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Golson v. Griffin

United States District Court, W.D. New York

March 30, 2017

RAKEEM GOLSON, Petitioner,


          HON. MICHAEL A. TELESCA United States District Judge.


         Proceeding pro se, Rakeem Golson (“Petitioner”) filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is detained in Respondent's custody in violation of his federal constitutional rights. For the reasons discussed herein, Petitioner's request for a writ of habeas corpus is denied, and the petition is dismissed.


         Petitioner is presently incarcerated pursuant to a judgment of conviction entered against him on October 21, 2008, in New York State, Niagara County Court (Sperrazza, J.). The conviction stems from an incident on April 3, 2007, in which Petitioner, Amy Bower (“Bower”), Antonio Clark (“Clark”), and an unidentified man, agreed upon a plan to rob Shawn Pittler (“Pittler”), a known drug dealer. Bower, a crack addict who knew Pittler, contacted him and arranged to go his apartment on Locust Street in Lockport to purchase marijuana. After completing the purchase, Bower opened the door to leave. This gave her three co-conspirators the opportunity to storm into Pittler's apartment, where they threatened Pittler and the other occupants of the apartment with a pistol, stole their property, and assaulted them with their fists and the pistol. Following a jury trial, in which he was tried jointly with Clark, Petitioner was convicted of two counts of Conspiracy in the Fourth Degree (New York Penal Law (“P.L.”) § 105.10(1)); five counts of Burglary in the First Degree (P.L. § 140.30(2), (3), (4)); six counts of Robbery in the First Degree (P.L. § 160.15(3), (4)); two counts of Robbery in the Second Degree (P.L. § 160.10(1)); and two counts of Assault in the Second Degree (P.L. § 120.05(2)).

         On direct appeal, the Appellate Division, Fourth Department, of New York State Supreme Court modified in part, and otherwise unanimously affirmed, Petitioner's conviction. People v. Golson, 93 A.D.3d 1218 (4th Dep't 2012). The Appellate Division noted that in deciding co-defendant Clark's appeal, it had ruled that “count eight, charging . . . burglary in the second degree under [P.L.] § 140.25(2), ‘must be dismissed as a lesser inclusory [sic] count of counts three through seven, charging . . . burglary in the first degree.'” Id. at 1219 (quoting People v. Clark, 90 A.D.3d 1576, 1755 (4th Dep't 2011)). The Appellate Division modified Petitioner's judgment accordingly. Id. The New York Court of Appeals subsequently denied leave to appeal. People v. Golson, 19 N.Y.3d 864 (2012).

         This timely habeas petition followed. Petitioner re-asserts the claims raised on direct appeal as his grounds for habeas relief. Respondent answered the petition and filed a memorandum of law (Dkt #8-2) asserting the defense of non-exhaustion as to the bolstering and weight-of-the-evidence claims, and the defense of procedural default as to the perjury claim. Respondent argues in the alternative that all of the claims are meritless. Petitioner filed a reply (Dkt #12) which was captioned as a “Statement of Facts.”


         I. The Bolstering Claim Is Unexhausted But Should Be Deemed Exhausted and Procedurally Defaulted

         During her testimony, Bower mistakenly identified co-defendant Clark as Golson; she explained that Golson had long hair with braids at the time of the crime. The prosecutor then was permitted to call a police officer to testify about the out-of-court identification of Petitioner that Bower had made. On direct appeal, Petitioner argued that the trial court erroneously permitted the prosecution to “bolster” Bower's identification of Petitioner. The Appellate Division noted it was “undisputed” that Golson had short hair at the time of the trial. Thus, the Appellate Division concluded, based upon Golson's change of appearance, the trial court properly determined that Bower was unable to identify him on the basis of present recollection. People v. Golson, 93 A.D.3d at 1220. Respondent argues that Petitioner did not fully exhaust his bolstering[1]claim.

         Pursuant to 28 U.S.C. § 2254(b), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Title I, § 106(b), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), “an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State. . . .” 28 U.S.C. § 2254(b). In New York, to invoke “one complete round of the State's established appellate review process” so as to fulfill Section 2254(b)'s exhaustion requirement, a petitioner first must appeal his conviction to the Appellate Division, and then must seek further review by applying to the Court of Appeals for a certificate granting leave to appeal. Galdamez v. Keane, 394 F.3d 68, 74 (2d Cir. 2005) (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). On appeal, the petitioner must ensure that his “federal claim was fairly presented to the state court.” Smith v. Duncan, 411 F.3d 340, 348 (2d Cir. 2005) (citing Daye v. Attorney Gen'l of N.Y., 696 F.2d 186, 194 (2d Cir. 1982) (en banc) (discussing means of fairly presenting federal claim to state court “even without citing chapter and verse of the Constitution”)).

