United States District Court, S.D. New York
OPINION AND ORDER
EDGARDO RAMOS, U.S.D.J.
Rodney Postell (“Postell” or
“Petitioner”), through his counsel, filed a
petition for a writ of habeas corpus under 28 U.S.C. §
2254 (“Petition”) on May 22, 2009. Doc. 1. The
Honorable Kenneth M. Karas, to whom this case was previously
assigned, referred the Petition to Magistrate Judge Lisa M.
Smith on October 5, 2009. Doc. 3. The case was reassigned to
the undersigned on January 6, 2012. Doc. 11.
9, 2015, Magistrate Judge Smith issued a Report and
Recommendation (“Report” or “R. &
R.”), recommending that the Petition be dismissed, or
in the alternative, denied as without merit. Doc. 33.
Petitioner, acting pro se, filed a written objection
to the Report on July 31, 2015. Doc. 36
(“Objection”). For the reasons stated herein, the
Court adopts the R. & R. in its entirety, and the
Petition is DENIED.
factual background and procedural history relevant to the
Petition are set forth in Magistrate Judge Smith's
Report, familiarity with which is assumed. See R.
& R. at 3-7.
March 19, 2002, a grand jury charged Postell with various
crimes in connection with two shots fired on November 26,
2001-one which struck an occupied house and another which
struck Quentin Pollard (“Pollard”) in the left
leg. Pet. at 1-2; Resp't's Aff. at 3;
Resp't's Opp. Ex. 4 at 2. A jury trial began in the
Supreme Court of the State of New York, Westchester County
(“Westchester County Court”) on December 4, 2002.
Resp't's Aff. at 5. At trial, Postell's trial
counsel, Donald Roth Jr., presented two witnesses: Crystal
Kennie (“Kennie”) and Corey Vandiver
(“Vandiver”). Resp't's Opp. Ex. 4 at 2, 7.
Postell was convicted on December 12, 2002 of one count of
assault in the first degree and one count of reckless
endangerment in the first degree. Pet. at 2; Resp't's
Aff. at 7-8. He was sentenced to a determinate term of
incarceration of twenty-five years and five years
post-release supervision on the assault charge, and an
indeterminate term of incarceration of three and one-half to
seven years on the reckless endangerment charge, to be served
consecutively. Pet. at 2; Resp't's Aff. at 8-9.
to filing his direct appeal, Petitioner made two motions
pursuant to New York Criminal Procedural Law §§
440.10 and 440.20, respectively, through his new counsel,
Anthony Giordano, alleging that he was denied effective
assistance of counsel due to trial counsel's conflict of
interest, and that the imposition of consecutive sentences
was improper. See Resp't's Opp. Ex. 3. On
May 11, 2006, the Westchester County Court denied these
motions. See Resp't's Opp. Ex. 6.
Petitioner's request for leave to appeal was denied by
the Second Department of the Appellate Division on June 28,
2006. Resp't's Opp. Ex. 7.
filed his direct appeal on November 27, 2006, again alleging,
inter alia, ineffective assistance of counsel
because trial counsel had a “material conflict, ”
and that there was an unlawful imposition of consecutive
sentences. Resp't's Opp. Ex. 8 at 52-59, 65-74. On
May 29, 2007, Petitioner filed a supplemental brief pro
se in support of the direct appeal, asserting that: (1)
the jury charge was improper and violated Petitioner's
right to due process, (2) trial counsel was ineffective on
bases not raised in the Petition, and (3) Petitioner's
sentence was unlawful and unconstitutional. See
Resp't's Opp. Ex. 10. On November 7, 2007, the Second
Department unanimously affirmed Petitioner's conviction.
People v. Postell, 45 A.D.3d 609, 845 N.Y.S.2d 397
(2d Dep't 2007). Petitioner sought leave to appeal the
Second Department's decision through counsel on December
26, 2007, and pro se on December 27, 2007.
Resp't's Opp. Ex. 13 at 13-16. Both applications were
denied by the New York Court of Appeals on February 21, 2008.
Id. at 1.
to filing this Petition, Petitioner filed a second §
440.10 motion, acting pro se, claiming ineffective
assistance of trial counsel because counsel sought to suborn
perjury from a potential witness. See
Resp't's Opp. Ex. 14. The Westchester County Court
denied this motion on October 17, 2008, and Petitioner's
application for leave to appeal was denied on January 8, 2009
by the Second Department. Resp't's Opp. Ex. 17 at
22, 2009, Petitioner filed the instant Petition, claiming
that: (1) he was denied effective assistance of counsel
because trial counsel had not presented two witnesses at
trial and failed to timely serve an alibi notice for Kennie;
(2) he was unlawfully sentenced to two consecutive terms of
incarceration; and (3) the jury instructions regarding the
charge of assault in the first degree were incorrect and
deprived Petitioner of a fair trial. Pet. at 9-15.
9, 2015, Magistrate Judge Smith issued the Report, concluding
that: (1) Petitioner has not exhausted the ineffective
counsel claim; (2) trial counsel's decision not to call
the two witnesses was strategic; (3) the claim that trial
counsel was ineffective because he failed to timely serve an
alibi notice for Kennie should be dismissed for procedural
default; (4) Petitioner's improper consecutive terms of
incarceration claim is inappropriate for habeas review
because it challenges state court's application of state
law; (5) the claim of improper imposition of consecutive
terms further fails under both federal and state law; (6) the
improper jury instruction claim should be dismissed for
procedural default; and (7) the improper jury instructions
claim alternatively fails because Petitioner has failed to
show that the instructions, which are effectively recitations
of state law with slight semantic variations, are erroneous.
R. & R. at 13-26.
STANDARD OF REVIEW
AEDPA Review of the State Court Proceedings
the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214,
habeas petitions under 28 U.S.C. § 2254 may not be
granted unless the state court's decision was
“contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the
Supreme Court of the United States, ” or “was
based on an unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(1), (d)(2). This
deference is required under the AEDPA if the ...