# Rubin v. Lamanna

> District Court, E.D. New York · August 5, 2019

URL: https://www.frixlaw.com/law-library/cases/10302779

## Case

- **Court:** District Court, E.D. New York
- **Decided:** August 5, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10302779. Public record. Not legal advice.