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Silvestre v. Capra

United States District Court, S.D. New York

July 27, 2018

ROGER SILVESTRE, Plaintiff,
v.
MICHAEL CAPRA, Superintendent, Sing Sing Correctional Facility, Defendant.

          Hon. Katherine Polk Failla Mr. Roger Silvestre Sing Sing Correctional Facility Respondent's counsel

          OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

          KATHERINE POLK FAILLA, DISTRICT JUDGE.

         Pending before the Court is the June 25, 2018 Report and Recommendation from United States Magistrate Judge Debra C. Freeman (the “Report”) recommending that Petitioner Roger Silvestre's petition for habeas corpus relief under 28 U.S.C. § 2254 (the “Petition”) be dismissed in its entirely. For the reasons set forth below, the Court finds no error in the Report and adopts it in its entirety.

         BACKGROUND

         This summary draws its facts from the detailed recitation in the Report, to which neither party objects. (See Report 1-13). Petitioner stood trial in 2009 on charges of second-degree murder, first-degree manslaughter, second-degree attempted murder, first-degree assault, and second-degree criminal possession of a firearm. (Id. at 2). Petitioner was convicted of the manslaughter charge only. (Id.). On January 26, 2010, Petitioner was sentenced to the maximum term of 25 years, to be followed by five years of post-release supervision. (Id. at 18). At Petitioner's sentencing, there was some discussion about the accuracy of his criminal history, but the sentencing court concluded that even if Petitioner's prior offense had been reduced to a misdemeanor from a felony, it nevertheless had the authority to sentence Petitioner to up to 25 years. (Id. at 16). Petitioner appealed his conviction to the Appellate Division, which appeal was denied on June 19, 2014. See People v. Silvestre, 988 N.Y.S.2d 167 (1st Dep't 2014). On November 24, 2014, the Court of Appeals denied leave to appeal. See People v. Silvestre, 24 N.Y.3d 1046 (2014).

         The Petition in this case raises five grounds for relief: (i) that Petitioner's conviction was based on legally insufficient evidence and violated due process; (ii) that Petitioner was denied a fair trial; (iii) that the trial court erred in allowing the prosecutor to dismiss a misdemeanor charge over a defense objection; (iv) that Petitioner's sentence was excessive; and (v) that Petitioner is actually or legally innocent. (Report 23). The Report found each of these bases to be insufficient. (Id. at 32-72).

         DISCUSSION

         In reviewing a Magistrate Judge's report and recommendation, a district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). Where, as here, no timely objections have been filed, “a district court need only satisfy itself that there is no clear error on the face of the record.” King v. Greiner, No. 02 Civ. 5810 (DLC), 2009 WL 2001439, at *4 (S.D.N.Y. July 8, 2009) (internal quotation marks and citation omitted), aff'd, 453 Fed.Appx. 88 (2d Cir. 2011) (summary order). “A party's failure to object to a report and recommendation, after receiving clear notice of the consequences of such a failure, operates as a waiver of the party's right both to object to the report and recommendation and to obtain appellate review.” Grady v. Conway, No. 11 Civ. 7277 (KPF) (FM), 2015 WL 5008463, at *3 (S.D.N.Y. Aug. 24, 2015) (citing Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992)).

         Judge Freeman's Report was issued on June 25, 2018, and objections were due on July 9, 2018. Neither party has objected to the Report. Because the parties have not filed objections, the parties have waived their right to object and to obtain appellate review. Even so, the Court has reviewed the Report and finds that its reasoning is sound and it is grounded in fact and law. Accordingly, the Court finds no clear error and adopts the Report in its entirety.

         CONCLUSION

         For the foregoing reasons, the Court adopts Magistrate Judge Freeman's thoughtful and comprehensive Report in full. Accordingly, it is hereby ordered that Petitioner's petition for a writ of habeas corpus is DENIED. The Clerk of Court is directed to terminate all pending motions, adjourn all remaining dates, and close this case.

         The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this order would not be taken in good faith; therefore, in forma pauperis status is denied for purposes of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

         SO ORDERED.

         REPORT AND RECOMMENDATION

         Pro se petitioner Roger Silvestre ("Petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, following his conviction in state court, upon a jury verdict, of Manslaughter in the First Degree, in violation of New York State Penal Law § 125.20(1). (See Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody, dated Nov. 23, 2015 ("Petition" or "Pet.") (Dkt. 1).) Petitioner is incarcerated at the Sing Sing Correctional Facility ("Sing Sing"), in Ossining, New York (see Pet., at 1), where he is serving a sentence of 25 years' imprisonment, to be followed by five years of supervised release (id. ¶ 3).

