Rubin v. Lamanna

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

NO. 18-CV-1924

QUINTON RUBIN,

Petitioner,

VERSUS

JAMIE LAMANNA,

Respondent,

MEMORANDUM AND ORDER

August 5, 2019

JOSEPH F. BIANCO, United States Circuit Judge (sitting by designation):

Quinton Rubin (hereinafter, “petitioner”) having first obtained a warrant or court order;

petitions this Court for a writ of habeas (4) the verdict was against the weight of the

corpus, pursuant to 28 U.S.C. § 2554, evidence and the prosecution failed to prove

challenging his conviction in New York State its case beyond a reasonable doubt; and

court. Petitioner was convicted on April 16, (5) petitioner’s sentence was harsh and

2014 of murder in the second degree (N.Y. excessive. For the reasons discussed herein,

Penal Law (“Penal Law”) § 125.25(1)) in the petitioner’s request for a writ of habeas

Supreme Court of New York Suffolk County, corpus is denied in its entirety.

and was sentenced to twenty years to life in

prison. I. BACKGROUND

In the instant habeas petition, petitioner A. Factual Background

challenges his conviction on the following The following facts are adduced from the

grounds: (1) petitioner’s Fourteenth underlying record and the instant petition.

Amendment rights were violated under

Batson v. Kentucky, 476 U.S. 79 (1986); 1. The Evidence

(2) the trial court improvidently exercised its

discretion when it permitted improper On November 12, 2012, petitioner spent

testimony by a witness for the prosecution; the day with his eleven-year old son “J.” (T.

(3) petitioner’s Fourth Amendment rights

were violated when the prosecution allegedly

introduced petitioner’s phone records and

cell site information into evidence without

87.)1 J is petitioner’s child with his estranged observed petitioner run down the driveway

wife, Melissa Oyola (“Oyola”). (T. 79.) J and onto the street, and Oyola then went into

lives with Oyola and his sister. (Id.) the house to check on her children, and called

Petitioner was not living with Oyola on the the police. (T. 113.) Oyola told the 911

date in question, as petitioner had moved out operator that the perpetrator was her

on August 29, 2012. (T. 104.) Petitioner and husband. (T. 117.) Officer Coyne arrived on

Oyola had a history of domestic violence, the scene and found Berry dead on the bed.

including an incident where Oyola stabbed (T. 45.) Berry had bled heavily and had

petitioner. (T. 144.) severe trauma to his face and chest. (T. 46.)

Officer Coyne recovered a dark mask with a

On the dates at issue, November 12 and skull on it at the end of the driveway. (T. 47.)

13 of 2012, petitioner and Oyola were Oyola identified the assailant as the petitioner

married, but were separated. (T. 103.) At to Officer Coyne. (T. 46.)

that time, Oyola and another man, Sean Berry

(“Berry”), had been dating since May of That same morning, petitioner contacted

2012. (T. 104.) Berry and petitioner knew his attorney to explain that “something was

each other and called each other “cousins.” going on, that he might be involved.” (T.

(T. 105.) In her testimony at trial, Oyola 563.) The attorney instructed petitioner and

admitted to having sexual relations with his girlfriend to come to his office between

Berry while she and petitioner were still the hours of 1:00 p.m. and 2:00 p.m. that

living together. (T. 164.) afternoon. (Id.) Petitioner drove to the

parking lot of the attorney’s office, and upon

Early in the morning, on November 13, exiting his automobile, was taken into

2012, J woke up ill. (T. 80-81.) He looked custody by the police. (Id.)

for his mother, but she was not in the house

and had left her phone on the dining room 2. Trial

table. (T. 81.) J then called petitioner to ask

whether he knew where his mother was. (T. Petitioner was tried by a jury in Supreme

82.) During the phone call, J told petitioner Court, Suffolk County. The Court will

that Berry had come over to the house. (T. summarize the portions of the trial relevant to

82.) After this phone call, J returned to bed. petitioner’s claims.

(T. 83.) a. Jury Selection

At or around 4:30 a.m. on November 13, During jury selection, the following

2012, Oyola was with Berry in a trailer in the exchanges took place between a prospective

driveway of Oyola’s house. (T. 107.) At that juror and the attorneys, Mr. Kutzrock for the

time, petitioner knocked on the window to People and Mr. Besso for defendant:

the trailer. (T. 105-108.) After the third

knock, Berry instructed Oyola to open the MR. KURTZROCK: You know

door because he thought it was the children what, in all of our lives we have to –

knocking. (T. 109.) Once inside, petitioner we hear people tell us things. So

wielded a gun and shot Berry in the face. (T. sometimes if they’re in positions of

111.) Petitioner then shot Berry several more authority, those of us with kids,

times at close range before he ran out of the especially if there’s two kids, you

trailer and onto the street. (T. 112.) Oyola know, there’s gonna be times when

1 Citations to “T.” are references to the transcript of 8-17.) The Court uses the pagination noted on the trial

petitioner’s March 2014 jury trial. (ECF Nos. 8-14 to transcript.

someone says well, you know, he * * *

pulled my hair; oh, no, but she, you

know, hit me with a whiffle ball bat MR. BESSO: . . . [H]ow about

and you have to make a decision. Do yourself, if [the defendant] didn’t

you think you would be able to do that testify does that signal to you he must

. . . , if you get picked as a juror? have done something?

PROSPECTIVE JUROR: Are you PROSPECTIVE JUROR: No, but it’s

going back to the red light or green his attorney’s doing.

light?

MR. BESSO: Well, he and I together.

(JS. 14.)2

PROSPECTIVE JUROR: Oh.

Later, the prospective juror gave uncertain

answers to defense attorney Mr. Besso’s voir MR. BESSO: We’re as one person.

dire:

PROSPECTIVE JUROR: Oh.

MR. BESSO: Okay . . . do you believe

that the truth can come in many types MR. BESSO: You understand I’m his

of shades or it can be distorted or attorney, right?

misunderstood?

PROSPECTIVE JUROR: Okay. No,

PROSPECTIVE JUROR: Could you yes right.

repeat the question?

MR. BESSO: But he and I are like

MR. BESSO: Do you believe that the one person right now.

truth could come in many types of

shades of the truth or could be (JS. at 73-74).

distorted or misunderstood by the

person that’s perceiving what that fact The prosecutor ultimately exercised a

or that truth is? peremptory challenge against the prospective

juror, an African-American female. (JS. 84.)

PROSPECTIVE JUROR: Could be, Defense counsel raised an objection, stating

could be. that “[i]t’s the only person of color in the

whole audience that was left, and she didn’t

MR. BESSO: Do you believe it could say anything that I feel would be, you know,

be misinterpreted? for cause. I know [the prosecutor] doesn’t

have to give a reason, but I would just want

PROSPECTIVE JUROR: Might be. to make sure.” (JS. 84-85. ) The trial court

construed defense counsel’s comment as a

(JS. 62-63.) possible challenge pursuant to Batson v.

Kentucky, 476 U.S. 79 (1986), and noted that,

2 Citations to “JS.” are references to the February 27,

2014 transcript of the jury selection for petitioner’s

trial. The Court uses the pagination noted on the jury

selection transcript.

“for a Batson objection you have to show a Berry died from gunshot wounds to the torso,

pattern,” and then indicated to the prosecutor and the five bullets were removed from

that “it’s up to you whether or not you want Berry’s body by a medical examiner and

to address that.” (JS. 85.) After a discussion were examined by a forensics ballistics

with the trial court judge as to whether in fact expert with the Suffolk County Crime

the prospective juror was African-American, Laboratory. (T2. 20; T. 252.) It was

the prosecutor then stated that the reasoning determined that all five bullets were fired

behind his peremptory strike was that from the same gun, and were consistent with

“[s]ome of the answers that she gave today a revolver-type ammunition. (T. 466.) At

seemed a little confused at times . . . .” (JS. trial, a forensic scientist from the Suffolk

86.) The prosecutor also noted that the County Crime Laboratory testified that a .357

prospective juror had given “hesitant” and revolver could shoot the type of bullets that

difficult to understand answers on the killed Berry and could also shoot the type of

previous day of jury selection. (Id.) The trial ammunition found in petitioner’s apartment.

court agreed with the prosecutor’s non- (T. 470.)

discriminatory reasoning, and stated “if what

you’re offering is a Batson challenge, it’s Additionally, Oyola, an eye-witness to

denied.” (JS. 87.) Defense counsel did not the incident, testified that she immediately

object, and replied, “[a]ll right, Judge.” (Id.) recognized the shooter as petitioner, and

could see his eyes and recognize his voice

b. Presentation of Evidence despite the fact that the lower part of his face

was covered by a mask. (T. 113-16, 129).

