Ross v. People of the State of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

------------------------------------X

RAY ROSS,

Petitioner,

MEMORANDUM AND ORDER

-against- 18-CV-7219(JS)

FILED

PEOPLE OF THE STATE OF NEW YORK, CLERK

8/8/2019 12:  12 pm

Respondent.

-------------------------------------X U.S. DISTRICT COURT

APPEARANCES EASTERN DISTRICT OF NEW YORK

For Petitioner: Ray Ross, pro se LONG ISLAND OFFICE

#16-A-2823

Fishkill Correctional Facility

271 Matteawan Road

P.O. Box 1245

Beacon, New York 12508

For Respondent: John B. Latella, Esq.

Assistant District Attorney

Nassau County District Attorney’s Office

262 Old Country Road

Mineola, New York 11501

SEYBERT, District Judge:

From March 2013 until June 2014, Raymond Ross (“Ross” or

“Petitioner”) repeatedly sexually abused M.J.,1 a then-twelve-

year-old girl. Following a jury trial, Ross was convicted of one

count of Course of Sexual Conduct Against a Child in the Second

Degree in violation of New York Penal Law § 130.80(1)(b) and two

counts of Endangering the Welfare of a Child in violation of New

York Penal Law § 260.10(1). Ross’s subsequent appeals in New York

1 For purposes of confidentiality pursuant to Civil Rights Law

§ 50-b, the victim is referred to herein as “M.J.” M.J. is also

referred to as “Patty” at times in the trial transcript.

State Courts were unsuccessful, and Ross then filed this pro se

Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

(Pet., D.E. 1.) Ross raises four issues in his Petition: (1)

sufficiency of the evidence; (2) ineffective assistance of

counsel; (3) failure to disclose a witness’s criminal record; and

(4) improper preclusion of witness testimony. For the following

reasons, the Petition is DENIED in its entirety.

BACKGROUND

The Court begins its inquiry with a general overview,

adding greater detail in the ensuing analysis. As is typical in

habeas proceedings, the facts in this case are viewed in the light

most favorable to the verdict. See People v. Conway, 668 F.3d 79,

80 (2d Cir. 2012).

I. The Offense Conduct

From March 2013 to June 2014, Ray Ross sexually abused

M.J., a twelve-year-old minor. Ross lived with his girlfriend,

Tara Johnson (“Tara”), in the upstairs bedroom of a single-family

residence in West Hempstead, New York. (Tr. 748-50.)2 At the same

time, M.J. lived with her mother and Tara’s sister, Sarita Johnson

(“Johnson”), and her other siblings on the first floor of the

2 Trial Transcripts can be found as follows: Trial Transcript

(“Tr.”) pp. 1-353, D.E. 7-1; Tr. pp. 354-738, D.E. 7-2; Tr. pp.

739-1041, D.E. 7-3; Tr. pp. 1042-1326, D.E. 7-4; and Tr. pp.

1327-1481, D.E. 7-5. Sentencing Transcript can be found at

D.E. 7-13.

house. (Tr. 449:20-22, 515:8-12, 745:3-747:9.) Ross would assist

Johnson, who worked odd jobs and relied on child support for

income, with paying bills. (Tr. 446:3-15, 519:20-520:4.)

In March 2013, when M.J. was in sixth grade, she began

“hanging out” with Ross, who she referred to “Ray Ray.” (Tr.

755:1-756:6, 1320:3-7.) Ross was on disability and often remained

at home watching television in his room with the only functional

television set in the house. (Tr. 448:14-19, 450:12-25, 533:3-9,

888:8-20.) At first, Ross’s door remained open while in the

company of M.J., but he eventually began closing it during visits.

(Tr. 451:1-5.) While clothed in only a t-shirt and boxer shorts,

Ross would repeatedly touch M.J.’s breasts and buttocks beneath

her undergarments. When M.J. asked Ross what he was doing, he

responded “nothing.” (Tr. 757:18-758:25). The course of conduct

continued “once or twice a week” and intensified as Ross touched

M.J.’s vagina and fondled her breasts while masturbating. (Tr.

762:3-765:12.) Throughout the summer of 2013, Ross had M.J. lie

face down on his bed with her pants pulled down. He would place

his penis on M.J.’s buttocks and ejaculate on her backside (Tr.

776:21-779:2.)

Moreover, on his way home from weekend excursions with

M.J. to visit his ex-wife Paula Ross in Brooklyn, Ross would often

stop in the parking lot of a West Hempstead store and touch M.J.’s

breasts, buttocks, and vagina under her clothing while they sat in

the back seat of his truck. (Tr. 772:3-773:8.) Ross would pull

M.J.’s pants down halfway and then pull his pants down halfway

exposing himself to M.J. (Tr. 773:9-16.) M.J. recounts Ross

kissing her neck, licking her vagina, and placing her hand on his

erect penis to masturbate him until he ejaculated. (Tr. 773:17-

774:23, 775:21-776:12.) Ross also told M.J. that he wanted to

“smash,” a term used to denote the act of sexual intercourse. (Tr.

774:24-775:14.) This conduct continued from September to December

30, 2013, when M.J. turned thirteen. (Tr. 782:3-10, 802:12-

803:14.)

During this period, Ross and M.J. exchanged hundreds of

calls and text messages on a cellphone Ross had purchased for her

in October 2013. (Tr. 783:1-8, 798-801.) After she received the

phone, Ross told M.J. via text that he “loves [her]” and that they

would someday “live in a house” together and that he would “buy

[her] a car.” (Tr. 801:4-11.) M.J. also began entering Ross’s

room almost every day with the door closed when Tara Johnson was

not home so that Ross could touch her breasts and vagina. (Tr.

803-06, 821-22.) The sexual abuse continued until June 2014, and

M.J. did not tell anyone about Ross’s actions because he threatened

to call “social services” on Johnson and she wanted Ross to

continue paying for things. (Tr. 806:13-23.) Furthermore, Ross

continued to take M.J. to Brooklyn almost every weekend and would

stop in the parking lot of a different West Hempstead store on the

way home because there were “too many people” at the old location.

Ross repeatedly pulled down M.J.’s pants, touched her breasts and

buttocks, licked her vagina, and masturbated. (Tr. 802:3-24,

810:17-25, 817:14-18, 819:2-23.)

Eventually in August 2014, Johnson observed Ross and

M.J. together on the bed in Ross’s room, confiscated M.J.’s

cellphone, and contacted the Nassau County District Attorney’s

Office. (Tr. 472:5-474:3, 482:3-483:12, 566:18-572:11.) Johnson

forbade M.J. from further contact with Ross, but Ross purchased

M.J. a second phone in October 2014 and continued to visit, text,

and call her on a frequent basis. (Tr. 842:15-23, 852:1-19, 912:5-

7, 949:5-11, 968:15-19.) After Johnson discovered M.J.’s second

phone that month and reviewed disturbing text messages exchanged

between Ross and M.J., Johnson took M.J. to the District Attorney’s

Office and sought orders of protection against Ross in Family

Court. (Tr. 484:14-22, 492:2-493:6, 501:5-502:1, 621:21-23,

622:20-24, 853:19-24, 854:1, 863:23-864:1, 898:4-14, 937-41.)

Ross then moved out of the family home. (Tr. 863:8-22.)

