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McCray v. Capra

United States District Court, N.D. New York

August 31, 2017

TERENCE SANDY MCCRAY, Petitioner,
v.
MICHAEL CAPRA, Superintendent, Sing Sing Correctional Facility, Respondent.

          MEMORANDUM DECISION AND ORDER [RE: APPOINTMENT OF COUNSEL]

          JAMES K. SINGLETON, JR. SENIOR UNITED STATES DISTRICT JUDGE.

         Terrence Sandy McCray, a New York state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. McCray is in the custody of the New York State Department of Corrections and Community Supervision and incarcerated at Sing Sing Correctional Facility. Respondent has answered the Petition, and McCray has replied.

         I. BACKGROUND/PRIOR PROCEEDINGS

         On June 3, 2009, McCray was charged with rape in the first degree in an indictment alleging that he had engaged in sexual intercourse with the victim by forcible compulsion. On direct appeal of his conviction, the Appellate Division of the New York Supreme Court recounted the following facts underlying the charges against McCray and the evidence presented at trial:

Many details are undisputed. [McCray], then 40 years old, first met the victim-an 18-year-old woman with an extensive history of psychiatric problems-at a bus stop in the City of Albany in April 2009. They talked extensively about various topics, including sex, while walking together until they eventually visited a recreational vehicle that belonged to a friend of [McCray]. The victim testified that, while inside the vehicle, [McCray] gave the victim a back massage, but nothing else happened of an intimate nature. [McCray's] version of these events differed only in that he testified that, following the massage, the victim engaged in oral sex with him. Upon parting that night, the victim gave [McCray] her telephone number and they spoke on the telephone a few times in the weeks ahead. On May 26, 2009, [McCray] called the victim and invited her out for the evening. The victim's mother drove her to [McCray's] residence, where the victim met members of [McCray's] family, and she then dropped the pair off on Lark Street. They walked around for a while and stopped at the home of [McCray's] friend, Marvin Calhoun, where they visited with Calhoun and his family. The victim admits that she exchanged sexual innuendos with [McCray] during this visit. After a few hours, the couple left, ending up at the apartment of another one of [McCray's] friends, Kevin Johnson, where they engaged in consensual kissing and fondling.
It is at this point that the testimony of [McCray] and the victim sharply diverges. The victim testified that after about 15 minutes, [McCray] wanted to have intercourse but she refused, telling him it was too soon in their relationship. When [McCray] continued to insist, she became angry with him and left the apartment. [McCray] caught up with her on a street outside the apartment and apologized to her. She stated that they continued to argue while they walked, but that she tired of walking so they sat down. The victim stated that, while seated, they witnessed police officers draw their weapons on a young female with a baseball bat. She explained that this incident made both her and [McCray] laugh, and she no longer felt angry with him.
[McCray] testified that the victim had unsuccessfully asked Calhoun if they could use a bedroom to have sex while visiting Calhoun's family and, once at Johnson's apartment, she initiated sex and it was he who refused to have intercourse there because he thought it was not appropriate to have sex on the couch with his friend in the next room. He testified that they left the apartment together in search of another place to have sex, and that the victim was willing even to have sex outside in the bushes. [McCray] further stated that the victim was not angry with him when they left Johnson's apartment and that they never witnessed the police encounter with the female with the baseball bat.
By both accounts, the couple eventually ended up at an abandoned house located at 595 Clinton Avenue in Albany, where the victim followed [McCray] through the backyard into the house. At this point, the accounts of the victim and [McCray] again diverge. The victim testified that [McCray] backed her up against a wall and started to forcibly kiss and grind against her. She testified that she pushed him away and told him to stop, but that he continued, telling her, “You are going to give it to me or I'm going to take it.” The victim stated that they struggled; she punched [McCray] in the face, near his jaw or chin, and [McCray] hit her in the face several times and choked her. While he was choking her from behind, the victim testified, she was able to bite his forearm. After an extended struggle, during which the victim tried to make noise to draw attention and begged for her life, she gave up and submitted to sexual intercourse with [McCray]. The victim stated that, when it was over, [McCray] did not prevent her from leaving, but told her, “Don't go out there looking like that.” The victim stated that she wiped the tears and blood off of her face onto her shirt, then went out the same way they had entered. She further testified that she got caught on a fence while trying to leave, and ripped her shirt. She came upon a pay telephone and called 911. Police officers arrived and she was brought to the hospital for examination. The victim's torn shirt and photographs of her bruised face were admitted in evidence at trial.
By contrast, [McCray] testified that the couple had consensual intercourse once inside the abandoned building. He explained that after they were through and he asked the victim if she wanted to go home, she suddenly demanded money from him and, when he refused, grabbed his pants and began to leave. [McCray] stated that he then tackled the victim to prevent her from leaving and her face struck the floor as they fell. They then struggled as he attempted to pry his money-which the victim had by then extracted from the pocket of his pants-from her hand and, during the struggle, she bit his arm. According to [McCray], he eventually managed to squeeze the victim's hand open and retrieve his cash, at which point the victim got up and left the building.
[McCray] then went to the home of his friend, James Close, where, according to Close, he pounded on the door, yelling for admittance. Close testified that [McCray] looked like he was being chased by someone and implied that he wanted to come inside because there was a female outside who was exposing herself to [McCray]. [McCray] testified that he went to Close's house because he wanted to tell him about his encounter with the victim but, suddenly realizing that the abandoned house he had been trespassing in might belong to Close, changed his mind and left. He explained that he might have referred to the victim as “the girl [who] lifted her shirt up on Central Avenue that time” because he had told Close about his first meeting with the victim and that she had exposed herself on the street that night to some passers-by.