         Respondent contends that the bolstering claim is not exhausted because Petitioner did not fulfill the “fair presentment” requirement. That is, Petitioner did not frame the claim as a federal constitutional issue when he presented it on direct appeal. In the argument point heading, Petitioner stated that “permitting the prosecution to bolster Amy Bower's misidentification of appellant through third party testimony constituted reversible error.” (Dkt #8-1, p. 27 of 138). In his argument on this point, Petitioner cited no federal cases, nor any state cases employing a constitutional analysis. In the penultimate sentence of the argument, Petitioner asserted that he “was denied his right to due process of law and a fair trial under both the state and federal constitution.” (Dkt #8-1, p. 29 of 138). However, this reference to due process was inadequate to fairly apprise the state court that he was asserting a federal constitutional claim. See, e.g., Schafer v. LaVallee, No. 1:12-CV-00419-MAT, 2013 WL 5272963, at *4 (W.D.N.Y. Sept. 17, 2013) (petitioner's assertion on direct appeal that the trial court “committed reversible error” when it excluded testimony concerning a witness' reputation in her community for truth and veracity, but did not cite any constitutional provision, or any Supreme Court or other federal case law, instead relying exclusively on two state-court appellate cases which addressed whether trial courts, as a matter of state law, had committed reversible error by excluding the same type testimony; this was insufficient to fairly present the evidentiary claim in federal constitutional terms for exhaustion purposes) (citing Ayala v. Scully, 640 F.Supp. 179, 181-82 (S.D.N.Y. 1986) (petitioner who referred to admission of evidence as “highly prejudicial” and “reversible error” in state court brief without asserting specific federal constitutional authority upon which he relied, failed to cite cases in that brief which employed federal constitutional analysis, and framed issue in that brief in terms of state law evidentiary violation rather than federal constitutional claim, had not fairly presented that claim to state court); Taylor v. Scully, 535 F.Supp. 272, 274-75 (S.D.N.Y. 1982) (holding that petitioner did not, by bare reference to principles of due process, “fairly present” to state court legal basis of claim that trial court committed “reversible error” by denying his motion to exclude testimony that he displayed gun prior to drug sale that led to his conviction and thus petitioner had not exhausted state remedies with respect to such claim)).

         “For exhaustion purposes, ‘a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred.'” Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (quoting Harris v. Reed, 489 U.S. 255, 263 n. 9 (1989)). Such is the case here. Petitioner's unexhausted bolstering claim concerns a ruling by the trial court and thus is record-based. Because this claim already was raised and decided on direct appeal, Petitioner is now barred under New York state law from raising it in a collateral motion to vacate the judgment. See N.Y. CRIM. PROC. LAW § 440.10(2)(a) (providing that “the court must deny a motion to vacate a judgment when . . . [t]he ground or issue raised upon the motion was previously determined on the merits upon an appeal from the judgment”). Petitioner cannot pursue a second direct appeal, for under New York State law, a criminal defendant is only entitled to one appeal to the Appellate Division and one request for leave to appeal to the Court of Appeals. See N.Y. Ct. Rule 500.20(2) (providing that application for leave to appeal to the New York Court of Appeals in a criminal case pursuant to C.P.L. § 460.20 must include statement that “no application for the same relief has been addressed to a justice of the Appellate Division, as only one application is available”); N.Y. CRIM. PROC. LAW § 450.10(1); see also N.Y. CT. RULES 500.20(d).

         Since Petitioner has no further recourse in state court for his bolstering claim, it should be deemed exhausted. See, e.g., Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (“Reyes's claim should be deemed exhausted because any attempt at exhaustion in the face of this procedural default would be futile.”). The foregoing procedural bar to presentment in state court, which causes the Court to deem the claim exhausted, also renders it procedurally defaulted. See id. (“Although Petitioner's claim of ineffective assistance is deemed exhausted, we nonetheless find that, by defaulting on that claim in state court, Reyes ...

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