         In this habeas proceeding, Petitioner raises a number of challenges to his conviction and sentence, largely focused on the alleged lack of reliability of the testimony given at trial by the only eyewitness to the crime. (Pet. ¶ 13.) Respondent, the Superintendent of Sing Sing, argues that the Petition should be dismissed on the various grounds that Petitioner's claims are unexhausted, procedurally barred, not cognizable, and/or without merit. For the reasons set forth below, I recommend that the Petition be dismissed in its entirety.

         BACKGROUND

         A. Factual Background

         Petitioner and his brother, Elvis Silvestre (“Elvis”), stood trial together in 2009, on charges relating to the death of Francis Johnson (“Johnson”) and the wounding of Randolph Harrell (“Harrell”) in the early morning hours of July 1, 2006. Both defendants faced charges, as to Johnson, of second-degree murder and first-degree manslaughter (as a lesser included offense to the murder charge); as to Harrell, of second-degree attempted murder and first-degree assault; and, as to both victims, of second-degree criminal possession of a firearm.[1] The jury acquitted Elvis of all charges, and convicted Petitioner only of the manslaughter count.

         Based on the trial transcript, [2] the events underlying Petitioner's manslaughter conviction may be summarized as follows:

         1. Johnson's Death

         On June 30, 2006, Jennie Jones (“Jones”) was living in a sixth-floor apartment at 784 Fox Street, in the Bronx, New York with Johnson, whom she considered to be her husband, even though they were not legally married. (See Trial Tr., at 74-75, 77, 79, 85.) Jones had three children, two of whom were newborn twins fathered by Johnson.[3] (See id., at 75, 78.) Jones testified at trial that one of the twins had just come home from the hospital, and that Harrell[4](who described himself at trial as having been a “real good friend” of Johnson's (id., at 448)) had stopped by at about 10:00 or 11:00 that night with bottles of wine, to celebrate both the fact that the first twin had come home, and the fact that Johnson, who had been pursuing a rap career, was anticipating the release of an album. (See id., at 77-78.)

         Jones further testified that, at about 1:00 a.m. (i.e., early in the morning of July 1, 2006), after Harrell had left the apartment, she heard loud talking outside, and, when she looked out the apartment window, which faced the street, she saw Harrell arguing and “tussling” with Petitioner. (See id., at 79 (“like they had hands in their faces or like pulling on each other's shirt”), 86-87.) Jones also testified that she knew Petitioner, as well as his brother, Elvis, as she had gone to school with them. (Id., at 76-77.) Eventually, Harrell came back upstairs to the apartment, and Jones dozed off. (Id., at 81-82.) She testified that, when she woke up at around 3:00 a.m. that morning, she heard gunshots. (Id., at 82, 92-93.) Neither Harrell nor Johnson were still in the apartment at that time, and when she called Johnson's name, she received no response. (Id., at 82.) Finally, she heard someone in the hall calling for Johnson (using his rapper name, “Gangsta”). (Id.) She opened the door and saw Harrell sitting on the stairs, bloody, and she went back into the apartment to call “911.” (Id., at 82-83.) Through her window, she then saw Harrell being taken to an ambulance, on a stretcher. (Id., at 83.) Eventually, she learned that someone else had been shot in the building, and she realized it was Johnson. (Id., at 83-84.)

         At about 4:30 a.m. on July 1, 2006, Johnson was discovered by police in the lobby of the building, and he died there, shortly after the police arrived. (Id., at 100, 103-06.) He had apparent cut and gunshot wounds, and there was a pool of blood by his body. (Id., at 151-52.)

         2.Harrell's Testimony at Trial

         Harrell was the only eyewitness to the events that led to Johnson's death and his own injuries, and he implicated both Petitioner and Elvis as the perpetrators of the crimes. According to Harrell's trial testimony, both he and Johnson were stabbed by Petitioner and shot by Elvis. Harrell, however, was not a cooperative witness. He was compelled by the court to appear at trial as a material witness, was taken into custody forcibly to be brought to court for the trial, and gave testimony that was inconsistent and, in many ways, seemed unreliable.

         a. The Material Witness Hearing

         Early in the trial proceedings, the court was notified that the prosecution was having difficulty locating Harrell. (Id., at 182-A.) In light of the prosecution's representations that Harrell was the only eyewitness to the crimes and that obtaining his testimony was a matter “of the utmost gravity” (id., at 182-B), the court issued a “material witness” order, authorizing Harrell's arrest for the purpose of bringing him to court to testify (see id., at 182-D, 395-97). Eventually, after the prosecution apparently enlisted the assistance of the Probation Department, Harrell (who was then on probation for a separate matter) was taken into custody when he reported to his probation officer. (See id., at 398, 412-13.) Harrell was then brought to the court for a material witness hearing, at which the court appointed counsel for him and heard testimony from Modesto Acevedo (“Acevedo”), a Senior Detective Investigator (“DI”) at the Bronx District Attorney's Office, who had been involved in arresting Harrell on the material witness warrant. (See id., at 399-401, 411-21.)