On December 10, 2014, M.J. and Johnson spoke with Nassau

County Police Detective Rhubens Toussaint in his vehicle down the

street from the Johnson residence. (Tr. 503:11-22, 577:19-582:12,

629:10-630:23.) That same night, Detective Toussaint received a

signed statement from both M.J. and her mother. (587:7-588:19,

653:21-654:21, 910:5-911:1-10.) He also collected the two cell

phones which contained 520 pages of records showing calls and text

messages between Ross and M.J. (Tr. 632:8-12, 678:13-19, 724:17-

18, 788:21-23, 867:10-19.) Ross surrendered to authorities

thereafter (Tr. 656:17-658:6) and was charged with Course of Sexual

Conduct Against a Child in the First and Second Degrees (New York

Penal Law §§ 130.75(1)(b), 130.80(1)(b)), and two counts of

Endangering the Welfare of a Child (New York Penal Law § 260.10(1))

for conduct that occurred from March 1, 2013 through December 29,

2013 and December 30, 2013 through October 17, 2014, respectively

(see Aff., D.E. 7-6).

II. The Jury Trial

A. Summary of Proceedings

The jury trial began on February 4, 2016, in the Supreme

Court of the State of New York, County of Nassau, before Justice

Terrence P. Murphy. (See Tr. at 1.) Witness testimony commenced

on February 9. (Tr. at 354.) The prosecution called five

witnesses: Sarita Johnson (Tr. 437-625), Nassau County Police

Detective Rhubens Toussaint (Tr. 626-688), Sprint Records

Custodian Kelly Walker (Tr. 695-735), M.J. (Tr. 744-993), and

Nassau County Child Advocacy Center Director Joshua Hanson (Tr.

994-1030). Ross called seven witnesses: Rafael Mickens (Tr. 1068-

1086), George Mickens (Tr. 1092-1102), Paula Ross (Tr. 1103-1131),

Jasmyn Ross (Tr. 1146-1160), Justyn Ross (Tr. 1161-1172), Tara

Johnson (Tr. 1195-1259), and Ray Ross (Tr. 1263-1324). Upon

completion of closing statements, the jury was instructed on the

applicable law.

On February 23, 2016, after three days of deliberation,

the jury convicted Ross of Course of Sexual Conduct Against a Child

in the Second Degree, and two counts of Endangering the Welfare of

a Child. (Tr. 1473-75.) On June 30, 2016, Ross was sentenced to

three years in prison followed by five years of post-release

supervision for the Course of Sexual Conduct Against a Child

conviction, as well as one year in prison on each of the

Endangering the Welfare of a Child convictions. The court directed

that Ross’s sentences run concurrently and imposed a lifetime order

of protection in favor of M.J. (Sentencing Tr. 25-26.)

B. Pertinent Arguments

At trial, defense counsel strenuously attempted to

discredit M.J.’s and Johnson’s testimony. The court denied

counsel’s request for a copy of Johnson’s NYSIS record and

precluded a defense witness from testifying on a collateral matter.

Specifically, while the parties were still selecting a jury,

Johnson informed the prosecutor that she had been arrested for

shoplifting in 2014 and had been granted an adjournment in

contemplation of dismissal (“ACD”) to resolve the case. (Tr.

229:10-230:12.) Upon receiving this information, defense counsel

requested that the prosecutor conduct a complete search of

Johnson’s criminal background and turn the report over pursuant to

Brady and Giglio.3 (Tr. 229:18-236:25.) However, the prosecutor

had already searched Johnson’s criminal history and informed the

court that any records relating to the adjournment in contemplation

of dismissal would be sealed and therefore inaccessible. (Tr.

230:8-12.) The court inspected Johnson’s NYSIS record and

determined it was blank, but still instructed the prosecutor to

“gather as much information as possible” regarding the 2014

incident. (Tr. 233:7-10, 289:20-23, 291:13-16.)

Upon further examination, the prosecutor learned that

there was “only one record of any criminal matter,” namely,

Johnson’s guilty plea for disorderly conduct in relation to a petit

larceny charge in 1995. (Tr. 291:17-292:8.) Defense counsel again

renewed his argument, insisting that the 2014 case was “perhaps”

Johnson’s “wedge to try to help herself” and that Johnson may have

had a “vested interest” in accusing Ross of sexual abuse to receive

an adjournment in contemplation of dismissal (Tr. 359:1-10, 512:

21-513:13.) Thereafter, the court ruled that “there [was] no

criminal conviction, so there [was] no obligation on the assistant

district attorney to provide anything else to defense counsel.”

3 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215

(1963); Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31

L. Ed. 2d 104 (1972).

(Tr. 363:14-18.) Johnson’s record was then marked as a court

exhibit. (Tr. 353:11-12.)

Also relevant for purposes of this Petition is that

midway through the defense case, defense counsel informed the court

that, during a weekend recess, Johnson had contacted the Nassau

County Police Department to make a trespass allegation against her

neighbor, Denise Sawyer. (Tr. 740:5-742:3.) Although defense

counsel did not initially plan to call Sawyer as a witness, counsel

told the court that “maybe” Sawyer had witnessed interactions

between Ross and M.J. and that she could perhaps elucidate Johnson’s

“bias” and “reputation in the community.” (Tr. 1141:17-22,

1179:12-16, 1183:10-17.) In addition, defense counsel argued that

interactions between Johnson and Sawyer could affect Johnson’s

credibility. (Tr. 1034:12-1035:12, 1040:24-1041:9.) However,

relying on People v. Seabrook, 76 A.D.3d 606 (2d Dept. 2010), and

other cases4, the prosecutor asserted that the matter was

“collateral” and irrelevant to the present case. (Tr. 742:20-22,

1054:2-9, 1179:18-22.) The trial court agreed, finding Sawyer

could not offer “any meaningful testimony” and precluded her

testimony at trial. (Tr. 1185:14-19, 1191:19-22.)

4 People v. Ruiz, 18 A.D.3d 220 (1st Dept. 2005); People v. Lyons,

2010 WL 4227250 (Sup. Ct., Queens Cty., Oct. 10, 2010).

III. Post-Trial Proceedings

Ross, with appellate counsel, appealed his conviction to

the Appellate Division, Second Department on the following

grounds: (1) defense counsel was ineffective because counsel

failed to argue that the evidence was insufficient based on lack

of corroboration; (2) Ross was denied a fair trial because (a) the

defense should have been given Sarita Johnson’s NYSIS criminal

record for use during cross-examination, and (b) the defense should

have been allowed to call a witness during its rebuttal to impeach

the credibility of Sarita Johnson; and (3) M.J.’s testimony was

not corroborated to prove Ross’s guilt beyond a reasonable doubt.

(See Ross A.D. Br., Points I-III, D.E. 7-7, at 7-17.)

The Second Department affirmed his conviction. People

v. Ross, 159 A.D.3d 925, 70 N.Y.S.3d 62 (2d Dept. 2018). First,

the court held that the legal sufficiency claim, predicated on a

lack of corroboration, was “unpreserved for appellate review.”

