Dotsenko v. Joseph

us DISTAICT COURT E DNY.

UNITED STATES DISTRICT COURT . pun

EASTERN DISTRICT OF NEW YORK x OlT01 2S ,

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ANGELIKA DOTSENKO, : BROOKLYN OFFICE

Petitioner, : □

: DECISION & ORDER

v. : 18-CV-1640 (WFK)

SUPERINTENDENT JOSEPH JOSEPH,

Respondent. :

□□□ ence ene □□□□□□□□□□□□□□□□□□□□□□□□□□□

WILLIAM F. KUNTZ, II, United States District Judge:

Before the Court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 by Petitioner

Angelika Dotsenko (“Petitioner”). ECF No. 1 (“Petition”). Petitioner is incarcerated pursuant to

her convictions of Second-Degree Murder and First-Degree Attempted Robbery. Jd. at 1.

Petitioner, proceeding pro se, argues she is entitled to habeas relief because: (1) the trial court

improperly denied her request for an accomplice-in-fact corroboration charge; (2) the prosecution

violated Brady v. Maryland, 373 U.S. 83 (1963) by failing to disclose to the defense the statements

made by her co-defendant in her plea allocution; (3) in the alternative, the statements made by her

co-defendant qualified as newly discovered evidence; and (4) her sentence was excessive. Id; see

also Response to Order to Show Cause (“Opp.”) at 20, ECF No. 8. For the reasons discussed

below, the petition for the writ of habeas corpus is DENIED in its entirety.

FACTUAL AND PROCEDURAL BACKGROUND

I. Alleged Crimes and Conviction

On July 22, 2002, Petitioner, acting in concert with Jennifer Fecu, devised a plan to rob

Christopher Trilli. Opp. 44. Defendant lured Trilli to an area near her grandmother’s apartment

at 2355 Ocean Avenue. /d. Defendant also gave Fecu a gun, with which Fecu shot Trilli once in

the head while he was sitting in his car, killing him. Fecu then stole a chain from Trilli’s

neck, and both Fecu and Petitioner fled the scene. Jd.

Petitioner was charged by Kings County Indictment Number 5053/2002 with: Murder in

the Second Degree in violation of N.Y. Penal Law § 125.15(3); two counts of Attempted

Robbery in the First Degree in violation of N.Y. Penal Law §§ 110.00, 160.15(1), (2); one count

of Attempted Robbery in the Second Degree in violation of N.Y. Penal Law §§ 110.00, 160.05;

one count of Attempted Robbery in the Third Degree in violation of N.Y. Penal Law 111.00,

160.05; one count of Criminal Possession of a Weapon in the Second Degree in violation of N.Y.

Penal Law § 265.03(2); and one count of Criminal Possession of a Weapon in the Third Degree

in violation of N.Y. Penal Law § 265.02(4). Jd. 5.

Trial against Petitioner commenced on May 5, 2004 and concluded on May 17, 2004. Jd.

{ 6. Petitioner was represented by Ivan Vogel, Esq. /a@. Evidence at trial included: testimony of

Rose Richie Palomino, Fecu’s cousin; testimony of Detective Robert Keating; testimony of

Joanne Anaele, Fecu’s friend; and evidence of telephone calls between Petitioner and Trilli. □□□

The jury found Petitioner guilty of Murder in the Second Degree and Attempted Robbery in the

First Degree on May 17, 2004. Id. ¢ 8. On June 24, 2004, the court sentenced Petitioner to

concurrent prison terms of 25 years to life on the murder count and 15 years to life on the

attempted robbery count. Jd. 9 17.!

On June 16, 2004, Fecu pled guilty to the entirety of Kings County Indictment Number

5525/2002, charging her with three counts of second-degree murder and other lesser charges. /d.