People v. McCray, 958 N.Y.S.2d 511, 514-16 (N.Y.App.Div. 2013).

         McCray filed a pre-trial discovery demand seeking medical, psychiatric, and related medical records of each prosecution witness on the ground that such information could bear on testimonial capacity, memory, or credibility. At a court appearance on August 27, 2009, the prosecutor appeared before the court and indicated that she had disclosed to the defense information related to the victim's mental health history. The prosecutor further stated that there were three prior incidents in which the victim had alleged sexual assault; she had reported only one of those to the police. Defense counsel asked the trial court to require the People to disclose all of the victim's mental health records. The trial court ordered the People to obtain the records and to submit the records to the court for in camera review.

         On November 4, 2009, the court informed the parties that it had reviewed the psychiatric records and would disclose to the defense those records that would relate to fabricating or misperceiving events or that showed delusional behavior on the part of the victim. On December 17, 2009, the court released to the defense 28 pages from the thousands of documents submitted for in camera review.

         At the conclusion of trial, the jury convicted McCray of first-degree rape as charged. The court subsequently sentenced him as a second felony offender to a determinate imprisonment term of 22 years to be followed by 5 years of post-release supervision.

         Through counsel, McCray appealed his conviction, arguing that: 1) the verdict was against the weight of the evidence; 2) the victim's statements that McCray raped her were improperly admitted as bolstering evidence and the lack of accompanying limiting instructions mandated reversal; 3) the trial court erred in refusing to turn over all of the victim's mental health records; 4) the trial court improperly prevented him from establishing that the victim was diagnosed as “hypersexual;” 5) the trial court erred in sustaining objections to questions regarding various acts that the victim had committed; 6) McCray was entitled to medical records of the victim's hospitalization for overdosing six months after the rape; 7) trial counsel was ineffective for failing to challenge the voluntariness of McCray's statements to the police; and 8) his sentence was harsh and excessive. McCray also submitted a pro se supplemental brief in which he argued that evidence of his prior uncharged crimes were improperly introduced and admitted. The Appellate Division affirmed the judgment against McCray in a reasoned, divided opinion issued on January 17, 2013. McCray, 958 N.Y.S.3d at 528. Two justices dissented, stating their belief upon review of the undisclosed medical records that, “[b]y not disclosing [the complainant's medical] records, County Court deprived [McCray] of the ability to fully prepare his defense, in violation of his 6th Amendment rights to confront and cross-examine the key adverse witness.” Id. at 527 (McCarthy, J., dissenting).

         McCray sought leave to appeal to the New York Court of Appeals on all issues unsuccessfully raised before the Appellate Division. The Court of Appeals granted McCray leave to appeal on March 5, 2013. In his counseled appeal, McCray argued that: 1) the trial court violated McCray's rights to confrontation and due process by refusing to provide the defense with all of the victim's mental health records that were potentially relevant to her credibility; 2) the trial court failed to review the records of the victim's 2009 hospitalization records and disclose them to the defense; 3) trial counsel was ineffective for failing to object to the bolstering evidence and seek a limiting instruction from the court; 4) the trial court improperly precluded the defense from questioning the victim about a diagnosis that she was hypersexual; and 5) the trial court improperly prohibited McCray from eliciting from the victim and her mother evidence about the victim's erratic and unstable behavior. By pro se supplemental brief, McCray re-asserted his Appellate Division claims. On May 1, 2014, the Court of Appeals affirmed the order of the Appellate Division in another divided opinion that also indicates that the Court of Appeals performed its own review of the undisclosed records. People v. McCray, 12 N.E.3d 1079, 1083 (N.Y. 2014). Three judges dissented on the ground that the trial court abused its discretion by “[t]he denial of additional medical records providing evidence that could serve as a basis for the jury to disbelieve the complainant's version.” Id. (Rivera, J., dissenting). McCray moved for reargument in the Court of Appeals, which was denied without comment on September 18, 2014. People v. McCray, 18 N.E.3d 947, 947 (N.Y. 2014).

