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Conroy v. Racette

United States District Court, E.D. New York

July 6, 2017


          Jeffrey Conroy Clinton Pro se petitioner

          Glenn D. Green Attorney for respondent


          Joan M. Azrack United States District Judge

         On April 19, 2010, Jeffrey Conroy was convicted in Suffolk County Supreme Court of manslaughter in the first degree as a hate crime, gang assault in the first degree, conspiracy in the fourth degree, and three counts of attempted assault in the second degree as a hate crime.[1] On May 26, 2010, Conroy was sentenced to a determinate period of imprisonment of twenty-five years with two and one-half years of post-release supervision on the manslaughter count and to lesser sentences on the other charges, with all sentences to run concurrently.

         Before the Court is Conroy's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (See Petition for Writ of Habeas Corpus (“Pet.”), ECF No. 1.) The petition advances a number of arguments, all of which were exhausted and adjudicated on the merits on direct appeal in state court. For the reasons below, the Court finds that the state court's decisions were not contrary to clearly established federal law, did not involve an unreasonable application of clearly established federal law, and were not based on an unreasonable determination of the facts. The Court thus denies the instant petition in its entirety.

         I. BACKGROUND

         A. Factual Background

         Petitioner was charged under two separate indictments along with six co-defendants: Jordan Dasch, Anthony Hartford, Nicholas Hausch, Christopher Overton, Jose Pacheco, and Kevin Shea. Each of petitioner's co-defendants pleaded guilty, and Hausch testified against petitioner at trial.

         The indictments charging petitioner concerned two distinct incidents, and the Court sets out the facts underlying each of those indictments separately.

         1. November 3, 2008

         The first incident occurred on November 3, 2008, when Octavio Cordovo and Adrian Costillo were attacked near a gas station in Medford, New York. (See Trial Transcript (“Tr.”) 2537-2545, ECF Nos. 10-7-10-13.) As Cordovo and Costillo were walking towards the gas station, they passed two young men-a white man wearing a white t-shirt, and a black man wearing a gray sweatshirt. (Id. at 2541.) The two young men asked Cordovo and Costillo if they had cigarettes, and Costillo told them that they did not. (Id. at 2543.) The two young men then attacked Cordovo and Costillo, and the “white guy” ultimately rendered Cordovo unconscious. (Id. at 2544.)

         Shortly thereafter, Vincent Martino, a bystander, found Cordovo laying in the street near the gas station. (Id. at 2562.) Martino observed a “white male and a black Hispanic male” standing over Cordovo. (Id. at 2512-15, 2563.) Martino approached and called out to the two young men, at which time they ran away. (Id. at 2563-64.) Martino pursued the two young men and eventually caught up to them at the same time that a police patrol car arrived. (Id. at 2564- 67.) Martino grabbed the young men and pushed them against the car. (Id. at 2567, 2574.) The police detained the two young men and identified them as petitioner and Jose Pacheco, a co-defendant. (Id. at 2515-21.) While the officers were questioning petitioner, Pacheco, Cordovo, and Martino, four young women approached and began “screaming” at the officers, saying that petitioner and Pacheco “didn't do it.” (Id. at 2516.) When it became clear that Cordovo was refusing either to cooperate or to press changes, the police released both petitioner and Pacheco. (Id. at 2521-22.)

         2. November 8, 2008

         The second incident occurred on November 8, 2008. On that evening, petitioner met a large group of acquaintances at the Medford train station. (Id. at 3223.) Jason Moran, an uncharged member of the group, testified that the group discussed the fact that “someone jumped a Mexican earlier that day.”[2] (Id. at 1638.) The group later travelled to Southaven Park in Medford, where Moran testified that petitioner and other members of the group planned to “beat a Mexican” in Patchogue later that evening. (Id. at 1645-48.)