Id. at 926. In any event, the Court found that it was “without

merit” because corroboration of the complainant’s testimony is not

required under Penal Law §§ 130.16 and 260.11 when lack of consent

does not result from incapacity to consent due to “‘mental defect

or incapacity.’” Id. (quoting People v. Pumarejo, 222 A.D.2d 616,

635, N.Y.S.2d 290 (2d Dep’t 1995)). Second, the Appellate Division

found that the People satisfied their discovery obligations under

CPL 240.45(1)(b) and (c) by disclosing to the defense “any known

judgments of conviction or pending criminal actions relating to

the prosecution’s witnesses,” including Sarita Johnson. Id.

Third, the court determined that Ross was not deprived of effective

assistance of counsel because “the record as a whole demonstrates

that counsel provided [Ross] with meaningful representation.” Id.

Finally, the court concluded that Ross’s remaining contentions

were wholly without merit. Id.

Following the Second Department’s decision and order,

Ross sought leave to appeal to the New York Court of Appeals on

the same grounds listed in his appellate brief. (Apr. 2018 Leave

Letter, D.E. 7-10.) The Court of Appeals denied leave to appeal

on June 28, 2018. People v. Ross, 31 N.Y.3d 1121, 106 N.E.3d 764

(2018). Ross then filed this Petition on December 17, 2018,

claiming he is entitled to relief for the reasons raised on direct

appeal.

DISCUSSION

The Court will first address the applicable legal

standard before turning to the merits of the Petition.

I. The Legal Standard

Congress enacted the Antiterrorism and Effective Death

Penalty Act (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996),

to restrict “the power of federal courts to grant writs of habeas

corpus to state prisoners.” Williams v. Taylor, 529 U.S. 362,

399, 120 S. Ct. 1495, 1516, 146 L. Ed. 2d 389 (2000). A state

prisoner seeking habeas corpus relief under Section 2254 must show

that he is “in custody in violation of the Constitution or laws or

treaties of the United States.” 28 U.S.C. § 2254(a). Section

2254, as amended by AEDPA, provides, in part, that:

An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the

judgment of a State court shall not be granted

with respect to any claim that was not

adjudicated on the merits in State court

proceedings unless the adjudication of the

claim--

(1) resulted in a decision that was contrary

to, or involved an unreasonable application

of, clearly established Federal law, as

determined by the Supreme Court of the United

States.

28 U.S.C. § 2254(d)(1).

AEDPA established a deferential standard of relief,

seeking to “avoid [ ] unnecessarily ‘disturbing the State’s

significant interest in repose for concluded litigation, denying

society the right to punish some admitted offenders, and intruding

on state sovereignty to a degree matched by few exercises of

federal judicial authority.’” Virginia v. LeBlanc, 137 S. Ct.

1726, 1729, 198 L. Ed. 2d 186 (2017) (quoting Harrington v.

Richter, 562 U.S. 86, 103, 131 S. Ct. 770, 787, 178 L. Ed. 2d 624

(2011)) (brackets omitted). Accordingly, a habeas corpus petition

is not a vehicle to relitigate every issue previously determined

in state court. Herrara v. Collins, 506 U.S. 390, 401, 113 S. Ct.

853, 861, 122 L. Ed. 2d 203 (1993). Ultimately, “the petitioner

bears the burden of proving by a preponderance of the evidence

that his constitutional rights have been violated.” Jones v.

Vacco, 126 F.3d 408, 415 (2d Cir. 1997); see also Hawkins v.

Costello, 460 F.3d 238, 246 (2d Cir. 2006).

Therefore, a federal court may not grant a writ of habeas

corpus unless the state court’s adjudication of the claim either:

“(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or (2)

resulted in a decision based on an unreasonable determination of

the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d).

The Supreme Court has construed AEDPA “to give

independent meaning to ‘contrary [to] and ‘unreasonable.’” Jones

v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000). A state court’s

decision is “contrary to” clearly established federal law if “the

state court arrives at a conclusion opposite to that reached by

[the Supreme] Court on question of law or if the state court

decides a case different than [the Supreme] Court has on a set of

materially indistinguishable facts.” Williams, 529 U.S. at 412-

13, 120 S. Ct. at 1523.

On the other hand, a decision involves “an unreasonable

application” of clearly established federal law when a state court

“identifies the correct governing legal principle from [the

Supreme] Court’s decisions but unreasonably applies that principle

to the facts of the prisoner’s case.” Id. at 413, 120 S. Ct. at

1523. This standard does not require that all reasonable jurists

agree that the state court was wrong; rather, the standard “falls

somewhere between ‘merely erroneous and unreasonable to all

reasonable jurists.’” Jones, 229 F.3d at 119 (quoting Francis S.

v. Stone, 221 F.3d 100, 109 (2d Cir. 2000)).

AEDPA “‘imposes a highly deferential standard for

evaluating state-court rulings and demands that state-court

decisions be given the benefit of the doubt.’” Jones v. Murphy,

694 F.3d 225, 234 (2d Cir. 2012) (quoting Hardy v. Cross, 565 U.S.

65, 66, 132 S. Ct. 490, 491, 181 L. Ed. 2d 468 (2011)). Section

2254(d), as amended by AEDPA, “stops short of imposing a complete

bar on federal-court relitigation of claims already rejected in

state proceedings.” Harrington, 562 U.S. at 102, 131 S. Ct. at 786.

Assuming that a petitioner’s claims are cognizable on

habeas review, a petitioner must first exhaust state court remedies

before coming to federal court. Exhaustion requires that a

petitioner fairly present the claim in state court, allowing the

state court the “‘opportunity to pass upon and correct alleged

violations of its prisoners’ federal rights.’” See Jackson v.

Edwards, 404 F.3d 612, 619 (2d Cir. 2005) (quoting Picard v.

Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 512, 30 L. Ed. 2d 438

(1971)). “A petitioner has ‘fairly presented’ his claim only if

he has ‘informed the state court of both the factual and the legal

premises of the claim he asserts in federal court.’” Jones v.

Keane, 329 F.3d 290, 294-95 (2d Cir. 2003) (quoting Dorsey v.

Kelly, 112 F.3d 50, 52 (2d Cir. 1997)). “Specifically,

[petitioner] must have set forth in state court all of the

essential factual allegations asserted in his federal petition; if

material factual allegations were omitted, the state court has not

had a fair opportunity to rule on the claim.” Daye v. Attorney

Gen. of N.Y., 696 F.2d 186, 191-92 (2d Cir. 1982) (collecting

cases).

In addition, a federal court will not review a habeas

petition if a petitioner’s claims were decided at the state level

on “independent and adequate” state procedural grounds. Coleman

v. Thompson, 501 U.S. 722, 731-32, 111 S. Ct. 2546, 2555, 115 L.

Ed. 2d 640 (1991). This procedural bar applies even if the state

court addressed the merits in the alternative but decided the claim

on independent procedural grounds. Velasquez v. Leonardo, 898

F.2d 7, 9 (2d Cir. 1990). To obtain review of procedurally barred

claims, a state prisoner must show either (1) “cause for the

default and actual prejudice as a result” or (2) actual innocence

such that “failure to consider the claims will result in a

fundamental miscarriage of justice.” Coleman, 501 U.S. at 750,

111 S. Ct. at 2565.

II. The Petition

In the Petition, Ross renews the arguments made on direct

appeal, specifically that: (1) his convictions were not supported

by legally sufficient evidence; (2) he was denied effective

assistance of counsel in violation of the Sixth Amendment of the

United States Constitution; (3) he was deprived of a fair trial

because the court refused to order the prosecutor to turn over a

witness’s criminal record; and (4) the court erroneously precluded

a witness from testifying on his behalf. The Court will address

each of his claims in turn.