         McCray then timely filed a pro se Petition for a Writ of Habeas Corpus to this Court on September 15, 2015. See 28 U.S.C. § 2244(d)(1)(A).

         II. GROUNDS RAISED

         In his pro se Petition before this Court, McCray raises the following claims: 1) he is actually innocent of the crime; 2) he was subjected to an unlawful search and seizure; 3) his statement to police was involuntary and should have been suppressed; 4) the trial court violated his due process rights by refusing to provide the defense with all of the victim's mental health records that were potentially relevant to her credibility; 5) his conviction should be reversed because of various defects in the grand jury proceedings; 6) his speedy trial rights were violated; 7) trial counsel was ineffective in a variety of ways; 8) the trial court violated his right to confrontation by limiting his cross-examination of the victim and her mother; and 9) his sentence was harsh and excessive and vindictively imposed.

         III. STANDARD OF REVIEW

         Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, ” § 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that contradicts controlling Supreme Court authority or “if the state court confronts a set of facts that are materially indistinguishable from a decision” of the Supreme Court, but nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).

         To the extent that the Petition raises issues of the proper application of state law, they are beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was correctly applied). It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (a federal habeas court cannot reexamine a state court's interpretation and application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002).

         In applying these standards on habeas review, this Court reviews the “last reasoned decision” by the state court. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991); Jones v. Stinson, 229 F.3d 112, 118 (2d Cir. 2000). Where there is no reasoned decision of the state court addressing the ground or grounds raised on the merits and no independent state grounds exist for not addressing those grounds, this Court must decide the issues de novo on the record before it. See Dolphy v. Mantello, 552 F.3d 236, 239-40 (2d Cir. 2009) (citing Spears v. Greiner, 459 F.3d 200, 203 (2d Cir. 2006)); cf. Wiggins v. Smith, 539 U.S. 510, 530-31 (2003) (applying a de novo standard to a federal claim not reached by the state court). In so doing, the Court presumes that the state court decided the claim on the merits and the decision rested on federal grounds. See Coleman v. Thompson, 501 U.S. 722, 740 (1991); Harris v. Reed, 489 U.S. 255, 263 (1989); see also Jimenez v. Walker, 458 F.3d 130, 140 (2d Cir. 2006) (explaining the Harris-Coleman interplay); Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 810-11 (2d Cir. 2000) (same). This Court gives the presumed decision of the state court the same AEDPA deference that it would give a reasoned decision of the state court. Harrington v. Richter, 131 S.Ct. 770, 784-85 (2011) (rejecting the argument that a summary disposition was not entitled to § 2254(d) deference); Jimenez, 458 F.3d at 145-46. Under the AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

         IV. DISCUSSION

         Ground 1. Actual Innocence

         McCray first argues that he is actually innocent of the crime for which he was convicted. While a federal habeas petitioner may assert a claim of actual innocence to overcome a procedural bar to review, Schlup, 513 U.S. at 326, or to overcome the AEDPA's one-year statute of limitations, McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 (2013), the Supreme Court has not resolved whether a non-capital prisoner may be entitled to habeas relief based on a freestanding claim of actual innocence, McQuiggin, 133 S.Ct. at 1931; see House v. Bell, 547 U.S. 518, 554-55 (2006); Dist. Attorney's Office v. Osborne, 557 U.S. 52, 71-72 (2009). The Supreme Court has instead declined to answer the question, noting that where a “[p]etitioner has failed to make a persuasive showing of actual innocence[, ] . . . the Court has no reason to pass on, and appropriately reserves, the question whether federal courts may entertain convincing claims of actual innocence.” Herrera v. Collins, 506 U.S. 390, 427 (1993) (O'Connor, J., concurring). Although the Second Circuit has also not ruled on whether a claim of actual innocence is cognizable on habeas review, see Friedman v. Rehal, 618 F.3d 142, 159 (2d Cir. 2010) (citing Osborne, 557 U.S. at 71, and noting that whether an actual innocence claim is cognizable is an open question), it has “come close” to granting habeas relief on grounds of actual innocence, see DiMattina v. United States, 949 F.Supp.2d 387, 417 (E.D.N.Y. 2013) (citing cases).

         Assuming, but not deciding, that a freestanding actual innocence claim is cognizable in a § 2254 proceeding, the Supreme Court has described the threshold showing of evidence as “extraordinarily high.” Herrera, 506 U.S. at 417. “The sequence of the Court's decisions in Herrara and Schlup-first leaving unresolved the status of freestanding claims and then establishing the gateway standard-implies at the least that Herrara requires more convincing proof of innocence than Schlup.” House, 547 U.S. at 555.