The prosecution called numerous Oyola testified that she witnessed the

witnesses to the stand, including petitioner’s petitioner shooting Berry from a distance of

estranged wife (Oyola) and son (J), custodian about four feet, and then observed petitioner

of records for MetroPCS (Kenneth LeCesne), shoot four additional shots at Berry from a

a forensic scientist in the firearms ballistics distance of about two feet. (T. 110, 210; see

unit at the Suffolk County Crime Laboratory T.2. 13-14). Through testimony from J, it

(Roy Sineo), the detective from the Suffolk was revealed that the mask worn by the

County Police Department who executed the shooter, that was found on the street near

search warrant in connection with the where the shooter fled, was similar to the

underlying criminal case (Detective Michael mask that petitioner wore when he went quad

Mahan) (T. 20, 78, 82, 470), and the deputy riding. (T. 84-85.)

medical examiner of the Suffolk County

Medical Examiner’s Office (Dr. Stephanie Further, the testimony revealed that the

Horowitz) (T2., ECF No. 18-8, at 20).3 police obtained records of petitioner’s cell-

site information from MetroPCS. (T. 299.)

At trial, the evidence demonstrated that Cell-site information consists of a detailed

when police executed a search warrant at record of phone logs with cell tower

petitioner’s residence on November 14, information, that can be used to determine the

2012, they found a .357 Winchester cartridge proximity and location of a cell phone in

and two .38 Special Winchester shell casings. relation to particular cell tower at a particular

(T. 371, 373.) Trial testimony revealed that time. (T. 299.) At trial, the prosecution

3 Citations to “T2.” are references to the March 11,

2014 transcript from petitioner’s trial. This segment

of the transcript was filed separately from the rest of

the trial transcript, and has its own pagination.

called Kenneth LeCesne, a custodian of the New York Supreme Court in Suffolk

records for MetroPCS, to give testimony as County to twenty years to life in prison on

to the location of petitioner’s cell phone April 16, 2014.

throughout the day on November 13, 2012.

(T. 297.) Through this testimony, it was B. Procedural History

revealed that at 3:15 a.m. on November 13, 1. Direct Appeal

2012, petitioner received a call from J’s cell

phone. (T. 337.) The call lasted five minutes Petitioner appealed to the Second

and was transmitted by tower 875, sector 2. Department of the New York State Appellate

(T. 337.) Tower 875 sector 2 was located Division. On direct appeal, petitioner argued

eight-tenths of a mile from petitioner’s that: (1) the trial court erroneously decided

residence. (T. 409, 410.) At 3:20 a.m., defense counsel’s Batson challenge; (2) the

petitioner called his son, but the call went court erroneously permitted a records

unanswered; the same tower 875 sector 2 custodian to testify about technical aspects of

transmitted that call. (T. 337-38). Petitioner cell phone towers and the contents of

then called Oyola’s cell phone at 3:22 a.m., petitioner’s cell phone records; (3) the

using the code *67 to block his phone number prosecution obtained petitioner’s cell phone

from the receiver. (T. 338-39.) The call records and cell site information without a

lasted 74 seconds and was also transmitted by court order, in violation of his Fourth

tower 875 sector 2. (T. 339.) At 4:22 a.m., Amendment rights; (4) the prosecution failed

petitioner called J, and the call was to prove appellant guilty of murder in the

transmitted by tower 878 sector 3 located in second degree beyond a reasonable doubt and

Bay Shore on Bay Avenue, approximately his conviction was against the weight of the

six-tenths of a mile from Oyola’s house. (T. evidence; and (5) petitioner’s sentence of 20

339-40, 411.) The call was answered and years to life incarceration was harsh and

lasted 36 seconds. (T. 339.) excessive. On October 12, 2016, the Second

Department affirmed the trial court’s

The last call from petitioner to his son judgment of conviction and sentence. People

occurred at 4:23 a.m. and began at tower 509 v. Rubin, 39 N.Y.S.3d 74 (2nd Dep’t 2016).

sector 1 and ended at tower 878 sector 4,

indicating movement by petitioner during the On February 9, 2016, respondent made a

time of the call. (T. 340, 412.) Tower 509 motion to enlarge the court record to include

sector 1 and Tower 878 sector 4 were located an order pursuant to the Stored

1.4 miles and six-tenths of a mile from Communications Act, 18 U.S.C. 2703,

Oyola’s house, respectively. This testimony signed by Justice Condon on January 22,

and the records from petitioner’s cell phone 2013, for MetroPCS cell phone records from

provider and cell towers placed petitioner’s November 12 through November 13 of 2012

cell phone at an area less than one mile from for petitioner and petitioner’s girlfriend.

Oyola’s residence right before the crime (Resp. Opp., Ex. 25, ECF No. 8-25.) The

occurred around 4:30 a.m. (T. 410-11). Second Department granted the motion to

expand the record on March 29, 2016. (Resp.

c. Verdict and Sentence Opp., Ex. 26, ECF No. 8-26.)

On appellate review, the Second

At trial, a jury found petitioner guilty of Department concluded that petitioner’s

murder in the second degree in violation of Batson challenge was “unpreserved for

Penal Law § 125.25(1). He was sentenced by appellate review” because he did not object

to the trial court’s acceptance of the was not against the weight of evidence.” Id.

prosecutor’s facially race-neutral explanation Finally, the Second Department held that

for striking the prospective juror. Rubin, 39 “the sentence imposed was not excessive.”

N.Y.S.3d at 76. The court concluded that, Id.

“[i]n any event, there is no basis to disturb

the County Court’s determination that the Petitioner requested leave to appeal to the

race-neutral explanation provided by the New York State Court of Appeals, and the

prosecutor for striking the juror was not request was denied on December 27, 2016.

pretextual.” Id. Moreover, the “defendant’s See People v. Rubin, 28 N.Y.3d 1126 (N.Y.

additional claim that his cell phone records 2016).

were improperly admitted” was also

unpreserved for appellate review. Id. at 847. 2. The Instant Petition

The court held that, “[i]n any event, contrary On March 19, 2018, petitioner filed a

to the defendant’s contention, the record timely petition before this Court for a writ of

demonstrates that the prosecution properly habeas corpus, pursuant to 28 U.S.C. § 2254.

obtained his cell phone records by court order (ECF No. 1.) Petitioner raises the same five

issued pursuant to the Stored challenges in the instant action as he did in

Communications Act . . . .” Id. (internal his appeal to the Second Department.

citations omitted). Namely, petitioner challenges his conviction

The Second Department also concluded on the following grounds: (1) the

that the lower court properly permitted the prosecutor’s reason for exercising his

records custodian to testify regarding the peremptory strike to excuse a prospective

movements of the defendant’s phone. The juror was a pretext for discrimination and

court determined that “the challenged therefore violated petitioner’s Batson rights;

testimony, which was based on records (2) the trial court improvidently exercised its

showing the proximity of the phone to discretion when it permitted improper

particular cell phone towers, was within the technical testimony by the prosecution’s

record custodian’s knowledge and witness, a custodian of cell phone records; (3)

experience.” Id. (citing People v. Paige, 891 petitioner’s Fourth Amendment rights were

N.Y.S.2d 374, 376 (1st Dep’t 2009)). violated when the prosecution introduced

into evidence the petitioner’s phone records

As to the weight of the evidence and cell site information without having first

challenge, the Second Department found that obtained a warrant or court order to obtain

the evidence “was legally sufficient to these records; (4) the prosecution failed to

establish the defendant’s guilt beyond a prove petitioner was guilty of murder beyond

reasonable doubt” after reviewing it in the a reasonable doubt and the verdict was

light most favorable to the prosecution. Id. against the weight of evidence; and (5) his

Indeed, after conducting an independent sentence was harsh and excessive. (Pet.)

review of the weight of the evidence and The People filed a response to the petition on

reviewing the record itself, the appellate August 6, 2018. (Resp. Opp., ECF No. 8.)

court was “satisfied that the verdict of guilt Petitioner did not file a reply.4 The Court has

4 This Court issued an Order on May 3, 2019 noting such a motion. (ECF No. 9.) The Order instructed

that petitioner had indicated in his petition that he may petitioner that, if he did not file a letter, the petition

be attempting to file a Section 440 motion, and would be decided based on the current record. (Id.)

instructing petitioner to file a letter with the Court by To date, petitioner has not filed a letter or otherwise

May 24, 2019 indicating whether or not he had filed

fully considered the parties’ submissions, as conclusion opposite to that reached by [the

well as the underlying record. Supreme Court] on a question of law or if the

state court decides a case differently than [the

II. STANDARD OF REVIEW

Supreme Court] has on a set of materially

To determine whether petitioner is indistinguishable facts.” Williams, 529 U.S.

entitled to a writ of habeas corpus, a federal at 413 (2000). A decision is an

court must apply the standard of review set “unreasonable application” of clearly

forth in 28 U.S.C. § 2254, as amended by the established federal law if a state court

Antiterrorism and Effective Death Penalty “identifies the correct governing legal

Act (“AEDPA”), which provides in relevant principles from [the Supreme Court’s]

part: decisions but unreasonably applies that

principle to the facts of [a] prisoner’s case.”