         Acevedo testified at the hearing that Harrell had refused to speak with him, his supervisor, and three other detectives, and that it had eventually required “approximately eight to ten officers” to take Harrell into custody. (Id., at 413; see also Id. (“We called for back up and he had to be taken down by, to be handcuffed. Refused to be handcuffed, threatened us if we put our hands on him, he would hurt us and he really challenged us.”).) During the hearing itself, Harrell made several outbursts, at one point saying, “This was three years ago, man. Give it a rest. If you want to do your job, do it right, then put me in jail.” (Id., at 410.) At other points, Harrell's interjections in the proceedings seemed to reflect that he was upset that he had been “set up” to be arrested when he reported to probation (see id., at 412 (“Ya'll set me up to come here”)), and that the telephone calls that apparently had been made by the District Attorney's Office, in trying to locate him, had caused him to lose his job (see, e.g., id., at 417 (“Ya'll talk too much, told my job.”), 427 (“Nobody is going to give me my fucking job back.”)).

         Although the court admonished Harrell to remain silent while Acevedo was testifying, so that Acevedo could be heard, Harrell did not heed that admonition; rather, as described by the court, Harrell continued, during that testimony, “to keep up a running monologue [that was] audible to [the court].” (Id., at 417.) Ultimately, the court made findings that the People had “more than met their burden of showing that [Harrell] [had] material information, ” that he was “not at all amenable to process, ” and that it had taken “extraordinary measures to even get him [to court].” (Id., at 425.) The court also found that Harrell “seem[ed] quite determined not to cooperate” (id., at 426), and that he was “being defiant in the courtroom and trying to bolt” (id., at 427). Having then been “informed by the sergeant that [Harrell] continued to be combative [and] belligerent to the extent that they [were] recommending that he actually be shackled, ” the court authorized the use of shackles “to protect them and everybody else.” (Id., at 433-34.)

         Also at the hearing, appointed counsel for Harrell indicated that, unless Harrell were granted immunity from prosecution, she would be unwilling to have him testify regarding the fight he had allegedly had with Petitioner, earlier in the night of the shooting/stabbing. (Id., at 404.) The People offered that limited immunity, and the court conferred it on Harrell and later informed the jury that it had done so. (Id., at 440-45; see also id., at 595.) The court made clear to Harrell, however, that the immunity it was conferring would only cover matters related to “the alleged altercation” that he had with Petitioner on June 30, 2006, “sometime[] between 10 and 11:30 p.m. on Fox Street, ”[5] and that he was “not receiving immunity for anything else.” (Id., at 444-45.)

         b. Harrell's Varying Accounts of the Events of June 30 and July 1, 2006

         At trial, although Harrell initially testified that he did not remember the events of June 30 and July 1, 2006 (see id., at 453-54), he then went on to give a fairly detailed account of both the fight he had with Petitioner on the night of June 30 (or very early morning of July 1 (see supra, at n.5)), and the shooting/stabbing that occurred thereafter. As to the fight, he testified that he punched Petitioner[6] in the face and “beat him up.” (Id., at 464-65, 597-98.) More particularly, Harrell testified that he fought Petitioner because, in Harrell's words, “he [Petitioner] tried to come at me because he was dusted” (id., at 465), although the court sustained Petitioner's counsel's objection to that particular testimony (id.).[7] Harrell further testified that, after his fight with Petitioner, he went upstairs to Johnson's apartment, and that, “moments later [Johnson] was getting threats by Elvis on the phone.” (Id., at 466.) The court also sustained defense counsel's objections to that testimony as evidence of an uncharged crime, and specifically instructed the jury to disregard it. (Id., at 466, 474, 480.)