49. During her plea hearing, Fecu made several comments regarding both Petitioner and

Anaele, who testified against Petitioner at her trial. For example, Fecu told the court Anaele was

one of the people who gave her the gun and that Petitioner “set [the robbery] up” and was “the

one that called him and set it up as the victim.” /d. 413. Petitioner’s counsel stated he learned

of the plea in 2012 after being assigned to Petitioner’s direct appeal from the judgment of

conviction. See Opp., Ex. C (“Def. Mot. to Vacate”), J 69.

' On December 2, 2004, the court changed the sentence on the attempted robbery count to a determinate

sentence of 15 years. Opp. § 17. The court again amended the sentence to include 5 years of post-release

supervision on June 28, 2012. Jd.

Il. State Post-Conviction Motions

On September 18, 2015, Petitioner, through counsel, filed a motion to vacate the

judgment pursuant to N.Y. C.P.L.R. § 440.10 (“440 Motion”). See Def. Mot. to Vacate.

Petitioner argued the state prosecution violated Brady by failing to disclose to the defense the

statements made by Fecu in her plea allocution naming Anaele, a witness at Petitioner’s trial, as

an active participant in the robbery. /d. at 1-13. In the alternative, Petitioner argued the

statements about Anaele made by Fecu during her plea allocution qualified as “newly discovered

evidence” under N.Y. C.P.L.R. § 440.10(1)(g). /d. at 11-12. The state prosecution opposed the

motion, arguing the statements could not violate Brady because they occurred after the trial, and

even if they were available before trial, they would not have changed the verdict. See Opp., Ex.

D “Opp. to Mot. to Vacate”).

By decision and order dated December 23, 2015, the trial court denied Petitioner’s 440

Motion. See Opp., Ex. F. The trial court determined Fecu’s comments were not favorable to

Petitioner because they still inculpated Petitioner in the crime. /d. at 2. The court further

reasoned Petitioner was not prejudiced by the nondisclosure of the comments because the

comments only confirmed Petitioner had acted in concert with Fecu to rob Trilli. Jd.

In August 2016, Petitioner appealed from both her judgment of conviction and the denial

of her 440 Motion to the New York Supreme Court, Appellate Division, Second Department

(“Appellate Division”). See Opp., Ex. G. With respect to her conviction, Petitioner argued the

trial court erred in denying her request to charge the jury to consider whether Anaele was an

accomplice as a matter of fact, whose testimony required corroboration. Jd. at 42-55. With

respect to her 440 Motion, Petitioner reiterated her arguments the prosecution violated Brady and

the comments constituted newly discovered evidence. /d. 56-73. Petitioner also argued her

sentence was excessive. /d. at 73-74.

On May 24, 2017, the Appellate Division affirmed Petitioner’s conviction, holding the

trial court properly declined her request to charge the jury that Anaele was an accomplice whose

testimony required corroboration. See People v. Dotsenko, 52 N.Y.S.3d 640, 640-41 (2d Dep’t

2017). The Appellate Division also affirmed the trial court’s denial of Petitioner’s 440 Motion,

finding no Brady violation, and concluded the statements did not constitute newly discovered

evidence. /d. Petitioner filed an application for a certificate granting leave to appeal the trial

court’s 440 decision to the Second Department. Opp. | 24. On December 20, 2017, a judge of

the Court of Appeals denied leave. People v. Dotsenko, 30 N.E.3d 492 (N.Y. 2017) (DiFiore, J.).

Ill. Habeas Corpus Petition

On March 13, 2018, Petitioner filed the instant habeas corpus petition pursuant to 28

U.S.C. § 2254. See Petition. Petitioner argues she is entitled to habeas relief because: (1) the

trial court improperly denied her request for an accomplice-in-fact corroboration charge; (2) the

state prosecution violated Brady by failing to disclose to the defense the statements made by her

co-defendant Fecu in her plea allocution; (3) the statements made about Anaele by Fecu in her

plea allocution qualified as newly discovered evidence; and (4) her sentence of 25 years to life

on the murder count is cruel and unusual. /d. at 5-19.2 Respondent Superintendent Joseph

Joseph (“Respondent”), the authorized person who has custody of Petitioner, argues the writ

should not issue to Petitioner on any of these grounds. See Mem. of Law (“Opp. Mem.”) at 1-22,

ECF No. 8. The Court will address each of the issues in turn.