(d) An application for a writ of habeas

Id.

corpus on behalf of a person in

custody pursuant to the judgment of a AEDPA establishes a deferential

State court shall not be granted with standard of review: “a federal habeas court

respect to any claim that was may not issue the writ simply because the

adjudicated on the merits in State court concludes in its independent judgment

court proceedings unless the that the relevant state-court decisions applied

adjudication of the claim – clearly established federal law erroneously or

incorrectly. Rather the application must be

(1) resulted in a decision that was

unreasonable.” Gilchrist v. O’Keefe, 260

contrary to, or involved and

F.3d 87, 93 (2d Cir. 2001) (quoting Williams,

unreasonable application of, clearly

529 U.S. at 411) (emphasis added). The

established Federal law, as

Second Circuit added that, while “[s]ome

determined by the Supreme Court of

increment of incorrectness beyond error is

the United States; or

required…the increment need not be great;

(2) resulted in a decision that was otherwise, habeas relief would be limited to

based on an unreasonable state court decisions so far off the mark as to

determination of facts in light of the suggest judicial incompetence.” Id. (quoting

evidence presented by the State court Francis S. v. Stone, 221 F.3d 100, 111 (2d

proceedings. Cir. 2000)). Finally, “if the federal claim was

not adjudicated on the merits, ‘AEDPA

28 U.S.C §2254. “‘Clearly established deference is not required, and conclusions of

Federal law’ means ‘the holdings, as opposed law and mixed findings of fact and

to the dicta, of [the Supreme] Court’s conclusions of law are reviewed de novo.’”

decisions as of the time of the relevant state- Dolphy v. Mantello, 552 F.3d 236, 238 (2d

court decision.’” Green v. Travis, 414 F.3d Cir. 2009) (quoting Spears v. Greiner, 459

288, 296 (2d Cir. 2005) (quoting Williams v. F.3d 200, 203 (2d Cir. 2006)).

Taylor, 529 U.S. 362, 412 (2000)).

III. DISCUSSION

A decision is “contrary to” clearly

Petitioner argues that he is entitled to

established federal law, as determined by the

habeas relief on the grounds that: (1) the

Supreme Court, “if the state court arrives at a

communicated with the Court regarding the instant

petition.

prosecutor’s explanation for exercising his marks omitted). To be independent, the

peremptory strike to excuse a prospective “state court must actually have relied on the

juror was a pretext for discrimination and procedural bar as an independent basis for its

therefore violated petitioner’s Batson rights; disposition of the case,” by “clearly and

(2) the trial court improvidently exercised its expressly stat[ing] that its judgment rests on

discretion when it permitted improper a state procedural bar.” Harris v. Reed, 489

technical testimony by the prosecution’s U.S. 255, 261-63 (1989) (internal quotation

witness, a custodian of cell phone records; marks omitted). In addition, a state court’s

(3) petitioner’s Fourth Amendment rights reliance on an independent and adequate

were violated when the prosecution procedural bar precludes habeas review even

introduced into evidence the petitioner’s if the state court also rejected the claim on the

phone records and cell site information merits in the alternative. See, e.g., id. at 264

without having first obtained a warrant or n.10 (holding that “a state court need not fear

court order to obtain these records; (4) the reaching the merits of a federal claim in an

prosecution failed to prove petitioner was alternative holding,” so long as the state

guilty of murder beyond a reasonable doubt court “explicitly invokes a state procedural

and the verdict was against the weight of bar rule as a separate basis for decision”);

evidence; and (5) his sentence was harsh and Glenn v. Bartlett, 98 F.3d 721, 725 (2d Cir.

excessive. 1996) (same).

For the reasons set forth below, The procedural bar is based on the

petitioner’s request for a writ of habeas “comity and respect” that state judgments

corpus is denied in its entirety. Specifically, must be accorded. House v. Bell, 547 U.S.

the Court concludes that petitioner's claims 518, 536 (2006). Its purpose is to maintain

relating to the Batson challenge and the the delicate balance of federalism by

violation of the Stored Communications Act retaining a state’s rights to enforce its laws

are procedurally barred from habeas review. and to maintain its judicial procedures as it

Moreover, the Court concludes that all of sees fit. Coleman, 501 U.S. at 730-31.

petitioner’s claims, including the Generally, the Second Circuit has deferred to

procedurally barred claims, are without state findings of procedural default as long as

merit. they are supported by a “fair and substantial

basis” in state law. Garcia, 188 F.3d at 78.

A. Procedural Bar However, there is a “small category” of

1. Independent and Adequate State “exceptional cases in which [an] exorbitant

Ground application of a generally sound [procedural]

rule renders the state ground inadequate to

A petitioner’s federal claims may be stop consideration of a federal question.” Lee

procedurally barred from habeas review if v. Kemna, 534 U.S. 362, 376, 381 (2002).

they were decided at the state level on Nevertheless, principles of comity “counsel

“independent and adequate” state procedural that a federal court that deems a state

grounds. Coleman v. Thompson, 501 U.S. procedural rule inadequate should not reach

722, 729-33 (1991); see, e.g., Michigan v. that conclusion lightly or without clear

Long, 463 U.S. 1032, 1041 (1983). The support in state law.” Garcia, 188 F.3d at 77

procedural rule at issue is adequate if it is (citation and internal quotation marks

“firmly established and regularly followed by omitted).

the state in question.” Garcia v. Lewis, 188

F.3d 71, 77 (2d Cir. 1999) (internal quotation

If a claim is procedurally barred, a federal Failing to preserve a Batson challenge for

habeas court may not review it on the merits appeal “constitutes an independent and

unless the petitioner demonstrates both cause adequate state ground” which precludes a

for the default and prejudice resulting habeas court from further consideration of

therefrom, or if he demonstrates that the the claim. Rodriguez v. Schriver, 392 F.3d

failure to consider the claim will result in a 505, 510 (2d Cir. 2004); see also Galarza v.

miscarriage of justice. Coleman, 501 U.S. at Keane, 252 F.3d 630, 638 (2d Cir. 2001)

750. A petitioner may demonstrate cause by (“[A] party must raise his or her Batson

showing one of the following: “(1) the factual challenges in a manner that would allow a

or legal basis for a petitioner’s claim was not trial court to remedy the problem at trial”).

reasonably available to counsel, (2) some Here, the Appellate Division expressly held

interference by state officials made that petitioner’s failure to “object to the

compliance with the procedural rule County Court’s acceptance of the

impracticable, or (3) the procedural default prosecutor’s explanation” and his failure to

was the result of ineffective assistance of “articulate any reason why he believed that

counsel.” McLeod v. Graham, No. 10 Civ. the explanation was pretextual,” rendered

3778, 2010 WL 5125317, at *3 (E.D.N.Y “his present contention that the prosecutor’s

Dec. 9, 2010) (citing Bossett v. Walker, 41 explanation was pretextual . . . unpreserved

F.3d 825, 829 (2d Cir. 1994)). Prejudice can for appellate review.” Rubin, 39 N.Y.S.3d at

be demonstrated by showing that the error 75; see also People v. Figueroa, 714

“worked to his actual and substantial N.Y.S.2d 241, 242 (2nd Dep’t 2000) (“The

disadvantage, infecting his entire trial with defendant’s contentions on appeal with

error of constitutional dimensions.” Torres v. respect to the explanations offered are

Senkowski, 316 F.3d 147, 152 (2d Cir. 2003) unpreserved for appellate review, since the

(citation and internal quotation marks defendant did not address the merits of the

omitted). A miscarriage of justice is prosecution’s facially-neutral explanations at

demonstrated in extraordinary cases, such as trial.”) Petitioner thus failed to preserve the

where a “constitutional violation has issue for appeal to this Court on a habeas

probably resulted in the conviction of one petition.

who is actually innocent.” Murray v. Carrier,

477 U.S. 478, 496 (1986). To overcome a In addition, petitioner has not

procedural default based on a miscarriage of demonstrated cause for, or actual prejudice

justice, the petitioner must demonstrate that resulting from, the default. First, he has

“more likely than not, in light of the new offered no explanation for why he failed to

evidence, no reasonable juror would find him preserve his objection with respect to the

guilty beyond a reasonable doubt.” House v. Batson challenge at trial, and thus has not

Bell, 547 U.S. 518, 536-38 (2006). shown “cause” for the procedural default.