         As to the events that followed, later in the morning of July 1, 2006, Harrell testified that he was with Johnson, when he spotted Petitioner “running down the block with a knife. (Id., at 454-56.) According to Harrell, Petitioner came into the building at 784 Fox Street, where he tried to attack both Harrell and Johnson with the knife. (Id., at 457.) Harrell described seeing Petitioner “[s]winging the knife at [Johnson] like he wanted to really hurt him, I mean, really hurt him like viciously hurt him” (id., at 458), and Johnson “[t]rying to protect, defend himself, ” by “[t]rying to get hold of the knife” (id.; see also id., at 463 (“testifying that Johnson was “[t]rying to grab a hold of the knife, ” while Petitioner was “[t]rying to attack him with it”)). After that, Harrell testified, there was “gun fire.” (Id., at 458 (“I don't remember anything after the gun fire because it just happened so quickly, so many shots was coming at us.”); see also id., at 607 (testifying that the shots occurred after the knife fight).) At trial, Harrell identified Elvis as the shooter (id., at 459-60), and testified that both he and Johnson were shot (id., at 461). He testified that, after being shot, he left Johnson on the floor, and crawled up the stairs to Johnson's apartment, on the sixth floor. (Id.; see also id., at 683) He testified that he knocked on the door, that he was “on his knees” and “[s]he [presumably Jones] was hysterical at the time because it was so much blood, ” and that he was eventually taken to a hospital. (Id., at 462.)

         In an effort to undermine this account of events, defense counsel separately introduced, at trial, the testimony of Gary Alfred (“Alfred”), [8] a detective with the New York City Police Department, who had been assigned to investigate the incident in its immediate aftermath. (See id., at 981-82.) Alfred testified that, when he first questioned Harrell regarding his knowledge of events, Harrell said that he was not able to give a description of anyone involved in the case. (See id., at 992.) In fact, Alfred testified that, when Harrell was initially shown photo arrays that included photographs of Petitioner and Elvis, he told the investigator that he could not identify anyone from those arrays. (Id., at 993, 997-98.)

         In addition, through cross-examination of Harrell, Petitioner's counsel brought out the fact that, when Harrell had testified before a grand jury, in September 2006, about the shooting and stabbing, he described a different sequence of events than the sequence he then described at trial. (See id., at 608-20.) According to the excerpts of his grand jury testimony that were read at trial and confirmed to be accurate by the prosecution, Harrell testified, at that time, that he first heard a vehicle drive up to the building, and then, “as soon as [he and Johnson] were entering the lobby of the building, the door came opened [sic] and shots . . . started getting fired.” (See id., at 608-09.) Harrell further testified before the grand jury that, after he and Johnson had been shot, Petitioner proceeded “to run towards [him and Johnson] and [to] start[] swinging a knife at [them].” (Id., at 616.) Harrell also told the grand jury that, after being stabbed, Johnson “grabbed the knife from [Petitioner], ” but Petitioner “snatched it back . . . and proceeded to take off after that.” (Id., at 619.)

         Defense counsel also brought out other inconsistencies between Harrell's trial and grand-jury testimony. For example, counsel also elicited, on Harrell's cross-examination, that Harrell had testified before the grand jury that there were three people, not two, involved in the attack on him and Johnson. (See id., at 673-75 (“Q. You told the Grand Jury three people, correct? A. I see that on the paper. . . . Q. Okay. So that's what you told the Grand Jury, right? A. Yes.”), 698 (“Q. Were there three people there? A. No. Q. So why would you ever say there were three people? A. I don't know.”).) Counsel also highlighted that Harrell had given somewhat confusing testimony before the grand jury as to who, of the two co-defendants, was armed with a knife, and who with a gun. At one point, Harrell apparently told the grand jury that “Elvis stopped shooting, ” and, as noted above, that Petitioner then ran towards him and Johnson, swinging a knife” (id., at 616), but Harrell also conceded that, at another point in his grand-jury testimony, he told the grand jury that he had “seen [Petitioner] shooting and Elvis holding a knife” (id., at 617). In contrast, Harrell maintained at trial only that Petitioner had a knife and Elvis had a gun. (Id., at 824-25.)

         Aspects of Harrell's trial testimony were also shown, at trial, to be inconsistent with other aspects of the record. For example, as Petitioner's counsel pointed out in summation (see id., at 1105-06), while Harrell testified that he, as well as Johnson, was stabbed by Petitioner (see id., at 684), Harrell's medical records only reflected that he sustained gunshot wounds (see id., at 944-45). Petitioner's counsel also argued in summation that, while Harrell testified that he had punched Petitioner in the face earlier that night, the record contained no indication that Petitioner had sustained any facial injury. (See id., at 1107-08).

         c. Harrell's Outbursts at Trial, His Purported Failure To Recall Any Details of His Own Criminal History and Prior Statements, and His Invocation of the Fifth Amendment

         Aside from the content of Harrell's testimony, defense counsel also raised issues at trial regarding Harrell's conduct in the courtroom and his refusal to answer certain questions.