As a threshold matter, because Ross’s submissions were

filed pro se, the Court will liberally construe them and interpret

them “‘to raise the strongest arguments that they suggest.’”

Kirkland v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014)

(quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).

However, the leeway afforded does not excuse Ross “‘from

compl[ying] with relevant rules of procedural and substantive

law,’” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (quoting

Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981)), as he “bears

the burden of proving by a preponderance of the evidence that his

constitutional rights have been violated.” Jones v. Vacco, 126

F.3d 408, 415 (2d Cir. 1997).

A. Legal Sufficiency of the Evidence

First, Ross challenges the sufficiency of the evidence

to support his convictions for Course of Sexual Conduct and

Endangering the Welfare of a Child. (Pet. at 8.) His primary

argument is that M.J.’s testimony was not corroborated as to

“anything improper” occurring in Ross’s bedroom or truck. (Pet.

Ex., D.E. 1-1, at ECF p.4.) Ross also contends that, although his

text message exchanges with M.J. reveal a “close relationship,”

these messages do not “indicate any sexual activity” and are

consistent with “the care and concern of an adoptive or surrogate

uncle for a niece.” (Pet. Ex. at ECF p.4.) The Court finds Ross’s

sufficiency claim is procedurally barred from habeas corpus review

and, in any event, without merit.

At trial, the defense did not argue that the proof was

insufficient because it was uncorroborated. When Ross raised this

claim for the first time on direct appeal to the Second Department,

that court ruled that it was “unpreserved for appellate review”

and, in any event, “without merit.” Ross, 159 A.D.3d at 926.

Thus, the state courts in this case have “expressly relied on a

procedural default as an independent and adequate state ground” in

denying Petitioner’s unpreserved claim. Velasquez, 898 F.2d at 9.

The Second Circuit has made clear that “federal courts

generally will not consider a federal issue in a case if the

decision of the state court rests on a state law ground that is

independent of the federal question and is adequate to support the

judgment.” Garvey v. Duncan, 485 F.3d 709, 713 (2d Cir. 2007)

(internal quotation marks and citation omitted). The failure to

preserve an issue for appellate review is such an independent and

adequate state law ground. Id. at 720 (finding that “the

procedural bar of [C.P.L.] § 470.05(2) constitutes an independent

and adequate state ground for the Appellate Division’s holding”).

Accordingly, Ross’s claim that his conviction was unsupported by

legally sufficient evidence is procedurally barred from this

Court’s review. See Rattray v. Brown, 261 F. Supp. 2d 149, 156

(E.D.N.Y. 2003) (“It is well settled that where a state court

decision states that a claim is procedurally barred, and then rules

‘in any event’ on the merits, the claim is procedurally barred”)

(citing Harris v. Reed, 489 U.S. 255, 264, 109 S. Ct. 1038, 1044,

103 L. Ed. 2d 308 (1989); Velasquez, 898 F.2d at 9).

Exploring all potential legal arguments because of

Ross’s pro se status, Ross could nonetheless overcome the

procedural bar by (1) establishing cause for his default and

resulting prejudice, or (2) demonstrating that this Court’s

failure to review his claim will result in a fundamental

miscarriage of justice because, for example, he is actually

innocent of the crimes for which he was convicted. See Coleman v.

Thompson, 501 U.S. 722, 749-50, 111 S. Ct. 2546, 2564-65, 115 L.

Ed. 2d 640 (1991); Murray v. Carrier, 477 U.S. 478, 496, 106 S. Ct.

2639, 2649, 91 L. Ed. 2d 397 (1986). However, Ross does not make

any showing with respect to these standards. He does not allege

any cause for procedural default, let alone demonstrate that he

was prejudiced as a result. See Velasquez, 898 F.2d at 9.

Moreover, Ross does not make a showing that he is actually innocent

of the charges for which he was convicted. Thus, the Court finds

this claim procedurally barred from habeas review.

Assuming arguendo that there was no procedural bar, Ross

still would not be entitled to habeas relief based on the merits

of his sufficiency claim. Ross fails to establish that the state

court’s conclusion--that the evidence was legally sufficient to

support his convictions--resulted in a decision that is contrary

to, or involves an unreasonable application of, United States

Supreme Court precedent. See 28 U.S.C. §2254(d)(1). An

“unreasonable application of” United States Supreme Court

precedent “must be ‘objectively unreasonable,’ not merely wrong;

even ‘clear error’ will not suffice.” White v. Woodall, 572 U.S.

415, 419, 134 S. Ct. 1697, 1702, 188 L. Ed. 2d 698 (2014) (quoting

Lockyer v. Andrale, 538 U.S. 63, 75-76, 123 S. Ct. 1166, 1174, 155

L. Ed. 2d 144 (2003)). Instead, “[a]s a condition for obtaining

habeas corpus from a federal court, a state prisoner must show

that the state court’s ruling on the claim being presented in

federal court was so lacking in justification that there was an

error well understood and comprehended in existing law beyond any

possibility for fairminded disagreement.” Id. at 419-20 (internal

quotation marks and citation omitted).

The settled standard for reviewing legal sufficiency

claims is “whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could

have found the essential elements of a crime beyond a reasonable

doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,

2789, 61 L. Ed. 2d 560 (1979) (emphasis in original). Thus, “a

petitioner ‘bears a very heavy burden’ when challenging the legal

sufficiency of the evidence in an application for a writ of habeas

corpus.” Ayala v. Ercole, No. 06-CV-1747, 2007 WL 1135560, at *6

(E.D.N.Y. Apr. 17, 2007) (quoting Eingaugler v. S. Ct. of the State

of N.Y., 109 F.3d 836, 840 (2d Cir. 1997)).

In this case, the People were required to prove that

Ross, “over a period of time not less than three months in duration

. . . being eighteen years old or more, engage[d] in two or more

acts of sexual conduct with a child less than thirteen years old.”

N.Y. PENAL LAW § 130.80(1)(b). Additionally, the People were

required to prove lack of consent because M.J. was incapable of

consent, either by being inter alia, less than seventeen years of

age, mentally disabled, or mentally incapacitated. N.Y. PENAL LAW

§§ 130.05(1); (2)(b); (3)(a)-(c). Regarding the child

endangerment charges, the People were required to prove that Ross

“knowingly act[ed] in a manner likely to be injurious to the

physical, mental, or moral welfare of a child less than seventeen

years old.” N.Y. PENAL LAW § 260.10(1).

An additional burden is imposed on the People to

corroborate a victim’s testimony only when the lack of consent

arises “solely from incapacity to consent because of the victim’s

mental defect, or mental incapacity.”5 N.Y. PENAL LAW § 130.16.

