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Nelson v. Perez

United States District Court, E.D. New York

March 2, 2018

RACCA NELSON, Petitioner,
ADA PEREZ, Respondent.


          BRIAN M COGAN U.S.D.J.

         Petitioner seeks habeas corpus relief pursuant to 28 U.S.C. § 2254 from his state court conviction on one count of second degree murder and two counts of attempted second degree murder. The facts will be set forth below as they relate to each of petitioner's points of error, but to summarize, petitioner shot one person to death, Eddie Toledo, and wounded two others, Lonnie Jennett and Steven Ortiz, in a turf battle for control of a particular street corner on which both petitioner and Jennett wanted to sell drugs. Petitioner fled after the shooting and was not apprehended for two years.

         Petitioner was sentenced to 25 years on the murder count and 20 years on each of the attempted murder counts, each to run consecutively for a total of 65 years. The Appellate Division modified the sentence on direct appeal so that the sentences on the attempted murder counts would run concurrently with each other, although still consecutively to the sentence on the murder count, for a total of 45 years. People v. Nelson, 112 A.D.3d 744, 976 N.Y.S.2d 224 (2nd Dep't 2013), leave to app. denied, 22 N.Y.3d 1140, 983 N.Y.S.2d 499 (2014) (table).

         Petitioner raises four points of error in his habeas corpus petition: (1) there was insufficient evidence of intent to kill to sustain the convictions; (2) the trial court improperly admitted certain written notes and entries by petitioner that tended to show consciousness of guilt; (3) trial counsel was constitutionally ineffective for failing to object to the prosecutor's summation; and (4) the trial court abused its discretion in sentencing him to consecutive sentences on the murder and attempted murder counts. As shown below, each of these points is either procedurally barred or without merit, and the petition is accordingly denied.

         I. Sufficiency of the Evidence

         The Appellate Division rejected plaintiff's claim as to the sufficiency of the evidence, holding that the claim was “unpreserved for appellate review. In any event, viewing the evidence in the light most favorable to the prosecution, we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.” Id. at 745, 976 N.Y.S.2d at 225 (citations omitted). Petitioner had conceded on direct appeal that his claim was unpreserved, but had asked the Court to reach it under its “interest of justice” jurisdiction.

         Petitioner's concession, and the Appellate Division's holding, that this claim was “unpreserved for appellate review” erects a procedural bar prohibiting review in this Court. A federal court should not address the merits of a petitioner's habeas claim if a state court has rejected the claim on “a state law ground that is independent of the federal question and adequate to support the judgment.” Lee v. Kemna, 534 U.S. 362, 375 (2002) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)) (emphasis omitted). When a state court rejects a petitioner's claim because he failed to comply with a state procedural rule, the procedural bar may constitute an adequate and independent ground for the state court's decision. See, e.g., Coleman, 501 U.S. at 729-30; Murden v. Artuz, 497 F.3d 178, 193 (2d Cir. 2007). State procedural grounds are only adequate to support the judgment and foreclose federal review if they are “firmly established and regularly followed” in the state. Murden, 497 F.3d at 193 (quoting Monroe v. Kuhlman, 433 F.3d 236, 241 (2d Cir. 2006)).

         Further, if a state court rejects a specific claim on an adequate and independent state law ground, then a federal court should not review the merits of the claim, even if the state court addressed the merits of the claim in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) (“[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law.”).

         It is well settled that New York's contemporaneous objection rule, codified at N.Y. Crim. Proc. Law § 470.05(2), is an independent and adequate state law ground that ordinarily precludes federal habeas corpus review. See, e.g., Downs v. Lape, 657 F.3d 97, 104 (2d Cir. 2011). New York's contemporaneous objection rule provides that a party seeking to preserve a claim of error at trial must lodge a protest to the objectionable ruling “at the time of such ruling . . . or at any subsequent time when the [trial] court had an opportunity of effectively changing the same.” N.Y. Crim. Proc. Law § 470.05(2). This rule has been interpreted by the New York courts to require, “at the very least, that any matter which a party wishes” to preserve for appellate review be “brought to the attention of the trial court at a time and in a way that gave [it] the opportunity to remedy the problem and thereby avert reversible error.” People v. Luperon, 85 N.Y.2d 71, 78, 623 N.Y.S.2d 735, 739 (1995); see also People v. Hicks, 6 N.Y.3d 737, 810 N.Y.S.2d 396 (2005).

         Once it is determined that a claim is procedurally barred under state procedural rules, however, a federal court may still review such a claim on the merits if the petitioner can demonstrate both cause for the default and prejudice resulting therefrom, or if he can demonstrate that the failure to consider the claim will result in a miscarriage of justice. See Coleman, 501 U.S. at 750; Harris, 489 U.S. at 262. The latter avenue, a miscarriage of justice, is demonstrated in extraordinary cases, such as where a constitutional violation results in the conviction of an individual who is actually innocent. See Murray v. Carrier, 477 U.S. 478, 496 (1986).

         The first avenue, cause for the default and prejudice therefrom, can be demonstrated with “a showing that … the procedural default is the result of ineffective assistance of counsel.” Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994) (quoting Murray, 477 U.S. at 488) (alteration in original). However, the ineffective assistance claim must itself have been exhausted in the state court. Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000). To adequately exhaust a claim, a petitioner must have “fairly presented” the claim to the state court. Daye v. Attorney Gen. of State of N.Y., 696 F.2d 186, 191 (2d Cir. 1982).

         Although petitioner raised various ineffective assistance of trial counsel claims, either on direct appeal or in his C.P.L. §440.10 proceeding, he never contended that his trial counsel was ineffective for failing to preserve the point that the evidence was not sufficient to show intent to kill. He therefore cannot rely on ineffective assistance of counsel to avoid the procedural bar. See Edwards, 529 U.S. at 451-52.

         Nor is there any miscarriage of justice in applying the procedural bar. One reason petitioner's counsel on direct appeal may not have raised ineffective assistance of trial counsel as to this claim was because her argument was directed almost entirely to her associated point that the verdict was against the weight of the evidence, an issue which is not reviewable on federal habeas corpus review. See Mobley v. Kirkpatrick, 778 F.Supp.2d 291, 311 (W.D.N.Y. 2011) (“Federal courts routinely dismiss claims attacking a verdict as against the weight of the evidence on the basis that they are not federal constitutional issues cognizable in a habeas proceeding.”) (citing, inter alia, Ex parte Craig, 282 F. 138, 148 (2d Cir. 1922) (holding that “a writ of habeas corpus cannot be used to review the weight of evidence. . . .”)); Correa v. Duncan, 172 F.Supp.2d 378, 381 (E.D.N.Y. 2001) (“A weight of the evidence argument is a pure state law claim grounded in New York Criminal Procedure Law § 470.15(5), whereas a legal sufficiency claim is based on federal due process principles. . . . Accordingly, the Court is precluded from considering the claim.”) (internal quotation marks and citations omitted).

         That, in turn, may have been because the evidence clearly presented a jury issue. Ortiz and Jennett both testified that they had seen petitioner with a gun during the shooting. Ortiz testified that petitioner said to Jennett, after being unable to persuade him to yield the street corner, “We might as well go to war, ” and petitioner started firing the gun shortly after that. Ortiz also testified that petitioner ran from the scene after the shooting, and the evidence showed that petitioner never ...

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