         On cross-examination by defense counsel, Harrell acknowledged that he was testifying pursuant to a material witness order and that he had refused to cooperate with the prosecution. (Id., at 568-69.) At times during the trial, his apparent discontent with the process seemed to become evident. In particular, during a sidebar conference between the court and counsel, Harrell made verbal outbursts that led Elvis's counsel to move for a mistrial and both defense counsel to request that the court at least inquire as to what the jurors may have heard Harrell say that was not reflected in the record, and to determine if anything the jurors heard affected their ability to be fair. (See id., at 467-78.) The court denied the motion for a mistrial, but agreed to ask the jurors what they had heard. (Id., at 478-79.) As discussed further below (see Discussion, infra, at Section II(B)(1)(b)(vi)), the court then did proceed to query the jurors individually, so as to ensure that the trial had not been tainted (see generally Trial Tr., at 480-504).

         Harrell also demonstrated a seeming reluctance to testify by stating repeatedly, on cross-examination, that he did “not remember” virtually anything about his own prior criminal record, about statements he had previously given to investigators regarding the events of July 1, 2006, about his testimony before the grand jury, or about any benefit he had received in connection with that grand-jury testimony.[9] (See generally id., at 575-94, 608-12, 614-19, 638-55, 660-62, 672-75, 678-80.) In summation, Petitioner's counsel argued that these “I don't remember” responses - which counsel described Harrell as having given over 100 times, and perhaps as many as 200 times, to questions posed on cross-examination (see id., at 1090-91 (counsel stating that he had stopped counting after he got to 135 such responses)), demonstrated a lack of truthfulness (see id.).

         Finally, Harrell's trial testimony was marked by an invocation of his Fifth Amendment right not to incriminate himself, with respect to any questions posed to him regarding his conduct at the time of his arrest on the material witness warrant, as well as at the material witness hearing. (See id., at 571-73, 691.) The trial court permitted this invocation, over Petitioner's counsel's objection. (See id., at 573.)[10]

         3. Other Evidence Presented at Trial

         Apart from the testimony of Jones and Harrell, the prosecution introduced the testimony of several other witnesses at trial, some of whom described the police investigation that was performed in the case and the forensic evidence that was developed. Of greatest relevance here, Detective Alfred testified that he went to the crime scene and observed Johnson's body there, by a pool of blood (id., at 149-52), and that he also found a trail of blood leading away from the building on Fox Street (id., at 149-53). According to Alfred, he followed that blood trail south on Fox Street to 156th Street, then east on 156th Street to Southern Boulevard, then south on Southern Boulevard to the building at 737 Southern Boulevard - which was the building where Petitioner and Elvis were then living with their grandmother, Irma Silvestre. (See id., at 153-55.) Alfred explained that he followed the blood trail into that building, into the elevator, and finally to Apartment 5-D, which was the Silvestre apartment. (Id., at 154-55.)[11]

         Alfred further testified that, upon learning that Petitioner was in Bronx Lebanon Hospital, he went to see him there. (Id., at 159.) Alfred testified to observing that Petitioner had injuries, including cuts on his hands. (Id., at 159-60.) He also testified to finding that Petitioner had bloody clothing with him that had been placed in a plastic bag (id., at 161); and that he took Petitioner's bagged clothes into custody and vouchered them (id.).

         Also of particular relevance was the testimony of Sara Philipps (“Philipps”), a criminologist with the Department of Forensic Biology, of the Office of the Chief Medical Examiner, who was deemed an expert at trial in forensic biology and DNA, as well as the statistical evaluation of DNA findings. (Id., at 827-28, 831.) In short, Philipps testified that both Johnson's DNA and Petitioner's DNA were found in blood stains on a washcloth found next to Johnson's body, at the crime scene (see id., at 854-55, 861-62); that Petitioner's DNA was found in a blood stain swabbed from the courtyard outside the front entrance to the building where Johnson's body was found (see id., at 856-58, 214-15); and that Johnson's DNA was found, together with Petitioner's own DNA, in blood stains on Petitioner's clothing (specifically, on his T-shirt) that was recovered from the hospital where Petitioner was treated (see id., at 864-67).

