United States District Court, E.D. New York
MEMORANDUM & ORDER
NICHOLAS G. GARAUFIS, UNITED STATES DISTRICT JUDGE.
Corey Herb brings this prose petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 (the
"Petition"). (Pet. (Dkt. 1).) Petitioner challenges
his state conviction on several grounds: he alleges that the
evidence was not legally sufficient to convict, that the
state prosecution's (the "Prosecution's")
summation was improper, and that his Confrontation Clause
rights were violated. He later sought to add an additional
claim of ineffective assistance of counsel (the "Motion
to Amend"). (Pet'r Jan. 13, 2017, Reply to Ct. Order
("Pet'r Mot. to Am.") (Dkt. 21).) For the
reasons set forth below, the Motion to Amend is DENIED and
the Petition is DISMISSED.
Petitioner's Conviction and Sentencing
22, 2011, Petitioner was convicted of manslaughter in the
first degree and criminal possession of a weapon in the
second degree. (Ross Aff. in Opp'n to Pet. (Dkt. 7 at ECF
p.1) ¶ 8.) On August 17, 2011, the New York State
Supreme Court (the "State Trial Court") sentenced
Petitioner to 25 years' imprisonment with 5 years of
post-release supervision on the manslaughter count, to run
concurrently with a 10-year term of imprisonment with 5 years
of post-release supervision on the weapon possession count.
(Id. ¶ 9.)
Petitioner's Direct Appeal
appealed his conviction and raised three claims: (1) the
Prosecution failed to establish Petitioner's guilt of
manslaughter beyond a reasonable doubt, and moreover, the
verdict was against the weight of the evidence; (2) the
Prosecution's improper summation denied Petitioner a fair
trial; and (3) Petitioner's Confrontation Clause rights
were violated by the admission of testimony of a medical
examiner who did not personally prepare the decedent's
autopsy report, and also by the admission of the entire
autopsy report, which allegedly contained opinion testimony.
(See Herb Br. on Direct Appeal (Dkt. 7-2 at ECF p.2).)
York Appellate Division, Second Department, affirmed
Petitioner's conviction. The Appellate Division found
that Petitioner failed to preserve his first two claims for
appellate review. People v. Herb, 110 A.D.3d 829,
830-31 (N.Y.App.Div. 2013) ("Herb I"). The court
also rejected both of these claims on the merits, finding
that "two main prosecution witnesses afforded a credible
foundation upon which the jury could find the defendant
guilty of manslaughter in the first degree, "
Id. at 830, and finding no error-or, at worst,
harmless error- in the Prosecution's summation,
Id. at 831.
Petitioner's Confrontation Clause claims, the court noted
that Petitioner had presented two distinct arguments, but
found that neither entitled him to relief. The court found no
Sixth Amendment violation based on admission of the autopsy
report through the testimony of a witness who did not prepare
the report, "since the defendant was afforded full
cross-examination of the testifying expert witness."
Id. Petitioner also argued that the report
author's "opinion concerning the cause and manner of
the decedent's death constituted testimonial evidence,
" and that "admission of the unredacted report into
evidence [thus] deprived [Petitioner] of his right to
confront a witness against him." Id. at 830-31.
The court found that this claim was unpreserved for appellate
review, and further, that "any error... was harmless
beyond a reasonable doubt" because "the evidence of
the [Petitioner's] guilt, without reference to any error
in [the report's] admission, was overwhelming."
Id. at 831.
December 31, 2013, the New York Court of Appeals denied
Petitioner's application for leave to appeal. People
v. Herb, 4 N.E.3d 387 (N.Y. 2013) ("Herb II").
Federal Habeas Petition and State Coram Nobis Petition
17, 2014, Petitioner timely filed the instant habeas
petition. (Pet.) The Petition restates the three claims he
raised on direct appeal. On April 30, 2015, Petitioner filed
a writ of error coram nobis in state court (the "Coram
Nobis Petition"), claiming that he had received
ineffective assistance of appellate counsel. (Verified Coram
Nobis Pet. (Dkt. 14-1).) On January 13, 2017, Petitioner
wrote to this court seeking to amend his Petition to include
the ineffective assistance claim first raised in his Coram
Nobis Petition. (Pef r Mot. to Am.)
STANDARDS FOR STATE HABEAS PETITIONS
courts are empowered to review an application for a writ of
habeas corpus on behalf of a person in state custody only
insofar as the petition asserts violations of the United
States Constitution or other federal law. 28 U.S.C. §
2254(a). A state habeas petitioner must generally meet three
requirements to obtain relief: (1) exhaustion and timeliness;
(2) lack of a procedural bar; and (3) satisfaction of the
deferential standard of review under the Antiterrorism and
Effective Death Penalty Act ("AEDPA"), Pub. L. No.
104-132, 110 Stat 1214 (1996).
Exhaustion and Timeliness
habeas petition "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)(1).
To satisfy that requirement, "the petitioner must have
informed the state court of both the factual and the legal
premises of the claim he asserts in federal court."
Rush v. Lempke, 500 F.App'x 12, 14 (2d Cir.
2012) (summary order) (quoting Dave v. Attorney
Gen., 696 F.2d 186, 191 (2d Cir. 1982) (en banc)). In New
York, a defendant satisfies the exhaustion requirement by
appealing the conviction to the Appellate Division "and
then seeking leave to appeal to the New York Court of
Appeals." Chrysler v. Guiney, 806 F.3d 104, 117
(2d Cir. 2015) (internal citation omitted).
further imposes a one-year statute of limitations, which
requires habeas petitioners to file their habeas claims
within one year of the state judgment becoming
"final." 28 U.S.C. § 2244(d)(1). The
limitations period does not begin to run "until the
completion of direct appellate review in the state court
system and either the completion of certiorari proceedings in
the United States Supreme Court, or-if the prisoner elects
not to file a petition for certiorari-the time to seek direct
review via certiorari has expired." Williams v.
Artuz, 237 F.3d 147, 151 (2d Cir. 2001). If the
defendant does not "petition the Supreme Court for
certiorari, " the judgment "bec[omes] final 90 days
later." Fuller v. United States, 815 F.3d 112,
federal habeas court... may not review a related state court
decision if that decision rests on a state law ground that is
'independent of the federal question and adequate to
support the judgment.'" Fulton v. Graham,
802 F.3d 257, 262 (2d Cir. 2015) (quoting Cone v.
Bell, 556 U.S. 449, 465 (2009)). "This prudential
rule applies 'whether the state law ground is substantive
or procedural.'" Id. (quoting Coleman
v. Thompson. 501 U.S. 722, 729 (1991)).
state court reached the merits of a federal claim asserted in
a Section 2254 habeas petition, AEDPA requires the federal
habeas court to apply a highly deferential standard of
review. Habeas relief may only be granted if the state
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that 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).
words "clearly established federal law" refer to
"the holdings, as opposed to the dicta, of the Supreme
Court's decisions as of the time of the relevant
state-court decision." Howard v. Walker, 406
F.3d 114, 122 (2d Cir. 2005). The central question is
"not whether the state court was incorrect or erroneous
in rejecting petitioner's claim, but whether it was
objectively unreasonable in doing so." Ryan v.
Miller, 303 F.3d 231, 245 (2d Cir. 2002) (internal
quotation marks, alterations, and emphases omitted).
regard to the state court's factual determinations,
"a federal court is required to presume that a state
court's factual findings are correct and to place on the
petitioner the burden of rebutting this presumption by clear
and convincing ...