The Court refers to the pages assigned by the Electronic Case Filing System and not to any pagination

on the Petition itself.

DISCUSSION

I. Legal Standard

Pursuant to 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death

Penalty Act of 1996 (““AEDPA”), a petition for a writ of habeas corpus may be brought by a

person in custody pursuant only to a state court judgment “in violation of the Constitution or

laws or treaties of the United States.” 28 U.S.C. § 2254(a), AEDPA requires federal courts to

apply a “highly deferential standard” when conducting habeas corpus review of state court

decisions and “demands that state-court decisions be given the benefit of the doubt.” Renico v.

Lett, 559 U.S. 766, 773 (2010) (internal quotation marks and citations omitted). “Before seeking

a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, . . .

thereby giving the State the opportunity to pass upon and correct alleged violations of its

prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotation marks

and citations omitted).

A petitioner is entitled to habeas corpus relief only if he can show the state court

decision, having been adjudicated on the merits,

(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 that was 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). “For the purposes of federal habeas review, ‘clearly established law’ is

defined as ‘the holdings, as opposed to dicta, of [the Supreme] Court’s decisions as of the time of

the relevant state-court decision.’” Davis v. Racette, 11-CV-5557, 2015 WL 1782558, at *3

(E.D.N.Y. Apr. 21, 2015) (Brodie, J.) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)).

“A state court decision is ‘contrary to,’ or an ‘unreasonable application of,’ clearly established

law if the decision (1) is contrary to Supreme Court precedent on a question of law; (2) arrives at

a conclusion different [from] that reached by the Supreme Court on ‘materially

indistinguishable’ facts; or (3) identifies the correct governing legal rule, but unreasonably

applies it to the facts of the petitioner’s case.” Jd. (quoting Williams, 529 U.S. at 412-13). To

establish a state court’s decision constitutes an unreasonable application of the law, the state

court decision must be “more than incorrect or erroneous[;]” it must be “objectively

unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003). This means “a federal habeas court

may not issue the writ simply because that court concludes in its independent judgment that the

relevant state-court decision applied clearly established federal law erroneously or incorrectly.”

Williams, 529 U.S. at 411. “This distinction creates ‘a substantially higher threshold’ for

obtaining relief than de novo review.” Renico, 559 U.S. at 773 (quoting Schriro v. Landrigan,

550 U.S. 465, 473 (2007)).

As discussed below, all but one of Petitioner’s claims was raised at some step in the state

court appeals process. Accordingly, Petitioner is entitled to habeas corpus relief on any of these

grounds individually only if he can show the state court adjudication “resulted in a decision that

was contrary to, or involved an unreasonable application of, clearly established [flederal law, as

determined by the Supreme Court of the United States[.]” 28 U.S.C. § 2254(d)(1).

Il. Analysis

A. Ground One: Accomplice-in-Fact Corroboration Charge

Petitioner argues she was denied her constitutional right to a fair trial by the state court’s

denial of her request to instruct the jury to consider whether Anaele was an accomplice as a

matter of fact, whose testimony required corroboration. Petition at 5, 16, 18. Respondent argues

Petitioner cannot seek federal habeas relief on this ground because it is entirely based on a New

York State evidentiary rule. Opp. Mem. at 1-2.

A petitioner cannot seek habeas relief on this ground because the claim does not present

a federal constitutional issue but instead a “perceived error of state law.” Pulley v. Harris, 465

USS. 37, 41 (1984); see also Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the

province of a federal habeas court to reexamine state-court determinations on state-law

questions.”). A claim of error based entirely on a state evidentiary rule requiring accomplice

testimony to be supported by corroborative evidence does not assert a violation of a federal right.