Second, he has not shown prejudice because,

as discussed below, each of these claims fails

2. Application to Petitioner’s Claim for on the merits and the evidence of his guilt

Batson Violations was overwhelming. See Torres v. Senkowski,

316 F.3d 147, 152 (2d Cir. 2003); McLeod,

The Court concludes that petitioner’s 2010 WL 5125317, at *3; People v. Hudgins,

claim regarding the Batson challenge is No. 07–CV–01862–(JFB), 2009 WL

procedurally barred because this claim was 1703266, at *6 (E.D.N.Y. June 18, 2009).

decided at the state level on adequate and Petitioner has also failed to show this case

independent state procedural grounds. would result in a miscarriage of justice if the

Court failed to review the claims on the statement that petitioner's claim was

merits. Thus, this claim is procedurally “unpreserved” is sufficient to establish that it

barred. was relying on a procedural bar as an

independent ground in disposing of the issue.

However, in an abundance of caution, the See, e.g., Figueroa v. Grenier, No. 02–cv–

Court reviews the merits of petitioner’s 5444 DAB GWG, 2005 WL 249001, at *8

Batson challenge below, and finds the claims (S.D.N.Y. Feb. 2, 2005). Additionally, New

to be without merit. York’s preservation doctrine is firmly

established and regularly followed. See

3. Application to Petitioner’s Claim for Garvey v. Duncan, 485 F.3d 709, 715-16 (2d

Violations of the Stored Cir. 2007).

Communications Act

Furthermore, the Appellate Division’s

Petitioner claims that his Fourth reliance on the preservation doctrine was not

Amendment rights were violated when the exorbitant in this case. As noted above,

prosecution introduced his cell phone records in Lee, the Supreme Court concluded that

into evidence without having obtained a there is a limited category of “exceptional

warrant or court order. Petitioner’s claim for cases” in which the state appellate court

violations of his Fourth Amendment rights applied a firmly-established and regularly-

because of noncompliance with the Stored followed procedural ground in an

Communications Act claim is procedurally “exorbitant” manner so that the application of

barred from habeas corpus review since it the ground was inadequate, and a federal

was decided at the state level on adequate and court was therefore not barred from

independent procedural grounds. reviewing that claim on the merits in a habeas

As discussed supra, petitioner appealed appeal. 534 U.S. at 376. Although the

his conviction to the Appellate Division on Supreme Court did not set forth a test that

five grounds, one of which was that his cell must be followed to determine whether an

phone records were improperly admitted application of a procedural ground was

because they were obtained in violation of exorbitant, the Second Circuit concluded

the Stored Communications Act. However, in Cotto v. Herbert that there were three

in the Appellate Division’s decision factors that could be derived from Lee and

affirming the judgment of petitioner’s should be considered as guideposts in the

conviction, the Appellate Division declined analysis. 331 F.3d 217, 240 (2d Cir.2003).

to review petitioner’s Stored These factors are: “(1) whether the alleged

Communications Act claim, stating that it violation was actually relied on in the trial

was unpreserved for appellate review, citing court, and whether perfect compliance with

to N.Y.C.P.L. § 470.05(2). Rubin, 39 the state rule would have changed the trial

N.Y.S.3d at 76. Essentially, this statute court’s decision; (2) whether state case law

“grants an appellate court the discretion to indicated that compliance with the rule was

decline to review claims if they were not demanded in the specific circumstances

preserved by being sufficiently presented to presented; and (3) whether petitioner had

or decided by the trial court.” Ashley v. substantially complied with the rule given

Burge, No. 05 Civ. 4497(JGK), 2006 WL ‘the realities of trial,’ and, therefore, whether

3327589, at *4 (E.D.N.Y. Nov. 3, 2006); see demanding perfect compliance with the rule

also People v. Medina, 53 N.Y .2d 951, 952 would serve a legitimate government

(N.Y.1981). The Appellate Division’s interest.” Id.

In accordance with the Cotto factors, the improperly admitted cell phone records was

Appellate Division in the instant case did not procedurally barred was not exorbitant. Thus,

apply the preservation doctrine in an the Appellate Division’s holding that

exorbitant manner. With respect to the petitioner’s claim was unpreserved for

first Cotto factor, this factor weighs against appellate review represents an adequate and

petitioner because, even assuming arguendo independent state law ground to deny habeas

that petitioner had preserved the objection, as relief.

discussed below, this claim fails on the

merits. Notwithstanding petitioner’s failure to

preserve this claim, this Court may still

The second Cotto factor also weighs consider it on the merits if petitioner can

heavily against petitioner. New York courts demonstrate either “cause and prejudice” for

have consistently held that a defendant must the procedural default or that failure to

make specific arguments to the suppression consider the claim will result in a miscarriage

courts regarding allegedly improperly of justice, i.e., that he is actually innocent of

obtained evidence in order to preserve those the crimes for which he was

arguments for appellate review. See, e.g., convicted. See Coleman, 501 U.S. at 748–

People v. John, 27 N.Y.3d 294, 303 (2016) 51; Murray, 477 U.S. at 496. Petitioner has

(claim regarding warrantless search of a gun failed to demonstrate cause or prejudice.

box was unpreserved for appellate review With respect to cause, petitioner makes no

because the specific argument was not made argument for why he did not move to

to the suppression court); People v. suppress the cell phone records.

Robinson, 778 N.Y.S.2d 808, 809 (4th Dep’t Additionally, petitioner has not demonstrated

2004) (where defendant failed to move to that prejudice would occur because the

suppress evidence, a claim that the seizure record contains overwhelming evidence of

was unconstitutional was unpreserved for petitioner’s guilt, even without the cell phone

appeal). records– namely, the combined effect of the

testimony of the eyewitness to the incident,

Finally, with respect to the the testimony of petitioner’s son who was

third Cotto factor, petitioner failed to communicating with petitioner prior to the

“substantially comply” with the preservation incident, the testimony of law enforcement

rule, and demanding full compliance does officers, and the physical evidence recovered

serve a legitimate government interest. including the mask, the shell casings, and

Petitioner failed to move to suppress the bullets. Nonetheless, in an abundance of

relevant cell phone records either before or caution, the Court reviews petitioner’s claim

during the trial. Essentially, the trial judge on the merits below.

was unable to assess whether the cell phone

records were obtained in violation of B. Merits Analysis

petitioner’s constitutional rights. Full

compliance with the preservation rule is Petitioner raises five grounds for habeas

critical so that the trial judge has an relief: (1) the prosecutor’s explanation for

opportunity to prevent any reversible error, exercising his peremptory strike to excuse a

and because New York “has an interest in the prospective juror was a pretext for

finality of criminal trials.” See Ashley, 2006 discrimination and therefore violated

WL 3327589 at *5-7. Considering all three petitioner’s Batson rights; (2) the trial court

Cotto factors, the Appellate Division’s improvidently exercised its discretion when

conclusion that petitioner’s claim of it permitted improper technical testimony by

the prosecution’s witness, a custodian of cell issue was based on race.” McKinney, 326

phone records; (3) petitioner’s Fourth F.3d at 98.

Amendment rights were violated when the

prosecution introduced into evidence the “Throughout the Batson procedure, the

petitioner’s phone records and cell site burden of proving that a strike was exercised

information without having first obtained a on an impermissible discriminatory ground

warrant or court order to obtain these records; remains with the movant.” Messiah v.

(4) the prosecution failed to prove petitioner Duncan, 435 F.3d 186, 195 (2d Cir. 2006).

was guilty of murder beyond a reasonable Thus, “the third step of the Batson inquiry

doubt and the verdict was against the weight requires a trial judge to make an ultimate

of evidence; and (5) his sentence was harsh determination on the issue of discriminatory

and excessive. None of these arguments intent based on all the facts and

provide grounds for habeas relief in the circumstances.” Jordan v. Lefevre, 206 F.3d.

instant case. 196, 200 (2d Cir. 2000) (quoting United

States v. Alvarado, 923 F.2d 253, 256 (2d

1. Batson Violations Cir. 1991)). “Ordinarily, at step three, ‘the

decisive question will be whether counsel’s

a. Legal Standard race-neutral explanation for a peremptory

challenge should be believed.’” Messiah,

Batson v. Kentucky, 476 U.S. 79 (1986), 435 F.3d at 195 (quoting Hernandez v. New

set forth a three-step inquiry for determining York, 500 U.S. 352, 365 (1991) (plurality)).

whether a party has exercised peremptory

challenges in a racially discriminatory Often, the best indication of

manner. Harris v. Kulhmann, 346 F.3d 330, discriminatory intent “will be the demeanor

343 (2d Cir. 2003) (citing McKinney v. Artuz, of the attorney who exercises the challenge.