Noticeably absent from the statutory language is an age

requirement. Instead, courts in New York State follow “the long-

standing rule that the necessity of corroboration of the testimony

of a child under the age of 12 rests solely on whether, as

determined by the judge before whom the testimony is to be given,

the child understands the nature of an oath.” People v. Fuller,

50 N.Y.2d 628, 636, 409 N.E.2d 834 (1980).

Here, the prosecution was not required to corroborate

M.J.’s testimony. The evidence shows that M.J., a successful

student, did not suffer from any mental disease or defect. In his

own testimony, Ross praised M.J.’s success in school as an honors

5 If the essence of the endangering charge is conduct that would

constitute a crime under Article 130 of the New York Penal Law,

then the People must also satisfy the corroboration requirement

when the victim lacks capacity to consent because of “mental defect

or incapacity.” N.Y. PENAL LAW § 260.11.

student (Tr. 1296:4-1297:18, 1307:18-21.) See Pumarejo, 222

A.D.2d at 616 (“corroboration is required only in sexual offense

cases in which the victim is incapable of consent because of mental

defect or incapacity, a situation which was not shown to exist

here”).

Furthermore, because it is undisputed that M.J. was

fifteen years of age when she testified at trial, she was permitted

to give sworn testimony without the court inquiring into whether

she was fit to do so. Cf. People v. Mendoza, 49 A.D.3d 559, 560,

853 N.Y.S.2d 364 (2d Dep’t 2008) (holding that “the [trial court]

providently exercised its discretion in determining that the five-

year-old complainant was competent to give sworn testimony);

People v. McLoud, 291 A.D.2d 867, 867, 737 N.Y.S.2d 216 (4th Dep’t

2002) (finding that where the defendant was convicted of course of

sexual conduct in the first degree, corroboration was unnecessary

because “the 11-year-old victim gave sworn testimony and she was

not incapable of consent . . . because of mental defect or

incapacity” (internal quotation marks and citations omitted)).

Thus, the evidence presented at trial was legally sufficient to

convict Ross and did not require corroboration.

Even if, arguendo, Ross were correct that corroboration

was necessary, this Court would reach the same result because the

People indeed provided sufficient evidence to corroborate M.J.’s

testimony. It is well-settled law that the corroboration

requirement of sections 130.16 and 260.11 of the New York Penal

Law “may be satisfied with circumstantial evidence and need not

point to the particular form” of the offending conduct. People v.

De Berry, 76 A.D.2d 933, 933, 429 N.Y.S.2d 268 (2d Dep’t 1980).

Despite Ross’s bald assertion that “there was no corroboration of

the alleged offense,” there was ample circumstantial evidence

corroborating defendant’s sexual conduct. (Pet. at 8.) For

example, M.J. testified that Ross would sexually abuse her while

he and M.J. were alone in his bedroom watching television.

Consistent with M.J.’s testimony, Johnson walked into Ross’s room

while the door was closed in August 2014 and personally observed

M.J. sitting next to Ross on his bed while he was lying down. (Tr.

472:5-473:9, 824:9-826:3.)

M.J. also described in explicit detail how Ross would

sexually abuse her in the back seat of his white truck when she

and Ross stopped in parking lots upon returning to West Hempstead

from weekend trips to Brooklyn. (Tr. 772:3-776:12.) Multiple

defense witnesses testified, along with Johnson, as to these

weekend excursions and details about Ross’s vehicle. (Tr. 451:18-

455:23, 1150:18-1155:20, 1157:8-17, 1163:16-1164:12, 1218:21-

1219:24.) Ross himself even admitted to being alone with M.J.

many times in his truck and in his room. (Tr. 1306:11-1307:7.)

This information arguably is enough to corroborate the charges of

which Ross was convicted. See People v. Dickson, 112 A.D.2d 312,

312, 491 N.Y.S.2d 759 (2d Dep’t 1985) (finding corroboration when

the “testimony of the 12-year-old complainant, the defendant’s

niece, was specific concerning the details of the [sexual]

incident, and closely paralleled the defendant’s own account of

his activities with the complainant on the day in question insofar

as they relate to the specifics of time and place”).

Additionally, Ross attempts to argue that the hundreds

of text messages exchanged with M.J. were innocuous. The Court

does not agree. In a series of messages and calls totaling 520

pages of evidence, some of which were sent between the hours of

1:00 a.m. and 4:00 a.m., Ross told M.J., inter alia, that he “loved

her,” (Tr. 1316:23-24); that M.J was “in danger of losing [him],”

(Tr. 1317:7-9); that he would “never find another [M.J.], you’re

my heart,” (Tr. 1317:13-16); and that “part of him died” when

Johnson forbid M.J. from seeing Ross again (Tr. 1317:46). Ross

also was upset because M.J. would not call to say, “hi Ray Ray,”

(Tr. 1320:4-7); admonished M.J. for “forget[ting] who loves you

and take[s] care of you,” (Tr. 1320:3-7); and threatening that

M.J. would “lose [him],” (Tr. 1320:5-7). Although Ross admits

that these messages were sent on phones that he paid for and which

he wanted to keep secret from Johnson, he downplays the

significance of this circumstantial evidence given the ongoing

sexual abuse inflicted upon M.J. See People v. Scaringe, 137

A.D.3d 1409, 1418, 27 N.Y.S.3d 712 (3d Dep’t 2016) (describing how

the victim’s testimony was corroborated “most significantly, by

the multiple text messages introduced into evidence in which

defendant, among many other things, described the day on which the

victim claimed that they had sexual intercourse as ‘a dream come

true’”).

For the foregoing reasons, the Appellate Division’s

decision that the evidence was legally sufficient to establish

Ross’s guilt was not an unreasonable application of United States

Supreme Court precedent. A rational trier of fact could have

concluded that Ross was guilty of the Course of Sexual Conduct and

Endangering the Welfare of a Child charges for which he was

convicted. Thus, Ross’s legal sufficiency of the evidence claim

is rejected.

B. Ineffective Assistance of Counsel

Second, Ross asserts that he was denied effective

assistance of counsel under the Sixth Amendment. (Pet. at 5.)

Specifically, Ross argues that he was “denied the benefit of

counsel who understood the issues and raised them” because defense

counsel “did not make any mention of corroboration of the acts of

which [M.J.] complained.” (Pet. Ex. at ECF p.2.) Because Ross’s

first claim is wholly without merit and is the sole premise on

which his ineffective assistance claim is based, his conclusory

assertion that his attorney was ineffective suffers the same fatal

flaw.

The Sixth Amendment of the Constitution guarantees the

right to effective assistance of counsel in criminal proceedings.

See U.S. CONST., Amend. VI. In Strickland v. Washington, 466 U.S.

668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States

Supreme Court developed the modern two-pronged test for evaluating

ineffective assistance claims. First, “the defendant must show

that counsel’s representation fell below an objective standard of

reasonableness.” Id. at 688. Second, “[t]he defendant must show

that there is a reasonable probability that, but for the counsel’s

unprofessional errors, the result of the proceeding would have

been different.” Id. at 694. Scrutiny of counsel’s performance

under Strickland is highly deferential; a reviewing court “must

indulge a strong presumption that counsel’s conduct falls within

the range of reasonable professional assistance. Id. at 689.

Moreover, when an ineffective assistance of counsel

claim arises from a federal habeas corpus petition, the standard

of review is “doubly” deferential:

The pivotal question is whether the state

court’s application of the Strickland standard

was unreasonable. This is different from

asking whether defense counsel’s performance

fell below Strickland’s standard. . . . For

purposes of § 2254(d)(1), “an unreasonable

application of federal law is different from

an incorrect application of federal law.” . .

