. 16, 1998) (habeas claims that prosecutor presented deliberately incomplete, misleading, confusing case to grand jury not cognizable in light of guilty verdict reached by petit jury after trial).
B. Suggestive Pre-Trial and In-Court Identifications (Ground Two)
Petitioner asserts that the courtroom identifications made by Allen, Archibald, and Smallwood were unduly suggestive because (a) Allen and Archibald were on gurneys next to each other when Officer Steve was questioning them, and they had the opportunity to overhear each others' recollections; and (b) at trial, the prosecutor allegedly pointed to Petitioner, the only black male in the courtroom, and asked the witnesses if they knew him. See Pet., ¶ 22(B), p. 13 of 17. Respondent argues that these claims are unexhausted because Petitioner failed to raise them on direct appeal, and must be deemed exhausted and procedurally defaulted because Petitioner faces an absence of corrective process in state court. Petitioner suggests that he exhausted his suggestive identification claim by raising it as a predicate for trial counsel's ineffectiveness in his second C.P.L. § 440.10 motion (Resp't Ex. Q), wherein he asserted that his "conviction was obtained in violation of his (14th) Fourteenth Constitutional Amendment [right], by the introduction of the in-court identification... without there being a C.P.L. § 710.30 notice." Petitioner's Notice of Motion, ¶ 1 (Resp't Ex. Q). Petitioner did not present any argument about the circumstances of the courtroom identification, or about Officer Steve's interviews of the victims at the hospital. Instead, he simply attached various pages of the trial transcript containing the witnesses' identification testimony.
Even assuming arguendo that Petitioner's bare reference to the 14th Amendment sufficiently "call[ed] to mind" a due process violation, Levine v. Commissioner of Corr. Servs., 44 F.3d 121, 124 (2d Cir. 1995), his attachment of the transcript pages without explaining how and why they supported his suggestive identification claim did not adequately put the 440 Court on notice of the substance of the claim raised in the instant habeas petition, which is that the courtroom identifications violated Due Process because they were made under circumstances that created a substantial likelihood of irreparable misidentification and were irreparably tainted by the earlier, joint interviews of the victims by Officer Steve. Here, the claim raised by Petitioner before the 440 Court regarding the identification testimony was not the "substantial equivalent, " Picard v. Connor, 404 U.S. 270, 278 (1971), of the claims he now raises in his federal petition. Therefore, the habeas claims cannot be said to have been "fairly presented". See Strogov v. Attorney Gen'l of State of N.Y., 191 F.3d 188, 191 (2d Cir. 1999) ("A federal constitutional claim has not been fairly presented to the State courts unless the petitioner has informed those courts of all of the essential factual allegations' and essentially the same legal doctrine he asserts in his federal petition.'") (quotation and citation omitted). Because these claims based on the witnesses' identification of him as the assailant were not fairly presented in federal constitutional terms to the state courts, they are unexhausted.
"When a claim has never been presented to a state court, a federal court may theoretically find that there is an absence of available State corrective process' under § 2254(b)(1)(B)(i) if it is clear that the unexhausted claim is procedurally barred by state law and, as such, its presentation in the state forum would be futile." Aparicio v. Artus, 269 F.3d 78, 90 (2d Cir. 2001) (quotation omitted). That is the case here. Petitioner already has used the one direct appeal to which was entitled. See, e.g., Cunningham v. Conway, 717 F.Supp.2d 339, 365 (W.D.N.Y. 2010) (citing N.Y. R. CT. §§ 500.20(a)(2), (d); N.Y. CRIM. PROC. LAW § 460.10(5); collecting cases). Collateral review in a motion to vacate pursuant to C.P.L. § 440.10(2)(c) is also barred because "sufficient facts appear on the record of the proceedings underlying the judgment" to have permitted him to raise the claims on direct appeal. See N.Y. CRIM. PROC. LAW § 440.10(2)(c) (mandating denial if sufficient facts appeared on the record to have permitted direct review but defendant unjustifiably failed to raise claim on direct appeal). Although Petitioner's claims are "deemed exhausted" due to the absence of "remedies available" in the state courts, they also are procedurally defaulted as a result of these procedural bar ...