326 F.3d 87, 97-98 (2d Cir. 2003)). First, the In addition, race-neutral reasons for

moving party, i.e., the opponent of the peremptory challenges often invoke a juror’s

peremptory challenge, must make out a demeanor (e.g., nervousness, inattention),

prima facie case that the non-moving party’s making the trial court’s firsthand

peremptory challenge was based on racial observations of even greater importance.”

discrimination. McKinney, 326 F.3d at 97. Snyder v. Louisiana, 552 U.S. 472, 477

Second, the non-moving party must come (2008) (citation omitted). As a result, the

forward and assert a race-neutral explanation trial court must evaluate not only whether the

for the challenge. Id. at 98. Notably, attorney’s demeanor demonstrates

“although a race-neutral reason is given, it discriminatory intent, but also whether the

need not be persuasive or even plausible” juror’s demeanor can be said to have

during the second step of this inquiry. Id. “At “credibly” demonstrated a valid reason for

this [second] step of the inquiry, the issue is the strike of the juror. Id.

the facial validity of the prosecutor’s

explanation. Unless a discriminatory intent Because “these determinations of

is inherent in the prosecutor’s explanation, credibility and demeanor lie ‘peculiarly

the reason offered will be deemed race within a trial judge’s province,’ reviewing

neutral.” Purkett v. Elem, 514 U.S. 765, 768 courts generally must ‘defer to [the trial

(1995). Third, the trial court must then court] in the absence of exceptional

decide “whether the moving party carried the circumstances.’” Id. (quoting Hernandez,

burden of showing by a preponderance of the 500 U.S. at 365-66). Furthermore, even

evidence that the peremptory challenge at though “[r]easonable minds reviewing the

record might disagree about the prosecutor’s Boozer’s confusion with regard to questions

credibility [regarding prospective jurors’ asked during the jury selection process.

demeanors], . . . on habeas review that does Concern over a juror’s confusing answers to

not suffice to supersede the trial court’s voir dire questions is a valid reason for a

credibility determination.” Rice v. Collins, prosecutor exercising a peremptory

546 U.S. 333, 341-42 (2006). Thus, “[t]o challenge. See Galarza v. Keane, 252 F.3d

secure habeas relief [under Batson] petitioner 630 (2d Cir. 2001).

must demonstrate that a state court’s finding

of the absence of purposeful discrimination In Galarza, the Second Circuit held that a

was incorrect by clear and convincing juror’s confusion can be the basis for a valid

evidence, 28 U.S.C. § 2254(e)(1), and that peremptory strike. There, the state

the corresponding factual determination was prosecutor utilized a peremptory strike

‘objectively unreasonable’ in light of the against one Hispanic juror because the

record before the court.” Miller-El v. prosecutor “thought she had a problem

Cockrell, 537 U.S. 322, 348 (2003). understanding.” Galarza, 252 F.3d at 633.

Additionally, the prosecutor used a

b. Application peremptory strike against another juror

because “[h]e seemed somewhat confused

Petitioner claims that the “[t]he today when [the trial court judge] asked him

prosecutor’s reason for exercising a point blank questions about certain things, he

peremptory challenge to excuse [the] would say no, then he would go ahead and

prospective juror . . . were [sic] a pretext for answer in the affirmative.” Id. The Second

discrimination,” and thus was a Batson Circuit found that the trial court did not err in

violation. (Pet. 6.) The Appellate Division accepting these reasons for striking the

held that “there is no basis to disturb the prospective juror, and therefore the Batson

County Court’s determination that the race- challenges over these two jurors were

neutral explanation provided by the without merit. Id. at 639; see also United

prosecutor for striking the prospective juror States v. Hunter, 86 F.3d 679, 683 (7th Cir.

was not pretextual.” Rubin, 39 N.Y.S.3d at 1996) (concluding the government did not

76. violate Batson when it exercised a

peremptory challenge because of the juror’s

The Court concludes that the state courts’ “confused answers to certain voir dire

determinations were not unreasonable questions”); Barbara v. Goord, No. CV 98-

applications of clearly established federal 4569 (RR), 2001 WL 1776159, at *6

law. On the contrary, the trial court properly (E.D.N.Y. Dec. 27, 2001) (crediting the

applied the Batson analysis with respect to prosecutor’s reason regarding the juror’s

the challenged juror. Though it was confusion and therefore rejecting petitioner’s

somewhat unclear whether defense counsel Batson challenge). Thus, under Galarza, a

was even attempting to raise a Batson juror’s confusion during voir dire questions is

challenge, the trial court did consider the an acceptable reason to exercise a

prosecutor’s proffered race-neutral reasons peremptory challenge.

for the peremptory strike of the prospective

juror before concluding that there was no Furthermore, in light of the heavy

Batson violation. deference given to the trial court’s

determination, Snyder, 552 U.S. at 477, this

Specifically, the prosecutor’s proffered Court concludes that the trial court judge’s

race-neutral reason for the strike involved determination “of the absence of purposeful

discrimination” was not clearly erroneous. not lie for errors of state law.” (quoting Lewis

Miller-El, 537 U.S. at 348; see also United v. Jeffers, 497 U.S. 764, 780 (1990)).

States v. Biaggi, 853 F.2d 89, 96 (2d Cir. Instead, for a habeas petitioner to prevail in

1988) (“Where the court itself has conducted connection with a claim regarding an

the voir dire and thus was able to observe as evidentiary error, the petitioner must “show

well the demeanor of the prospective jurors, that the error deprived [him] of a

we believe the court’s assessment of the fundamentally fair trial.” Taylor,708 F.2d at

prosecution’s stated reasons for excusing 891; see also Zarvela v. Artuz, 364 F.3d 415,

jurors is entitled to special deference.”). 418 (2d Cir. 2004) (“Even erroneous

evidentiary rulings warrant a writ of habeas

Here, the prosecutor offered a race- corpus only where the petitioner ‘can show

neutral explanation for the strike, and defense that the error deprived [him] of a

counsel did not offer any explanation as to fundamentally fair trial.’” (quoting Rosario

why the proffered reason was pretextual. v. Kuhlman, 839 F.2d 918, 925 (2d Cir.

Because the prosecutor’s explanation for the 1988))). In other words, “[t]he introduction

strike was racially neutral, see Galarza, 252 of improper evidence against a defendant

F.3d 639, and the special deference afforded does not amount to a violation of due process

to the trial court’s assessment of the unless the evidence ‘is so extremely unfair

prosecution’s stated reasons for excusing that its admission violates fundamental

jurors, Biaggi, 853 F.2d at 96, petitioner has conceptions of justice.’” Dunningan v.

not demonstrated that the “state court’s Keane, 137 F.3d 117, 125 (2d Cir. 1998)

finding of the absence of purposeful (quoting Dowling v. United States, 493 U.S.

discrimination was incorrect by clear and 342, 352 (1990)), abrogated on other

convincing evidence . . . and that the grounds by Perry v. New Hampshire, 565

corresponding factual determination was U.S. 228 (2012).

‘objectively unreasonable’ in light of the

record.” Miller-El, 537 U.S. at 348. To constitute a denial of due process

Accordingly, this Court finds that petitioner under this standard, the erroneously admitted

has failed to demonstrate that the denial of his evidence must have been “sufficiently

Batson claim in state court involved an material to provide the basis for conviction or

unreasonable application of federal law, or an to remove a reasonable doubt that would have

unreasonable determination of the facts. existed on the record without it.”

Petitioner’s Batson claims do not warrant Dunnigan, 137 F.3d at 125 (internal

relief. quotation marks omitted) (quoting Johnson

v. Ross, 955 F.2d 178, 181 (2d Cir.