. A state court must be granted a deference

and latitude that are not in operation when

the case involves review under the

Strickland standard itself.

. . . Even under de novo review, the standard

for judging counsel’s representation is a most

deferential one.

Establishing that a state court’s application

of Strickland was unreasonable under

§ 2254(d) is all the more difficult. The

standards created by Strickland and §

2254(d) are both “highly deferential,” . . .

and when the two apply in tandem, review is

“doubly” so . . . Federal habeas courts must

guard against the danger of equating

unreasonableness under Strickland with

unreasonableness under § 2254(d).

Harrington v. Richter, 562 U.S. 86, 101-05, 131 S. Ct. 770, 785-

88, 178 L. Ed. 2d 624 (2011) (internal citations omitted) (emphasis

in original); accord Premo v. Moore, 562 U.S. 115, 121-22, 131 S.

Ct. 733, 739, 178 L. Ed. 2d 649 (2011).

Here, Ross’s claim fails under this demanding “doubly

deferential” standard. On Ross’s direct appeal, the Appellate

Division held that “the record as a whole demonstrates that counsel

provided the defendant with meaningful representation.” Ross, 159

A.D.3d at 926. Upon review of the extensive trial transcript and

relevant precedent, this Court agrees. Petitioner not only has

failed to establish that trial counsel was ineffective, but he has

also failed to establish that the state appellate court’s decision

regarding counsel’s performance was contrary to, or involved an

unreasonable application of, Strickland and its progeny.

First, as discussed supra, Ross’s ineffective assistance

of counsel claim depends on there being something for trial counsel

to have argued with respect to corroboration of the evidence. Yet,

as this Court already noted, corroboration was not a requirement

for the jury to convict Ross under the relevant provisions of the

New York Penal Law. Indeed, as a federal matter, there was ample

corroborating evidence. Trial counsel cannot--and should not--be

faulted for failing to make frivolous arguments that are legally

and factually incorrect. See Bierenbaum v. Graham, 607 F.3d 36,

52 (2d Cir. 2010) (finding that the petitioner was not deprived of

effective assistance of counsel when defense counsel failed to

make a motion that “would not have been granted” in any event);

Graziano v. United States, No. 12–CV–0738, 2013 WL 298116, at *12

(E.D.N.Y. Jan. 25, 2013) (counsel’s failure to make “a meritless

motion was certainly not ineffective”). (See also Tr. Counsel

Aff., D.E. 7-6.)

Furthermore, Ross cannot show that the Appellate

Division unreasonably applied the well-established standard set

forth in Strickland. Ross’s ineffective assistance claim was

before the Appellate Division when the court determined that trial

counsel provided Ross with “meaningful representation.” Ross, 159

A.D.3d at 926. The Appellate Division applied the appropriate

standard of review, citing, inter alia, People v. Baldi, 54 N.Y.2d

137, 429 N.E.2d 400, 444 N.Y.S.2d 893 (1981). Id. As the Second

Circuit has held, the “meaningful representation” standard from

Baldi “is not contrary to Strickland.” Rosario v. Ercole, 601

F.3d 118, 126 (2d Cir. 2010).

Likewise, the state court’s findings do not reflect an

unreasonable application of federal law under any standard of

review. Trial counsel served Ross well under the circumstances

given the serious allegations and corroborated circumstantial

evidence against him. (See Resp’t Br., D.E. 7, at 35; see also

Tr. Counsel Aff.) Because of defense counsel’s vigorous

presentation and cross-examination of key witnesses, the jury

acquitted Ross of the most serious charge of Course of Sexual

Conduct in the First Degree--a Class B Violent Felony punishable

by a minimum of five years imprisonment. N.Y. PENAL LAW

§ 70.02(3)(a)). For these reasons, Ross has failed to demonstrate

that defense counsel’s performance “fell below an objective

standard of reasonableness.” As such, this Court need not address

whether Ross was prejudiced under the second prong of Strickland

and rejects Ross’s ineffective assistance of counsel claim. See

Palacios v. Burge, 589 F.3d 556, 566 (2d Cir. 2009).

C. Disclosure of a Witness’s Criminal Record

Third, and once again repeating a claim denied on direct

appeal to the Appellate Division, Ross contends that he was

deprived of a fair trial when the court refused to order the

prosecutor to turn over a witness’s criminal record. (Pet. at 6.)

Ross requested certain “NYSIS information” concerning Johnson, the

mother of the complaining witness, arguing that Johnson used the

case as leverage to obtain an adjournment in contemplation of

dismissal (ACD) on a pending 2014 criminal matter against her.

(Pet. Ex. at ECF p.2.) At the outset, this Court could deny Ross’s

request for relief on this ground because it is unexhausted and

therefore not cognizable. However, because Ross is proceeding pro

se, the Court will also address the merits of the argument.

First, Ross has failed to exhaust this claim in the New

York State courts, which is required before this Court may consider

it. See 28 U.S.C. § 2254(b)(1)(A). To satisfy the exhaustion

requirement, a petitioner must have “fairly presented” his federal

claim to the state court. See Picard v. Conner, 404 U.S. 270,

275, 92 S. Ct. 509, 512, 30 L. Ed. 2d 438 (1971). Fair presentation

means raising the claim on direct appeal to the Appellate Division

and then seeking review from the Court of Appeals. See Grey v.

Hoke, 933 F.2d 117, 119 (2d Cir. 1991) (detailing how claims are

not fairly presented to New York courts where the petitioner fails

to include them in a letter seeking leave to appeal to the New

York Court of Appeals from the Appellate Division’s affirmance of

judgment).

However, a petitioner cannot simply go “through the

state courts.” Picard, 404 U.S. at 276, 92 S. Ct. at 512. Instead,

the state court must have the opportunity to consider “the

substance of [the] federal habeas corpus claim.” Id. at 278, 92

S. Ct. at 512. Thus, although the petitioner need not cite the

“book and verse on the federal constitution” (id.), a generalized

claim of having been denied a fair trial is insufficient to notify

the state courts of the constitutional nature of the claim. See

Duncan v. Henry, 513 U.S. 364, 366, 115 S. Ct. 887, 888, 130 L.

Ed. 2d 865 (1995) (“If a habeas petitioner wishes to claim that an

evidentiary ruling at a state court trial denied him the due

process of law guaranteed by the Fourteenth Amendment, he must say

so, not only in federal court, but in state court.”); Whitehead v.

Haggett, No. 12-CV-4946, 2017 WL 491651, at *16 (E.D.N.Y Feb. 6,

2017) (same).

The Second Circuit has identified four ways in which a

petitioner may fairly present his federal claims to state court:

(1) “reliance on pertinent federal cases employing constitutional

analysis”; (2) “reliance on state cases employing constitutional

analysis in like fact situations”; (3) “assertion of the claim in

terms so particular as to call to mind a specific right protected

by the Constitution”; and (4) “allegation of a pattern of facts

that is well within the mainstream of constitutional litigation.”

Jackson v. Edwards, 404 F.3d 612, 618 (2d Cir. 2005) (quoting Daye

v. Atty. Gen. of N. Y., 696 F.2d 186, 191 (2d Cir. 1982)).

