# Ross v. People of the State of New York

> District Court, E.D. New York · August 8, 2019

URL: https://www.frixlaw.com/law-library/cases/10302784

## Case

- **Court:** District Court, E.D. New York
- **Decided:** August 8, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10302784

## How later opinions describe it (automated extraction)

- 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’”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10302784. Public record. Not legal advice.