2. Introduction of Expert Testimony 1992)); see also Collins v. Scully, 755 F.2d

From a Lay Witness 16, 19 (2d Cir. 1985) (holding that evidence

must be “crucial, critical, highly significant”)

a. Legal Standard (citation and internal quotation marks

It is well-settled that “[e]rroneous omitted)). Moreover, the court “must review

evidentiary rulings do not automatically rise the erroneously admitted evidence in light of

to the level of constitutional error sufficient the entire record before the

to warrant issuance of a writ of habeas jury.” Dunnigan, 137 F.3d at 125 (citation

corpus.” Taylor v. Curry, 708 F.2d 886, 891 and internal quotation marks omitted). In

(2d Cir. 1983); see Estelle v. McGuire, 502 making this due process determination, the

U.S. 62 (1991) (“[H]abeas corpus relief does Court should engage in a two-part analysis,

examining (1) whether the trial court’s

evidentiary ruling was erroneous under New throughout the relevant period. (T. 296-344.)

York State law, and (2) whether the error In People v. Paige, the First Department held

amounted to the denial of the constitutional that a custodian of records, not qualified as an

right to a fundamentally fair trial. See Wade expert, properly testified “to matters within

v. Mantello, 333 F.3d 51, 59 n.7 (2d Cir. her knowledge and experience,” when she

2003); Davis v. Strack, 270 F.3d 111, 123-24 testified as to the “probable location of

(2d Cir. 2001). As set forth below, the Court defendant’s phone at a time the particular call

has reviewed petitioner’s objections was made” based upon cell phone records

regarding the testimony of the MetroPCS and cell tower information. 891 N.Y.S.2d

custodian of records under this two-part test, 374, 376 (1st Dep’t 2009). On direct appeal

and concludes that it does not warrant habeas in this case, the Second Department, relying

relief. on Paige, found that petitioner’s challenge to

LeCesne’s testimony failed, because the

b. Application “testimony, which was based on records

showing the proximity of the phone to

Petitioner argues that the trial court particular cell phone towers, was within the

improperly permitted a lay witness, Kenneth record custodian’s knowledge and

LeCesne, the custodian of records for experience.” Rubin, 39 N.Y.S.3d at 76.

MetroPCS (petitioner’s cell carrier), to give

“technical testimony.” (Pet. 6.) Specifically, The conclusions of the First and Second

petitioner argues that LeCesne improperly Departments are consistent with federal

was permitted to testify about the operation courts who have analyzed this issue. Federal

of cell towers and the location of petitioner’s courts have admitted lay witness testimony

cell phone on the dates relevant to the regarding cellular telephone communications

underlying crime. (Id.) with a cell tower and how the records stored

from these communications tend to indicate

As a general principle of evidence, a lay the approximate location of the user’s cell

witness can only testify to facts based on his phone. See United States v. Baker, 496 F.

or her personal knowledge or experience. App’x 201, 204 n.1 (3d Cir. 2012)

Ferguson v. Hubbell, 97 N.Y. 507, 512 (concluding that a custodian of records for a

(1884) (“The general rule of law is that cell phone company could properly testify as

witnesses must state facts within their to the operation of cell phone tower sites

knowledge, and not give their opinions or without being qualified as an expert where

their inferences.”). However, a witness may the testimony “consisted entirely of reading

offer a lay opinion “when the subject matter and interpreting [the defendant’s] cell phone

of that testimony is such that it is impossible records, including records detailing the

to accurately describe certain facts without locations of cell phone towers used to carry

including some opinion or impression.” out his phone calls”); United States v. Kale,

People v. Dax, 650 N.Y.S.2d 94, 95 (1st 445 F. App’x 482, 485-86 (3d Cir. 2011)

Dep’t 1996); see also People v. Russell, 567 (finding that custodian of record’s testimony

N.Y.S.2d 548, 553 (2d Dep’t 1991), aff’d. 79 concerning the operations of cell phone

N.Y.2d 1024 (1992). towers “did not require any scientific,

technical, or other specialized knowledge,”

In this case, LeCesne testified about the

and was proper lay testimony); United States

general operations of cell phone towers, and

v. Feliciano, 300 F. App’x 795, 801 (11th

then interpreted petitioner’s cell phone

Cir. 2008) (classifying law enforcement

records to identify the location of the phone

officer’s testimony concerning defendant’s

cell phone records, including the location of light of the overwhelming evidence of

cell phone towers, and the defendant’s cell petitioner’s guilt, specifically the combined

phone location based on those cell tower effect of the testimony of the eyewitness to

records, as lay testimony based on personal the incident, testimony of petitioner’s son

knowledge and not an expert opinion); who was communicating with petitioner prior

United States v. Fama, No. 12-CR-186 to the incident, testimony of law enforcement

(WFK), 2012 WL 6102700, at *2 (E.D.N.Y. officers, and the physical evidence recovered

Dec. 10, 2012) (finding that such testimony including the mask, the shell casings, and

is based on personal knowledge, and bullets, the error would not have been so

constitutes lay witness testimony); United prejudicial as to deprive the petitioner of a

States v. Henderson, No. 10–cr–117, 2011 fundamentally fair trial. See Rosario, 839

WL 6016477, at *5 (N.D. Okla. Dec. 2, 2011) F.2d at 924.

(admitting lay witness testimony regarding

the probable location of defendant’s cell 3. Fourth Amendment Claim

phone based on cell phone and tower

records). Petitioner alleges that he is entitled

to habeas relief because it was “a violation of

Here, the Court concludes that the [his] fourth amendment rights when the

testimony elicited from LeCesne concerning prosecution introduced into evidence,

the operations of cell phone towers did not without having obtained a warrant or a court

implicate any scientific, technical, or other order, [his] cell phone records . . . .” (Pet. 8.)

specialized knowledge, but rather was based As discussed supra, the Court concludes that

upon LeCesne’s own personal knowledge. this claim is procedurally barred. However,

LeCesne had been employed with MetroPCS in an abundance of caution, the Court reviews

since August 2011 (T. 297), had received this claim on the merits, and concludes that

eighty hours of training in order to testify this claim is entirely without merit.

accurately about cell phone and tower

records from Metro PCS in their compliance a. Legal Standard

unit (T. 298), has testified over 220 times on

behalf of the company concerning such It is well-settled that “[w]here the State

documents (T. 298-299), and has personal has provided an opportunity for full and fair

experience and knowledge dealing with litigation of a Fourth Amendment claim, a

MetroPCS’s cell tower and cell site records state prisoner may not be granted

(T. 299). Thus, the Court concludes that federal habeas corpus relief on the ground

LeCesne’s testimony regarding the general that evidence obtained in an unconstitutional

operations of cell phone towers and the search or seizure was introduced at his trial.”

location of petitioner’s cell phone based on Stone v. Powell, 428 U.S. 465, 494 (1976).

the cell site records was within the scope of The Second Circuit has further explained that

his personal knowledge. Accordingly, this under Powell:

Court agrees with the Second Department Review of fourth amendment claims

that LeCesne’s testimony was proper for a lay in habeas petitions would be

witness. Thus, the trial court’s ruling was not undertaken in only one of two

erroneous under state or federal law. instances: (a) if the state has provided

Further, even assuming arguendo that no corrective procedures at all to

the trial court erroneously permitted LeCesne redress the alleged fourth amendment

to testify regarding the cell site records, in violations; or (b) if the state has

provided a corrective mechanism, but totality of state procedures allegedly did not

the defendant was precluded from provide rational conditions for inquiring into

using that mechanism because of an federal-law ... questions.’” Id. (quoting Paul

unconscionable breakdown in the M. Bator, Finality in Criminal Law and

underlying process. Federal Habeas Corpus Review for State

Prisoners, 76 Harv. L. Rev. 441, 456-57

Capellan v. Riley, 975 F.2d 67, 70 (2d Cir.

(1963)).

1992). Courts have described such a

breakdown as occurring when the state court Here, there is no evidence of “‘disruption

“failed to conduct a reasoned method of or obstruction of [the] state proceeding’

inquiry into relevant questions of fact and typifying an unconscionable breakdown.”

law.” Id. at 71 (internal quotation marks and

Cappellan, 975 F.2d at 70 (quoting Shaw v.

citations omitted).

Scully, 654 F. Supp. 859, 864 (S.D.N.Y.

1987)). The petitioner failed to avail himself

b. Application

of the New York State procedure, by failing

to move to suppress the allegedly

As to the first prong of the Fourth

unconstitutionally obtained evidence.

Amendment analysis, New York State has

Therefore, he may not now raise this issue on

adequate corrective procedures for litigating

federal habeas review.

Fourth Amendment claims, which are set

forth in C.P.L. § 710.10 et seq. See, In addition, contrary to petitioner’s

e.g., Capellan, 975 F.2d at 70 n.1 (“[T]he contentions, a court order was, in fact, issued

‘federal courts have approved New York’s to obtain petitioner’s cell phone records

procedure for litigating Fourth Amendment pursuant to the Stored Communications Act,

claims . . . as being facially adequate.’” 18 USC § 2703(d). (See Resp. Opp., Ex. 25).

