United States District Court, E.D. New York
MEMORANDUM DECISION AND ORDER
M COGAN U.S.D.J.
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.
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).
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.
Sufficiency of the Evidence
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”
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.
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
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).
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).
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).
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.
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).
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 ...