Applying this standard, this Court finds that Ross has

not fairly presented his claim regarding failure to disclose a

witness’s criminal record. Ross relies solely on section 240.45

of the New York Criminal Procedure Law and does not cite a single

right found within the United States Constitution of which he was

deprived. Accordingly, Ross has not fairly presented his claim in

this circumstance. See Carvajal v. Artus, 633 F.3d 95, 107 (2d

Cir. 2011) (petitioner’s claim unexhausted when, on appeal,

petitioner solely relied on “state court decisions interpreting

state statutory law”).

Ross may not return to the state courts for further

review of these claims, as the New York State Court of Appeals has

already denied him leave to appeal the Second Department’s decision

affirming the judgment of conviction. See C.P.L. §§ 460.10(5)(a),

460.20. When state procedural rules no longer permit a habeas

petitioner to present his claim to the highest state court

empowered to review it, the unexhausted claim is “deemed” exhausted

but procedurally defaulted. St. Helen v Senkowski, 374 F.3d 181,

183 (2d Cir. 2004). In such instances, federal habeas corpus

review of the claims is generally not permitted. See O’Sullivan

v. Boerckel, 526 U.S. 838, 848, 119 S. Ct. 1728, 1734, 144 L. Ed.

2d 1 (1999) (holding that a claim which can be presented to a

state’s highest court, but which is not presented, results in

procedural default); Gray v. Netherland, 518 U.S. 152, 162, 116 S.

Ct. 2074, 2080, 135 L. Ed. 2d 457 (1996) (“the procedural bar that

gives rise to exhaustion . . . thus prevents federal habeas corpus

review of the defaulted claim”). Indeed, a habeas court may reach

the merits of the claim “‘only if the defendant can first

demonstrate either cause and actual prejudice, or that he is

actually innocent.’” St. Helen, 374 F.3d at 184 (quoting Bousley

v. United States, 523 U.S. 614, 622, 118 S. Ct. 1604, 1611, 140 L.

Ed. 2d 828 (1998)).

The “prejudice” requirement of the cause and prejudice

showings necessary to overcome Ross’s procedural default requires

more than a showing of a possibility of prejudice; instead, Ross

must demonstrate that the alleged errors worked to his actual and

substantial disadvantage. See United States v. Frady, 456 U.S.

152, 170, 102 S. Ct. 1584, 1596, 71 L. Ed. 2d 816 (1982) (finding

that a habeas petitioner “must shoulder the burden of showing, not

merely that the errors at his trial created a possibility of

prejudice, but that they worked to his actual and substantial

disadvantage, infecting his entire trial with error of

constitutional dimensions”) (second & third emphasis added).

Thus, the prejudice requirement is not met when the claims do not

provide a basis for habeas corpus relief, such as when they are

meritless or not cognizable on federal habeas corpus review. See

Cappiello v. Hoke, 698 F. Supp. 1042, 1052 (E.D.N.Y. 1988)

(“Naturally, petitioner’s procedural default of his claim . . . is

prejudicial only if such claim is meritorious.”), aff’d, 852 F.2d

59 (2d Cir. 1988).

Here, Ross has not demonstrated any cause for his failure

to argue that his claims were of a constitutional dimension, nor

has he at any time claimed actual innocence. Likewise, because

Ross is not entitled to relief on the merits, he has accordingly

suffered no prejudice.

This Court agrees with Respondent’s observation that

Ross cites no federal constitutional violation, which is “telling”

in this case. Although Ross cites to a statute codified in state

law, it is fundamental that “‘habeas corpus relief does not lie

for errors of state law.’” Estelle v. McGuire, 502 U.S. 62, 67,

112 S. Ct. 475, 480, 116 L. Ed. 2d 385 (1991) (quoting Lewis v.

Jeffers, 497 U.S. 764, 780, 110 S. Ct. 3092, 3102, 111 L. Ed. 2d

606 (1990)). The requirement that a defendant be provided with the

pre-trial statements of any witness who is called to testify for

the People (see C.P.L. § 240.45(1)(a)) as well as any known

criminal convictions and the existence of any criminal actions

pending against trial witnesses (see C.P.L. § 240.45(1)(b), (c);

People v. Machado, 90 N.Y.2d 187, 191, 681 N.E.2d 409, 659 N.Y.S.

2d 242 (1997), is strictly a matter of New York State law. Neither

C.P.L. § 240.45 nor its federal counterparts (Jencks v. United

States, 353 U.S. 657 (1957); 18 U.S.C. § 3500) is grounded in the

United States Constitution. See Hirsch v. Plescia, No. 03-CV-

1617, 2005 WL 2038587 at *7 (E.D.N.Y. Aug. 23, 2005). Therefore,

Ross’s claim regarding the failure to fulfill the mandates of

C.P.L. § 240.45 does not assert a federal constitutional claim

that is reviewable in the habeas corpus proceeding before this

Court.

In any case, Ross’s claim is meritless. The Appellate

Division determined that “the record demonstrates that the People

fulfilled their discovery obligations under C.P.L. 240.45(1)(b)

and (c) by disclosing to the defense any known judgments of

conviction or pending criminal actions related to the

prosecution’s witnesses.” Ross, 159 A.D.3d at 926. Nor is there

prejudice from any purported error because the jury could have

rejected Johnson’s testimony and still convicted Petitioner based

on overwhelming evidence. Review of the trial transcript reveals

that M.J.’s testimony of her sexual relationship with Ross in his

bedroom and truck was specific, consistent, and corroborated by

the voluminous cell phone records and statements of other witnesses

including Detective Rhubens Toussaint and Child Advocacy Director

Joshua Hanson. Johnson’s testimony was therefore not dispositive

of the jury’s guilty verdict, and the Court finds Ross’s third

argument unpersuasive. Even if the jury questioned Johnson’s

credibility because of her NYSIS criminal history, Ross could still

have been convicted for his crimes against M.J. without Johnson

ever taking the stand.

D. Preclusion of Witness Testimony

Finally, Ross argues that the trial court erred in

precluding Denise Sawyer from testifying as a witness for the

defense because Sawyer “could have discussed Sarita Johnson’s

credibility and her reputation in the community,” which in turn

could cause the jury to discredit her testimony and render a

verdict in his favor. (Pet. Ex. at ECF p.3.) However, the trial

court’s decision to preclude Sawyer’s testimony was a correct

application of settled law and thus does not provide a basis for

relief.

While “[t]he rights to confront and cross-examine

witnesses and to call witnesses in one’s own behalf have long been

recognized as essential to due process,” (Chambers v. Mississippi,

410 U.S. 284, 294, 93 S. Ct. 1038, 1045, 35 L. Ed. 2d 297 (1973);

see also Washington v. Schriver, 255 F.3d 45, 56 (2d Cir. 2001)),

the right to present a defense is not limitless. In a criminal

proceeding, the accused “must comply with established rules of

procedure and evidence designed to assure both fairness and

reliability.” Chambers, 410 U.S. at 302. Moreover, where, as

here, a habeas petitioner claims that a state court made erroneous

rulings that deprived him of the right to present a defense, the

reviewing court is required to distinguish between mere errors of

state law and those with federal constitutional implications (see

Jones v. Stinson, 229 F.3d 112, 120 (2d Cir. 1988)), namely, those

which deprive a petitioner of fundamental fairness. See Rosario

v. Kuhlman, 839 F.2d 918, 924 (2d Cir. 1988). In other words, the

excluded evidence must be material to the petitioner’s defense, in

that its inclusion would have created reasonable doubt about his

guilt. See id. at 925. Following these standards, Ross’s claim

does not warrant relief.