See Young v. McGinnis, 411 F. Supp. 2d 278, 298-99 (E.D.N.Y. 2006) (Weinstein, J.) (citing

N.Y. C.P.L.R. § 60.22), aff'd, 319 F. App’x 12 (2d Cir. 2009) (summary order). Although a lack

of corroboration may have constituted a violation of state law, lack of corroboration does not

constitute a “violation of federal law, let alone of any federal constitutional right.” McGinnis,

319 F. App’x at 13 (citations omitted).

Here, Petitioner seeks relief claiming the trial court erred in denying her application for

an accomplice-in-fact corroboration charge—an alleged error of state law that does not raise.a

federal question. Indeed, even if the Court assumed the trial court erred in failing to give the

charge for Anaele’s testimony, the error did not deprive Petitioner of her right to a fair trial

because corroboration of witness testimony is not required under federal law. See United States

v. Hamilton, 334 F.3d 170, 179 (2d Cir. 2003) (“The testimony of a single accomplice is

sufficient to sustain a conviction so long as that testimony is not incredible on its face and is

capable of establishing guilt beyond a reasonable doubt.” (internal quotation marks and citation

omitted)); see also United States v. Gordon, 987 F.2d 902, 906 (2d Cir. 1993). Accordingly,

Petitioner’s request for habeas relief on this basis is denied.

B. Grounds Two and Four: Brady and Newly Discovered Evidence Claims

Petitioner next argues she was denied the right to a fair trial because the state prosecution

failed to disclose to her statements made by Fecu during Fecu’s plea proceeding, in violation of

Brady. Petition at 7-8, 10-11. In the alternative, she argues this should have been disclosed as

“newly discovered evidence.” Jd. at 7. Respondent rejects Petitioner’s Brady argument,

contending the allocution and statements made during it were not Brady material because they

did not come into existence until after Petitioner’s trial and verdict. See Opp. Mem. at 7.

Petitioner raised this issue in her 440 Motion to the trial court, and the trial court

dismissed the claim on the merits. Petitioner is therefore entitled to habeas corpus relief only if

she can show the state court adjudication “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).

Under Brady, federal prosecutors have an “affirmative duty” to disclose evidence

favorable to a defendant. Kyles v. Whitley, 514 U.S. 419, 432 (1995). To establish a Brady

violation, a defendant must show the government failed to disclose favorable evidence, the |

evidence is material and exculpatory or impeaching, and prejudice ensues. See Strickler v.

Greene, 527 U.S. 263, 281-82 (1999). “Evidence is material only if there isa reasonable _

probability that, had the evidence been disclosed to the defense, the result of the proceeding

would have been different.” United States v. Payne, 63 F.3d 1200, 1209 (2d Cir. 1995) (internal

quotation marks and citation omitted). As a threshold matter, the government cannot disclose

before a defendant’s trial evidence it did not possess at the start of trial. The government’s

3 Petitioner raises these arguments under both Grounds Two and Four in the Petition. See Petition at 7-8,

10-11, 18-19. Both grounds argue the Appellate Division erred in denying her 440 Motion, citing her

Fifth and Fourteenth Amendment due process rights. /d. at 18-19.

Brady obligation therefore does not extend to statements made to the government after trial ends.

United States v. Santos, 486 F. App’x 133, 136 n.1 (2d Cir. 2012) (summary order) (citing Dist.

Attorney’s Off for Third Judicial Dist. v. Osborne, 557 U.S. 52, 68-69 (2009)).

Here, Petitioner alleges a Brady violation for the state prosecution’s failure to disclose the

plea allocution, which occurred after the trial and after she was convicted. There was no

allocution for the prosecution to disclose before trial. Accordingly, Petitioner’s Brady claim

fails. See Santos, 486 F. App’x at 136 n.1.

Even if there was an obligation to produce such information learned after verdict but

before sentencing, the Brady claim would still fail because Petitioner cannot show the allocution

testimony would be “favorable” to the defense and that there is a reasonable probability the jury

would have acquitted Petitioner if the testimony was presented. To the contrary, the allocution

corroborates the portion of Anaele’s testimony that Petitioner had called Trilli and provided Fecu

with the bag containing the gun, whether or not it undermined Anaele’s testimony she was not a

participant in the crime. Accord Payne, 63 F.3d at 1210 (finding no Brady violation where

undisclosed impeachment evidence was just one of many pieces of evidence linking the

defendant to narcotics dealing and was corroborated by other physical evidence and witnesses).