         There is some evidence that petitioner did not want to go to Patchogue with the group because he did not want to get into trouble, and that he instead wanted either to go to a party or to go home. (Id. at 2471-74.) Petitioner did not, however, go home; instead, the group drove to Patchogue where they encountered Hector Sierra walking on the side of the road. (Id. at 2983- 84, 2303-04.) Some of the members of the group-apparently including petitioner-exited the vehicle to chase Sierra, but Sierra escaped without sustaining any serious physical injuries. (Id. at 2304-05, 2883). The group then returned to the vehicle and drove away. (Id. at 2306-07.)

         After the group parked their vehicle, they walked onto Railroad Avenue and encountered Angel Loja and Marcelo Lucero, two Hispanic men. (Id. at 2308-09.) The group began shouting racial epithets at Loja and Lucero, although there is some ambiguity concerning precisely which epithets were shouted. Co-defendant Nicholas Hausch testified that the group was “calling them names like ‘beaners, ' [and] ‘Mexicans.'” (Id. at 2310-11.) At trial, Loja testified that the group called him and Lucero “fuckin' niggers, ” “fuckin' Mexicans, ” “fuckin' illegals, ” and “[f]ucking Spics.” (Id. at 2010.) In his prior written statement, however, Loja had stated that the group had called him and Lucero “niggers and fuckin' niggers, ” with no mention of the other epithets. (See id. at 2044.) In any event, the evidence at trial indicated that the group used at least some racial epithets and that a fight ensued.

         Hausch testified that Kevin Shea, another co-defendant, punched one of the men in the mouth and then began backing away. (Id. at 2311-12.) However, Loja testified that the group knocked Lucero to the ground and hit, punched, and kicked him. (Id. at 2013-14.) According to Loja, Lucero stood up, removed his jacket and belt, and then began waving the belt “around him, ” which caused the group to step back. (Id. at 2014-15.)

         Petitioner's own statements concerning the event are inconsistent. In a written statement made after he was arrested, petitioner said that, after Lucero began swinging the belt, petitioner ran “toward[s] him and stabbed him once in either his shoulder or chest.” (Id. at 2837.) Thereafter, he turned to Hausch and said, “Oh shit. I'm fucked. I stabbed him.” (Id.) At trial, however, petitioner testified that this written statement contained false information, and that co-defendant Christopher Overton-rather than petitioner-had stabbed Lucero. (Id. at 3251.) According to petitioner's testimony, Overton told him to take the blame because Overton did not want this incident to be used against him at his sentencing on a separate murder case from the previous year. (Id. at 3251-52.) Petitioner also testified that Overton assured him that he only had “nicked” Lucero in the shoulder and that Lucero was not seriously injured. (Id.)

         Hausch testified that he saw petitioner holding a bloody knife after the group left the scene of the altercation. (Id. at 2318.) Hausch further testified that the group told petitioner to throw the knife away, but petitioner did not do so and instead told the group that he had washed it off in a puddle. (Id.)

         At approximately midnight, a police officer arrived on the scene where Lucero had been stabbed and found Lucero lying on the ground in a pool of blood. (Id. at 1694-98.) Lucero's breathing was rapid and labored, and he was unable to communicate. (Id. at 1698-99.) The officer called for an ambulance and applied pressure to the hole in the side of Lucero's chest until emergency responders arrived. (Id. at 1513, 1697, 1700.) Despite their efforts, Lucero died at the hospital. (Id. at 2795.)

         Shortly after the incident, the group was stopped by another police officer. (Id. at 1769- 72.) The officer had received a broadcast description of possible suspects of the stabbing and so conducted a line-up of the members of the group, directing several police officers to pat them down. (Id. at 1773-74.) Loja was brought to the scene and identified the group members, who were then placed into custody. (Id. at 1774-76).

         When petitioner was handcuffed, he informed the police that he was carrying a knife. (Id. at 1804-05.) A police officer removed a black object from petitioner's underwear waistband and opened it to confirm that it was a folding pocket knife. (Id. at 1806.) The officer testified that he observed blood on the blade of the knife and that petitioner said “I stabbed him.” (Id. at 1807.) While in custody, petitioner told the police that he had found this black knife in a hotel room and had stabbed Lucero with it. (Id. at 2819.)