The trial court properly applied state law in deciding

to preclude Sawyer’s testimony. After a weekend recess in

testimony during the defense case, defense counsel informed the

court of a recent incident involving Johnson and her neighbor,

Denise Sawyer. (Tr. 114:6-1143:4.) According to counsel, Johnson

contacted the Nassau County Police Department and threatened

Sawyer after Sawyer allegedly trespassed on her property. (Tr.

1143:14-1143:1.) Although defense counsel did not previously plan

to call Sawyer as a witness, he announced that Sawyer’s testimony

would be useful “given what we have now.” (Tr. 741:3-14.) When

the court inquired as to whether defense counsel’s only purpose

for calling Sawyer was to “impugn” Johnson, defense counsel

answered that “[m]aybe” Sawyer had witnessed interactions between

Ross and M.J., or alternatively that Sawyer could elucidate

Johnson’s potential “bias” or “perhaps even her reputation in the

community.” (Tr. 1141:16-1142:7, 1183:10-17.)

Responding to these contentions, the prosecutor argued

that the sole purpose of calling Sawyer was to allow her to testify

about the trespass incident, a matter wholly “collateral” and

having “nothing to do with the present case.” (Tr. 742:20-22,

1143:6-23, 1179:23-1180:16.) The prosecutor further emphasized

defense counsel’s admission that he was not planning to call Sawyer

prior to the court’s weekend recess. (Tr. 742, 1143, 1179:18-

1180:24). The trial court agreed, noting that defense counsel

sought to call Sawyer after a “separate and distinct and post

action incident,” and furthermore ruling that Sawyer could not

offer any meaningful testimony” because her testimony was

collateral. (Tr. 1181:21-23, 1185:14-19.)

In New York State, it is well-settled that extrinsic

evidence of “immoral, vicious, or criminal acts” may not be used

to impeach a witness during trial (People v. Lyde, 160 A.D.2d 817,

817-18, 554 N.Y.S.2d 74 (2d Dept. 1990)) because such evidence

tends to “divert the jury’s attention away from the main issues

involved in the trial,” People v. Pavao, 59 N.Y.2d 282, 289-90,

451 N.E.2d 216 (1983).

Here, defense counsel’s offer of proof reflects that the

only purpose for Sawyer’s testimony was to tarnish Johnson’s

credibility. Defense counsel wished to elicit details of an

unrelated and alleged “vicious” act that had taken place during

the court’s weekend recess. The proffered explanation for Sawyer’s

testimony, to ascertain Johnson’s “reputation in the community,”

is unpersuasive because defense counsel already finished cross-

examining Johnson. Therefore, the trial court properly precluded

Sawyer’s testimony because such testimony was wholly immaterial to

any issue at Ross’s trial. See People v. James, 177 A.D.2d 595,

596, 576 N.Y.S.2d 47 (2d Dept. 1991) (“The trial court properly

. . . refus[ed] to admit the proffered testimony of [a witness].

This testimony was not probative of any issues in the case”);

People v. Fitzpatrick, 171 A.D.2d 972, 975, 567 N.Y.S.2d 915 (3d

Dept. 1991) (the trial court properly excluded extrinsic evidence

offered by the defense in response to the testimony of the People’s

rebuttal witness because such extrinsic evidence was “irrelevant

and immaterial to any issue involving defendant’s guilt or

innocence” and its only purpose would have been to impeach a

prosecution witness’s credibility; accord FED. R. OF EVID. 608(b)

(“extrinsic evidence is not admissible to prove specific instances

of a witness’s conduct in order to attack or support the witness’s

character for truthfulness”); United States v. La Chance, 788 F.2d

856, 877 (2d Cir. 1986) (the trial court properly struck testimony

from a witness related to another witness’s credibility because

the testimony was “collateral” and thus not proven through

“extrinsic evidence”).

Finally, even if this Court found that the preclusion of

Sawyer’s testimony was erroneous, such error would be considered

“harmless” to Ross’s substantial rights under 28 U.S.C § 2111 and

Brecht v. Abrahamson, 507 U.S. 619, 113 S. Ct. 1710, 123 L. Ed. 2d

353 (1993). In Brecht, the Supreme Court held that, in determining

whether habeas relief must be granted because of an error on the

part of the trial court, the standard is whether the error had a

“substantial and injurious effect or influence in determining the

jury’s verdict,” rather than whether the error was harmless beyond

reasonable doubt. Id. at 637, 113 S. Ct. at 1722

(quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct.

1239, 1253, 90 L. Ed. 1557 (1946)). Under this more stringent

standard, although habeas petitioners may “obtain plenary review

of their constitutional claims,” they are not “entitled to habeas

relief based on trial error unless they can establish that it

resulted in actual prejudice.” Id. at 637 (citing United States

v. Lane, 474 U.S. 438, 449, 106 S. Ct. 725, 732 88 L. Ed. 2d 814

(1986)). Therefore, “[h]abeas relief is not appropriate when there

is merely a ‘reasonable possibility’ that trial error contributed

to the verdict.” Bentley v. Scully, 41 F.3d 818, 824 (2d Cir.

1994) (citing Brecht, 507 U.S. at 637, 113 S. Ct. at 1721).

Here, the overwhelming evidence of Petitioner’s guilt,

discussed supra, renders the trial court’s decision to preclude

Sawyer’s testimony harmless error under Brecht. For example, in

addition to M.J.’s direct testimony about Ross touching and licking

her breasts, buttocks, and vagina while masturbating in his bedroom

and the back seat of his truck, the prosecution presented hundreds

of pages of cell phone records detailing late night calls and text

conversations between Ross and M.J. in which he told her, among

other things, that he “loved her,” and that “part of him died”

when he could no longer see M.J. As a result, the Court does not

consider the preclusion of Sawyer’s testimony, even if improper,

to have had a substantial and injurious effect or influence on the

jury’s verdict. Ross’s claim that he was denied a constitutional

right therefore does not warrant habeas relief from this Court.

CONCLUSION

For the foregoing reasons, Ross’s Petition for a writ of

habeas corpus (D.E. 1) is DENIED. This Court declines to issue of

certificate of appealability because Ross has not made a

substantial showing that he was denied a constitutional right.

See 28 U.S.C § 2253(c)(2). Moreover, the Court certifies that any

appeal of this Order would not be taken in good faith, and thus

Ross’s in forma pauperis status is DENIED for the purposes of any

potential appeal. Coppedge v. United States, 369 U.S. 438, 444-

45, 82 S. Ct. 917, 921, 8 L.Ed. 2d 21 (1962). The Clerk of the

Court is respectfully directed to CLOSE this case and mail a copy

of this Order to the pro se Petitioner.

SO ORDERED.

/s/ JOANNA SEYBERT______

Joanna Seybert, U.S.D.J.

Dated: August 8 , 2019

Central Islip, New York