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Postell v. Bradt

United States District Court, S.D. New York

March 31, 2017

RODNEY POSTELL, Petitioner,
v.
MARK BRADT, SUPERINTENDENT, ELMIRA CORRECTIONAL FACILITY, Respondent.

          OPINION AND ORDER

          EDGARDO RAMOS, U.S.D.J.

         Petitioner 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.

         On June 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.[1] Doc. 36 (“Objection”). For the reasons stated herein, the Court adopts the R. & R. in its entirety, and the Petition is DENIED.

         I. BACKGROUND

         The 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.

         On 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”).[2] 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.

         Prior 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.

         Petitioner 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.

         Prior 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 1-8.

         On May 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.

         On June 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.

         II. STANDARD OF REVIEW

         A. AEDPA Review of the State Court Proceedings

         Under 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 ...


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