         On April 19, 2010, a jury found petitioner guilty of manslaughter in the first degree as a hate crime, gang assault in the first degree, conspiracy in the fourth degree, and three counts of attempted assault in the second degree as a hate crime. (Tr. 3969-71.) On May 26, 2010, petitioner was sentenced to a determinate period of imprisonment of twenty-five years with a period of two and one-half years of post-release supervision on the manslaughter count, an indeterminate period of imprisonment of one and one-third to four years on the conspiracy count, and an indeterminate period of imprisonment of two and one-third to seven years on each of the remaining counts. (Sentencing Transcript 93-95, ECF No. 10-14.) All of Conroy's sentences were to run concurrently. (Id.)

         B. Procedural Background

         Petitioner appealed his conviction and sentence to the Second Judicial Department of the Appellate Division, raising 11 separate arguments. (See Pet. 2.) On January 30, 2013, the Second Department affirmed petitioner's conviction, finding his arguments meritless. See People v. Conroy, 102 A.D.3d 979 (App Div. 2d Dep't 2013). Petitioner applied for leave to appeal to the New York State Court of Appeals, and his application was denied on July 16, 2013. See People v. Conroy, 21 N.Y.3d 1014 (N.Y. 2013). Petitioner's direct appeal became final on October 11, 2013, when his 90-day period within which to seek a writ of certiorari from the United States Supreme Court expired. See Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001). Conroy has not pursued post-conviction collateral relief at the state level.

         C. The Instant Petition

         On September 12, 2014, petitioner, now proceeding pro se, timely moved on nine separate grounds for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. All nine grounds had been raised and ruled upon in petitioner's direct appeal. Those grounds are as follows:

(1) That the trial court failed to respond meaningfully to a juror note requesting a read back of the cross-examination of Detective McLeer, one of the prosecution's key witnesses;
(2) That the trial court precluded petitioner from calling two detectives to explain the circumstances surrounding the creation of Loja's pre-trial statements;
(3) That the trial court denied defense counsel's application to redact “propensity evidence” contained in petitioner's written statement;
(4) That the prosecution elicited testimony that had been specifically precluded by the trial court, and the trial court denied defense counsel's motion to strike that prohibited testimony;
(5) That the trial court permitted black bunting to remain draped around defense table during a portion of the jury selection, while no similar bunting was draped around the prosecution table;
(6) That the trial court refused to charge the jury with the lesser included offenses of criminally negligent homicide and gang assault in the second degree;
(7) That the trial court improperly joined the two separate indictments against petitioner for trial;
(8) That the trial court precluded the jury from considering petitioner's descriptions of certain out-of-court statements by co-defendant Christopher Overton-who did not testify-for the truth of the matter asserted; and
(9) That the evidence presented to the jury was insufficient, as a matter of law, to convict petitioner beyond a reasonable doubt of every element of the crimes charged.

(Pet. 7-17; see also Affirmation and Memorandum of Law in Support of Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (“Pet. Mem.”), ECF No. 2.) Respondent opposed petitioner's application on November 7, 2014. (Respondent's Memorandum of Law, ECF No. 10-2.) The Court has fully considered all submissions of the parties.


         A. Standards of Review

         Congress enacted the Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996), to restrict “the power of federal courts to grant writs of habeas corpus to state prisoners.” Williams v. Taylor, 529 U.S. 362, 399 (2000) (O'Connor, J., concurring). Under AEDPA, a district court will “entertain an application for a writ of habeas corpus [on] behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). To make that showing, the petitioner must satisfy three hurdles: (1) the exhaustion of state remedies, (2) the absence of a procedural bar, and (3) the satisfaction of AEDPA's deferential review of state court decisions. See 28 U.S.C. § 2254.