(quoting Holmes v. Scully, 706 F. Supp. 195, Moreover, though petitioner does not raise it,

201 (E.D.N.Y. 1998))); McPhail v. Warden, the Court in an abundance of caution also has

Attica Corr. Facility, 707 F.2d 67, 69 (2d Cir. conducted an analysis pursuant to the recent

1983) (New York’s procedure for litigating a decision in Carpenter v. United States, 138 S.

Fourth Amendment claim in a criminal trial Ct. 2206 (2018), issued after the relevant

complied with requirement that state provide proceedings in this case.

an opportunity to litigate such claims).

In Carpenter, the Supreme Court was

Accordingly, petitioner must show that faced with the question of “whether the

an “unconscionable breakdown” occurred in Government conducts a search under the

New York State’s statutory mechanism for Fourth Amendment when it accesses

reviewing Fourth Amendment claims. historical cell phone records that provide a

In Cappellan, the Second Circuit gave comprehensive chronicle of the user’s past

examples of “the sort of disruption or movements.” 130 S. Ct. at 2211. There, cell-

obstruction of a state proceeding typifying an site records were obtained over a period of

unconscionable breakdown.” 975 F.2d at 127 days of Carpenter’s movements, and the

70 (internal quotation marks and citations records were obtained through an order

omitted). The Second Circuit guided that an pursuant to the Stored Communications Act,

unconscionable breakdown might occur if which required a showing by the government

the trial court “yielded to mob intimidation of of “reasonable grounds” for believing that the

the jury” or if “the process furnished was records were “relevant and material to an

‘claimed to be meaningless [because] the ongoing investigation,” which is a standard

lower than probable cause. Id. at 2217, 2221. Pursuant to Second Circuit precedent pre-

Ultimately, the Court acknowledged that the Carpenter, the prosecution was entitled to

information obtained through cell-site rely on the January 22, 2013 order signed by

records “does not fit neatly under existing Justice Condon to obtain petitioner’s cell

precedents,” but determined that it was a phone records. The state court followed

search demanding Fourth Amendment existing Supreme Court precedent at the time

protections and concluded that orders such as of the decision. Moreover, the January 22,

the one in Carpenter should be based on a 2013 order did not use the “reasonable

finding of probable cause, not the lower grounds standard” but was actually based on

standard utilized under Section 2703(d). Id. a finding of “specific and articulable facts

at 2210-11. showing probable cause.” (Resp. Opp., Ex.

25) (emphasis added.) Thus, Carpenter,

In United States v. Zodhiates, the Second which focused on court orders issued under a

Circuit acknowledged the Carpenter decision standard lower than probable cause, is

issued during the pendency of that appeal, but inapplicable for this New York state court

held that “when the Government “act[s] with order issued based on probable cause. See

an objectively reasonable good-faith belief People v. Clark, 97 N.Y.S.3d 711, 713 (2d

that their conduct is lawful,” the exclusionary Dep’t 2019) (“In any event, the court order

rule does not apply. 901 F.3d 137, 143 (2d authorizing the acquisition of the records

Cir. 2018). The prosecution in Zodhiates made an express finding of probable cause . .

obtained cell phone records, which disclosed . [a]ccordingly, the order ‘was effectively a

the general area of the defendant’s phone’s warrant’ which complied with the

location, through a subpoena under the requirement of Carpenter.”); People v. Cutts,

Stored Communications Act, instead of a 88 N.Y.S.3d 332 (N.Y. Sup. Ct. 2018)

warrant. Id. at 141. The defendant argued for (finding that, because the state court order

suppression of those records because the was based on probable cause, Carpenter did

higher showing of probable cause was not not apply).

met. Id. at 143. The Court rejected the

defendant’s argument, finding that the For all the above reasons, the Court finds

government acted in good faith in relying on no Fourth Amendment violation.

appellate precedent (existing at the time

before the Carpenter decision) which stood 4. Sufficiency of the Evidence Claim

for the proposition that a warrant was not

required for cell phone records. Id. at 143- Petitioner claims that the prosecution

44; see also United States v. Guillen, No. 17- failed to prove petitioner’s guilt to the charge

CR-512 (KMW), 2018 WL 5831318, at *15 of murder in the second degree beyond a

(S.D.N.Y. Nov. 7, 2018) (finding that before reasonable doubt and that his conviction was

Carpenter, the issuance of a cell-site order on against the weight of evidence. (Pet. 9.) It is

only reasonable cause and not probable cause well established that weight of the evidence

was “in compliance with a federal statute and legal sufficiency are two distinct claims,

which was not clearly unconstitutional at the each requiring a discrete analysis. People v.

time [and] it was reasonable for law Bleakley, 69 N.Y.2d 490, 495 (1987). Thus,

enforcement officers to rely on the order” the Court will address each claim in turn.

(internal quotation marks and citations

omitted)). a. Legal Standard: Weight of the

Evidence

In a weight of the evidence claim, b. Legal Standard: Legal Sufficiency of

“[e]ven if all the elements and necessary the Evidence

findings are supported by some credible

However, this Court can review

evidence, the court must examine the

petitioner’s legal sufficiency claim, and

evidence further. If based on all the credible

concludes that this claim is without merit.

evidence a different finding would not have

been unreasonable, then the appellate court On appeal, the Second Department held

must, like the trier of fact below, ‘weigh the that “[v]iewing the evidence in the light most

relative probative force of conflicting favorable to the prosecution . . . , we find that

testimony and the relative strength of it was legally sufficient to establish the

conflicting inferences that may be drawn defendant's guilt beyond a reasonable doubt.

from the testimony.’” Id. (quoting People ex Rubin, 39 N.Y.S.3d at 76 (internal citations

rel. MacCracken v. Miller, 291 N.Y. 55, 62 omitted). As set forth below, having

(1943)). carefully reviewed the record, this Court

concludes that this determination by the state

However, the law is clear that a “weight

court regarding the sufficiency of the

of the evidence” claim is based on state

evidence was not contrary to, nor an

law. See, e.g., Correa v. Duncan, 172 F.

unreasonable application of, clearly

Supp. 2d 378, 381 (E.D.N.Y. 2001) (“A

established federal law, nor was it based upon

‘weight of the evidence’ argument is a pure

an unreasonable determination of the facts in

state law claim grounded in New York

light of the evidence presented at trial.

Criminal Procedure Law § 470.15(5),

whereas a legal sufficiency claim is based on The law governing habeas relief from a

federal due process principles.” (citations state conviction based on insufficiency of the

omitted)). The Court cannot consider a evidence is well established. See Einaugler

purely state law claim on federal habeas v. Supreme Court of N.Y., 109 F.3d 836, 839

review. See Lewis v. Jeffers, 497 U.S. 764, (2d Cir. 1997) (“The Due Process Clause of

780 (1990) (“[F]ederal habeas corpus relief the Fourteenth Amendment prohibits

does not lie for errors of state law . . . .”). conviction ‘except upon proof beyond a

Further, as the Second Circuit has reasonable doubt of every fact necessary to

highlighted, “assessments of the weight of constitute the crime with which [the

evidence or the credibility of the witnesses defendant] is charged.’” (quoting In re

are for the jury and not grounds for reversal Winship, 397 U.S. 358, 364 (1970))).

on appeal.” Maldonado v. Scully, 86 F.3d 32,

35 (2d Cir. 1996). Therefore, to the extent However, a petitioner “bears a very

petitioner raises a weight of the evidence heavy burden,” Einaugler, 109 F.3d at 840

claim under state law, the Court cannot (quoting Quirama v. Michele, 983 F.2d 12,

review it.5 14 (2d Cir. 1993)), and a “state criminal

conviction will be upheld if, ‘after viewing

the evidence in the light most favorable to the

prosecution, any rational trier of fact could

5 The Court notes that the Second Department rejected

this claim on the merits, holding that the verdict was

not against the weight of the evidence. Rubin, 39

N.Y.S.3d at 76.

have found the essential elements of the death of another person, he causes the death

crime beyond a reasonable doubt.’” Vassell of such person or of a third

v. McGinnis, No. 04-CV-0856(JG), 2004 person.” N.Y.P.L. § 125.25(a)(1).