Furthermore, the state prosecution could impeach portions of the allocution with Fecu’s August

14, 2002 videotaped statement stating Anaele played no role in the crime. See Opp. Mem. at 13-

15.

Petitioner’s alternative claim the allocution should constitute newly discovered evidence

sufficient to warrant a new trial is also without merit. A claim “based on newly discovered

evidence ha[s] never been held to state a ground for federal habeas relief absent an independent

constitutional violation occurring in the underlying state criminal proceeding.” Herrera v.

Collins, 506 U.S. 390, 400 (1993). Thus, even if the Court were to consider the allocution newly

discovered evidence, a constitutional violation must have occurred for relief to issue. The Court

has found no independent constitutional violation, and there is no reasonable probability the

admission of the allocution (if that were possible) would have led to a different outcome at trial.

Accordingly, Petitioner’s request for habeas relief on this basis is denied.

C. Ground Three: Eighth Amendment Claim

As her third ground, Petitioner argues because her co-defendant, Fecu, received a

sentence seven years shorter than hers, even though Fecu was the actual shooter, Petitioner’s

sentence was excessive in violation of her Eighth Amendment rights. Petition at 8, 18. This

issue was not raised in direct appeal, and therefore is unexhausted. See Opp. Mem. at 8; see also

White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (per curiam) (holding a claim unexhausted

where a petitioner alleges his prison sentence violated a federal constitutional right but failed to

assert the claim first in state court). Pursuant to 28 U.S.C. § 2254(b)(2), the Court may still deny

the claim on the merits even though Petitioner failed to exhaust her state court remedies, This is

the case here.

A sentence is not cruel and unusual in violation of the Eighth Amendment “if the

sentence is within the range prescribed by state law.” Tucker v. Yelich, 16-CV-4931, 2017 WL

3669613, at *10 (E.D.N.Y. Aug. 24, 2017) (Bianco, J.) (rejecting Eighth Amendment claim to

sentencing within statutory limits); see also Keane, 969 F.2d at 1383 (“No federal constitutional

issue is presented where . . . the sentence is within the range prescribed by state law.”);

Underwood v. Kelly, 692 F. Supp. 146, 152 (E.D.N.Y. 1988) (Sifton, J.), aff'd mem., 875 F.2d

857 (2d Cir. 1989) (“When a sentence is within [the range prescribed by law], a claim of

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excessive punishment does not present a constitutional question necessary for habeas corpus

reversal.”),

Here, it is undisputed Petitioner’s sentence fell within New York’s sentencing guidelines.

N.Y. Penal Law §§ 70.00(2), (3)(a)(i); 125.25(3). Thus, she suffered no federal constitutional

violation because her sentence was within the range prescribed by state law. Keane, 969 F.2d at

1383. Whether she believes her sentence is too harsh in relation to the sentence of her co-

defendant is not the standard for determining whether a federal constitutional violation oceurred.

Accordingly, Petitioner’s claim for habeas relief on this ground is without merit.

* * *

In sum, having carefully reviewed the merits of each of Petitioner’s claims, the Court

concludes Petitioner failed to demonstrate any state court ruling was contrary to, or was an

unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d). Thus, the

Court denies the petition for habeas corpus relief.

CONCLUSION

For the reasons stated herein, the petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2254 is DENIED in its entirety. A certificate of appealability shall not issue. See 28

U.S.C. § 2253. The Clerk of the Court is respectfully directed to serve notice of entry of this

Order on all parties and to close the case.

SO ORDERED.

_

s/WFK

“TION. WILLIAM y INTZ, 7

UNITED STATES DJSTRICT JUDGE

Dated: October 3, 2019

Brooklyn, New York

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