Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Herb v. Smith

United States District Court, E.D. New York

April 25, 2017

COREY HERB, Petitioner,
JOSEPH T. SMITH, Respondent.



         Petitioner 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.

         I. BACKGROUND

         A. Petitioner's Conviction and Sentencing

         On June 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.)

         B. Petitioner's Direct Appeal

         Petitioner 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).)

         The New 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.

         As for 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.

         On 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").

         C. The Federal Habeas Petition and State Coram Nobis Petition

         On July 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.)


         District 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).

         A. Exhaustion and Timeliness

         A state 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).

         AEDPA 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, 113(2016).

         B. Procedural Default

         "A 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)).

         C. AEDPA Deference

         If a 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 court's adjudication:

(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; or
(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).

         The 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).

         With 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.