         Also noteworthy was the testimony of James Gill (“Gill”), a physician with the Office of the Chief Medical Examiner, who conducted an autopsy on Johnson's body and was deemed an expert at trial in forensic pathology. (Id., at 900, 904, 912.) Gill opined, to a reasonable degree of medical certainty, that Johnson's death was caused by a combination of gunshot and stab wounds (id., at 937-38, 955-56), and further opined that either of those types of wounds, in Johnsons' case, could be considered independently sufficient to constitute a fatal injury (see id., at 937-38; see also id., at 913-17 (describing bullet wounds that could have caused fatal bleeding), 918-22 (describing multiple cut and stab wounds to, inter alia, Johnson's face, head, neck, and abdomen, including stab wounds to the neck that were one to two inches deep, and were in the same “very blood[-]vessel rich area” of the body as one of the gunshot wounds). Gill also testified that cut injuries he observed on Johnson's hand during the autopsy were “consistent with somebody grabbing at the knife blade” during a stabbing attack, and “pulling [his hand] across the blade.” (Id., at 930-31.) At trial, Gill was also shown a photograph of Petitioner's injured hand, and testified that the photograph showed a “cut wound” on the thumb side of the index finger, which, according to Gill, was “the classic location for a person holding a knife and then the knife sliding and cutting the finger.” (Id., at 943-44.)

         Neither Petitioner nor Elvis testified on his own behalf at trial.

         B. Procedural History

         1. Petitioner's Trial and Conviction

         Following jury selection, Petitioner and Elvis's trial commenced on December 15, 2009, in the Supreme Court of the State of New York, Bronx County, before the Honorable Megan Tallmer, J.S.C.[12] (See Trial Tr., at 1.) Although trial proceedings were not held every day, the trial took a month to complete, with the jury rendering its verdict on January 15, 2010. (Id., at 1327, 1364-70.) The key evidence presented at trial and certain of the trial court's rulings are summarized above, but two other trial rulings should be noted here, as relevant to Petitioner's habeas claims.

         The first of these rulings related to the remarks made by the prosecutor in his opening statement. The prosecutor introduced the case by telling the jury that Johnson was “an aspiring rapper, ” and that,

[o]n June 30th, 2006, [he] had a lot going for him, now he had an alum coming out, signed by HUNC, . . . Harlem Up and Coming. He was going to have an album release party on the very next day, July 1st, the day he died.
He also had twins that were born a few weeks before to his wife [Jones][, ] . . . Denise and Destiny. One baby was in the hospital because of premature difficulties and one was home with [Jones]. He had a newborn at home, he had an album coming up, and he had a baby about to come from the hospital. [Johnson] had everything to live for . . . .

(Id., at 17.) Although neither defense counsel made a contemporaneous objection to those statements, Elvis's counsel took the position, prior to his own opening statement, that the prosecutor's remarks had suggested to the jury that Johnson was “a great guy, and a loving father” (id., at 27), opening the door to defendants' presentation of evidence (1) that a bag of white powder, alleged to be cocaine, was found in the mailbox for the apartment Johnson shared with Jones (id., at 25; see also id., at 2-3), (2) that Johnson had “extensive criminal involvement . . . [and] was wanted at some point for various different murders” (id., at 25), and (3) that “the [rap] album that [Johnson had] just put out . . . basically [was] 22 tracks glorifying violence where he admit[ted] to shooting different people” (id., at 27).

         The court disagreed with Elvis's counsel's argument, finding that, by merely describing Johnson's “home life or his career aspirations, ” the prosecutor had not “opened the door to anything.” (Id. at 26-27; see also id., at 28-33.) The court therefore denied the application (which Petitioner's counsel eventually joined (see id., at 33)) to introduce evidence impugning Johnson's good character, although the court did caution the prosecutor to ask any questions about Johnson's family life and career “very quickly and only in a very factual manner.” (Id., at 32.) The court also left in place a ruling it had made earlier that, for purposes of impeaching Jones' credibility, defense counsel could question her as to whether she had knowledge of the drugs purportedly found in her apartment mailbox (see id., 4-8), but that counsel could not introduce that evidence for the purpose of “besmirch[ing]” Johnson's reputation (id., at 5).[13]

         A second ruling by the trial court that is relevant to Petitioner's claims was its decision, at the charging conference, to allow the People to dismiss one of the indicted charges against Petitioner - specifically, a misdemeanor knife-possession charge - prior to its being submitted to the jury. (See id., at 1029-30.) The court asked if any party was asking for that charge, and the prosecutor responded, “I'm not asking. There is no view of the facts.” (Id., at 1029.) Petitioner's counsel, however, responded, “Yes, I request it.” (Id.) The court then stated, to Petitioner's counsel, “I don't think the law prevents the People from dismissing [the charge] at this stage, counsel, and I don't think you could argue it's a lesser included of any indicted count.” (Id., at 1030.) At that point, the prosecutor made an application to dismiss the charge, and the court granted the application. (Id. (court stating to Petitioner's counsel, “Again, . . . if you think the law is to the contrary, I'll take a look at it. That's my understanding, the People can dismiss it at any time prior to the submission unless it could be supported as a lesser included offense of a charge, then it doesn't get to be dismissed.”).)