WL 3088666, at *5 (E.D.N.Y. Dec. 22, 2004)

(emphasis in original) (quoting Jackson v. c. Application

Virginia, 443 U.S. 307, 319 (1979)); see

also Policano v. Herbert, 507 F.3d 111, 115 In the instant petition, petitioner seeks

generally to challenge the legal sufficiency of

-16 (2d Cir. 2007) (“[I]n a challenge to a state

the evidence, though petitioner fails to make

criminal conviction brought under 28 U.S.C.

any specific challenge. (Pet. 9.) For the

§ 2554 [,] . . . the applicant is entitled to

reasons set forth below, the Court concludes

habeas corpus relief if it is found that upon

that this ruling was neither contrary to, nor an

the record evidence adduced at the trial no

unreasonable application of, clearly

rational trier of fact could have found proof

established federal law, nor was it an

of guilt beyond a reasonable doubt.” (internal

unreasonable determination of the facts in

quotation marks omitted) (quoting Jackson, light of the entire record. Thus, this claim

443 U.S. at 324)). does not entitle petitioner to habeas relief.

Further, even when “faced with a record The Court concludes that there was

of historical facts that supports conflicting sufficient evidence at trial that would allow a

inferences, [this Court] must presume—even rational trier of fact to conclude beyond a

if it does not affirmatively appear in the reasonable doubt that petitioner murdered

record—that the trier of fact resolved any Berry. As a non-exhaustive list, jurors were

such conflicts in favor of the prosecution, and presented with the following evidence:

must defer to that resolution.” Wheel v. (1) when Oyola called 911, she immediately

Robinson, 34 F.3d 60, 66 (2d Cir. 1994) identified the shooter as her husband,

(quoting Jackson, 443 U.S. at 326). Thus, petitioner (T. 113-16); (2) Oyola recognized

“[a] habeas court will not grant relief on a petitioner’s voice and could see his eyes

sufficiency claim unless the record is ‘so when he entered the trailer during the murder

totally devoid of evidentiary support that a (T. 129); (3) Oyola witnessed petitioner shoot

due process issue is raised.’” Sanford v. Berry from a distance of about four feet (T.

Burge, 334 F. Supp. 2d 289, 303 (E.D.N.Y. 110), and then witnessed petitioner shoot the

2004) (quoting Bossett v. Walker, 41 F.3d remaining shots from a distance of about two

825, 830 (2d Cir. 1994)). feet (T. 210); (4) the murder occurred

immediately after petitioner learned from his

When considering the sufficiency of

son that Berry was at Oyola’s residence (T.

the evidence of a state conviction, “[a]

82); (5) cell phone records indicated that J.

federal court must look to state law to

spoke to petitioner that night, followed by

determine the elements of the crime.”

petitioner calling Oyola’s phone using *67 to

Quartararo v. Hanslmaier, 186 F.3d 91, 97

block his phone number (T. 337, 338);

(2d Cir.1999). Accordingly, in this case, the

(6) Berry died from five gunshot wounds to

Court looks to New York law for the

the torso as described by expert witness

elements of murder in the second degree.

testimony (T.2 20); (7) the five bullets

Under the relevant New York law, “[a]

removed from Berry’s body were all .38

person is guilty of murder in the second

caliber (T. 464) ; (8) police recovered from

degree when . . . [w]ith intent to cause the

petitioner’s bedroom two .38 shell casings

and a .357 Winchester cartridge (T. 371,

373); (9) a .357 revolver could shoot the .38 a. Legal Standard

caliber bullets which killed Berry and could

When a petitioner claims that his

also shoot the type of ammunition found in

sentence is harsh and excessive, for purpose

petitioner’s apartment, as described by expert

of habeas review, “[n]o federal constitutional

testimony (T. 470, T. 425); (10) the dark

issue is presented [if] . . . the sentence is

mask worn by the shooter that was found on

within the range prescribed by state

the street where Oyola saw petitioner flee

law.” White v. Keane, 969 F.2d 1381, 1383

was similar to ones petitioner wore when he

(2d Cir. 1992); see also Alfini v. Lord, 245 F.

rode his quad (T. 84-85, 187, 190); and (11)

Supp. 2d 493, 502 (E.D.N.Y. 2003) (“It is

records from petitioner’s cell phone provider

well settled that an excessive sentence claim

and cell towers placed petitioner’s cell phone may not be raised as grounds for habeas

in an area less than one mile from Oyola’s corpus relief if the sentence is within the

residence right before the crime occurred range prescribed by state law.”); McCalvin v.

around 4:30 a.m. (T. 410, 411). Senkowski, 160 F. Supp. 2d 586, 589

Additionally, the Court notes that the intent (S.D.N.Y. 2001) (“Sentencing decisions are

requirement for a conviction of murder in the not cognizable on habeas corpus review

second degree under New York law is unless the sentence imposed falls outside the

satisfied by the evidence that petitioner shot range prescribed by state law.”); Thomas v.

Berry multiple times at close range. See Senkowski, 968 F. Supp. 953, 956 (S.D.N.Y.

People v. Bell, 844 N.Y.S.2d 407, 408 (2nd 1997) (dismissing excessive sentence claim

Dep’t 2007) (finding that shooting the victim where petitioner’s sentence fell within the

twice at close range is enough to satisfy statutorily prescribed range.).

intent); People v. Hogan, 631 N.Y.S.2d 405,

405 (2nd Dep’t 1995) (“The defendant’s b. Application

intent to cause the death of another person

On appeal, the Appellate Division

(see Penal Law §125.25 [1]), is manifest in

concluded that petitioner’s sentence was

his act of repeatedly shooting at the witnesses

neither harsh nor excessive. Rubin, 39

at close range.”) (citing People v. Horton, 18

N.Y.S.3d at 76. For the reasons discussed

N.Y.2d 355, 359 (N.Y. 1966))).

below, this Court concludes that the

Thus, the Court concludes that, based Appellate Division’s holding was not

upon the testimony and evidence presented to contrary to, nor an unreasonable application

the jury, petitioner’s claim that his conviction of, clearly established federal law.

is legally insufficient is meritless.

The Court concludes that petitioner’s

sentence was within the permissible range

5. Harsh and Excessive Sentence

prescribed by New York state law, and thus

As noted above, petitioner was sentenced there is no federal question for habeas

to twenty years’ to life imprisonment on the review. See White, 969 F.2d at 1383. Here,

crime of murder in the second degree. petitioner was found guilty of murder in the

Petitioner now contends that the sentence second degree in New York. (Pet. 1). New

imposed by the trial court of twenty years to York classifies murder in the second degree

life is harsh and excessive. (Pet. 16). as a class “A-1” felony. See Penal Law

§125.25. The sentencing range for a class A-

1 felony under New York law is an

indeterminate term with a range of 15 years enter judgment accordingly and close this

to life to 25 years to life. See Penal Law case.

§70.00. In petitioner’s case, the trial court

sentenced petitioner to 20 years to life, which

falls within the statutorily prescribed range. SO □

Therefore, petitioner’s harsh and excessive

claim does not raise a federal constitutional

issue. See Nash v. Green Haven Corr.

Facility, No. 10-CV-003113 (FB), 2014 WL

4165366, at *14 (E.D.N.Y. Aug. 12, 2014) SEPH F. BIANCO

(finding no federal question for habeas nited States Circuit Judge (sitting

review concerning New York sentence of 25 y designation)

years to life for murder in the second degree).

Dated: August 5, 2019

Accordingly, as petitioner’s sentence Central Islip, New York

falls within the statutorily prescribed range,

there is no basis for habeas relief on these * * *

grounds. Petitioner proceeds pro se. Respondent is

represented by Timothy D. Sini, District

IV. CONCLUSION Attorney of Suffolk County and Karla L.

Lato, Assistant District Attorney, Suffolk

For the reasons set forth above, the Court County District Attorney’s Office, 200

concludes that petitioner has demonstrated no Center Drive, Riverhead, NY 11901

basis for habeas relief under 28 U.S.C.

§ 2254. Therefore, the petition for a writ of

habeas corpus is denied in its entirety.

Because petitioner has failed to make a

substantial showing of a denial of a

constitutional right, no certificate of

appealability shall issue. See 28 U.S.C.

§ 2253(c)(2). 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,

and, therefore, in forma pauperis status is

denied for the purpose of any appeal. See

Coppedge v. United States, 369 U.S. 438,

444.45 (1962). The Clerk of the Court shall

6 To the extent petitioner claims that his sentence is

cruel and unusual punishment under the Eighth

Amendment, the Court rejects such a claim on this

same basis. In any event, the Court finds no basis to

conclude that petitioner’s sentence of twenty years to

life imprisonment is so grossly disproportionate to the

crime committed so as to violate his Eighth

Amendment rights given the nature of his criminal

activity in this case.

22