         Measured against this standard, McCray has fallen short of establishing his actual innocence. In support of this claim, McCray alleges that “the complaining witness falsely accused [him] of sexually assaulting her.” But he points to no evidence that exonerates him of the crime, but rather challenges the credibility and value of the evidence against him. Construed liberally, Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), the Petition therefore argues that the evidence against him is legally insufficient to sustain his convictions. As articulated by the Supreme Court in Jackson, the constitutional standard for sufficiency of the evidence is whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in the original); see McDaniel v. Brown, 558 U.S. 120, 132-33 (2010) (reaffirming this standard). This Court must therefore determine whether the New York court unreasonably applied Jackson. In making this determination, this Court may not usurp the role of the finder of fact by considering how it would have resolved any conflicts in the evidence, made the inferences, or considered the evidence at trial. Jackson, 443 U.S. at 318-19. Rather, when “faced with a record of historical facts that supports conflicting inferences, ” this Court “must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and defer to that resolution.” Id. at 326.

         It is a fundamental precept of dual federalism that the States possess primary authority for defining and enforcing the criminal law. See Engle v. Isaac, 456 U.S. 107, 128 (1982). Consequently, although the sufficiency of the evidence review by this Court is grounded in the Fourteenth Amendment, it must take its inquiry by reference to the elements of the crime as set forth in state law. Jackson, 443 U.S. at 324 n.16. A fundamental principle of our federal system is “that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.” Bradshaw, 546 U.S. at 76; see West v. AT&T, 311 U.S. 223, 236 (1940) (“[T]he highest court of the state is the final arbiter of what is state law. When it has spoken, its pronouncement is to be accepted by federal courts as defining state law . . . .”). “Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension.” Sanchez-Llamas v. Oregon, 548 U.S. 331, 345 (2006) (quoting Smith v. Philips, 455 U.S. 209, 221 (1982)) (internal quotation marks omitted).

         Here, McCray attacks the value of the evidence against him, primarily claiming that the evidence against him was unlawfully obtained and the witness lacks credibility. But, as discussed with respect to Grounds 2 and 3, infra, the state courts' determination that the evidence was lawfully obtained and thus admissible was both reasonable and fully supported by the record. Likewise, this Court is precluded from either re-weighing the evidence or assessing the credibility of witnesses. See Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996) (dismissing habeas claim because “assessments of the weight of the evidence or the credibility of witnesses are for the jury and not grounds for reversal on appeal” and deferring to the jury's assessments of the particular weight to be accorded to the evidence and the credibility of witnesses). Under Jackson, this Court's role is simply to determine whether there is any evidence, if accepted as credible by the trier of fact, sufficient to sustain the conviction. See Schlup v. Delo, 513 U.S. 298, 330 (1995). In this case, the victim testified that McCray forcibly engaged in sexual intercourse with her. Although she was the sole witness to the crime, “the testimony of a single, uncorroborated eyewitness is generally sufficient to support a conviction.” United States v. Danzey, 594 F.2d 905, 916 (2d Cir. 1979). Indeed, evidence corroborated other portions of her testimony. The evidence presented at trial was thus sufficient to support McCray's conviction, particularly given the deference required under Jackson. Accordingly, McCray is not entitled to relief on this ground in any event.

         Ground 2. Unlawful Search and Seizure

         McCray next contends that his Fourth Amendment[1] rights were violated by his unlawful arrest and that the evidence obtained pursuant to that arrest, including his statement to law enforcement and his DNA samples, should have been suppressed. But such claim is foreclosed by the Supreme Court's decision in Stone v. Powell, 428 U.S. 465 (1976). Under Stone, “where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, ” federal habeas corpus relief will not lie for a claim that evidence recovered through an illegal search or seizure was introduced at trial. Id. at 482. The Stone v. Powell doctrine applies to all Fourth Amendment claims, including claims of illegal stops, arrests, searches, or seizures based on less than probable cause, and it applies regardless of the nature of the evidence sought to be suppressed. Cardwell v. Taylor, 461 U.S. 571, 572-73 (1983) (per curiam).

         The Second Circuit has made clear that all Stone requires is that the State provide a petitioner the opportunity to litigate his Fourth Amendment claim. See McPhail v. Warden, Attica Corr. Facility, 707 F.2d 67, 69-70 (2d Cir. 1983). In order to receive habeas review of a Fourth Amendment claim, a petitioner must demonstrate either that the State failed to provide any “corrective procedures” by which Fourth Amendment claims could be litigated, or that the State had such procedures in place but that the petitioner was unable to avail himself of those procedures “because of an unconscionable breakdown in the underlying process.” Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992). A “mere disagreement with the outcome of a state court ruling is not the equivalent of an unconscionable breakdown in the state's corrective process, ” and thus is insufficient to give this Court authority to review Fourth Amendment claims. Id. at 72. That New York has in place such procedures is well-settled. See Id. at 70 & n.1. McCray has not asserted the ...


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