         As noted above, Petitioner was convicted of Manslaughter in the First Degree, in violation of New York State Penal Law § 125.20(1), which was submitted to the jury as a lesser included charge to the indicted charge of Murder in the Second Degree. (See id., at 1230-31, 1366.) The jury acquitted Petitioner of the murder, attempted murder, and assault charges, and, after the jury indicated that it was unable to reach a unanimous verdict as to Petitioner on the firearms possession count, the People agreed to dismiss that remaining charge. (See id., at 1366-72.) The jury acquitted Elvis of all charges. (See id., at 1365-66.)

         2. Petitioner's Sentencing

         Petitioner's sentencing was conducted on January 26, 2010, before Justice Tallmer. (Sentencing Tr., at 1.) At sentencing, the court adjudicated Petitioner a second felony offender, based on his earlier conviction of Attempted Criminal Sale of a Controlled Substance in the Third Degree. (Sentencing Tr., at 12-18.) Although the sentencing record reflects that the court and the parties initially had some uncertainty as to whether the date of Petitioner's prior conviction, as stated in the Second Felony Information, was accurate and as to whether, after Petitioner's completion of a youthful-offender program, that charge was supposed to have been reduced to a misdemeanor, the court resolved that uncertainty by concluding that Petitioner had been convicted of the prior stated felony on February 5, 1998, and that, after participating in a program, he was eventually sentenced on that conviction, as a youthful offender, on January 19, 2001. (See id., at 15-18.) In any event, it appears that the court determined that, even if Petitioner were a first-time felony offender, the court would still have the authority to sentence him to up to 25 years in prison.[14]

         Before sentencing Petitioner, the court heard argument by counsel, as well as victim statements and a statement by Petitioner. (See id., at 3-12, 18-24.) The court then made a statement, summarizing why, in its view, “nothing in [the] case . . . crie[d] out for any kind of leniency or mercy.” (Id., at 24.) The court noted that “[t]his was a savage stabbing, ” that was “unnecessary” and “over something incredibly trite.” (Id. (noting that Petitioner “had some kind of either verbal or minor physical altercation with another person and came back and savagely stabbed the deceased to death”).) The court also noted that Petitioner was “not a novice to the system, ” that he “had the benefit of [a youthful offender] adjudication” and of probation, and that he “expresse[d] no remorse.” (Id., at 25.) The court also remarked on the “overwhelming proof” of Petitioner's guilt, commenting: “I don't think I've ever presided over a homicide case where there is literally a trail of blood that leads from the crime scene to the defendant's bedroom. And of course there is the incredibly damaging and incriminating DNA evidence here.” (Id.)

         After making these comments, the court sentenced Petitioner to the maximum prison term of 25 years, with five years of post-release supervision. (Id., at 26.)[15]

         3. Direct Appeal

         On or about July 8, 2013, Petitioner filed a counseled brief in the Appellate Division, First Department, on direct appeal, raising four claims, the first two of which had sub-parts.

         In his first claim, Petitioner asserted that, in light of numerous issues that called the reliability of Harrell's testimony into question, (a) the verdict was against the weight of the evidence, and (b) Petitioner's trial was unfair, under both state law and federal due-process guarantees. (See Declaration of Catherine M. Reno, Esq., in Opposition [to the Petition], dated May 5, 2016 (“Reno Decl.”) (Dkt. 16), Ex. 1 (Brief for Defendant-Appellant), at 32-44.) The issues that Petitioner highlighted in one or both of these sub-claims included: (1) that Harrell's testimony was shown at trial to be materially inconsistent, (2) that Harrell was brought into court in shackles, (3) that Harrell had received benefits for both his grand jury and trial testimony, (4) that Harrell had allegedly been improperly allowed to invoke the Fifth Amendment, (5) that Harrell allegedly committed perjury at trial, and (6) that Harrell made outbursts during trial. (See id.)

         In his second claim, Petitioner asserted that he was deprived of a fair trial under both the state and federal constitutions because (a) Harrell improperly testified about uncharged prior bad acts of both Petitioner and Elvis, and (b) the court precluded the defense from introducing evidence of Johnson's bad character, after the prosecutor, in his opening statement, purportedly created a “misimpression” of Johnson's good character. (Id., at 45-53.)

         In his third claim, Petitioner asserted that, in violation of state law, as articulated by the New York State Court of Appeals in People v. Extale, 18 N.Y.3d 690 (2012), the trial court erred by allowing the prosecutor, over Petitioner's objection, to make the decision to dismiss an indicted misdemeanor charge against Petitioner prior to its submission to the jury, when the decision as to whether to submit that charge to the jury should have been made by the court, in the exercise of its discretion. (Id., at 54-56.)