         1. Exhaustion

         A court cannot review a habeas petition unless a petitioner “has exhausted the remedies available” in state courts. 28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement is designed to provide state courts with the “‘opportunity to pass upon and correct alleged violations of its prisoners' federal rights.'” Jackson v. Edwards, 404 F.3d 612, 619 (2d Cir. 2005) (quoting Pi card v. Connor, 404 U.S. 270, 275 (1971)). Therefore, a petitioner must show that he fairly presented his federal claim to the “highest state court capable of reviewing” that claim. Jackson v. Conway, 763 F.3d 115, 151 (2d Cir. 2014) (quoting Rosa v. McCray, 396 F.3d 210, 217 (2d Cir. 2005); see also Daye v. Att'y Gen. of N.Y., 696 F.2d 186, 190 n.3 (2d Cir. 1982) (en banc). Although the petitioner need not “‘cite chapter and verse of the Constitution in order to satisfy this requirement, ' he must tender his claim ‘in terms that are likely to alert the state courts to the claim's federal nature.'” Jackson, 763 F.3d at 133 (quoting Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011)).

         Here, petitioner raised the arguments underlying all nine of his proffered grounds for habeas relief on direct appeal to the Second Department and requested leave to appeal that decision to the Court of Appeals. (See Pet. 2-4; see also People v. Conroy, 102 A.D.3d 979 (App Div. 2d Dep't 2013); People v. Conroy, 21 N.Y.3d 1014 (N.Y. 2013).) Petitioner has thus satisfied the exhaustion requirement with respect to all of his grounds for relief.

         2. Procedural Default

         A federal court cannot review a habeas petition “when the state court's decision rests upon a state-law ground that ‘is independent of the federal question and adequate to support the judgment.'” Cone v. Bell, 556 U.S. 449, 465 (2009) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)). For this reason, under the doctrine of procedural default, a federal court will not review “the merits of claims, including constitutional claims, that a state court declined to hear because the petitioner failed to abide by a state procedural rule.” Martinez v. Ryan, 566 U.S. 1, 9 (2012). Rather, a federal habeas court can only review a state court decision if it qualifies as an adjudication on the merits. “‘Adjudicated on the merits' has a well settled meaning: a decision finally resolving the parties' claims, with res judicata effect, that is based on the substance of the claim advanced, rather than on a procedural, or other, ground.” Whitehead v. Haggett, No. 12-cv-04946, 2017 WL 491651, at *10 (E.D.N.Y. Feb. 6, 2017) (quoting Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001)). In order to constitute an “adjudication on the merits, ” however, a state court decision need not “explain[] its reasoning process.” Acosta v. Artuz, 575 F.3d 177, 189 n.5 (2d Cir. 2009) (quoting Sellan, 261 F.3d at 311). Rather, “when a state court fails to articulate the rationale underlying its rejection of a petitioner's claim, and when that rejection is on the merits, the federal court will focus its review on whether the state court's ultimate decision was an ‘unreasonable application' of clearly established Supreme Court precedent.” Sellan, 261 F.3d at 311-12. Thus, “a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim-even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.” Sellan, 261 F.3d at 312.

         Here, the Second Department adjudicated all of petitioner's claims on the merits by (a) providing an explicit rationale for its denial of petitioner's appeal based on the arguments for his first, second, sixth, seventh, and ninth grounds and (b) finding that petitioner's “remaining contentions”-which included the arguments for his third, fourth, fifth, and eighth grounds- “were without merit.” See People v. Conroy, 102 A.D.3d 979 (A.D.2d Dep't 2013). The Court of Appeals denied petitioner leave to appeal from that decision. The Second Department's decisions thus qualify as an “adjudication on the merits” and none of petitioner's grounds are procedurally barred.

         3. AEDPA Standard of Review

         Where a claim is both exhausted and not subject to a procedural bar, a federal court may review the merits of the state court decision on that issue, subject to the deferential standard set out by AEDPA. Under that standard, a federal court may grant a writ of habeas corpus only where the state court's adjudication of the claim either:

(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 ...

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