         Finally, in his fourth claim, Petitioner asserted that his sentence was excessive, in light of his supposedly minimal prior record, the absence of other aggravating factors, and the fact that, in Petitioner's view, the maximum sentence he received appeared to reflect punishment for counts of which he was acquitted. (Id., at 57-61.)

         On June 19, 2014, the Appellate Division affirmed Petitioner's conviction. People v. Silvestre, 988 N.Y.S.2d 167 (1st Dep't 2014). Several of the details of the Appellate Division's decision are discussed below, in connection with this Court's review of Petitioner's habeas claims, but, in brief, the Appellate Division found as follows:

         As to Petitioner's first claim, the Appellate Division held that the verdict was not against the weight of the evidence, id. at 170, and that the various issues raised by Petitioner regarding Harrell's testimony and conduct at trial did not warrant disturbing the jury's credibility determination, id. at 170-71.

         As to Petitioner's second claim, the Appellate Division held that Petitioner's challenge to the fairness of his trial based on Harrell's testimony about both defendants' prior bad acts was unpreserved, and the court declined to review it in the interest of justice. See Id. at 171. In any event, the Appellate Division held that Petitioner's challenge to Harrell's testimony concerning Petitioner's purported prior drug use lacked merit, as there was “no basis to conclude that the jury understood [Harrell's reference to Petitioner's being “dusted”] to be a drug reference, ” and as the trial court sustained Petitioner's counsel's general objection to that testimony. Id. Similarly, the Appellate Division rejected, on the merits, Petitioner's challenge to Harrell's testimony concerning Elvis's purported telephone threats to Johnson, given that the trial court instructed the jury to disregard that testimony. Id. The Appellate Division also rejected Petitioner's claim that he should have been permitted to introduce evidence of Johnson's bad character, finding that “[t]he statements made by the prosecutor which such evidence would have been designed to counter were not intended to vouch for the decedent's good character.” Id.

         As to Petitioner's third claim, the Appellate Division held that, under Extale, the trial court had, in fact, committed error in failing to exercise its discretion in its determination as to whether the indicted misdemeanor charge should have been submitted to the jury. Id. at 169-70. The Appellate Division further found, however, that the error was harmless, as, in light of the “significant evidence tying [Petitioner] to the stabbing of the decedent, . . . there simply [was] no reasonable basis for concluding that the jury would have opted to forego convicting [Petitioner] on a manslaughter charge in favor of convicting him on a weapons possession charge which only alleged intent to use a knife, but not actual use of it.”[16] Id. at 170.

         As to Petitioner's fourth claim, the Appellate Division simply stated that it “perceive[d] no basis for reducing the sentence.” Id. at 172.

         Petitioner then sought leave to appeal the affirmance of his conviction to the New York Court of Appeals, although this Court has not been provided with a copy of his initial leave application (which was apparently dated July 15, 2014), but rather only with a copy of his appellate counsel's supplemental letter, dated August 26, 2014. (See Reno Decl., Ex. 4 (Aug. 26, 2014 letter, referring, at page 1, to earlier application).)

         In the August 26, 2014 letter, Petitioner's counsel set out, in detail, the grounds for the requested appeal. (See id.) In particular, counsel emphasized two of Petitioner's claims - that, at Petitioner's trial, Harrell had improperly invoked his Fifth Amendment right against compelled self-incrimination, and that reversal was required based on the trial court's failure to exercise its discretion in declining to submit an indicted offense to the jury. (Id., at 8-12.) In addition, near the close of the letter, counsel requested the Court of Appeal's review of “additional issues raised below, ” which, counsel stated, had been “addressed in the briefs submitted to the Appellate Division.” (Id., at 13.) Counsel then provided a bullet-pointed list of those “additional issues, ” highlighting the factual and legal bases for Petitioner's claims that his due process rights were violated by the trial court's preclusion of evidence regarding Johnson's bad character, that he was denied a fair trial by the improper admission of evidence of his and his co-defendant's prior bad acts, that his due process rights were violate because he was convicted based on perjured testimony by Harrell, that he was denied a fair trial by Harrell's “angry, profane, and inflammatory outbursts in front of the jury, ” and that his sentence was excessive. (Id., at 13-14.)

         On November 24, 2014, the New York Court of Appeals denied leave to appeal, without opinion. People v. Silvestre, 24 N.Y.3d 1046 (2014).

         4. Petitioner's Federal Habeas Petition

         On November 23, 2015, Petitioner, proceeding pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. (See Pet. (Dkt. 1).[17]) Petitioner raises five grounds in his Petition for habeas relief, the first four of which largely mirror the four claims he ...


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